Pennsylvania's attorney general said she granted Gov. Tom Corbett the authority to file a federal antitrust lawsuit against the NCAA because the litigation could present a conflict of interest as her office prosecutes three Penn State administrators.
Attorney General Linda Kelly told The Associated Press on Thursday that "an actual conflict of interest could, and likely would, arise if this office were involved in both cases."
Her office is prosecuting Graham Spanier, Gary Schultz and Tim Curley on charges of endangering the welfare of children, obstruction, conspiracy, failure to report suspected child abuse and perjury. Prosecutors claim they illegally covered up complaints and suspicions about Sandusky, a former defensive coordinator who was convicted last summer of 45 counts of child sexual abuse, including attacks inside campus facilities.
Corbett sued the NCAA in federal court on Wednesday, saying a set of penalties imposed against Penn State over its handling of the matter should be thrown out on antitrust grounds. The school agreed to a $60 million fine, a four-year ban on post-season play, a reduction in scholarships and the elimination of more than 100 wins under former coach Joe Paterno.
The size and scope of the criminal case made it "untenable" for the attorney general's office to sue the NCAA, Kelly said.
"Given the serious nature of both these cases, keeping these matters separate is the best course of action for the people of Pennsylvania," she said.
The NCAA has called Corbett's lawsuit meritless and an affront to the victims of Sandusky, who is now serving a 30- to 60-year state prison sentence for abuse of 10 boys over 15 years.
Spanier, forced out as president last year after Sandusky's arrest, remains a faculty member but is on paid leave. Curley is serving out the last year of his contract as athletic director, also on leave. Schultz, the school's vice president for business and finance, has retired.
All three have said they are innocent.
Under state law, the attorney general pursues and defends lawsuits involving most state agencies, but can delegate that power for reasons of efficiency or if it is otherwise deemed to be in the best interests of the state.
Kelly said her office received a request from Corbett's lawyer James D. Schultz on Friday, Dec. 14, for permission to sue the NCAA. Her office granted it three days later, she said. That authority, signed by the chief of her litigation section, can be terminated or amended by the attorney general's office, and it does not cover any appeals.
Kelly, a Republican, was nominated two years ago by Corbett, who left the office midterm after being elected governor.
Her decision drew criticism Thursday from a suburban Philadelphia politician who is considering a run against Corbett in the 2014 GOP primary. Bruce Castor, a Montgomery County commissioner and former district attorney, said the lawsuit appeared to be filed in a rush because Kelly's successor, Democrat Kathleen Kane, is scheduled to be sworn in Jan. 15.
"I can't imagine any circumstances where I would have given up a case of this importance from my office," Castor said. "It would be exciting. It would be challenging. It would be headline-grabbing. It would have all of the elements that I used to think made a case worthwhile of handling, if not by myself, with my staff."
Kane did not respond to a message seeking comment left Thursday for Charlie Lyons, a top aide in her transition.
Walter Cohen, who spent nearly seven years in the attorney general's office, including a year as the attorney general, said he doubted Kane will want to take the case back.
"She's going to be handed a lot of stuff that happened under Linda Kelly, including the Curley and Schultz and Spanier prosecutions," Cohen said. "That itself is a lot to do."