NCAA seeks background of Paterno critique of Penn St. report
Mar. 11, 2016
BELLEFONTE, Pa. (AP) — The estate of former Penn State football coach Joe Paterno should have to turn over background details on a 2013 "critique" produced for his family in response to a university-commissioned report that criticized his handling of the Jerry Sandusky child sexual abuse scandal, college sports' governing body argued Friday.
The NCAA told the judge handling the Paterno family's lawsuit against the NCAA that the Paternos should produce the types of details that the NCAA has had to turn over about the 2012 report for Penn State by former FBI director Louis Freeh.
"What we have here is, in our view, a goose-and-gander situation," said NCAA lawyer Kip Johnson during a hearing to sort out disputes over what the sides should have to disclose to each other before trial.
Lawyers for the Paternos argued to Judge John Leete that the two reports have an important difference — Penn State gave Freeh wide latitude to share what he found and did not review the report before it was published in July 2012, while the February 2013 critique was produced by the law firm retained by the Paternos.
They said former Gov. Dick Thornburgh and the two other critique authors were serving as consulting experts, so the material the NCAA wants is protected by attorney-client privilege.
"Publication does not open the door to confidential information," said Paterno attorney Ashley Parrish.
The Paterno estate is suing the NCAA for commercial disparagement, saying the report damaged commercial interests and value. Former assistant coaches Bill Kenney and Jay Paterno, the late coach's son, say they were defamed by the Freeh report and have not been able to find comparable jobs.
The defendants are the NCAA; its president, Mark Emmert; and Oregon State President Ed Ray, an NCAA leader when the association entered into a consent decree with Penn State in 2012. The Paterno family lawsuit is based on references to the Freeh report in the consent decree, which has since been repealed along with penalties that had included a bowl ban and the invalidation of 112 football team wins.
Johnson said a central issue in the case is "whether or not, in republishing statements of the Freeh report, the consent decree, the NCAA acted with actual malice," an important factor in defamation litigation.
The judge said he hoped to rule quickly.
The Freeh report, which concluded Joe Paterno and other high-ranking officials covered up complaints about Sandusky to avoid bad publicity, has been a lightning rod for criticism by those who feel its research methods were flawed and say it drew conclusions unsupported by the facts.
Joe Paterno died in January 2012 of complications from lung cancer. Sandusky was convicted later that year of 45 counts of child sexual abuse and is serving a 30- to 60-year prison sentence. He maintains his innocence, and this week his lawyers filed an amended appeal under the state's Post Conviction Relief Act.