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With its own president judge dissenting, Commonwealth Court on Wednesday upheld the constitutionality of the state Endowment Act that requires all million of the NCAA's penalty against Penn State over the Jerry Sandusky scandal be used in Pennsylvania.

Penn State's Beaver StadiumJoe Hermitt, PennLive.com

The court majority made that decision in an opinion that does not bode well for the NCAA in that it sharply criticizes, and even questions the basis for the controversial consent decree which obligates Penn State to fork over the money.

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Even President Judge Dan Pellegrini, who did not join in the majority opinion, wrote that he is "bewildered" that the Penn State trustees entered into the consent agreement when the matter it addresses "ordinarily would not be actionable by the NCAA."

Wednesday's ruling marked another round in the

While backing the constitutional validity of the Endowment Act the state Legislature passed last year, the court refused a plea by Corman and McCord to give them an early victory in the case by ordering the NCAA to abide by the terms of that law.

In the majority opinion by Judge Anne E. Covey, the court concluded that it needs to hear more argument on the case before "making a legal determination which has such far-reaching implications."

The finding that the Endowment Act does not breach the U.S. or state constitutions could be a turning point in the battle, however. Corman and McCord claim in their suit that the NCAA is violating the law's terms.

The NCAA had argued that the act was illegal "special legislation" that created a class of one and was aimed solely at its agreement with Penn State.

Covey countered that is not the case as the act could apply to any of the 32 other state state-supported or state-affiliated institutions of higher education if they ever enter any similar agreements that require a payment of at least million.

"It is reasonable to conclude that the General Assembly was concerned with the burden on the commonwealth's taxpayers resulting from such fines and thus drafted the Endowment Act to apply to monetary penalties paid by an institution of higher education, regardless of the source," she wrote.

Covey also wrote that the consent decree with Penn State "expressly recognizes the NCAA's questionable involvement in and its dubious authority pertaining to a criminal action against a non-university official which involved children who were non-university student athletes."

She added that "genuine factual disputes" exist "given the many discrepancies between the consent decree and the NCAA constitution and bylaws."

The impact of the consent decree on Penn State can't be ignored, Cover noted.

"High school athletes who had no involvement in (Sandusky's) criminal acts were prevented from obtaining a free college education. Student-athletes, trainers, coaches and support personnel who were taught and trained to be and to do their best were stopped from competing and student-athletes from other colleges and universities were also precluded from competing against them," she wrote.

"Student-athletes, trainers , coaches, administrators and support personnel who had excelled in their jobs through hard work, practice, commitment, team work, sportsmanship, excellence and perseverance were told that none of that mattered."

The court majority also added Penn State as a party to the Corman/McCord case, finding that the university's participation will be vital to the final outcome of the legal battle.

In his dissenting opinion, Pellegrini argued that the Endowment Act is in fact unconstitutional in that it is "highly unlikely" that it's "extremely specific" conditions would apply in any other situation.


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