Penn State might have had too much legal representation to claim duress in signing the consent decree that allowed epic NCAA penalties after the Jerry Sandusky child sex abuse scandal, but there’s one problem.
Penn State never claimed duress.
In an order Monday, Commonwealth Court Judge Anne Covey struck down a motion by the NCAA for partial summary judgment in the lawsuit brought against the university and the college sports organization by state Sen. Jake Corman, R-Benner Township, and Treasurer Rob McCord.
The NCAA claimed the consent decree “cannot be declared invalid” because the university could not have entered the agreement under duress because Penn State had at least five lawyers at the time.
Covey didn’t disagree with the NCAA’s assertion that it was “black letter law,” meaning it was indisputable. She did, however, notice that “upon review, the pleadings do not contain a cause of action or defense that the consent decree was entered into under duress.”
The idea was raised by McCord during a “laundry list of potential infirmities” in interrogatories, but Covey said those were “discovery tools, not pleadings, and do not define the causes of action or defenses at issue.”
In addition, Covey took issue with the whole idea, claiming that the NCAA was attempting to make Corman and McCord prove the consent decree is valid when the burden of proof rests with the defense.
She also noted that defense attorneys are obligated to put forward any defense, but “not to clog the courts with frivolous motions or appeals.”
The judge’s order is the most recent action against the NCAA, which has also lost attempts to have the Endowment Act declared unconstitutional.
Corman and McCord are suing over enforcement of the Endowment Act, which would require the $60 million fine levied against Penn State to stay in Pennsylvania.