UPDATED 2013-01-03 12:19:44 ET
The 43-page complaint is available here (PDF). To be fair, I must admit that I haven't had time to read the whole complaint yet, but I did see trial attorney Max Kennerly's (@MaxKennerly) detailed analysis over on his Litigation and Trial blog (4 Reasons Why Gov. Corbett’s Antitrust Lawsuit Against The NCAA Is On Shaky Ground). In a nutshell, Kennerly thinks there are issues with standing to bring the lawsuit.
Because I haven't done the research, I'm not in a position to agree or disagree, however, I agree wholeheartedly with Max's final point, which goes to the merits of the case:
[A]ntitrust cases are increasingly difficult to win, and courts have generally sided with the NCAA on issues relating to sanctions.
That is not to say that I agree with the result itself, only that I agree that the Commonwealth will probably lose. Before the suit was filed, I mentioned that I was "intrigued," and that is because I like to examine the way other attorneys deal with peculiar circumstances that make it difficult to get their clients the relief they want. So, with that in mind, I will be watching the way this case develops.
Pennsylvania Governor Tom Corbett has scheduled a press conference today in State College. According to Good Morning America's Josh Elliott (@JoshElliottABC), he's planning to file a lawsuit against the NCAA, over the $60 million fine it levied against Penn State as a consequence of the Jerry Sandusky scandal.
This is an intriguing idea to me, so I poked around a little online, but I didn't find anymore details on the suit. My first thought was that the commonwealth of Pennsylvania was going to go after the NCAA for unjust enrichment—receiving a benefit for which they bestowed nothing in return—and although I like the concept, I'm not confident that it's a winner. There could be an antitrust claim there as well, but again, it seems like a stretch.
The theory behind the suit is likely to be that since Penn State is a state institution, the monetary penalty demanded from them is ultimately being paid by the taxpayers, who aren't a party to any contract or franchise agreement with the NCAA. This theory could support either a claim based in contract (e.g. unjust enrichment) or antitrust. Sometimes, though, a lawsuit like that is used as a strategic, posturing device, to influence future behavior and/or legislation, rather than to win a pile of cash.
If the suit is filed today in U.S. District Court for the Middle District of Pennsylvania, as is rumored, then I should be able to get a copy of the complaint, which I'll post here later.
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