It always seemed inevitable that this Penn State mess would end up in the courts. Now, we've got a road map of how that's going to happen.
As ESPN reported on Monday afternoon, a Penn State trustee is filing an appeal to the NCAA over the sanctions levied in July. The sanctions are understood to be not subject to appeal, but the trustees are arguing due process—and there might be something to it:
The trustees are also trying to determine whether university president Rodney Erickson had legal authority to sign a consent decree agreeing to the package of sanctions—a $60 million fine, a four-year bowl ban, scholarship losses and the vacating of wins from 1998 through 2011.
Erickson signed a consent decree with the NCAA after consulting with Board of Trustees chairwoman Karen Peetz and university counsel, but he did not bring the decree to the full board for review or a vote.
Ryan J. McCombie, a retired Navy SEAL who joined the board in June, spearheaded the challenges on Monday, writing to fellow board members in a letter obtained by "Outside the Lines" that he has hired Boston attorney Paul Kelly to file the appeal and that trustees should join him in his effort against the NCAA and in trying to determine whether Erickson had authority to act alone.
That's an absolutely fair question to ask, although it's undercut substantially by the fact that Erickson signed the decree with the advice of the board's chair and that the board endorsed Erickson's decision at a subsequent meeting.
Thus, it's highly unlikely that the NCAA would even hear the appeal, much less consider it or even grant it. That's really not about to happen. But as ESPN reports, this appeal is really only setting the stage for America's second-greatest pastime: litigation.
Trustees and a person with first-hand knowledge of the discussions said the move is a precursor to a federal lawsuit asking a federal judge to invalidate the sanctions, because trustees expect the NCAA to reject the appeal.
That's also a matter of great ambition, but as mentioned before, it was really sort of inevitable. Penn State's penalties are utterly crushing, and it would behoove the school and/or its interested parties to pursue any legal recourse possible, be it an airtight case or (in this instance) the legal equivalent of a Hail Mary.
But let's even say, purely for the sake of a mental exercise, that a federal judge agrees with the trustees' argument that the punishment is invalid. The trustees aren't arguing anything but process in this instance, so even if the judge agrees, it's a leap in logic to think that the judge would then invalidate the NCAA's ability to levy punishment against Penn State at all.
So even winning a lawsuit doesn't get Penn State out of trouble here. And recall that per ESPN, the NCAA gave Penn State two choices: accept the consent decree with the punishments listed therein, or a four-year death penalty was on the way.
Now let's fast-forward in our alternate scenario to where a judge has just invalidated the consent decree. The NCAA had its terms, and this move by the trustees certainly wasn't pursuant to the consent decree terms. Do you think the NCAA has any desire to hand down anything but the death penalty at that point?
But that would be horrendous for Penn State, horrendous for the football team, horrendous for the community and horrendous for the Big Ten and college football as a whole. That consent decree is the only thing keeping Penn State's football program alive right now. Challenging it might feel like the ethically best thing to do on its face, but the consequences could be severe enough that it's really not a wise move.
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