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Pretty scathing response...
Dominate The State
Glad he pointed out that error. Does make the NCAA look pretty clueless.
"The NCAA’s consistent attempt to assert unpleaded “facts”—such as thenon-existent “ratification” of the Consent Decree by the PSU Board of Trustees—displays the same disregard for the Federal Rules of Civil Procedure that the NCAA has shown for its internal rules with respect to PSU."
This post was edited by JettaPSU2001 17 months ago
Did the request for dismissal and the state's response happen more quickly than expected? How long until a normal ruling?
How crazy a year. Sad that i am now rooting for Corbett.
the enemy of my enemy is my friend......for now.
LOL...Agreed. ....at least until the next election!
He saves PSU football he will win in a landslide
PENN STATE FOREVER
Not even that would be enough to get this moron reelected. I love Penn State football. He wins, I say thanks and good riddance to Corbett.
Agree. He would save PSU football and then after re-election he would continue his assault on funding to PSU. No thanks.
I think this gets to the lawsuit. The taxpayers of the commonwealth provide significant funding to PSU. Whether you think it should be more or less shouldn't matter in the case. I think you referred to it as fungible. PSU received some 270mill last year.
"It is ironic that the NCAA attempts to maintain a pious tone throughout its brief ... in light of its recent revelations about its own misconduct while investigating the University of Miami," the Corbett filing said.
That's because the NCAA's Czar is a pious jackass !!!!
In case anyone would like to read it.
Gov. Tom Corbett, in his response to the NCAA's motion to dismiss the state of Pennsylvania's lawsuit, said the first page of the NCAA's motion has the 'egregious error' of asserting the Penn State Board of Trustees voted to ratify the consent decree between Penn State and the NCAA.
You don't get credit for fixing your own mistakes...
As far as speed, I think this is happening about on pace with what some of us were predicting. I think I expected 3 weeks to respond to the motion to dismiss, and this is 17 days, so... We'll see. There'll be a reply, yet (probably 7 days from now, maybe 14), possibly a sur-reply (almost certainly 7 days after the reply), and maybe a hearing. Then, likely up to 90 days before a decision, though it depends on how busy Judge Kane's docket is and whether she decides she wants to get this thing moving sooner rather than later.
Also note that the brief pulls a clever move - it argues that the Consent Decree IS the anticompetitive conduct, which may suffice to moot the decree issue.
This post was edited by psume06 17 months ago
Finished reading, and the closing lines are absolutely hilarious:
"The NCAA’s request is based on self-serving assurances that its only concern was protecting its organization and enforcing “basic values.” No Rule 12(b)(6) movant is entitled to such leaps of faith."
Basically saying it would take a leap of faith to assume that the NCAA is enforcing basic values. Hilarious.
What do you think of the rebuttal overall?
I don't see any reason for there to be a sur-reply based on the current state of the motion.
I enjoyed reading the full response. Do we know yet if Kane is on board with this?
I think that the 12(b)(6) standard is a major hurdle that the NCAA has not overcome. The NCAA's motion based on 12(b)(6) is arguing that the State's Complaint has failed to state a valid claim for relief--in essence that the State can not prove it's claim under ANY set of plausible facts. That is a hard standard to win because for the State to fend off this motion, it only has to prove that SOME set of PLAUSIBLE FACTS (even if some of those facts are still unknown and are not stated in full in the complaint itself) would prove that the NCAA violated antitrust laws. Moreover, when the Court is reviewing the motion and all of the applicable briefs from both sides, the NCAA has the burden of proff and the Court MUST draw all reasonable inferences in favor of the non-moving party (i.e. the State). That's a tough motion to win.
So, if the NCAA wins this motion, the case is thrown out. If the State wins, the case just moves along to the long and often drawn out discovery phase.
So, overall, I think the State's opposition brief (not a rebuttal technically speaking) is likely enough to fend off the NCAA's motion.
I often see people claim that getting past the motion to dismiss and moving on to discovery is the big win. I assume that people believe this because they feel the NCAA will fold before allowing the commonwealth to dig through all their investigations and depose their leadership under oath. Just curious is that is still the sense people are getting.
Also, if the NCAA doesn't fold and allows this to go down the 2-3 year process, can the commonwealth change their plan and go after damages. That is, if the NCAA wants to drag it out, can PA go back and sue for damages occurred over the entire time if they ultimately win? I know they currently are not planning to go that route because the standard is higher and the risk of it getting dismissed is higher, but can that change or is it a decision that has to be made now?
1) I don't think that's what I'm saying certainly. Fending off this motion is A WIN, not a big win, IMO, based on the high standard for prevailing on a 12b6 motion. Discovery will be a very nice opportunity for the State to dig into the NCAA documents and to probe the NCAA officials in order to make it's case. That's never a bad thing. But it's not a HUGE victory. It's one victory on the road to the ultimate goal--reduction of the sanctions.
2) If this goes so long that the sanctions are over by the time the case goes to trial, the injunction remedy in the action would be moot and the only thing left would be damages (assuming money damages are available in this type of action, I just can't recall). If it ever got to the money damages stage, I would assume the State would have enough evidence about the actual financial harm suffered by the Commonwealth that it could prove actual money damages. No way for me to even quantify how much.
This post was edited by GRS154 17 months ago
Piggybacking on GRS to answer questions about my post, the more I think about it (and talk with another lawyer friend also invested in this), I would normally say there is a 0% chance that the NCAA's motion is granted. As GRS indicates, the motion is largely based on facts that aren't within the Complaint, and therefore, can't be considered. As such, it seems more and more likely that Judge Kane will summarily deny and the case will go forward.
I do disagree with GRS on whether this is a "big" win. I'm no antitrust expert, but I've done a little bit of work there and I've reviewed the law a little bit, and it seems to me that Pennsylvania has a pretty strong case if they can prove the facts of their Complaint (I am 100% confident that they can do this). I'm also pretty confident that the NCAA does not want the government (any government) digging around in its playbox. I think, if you make it to discovery, settlement follows in short order.
Out of curiousity, I looked up the bios of the attorneys representing the NCAA and the Commonwealth of PA. Two of the NCAA lawyers (Gregory Curtner and Kimberly Kefalas) and one of the PA lawyers (Melissa Maxman) are graduates of University of Michigan Law School. So the fate of the sanctions against PSU football are largely in the hands of three Michigan grads. They just need remember that that their enemy's (Ohio State) enemy (Penn State) is their friend
He'd have no mess to clean up if he didn't have a huge hand in creating it
This post was edited by LinebackerU1 17 months ago
Whatever it takes to get to settlement, I'm all for. In this instance, you might be right that win at this stage propels the parties to settle. That would make this a huge win, based on the outcome. But just based on the legal process, fending off a 12(b)(6) motion would not usually be considered a big win, unless you already thought you complain was on shaking factual or legal footing.
Also, I am NEVER 100% confident about the what facts I can or can't prove in a litigation....
thanks for the responses. I'm not an attorney (just married to one ;), but I tend to agree with 06 here in that I don't think the NCAA wants any part of discovery. Just look at the mess that came out of the miami and USC investigations and we almost have to assume similar methods were used in other investigations. The best thing PA did was go after them for treating PSU differently, even specifically pointing out a few specific cases in the suit. That argument will allow all other investigations to be within the scope of discovery so PA can go literally go digging through all their e-mails, documents, interviews, etc related to any investigation. The NCAA strikes me as an organization that has been corrupt for decades and it won't be too hard to get hands on documents or question people under oath to find some further damning evidence of how they operate. The NCAA is feeling the heat right now and if PA finds more gas for the fire they could be in real trouble.
Further, I think the NCAA has a "culture problem" and I'm not saying that in jest. I think for decades they have enjoyed free reign to do as they please with zero oversight other than that of their own membership, who for the most part doesn't care unless it's their school getting slammed. The result is 400 some schools against a handful that have legit complaints about being treated unfairly because of the lack of due process. As such, since the Tarkanian ruling decades ago, the NCAA has claimed to "clean up their methods", but have quickly slid back and possibly ended up further back than they started in the 70's.
Finally, I think the other big issue for the NCAA should this move towards trial is what is at risk should they lose. Getting rid of the PSU sanctions isn't really the issue nor is the loss of perceived power in being forced. I could be wrong, but I think this trial could challenge their position as a "non state actor" from Tarkanian v. NCAA. If that is the case, they will be SOL because as a state actor they will be bound to due process, which will completely change their role and identity.
This post was edited by spud358 17 months ago
I guess I'm missing how the NCAA is even arguably a state actor?
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