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I could be wrong on this, but I'm going off of the law suit by the SUNY Buffalo hoops coach. He sued them and they played the "we're not a state actor card". The trial judge agreed, but was overruled by the appeals court saying because the NCAA had acted in concert with the university, which is a state actor, it too could be considered a state actor. The NCAA appealed to the Supreme Court to no avail.
Obviously a different situation and PSU isn't a pure state school like SUNY Buffalo, but that case is going to challenge the NCAA's claim as a non state actor. I'm guessing that the PA case could as well, but could be wrong.
This post was edited by spud358 17 months ago
If I'm understanding you correctly, in the SUNY Buffalo case, the NCAA was held to be a state actor by the Federal Circuit Court and the SCOTUS did not disturb that ruling. But that doesn't mean that the NCAA is a state actor for all purposes, just that it was in that instance. The NCAA on its face is NOT a state actor, but certainly could be held to that standard in a case like the SUNY Buffalo case. I don't think that case has any applicability to the instant case.
ok, that makes sense. Basically, the unique nature of the SUNY case might force them to be treated as a state actor for that instance, but not overturn Tarkanian.
I don't believe the SUNY case has gone to trial yet. it's been a long road, over a decade of fighting, to get that to trial but since the supreme court denied their appeal to dismiss it looks like it's finally going to trial. Should be interesting to watch that one and the timing is pretty good for PA and PSU.....
I just came across a Dodd article from just last over a week ago. He specifically mentions the potential for Corbet's case to challenge the NCAA as a state actor. I'm not sure if he knows what he's talking about, but he is floating it out there.
"The NCAA has argued for years that having to use due process -- cross-examining witnesses, etc. -- would hinder its ability to investigate cases. The investigative process has been speeded up over the years -- the average case lasts 11 months -- but flaws remain.
NCAA general counsel Donald Remy is no stranger to controversy. Example: Think of Remy and his past. He could have been a victim of the NCAA system if he were a suspected coach. In the Cohane or Pennsylvania Gov. Tom Corbett cases, if it can be proven that the NCAA is a state actor the existence of the association's investigative powers would be at risk."
Interesting. Yea I just don't know enough about that case and this one to say if it will be a common issue.
If the judge rules for the State and the case goes to discovery et al, will Corbett file for a temporary injunction against all of sanctions? If that is granted, wouldn't a settlement result rather quickly?
It's called a preliminary injunction in this area, I believe, and I'm not sure we have a basis to win that type of relief. Hypothetically, however, if we did win a PI motion, then I guess a settlement could result more quickly. But I just don't see any way either of those things happens. Normally, a PI motion is filed at the beginning of a matter--at the same time as or before the complaint is filed--because you need to show immediate irreparable harm to the State AND YOU NEED TO PROVE that the State is very likely to prevail on the merits of the actual case (something that is not clear at all).
I had asked a few of my attorney friends (none of whom practice in this area though) why PA didn't go for a PI right from the start and their response was similar to yours. Basically, the burden is much greater and the chances of it being dismissed are exponentially higher as a result. It seems that Corbett took the path of least resistance as a means to avoid a successful motion to dismiss and at least get to discovery. It will bite them if the NCAA doesn't want to settle and drags it out for years though. I'm not clear on whether PA could go after the NCAA for damages should they win the suit years down the road unless they file now though. on one hand not filing for PI gives them a better chance of making it to discovery (which some feel is where this could be won), on the other I don't think that scares the NCAA into possibly paying upwards of a $100 million in damages down the road if they lose.
I don't think PA stands a chance to win if this makes it to court. IMO it was done solely to reach some sort of settlement with the idea in mind that, if they get passed the motion to dismiss, the NCAA won't want its' dirty laundry aired for all to see.
I don't think filing for a PI and filing the suit that they did file are mutually exclusive. I think they didn't file the PI because they couldn't win it and just filed the current suit. That's how it looks to me.
Well done adding the 'for now' to the end.
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I actually think it has a good chance to win, but the question is, how long will it take?
Stupid question here. Does the info found in discovery get leaked?
If the NCAA motion to dismiss is denied, the state could then seek a preliminary injunction at that time. I suspect that is what will happen given the time-limited nature of the sanctions. There is no requirement that a preliminary injunction be filed at the same time the lawsuit is filed.
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Would that be a good idea? Then BOB and staff would have no idea how to recruit, not knowing if the sanctions could be re-imposed?
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That uncertainty would be a detriment, but it is nowhere near the detriment of having a roster limited to 65 scholarship players and 15 signees each year. I expect this case will settle at some point, and any scholarship reductions would be minimal and could be managed. So yes, I think seeking a PI is a good idea.
Let's assume the motion to dismiss is denied and Corbett files for an injunction, how would that work? does that mean PSU could recruit 25 spots, accept transfers (eligible to play in 2014) right now, get as close to 85 ships as possible as soon as possible, play in a bowl, etc this year, next year, and possibly even 2015 if the suit still is tied up in the courts?
IMO, that seems like a bad idea because at any point the suit could end and if PA loses, everything gets piled back on and we pickup in 2015 or 16 where we left off in 2013. Basically, it would take 2-3 years to get back to 85, another year or 2 to get back to 65 with VERY small recruiting classes, and still have 4 years of sanctions from 2015 or 2016 lasting through 2020 or longer. Ultimately, should PA lose, getting an injunction for the duration of the case and having to implement everything 2 or 3 years from now would be 10x worse IMO.
Yeah, this is how I was thinking too. I think the injunction is a bad idea. Unfortunately we really would have to hope it would get settled out of court. If it did go to court I honestly think we would want to avoid an injunction and seek damages after the fact should Corbett win.
I think you have to go for the injunction so the NCAA can't just drag this out. Even if PA eventually lost and the NCAA tried to reinstate the penalties, couldn't PSU then challenge them? At that point the public would be past it for the most part, so PSU wouldn't look so bad fighting them.
I think the time to file for the preliminary injunction has passed from a practical standpoint. There are two main elements to a PI motion: 1) immediate irreparable harm to the moving party and 2) likelihood of success on the merits. Not only will it be near impossible to convince the judge that the State is LIKELY TO WIN ON THE MERITS but you also have the problem of time that has lapsed. If the state files the PI motion now, it raises the obvious concern with the immediacy of the irreparable harm. Why the delay? Why file suit first, fend off the 12(b)(6) motion and then file for a PI? Why not file last fall? It's just a loser motion (the PI motion, that is) and there's no legit basis for it at this stage. Doing so now opens the state attorneys up to claims of delay and harassment, which would be grounds for Rule 11 sanctions.
Please leave logic and reason out of the thread on legal motions and strategy.... Unfortunately they do not mix most of the time.
Lets say the State and NCAA settle and the sanctions are dropped/reduced. What are the chances that PSU/Erickson/BOT choose to uphold the original sanctions (or self impose the remaining sanctions that were reduced) because they werent part of PA's suit and dont want the public perception that PSU has now "put the football team before the children"?
I could definitely see some bullcrap like that happening. Especially with Peetz and Erickson still in the picture.
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Corbett said during his presser for the lawsuit that he still like to see PSU set aside the $60 million for child sexual abuse even if the sanctions were overturned. So if a preliminary injunction was granted, I'd expect to see PSU put $60 million aside for the NCAA. By the time the case would be decided, George Mitchell would be done his work and PSU would have made all the changes in the Freeh report and PSU would have new president and AD so the NCAA would be PR wise to reduction the sanctions on students even further removed from the process.
If no preliminary injunction is granted, then if PA wins it would set up PSU to file a suit against the NCAA for damages. Given the $60 million fine and lost bowl money etc that could be a figure well into the 100's of millions.
I am no lawyer, but would not be confident about any of this stuff. I think the NCAA drags it out like they have with many of the other cases to get beyond the sanctions and get a 'WIN'. PA lawyers snooping around in NCAA files may not be fun for them, but losing the case or appearing to crumble under pressure from PA would be devastating to the entire organization. Hope PA is successful and NCAA capitulates to discovery process and reduces sanctions.
on a side note, took me 47 years and living in Switzerland to get sued for the first time. My former tenant is suing me for his security deposit back, have to hire a lawyer to prevent this trailer park, wife beating scum bag from winning. There were doors in the house which clearly were pushed in, frame became disconnected and damaged walls where they broke away. Holes in walls, cracked door,... just amazed what some people will do.
This is my fear with the piss poor leadership at PSU.
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