The Halls have failed to allege intentional discrimination of the type that would support a § 1981 or § 1982 claim, and have provided no evidence of such discrimination. Therefore, the Halls have no more than a negligible chance of success with respect to these.
8. Count VIII -- 42 U.S.C. § 1983
In Count VIII, the Halls allege that Reggie's constitutional right to equal protection was denied because the NCAA failed to adequately respond to its studies showing that, in some situations, African-Americans graduate at higher rates than whites with identical SAT scores. A statutory remedy for equal protection violations is provided by 42 U.S.C. § 1983. Section 1983 affords redress for those whose equal protection rights are violated "'under color of state law,'" by persons "'who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.'" NCAA v. Tarkanian, 488 U.S. 179, 190, 102 L. Ed. 2d 469, 109 S. Ct. 454 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961)). On the other hand, the Equal Protection Clause provides no protection against "private conduct abridging individual rights." Id. (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961)). Thus, to prevail on their § 1983 claim, the Halls must show that the NCAA was a state actor. In addition, they must show that the NCAA deprived them of a liberty or property right.
The Supreme Court has held that the NCAA is not a state actor, for purposes of a § 1983 claim. 488 U.S. at 199; see also Hawkins v. NCAA, 652 F. Supp. 602, 606-7 (C.D. Ill. 1987). Tarkanian involved the claims of Jerry Tarkanian, the former head basketball coach of the University of Nevada, Las Vegas ("UNLV"). Coach Tarkanian alleged that his suspension for breaking NCAA rules deprived him of equal protection, in violation of the Fourteenth Amendment and § 1983. 488 U.S. at 181. UNLV, a public university and member of the NCAA, was found to be a state actor. 488 U.S. at 193. After considering, inter alia, UNLV's participation in the promulgation of NCAA rules, UNLV's enforcement of NCAA rules, and the NCAA's expansive power over college athletics, the Court still concluded that the NCAA was not a state actor. If the NCAA's relationship with UNLV, a public university, was insufficient to translate the NCAA's actions into state action, then the NCAA is clearly not a state actor by virtue of its relationship with Bradley, a private university. Since the NCAA is not a state actor, it is not subject to constitutional restraints and cannot be sued under § 1983 for alleged equal protection violations.
Moreover, even assuming, arguendo, that the NCAA is a state actor, the Halls have failed to make the requisite showing that they were deprived of a property or liberty interest by the NCAA. "To have a property interest in a benefit, a person clearly 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 to it." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
Though the Halls do not specify what property or liberty interest was violated by the NCAA, "there is no property or liberty interest in participating in interscholastic athletics." Hawkins, 652 F. Supp. at 610. Likewise, "hoped for careers in basketball" are too speculative to comprise a constitutionally protected property right under Roth. Parish v. NCAA, 506 F.2d 1028, 1034 n.17 (5th Cir. 1975), rev'd on other grounds, McCormack v. NCAA, 845 F.2d 1338 (5th Cir. 1988). "While participation in intercollegiate basketball has been recognized as a training ground for a professional basketball career, the possibility of obtaining that professional basketball career is too speculative to even constitute a present economic interest. Knapp v. Northwestern Univ., 1996 U.S. Dist. LEXIS 12463, No. 95 C 6454, 1996 WL 495559, at *2 (N.D. Ill. Aug. 28, 1996), rev'd on other grounds, 101 F.3d 473 (7th Cir. 1996), cert. denied, 138 L. Ed. 2d 212, 117 S. Ct. 2454 (1997). Finally, there is no protected economic interest in an athletic scholarship because, "while a college degree enhances one's ability to earn a livelihood, the lack of a scholarship does not prohibit a person from pursuing a college degree." Id.
Therefore, although the Halls may feel a need or a desire for Reggie to play basketball at Bradley under an athletic scholarship, their interest does not rise to the level of a constitutionally protected right. Furthermore, since the Halls are unable to show that the NCAA is even a state actor, and cannot demonstrate a constitutionally protected property interest, their § 1983 claim has no more than a negligible chance of success.
9. Count IX -- 42 U.S.C. § 2000a
Finally, the Halls allege that the NCAA violated Title II of the Civil Rights Act of 1964. 42 U.S.C. § 2000a (1994). Title II prohibits discrimination in the provision of places of public accommodation. Id. However, federal subject matter jurisdiction depends on the plaintiff's compliance with the notice provisions of Title II:
In the case of an alleged act or practice prohibited by this subchapter which occurs in a State or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) of this section before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority . . . .
42 U.S.C. § 2000a-3(c).
The Illinois Human Rights Act prohibits racial discrimination in places of public accommodation. 775 ILL. COMP. STAT. 5/1-102(A) (1993). Thus, where an Illinois plaintiff fails to comply with 42 U.S.C. § 2000a-3(c) by failing to notify the Illinois Department of Human Rights of his complaint, the federal courts are without subject matter jurisdiction. Stearnes v. Baur's Opera House, 3 F.3d 1142, 1145 (7th Cir. 1993). The Halls have provided no evidence that they filed a complaint with the Illinois Department of Human Rights. Thus, this Court is without subject matter jurisdiction, with respect to the Title II claim, meaning that the Halls have no more than a negligible chance of success with respect to their Title II claim.
10. Conclusion as to the Likelihood of Success
In sum, Plaintiffs have no more than a negligible chance of success on the merits with regard to any of the nine counts in their Complaint. Thus, the preliminary injunction must be denied. Further, even if, arguendo, the Halls were assumed to have a somewhat greater than negligible chance of success on one or more of their claims, the injunction must still be denied because of their failure to meet the other requirements for the granting of such relief.
B. Lack of an Adequate Remedy at Law, and Irreparable Harm
The Halls must show both that there is no adequate remedy at law and that they will be irreparably harmed. The lack of an adequate remedy at law ordinarily means that money damages would not suffice. American Medicorp, Inc. v. Continental Ill. Nat'l Bank and Trust Co., 475 F. Supp. 5, 7 (N.D. Ill. 1977). Although, if the Halls were to eventually prevail on the merits of the underlying case, yet were denied this preliminary injunction, Reggie might suffer a harm that is difficult to translate into money damages, that harm is not irreparable. Specifically, Reggie, might miss out on a season of practice and interscholastic competition with the Bradley men's basketball team. Reggie credibly testified that the skills he needs to develop in order to become an effective part of the basketball team require that he participate in games and practices. The Halls claim that, without this preliminary injunction, "Reggie will be denied the opportunity to play major college basketball and pursue his dream of becoming a professional basketball player." (Pls.' Post-Hearing Mem. at 7-8.) However, the Halls presented no evidence that a one season delay will extinguish Reggie's college (and hopeful professional) career, thereby irreparably harming him. In fact, the Court takes judicial notice that numerous basketball players have gone on to stardom in the NBA and other professional leagues despite having missed the first season with their college basketball teams. Thus, while sitting out a year might inconvenience Reggie, he has not shown that such inconvenience would cause harm that would be irreparable.
The Halls also argue that irreparable harm would result if the preliminary injunction is denied here because they lack the resources to keep Reggie in school without an athletic scholarship. However, they have failed to demonstrate that all options for paying for Reggie's school have truly been exhausted. The Halls were able to obtain loans for Reggie's fall semester, and provided no evidence that those lenders are unwilling to fund loans for the spring semester as well. Moreover, Ms. Hall earns approximately $ 61,000 per year and has only one dependent, Reggie. Ms. Hall did not testify to any unique financial burdens or responsibilities. In short, funding or financing one year of college education hardly seems an insurmountable burden for the Halls. Moreover, the lost scholarship funds and interest would be reducible to a monetary damage award in the event that the Halls prevailed on any of their claims. Thus, the Court finds that the denial of Reggie's athletic scholarship does not constitute irreparable harm.
C. Balance of Harms
Even if, arguendo, the Court found more than a negligible chance of success on the merits of any claim (and irreparable harm coupled with no adequate remedy at law), the balance of harms tips in favor of Defendants. The balancing of harms involves a "sliding scale" analysis wherein "the greater the movant's chance of success on the merits, the less strong a showing it must make that the balance of harms is in its favor." Storck, 14 F.3d at 314.
In comparing the harm to the Halls, if Defendants are not enjoined, with the harm to Defendants if they are enjoined and Reggie is permitted to play, it is clear that the balance is in Defendants' favor. Since the Halls have shown, at best, only a negligible chance of success, they must demonstrate that the balance of harms is significantly tipped in their favor to prevail on their preliminary injunction petition. The Halls failed to make such a showing. The primary harm to the Halls is that Reggie would have his college basketball career delayed by one season; a real, but non-catastrophic harm.
On the other hand, the NCAA would suffer great harm if the preliminary injunction were granted improvidently because it would have allowed Reggie to make an end-run around the NCAA's well-established and consistently applied initial eligibility requirements. The NCAA's initial eligibility requirements apply only to entering freshmen. Once initial eligibility is achieved, and the student-athlete enters college, he need only maintain a minimum GPA at his college or university. If preliminary injunctions were granted in cases like Reggie's, where it appears that the student athlete simply failed to achieve the minimum academic standards, that nonqualified athlete could escape the initial eligibility requirements by filing a lawsuit and a preliminary injunction motion. In many cases, by the time the litigation is settled, the sports season could well be over. Thus, win or lose, the student athlete would essentially obtain his entire requested remedy. In such circumstances preliminary injunction motions should be carefully scrutinized. Thus, granting the preliminary injunction would harm the NCAA by infringing on its ability to enforce its academic standards.
D. Public Interest
The public and non-party interests in the outcome of this matter weigh in favor of denying the injunction. First, strict and definite enforcement of the NCAA's initial eligibility requirements protects vulnerable high school athletes. In the highly competitive world of high school basketball, the high school player faces subtle, and sometimes overt, pressure to sacrifice studies in favor of more court time. However, if student athletes, and their high school teachers, counselors, and coaches, know that college athletic participation depends on adequate scholastic achievement, fewer student athletes will miss out on attaining a decent high school education.
The other college student athletes who played by the rules and achieved the core GPA required for eligibility would lose out if the injunction were granted. Certainly, the last person cut from the Bradley basketball team in order to ensure a spot for Reggie has no hope of an injunction to allow him onto the team because his basketball skills were just slightly under Bradley's minimum requirements. By fostering amateurism and competition within a framework of rules which include academic standards, the NCAA's eligibility requirements provide student athletes with a college experience which goes beyond merely being on a "farm team for the pros". If the concept of a "student athlete" is not to be an oxymoron, the NCAA's initial eligibility requirements must be more than an afterthought or an administrative inconvenience for students, teachers, coaches, and counselors.
While it is clear that Reggie is an above average athlete, it is equally evident that he was a below average high school student. Thus, if anyone dropped the ball here, it was Reggie himself (by not doing better academically)
and the staff at St. Mel.
Accordingly, Plaintiffs' application for preliminary injunction is DENIED.
DATED: November 21, 1997
United States Magistrate Judge