Fairness, Due Process and the NCAA: Time to Dismiss the Fiction of the NCAA as a "Private Actor"

Article excerpt

Abstract

This article raises the important question regarding the legal status of the NCAA as a "state actor" which would subject it to constitutional due process requirements. The article is written within the context of two important cases: Tarkanian and Brentwood Academy. The authors take the position that the dissenting judges in Tarkanian and the majority in Brentwood essentially "got it right" and they provide an analogy to settled Supreme Court precedents that will provide the Supreme Court with a path to bring the NCAA under the aegis of the constitution-at least as far as providing members institutions, athletic administrative personnel, and athletes a modicum of due process protections.

Keywords: state actor, color of law, due process, fourteenth amendment, company town, entanglement

1. Introduction

The National Collegiate Athletic Association or NCAA is a voluntary association of public and private colleges and universities that establishes competition and other rules (e.g., on recruitment, amateurism) for its members relating to intercollegiate sports. According to Marc Bianchi (2010), the NCAA was:

"... originally created to protect the health and safety of collegiate football players. President Theodore Roosevelt, who was concerned over the increasing number of football-related injuries and deaths, summoned college athletics leaders to a conference at the White House at the turn of the century to discuss reforms. On December 28, 1905, sixty-two schools met in New York City and founded the Intercollegiate Athletic Association of the United States as a discussion group and rule-making body. Five years later in 1910, the IAAUS changed its name to the National Collegiate Athletic Association." (Bianchi, 2010, p. 167).

The arena of sports has provided a valuable insight into the issues surrounding "state action" that is important in a more general discussion of the topic-especially if an actor is a notorious or powerful "nongovernmental" entity such as the NCAA. Two United States Supreme Court cases, National Collegiate Athletic Association v. Tarkanian (1988) and Brentwood Academy v. Tennessee Secondary School Association (2001), are especially relevant. A brief summary of these cases is offered here to provide the proper context to the discussion.

1.1 Tarkanian

The University of Nevada-Las Vegas (UNLV) was a member institution of the NCAA. A Committee of the Association investigated certain allegations of improper athletic recruiting practices by UNLV. It then issued a report which concluded that there had been numerous (38) violations of the Association's mies, including several violations (10) by the university's highly successful and ubiquitous head basketball coach, Jerry Tarkanian. The Committee proposed a series of sanctions against the university, including a 2-year period of probation. The Committee also requested UNLV to "show cause" (Nocera, 2013) why additional penalties ought not to be imposed if the university failed to remove Coach Tarkanian from its intercollegiate athletic program.

The Council of the NCAA adopted the Committee's recommendations, whereupon, after a university administrative hearing had been conducted, the president of UNLV ordered the coach to be suspended for the probation period. The UNLV hearing officer, however, expressed doubt as to the sufficiency of the evidence presented against the coach.

Nevertheless, UNLV concluded that, given the terms of the university's membership in the NCAA, it could not substitute its own judgment as to the credibility of the witnesses. Coach Tarkanian, facing "demotion and a drastic cut in pay," brought suit in a Nevada state court against the university and a number of its officers alleging that he had been deprived of various rights, including the right to due process, under the Fourteenth Amendment to the U.S. Constitution. The NCAA was later joined as a defendant. The trial court ruled against the university and the NCAA and granted both an injunction and an award of attorney's fees pursuant to Title 42 U. …