{"id":12036,"date":"2019-12-03T07:35:10","date_gmt":"2019-12-03T12:35:10","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12036"},"modified":"2019-12-03T07:35:10","modified_gmt":"2019-12-03T12:35:10","slug":"james-wiseman-the-ncaa-and-state-action","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/james-wiseman-the-ncaa-and-state-action\/","title":{"rendered":"James Wiseman, the NCAA, and State Action"},"content":{"rendered":"

The National Collegiate Athletics Association has suspended<\/a> star college basketball player and projected<\/a> first pick in the 2020 NBA draft pick, James Wiseman, until January because of a loan his family took out while he was in high school. Throughout his fight against the NCAA investigation, Wiseman has not and will not be entitled<\/a> to claim any constitutional protections. What\u2019s more, the University of Memphis, the school that recruited him, and<\/a> Penny Hardaway, the coach who made the loan to Wiseman\u2019s family, are incentivized to avoid helping Wiseman in litigation due to a little known NCAA rule called the \u201crestitution<\/a> rule.\u201d<\/p>\n

The NCAA\u2019s largely unilateral power to discipline Wiseman comes from two aspects of the organization\u2019s legal makeup. First, the Supreme Court held in National College Athletic Association v. Tarkanian<\/em><\/a> that the NCAA is not a state actor under the Fourteenth Amendment and therefore not bound by constitutional due process requirements. Second, the NCAA, rather than adopting bylaws granting athletes the same due process protections that would be mandated by the Constitution, has chosen instead to adopt a \u201crestitution rule,\u201d<\/a> which permits the NCAA to punish a university who permits an athlete to play during a court-ordered preliminary injunction that later gets reversed or vacated. This means that if a court were to enjoin Wiseman\u2019s suspension pending the outcome of a lawsuit, Memphis risks significant punishment if it allows Wiseman to play during the injunction. The practical<\/a> effect is to dissuade athletes from filing suits and to alter the likelihood of a court issuing an injunction by changin<\/a>g the calculus of the harm an injunction poses to third parties, one of four factors in preliminary injunction determinations.<\/p>\n

This legal infrastructure is the byproduct of the Tarkanian<\/em> court\u2019s failure to protect the constitutional rights of athletes. As pressure<\/a> against the NCAA from civil rights<\/a> groups continues to grow, ensuring athletes can claim constitutional rights against the NCAA is paramount. Athlete eligibility determinations can distort<\/a> the entire trajectory of many athletes\u2019 lives by tarnishing their reputations, harming the financial wellbeing of their families, and alienating them from the campuses that recruited them.<\/p>\n

In Tarkanian<\/em><\/a>, the Court assessed former University of Nevada, Las Vegas basketball coach Jerry Tarkanian\u2019s argument that he was fired by UNLV without due process and that, by threatening the school with sanctions if Tarkanian remained the coach, the NCAA\u2019s conduct became state action. But, because it was UNLV, not the NCAA, who fired Coach Tarkanian, the Court assessed UNLV\u2019s involvement in the NCAA\u2019s rulemaking. Because the NCAA is composed of over 900 institutions across the country, each contributing to the formulation of rules, the organization\u2019s legislation \u201cspeak[s] through an organization that is independent of any particular state.\u201d Therefore, the NCAA was not \u201cacting under color of Nevada law\u201d when it told UNLV to either fire Coach Tarkanian or face significant punishment.<\/p>\n

It’s worth pausing to recognize the deeply counterintuitive result in Tarkanian<\/em>. If a group of predominantly state actors form an organization to govern their students, there are two ways to view the status of that organization: first, as a state actor acting on behalf of the member organizations, or, second, as a private organization with a status separate from the member institutions themselves. While the second view has some force, the fact the NCAA wields enough power over member schools to force UNLV to fire the winningest coach in school history renders the organization\u2019s purported \u201cprivate\u201d nature a mere formalistic abstraction.<\/p>\n

The NCAA\u2019s composition of universities from different states was critical to the Court distinguishing Tarkanian<\/em> in Brentwood Academy v. Tennessee Secondary School Athletic Association<\/em><\/a>,<\/em> where the Court found state action in an athletic association\u2019s regulation of high school sports at both private and public schools. In Brentwood<\/em>, the court reasoned that \u201can organization whose member public schools are all within a single state\u201d has a more substantial connection to that state\u2019s action than the NCAA\u2019s had to Nevada. Therefore, the athletic association\u2019s conduct was state action due to the organization\u2019s \u201centwinement\u201d with the state of Tennessee.<\/p>\n

Brentwood<\/em>\u2019s legal reasoning undermines the rationale in Tarkanian<\/em>, and the NCAA\u2019s current treatment of Wiseman demonstrates the dire consequences of leaving the Tarkanian<\/em> precedent in place.<\/p>\n

Brentwood<\/em><\/a> looked at whether the conduct involved \u201ca close nexus between the State and the challenged action\u201d such that the private conduct at issue is \u201cfairly attributable\u201d to that of the state. Moreove<\/a>r, \u201cno one fact can function as a necessary condition\u201d and \u201cfairly attributable is a matter of normative judgement.\u201d As the NCAA has continually grown<\/a> in power and influence, Tarkanian<\/em>\u2019s reasoning is hard to square with Brentwood<\/em>\u2019s call for a fact-specific inquiry.<\/p>\n

First, the NCAA\u2019s purported private character is \u201coverborne<\/a> by the pervasive entwinement of public institutions . . . in its composition and workings.\u201d 67% of Division I<\/a> schools, where the majority of revenue and recruiting controversies occur, are public. Moreover, the organization\u2019s mission<\/a> is to \u201cintegrate intercollegiate athletics into higher education\u201d and \u201c[support] the role that intercollegiate athletics plays in the higher education mission.\u201d It achieves this by mandating<\/a> academic standards and regulating recruiting, admissions, and financial aid. It also prohibits<\/a> athletes from receiving any compensation beyond their scholarships and living expenses. The organization constructs these rules through committees<\/a> of volunteers from member institutions, and the majority<\/a> of the Board of Governor\u2019s highest ranking officials are from public institutions. Overall, the NCAA\u2019s mission is to ensure the central role college sports play on public campuses, which has led to its staff of volunteers from public institutions promulgating rules that mandate how schools regulate athletes on campus. The NCAA, then<\/a>, carries out very similar functions in a similar manner as the athletic association in Brentwood<\/em>.<\/p>\n

This entwinement with public institutions features prominently in matters of athlete discipline. While the NCAA does not have express authority to punish the athletes or employees of the universities, the organization conducts<\/a> investigations into individual cases, and the findings of the investigation are typically binding on the university. After issuing its finding, it then makes an eligibility determination. The school faces significant consequences if it plays an athlete the NCAA considers ineligible. The restitution rule solidifies NCAA power in this scheme because even if a court grants an athlete an injunction, the school is unlikely to play the athlete for fear of even harsher punishment if he turns out to be ineligible later in the disciplinary process. So, while the athlete is free to take the NCAA to court, litigation is unlikely to provide relief.<\/p>\n

Wiseman\u2019s case demonstrates the close nexus between university conduct and NCAA eligibility investigations. Initially, Wiseman was declared<\/a> eligible in May, but after further documentation emerged, the NCAA relaunched the investigation. Before the season\u2019s first game<\/a>, the NCAA informed the University of Memphis that Wiseman was likely ineligible. The university played<\/a> him for the first three games anyway and Wiseman initiated a lawsuit against the NCAA. On November 8th, Wiseman received an injunction allowing<\/a> him to play pending the outcome of the NCAA investigation, but realizing a suspension was imminent, the university declared Wiseman ineligible and he withdrew the lawsuit six days later<\/a>. Now, he will not play until January<\/a> and the university will likely face significant<\/a> punishment for its decision to stand behind its star player. Wiseman\u2019s saga, ultimately, demonstrates the degree to which the NCAA and university operate in tandem to discipline athletes. While Memphis initially tried to resist the NCAA\u2019s power, and deferred to a court-ordered injunction, the threat of sanction won out and Memphis succumbed to the organization\u2019s eligibility recommendation.<\/p>\n

The Tarkanian<\/em> court responded to the NCAA\u2019s influence in eligibility determinations by suggesting that UNLV could have withdrawn and created its own standards or worked through the NCAA\u2019s legislative process to amend the rules it objected to. But the fact that Memphis has options in responding to NCAA recommendations does not render the NCAA\u2019s role in disciplining athletes private. The university may be the executioner, but the NCAA operates as judge, jury, and legislature.<\/p>\n

Moreover, the fact that the NCAA is national, as opposed to the state association at issue in Brentwood<\/em>, is not determinative. Brentwood<\/em> rejected<\/a> such formalism by noting the state action doctrine \u201clooks not to form, but underlying reality.\u201d If the NCAA has entwined itself with schools across the country such that its conduct is fairly attributable to those public institutions themselves, then nation-wide membership merely amplifies the importance of finding state action for athletes and does not diminish the relationship between the NCAA\u2019s promulgation of rules and the universities enforcement of them. Given the power the NCAA retains to punish athletes and conduct investigations into their behavior, the NCAA has no cause to complain of unfairness simply because it imposes those rules on institutions in multiple states.<\/p>\n

Ultimately, the NCAA has created a disciplinary apparatus that imposes severe punishment on schools who defy its eligibility recommendations, while simultaneously escaping accountability for those recommendations by making the universities take the final action. This is a perversion of our constitutional system that purports to protect an individual\u2019s ability to hold powerful actors accountable and instead renders athletes powerless<\/a>. Schools escape accountability by deferring to the NCAA, while the NCAA claims its conduct is private and exempt from the requirements of constitutional rights. Meanwhile, the restitution rule ensures individual claims are rarely filed, decreasing the likelihood of challenging this system. Far from being a situation where we should worry about overextendin<\/a>g the reach of federal law, public institutions have forged such a close connection with the NCAA that the only person with a claim of unfairness is the athletes facing arbitrary justice.<\/p>\n

James Wiseman will play basketball for Memphis again and will still likely be a top pick<\/a> in the NBA draft and hopefully have a flourishing professional career. But for many<\/a> athletes, the NCAA stands as a gatekeeper making decisions that could impact their lives for years to come. As the university and NCAA point the finger at each other, advocates for athletes should fight to overturn a precedent that allows finger pointing to undermine constitutional due process.<\/p>\n","protected":false},"excerpt":{"rendered":"

Ultimately, the NCAA has created a disciplinary apparatus that imposes severe punishment on schools who defy its eligibility recommendations, while simultaneously escaping accountability for those recommendations by making the universities take the final action. This is a perversion of our constitutional system that purports to protect an individual\u2019s ability to hold powerful actors accountable and instead renders athletes powerless. Schools escape accountability by deferring to the NCAA, while the NCAA claims its conduct is private and exempt from the requirements of constitutional rights.<\/p>\n","protected":false},"author":101924,"featured_media":12037,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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