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
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, 102
S.Ct. at 2785. The Court went on to note that the required
nexus may be present if the private entity has exercised powers
that are "traditionally the exclusive prerogative of the
The court held that the transfer decisions were not actions
of the state, since the
nursing home's transfer decision did not involve "coercive
power or significant encouragement, overt or covert," by the
state. Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786.
Thus, the transfer decision in law could not be deemed to be
that of the state.
In Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73
L.Ed.2d 418 (1982), the court found no state action based on
the Blum analysis. As in Blum, the Rendell court rejected the
"symbiotic relationship" argument set forth by the plaintiff.
The issue before the Court in Rendell was whether a private
high school's discharge of employees constituted state action
for the purposes of the First and Fourteenth Amendment. The
private school received funding from the state, which required
compliance with a variety of state regulations, few of which
related to personnel issues. The plaintiffs claimed that their
discharge from a private school receiving such funding from the
state constituted state action.
The Court held that neither a private school's receipt of
public funds, nor significant or even total engagement in
performing public school contracts for the benefit of the
government rendered the employees' discharge decision acts of
the state. The Court reiterated that the function performed
must have traditionally been the exclusive prerogative of the
state, and noted that the school's relationship with the state
was no different than that of any contractor's performing
services for the government. Rendell-Baker v. Kohn, 457 U.S. at
843, 102 S.Ct. at 2772.
Following the rationale of the "second segment" state action
cases, several courts have recently held that the actions of
the NCAA cannot be said to constitute "state action." See
Arlosoroff v. NCAA, 746 F.2d 1019 (4th Cir. 1984); McHale v.
Cornell University, 620 F. Supp. 67 (D.C.N.Y. 1985). In
Arlosoroff v. NCAA, 746 F.2d 1019 (4th Cir. 1984), the court
"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." (Citations omitted).
Arlosoroff v. NCAA, 746 F.2d at 1021.
Although the NCAA may perform a public function in overseeing
the nation's intercollegiate athletics, it remains a private
institution. McHale v. Cornell University, 620 F. Supp. at 70.
See Graham v. NCAA, 804 F.2d 953 (6th Cir. 1986).
It is not disputed that the NCAA is a voluntary,
unincorporated association of nearly 1,000 four year colleges
and universities. Approximately one-half of its members are
public institutions, and these institutions provide more than
one-half of the NCAA's revenues. Arlosoroff v. NCAA, 746 F.2d
The NCAA implements its governing function through annual
conventions, of which all member institutions are represented.
It is through these conventions that it promulgates rules to
ensure minimum standards for scholarship, sportsmanship, and
amateurism. Most actions by the NCAA require a two-third vote
All participating institutions are required to abide by the
rules promulgated by the convention, and an elected committee
has power to enforce those rules. The imposition of sanctions
is provided for where an institution or its players are found
to be in violation of the rules.
As was discussed in the cases of Arlosoroff, McHale, and
Graham, the nature of the NCAA and its governing function does
not satisfy the three factor state action analysis set forth in
Blum and followed in Rendell. The NCAA is not an agency which
is subjected to or governed by any state government. It is
governed by its own conventions and designated committees,
which are established through election by member institutions.
The two-third vote provision carefully avoids public
institution collusion, if such action be contemplated. This
minimizes, if not eliminates,
the extent to which the NCAA could be subject to state
While it is undisputed that the NCAA does consist of
numerous public institutions, which supply at least one-half
of the financial support to the association, such membership
or funding, even if it were 100%, is insufficient to render
the NCAA's conduct state action. Rendell-Baker v. Kohn, 457
U.S. at 840, 102 S.Ct. at 2770. These facts do not alter the
basic character of the NCAA as a voluntary association of
public and private institutions. Arlosoroff, 746 F.2d at 1021.
As noted in Arlosoroff:
"It is not enough that an institution is highly
regulated and subsidized by a state. If the state
in its regulatory or subsidizing function did not
order or cause the action complained . . . there
is no state action."
Arlosoroff v. NCAA, 746 F.2d at 1021. See also, McHale v.
Cornell University, 620 F. Supp. 67 (D.C.N.Y. 1985).
Even though the required nexus may be established if the
private entity has exercised powers that are "traditionally
the exclusive prerequisite of the state," the NCAA's conduct
still cannot be deemed to possess the requisite nexus. For
despite the NCAA's regulatory or overseeing function,
regarding the nation's intercollegiate athletics, such
regulation of intercollegiate sports cannot fairly be said to
be traditionally an exclusive state function. McHale v. Cornell
University, 620 F. Supp. at 70. Certainly, if providing
education to our nation's children is not an exclusive state
function, neither can regulating inter-collegiate sports be an
exclusive state function.
This Court does not suggest that through public institution
membership certain states do not have some involvement in NCAA
decisions. Of course, they do. However, what this Court
concludes is that such input does not rise to the level of
"exercising coercive power or significant encouragement" so
that the decision must be deemed to be that of the state
itself. Of particular significance is the NCAA rule calling
for a two-third vote on most matters, and that there is no
evidence in the record that the NCAA has ever been used by any
state as a tool to carry out any state policy.
Adopting the second segment state action cases, led by the
United States Supreme Court decisions in Blum and Rendell, this
Court finds that the NCAA's actions in imposing sanctions
against Bradley University do not constitute state action.
Therefore, this Court grants the Defendant's Motion for Summary
Judgment as to Plaintiffs' due process and equal protection
claims, Counts I and II, respectively.
PROCEDURAL DUE PROCESS
As noted at the onset of the state action discussion, if the
Plaintiffs cannot establish that the NCAA's acts constitute
state action, both their due process and equal protection
claims must fail. In light of this Court's holding that there
is no state action in this case, there need not be any further
discussion of Plaintiffs' due process or equal protection
claims. However, this Court deems it appropriate to address a
few key points.
Redress pursuant to 42 U.S.C. § 1983 and the Fourteenth
Amendment may be granted upon a showing of infringement of a
property or liberty interest protected under the Fourteenth
Amendment. The Plaintiffs have conceded that there is no
"liberty" interest at stake in the present case. Therefore, the
Plaintiffs' burden is to demonstrate that they were deprived of
a property interest. Board of Curators of the University of
Missouri v. Horowitz, 435 U.S. 78, 82, 98 S.Ct. 948, 951, 55
L.Ed.2d 124 (1978).
In the present case, Plaintiffs assert that the NCAA's
failure to permit Plaintiffs a hearing regarding the
imposition of sanctions on Bradley University deprived them of
the procedural due process, to which they are entitled.
Plaintiffs allege that the property rights infringed upon
include: (1) the right to participate in post-season
basketball competition; (2) the right to have the opportunity
to gain tournament experience; and (3) the right to secure
professional careers in athletics.
In its most basic form, a procedural due process analysis
requires the Court to ask three questions: (1) whether the
defendant's acts constitute state action; (2) whether
plaintiff has a protectable interest, defined as a deprivation
of "life, liberty, or property;" and, if the answer to both of
the above questions is "yes," the Court must address (3) what
due process is required by the Constitution. Assuming,
arguendo, that this Court found state action in the present
case, it must then turn to the second step of the analysis.
Plaintiffs' contentions that they have a constitutionally
protected right to participate in intercollegiate athletic
post-season competition, gain tournament experience, and
secure professional careers in athletics have all been held
not to be constitutionally protected "interests" for the
purpose of due process. This Court concurs with those
First, the Plaintiffs allege that they possess a
constitutionally protected property interest in participation
in intercollegiate athletic post-season competition. The
United States Supreme Court in Board of Regents v. Roth,
408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) addressed the
issue of the parameters of a constitutionally protected
"Certain attributes of `property' interests
protected by procedural due process emerge from
these decisions. To have a property interest in a
benefit, a person cleary must have more than an
abstract need or desire for it. He must have more
than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement
Board of Regents v. Roth, 408 U.S. at 576-77, 92 S.Ct. at 2709.
Pursuant to these parameters, it has been held that there is no
property or liberty interest in participating in
interscholastic athletics. Hamilton v. Tennessee Secondary
School Athletic Association, 552 F.2d 681 (6th Cir. 1976);
Mitchell v. Louisiana High School Athletic Association,
430 F.2d 1155 (5th Cir. 1970); Rutledge v. Arizona Board of
Regents, 660 F.2d 1345 (9th Cir. 1981), aff'd on other grounds,
460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). Despite
this holding, the Plaintiffs in this case go one step further
in their allegations, and allege a more remote claim, that the
NCAA action has deprived them of the opportunity to play in
In Parish v. NCAA, 361 F. Supp. 1220 (W.D.La. 1973), the court
addressed a very similar claim to that of the Plaintiffs in the
present case. In Parish the court concluded that the interests
alleged were insufficient to rise to the level of procedural
due process protection, and stated:
"(T)he privilege of participating in
interscholastic athletics must be deemed to
fall . . . outside the protection of due process.
(Citation omitted). In this case, however, we
need not go that far. For appellants here have
lost only the opportunity to play in NCAA
sponsored tournaments and televised games.
Whatever the status of the alleged right to
participate in interscholastic athletics, in the
present circumstances we discern no `property' or
`liberty' interest of which appellants have been
deprived. . . ."
Parish v. NCAA,