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NCAA asks court to reject latest request in PA case

The same day and as soon as it learned that Pennsylvania Governor Tom Corbett signed the Institution of Higher Education Consent Decree Endowment Act (the “Endowment Act”) into law, the NCAA  asserting that the Endowment Act was unconstitutional.  Under the Consent Decree, Penn State agreed to pay the NCAA to fund an endowment to support programs aimed at the prevention and treatment of child sexual abuse.  As its membership is nationwide, it was always the NCAA’s intent that this endowment support programs across the country.  The Endowment Act, however, authorizes Pennsylvania to seize that money for in-state programs only.  The NCAA named the Governor, the State Treasurer, the Auditor General, and the Chair of the Pennsylvania Commission on Crime & Delinquency as Defendants.

Rather than defend the constitutionality of the law in federal court, Defendants asked the federal court to abstain from ruling on the law’s constitutionality and to defer to a state court action initiated by State Senator Jake Corman, the author of the Endowment Act.  The NCAA’s Opposition asks the court to reject this request.  As explained in the NCAA’s brief, federal courts abstain in only rare and extraordinary situations.  This is not such a situation.

Courts will not abstain where—as here—a law being challenged is plainly unconstitutional.  The Endowment Act flagrantly violates the Takings, Contracts, and Commerce Clauses of the United States Constitution because it takes private property without compensation, directly undermines the Consent Decree, and impermissibly discriminates against interstate commerce.

In addition, Senator Corman’s state court case suffers from serious defects, which have already caused Senator Corman to twice amend his complaint in attempts to overcome them.  Because that state action suffers from fatal jurisdictional and other defects that necessitate its dismissal, it will not provide an adequate forum for the NCAA to raise its constitutional arguments.  In short, Defendants failed to show that any of the rare circumstances in which abstention is appropriate are present in this case.

As a backup option, Governor Corbett and the Defendants asked the Court to put the case on hold pending an outcome in Governor Corbett’s antitrust lawsuit against the NCAA, which seeks to overturn the entire Consent Decree with Penn State.  In its Opposition brief, the NCAA points out that there are no common issues between the cases, and Defendants have made clear that they have no intention of waiting to enforce the Endowment Act until after the antitrust case has been resolved. Thus, that case provides no basis at all for the federal court to abstain.

In the end, the NCAA has asked the federal court to reject Defendants’ extraordinary abstention request and, instead, to take up and resolve the important constitutional questions raised by the NCAA’s challenge to the Endowment Act.