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Chaim Arlosoroff Appellee
vs.
National Collegiate Athletic Association, Appellant and Duke University Appellee
 
Case:
No. 83-1702
 
Location:
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
 
Date:
May 10, 1984, Argued
October 25, 1984, Decided
 
Attorneys:
John J. Kitchin (George H. Gangwere Swanson Midgley Gangwere Clarke and Kitchin Lewis A. Cheek Josiah S. Murray III Newsom Graham Hedrick Murray Bryson & Kennon) for Appellant.
David A. Harlow (Elizabeth P. Potter Harlow & Corvette P.A.) for Appellee Arlosoroff Carl W. Vogt (Robert A. Burgoyne Fulbright & Jaworski N.A. Ciompi Powe Porter Alphin & Whichard P.A.) for Appellee Duke University.
 
Court:
Russell and Chapman, Circuit Court and Haynsworth, Senior Circuit Court.
 
Author:
The Hon. Justice Haynsworth
 

The district court granted a preliminary injunction prohibiting the National Collegiate Athletic Association from enforcing one of its eligibility rules against the plaintiff a student at Duke University. It treated the acts of the NCAA as "state action " making applicable the Equal Protection and Due Process Clauses of the Fourteenth Amendment. We reverse for we find no state action.

I.

The National Collegiate Athletic Association is a voluntary unincorporated association of nearly one thousand four-year colleges and universities. Approximately one-half of its members are public institutions state and federal.

The NCAA conducts annual conventions in which all member institutions are represented. Through these conventions it promulgates rules to insure minimum standards for scholarship sportsmanship and amateurism. Each participating institution must abide by the rules and an elected council is empowered to enforce the rules and can impose sanctions upon schools and players found to have been in violation of the rules.

The plaintiff is an Israeli citizen. He was discharged from the Israeli army in March 1979 when he was twenty-two years old. Thereafter he participated in some seventeen amateur tennis tournaments. He was a member of Israel's Davis Cup team. In August 1981 he enrolled at Duke University and in his freshman year played the number one singles position on Duke's tennis team. *fn1 After the plaintiff's freshman year however the NCAA declared him ineligible for further competition on the basis of NCAA Bylaw 5-1-(d)-(3) which had been adopted by a majority vote of the member institutions at the January 1980 convention.

Bylaw 5-1-(d)-(3) provides that any participation in "organized competition in a sport during each twelve month period after the student's 20th birthday and prior to matriculation with a member institution should count as one year of varsity competition in that sport." As initially adopted participation in organized competition while in military service was excepted. The plaintiff however had spent three years in organized tennis after his discharge from the Israeli army and before his matriculation at Duke. Because of that the NCAA ruled that his freshman year was the final year of his eligibility.

This action was initially brought in a state court against Duke and the NCAA. The plaintiff asked that each be enjoined from enforcing the Bylaw. He claimed a denial of due process and equal protection. The equal protection claim is based upon an allegation that although the Bylaw was neutral on its face it was designed to exclude aliens from competition in the NCAA affiliated institutions. *fn2

The state court granted a temporary restraining order but Duke and the NCAA promptly removed the case to the United States District Court for the Middle District of North Carolina. There the plaintiff requested preliminary injunctions while Duke filed a cross claim against the NCAA seeking a preliminary injunction on due process grounds. *fn3

Although the NCAA is not a public institution most of Court considering the matter have held that its actions are state actions subject to the limitations of the Fourteenth Amendment. E.g. Regents of the University of Minnesota v. NCAA 560 F.2d 352 (8th Cir. 1977); Howard University v. NCAA 166 U.S. App. D.C. 260 510 F.2d 213 (D.C.Cir. 1975); Parish v. NCAA 506 F.2d 1028 (5th Cir. 1975); Associated Students Inc. v. NCAA 493 F.2d 1251 (9th Cir. 1974). But see McDonald v. NCAA 370 F. Supp. 625 (C.D.Cal. 1975). It was variously said that the NCAA performs a public function regulating intercollegiate athletics see Parish v. NCAA 506 F.2d at 1032 that there was substantial interdependence between the NCAA and the state institutions that comprise about one-half of its membership e.g. Howard University 510 F.2d at 219 and that the state institutional members played a "substantial although admittedly not pervasive" role in NCAA funding and decision making. Parish 506 F.2d at 1032 see Howard University 510 F.2d at 219.

These earlier cases rested upon the notion that indirect involvement of state governments could convert what otherwise would be considered private conduct into state action. That notion has now been rejected by the Supreme Court however and its decisions require a different conclusion. Rendell-Baker v. Kohn 457 U.S. 830 73 L. Ed. 2d 418 102 S. Ct. 2764 (1982); Blum v. Yaretsky

457 U.S. 991 73 L. Ed. 2d 534 102 S. Ct. 2777 (1982).

III.

There is no precise formula to determine whether otherwise private conduct constitutes "state action." After "sifting facts and weighing circumstances " Burton v. Wilmington Parking Authority 365 U.S. 715 722 6 L. Ed. 2d 45 81 S. Ct. 856 (1961) the inquiry in each case is whether the conduct is fairly attributable to the state. *fn4 Lugar v. Edmondson Oil Co. 457 U.S. 922 937 73 L. Ed. 2d 482 102 S. Ct. 2744 (1982). None of the circumstances suggested by Duke and the plaintiff however permit an attribution of state action to the NCAA.

A.

In a sense the NCAA may be said to perform a public function as the overseer of the nation's intercollegiate athletics. It introduces some order into the conduct of its programs and enforces uniform rules of eligibility. The regulation of intercollegiate athletics however is not a function "traditionally exclusively reserved to the state." Jackson v. Metropolitan Edison Co. 419 U.S. 345 352 42 L. Ed. 2d 477 95 S. Ct. 449 (1975). The operation of a company town is subject to constitutional limitations Marsh v. Alabama 326 U.S. 501 66 S. Ct. 276 90 L. Ed. 265 (1946) for the governance of townships is traditionally a public function but neither the distribution of electricity by a regulated utility nor the operation of a school Rendell-Baker v. Kohn 457 U.S. 830 842 73 L. Ed. 2d 418 102 S. Ct. 2764 (1982) is traditionally an exclusive prerogative of the state.

The fact that NCAA's regulatory function may be of some public service lends no support to the finding of state action for the function is not one traditionally reserved to the state.

B.

Formally the NCAA is a private entity. Approximately one-half of its members are public institutions and those institutions provide more than one-half of the NCAA's revenues. Those facts however do not alter the basic character of the NCAA as a voluntary association of public and private institutions. Nor do they begin to suggest that the public institutions in contrast to the private institutional members caused or procured the adoption of the Bylaw.

It is not enough that an institution is highly regulated and subsidized by a state. If the state in its regulatory or subsidizing function does not order or cause the action complained of and the function is not one traditionally reserved to the state there is no state action. A private school's discharge of employees was not state action in spite of the fact that the school was extensively regulated and highly subsidized by the state. The state's regulatory and funding activities had not compelled the discharge of those employees Rendell-Baker v. Kohn 457 U.S. 830 73 L. Ed. 2d 418 102 S. Ct. 2764 (1982); see also Blum v. Yaretsky 457 U.S. 991 73 L. Ed. 2d 534 102 S. Ct. 2777 (1982) just as they had not compelled a private nursing home's involuntary transfer and discharge of a group of Medicaid patients. See also Polk County v. Dodson 454 U.S. 312 70 L. Ed. 2d 509 102 S. Ct. 445 (1982) (autonomous decisions of public defender not under color of law).

State action was found in Lugar v. Edmondson Oil Co. 457 U.S. 922 73 L. Ed. 2d 482 102 S. Ct. 2744 (1982) for the clerk of court and the sheriff were active participants with the creditors in the issuance and service of the writ of attachment. Cf. Flagg Brothers Inc. v. Brooks 436 U.S. 149 56 L. Ed. 2d 185 98 S. Ct. 1729 (1978) in which the creditor acted alone though under the authority of state law.

Rendell-Baker Blum and Jackson v. Metropolitan Edison Co. not Lugar control here. There is no suggestion in this case that the representatives of the state institutions joined together to vote as a block to effect adoption of the Bylaw over the objection of private institutions. There is simply no showing that the state institutions controlled or directed the result.

The NCAA serves the common need of member institutions for regulation of athletics while correlating their diverse interests. Through the representatives of all of the members Bylaw 5-1-(d)-(3) was adopted not as a result of governmental compulsion but in the service of the common interests of the members. The adoption of the Bylaw was private conduct not state action.

IV.

The injunction issued by the district court is vacated.

VACATED

 
Notes:

*fn1 The Duke tennis team won the Atlantic Coast Conference championship that year and the plaintiff was elected to the All American tennis team.

*fn2 In Howard University v. NCAA 166 U.S. App. D.C. 260 510 F.2d 213 (D.C. Cir. 1975) Court struck down a predecessor Bylaw which overtly applied only to aliens. Bylaw 5-1-(d)-(3) was adopted as a replacement.

*fn3 The due process claim was founded upon the fact that the Bylaw applied to play in which the plaintiff had engaged before the Bylaw was enacted or before it became effective.