On July 23rd, Penn State agreed to pay the NCAA $60 million in fines for the school’s role in the Jerry Sandusky scandal. Today, the state legislature passed a bill that requires the NCAA spend that money in-state, for child sex abuse prevention programs; Tom Corbett indicated he’ll sign it. Huzzah! But wait. Can the state of Pennsylvania really tell the NCAA what to do with its money?
Well, probably not. And a lot of it comes down to the fact that the NCAA isn’t really subject to Pennsylvania’s laws. Remember the Commerce Clause? Article I, Section VIII, Clause III of the U.S. Constitution? You know, that thing that Obama’s lawyers said made it legal to pass Obamacare? Anyways, that’s probably going to bite Pennsylvania in the butt here. Just as it allows the feds to regulate “interstate commerce,” says sports law expert Mike McCann of the University of Vermont Law School, it implicitly forbids the states from doing the same thing.
Take the case of NCAA vs. Miller. In 1991, Nevada passed a law demanding that the NCAA abide by due process laws, after the University of Nevada got burned by a set of NCAA sanctions stemming from the sundry misbehaviors of coach Jerry Tarkanian. In 1992, the NCAA sued, arguing that its affairs constituted interstate commerce, and that the state had no right to meddle in them. A federal court ruled in its favor. Pennsylvania’s law, needless to say, looks a lot like Nevada’s.
According to Matt Mitten, Director of the National Sports Law Institute at Marquette University, there’s another legal factor that bodes ill for Penn State. A little further down in the ol’ Constitution is the Contracts Clause, which says that no state can pass a “law impairing the Obligation of Contracts.” Well guess what Penn State and the NCAA agreed to in July? A contract. An after-the-fact re-jiggering probably wouldn’t fly in court.
What say you, bill sponsor and State Senator Jake Corman (R-Centre)? (Corman has also filed a lawsuit against the NCAA demanding the same conditions be met.) “Penn State is a public university, funded by public dollars,” he says, and that gives the state that controls those funds the right to say where they should be spent. Besides, he says, the agreement between the university and the NCAA never stipulated how the money would be spent, meaning this law wouldn’t violate the contract. The handful of sports law experts I spoke with doubted that either of these arguments would hold up, but allowed that the “public dollars” one was a bit stronger.
Verdict? The NCAA probably doesn’t need to do abide by the law, but could certainly generate a lot of good will and save itself some legal fees if they agree to follow it.
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