The opinion of the court was delivered by: Harold Albert Baker, District Judge.
The plaintiff, Deon Thomas, is a student at the University of
Illinois and a member of the University of Illinois men's
basketball team. The defendant, Bruce Pearl, is an assistant
basketball coach at the University of Iowa who tried to recruit
Thomas to attend that school. In connection with the
recruitment process, Pearl spoke with Thomas on the telephone
and recorded their conversation. Thomas did not know that Pearl
was recording their telephone conversation nor did he consent
to the recording. Pearl disclosed the tapes of his conversation
with Thomas to the National Collegiate Athletic Association
("NCAA") and, according to Thomas, he also disclosed
them to officials at the University of Illinois. On the basis
of the tape recorded conversation between Thomas and Pearl, the
NCAA conducted an investigation of recruiting violations on the
part of the University of Illinois. Thomas sued Pearl in state
court for damages in Count I under the Illinois Eavesdropping
Statute, Ill.Rev. Stat. ch. 38 para. 14-1 et seq., and in Count
II under the federal wiretapping statute found in the Omnibus
Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et
seq. Pearl removed the case to this court pursuant to 28 U.S.C. § 1441.
This court has jurisdiction of the case under 28 U.S.C. § 1331.
Pearl has moved for summary judgment. For the reasons
discussed in this order, the court grants Pearl's motion on
Summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Herman v.
National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir.
1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1393, 84 L.Ed.2d
782 (1985). "[I]n determining whether factual issues exist, a
reviewing court must view all the evidence in the light most
favorable to the non-moving party." Black v. Henry Pratt Co.,
778 F.2d 1278, 1281 (7th Cir. 1985). However, Rule 56(c)
"mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex, 477 U.S. at
322, 106 S.Ct. at 2552. "Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party there is no `genuine' issue for trial."
Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988).
I. The Federal Wiretapping Statute
Thomas claims that when Pearl recorded a telephone
conversation he had with Thomas and disclosed the contents of
that conversation, he violated the following provision of the
United States Code:
(1) Except as otherwise specifically provided in
this chapter any person who —
(a) intentionally intercepts, endeavors to
intercept, or procures any other person to
intercept or endeavor to intercept, any wire,
oral, or electronic communication; . . .
(c) intentionally discloses, or endeavors to
disclose, to any other person the contents of
any wire, oral or electronic communication,
knowing or having reason to know that the
information was obtained through the
interception of a wire oral, or electronic
communication in violation of this subsection; .
shall be punished [by civil or criminal
18 U.S.C. § 2511(1)(a), (c). The statute, however, provides
exceptions for situations where one of the parties to the
intercepted conversation consents to the interception.
18 U.S.C. § 2511(2)(c) provides:
It shall not be unlawful under this chapter for a
person acting under color of law to intercept a
wire, oral, or electronic communication, where
such person is a party to the communication or one
of the parties to the communication has given
prior consent to such interception.
There is no dispute that Pearl was a party to the telephone
conversation at issue in this case. Pearl argues that as a
basketball coach for the University of Iowa he was "acting
under color of law" so that under § 2511(1)(c) he cannot be
liable for recording the conversation. Thomas, on the other
hand, argues that Pearl was not acting "under color of law"
because he was not authorized by the State of Iowa to engage in
Congress has not been so kind as to define the term "under
color of law," so its meaning must be gleaned from other
sources. The court first observes that for the purposes of
civil rights statutes such as
42 U.S.C. § 1983 and 18 U.S.C. § 242, acting "under color of
law" is equivalent to "state action." Lugar v. Edmonson Oil,
457 U.S. 922, 929, 102 S.Ct. 2744, 2749-50, 73 L.Ed.2d 482
(1982); NCAA v. Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 457 n.
4, 102 L.Ed.2d 469 (1988). If this were a civil rights action,
therefore, Pearl's actions would undoubtedly have been "under
color of law." Pearl was acting on behalf of the University of
Iowa which is an agency of the State of Iowa. He would be a
state actor even if his actions were unauthorized by state law.
Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492
(1961). Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70
L.Ed.2d 509 (1981), is distinguishable. That case involved the
unique situation of ...