Judge to decide later on Paterno family lawsuit

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Published: Oct 30 2013 08:02:55 AM EDT   Updated On: Oct 30 2013 10:39:00 AM EDT

A Pennsylvania judge said Tuesday he would decide later whether to allow a lawsuit against the NCAA filed by the family of longtime Penn State football coach Joe Paterno and others to go forward.

After hearing more than three hours of arguments, Judge John B. Leete said he planned to issue a written opinion but did not say when.

A lawyer for college sports' governing body urged him to throw out the complaint.

The lawsuit and the court are "a poor forum for the venting of frustration, and the NCAA should not be made the scapegoat for the errors and omissions of university officials," NCAA lawyer Everett Johnson said.

Leete is considering a host of issues, including whether Penn State itself is an indispensable party to the lawsuit, which challenges the NCAA penalties imposed on Penn State as a result of the Jerry Sandusky child-molestation scandal.

The Paterno family — joined by four university trustees, four faculty members, nine former players and two former coaches — allege breach of contract, contract interference, defamation, civil conspiracy and commercial disparagement.

A lawyer for the plaintiffs, Joseph Loveland, called the sanctions "coercion and a cram-down of the highest order." He said his clients wanted to compare the Penn State matter with how the NCAA has handled other cases.

"The truth of the matter is they were acting completely in uncharted waters with nothing whatsoever to support them on it," Loveland said.

The court session was held a day after Penn State announced $59.7 million in settlements with 26 young men over claims of abuse by Sandusky, who was the school's longtime defensive coach. He was convicted last year of 45 counts of child sexual abuse and is serving a lengthy state prison sentence.

Paterno's estate and family and the other plaintiffs filed the lawsuit in May, saying the NCAA had no authority to impose sanctions based on criminal matters that were not related to the sports it oversees.

Paul Kelly, another lawyer for the plaintiffs, explained how former coaches Jay Paterno and William Kenney were harmed by comments critical of the way the coaching staff handled Sandusky.

Being the subject of the NCAA's legal settlement with Penn State makes a person "radioactive in the coaching world, and most other programs aren't going to want to touch you," Kelly said.

Tuesday's arguments also centered on the procedures the NCAA used to determine penalties.

"They cut a new path with this case, no question about it," Leete told the lawyers.

The lawsuit seeks a court order voiding the agreement between the NCAA and Penn State last year, which included a $60 million fine, a four-year ban on post-season play and the elimination of 112 wins during the final years of the Paterno era. It also imposed a temporary reduction in scholarships, a penalty the NCAA softened last month.

Johnson said the erasure of Paterno's wins was not a sanction against Paterno.

"Coach Paterno doesn't own those wins," Johnson said. "Those are wins at Penn State University at a time when he was an employee."

Paterno died in January 2012 — about two months after Sandusky's arrest — of complications from lung cancer. The university took down a statue in his honor outside Beaver Stadium, although the school library and other facilities still bear the name of the coach who spent six decades at Penn State.

His son Scott Paterno, a lawyer, was in the courtroom for the hearing but declined to comment afterward.

Sandusky maintains his innocence, but a mid-level state appeals court recently turned down his request for a new trial.

The abuse scandal rocked Penn State, leading the board of trustees to fire Paterno and resulting in the unprecedented sanctions against the famous football program.

Three former Penn State administrators await trial in Harrisburg on charges they engaged in a criminal cover-up of the scandal. Former President Graham Spanier, retired Vice President Gary Schultz and retired athletic director Tim Curley deny the allegations.

A trial date has not been scheduled.