Judge ponders next steps in case against NCAA, Penn State

Judge ponders next steps in case against NCAA, Penn State

Published Feb. 6, 2015 1:09 a.m. ET

BELLEFONTE, Pa. (AP) A Pennsylvania judge heard arguments Friday on whether the death of famed football coach Joe Paterno in early 2012 should affect his estate's ability to sue the NCAA and Penn State over how they handled the Jerry Sandusky child sex-abuse scandal.

Judge John Leete will have to decide whether Paterno's death will prevent his estate from pursuing a breach-of-contract claim that says the NCAA and the university violated his rights through their investigations and a subsequent consent decree that made harsh judgments about his actions.

Leete also must resolve disputes about the plaintiffs' desire to depose five university presidents who served on the NCAA's executive committee when the consent decree was issued in July 2012, as well as how much pre-trial information exchanged by lawyers in the case can be made public.

The consent decree was entered into shortly after former Paterno assistant Sandusky was convicted of 45 counts of child sexual abuse. Sandusky, who maintains his innocence, is serving a 30- to 60-year sentence in state prison.


Since issuing the decree, the NCAA has largely lifted the penalties, restoring the Nittany Lions' full complement of football scholarships, allowing it to participate in post-season play, and restoring 112 football wins from Paterno's later years. It's also allowed a $60 million fine to be spent entirely within Pennsylvania to address child abuse issues.

The NCAA action ended litigation against Penn State and the NCAA by two Pennsylvania elected officials, a case that Leete said Friday he would consider as to how its resolution might affect the Paterno family lawsuit.

The judge promised to issue a ruling ''relatively soon.''

The plaintiffs in the Paterno family lawsuit once included former players and trustees. But with issues in the case narrowed down, they comprise Paterno's estate, his son and former assistant Jay Paterno, former assistant Bill Kenney and former trustee Al Clemens. The defendants are the NCAA, NCAA officials Mark Emmert and Ed Ray, and the university.

Paterno's estate and Clemens are suing Penn State and the NCAA defendants for breach of contract, including a range of allegations that include failing to treat them fairly and going outside normal procedures.

NCAA attorney Kip Johnson said any contract rights would have died with Paterno.

''It's a right to be heard but also a right to be judged,'' Johnson told Leete. ''And that can no longer be done.''

Joseph Loveland, a lawyer for the plaintiffs, said they want more details on what led up to the consent decree.

''We really want to find out what the NCAA was doing between November and June or July,'' Loveland said.

Paterno was harmed by the action, he said, even though he died more than six months before the decree.

''They attacked his character. They attacked his integrity. They attacked his legacy. They stripped the wins,'' Loveland said.

Kenney and Jay Paterno have a contract interference claim against the NCAA defendants, arguing that the NCAA's acts have prevented them from being able to find comparable jobs in football since being let go by the Nittany Lions football program.

Paterno's estate is pursuing a commercial disparagement count against the NCAA defendants, saying the consent decree made false and defamatory statements that have damaged the estate's commercial interests and value.

Another claim against the NCAA defendants, by Clemens, Kenney and Jay Paterno, alleges they were defamed by language - in the consent decree and a university-commissioned report - that criticized trustees for lack of oversight and ''some coaches'' for ignoring red flags about Sandusky's behavior. All four also allege they were victims of a civil conspiracy by the NCAA.