The NCAA as Regulator, Litigant, and State Actor

By Amar, Vikram David | Boston College Law Review, March 2011 | Go to article overview

The NCAA as Regulator, Litigant, and State Actor


Amar, Vikram David, Boston College Law Review


Introduction

Perhaps the most famous court case involving the National Collegiate Athletic Association (NCAA) during the organization's first century ended up being resolved by the U.S. Supreme Court in 1988 in NCAA v. Tarkanian.1 The Supreme Court's 5-4 ruling (which this Article discusses further below) rejected the notion that the NCAA should be considered a "state actor" for purposes of a procedural due process claim brought by a men's basketball coach who had been suspended by his public university employer based on an NCAA investigation, findings of recruiting improprieties, and a recommendation for discipline.2 The Tarkanian ruling is significant insofar as it remains a key element of the modern state action principles that govern lawsuits against the NCAA and other athletic regulatory bodies.3 Much more fundamentally, the Tarkanian ruling (and a subsequent case in 2001, Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, involving a high school analogue to the NCAA in which the Court drew upon and distinguished the Tarkanian case4) provides a useful window into the common features-and major shortcomings-of the modern Supreme Court's doctrinal approach to the state action question more generally.

Part I of this Article provides an overview of the U.S. Supreme Court's prominent decisions involving the state action doctrine.5 Part II explores functional justifications for the state action doctrine, as opposed to the formalism of the doctrine itself. The Article proposes three major justifications.6 Part III then analyzes the two major U.S. Supreme Court cases involving the NCAA and athletic associations generally and highlights the unpredictability of the state action doctrine.7 Finally, Part IV examines how Tarkanian might have been decided had the U.S. Supreme Court adopted a functionalist, as opposed to formalist, approach.8

I. An Overview of State Action Doctrine

It is probably fair to say that the range of modern state action case outcomes and the broader doctrinal framework that generates them satisfy very few people. It might be fair to call the area a mess. As a starting point, everyone seems to agree that the Fourteenth Amendment- and indeed, its explicit text9-serves to limit what governments can do, but not what private individuals can do. This means that before we can apply a constitutional prohibition to an institution or individual's conduct, we must be prepared to say, at some meaningful level, that the alleged violation is being perpetrated by the state. But how do we know such a thing, in a world where government is drawn into virtually all private disputes because of society's and government's dispreference for (indeed often prohibition of) self-help remedies?10 Indeed, this question is even more difficult in a world where public and private institutions are yoked to each other in myriad complex ways involving licensing, regulation, government subsidies, privatization of traditionally governmental activities, complex business partnerships between public and private entities, and so on. Do any or all of these private-public connections transform otherwise private conduct into state action for constitutional purposes?

One might be tempted to think that the task in these cases is to determine "stateness" as an abstract and uniform quality-to develop an objective description of the activities and conduct that constitutes state action regardless of the particular constitutional claim being asserted- and then to apply this transcendent description to each setting in which a constitutional violation is alleged. And indeed, this is what the Supreme Court usually purports to be trying to do in resolving state action questions. But this is a tough-indeed undoable-job, because there is literally nothing in the Constitution's text, and very little in its history, that offers explicit criteria for distinguishing private and state action. Moreover, and relatedly, most observers (rightly) intuit that a defendant can and should be considered a state actor for purposes of one kind of constitutional claim even where the same defendant should not be deemed a state actor for a different kind of claim; this is true even if the essential characteristics of the defendant have not changed. …

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