Tuesday, July 24, 2012

Do Penn State fans have any legal recourse?

I received an email from a Penn State alum named Jordan who asked me if Penn State fans can do anything legally to the NCAA or Penn State. I think there are at least three legal strategies - defamation, consumer fraud and consent decree invalidation - that could be used. None of them, however, would likely work.

Here are some quick thoughts on them:

1) SUING THE NCAA FOR DEFAMATION: I don't think Penn State fans/ticket holders can sue the NCAA for defamation with any hopes of success. They likely do not have standing to bring a claim, since none of them were named or referred to (specifically or generally) by the NCAA or anyone at the NCAA.

Theoretically, Penn State as an institution could bring a defamation claim against the NCAA, but the consent decree (assuming it is valid) would take that claim off the table. Plus, truth is an absolute defense to defamation and the Freeh Report would be used by the NCAA.

2) SUING PENN STATE FOR CONSUMER FRAUD: It's possible that ticket holders could sue Penn State under a consumer fraud claim - the gist of it would be that the on-field product was somehow misleading since a cover up and scandal were occurring. But don't expect that to work. For one, those types of claims always seem to fail. They failed when a Jets fan brought a claim against the New England Patriots for Spygate, arguing the games were rigged. And they would fail if fans brought claims against the Saints for watching a hit man show instead of a football game. The problem is that when fans buy a seat to a game, it's a contractual right to watch a game and nothing more. People who went to Penn State games, be they Penn State fans or fans of other schools, were never denied that right. Even if the contractual right was broader, the scandal still had nothing to do with the players who played the games.

3) INVALIDATING THE CONSENT DECREE: Maybe the best legal strategy for Penn State fans would be to encourage the Board of Trustees to portray the consent decree as invalidly executed, and then for the university to seek an injunction from a court to restrain the NCAA's sanction.

Did President Erickson adequately notify the Board of Trustees about the decree? Did he receive its permission? Did he have the legal authority to bind Penn State to such an agreement without the Board's notice or permission? If he didn't, could the NCAA still rely on his signature? These are important process questions. Relevant Board rules and terms of Erickson's employment contract would prove crucial in answering them.

Practically, though, I don't see this strategy working: it seems like the university's key decision-makers (even if not many alumns, fans and students) are on board with accepting the NCAA's judgment.