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January 30, 1987


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 12(b)(6) provides:

  "(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 Judgment.

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. 1975).

Pursuant to an entanglement theory analysis, state action will be found where "(c)onduct that is formally `private' becomes so intertwined with governmental policies or so impregnated with government character that the conduct becomes subject to the constitutional limitations placed upon state action." Howard University v. NCAA, 510 F.2d 213, 217 (D.C. Cir. 1975). In applying this analysis, the courts have found that the courts must address each case on a case by case basis, being careful to sift through the facts and weigh the circumstances. Id. The entanglement theory provides that the government's involvement need not be either exclusive or direct; rather, government action may be found even though the government's participation was "peripheral, or its action was only one of several cooperative forces leading to the constitutional violation." Id.

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. Cir. 1975).

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 test.

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, ...

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