The opinion of the court was delivered by: Mihm, District Judge.
Presently before this Court is Defendant's Motion to
Dismiss, or in the alternative for Summary Judgment pursuant
to Federal Rules of Civil Procedure 12 and 56. Section
"(I)f, on a motion asserting the defense number
(6) to dismiss for failure of the pleading to
state a claim upon which relief can be granted,
matters outside the pleading are presented to and
not excluded by the court, the motion shall be
treated as one for summary judgment and disposed
of as provided in Rule 56. . . ."
On June 26, 1986 the NCAA Committee on Infractions issued
its Confidential Report No. 222 (146), which found that
Bradley University had violated NCAA regulations. The report
detailed the results of the NCAA's extensive investigation of
Bradley's basketball program. As set forth in the Committee's
Confidential Report No. 222 (146), its investigation led to
the Committee's conclusion that Bradley had violated ten of
the NCAA's regulations. The sanctions imposed, pursuant to the
NCAA rules, were public reprimand, two year probation period,
and Bradley's intercollegiate mens' basketball team was barred
from participation in the NCAA's Division 1 mens' basketball
championship or any post-season competition during the 1986-87
academic year. Lastly, the mens' basketball team's coaching
staff was prohibited from participation in off campus
recruiting activities for a one year period.
Bradley was notified of its right to appeal any findings
and/or penalties imposed by the NCAA council. On June 30,
1983, Bradley University advised the NCAA that it had decided
not to appeal either the findings of violation or penalty.
Head basketball coach Versace also elected not to exercise his
right of appeal, and so informed the NCAA.
On September 3, 1986, Plaintiffs filed their complaint
against the NCAA. The Plaintiffs are all currently enrolled
students at Bradley University, who are "members of, managers
of, or otherwise affiliated with the University's mens'
basketball team." The complaint sets forth four claims.
Counts I and II are brought before this Court pursuant to
federal question jurisdiction, 42 U.S.C. § 1983 and the
Fourteenth Amendment of the United States Constitution. Counts
III and IV are brought as pendent state claims.
Count I seeks injunction against the NCAA, prohibiting it
from enforcing the disciplinary action taken against Bradley
University, including attorneys' fees and costs. Plaintiffs
assert that the imposition of the NCAA sanctions, which
prohibits Bradley University's mens basketball team from
engaging in post-season basketball competition during the
1986-87 academic year, without giving Plaintiffs an
opportunity to be heard, denied the Plaintiffs procedural due
process of law in violation of the United States Constitution.
Count II of Plaintiffs' complaint alleges a violation of
equal protection guaratees of the Fourteenth Amendment.
Plaintiffs allege that as a direct result of the NCAA's action
the Plaintiffs' fundamental rights to prepare for and pursue
the vocation of their choosing and be free of punishment
absent personal guilt were violated.
Count III alleges tortious interference with a contractual
relationship. Plaintiff asserts that the NCAA's actions
induced Bradley to breach its scholarship agreement with the
Plaintiffs, which allegedly "guaranteed" Plaintiffs'
opportunity to compete in post-season basketball tournaments.
Count IV sets forth a claim based upon laches. Plaintiffs
allege that the Defendant is guilty of laches in bringing
charges of NCAA violations against Bradley University, and
that Plaintiffs were erroneously precluded from asserting the
equitable doctrine of laches on behalf of Bradley University
during the hearing before the Commission on Infractions.
As previously noted, the claims presented in this case are
brought before the Court pursuant to 42 U.S.C. § 1983 and the
Fourteenth Amendment of the United States Constitution. The
Fourteenth Amendment of the Constitution provides in part that:
"No state shall . . . deprive any person of life, liberty, or
property without due process of law." Since the United
States Supreme Court's decision in the Civil Rights Cases,
109 U.S. 3 (1883):
"This principle has become firmly embedded in our
constitutional law that the action inhibited by
the first section of the Fourteenth Amendment is
only such action as may fairly be said to be that
of the state. Shelly v. Kraemer, 334 U.S. 1, 13 [68
S.Ct 836, 842, 92 L.Ed. 1161] (1948)."
It is well settled that the Fourteenth Amendment "erects no
shield against merely private conduct however discriminatory
or wrongful." Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct.
2777, 2785, 73 L.Ed.2d 534 (1982).
Similarly, 42 U.S.C. § 1983 provides:
"If a person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
state or territory, subjects, or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or
immunities, secured by the Constitution and laws,
shall be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress."
As is clear from a reading of these sections of the
Fourteenth Amendment and § 1983, claims brought pursuant to
either raises the question of state action. Although two
distinct lines of cases have developed as a result, the United
States Supreme Court has spoken as to the relationship between
them. In United States v. Price, 383 U.S. 787 n. 7, 86 S.Ct.
1152 n. 7, 16 L.Ed.2d 267 (1966), the Court stated:
"In cases under § 1983, `under color' of law has
consistently been treated as the same thing as the
`state action' requirement under the Fourteenth
United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152,
1157 n. 7, 16 L.Ed.2d 267 (1966).
Thus, "the principle derived from both lines of cases are
used interchangeably." Howard University v. NCAA, 510 F.2d 213,
217 n. 4 (D.C. Cir. 1975). Therefore, this Court in its
discussion of state action will not distinguish between the §
1983 and Fourteenth Amendment cases, as approved by the United
States Supreme Court.
Critical to Plaintiffs' Due Process and Equal Protection
claims is the issue of whether the NCAA's actions constitute
state action. Both claims require a primary finding that the
actions complained of constituted state action. Where the
court findings that no such state action existed, both the due
process and equal protection claims must fall.
As will be discussed, this Court finds that the acts of the
NCAA did not constitute state action. Consequently,
Plaintiffs' claims of a due process and equal protection
violation cannot be sustained. As to Counts I and II of
Plaintiffs' complaint, the Court holds in favor of the
Defendant and GRANTS the Defendant's Motion for Summary
The case law regarding what constitutes state action has
developed in two clearly distinct segments. The first segment
involved a series of actions brought against the NCAA, which
found the existence of state action in light of an
entanglement theory analysis. See Howard University v. NCAA,
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); Buckton v. NCAA, 366 F. Supp. 1152,
1155-57 (D.Mass. 1973); Jones v. NCAA, 392 F. Supp. 295 (D.Mass.
The line of cases that adopt the entanglement theory
analysis are founded upon an even earlier line of cases,
hereafter referred to as the high school athletic program
cases. See Louisiana High School Athletic Association v. St.
Augustine High School, 396 F.2d 224 (5th Cir. 1968); Wright v.
Arkansas Activities Association, 501 F.2d 25 (8th Cir. 1974);
Mitchell v. Louisiana High School Athletic Association,
430 F.2d 1155 (5th Cir. 1970). The high school athletic program
cases involved the affairs of ostensibly private organizations
in several states, which regulated high school athletic
programs and other extra curricular activities. Consistently,
the regulatory acts of these associations were found to
constitute state action.
In all of these cases, the courts recognized the private
nature of the organizations, and the fact that they were
voluntary associations. However, the focuse of these courts
was on the following facts: (1) membership of these
associations consisted substantially of public high schools,
which provided personnel, facilities, and financial support;
(2) the organization's rules were promulgated by the vote of
members, including public schools; and (3) these private
organizations significantly regulated and effected the program
of these public entities, including state championship events,
imposing restrictions on practices and eligibility, conducting
investigations, and imposing sanctions. These courts concluded
that the organizations were sufficiently intertwined with
state instrumentalities, whose involvement was significant,
although not exclusive, as to be subject to constitutional
restraints. Howard University v. NCAA, 510 F.2d 213, 218 (D.C.
The second segment in the development of state action cases
arose subsequent to the high school athletic program cases. In
1982, the United States Supreme Court decided Blum v. Yaretsky,
457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) and
Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d
418 (1982), in which it rejected the high school athletic
program state action analysis and adopted a new three part
The issue before the Court in Blum was whether the actions of
certain nursing homes constituted state action. The Court was
confronted with deciding whether decisions regarding transfers
of patients could be fairly attributed to the state, and hence
be subjected to Fourteenth Amendment due process requirements.
The transfers primarily involved decisions made by physicians
and nursing home administrators to move patients from "skilled
nursing facilities" to less expensive "health-related
facilities." Blum v. Yaretsky, 457 U.S. at 1005, 102 S.Ct. at
2786. The nursing homes involved were privately owned and
operated. Id. at 1003, 102 S.Ct. at 2785.
In deciding the question whether state action existed, the
court set out a three factor analysis: (1) to what extent the
business is subjected to state regulations. However, the court
asserted that the mere fact that a business is subject to
state regulations does not by itself convert its actions into
that of the state for purposes of the Fourteenth Amendment;
(2) The sufficiency of a close nexus between the state and the
challenged action of the regulatory entity, so that the action
of the entity may be fairly treated as that of the state
itself; (3) Whether the private decision involves such
coercive power or significant encouragement, either overt or
covert, by the state that the choice must in law be deemed to
be that of the state. Blum v. Yaretsky, 457 U.S. at 1004, ...