Penn State

Federal judge denies NCAA injunction, Endowment Act passes muster

The NCAA, in its last effort to have the Endowment Act declared unconstitutional, has suffered a blow in federal court.

Judge Yvette Kane, of U.S. District Court for the Middle District of Pennsylvania, denied the NCAA’s request for an injunction barring enforcement of the Endowment Act, the state legislation that requires the $60 million fine levied against Penn State after the Jerry Sandusky child sex abuse scandal to remain in Pennsylvania for the benefit of abuse victims and programs.

The Endowment Act, introduced by Senate Majority Leader Jake Corman, R-Benner Township, became law in February 2013, and the NCAA has been fighting it ever since — first in Commonwealth Court, then in state Supreme Court.

In her ruling, Kane upheld Commonwealth Court Judge Anne Covey’s affirmation of the constitutionality of the Endowment Act, essentially telling the NCAA that its questions have been asked and answered at the state level.

“The federal Full Faith and Credit Act is grounded in principles of comity that do not permit federal district courts to sit as appellate bodies over Pennsylvania courts,” she wrote. “The Commonwealth Court proceedings satisfy the minimum standards of the law of issue preclusion, and as such are entitled to preclusive effect. This (c)ourt is obliged to decline consideration of (p)laintiff’s constitutional claims.”

The Commonwealth Court case, scheduled to go to trial Feb. 17 in Harrisburg, was initially filed by Corman and state Treasurer Rob McCord to enforce the Endowment Act but has become more about the consent decree, the controversial agreement with the NCAA signed by then-Penn State president Rodney Erickson accepting the sanctions in the wake of the Sandusky scandal.

Emails filed as exhibits in the case by Corman’s attorneys have shown conversations between the Freeh investigators and the NCAA that included sample questions for the interviews and regular updates on the independent review commissioned by the university. NCAA officials also discussed “bluffing” the university into accepting the consent decree, although there were doubts as to the college sports organization’s jurisdiction to apply sanctions in the matter.

The NCAA has been shot down by Judge Anne Covey several times in the case, including for overuse of privilege in depositions and discovery and calling its attempt to press the same argument in both state and federal courts “forum shopping.”

Kane agreed and, in her ruling wrote, “The (c)ourt can find no principled distinction between the extent of the NCAA’s opportunity to litigate in Commonwealth Court and in this (c)ourt, as a result, the (c)ourt finds that the NCAA’s opportunity to litigate was sufficiently full in the Commonwealth Court to satisfy Pennsylvania issue preclusion law.”

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