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.