Frozen in Time: The State Action Doctrine's Application to Amateur Sports
Koller, Dionne L., St. John's Law Review
The Supreme Court has made clear that "[t]he Constitution constrains governmental action 'by whatever instruments or in whatever modes that action may be taken.' "x This sweeping promise, however, rings hollow in the area of amateur athletics, where amateur athletes and others are, in a very real sense, caught in what the Supreme Court calls the "essential dichotomy"2 between entities that are public, and therefore subject to the limitations of the Constitution, and those that are private, and consequently are not so limited. For nearly two decades, since the Supreme Court's decisions in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee3 and National Collegiate Athletic Ass'n v. Tarkanian,4 both the National Collegiate Athletic Association ("NCAA") and the United States Olympic Committee ("USOC") have been considered by courts and commentators to be "private" entities, and not state actors, meaning that constitutional protections do not apply to their actions. These decisions illustrate not only the troubled nature of the so-called "state action doctrine," but also the extraordinary consequence of the doctrine's application in the amateur sports context. In short, a static conception of the USOC and the NCAA has developed, so that they are considered private as a matter of law.
This static notion of the relationship between these entities and the government has created what is essentially a legal twilight zone where the Constitution is not applied to exercises of state power5 in amateur sports. This Article explores that twilight zone and argues that it has created significant, unintended consequences. Part II of this Article explains the state action doctrine and its application to amateur sports, detailing the state action requirement generally and explaining the major cases applying the state action doctrine to the NCAA, the USOC, and state high school athletic associations. Part III explains the consequences of these cases. Specifically, this part argues that the Supreme Court's holdings in San Francisco Arts & Athletics and Tarkanian have had the effect of holding the USOC and NCAA to be private actors as a matter of law. Moreover, this static conception of the USOC and NCAA as private actors has provided a powerful incentive for the government to pursue policy objectives, such as combating performance-enhancing drug use through amateur sports regulation, without its methods being subject to constitutional constraint. Finally, this Article asserts that the application of the state action doctrine to amateur sports organizations in a way that denies amateur athletes constitutional protections does not serve the goals of the state action doctrine, but actually undermines the legitimacy of the entities whose "autonomy" the doctrine purportedly aims to protect.
I. THE STATE ACTION DOCTRINE AND AMATEUR SPORTS
To properly examine the consequences of the state action doctrine's application to amateur sports organizations, the state action requirement itself and the prominent state action-amateur sport cases must be reviewed.
A. The State Action Requirement
The Fifth and the Fourteenth Amendments to the United States Constitution prohibit government action that deprives "any person of life, liberty, or property, without due process of law."6 The Supreme Court has held that this prohibition applies only to actions taken by the state-so called "state action."7 This requirement dates back to shortly after the ratification of the Fourteenth Amendment. In 1883, in The Civil Rights cases, the Supreme Court invalidated the Civil Rights Act of 1875, a Reconstruction Era statute that sought to prohibit racial discrimination in restaurants and other privately-owned ventures.8 Interpreting the Fourteenth Amendment, the Supreme Court held that "[i]t is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. …