This lawyer beat the NCAA. He thinks ex-Louisville players can, too

Danielle Lerner | Courier Journal

Show Caption Hide Caption Luke Hancock talks about suing the NCAA over vacating the 2013 Championship Hancock is one of several players who is suing the NCAA and is tired of answering the question about prostitutes nearly every day

The battle won't be easy for a group of former University of Louisville men's basketball players who are suing the NCAA for sanctions that included the loss of the 2013 national title, but at least one attorney thinks the ex-Cardinals have a case.

He should know — he fought the NCAA and won.

Philadelphia attorney Matt Haverstick represented Pennsylvania state senator Jake Corman in a lawsuit against the NCAA, a suit that ended up overturning NCAA sanctions against Penn State University and restored wins to the school's football program.

The Louisville suit — filed by former Louisville players Luke Hancock, Gorgui Dieng, Stephan Van Treese, Tim Henderson and Michael Marra — accuses the NCAA of portraying members of the 2013 team in a false light and seeks to restore the team's national championship and associated accolades, which were vacated by the NCAA along with 123 wins as a result of the program's escort scandal.

The lawsuit charges that the NCAA "acted recklessly" by implying to the public without clarification that the plaintiffs, members of the 2013 basketball team, received improper benefits and engaged in prostitution.

"I think (the NCAA) very badly wants to be in the quasi-law enforcement business, but I just don't think that was the intention when the organization was created," Haverstick said.

"If I were those young men and I thought the investigation was done improperly or unfairly as to me or I thought the punishment was arbitrary or capricious or otherwise not the way the NCAA is supposed to administer punishment — yeah, I’d think I had a case."

Penn State's precedent

The team of lawyers representing the former Louisville players referenced Penn State on multiple occasions at a press conference, and it turns out the two cases could rely on similar legal arguments.

"We're here today to reinstate all those wins, not just some of the wins — all the wins," lead attorney John Morgan declared at the press conference. "And by the way, they tried to do this to Penn State, the NCAA did. Remember all that? And Penn State pushed back and the NCAA caved."

Unlike in Louisville's case, however, the NCAA applied penalties to Penn State without going through its normal infractions and enforcement process.

In 2012, the NCAA announced severe sanctions against Penn State's football program stemming from a child sex abuse scandal involving its former defensive coordinator Jerry Sandusky.

Background: Ex-Louisville players take 'Goliath' of NCAA to court over 2013 title

The sanctions included a $60 million fine, a four-year postseason ban, scholarship reductions from 25 to 15 per year over four years, five years of NCAA probation and forfeiture of wins from 1998-2011.

Corman's lawsuit started out focused on forcing the NCAA to spend the fine money in the state of Pennsylvania but soon expanded to challenge the merit of the NCAA's original decision to punish Penn State.

Haverstick's objective was to establish whether sanctions levied against Penn State were in line with the way the NCAA normally meted out a punishment, or if it was something the NCAA wanted to do for the sake of public appearance.

As Haverstick and the NCAA's lawyers fought back and forth for two years, the NCAA began to gradually cede ground outside the courtroom. Following a recommendation from Penn State's athletics integrity monitor in 2014, the NCAA announced it would return Penn State's full amount of football scholarships and let the team participate in postseason play.

In 2015, the NCAA restored 111 wins to Penn State football as part of a settlement, and Haverstick said he believes the case set a precedent for the former Louisville players to be successful.

"It certainly makes it fair game to question the process the NCAA used," he said. "I think the evidence in the Penn State case showed that the process used in Penn State was out of whack and skewed. I think it's fair now for other schools and other people affected by sanctions to ask hard questions of the NCAA and find out, 'Did you use the right process when you punished us?'"

NCAA president Mark Emmert, however, said the settlement in the Penn State case did not mean the NCAA was admitting to a mistake.

"The (NCAA) board's authority to act in this process was sound," Emmert said, "and we believe it was appropriate, and as the agreement points out, was conducted by both parties with good intent."

Do the ex-Cards have a chance?

The Louisville and Penn State lawsuits hinge on a common theme — what jurisdiction does the NCAA have?

"There's this tension between what the NCAA was created to do and what I think it views as its mission now," Haverstick said. "Its mission now seems well beyond the regulation of the sport aspect of intercollegiate athletics. They aren't law enforcement. They aren't regulators. They are an organization that is supposed to set standards and rules for competition."

In statements announcing sanctions for both Louisville and Penn State, NCAA officials emphasized the lack of precedent for the severity of the violations.

"We cannot look to NCAA history to determine how to handle circumstances so disturbing, shocking and disappointing," Emmert said in a statement the day the NCAA announced sanctions against Penn State.

In its original 2017 ruling on the Louisville case, the Committee on Infractions wrote, "The COI has not previously dealt with a case like this. The violations were serious, intentional, numerous and occurred over multiple years."

In the complaint filed by the former Louisville players, attorneys claim negligence by the NCAA and attack the organization's authority — an argument Haverstick said is key to the whole lawsuit.

Read more: Lawyers differ on legality of Louisville fans' suit against the NCAA

"The NCAA's authority does not extend to criminal acts perpetrated by someone who happens to be associated with an athletic team," the complaint said. "... The NCAA had a duty to investigate and penalize alleged wrongful conduct in a manner that did not unreasonably harm or injure innocent student-athletes, including plaintiffs."

The suit also includes a claim of false light, a legal term describing widespread publication of false speech that damages an individual's mental health and reputation. The ex-Louisville players allege the NCAA led the public to believe they had participated in prostitution and dances with strippers.

Attorneys wrote that the NCAA "knew that plaintiffs did not engage in lewd or lascivious conduct" and still "chose not to exclude plaintiffs when referencing ineligible student-athletes in its disclosures to the public and to date have failed to clarify same."

Haverstick said attorneys will likely end up rehashing the entire NCAA investigation in an attempt to poke holes in the process.

"I wouldn't focus so much on, 'We have an entitlement to our reputation and our wins and status no matter what because we were student-athletes,'" Haverstick said. "That's not the case. ... I would certainly going forward focus on actual and reputational harm caused by alleged failure of the NCAA to do the investigation properly or to implement the punishment properly."

The University of Louisville was not listed as a party in the original complaint, although Haverstick said he wouldn't be surprised if the NCAA sued the university as a tactical method to pit the school against the former players.

"The NCAA is powerful and most schools and institutions, at least at the executive level, live in some level of fear from the NCAA," Haverstick said. "While privately deans and university presidents might be happy to see the NCAA be taken on, publicly you end up getting very little support from the institutions."

In addition to asking for a restoration of the championship, wins and accolades and a declaration of the plaintiffs' innocence, the former Louisville players are seeking damages from loss of economic opportunity and compensatory damages.

Related: Three reasons Louisville players are unlikely to win lawsuit vs. NCAA

Kentucky has no statutory caps on damages, meaning the financial award could potentially exceed thousands of dollars. Attorneys from law firm Morgan & Morgan are taking the case on contingency and will only get paid if the former Louisville players receive a financial award in a judgment.

As litigation progresses, attorneys from both sides will request documents related to the NCAA's investigation and the university's independent investigation, Haverstick said.

For Louisville fans, it could be a long and bumpy ride.

"If it's anything like the Penn State case, there will be thousands and thousands of documents in discovery," he said. "Assuming this case isn't dismissed early on, I think it'll be going on for a long time."

Danielle Lerner: 502-582-4042; dlerner@courierjournal.com; Twitter: @Danielle_Lerner. Support strong local journalism by subscribing today: courier-journal.com/daniellel.