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Thursday, January 03, 2013
Penn State Rescue Blues: initial read on Corbett's Complaint
here. There are financial and political considerations at play here, and in no uncertain terms, the suit seeks to protect Penn State football.
Like any fact-intensive antitrust suit, many key issues are far from resolved, and much is still to be determined (for a full analysis of the merits of the suit, see Mike’s Sports Illustrated piece). Also, see Marc and Howard's comments from earlier. What is apparent from Corbett’s actions and from the face of the Complaint, however, is that college football possesses influence and leverage unmatched by any other sport.
The language of the Complaint readily concedes the influence of the sport, stating at the outset of the facts that “Division I college football is big business.” Further, much of the State’s case centers on the alleged economic impact of the sanctions, including effects on the School’s revenue, on local businesses, and on jobs. The economic effects will be determined in discovery if the case reaches that phase, and the actual impact beyond the fine and lost bowl revenue is questionable since Penn State will still play all of its home games for the duration of the penalty, and still has attendance figures that rate near the top in Division I. But the point is clear: top tier college football programs are among the most valuable assets of state and local economies. Like any valuable commodity, expect all stops to be pulled out in protecting what many consider Penn State’s most prized asset.
I do not represent the NCAA (never have), and I have actually been directly adverse to the NCAA, and actively defend student-athletes, coaches, schools, and related companies in various NCAA enforcement proceedings. That being said, I am troubled by various aspects of this Complaint as drafted. Some quick thoughts on my initial read of the Complaint are below.
To be fair, this phenomenon is not unique to Corbett and PSU. We have seen this in other contexts, whether it be former SMU President and Texas Governor Bill Clements’ involvement in the School’s pay-for-play scandal, Utah Senator Orrin Hatch threatening to bring an antitrust suit against the BCS, or the slew of litigation related to conference exit fees imposed on departing member institutions. The fact remains that college football begets strong emotional responses, and often the accompanying litigation. Interestingly, since Penn State is a public institution tax payers, many whom are assuredly Penn State fans, are going to foot the bill for both the litigation and the fine.
In handing down the sanction in the first place, the NCAA noted that criminal charges are generally outside the purview of its jurisdiction, but it was the administration’s lack of institutional control over the football program that triggered the response. Essentially, sanctions that stemmed from an irrational reverence for the sport have now triggered litigation designed to protect the same. Corbett alleges that the relationship between the sanctions and the sport is too attenuated, yet ironically, the case serves as a reminder that sometimes sports overshadow and often diminish more significant societal issues. This is, perhaps, most evident in the realm of college football.