Pretrial Discovery victory for Ed O'Bannon in lawsuit v. NCAA

On Monday, U.S. Magistrate Judge Nathaniel M. Cousins granted Ed O'Bannon's motion to review NCAA and NCAA member revenue info from TV, radio, Internet, sponsorships, licensing & ads. This is a significant pretrial victory for O'Bannon and his legal team, and also illustrates why the NFL apparently wants to reach a settlement with Jonathan Vilma before there's any pretrial discovery in Vilma v. Goodell: once a suit isn't dismissed and it goes to discovery, defendants may have to reveal information they are concerned about sharing.

The NCAA had argued the info was confidential and would have a "chilling effect" on member schools. Judge Cummings disagreed, as the info is clearly relevant to O'Bannon's class action lawsuit, which centers on the NCAA's use of former student-athletes' likeness after they leave college.

For more on Judge Cousin's ruling, see this Law 360 story and Hollywood Reporter story.

Challenges to Penn State Consent Decree: Unlikely to Succeed in Court or Before the NCAA

Shortly after the NCAA’s imposition of unprecedented sanctions against Penn State, I wrote in this space about the myth of due process protection in the NCAA arena. Essentially, the NCAA, as a private voluntary association of member institutions, is not a state actor and is not bound by state or federal constitutional constraints. Since NCAA member institutions appear to have validated President Mark Emmert’s unilateral punishment (through the NCAA Executive Committee and Division I Board of Directors), and Penn State consented, affected parties were left with very little recourse. Now, it appears that the Paterno family intends to challenge this notion. For various reasons, the family is unlikely to succeed either through an administrative appeal or in court.

As a threshold matter, the consent decree falls completely outside the normal NCAA procedural process outlined by Article 32. Normally, an appeal cannot occur until a hearing has been conducted, and a decision has been rendered. The Paternos could conceivably circumvent the standard appeals process by arguing that the NCAA did not adhere to its own prescribed procedure, and therefore, an exception should be made allowing for an unconventional appeal as well. With no hearing, however, there can be no subsequent appeal of a decision based on the same.

Even assuming, arguendo, that an appeal would be permitted from a procedural standpoint, the family simply has no standing to appeal. Counsel for the Paterno family has stated the opposite, based on the fact that Joe Paterno’s name is found in the Freeh Report as well as the consent decree. This is a misguided assertion. For an “involved individual” such as Paterno to appeal, he would have had to make an in-person appearance before the Committee on Infractions. Bylaw 32.10.1.2. To reiterate, the Committee has never been involved here. The standing argument on behalf of a family of an affected individual is even more attenuated, as no member of the Paterno family would even qualify as an involved individual. To analogize: would the NCAA allow the family of an ineligible student-athlete to bring its own appeal to the Student-Athlete Reinstatement Committee for related pecuniary or reputational damage? Clearly not.

The Paterno family’s hopes of recompense in a court of law may be equally slim. The Paternos may bring suit on behalf of the late Joe Paterno seeking to prohibit the NCAA from vacating his wins, and ordering the NCAA to follow its own procedures, thereby invalidating the consent decree. The Paterno family could contend that the consent decree is unenforceable as a whole because it had a significant adverse impact on Paterno as a third-party affected by a decree that neither Paterno nor his family consented to. But setting aside, for a moment, the fact that courts look with skepticism upon challenges to NCAA decisions, and separating the family’s claim from the arguments advanced by some members of the Board of Trustees, the Paternos simply cannot show sufficient harm warranting the issuance of an injunction against enforcement of the NCAA decision.

Pennsylvania courts will only grant a preliminary injunction when relief is necessary to prevent immediate and irreparable harm where the aggrieved party cannot be adequately compensated by damages. Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 786 A.2d 240 (Pa. Super. Ct. 2001). Courts have defined an injunction as an extraordinary remedy that should be issued with caution. Big Bass Lake Cmty. Ass’n v. Warren, 950 A.2d 1137, 1144-45 (Pa. Commw. Ct. 2008).

By any discernable standard, the diminution of Paterno’s win total does not constitute a harm warranting redress, in part because Paterno’s reputation has already been significantly tarnished by the entire ordeal, but primarily because no “show cause” order was ever issued against Paterno. If the NCAA  had issued a show cause order as part of this major infractions case, the irreparable nature of harm would be more evident, since it would result in a loss of employment opportunity. See Sanchez v. Dubois, 291 F. App’x 187 (10th Cir. 2008) (holding that since the secondary infractions case was unpublished, there was no deprivation of a liberty interest, but suggesting that a show cause order preventing employment could be sufficient). But since the NCAA did not issue such an order, and given that Paterno has since passed, this argument becomes moot. Likewise, an equitable remedy would be unnecessary to prevent immediate future harm for the same reasons. Barring a successful challenge to the consent decree by the University, the Paterno family is likely going to be bound by its contents and its reputational effects.

The same conclusion is likely to be reached in the appeal filed by individual members of the Board of Trustees. The Board members contend that the NCAA violated their “fundamental” due process rights, but again, this is a misconceived notion. The Board members further argue that the consent decree is null and void since President Rodney Erickson lacked the legal capacity to agree to the sanctions and did not properly consult the Board. Even if true, this likely has no bearing on the NCAA’s ruling, and similarly, a court would likely find that Erickson was acting with apparent or actual authority to bind the University. The Board may elect to take internal action against Erickson and is well within its rights to do so, but it is difficult to foresee a scenario that would result in a re-adjudication of the punishment rendered against Penn State that would produce a more favorable result for Happy Valley. Given the reputational damage that the University has already suffered, perhaps that is for the best.

Hat tip to law clerks Brian Konkel and Jane Kwak for their assistance on this piece.

Standing for Penn State

Any federal lawsuit by the disgruntled trustees is going to be dismissed, fairly quickly, on standing grounds. The four trustees have suffered no personal injuries. And I do not see how four individual trustees can sue on Penn State's behalf; even if the Board of Trustees could sue on the school's behalf, the majority of the 32-person Board has ratified President Erickson's decision. Four trustees simply do not wield that authority under state law. What they are trying to do is sue as fans or supporters of Penn State; but they have no more right to sue here than alums such as Franco Harris or my former co-clerk (who is also a former football player).

As for these efforts keeping the scandal in the public light, contrary to the NCAA's best efforts: At some level, this illustrates exactly what was, and continues to be, wrong at this institution and its thoroughly out-of-whack priorities with respect to the football team. At another level, were a lawsuit to be successful, I expect it would backfire badly in the court of public opinion. I have not heard anyone point to specific points on which the Freeh Report was wrong or to specific evidence that contradicts anything in the Report. So if the lawsuit reveals in discovery the information and evidence on which the Freeh Report was based, it is only going to make Penn State look worse than it already does.

Penn State Scandal Lives On

The clear purpose of the NCAA's investigationless sanctions on Penn State last month was to put this matter to rest. It didn't work.

We now have the prospect of months of federal litigation challenging the process underlying the NCAA's punishment of the university, and the power of university President Rodney Erickson to enter into a consent decree forfeiting the school's right to challenge the sanctions. Disgruntled trustees from the university have now asked the NCAA for an appeal and apparently, says ESPN, plan to sue.

If we do find ourselves in court, we may learn some interesting things about the NCAA's status as a "state actor" in light of Brentwood Academy. But at least one argument suggested by the dissenters -- that the University's president didn't have the power to sign the consent decree without full board approval -- seems hogwash. Under Pennsylvania's Higher Education Code, the President "shall administer and manage the institution," while the Board's job is to formulate "basic institutional policy." I'm not sure how signing a consent decree with a voluntary association falls outside of "administer[ing] and manag[ing]." While the letter of appeal makes reference to the "charter", "bylaws" and "standing orders" of the Board, it's pretty vague about how the consent decree violates any of those guiding documents. Page S-10 and S-11 of the standing orders do require the Board to be involved in certain kinds of decisions (sale of valuable land, etc.), but the NCAA consent decree doesn't appear to fall under any of these enumerated areas.

Even if the President lacked that authority, say, because the board had directed him to come back before entering a consent decree, he clearly had "apparent" authority and the board also seems to have acquiesced to (if not ratified) his actions by not objecting at its July 25 meeting.

As Mike indicated to MSNBC, the Paterno family's effort to interpose itself in this appeal, while understandable, wasn't going anywhere. This challenge by disgruntled trustees, while it is likely to ultimately be unsuccessful, at a minimum will drag this on beyond the start of the season -- defeating the entire purpose of the NCAA's abrupt and sudden effort to move past this scandal.

Will Union Cycliste Internationale help Lance Armstrong's Legal Situation?

I have a new column on SI.com that discusses an international jurisdiction dispute between UCI and USADA over whether USADA can sanction Lance Armstrong, and what this might mean for Armstrong.

Olympic Law

Nice post from Lisa McElroy (Drexal Law) on using the 2004 Men's Gymnastics controversy (where an unquestioned scoring error affected the outcome and resulted in Paul Hamm winning the all-around gold) to demonstrate the difference and intersection between law and justice, between following the rules or trying to produce the "best" results.

I'm getting old. I remember when we would use the 1972 Olympic Men's Basketball final, which had the added bonus of looking like they were just making the rules up as they went along (because they were).

Defining sport: Intrinsic and Instrumental Values

I have written before about defining sport and distinguishing sport from other athletic competitions. My preferred definition of sport includes four elements: 1) Large motor skills; 2) Simple machines; 3) Objective scoring (distinct from subjective judging); and 4) Competition. Of these, # 3 has proven to be most difficult, controversial, and contested, as the comments on this post show. Watching the Olympics (count me among the many who detest the NBC Primetime productions) has lead me to a different way of thinking about # 3, using a line familiar to legal scholarship--the difference between intinsic and utilitarian instrumental values. Hear me out.

Everything involves the performance of particular skills (dives, flips, swimming strokes, running strides, throwing, putting the shot, whatever), with the hope of performing those skills as correctly as possible. The difference is why the athlete performs those skills.

Sometimes they are done for utilitarian instrumental purposes--to enable the athlete to swim or run faster or to put the shot further or to put the ball in the basket. And the better or more perfectly the athlete performs those skills, the more likely he is to do well in the competition. But ultimate evaluation is not on the skills themselves and correct performance is not essential to success. A shot-putter still can have a good throw even if his performance on that throw is not technically correct; a swimmer still might swim fast even if his stroke is off; a jump shot in basketball may go in  even if the form on the shot is off. Each of those scores is worth the same as one done with perfect form. Other times, those skills are performed for their intrinsic value and utlimate evaluation is on the correctness and form of the skill itself. An Inward 2 1/2 that is not done correctly will score less than an Inward 2 1/2 done correctly; a backflip not done correctly will score less than a backflip done correctly.

This is our new third element. Sport is utilitarian instrumental; skills are performed toward some other end and outcomes are determined by the result of the skill rather than by evaluating the skill itself. It is not sport if it is intrinsic; skills are performed for their own sake and outcomes are determined by evaluating the skill itself. We no longer care about objective or subjective evaluation, about scoring or judging. Instead, we focus only on the thing being evaluated to determine outcome--the skill itself (not sport) or the results of the skill (sport).

Combined with elements 1, 2, and 4, above, we may have a winner.