The NCAA and Due Process: Legal Issues
CRS Report for Congress
The NCAA and Due Process:
August 18, 2004
American Law Division
Congressional Research Service ˜ The Library of Congress
The NCAA and Due Process: Legal Issues
Recent events surrounding sports scandals at several of the nation’s major
universities have sparked interest in the National Collegiate Athletic Association’s
(NCAA) procedures for investigating claims of rules violations, and the procedural
protection afforded to the accused in such an investigation. This report examines the
NCAA’s current investigatory process and outlines two important court cases that
have shielded the NCAA from attempts to require the NCAA to adhere to due
In troduction ..................................................1
The NCAA Investigatory Process.................................3
The Courts and the NCAA’s Due Process Issues.....................4
NCAA v. Tarkanian........................................4
NCAA v. Miller...........................................7
After Tarkanian and Miller......................................9
The NCAA and Due Process: Legal Issues
In the wake of increasing media scrutiny of the National Collegiate Athletic
Association’s (NCAA) enforcement and sanctions process regarding violations of
NCAA rules,1 there are reports that Congress may soon hold hearings to, among other
things, consider whether or not federal government regulation of the NCAA is
necessary.2 This report examines the NCAA’s current investigatory process and
outlines two important court cases that have shielded the NCAA from attempts to
require the NCAA to adhere to more rigorous due process principles.
Under pressure to clean up college football from a number of prominent
government figures — most notably President Theodore Roosevelt — sixty-two
colleges joined together to form the National Collegiate Athletic Association
(NCAA) in 1906 in order to establish uniform rules for intercollegiate sports.3
Today, the NCAA exists as a voluntary, unincorporated association that counts over
1200 colleges and universities as members, 900 of which are active. These schools
are divided into three divisions according to a wide variety of factors, including the
1 See Associated Press, ‘They’re Not Even-Handed’: Congressional Panel to probe NCAA
oversight of sports, available at [http://sportsillustrated.cnn.com/2004
/more/05/13/bc.ncaa.congress.ap/index.html] (last visited, August 2, 2004). Interest in the
NCAA’s enforcement process has grown with the number of universities immersed in
scandals regarding their sports teams. Over the last few years, the University of Alabama
football team, the University of Auburn basketball team, and the University of Georgia
basketball team, among others, have all been put on probation for violations of NCAA rules.
The NCAA’s investigation of the University of Alabama has drawn especially pointed
criticism, as reports have surfaced alleging that Phillip Fulmer, football coach of Alabama’s
conference rival University of Tennessee, provided significant secret testimony harmful to
the University of Alabama during the NCAA investigation. The whole affair is now the
subject of a $60 million lawsuit. See John Zenor, Fulmer Testified Against Alabama,
Cincinnati Enquirer, January 17, 2004, available at [http://www.enquirer.com
/editions/2004/01/17/spt_sptfoot1bama.html] (last visited August 4, 2004).
2 The House Judiciary Committee’s Subcommittee on the Constitution may hold hearings
in early fall, 2004, to probe the NCAA’s process for enforcing its rules.
3 Reform efforts were aimed mainly at curbing cheating and the number of injuries to
college football players. One commentator has noted that “[I]n 1905 alone, there were over
eighteen deaths and one hundred major injuries in intercollegiate football.” See Rodney K.
Smith, A Brief History of the National Collegiate Athletic Association’s Role in Regulating
Intercollegiate Athletics, 11 Marq. Sports L.J. 9 (2000).
level of competition and the level of financial aid the schools make available to
Amidst concerns that the line between pro and college sports was beginning to
blur, the NCAA in 1948 enacted rules to regulate recruiting and financial aid related
to student athletes. Two years later, the NCAA adopted enforcement procedures,
originally modeled after the procedures used in the academic community.5 Over the
years these procedures have been refined to produce a process that generally requires
the cooperation of the school under investigation.6 This is because the NCAA does
not possess subpoena power or any other power to compel witnesses to appear to
give sworn testimony. As NCAA members, the schools do not cede control of their
athletic programs to the NCAA. Rather, the schools agree to apply and enforce the
NCAA’s rules. Consequently, it is the school, not the NCAA, that takes disciplinary
action against a student-athlete or a school staff member. If the school refuses to take
such action, then the NCAA moves against the school, not the student-athlete or staff
Just as the fear of government action spurred colleges at the turn of the twentieth
century to form the NCAA, Congress has to this day maintained an interest in the
manner in which American college sports are governed.8 One issue in which
Congress has expressed repeated concern is the due process — or lack of it —
afforded by the NCAA to those the Association investigates for wrongdoing.9 While
NCAA by-laws contain detailed rules for investigating alleged wrongdoing, critics
of these procedures cite various instances that they view as arbitrary enforcement of
some rules but not others.10
4 See John Kitchin, The NCAA and Due Process, 5 Kan J.L. & Pub. Pol’y 71 (1996).
5 See id.
6 Fear of NCAA sanctions has led to a growing trend among NCAA member schools to
investigate themselves before the NCAA gets involved. These schools then report their
findings and punishment recommendations to the NCAA, with an expectation of leniency
that has not always been forthcoming. See Roger I. Abrams, Sports Law Issues Just Over
the Horizon, 3 Va. Sports & Ent. L.J. 49, 56-57 (2003).
7 See id.
8 See, e.g., S. Hrg. 108-462, BCA or Bust: Competitive and Economic Effects of the Bowl
Championship Series On and Off the Field: Hearing Before the Senate Judiciaryth
Committee, 108 Cong. (2003).
9 See, e.g., S. Rep. 95-69, Enforcement Program of the NCAA (1978). Congress became
concerned that the NCAA lacked procedures for avoiding arbitrary enforcement of its rules,
and held hearings and published the aforementioned report suggesting future federal
regulation of the NCAA. In response, the NCAA amended its enforcement procedures,
tracking many of the report’s recommendations. See Ronald J. Thompson, Due Process and
the National Collegiate Athletic Association: Are There Any Constitutional Standards?, 41
UCLA L. Rev. 1651, 1664 - 1666 (1994).
10 See, e.g.,Roger I. Abrams, Sports Law Issues Just Over the Horizon, 3 Va. Sports & Ent.
L.J. 49, 56 (2003). (“The NCAA lacks a systematic pro-active investigative capability. As
a result, the NCAA cannot possibly identify and punish all those who violate its rules.”)
The NCAA Investigatory Process
The infractions process utilized by the NCAA11 involves the interaction between
two entities, the Committee on Infractions and the enforcement staff. The Committee
on Infractions, which is composed of ten individuals,12 provides policy guidance to
the enforcement staff and decides on the appropriate punishments for member
institutions found to have violated NCAA rules. The enforcement staff, on the other
hand, is comprised mainly of professional investigators who handle most of the
investigations themselves and present their findings to the Committee on Infractions.
What follows is a brief description of a typical NCAA infractions case, as described
by the NCAA in its bylaws.13
When the NCAA receives a complaint about a member institution, the
enforcement staff evaluates the claim to determine if it is reasonably substantiated.
If so, then the enforcement staff notifies the institution that the staff will conduct a
“preliminary investigation.” If the staff determines, after conducting its preliminary
inquiry, that the allegations are not supported by sufficient evidence, then the staff
moves to close the case. If the Committee on Infractions concurs, then the institution
is notified that the case is closed.
If the staff finds a violation at this preliminary stage, the complaint proceeds in
one of two ways, depending on the severity of the infraction. If the violation is
determined to be secondary in nature,14 then the enforcement staff determines the
appropriate penalty and submits it for the approval of one designated member of the
Infractions Committee. If the penalty is approved, the institution has the option to
appeal the penalty to the Infractions Appeal Committee.
One of the most often-cited examples of seemingly unequal treatment stems from the UNLV
basketball program’s long history of clashes with the NCAA. Facing penalties for recruiting
violations, UNLV in 1992 was given the opportunity to choose the penalty the NCAA would
impose on its defending national champion basketball team. One month earlier, the NCAA
had placed the University of Missouri basketball program on probation (without a choice)
for very similar recruiting offenses. See William F. Reed, Rebel Reprieve: In a Turnaround,
the NCAA Lets UNLV Defend its Title, Sports Illustrated, Dec. 10, 1990, at 46. For some
other examples, see Ronald J. Thompson, Due Process and the National Collegiate Athletic
Association: Are There Any Constitutional Standards?, 41 UCLA L. Rev. 1651, 1655 - 1656
11 The rules governing this process are set out in the NCAA Bylaws, Articles 19
(Enforcement) and 32 (Enforcement Policies and Procedure), which can be found at
[http://www.ncaa.org/legisfront.html] (last visited August 3, 2004).
12 Seven of these ten individuals must be currently or in the past have been affiliated with
a member school or conference. At least two (and no more than three) must have no such
affiliation. NCAA Bylaws, Article 19.1.1.
13 See id. at Figure 32-1.
14 A secondary violation is one that is isolated or inadvertant in nature, provides only a
minimal advantage, with no significant recruiting inducement or extra benefit. All other
violations are considered major violations, and multiple secondary violations may
collectively constitute a major violation. NCAA Bylaws, Articles 19.02.2.1 - 19.02.2.2.
If the enforcement staff believes after its preliminary investigation that the
institution committed violations believed to be major in nature, then the claim moves
on to a second investigatory stage: the “official inquiry.” The school then has two
options. The school first has the option to participate in the “summary disposition”
process. This is a collaborative process in which the involved parties and the
enforcement staff conduct their own investigations and agree on a report with
findings and recommendations to be submitted to the Committee on Infractions for
If the institution does not want to participate in the summary disposition process
— or if the Committee on Infractions does not accept the findings of the summary
disposition report — then the Committee on Infractions conducts hearings to
determine the appropriate findings and proposed penalties. The Committee’s report
is then forwarded to the school and all involved parties, at which point the school
indicates either that it accepts the findings and penalties or that the school intends to
appeal the determination to the Infractions Appeals Committee.
Once a school has exhausted its appeals options, the NCAA’s penalty
determination is final. For major violations, such a determination sometimes
includes probation, which puts limits on the number of scholarships a sports program
can offer and prohibits post-season activity (e.g., bowl games, tournament
appearances) for a given number of years. A determination may also include a
requirement that the school cut its ties with certain individuals — including coaches
— found to have been key participants in the prohibited conduct. Failure to abide
by the NCAA’s penalty determinations can result in suspension of even termination
of an institution’s membership.15
The Courts and the NCAA’s Due Process Issues
The Fourteenth Amendment of the United States Constitution provides that “No
State shall...deprive any person of life, liberty, or property, without due process of
law.” This requirement acts as a prohibition against state — not private — conduct
that denies due process of law.16 Finding the requisite “state action” then, is crucial
to establishing a successful claim for a violation of the Fourteenth Amendment’s Due
Process Clause. As state-sponsored institutions, public universities are clearly state
actors, and so are likely required to provide hearings to individuals before taking
action against them.17 However, as the following discussion of NCAA v. Tarkanian
and NCAA v. Miller will show, the NCAA’s structure as a voluntary organization
comprised of public and private universities scattered across the country has so far
shielded the NCAA’s investigatory and enforcement procedures from judicial
intervention and regulation by the states.
NCAA v. Tarkanian. In 1988, the Supreme Court dealt a serious blow to
efforts to require the NCAA to follow the same due process standards as government
15 Id. at Article 22.214.171.124.
16 Shelley v. Kraemer, 334 U.S. 1, 13 (1948).
17 See Goss v. Lopez, 419 U.S. 565 (1975).
adjudicatory bodies in its 5 - 4 decision in NCAA v. Tarkanian.18 Jerry Tarkanian,
then coach of the very successful University of Nevada-Las Vegas (UNLV)
basketball team, had battled with the NCAA for years over alleged recruiting
violations. Following an investigation, the NCAA Infractions Committee found 38
violations — 10 by Tarkanian himself. The Infractions Committee imposed
sanctions on UNLV’s basketball program and ordered the school to show cause why
it should not face more penalties if UNLV failed to suspend Tarkanian as coach.19
Eventually, UNLV notified Tarkanian that it planned on suspending him, and
Tarkanian subsequently filed suit, alleging that he had been deprived of his
Fourteenth Amendment Due Process rights in violation of 42 U.S.C. § 1983.
The primary issues before the Court were whether the NCAA’s actions
constituted “state action” prohibited by the Fourteenth Amendment and were
performed “under color of” state law in violation of 42 U.S.C. § 1983.20 In analyzing
other state action claims, the Court has repeatedly noted that, as a general rule, the
protections of the Fourteenth Amendment do not extend to private conduct that
abridges individual rights.21 Further, the Court has defined conduct that is “under
color of” state law as the “[m]isuse of power, possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state
law.”22 The ultimate question, then, is whether the conduct causing the alleged
deprivation of rights can be fairly attributable to the state.23
Applying the test mentioned above, the Supreme Court has found state action
where the state knowingly accepts the benefits derived from unconstitutional
behavior of a private party.24 The Court in Tarkanian, however, was faced with facts
which presented a unique mirror image of the traditional state action case, in that the
final act challenged by Tarkanian was committed not by a private party but by the
state itself (i.e., UNLV). Whereas in the traditional state action case, an aggrieved
18 488 U.S. 179 (1978). Prior to Tarkanian, many lower courts had held the NCAA to be
a state actor and, therefore, subject to due process requirements. It is important to note that
these cases generally found the NCAA’s procedures to be adequate under the Due Processth
Clause. See, e.g., University of Minnesota v. NCAA, 560 F.2d 352 (8 Cir. 1977); Howard
University v. NCAA, 510 F.2d 213 (D.C. Cir. 1975); Justice v. NCAA, 577 F. Supp. 356 (D.
19 See id. at 181.
20 Id. at 181-182. 42 U.S.C. § 1983 provides, in relevant part, that:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State of Territory, or the District of Columbia, subjects or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivations of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law...
21 See, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961).
22 United States v. Classic, 313 U.S. 299 (1941).
23 Lugar v. Edmonson Oil Co., 457 U.S. 922, 928-935 (1982).
24 See, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).
party must trace private conduct to some sort of state action or benefit, in Tarkanian,
the plaintiff was trying to trace state conduct to the imprimatur of a private party.25
This distinction was essential to the Court’s analysis in Tarkanian. “Thus the
question presented is not whether UNLV participated in a critical extent in the
NCAA’s activities,” the Court stated, “but whether UNLV’s actions in compliance
with the NCAA rules and recommendations turned the NCAA’s conduct into state
The Supreme Court recognized UNLV to undoubtedly be a state actor subject
to the requirements of the Due Process Clause of the Fourteenth Amendment.27 The
NCAA, on the other hand, was made up of “several hundred other public and private
member institutions each similarly effected by [the NCAA’s] policies...the vast
majority of which were located in States other than Nevada.”28 Further, while the
Court acknowledged that UNLV’s conduct was influenced by the NCAA’s
investigations and determinations, the Court refused to find that this influence turned
the NCAA into a state actor. The Court found that the NCAA’s greatest authority —
as with any private membership organization — lies in its ability to expel members.
The mere fact that UNLV may have acted out of fear of such an expulsion did not
make UNLV’s actions attributable to the NCAA.29
Essential to the Court’s reasoning was the fact that it was the school itself, not
the NCAA, that actually suspended Tarkanian — a voluntary act within the school’s
discretion, just as UNLV’s membership in the NCAA is voluntary. As the Court put
it, “UNLV retained the authority to withdraw from the NCAA and establish its own
standards, the university alternatively could have stayed in the Association and
worked through the Association’s legislative process to amend rules or standards it
deemed harsh, unfair, or unwieldy.”30 The Supreme Court further pointed out that
the NCAA possessed no governmental powers (e.g., subpoena witnesses, contempt
sanctions) to facilitate its investigations.31
Tarkanian also argued that the NCAA’s actions constituted state action because
the NCAA was acting under authority delegated to it by the State of Nevada. In
essence, Tarkanian argued that UNLV’s agreement to adhere to NCAA enforcement
procedures constituted a delegation of authority. While the Supreme Court has found
25 Tarkanian, 488 U.S. at 192-193.
26 Id. at 193.
27 Id. at 192-193.
28 Id. at 193.
29 Id. at 198-199.
30 Id. at 194-195. The Court’s reasoning regarding UNLV’s option to withdraw from the
NCAA has drawn criticism. See, e.g., Ronald J. Thompson, Due Process and the National
Collegiate Athletic Association: Are There Any Constitutional Standards?, 41 UCLA L.
Rev. 1651, 1664 (1994) (“This option, while theoretically possible, is unrealistic in practice
because the NCAA is, in effect, a private monopolist in the realm of intercollegiate
31 Tarkanian, 488 U.S. at 197-198.
that a state can delegate authority to a private party such that that party’s actions are
deemed to be state actions, the Court in Tarkanian found no such delegation. The
Court pointed out that the school never delegated any authority to take final actions
against a university employee; those essential powers were retained by UNLV. Far
from acting as partners, the Court further found, the NCAA and UNLV had been at
constant odds throughout the investigatory process:
The NCAA cannot be regarded as an agent of UNLV for purposes of that
proceeding. It is more correctly characterized as an agent of its remaining
members which, as competitors of UNLV, had an interest in the effective and
evenhanded enforcement of the NCAA’s recruitment standards. Just as a state-
compensated public defender acts in a private capacity when he or she represents
a private client in a conflict against the State ... the NCAA is properly viewed as
a private actor at odds with the State when it represents the interests of its entire32
membership in an investigation of one public university.
Ultimately, the Court concluded that the NCAA was not acting under the color
of Nevada law, but rather the opposite was true: “It would be more accurate to
conclude that UNLV has conducted its athletic program under color of policies
adopted by the NCAA, rather than that those policies were developed and enforced
under color of Nevada law.”33
NCAA v. Miller. In the wake of the Supreme Court’s decision in Tarkanian,
four states — Nevada, Nebraska, Illinois, and Florida — passed laws purporting to
require the NCAA to comply with certain procedural requirements in its investigatory
process. Also soon after the Supreme Court’s decision, Jerry Tarkanian and UNLV
were again under investigation by the NCAA. Before the Committee on Infractions
could hold its hearing, however, Tarkanian and several other UNLV employees
demanded that the NCAA comply with the new Nevada law. The NCAA responded
by filing suit in federal district court, arguing successfully to that court and on appeal
to the Ninth Circuit that the Nevada law was an unconstitutional violation of the34
Dormant Commerce Clause and the Contracts Clause.
The Constitution vests Congress with the power to regulate commerce between
the states.35 The Supreme Court has also recognized in this power an inherent36
limitation on the ability of the states to regulate with respect to interstate commerce.
Applying this so-called “Dormant Commerce Clause” to Nevada’s requirements with
regard to the NCAA, the district court found the Nevada statute unconstitutional.
The court found the NCAA to clearly be involved in commerce, citing as an example
32 Id. at 196.
33 Id. at 199.
34 Nat’l Collegiate Athletic Ass’n v. Miller, 795 F. Supp. 1476 (D. Nev. 1992), aff’d, 10 F.3d
35 U.S. Const. art. I, § 8, cl. 3.
36 See, e.g., Hood & Sons, Inc. v. C. Chester Du Mond, 336 U.S. 525, 535 (1949).
the fact that the NCAA “controls bids involving hundreds of millions of dollars for
interstate television broadcasting of intercollegiate sports events.”37
The court balanced Nevada’s interest in ensuring fair hearings for its state
schools and the employees of those schools against the burden Nevada’s law placed
on interstate commerce. While the court found Nevada’s concern to be a legitimate
one, the court held that the statute impermissibly burdened interstate commerce by
preventing the NCAA from uniformly enforcing its rules across the nation.38 Put
simply, the Nevada law required the NCAA to apply certain standards in Nevada that
differed from those generally applicable.
As mentioned above, the district court also found that the Nevada law violated
the Contracts Clause of the Constitution, which prohibits states from impairing the
ability of parties to enter into contracts.39 The Supreme Court has held that, when
examining Contracts Clause claims, courts must inquire as to the degree of contract
impairment and the nature and extent of the state’s interest in the law in question.40
Analyzing these factors in light of the pre-existing contracts between the NCAA and
Nevada’s member schools and the importance of the NCAA’s investigatory process
to ensuring fair play, the district court found the degree of impairment effectuated by
the Nevada law to be substantial. In addition, the court concluded that this
substantial impairment was not justified by an important public purpose, and so could
not withstand Contracts Clause scrutiny.41 The Ninth Circuit affirmed the district
court’s holding on Dormant Commerce Clause grounds, but did not reach the
Contracts Clause question.42
While the court in Miller did not rule on the validity of the other state statutes
purporting to regulate the NCAA’s procedures, the reasoning in that case casts
serious doubt on the ability of the states to force the NCAA to adhere to more
rigorous due process principles. As a result, it seems that any such direction must
come from Congress.
37 Miller, 795 F. Supp. at 1482. The Supreme Court has in the past agreed, stating that the
“product” marketed by the NCAA is intercollegiate competition. NCAA v. Board of Regents
of the Univ. of Okla., 468 U.S. 85, 101 (1984).
38 Miller, 795 F. Supp. at 1483-1484.
39 U.S. Const. art. I, § 10.
40 See Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978).
41 Miller, 795 F. Supp. at 1488.
42 NCAA v. Miller, 10 F.3d 633 (9th Cir. 1993). While the Ninth Circuit agreed with the
district court’s finding that the Nevada law violated the Dormant Commerce Clause, the
Ninth Circuit ruled that the statute’s interference with state commerce was extensive enough
to constitute a per se violation and that, therefore, the balancing test applied by the district
court was not necessary. Id. at 639-640.
After Tarkanian and Miller
While participation in the NCAA is voluntary and universities can withdraw,
the virtual monopoly that the NCAA enjoys over intercollegiate sports is such that
any school that withdraws from the Association is locked out from major college
competition. Schools facing NCAA enforcement action are therefore left with little
choice but to accept the penalty determinations of the NCAA.
The courts in Tarkanian and Miller have found the NCAA’s investigatory and
enforcement procedures to be beyond Constitutional scrutiny and beyond the ability
of the states to regulate. Consequently, any government attempt to require the
NCAA to adopt more protective procedural rules would likely require legislation.
Further, the Tarkanian decision creates the potential showdowns — that some would
view as unfair — between state-sponsored member schools and the NCAA.
Specifically, because such schools are state actors, they are required to provide a
certain amount of due process to any players or officials the schools plan to suspend
or take action against. If, after providing such due process, however, the school finds
that there is insufficient evidence to justify imposing disciplinary action on the
individual in question, the school then has the option to appeal the decision once
again to the Infractions Committee, but only if the institution can provide new
evidence.43 Otherwise, the school must choose between two options: a) complying
with the NCAA and taking action against an individual the school believes to be
innocent; and b) refusing to take action against the student and risking expulsion
from the NCAA, effectively killing its intercollegiate athletic program.
Congress has acted previously to ensure that amateur athletes are protected from
arbitrary determinations of their sports governing bodies. For example, in the
Amateur Sports Act,44 the statute establishing and governing the United States
Olympic Committee (USOC), Congress inserted certain requirements to ensure that
athletes, coaches, etc., are given an objective hearing. The USOC basically acts as
the national governing body with respect to the participation of the United States in
the Olympic Games and certain other international competitions.45 One of the
USOC’s most important functions is to recognize various entities as the national
governing bodies (NGBs) of their respective sports. These NGBs make
recommendations to the USOC regarding athletes’ eligibility, the hiring and firing
of coaches, etc. The Amateur Sports Act requires that the NGBs submit to
mandatory arbitration any controversy involving “the opportunity of any amateur
athlete, coach, trainer, manager, administrator, or official to participate in amateur
athletic competition.”46 The USOC is also empowered to place NGBs on probation
and, in certain cases, to replace a sport’s NGB with a new entity. These
43 NCAA Bylaws, Article 126.96.36.199.
44 36 U.S.C. § 220501 et seq.
45 For more information about the USOC, see CRS Report RL32208, United States Olympic
Committee Reform: An Overview of Proposed Legislation, by Nathan Brooks.
46 36 U.S.C. § 220522(a)(4)(B).
determinations are also required to be reviewed at arbitration upon the request of the
47 Id. at § 220529.