Penn State pedophilia

[TripletDaddy]

Members of the board are threatening the suit. I'm guessing they would have standing. If it gets to that point, their argument will be that first, the board (of which they are a part) didn't approve the consent decree and therefore the consent decree is invalid (the president was without power to sign), second, because it was invalid, the basis of the NCAA punishment was without merit, and third, the NCAA couldn't deprive PSU of a property interest without due process (all of which it skipped because it relied on the consent decree).

It certainly passes the laugh test from a legal standpoint, I think. Doesn't pass the "shockingly awful" test from other standpoints.

Where is PSU guaranteed due process with the NCAA?

[scottie]

Ultimately, the only argument that might have legs is that the President didn't have the authority to sign the deal, but that brings me back to my original post. If the deal is retracted, the school gets the Death Penalty. And the NCAA clearly has the authority to dole out the Death Penalty. What's the point?

Why is that?

[TripletDaddy]

Why is that?

That is what has been floated in the press....that the alternative to the deal was a likely death penalty, which is why it was signed so quickly.

The NCAA did address the issue of "due process" when it explained the the Freeh report represented what the NCAA was going to do (and more) if it had conducted the interviews. Also, Paterno had since died, so they couldn't talk to him. And the NCAA had been speaking with PSU admin, etc throughout, so it is safe to assume that the majority of decion makers at PSU either agreed with the Freeh report or didn't think it prudent to deny it.

Of equal importance was that the NCAA didn't want to turns its investigation into a primary focus. The criminal and civil trials, which are far more important, are yet to play out. The last thing the NCAA wants to do is start talking to rape victims in order to assess a football game penalty. The thought it ridiculous. The NCAA offered PSU a quick out to save everyone the discomfort, likely relying on the undeniable fact that something horrible happened at PSU and that PSU was, in some significant way, involved. A horrible outcome for PSU was a fait accompli since this story broke. The NCAA is saying, who cares whether Freeh interviews you or we do? You guys screwed up big time and you were dumb enough to leave an email trail.

[Pheidippides]

Where is PSU guaranteed due process with the NCAA?

Should we put together a seminar on constitutional law to explain all of this stuff? Maybe we could also to a discussion of why free speech is an irrelevant topic when you are dealing with online message boards.

You know what? I'm going to call my boss a stupid MFer this morning and the try to raise free speech and due process arguments when I get fired on the spot and see how far that gets me.

[calicoug]

Im not so sure. When SC was going through the appeals process, all of these issues were being vetted....can th NCAA do this? Why are they punishing the football team for Reggies parents when the NCAA never accused Reggie or the football program of wrongdoing? Why so many scholarship reductions. Ultimately, the appeal was fruitless except that the NCAA made clear a few critical points. Among them, that Jerry Tarkanian already tried a due process argument. SCOTUS sided with the NCAA, giving it basically carte blanche to discipline its members. Also, The NCAA also is not bound by precedent. It has said so repeatedly.

Ultimately, the only argument that might have legs is that the President didn't have the authority to sign the deal, but that brings me back to my original post. If the deal is retracted, the school gets the Death Penalty. And the NCAA clearly has the authority to dole out the Death Penalty. What's the point?

Sometimes the best counsel is letting your client know when to accept the deal. This is clearly one of those instances, at least in my mind. I'm not surprised some firms want to take this case....it has the potential for thousands of billable hours with a deep pocketed client.

SC went through the normal investigative and deliberative processes the NCAA had established (and which SC had agreed would be followed by joining the NCAA). All of those were skipped with PSU. I think for good reason, but there was nothing in the NCAA rules that would have contemplated a punishment process like this one (doesn't help that even the NCAA says their acts and processes were unprecedented).

But I agree with your last paragraph.

[calicoug]

Should we put together a seminar on constitutional law to explain all of this stuff? Maybe we could also to a discussion of why free speech is an irrelevant topic when you are dealing with online message boards.

You know what? I'm going to call my boss a stupid MFer this morning and the try to raise free speech and due process arguments when I get fired on the spot and see how far that gets me.

PSU's due process claim isn't a constitutional one. It is a contractual one. The NCAA has very specific processes and requirements it by rule says it must follow before it is empowered to act. They skipped all of them. PSU lost property as a result and can show harm.

And unless you have an employment contract, I wouldn't recommend your proposed path with your boss. Even then - look at the definition of "cause" first.

[calicoug]

Where is PSU guaranteed due process with the NCAA?

As I recall, the bylaws are clear about required processes that must be followed.

[Babs]

As I recall, the bylaws are clear about required processes that must be followed.

And that procedure can be enforced in . . .

nevermind.

[calicoug]

And that procedure can be enforced in . . .

nevermind.

First you would have to appeal to the NCAA (which they are saying they will do). If that doesn't work (and it won't), you can enforce it in court as a contractual matter. Is that what you are asking?

[Babs]

First you would have to appeal to the NCAA (which they are saying they will do). If that doesn't work (and it won't), you can enforce it in court as a contractual matter. Is that what you are asking?

Oh, my mistake. For some reason I thought you were suggesting they had a due process claim.

[calicoug]

Oh, my mistake. For some reason I thought you were suggesting they had a due process claim.

Not in the constitutional sense. There is "due process" in the NCAA bylaws which can be enforced as a contract matter. PSU can show a loss of property and harm related to the breach of contract. I don't think their legal claim is all that bad.

[Babs]

Not in the constitutional sense. There is "due process" in the NCAA bylaws which can be enforced as a contract matter. PSU can show a loss of property and harm related to the breach of contract. I don't think their legal claim is all that bad.

I'm really glad you explained that because usually when we're confirming federal jurisdiction at the courthouse we just kind of assume that due process arguments are rooted in the Constitution. I'll have to keep an eye out for the contractual ones so we can kick them back to state court.

[TripletDaddy]

Not in the constitutional sense. There is "due process" in the NCAA bylaws which can be enforced as a contract matter. PSU can show a loss of property and harm related to the breach of contract. I don't think their legal claim is all that bad.

And if they win that claim, the NCAA can conduct a traditional investigation and give Penn State the Death Penalty for a few years.

[calicoug]

I'm really glad you explained that because usually when we're confirming federal jurisdiction at the courthouse we just kind of assume that due process arguments are rooted in the Constitution. I'll have to keep an eye out for the contractual ones so we can kick them back to state court.

I don't think you have to worry. They would be described as a breach of contract claim.

[calicoug]

And if they win that claim, the NCAA can conduct a traditional investigation and give Penn State the Death Penalty for a few years.

Now we are talking.

One does have to ask what the trustees think they can achieve. They can go to court for years, even prevail, just to have the NCAA closely follow their procedures and eliminate the program. Maybe the gamble is that the public will have moved on and not want punishment by then?