By Peter Rudegeair
Jan 2 (Reuters) - Pennsylvania Governor Tom Corbett faces
serious obstacles to winning his antitrust lawsuit against the
NCAA over the harsh sanctions it imposed on Penn State in the
Jerry Sandusky child sex-abuse scandal, legal experts said on
Wednesday.
While targeting the National Collegiate Athletic Association
may be popular politically in a state where Penn State football
is widely loved, the federal court handling the case might rule
that the state lacks standing to bring the lawsuit in the first
place, experts said.
Moreover, the state of Pennsylvania must demonstrate the
NCAA penalties harmed consumers and constituted a breakdown in
the competitive marketplace.
"It's not a frivolous lawsuit - there are real arguments to
make - but, boy, is it weak," said Max Kennerly, a lawyer with
the Beasley Firm in Philadelphia who has been following the case
closely.
The sanctions the NCAA imposed on Penn State in July
included an unprecedented $60 million fine and the voiding of
all of the football team's victories over the past 14 seasons.
Corbett's lawsuit was distinct in that, unlike the
university, the state of Pennsylvania was not a party directly
affected by the sanctions. Instead, Corbett brought the suit on
behalf of third parties such as stadium workers, shopkeepers,
hoteliers and others whose businesses were disturbed because of
the NCAA's penalties.
The obstacle Corbett faced was "converting what may be real
and perhaps significant harm" to Penn State students and
athletes and local businesses into an antitrust violation, said
Gabriel Feldman, a professor at Tulane University Law School.
"This is an extremely uphill battle for Pennsylvania,"
Feldman said.
The NCAA has been sued on antitrust grounds fewer than 10
times over the past five years, estimated Matt Millen, a
professor at Marquette University Law School and director of the
National Sports Law Institute. Most of those cases were settled
or dismissed because courts often defer to the NCAA when it
comes to matters of rules and enforcement actions, Millen said.
Past antitrust suits against the NCAA that have been
successful tend to involve operations such as marketing and
licensing because the body has "a stranglehold" over those
spheres, Kennerly said.
The Supreme Court ruled in the 1984 case of NCAA v. Board of
Regents of the University of Oklahoma that the NCAA's policies
on television broadcast rights to college football games
violated federal antitrust laws. Former UCLA basketball player
Ed O'Bannon led a class-action suit against the NCAA in 2009
that is still pending over the use of student-athletes' images
and likenesses without compensation.
In contrast, antitrust lawsuits over NCAA sanctions have
been less successful in court. In the 1988 case of NCAA v.
Tarkanian, the Supreme Court ruled the NCAA was a private entity
not obligated to abide by due process considerations when it
hands down sanctions, Kennerly said.
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