The Wrong Suit for the Right Reason

There is a story today stating that some of the trustees at Penn State are planning to sue the NCAA to overturn the sanctions imposed on the University’s football program in the wake of the crimes committed by Jerry Sandusky.  I have no sympathy for the potential plaintiffs in the case.  Given the depth of the moral corruption that led to Sandusky’s crimes and the cover-up of those crimes by university officials, I think football should have been banned from Penn State for a couple of years.  And yet . . .

One of the claims that could be raised by the potential plaintiffs is that the NCAA did not afford Penn State due process (or, you could say, certain employees at Penn State were denied due process). That claim cannot succeed, though, because the Supreme Court held in 1988 that the NCAA is not a state actor under the Fourteenth Amendment.  That case, though, was decided by a five-to-four vote and was, in my view, erroneous.  Moreover, the principal impact of that decision is that it gives the NCAA carte blanche to discipline student athletes arbitrarily and deny them a fair share of the revenues these athletes produce.  It is time for the Court to revisit its precedent in NCAA v. Tarkanian, and if the Penn States trustees sue then that could happen.  

(Litigation against the sanctions could also be based on the idea that the President of Penn State acted ultra vires when he signed off on the penalties without a vote by the Board, but I’m not clear whether that argument has any merit.)

UPDATE:  What are the chances that the Court would overturn Tarkanian or even take this case?  Pretty low.

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4 Responses

  1. AndyK says:

    I would take that analysis and run with it, applying it to all the “voluntary” deprivations of due process in higher ed. Student athletes “agree” to social media blackouts, jurisdictionally-unlimited “character” requirements, and so forth. But nursing students agree to many similar onorous requirements, psych students do as well, and law students, etc. Not just the NCAA, but the ABA and other accrediting agencies with a privileged monopolist status to instate conduct codes in higher ed— all of these are currently all-but-immune from lawsuit when they coerce universities to deprive students of due process or when they do it themselves. It needs to stop.

  2. PrometheeFeu says:

    Have you blogged before on why the NCAA should be considered a state actor? I’ve heard some of the arguments, but never found them particularly convincing.

  3. Joe says:

    Didn’t the university voluntarily agree here?

    As to arbitrary treatment, if not a “state actor,” other means need to be present to address that sort of thing. Legislation, perhaps tied to funding, seems an appropriate avenue. I’m not sure overturning that opinion would be the best approach.

  4. Joe says:

    [I notice the ultra vires comment, but apparently it is thought to be a weak argument.]