Commonwealth Court Judge Anne Covey issued a memorandum opinion Friday that slapped the hands of the NCAA for its filings in state and federal courts looking for just the right rulings.
On Oct. 3, Covey issued a ruling denying the NCAA’s petition to dismiss the lawsuit brought by state Sen. Jake Corman, R-Benner Township, and Pennsylvania Treasurer Rob McCord, seeking to have the Endowment Act declared constitutional.
The Endowment Act would require the $60 million fine levied by the NCAA against Penn State after the Jerry Sandusky child sex abuse scandal to remain in a dedicated fund in Pennsylvania for the stated purpose of the penalty, to benefit child victims.
The NCAA followed that up three days later on Oct. 6 with a motion to expedite its own case in federal court against McCord, Pennsylvania Commission on Crime and Delinquency Chairman Mark Zimmer and now-removed defendants Gov. Tom Corbett and Auditor General Eugene DePasquale.
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On Oct. 17, they asked the Pennsylvania Supreme Court for a writ of prohibition that would direct the Commonwealth Court “not to proceed with the scheduled hearing” Jan. 6.
“The NCAA’s forum shopping by seeking a more favorable ruling from the federal court and through efforts that amount to nothing more than an interlocutory appeal to removing the pending ... trial date is behavior the courts find deplorable,” Covey wrote.
She also knocked the NCAA for claiming ownership of the fine money, something she said its co-defendant, Penn State, “specifically denied” in one of its own filings. In its federal motion to expedite, the NCAA said it needed to have the Endowment Act declared unconstitutional so that it could “facilitate employment” of the money “as expeditiously as possible.”
Covey found that argument disingenuous.
“More importantly, resolution of critical legal issues ... are not to take a backseat to an act which is fully within a party’s ability,” she wrote. “Thus if the NCAA desires for monies to be expended on programs preventing child sexual abuse and/or assisting the victims of child sexual abuse, there is no law or court order precluding the NCAA from making such a charitable contribution.”
She entered an order granting partial judgment in the case for Corman and McCord, reconfirming the constitutionality of the Endowment Act under state and federal law. The trial remains on track to settle the validity of the consent decree, the agreement by which the fine and other sanctions, including the elimination of 111 Penn State football wins, were instituted.
Corman attorney Matthew Haverstick filed a cross-motion for judgment on the pleadings in federal court, attaching a copy of Covey’s order Tuesday.
In the Commonwealth Court case, Haverstick has also filed a response to the NCAA’s claims of privilege regarding some documents.
At issue are 477 documents, down from more than 2,000 that Corman originally challenged, that the NCAA still claims are protected by privilege but that the Corman camp says have not been justified to receive that cloak.
Among exhibits submitted with the filing were two redacted emails. One was an email between two non-attorneys. The second was also an exchange between non-attorneys, but included one attorney who was copied on the information in the exchange.
Haverstick requested the court to review the challenged documents.
The NCAA fired its own shots in the U.S. District Court for the Middle District of Pennsylvania in a Friday reply supporting its request for a judgment on the pleadings in the lawsuit against McCord and Zimmer.
In that, the NCAA took aim at McCord’s assertion that the Endowment Act was needed because, as a land-grant university, Penn State receives funds from the state, giving him, as treasurer, a responsibility to watch out for the fine money.
The sports organization’s rebuttal used Penn State’s own repeated statements that no state appropriation money would be used as part of the fine. According to a university audit quoted in the filing, state funds made up less than 6 percent of the budget in the 2011-12 fiscal year, with most of the money coming from private and federal sources.
The filing also called the idea of the Endowment Act a “preposterous and unprecedented expansion of government power,” claiming a violation of the very takings clause of the state and federal constitutions that Covey denied were impacted.
The NCAA also asserted that the act sought to affect just one contract — the consent decree.
“Treasurer McCord cannot seriously contend that a law requiring that $60 million be paid to the state treasury rather than into a private endowment and spent only in one state rather than wherever the endowment thinks it would do the most good, does not affect any contractual rights of substance,” the filing claimed.