NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, PETITIONER v. JERRY
TARKANIAN
No. 87-1061
SUPREME COURT OF THE UNITED STATES
488 U.S. 179; 109 S. Ct. 454; 102 L. Ed. 2d 469; 1988 U.S. LEXIS 5613; 57 U.S.L.W. 4050
October 5, 1988, Argued
December 12, 1988, Decided
PRIOR HISTORY:
CERTIORARI TO THE SUPREME COURT OF NEVADA.
JUDGES: STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J.,
and BLACKMUN, SCALIA, and KENNEDY, JJ., joined. WHITE, J., filed a dissenting
opinion, in which BRENNAN, MARSHALL, and O'CONNOR, JJ., joined, post, p. 199.
OPINIONBY: STEVENS
When he became head basketball coach at the University of Nevada, Las Vegas (UNLV), in
1973, Jerry Tarkanian inherited a team with a mediocre 14-14 record. Four years later the team
won 29 out of 32 games and placed third in the championship tournament sponsored by the
National Collegiate Athletic Association (NCAA), to which UNLV belongs.
Yet in September 1977 UNLV informed Tarkanian that it was going to suspend him. No
dissatisfaction with Tarkanian, once described as "the 'winningest' active basketball coach,"
motivated his suspension. Rather, the impetus was a report by the NCAA detailing 38 violations
of NCAA rules by UNLV personnel, including 10 involving Tarkanian. The NCAA had placed
the university's basketball team on probation for two years and ordered UNLV to show cause
why the NCAA should not impose further penalties unless UNLV severed all ties during the
probation between its intercollegiate athletic program and Tarkanian.
Facing demotion and a drastic cut in pay, Tarkanian brought suit in Nevada state court, alleging
that he had been deprived of his Fourteenth Amendment due process rights in violation of 42 U.
S. C. § 1983. Ultimately Tarkanian obtained injunctive relief and an award of attorney's fees
against both UNLV and the NCAA. NCAA's liability may be upheld only if its participation in
the events that led to Tarkanian's suspension constituted "state action" prohibited by the
Fourteenth Amendment and was performed "under color of" state law within the meaning of §
1983. We granted certiorari to review the Nevada Supreme Court's holding that the NCAA
engaged in state action when it conducted its investigation and recommended that Tarkanian be
disciplined...
1
On November 28, 1972, the [NCAA] Committee on Infractions notified UNLV's president that
it was initiating a preliminary inquiry into alleged violations of NCAA requirements by UNLV.
As a result of that preliminary inquiry, some three years later the Committee decided that an
"Official Inquiry" was warranted and so advised the UNLV president on February 25, 1976.
That advice included a series of detailed allegations concerning the recruitment of student
athletes during the period between 1971 and 1975. Many of the allegations implicated
Tarkanian. It requested UNLV to investigate and provide detailed information concerning each
alleged incident. With the assistance of the Attorney General of Nevada and private counsel,
UNLV conducted a thorough investigation of the charges. On October 27, 1976, it filed a
comprehensive response containing voluminous exhibits and sworn affidavits. The response
denied all of the allegations and specifically concluded that Tarkanian was completely innocent
of wrongdoing. Thereafter, the Committee conducted four days of hearings at which counsel for
UNLV and Tarkanian presented their views of the facts and challenged the credibility of the
NCAA investigators and their informants. Ultimately the Committee decided that many of the
charges could not be supported, but it did find 38 violations of NCAA rules, including 10
committed by Tarkanian. Most serious was the finding that Tarkanian had violated the
University's obligation to provide full cooperation with the NCAA investigation...
The Committee proposed a series of sanctions against UNLV, including a 2-year period of
probation during which its basketball team could not participate in postseason games or appear
on television. The Committee also requested UNLV to show cause why additional penalties
should not be imposed against UNLV if it failed to discipline Tarkanian by removing him
completely from the University's intercollegiate athletic program during the probation period.
UNLV appealed most of the Committee's findings and proposed sanctions to the NCAA
Council. After hearing arguments from attorneys representing UNLV and Tarkanian, the
Council on August 25, 1977, unanimously approved the Committee's investigation and hearing
process and adopted all its recommendations.
UNLV's Discipline of Tarkanian
Promptly after receiving the NCAA report, the president of UNLV directed the University's
vice president to schedule a hearing to determine whether the Committee's recommended
sanctions should be applied. Tarkanian and UNLV were represented at that hearing; the NCAA
was not. Although the vice president expressed doubt concerning the sufficiency of the evidence
supporting the Committee's findings, he concluded that "given the terms of our adherence to
the NCAA we cannot substitute -- biased as we must be -- our own judgment on the credibility
of witnesses for that of the infractions committee and the Council." With respect to the
proposed sanctions, he advised the president that he had three options:
"1. Reject the sanction requiring us to disassociate Coach Tarkanian from the athletic program
and take the risk of still heavier sanctions, e. g., possible extra years of probation.
"2. Recognize the University's delegation to the NCAA of the power to act as ultimate arbiter of
these matters, thus reassigning Mr. Tarkanian from his present position -- though tenured and
without adequate notice -- even while believing that the NCAA was wrong.
"3. Pull out of the NCAA completely on the grounds that you will not execute what you hold to
be their unjust judgmentsPursuant to the vice president's recommendation, the president
2
accepted the second option and notified Tarkanian that he was to "be completely severed of any
and all relations, formal or informal, with the University's Intercollegiate athletic program
during the period of the University's NCAA probation."
Tarkanian's Lawsuit Against UNLV
The day before his suspension was to become effective, Tarkanian filed an action in Nevada
state court for declaratory and injunctive relief against UNLV and a number of its officers. He
alleged that these defendants had, in violation of 42 U. S. C. § 1983, deprived him of property
and liberty without the due process of law guaranteed by the Fourteenth Amendment to the
United States Constitution. Based on a stipulation of facts and the testimony offered by
Tarkanian, the trial court enjoined UNLV from suspending Tarkanian on the ground that he had
been denied procedural and substantive due process of law. UNLV appealed.
The NCAA, which had not been joined as a party, filed an amicus curiae brief arguing that
there was no actual controversy between Tarkanian and UNLV; thus, the suit should be
dismissed. Alternatively, the NCAA contended that the trial court had exceeded its jurisdiction
by effectively invalidating the enforcement proceedings of the NCAA, even though the
Association was not a party to the suit. Should a controversy exist, the NCAA argued, it was a
necessary party to litigate the scope of any relief. Finally, it contested the trial court's conclusion
that Tarkanian had been denied due process. The Nevada Supreme Court concluded that there
was an actual controversy but agreed that the NCAA was a necessary party and therefore
reversed and remanded to permit joinder of the NCAA.
The Lawsuit Against NCAA
Tarkanian consequently filed a second amended complaint adding the NCAA.
[Procedural discussion of Tarkanian’s suit against the NCAA]
Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between
state action, which is subject to scrutiny under the Amendment's Due Process
Clause, n11 and private conduct, against which the Amendment affords no
shield, no matter how unfair that conduct may be... .,
In this case Tarkanian argues that the NCAA was a state actor because it misused power that it
possessed by virtue of state law. He claims specifically that UNLV delegated its own functions
to the NCAA, clothing the Association with authority both to adopt rules governing UNLV's
athletic programs and to enforce those rules on behalf of UNLV. Similarly, the Nevada Supreme
Court held that UNLV had delegated its authority over personnel decisions to the NCAA.
Therefore, the court reasoned, the two entities acted jointly to deprive Tarkanian of liberty and
property interests, making the NCAA as well as UNLV a state actor.
3
These contentions fundamentally misconstrue the facts of this case. In the typical case raising a
state-action issue, a private party has taken the decisive step that caused the harm to the plaintiff,
and the question is whether the State was sufficiently involved to treat that decisive conduct as
state action. This may occur if the State creates the legal framework governing the conduct,... if
it delegates its authority to the private actor,... sometimes if it knowingly accepts the benefits
derived from unconstitutional behavior.... Thus, in the usual case we ask whether the State
provided a mantle of authority that enhanced the power of the harm-causing individual actor.
This case uniquely mirrors the traditional state-action case. Here the final act challenged by
Tarkanian -- his suspension -- was committed by UNLV. A state university without question is a
state actor. When it decides to impose a serious disciplinary sanction upon one of its tenured
employees, it must comply with the terms of the Due Process Clause of the Fourteenth
Amendment to the Federal Constitution... Thus when UNLV notified Tarkanian that he was
being separated from all relations with the university's basketball program, it acted under color of
state law within the meaning of 42 U. S. C. § 1983.
The mirror image presented in this case requires us to step through an analytical looking glass to
resolve the case. Clearly UNLV's conduct was influenced by the rules and recommendations of
the NCAA, the private party. But it was UNLV, the state entity, that actually suspended
Tarkanian. Thus the question is not whether UNLV participated to a critical extent in the
NCAA's activities, but whether UNLV's actions in compliance with the NCAA rules and
recommendations turned the NCAA's conduct into state action.
We examine first the relationship between UNLV and the NCAA regarding the NCAA's
rulemaking. UNLV is among the NCAA's members and participated in promulgating the
Association's rules; it must be assumed, therefore, that Nevada had some impact on the NCAA's
policy determinations. Yet the NCAA's several hundred other public and private member
institutions each similarly affected those policies. Those institutions, the vast majority of which
were located in States other than Nevada, did not act under color of Nevada law. It necessarily
follows that the source of the legislation adopted by the NCAA is not Nevada but the collective
membership, speaking through an organization that is independent of any particular State......
State action nonetheless might lie if UNLV, by embracing the NCAA's rules, transformed them
into state rules and the NCAA into a state actor. UNLV engaged in state action when it adopted
the NCAA's rules to govern its own behavior, but that would be true even if UNLV had taken no
part in the promulgation of those rules. In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), we
established that the State Supreme Court's enforcement of disciplinary rules transgressed by
members of its own bar was state action. Those rules had been adopted in toto from the
American Bar Association Code of Professional Responsibility. It does not follow, however,
that the ABA's formulation of those disciplinary rules was state action. The State Supreme Court
retained plenary power to reexamine those standards and, if necessary, to reject them and
promulgate its own. So here, 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. Neither UNLV's decision to adopt the NCAA's standards nor its
minor role in their formulation is a sufficient reason for concluding that the NCAA was acting
under color of Nevada law when it promulgated standards governing athlete recruitment,
4
eligibility, and academic performance.
Tarkanian further asserts that the NCAA's investigation, enforcement proceedings, and
consequent recommendations constituted state action because they resulted from a delegation of
power by UNLV. UNLV, as an NCAA member, subscribed to the statement in the Association's
bylaws that NCAA "enforcement procedures are an essential part of the intercollegiate athletic
program of each member institution." It is, of course, true that a State may delegate authority to
a private party and thereby make that party a state actor. Thus, we recently held that a private
physician who had contracted with a state prison to attend to the inmates' medical needs was a
state actor. West v. Atkins, 487 U.S. 42 (1988). But UNLV delegated no power to the NCAA to
take specific action against any university employee. The commitment by UNLV to adhere to
NCAA enforcement procedures was enforceable only by sanctions that the NCAA might impose
on UNLV itself.
Indeed, the notion that UNLV's promise to cooperate in the NCAA enforcement proceedings was
tantamount to a partnership agreement or the transfer of certain university powers to the NCAA
is belied by the history of this case. It is quite obvious that UNLV used its best efforts to retain
its winning coach -- a goal diametrically opposed to the NCAA's interest in ascertaining the truth
of its investigators' reports. During the several years that the NCAA investigated the alleged
violations, the NCAA and UNLV acted much more like adversaries than like partners engaged in
a dispassionate search for the truth. 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,
Polk County v. Dodson, 454 U.S. 312, 320 (1981), the NCAA is properly viewed as a private
actor at odds with the State when it represents the interests of its entire membership in an
investigation of one public university.The NCAA enjoyed no governmental powers to facilitate
its investigation. It had no power to subpoena witnesses, to impose contempt sanctions, or to
assert sovereign authority over any individual. Its greatest authority was to threaten sanctions
against UNLV, with the ultimate sanction being expulsion of the university from membership.
Contrary to the premise of the Nevada Supreme Court's opinion, the NCAA did not -- indeed,
could not -- directly discipline Tarkanian or any other state university employee. The express
terms of the Confidential Report did not demand the suspension unconditionally; rather, it
requested "the University . . . to show cause" why the NCAA should not impose additional
penalties if UNLV declines to suspend Tarkanian. Even the university's vice president
acknowledged that the Report gave the university options other than suspension: UNLV could
have retained Tarkanian and risked additional sanctions, perhaps even expulsion from the
NCAA, or it could have withdrawn voluntarily from the Association.
Finally, Tarkanian argues that the power of the NCAA is so great that the UNLV had no
practical alternative to compliance with its demands. We are not at all sure this is true, n19 but
even if we assume that a private monopolist can impose its will on a state agency by a threatened
refusal to deal with it, it does not follow that such a private party is therefore acting under color
of state law. Cf. Jackson, 419 U.S., at 351-352 (State's conferral of monopoly status does not
convert private party into state actor).
5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n19 The university's desire to remain a powerhouse among the Nation's college basketball teams
is understandable, and nonmembership in the NCAA obviously would thwart that goal. But that
UNLV's options were unpalatable does not mean that they were nonexistent.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - In final analysis the question is whether "the conduct allegedly causing the deprivation [**466]
of a federal right [can] be fairly attributable to the State." It would be ironic indeed to conclude
that the NCAA's imposition of sanctions against UNLV -- sanctions that UNLV and its counsel,
including the Attorney General of Nevada, steadfastly opposed during protracted adversary
proceedings -- is fairly attributable to the State of Nevada. It would be more appropriate to
conclude that UNLV has conducted its athletic program under color of the policies adopted by
the NCAA, rather than that those policies were developed and enforced under color of Nevada
law.
The judgment of the Nevada Supreme Court is reversed, and the case is remanded to that court
for further proceedings not inconsistent with this opinion.
It is so ordered.
DISSENTBY: WHITE
DISSENT: JUSTICE WHITE, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and
JUSTICE O'CONNOR join, dissenting.
All agree that UNLV, a public university, is a state actor, and that the suspension of Jerry
Tarkanian, a public employee, was state action. The question here is whether the NCAA acted
jointly with UNLV in suspending Tarkanian and thereby also became a state actor. I would hold
that it did....
[Discussion of precedent cases which Justice White felt that the majority overlooked.]
Had UNLV refused to suspend Tarkanian, and the NCAA responded by imposing sanctions
against UNLV, it would be hard indeed to find any state action that harmed Tarkanian. But that
is not this case. Here, UNLV did suspend Tarkanian, and it did so because it embraced the
NCAA rules governing conduct of its athletic program and adopted the results of the hearings
conducted by the NCAA concerning Tarkanian, as it had agreed that it would. Under these facts,
I would find that the NCAA acted jointly with UNLV and therefore is a state actor.
I respectfully dissent.
6
BRENTWOOD ACADEMY v. TENNESSEE SECONDARY SCHOOL ATHLETIC
ASSOCIATION, ET AL.
No. 99-901
SUPREME COURT OF THE UNITED STATES
531 U.S. 288; 121 S. Ct. 924; 148 L. Ed. 2d 807; 2001 U.S. LEXIS 964; 69 U.S.L.W. 4085;
2001 Cal. Daily Op. Service 1435; 2001 Daily Journal DAR 1793; 2001 Colo. J. C.A.R. 913; 14
Fla. L. Weekly Fed. S 74
October 11, 2000, Argued
February 20, 2001, Decided
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT.
The issue is whether a statewide association incorporated to regulate interscholastic athletic
competition among public and private secondary schools may be regarded as engaging in state
action when it enforces a rule against a member school. The association in question here includes
most public schools located within the State, acts through their representatives, draws its officers
from them, is largely funded by their dues and income received in their stead, and has
historically been seen to regulate in lieu of the State Board of Education's exercise of its own
authority. We hold that the association's regulatory activity may and should be treated as state
action owing to the pervasive entwinement of state school officials in the structure of the
association, there being no offsetting reason to see the association's acts in any other way.
I
Respondent Tennessee Secondary School Athletic Association (Association) is a not-for-profit
membership corporation organized to regulate interscholastic sport among the public and private
high schools in Tennessee that belong to it. No school is forced to join, but without any other
authority actually regulating interscholastic athletics, it enjoys the memberships of almost all the
State's public high schools (some 290 of them or 84% of the Association's voting membership),
far outnumbering the 55 private schools that belong. A member school's team may play or
scrimmage only against the team of another member, absent a dispensation...
The action before us responds to a 1997 regulatory enforcement proceeding brought against
petitioner, Brentwood Academy, a private parochial high school member of the Association. The
Association's board of control found that Brentwood violated a rule prohibiting "undue
influence" in recruiting athletes, when it wrote to incoming students and their parents about
spring football practice. The Association accordingly placed Brentwood's athletic program on
probation for four years, declared its football and boys' basketball teams ineligible to compete in
playoffs for two years, and imposed a $ 3,000 fine. When these penalties were imposed, all the
voting members of the board of control and legislative council were public school administrators.
7
Brentwood sued the Association and its executive director in federal court under Rev. Stat. §
1979, 42 U.S.C. § 1983, claiming that enforcement of the Rule was state action and a violation of
the First and Fourteenth Amendments. The District Court entered summary judgment for
Brentwood and enjoined the Association from enforcing the Rule. 13 F. Supp. 2d 670 (MD
Tenn. 1998). In holding the Association to be a state actor under § 1983 and the Fourteenth
Amendment, the District Court found that the State had delegated authority over high school
athletics to the Association, characterized the relationship between the Association and its public
school members as symbiotic, and emphasized the predominantly public character of the
Association's membership and leadership. The court relied on language in National Collegiate
Athletic Assn. v. Tarkanian, 488 U.S. 179, 193, n. 13, 102 L. Ed. 2d 469, 109 S. Ct. 454 (1988),
suggesting that statewide interscholastic athletic associations are state actors, and on other
federal cases in which such organizations had uniformly been held to be acting under color of
state law.
The United States Court of Appeals for the Sixth Circuit reversed. 180 F.3d 758 (1999). It
recognized that there is no single test to identify state actions and... found no state action... It said
the District Court was mistaken in seeing a symbiotic relationship between the State and the
Association, it emphasized that the Association was neither engaging in a traditional and
exclusive public function nor responding to state compulsion, and it gave short shrift to the
language from Tarkanian on which the District Court relied. Rehearing en banc was later denied
over the dissent of two judges, who criticized the panel decision for creating a conflict among
state and federal courts, for being inconsistent with Tarkanian, and for lacking support in the
"functional" analysis of private activity required... for assessing the significance of cooperation
between public officials and a private actor.
We granted certiorari, 528 U.S. 1153 (2000), to resolve the conflict and now reverse.
[I]n Tarkanian...we found no state action on the part of the NCAA. We could see, on the one
hand, that the university had some part in setting the NCAA's rules, and the Supreme Court of
Nevada had gone so far as to hold that the NCAA had been delegated the university's
traditionally exclusive public authority over personnel. But on the other side, the NCAA's
policies were shaped not by the University of Nevada alone, but by several hundred member
institutions, most of them having no connection with Nevada, and exhibiting no color of Nevada
law. Since it was difficult to see the NCAA, not as a collective membership, but as surrogate for
the one State, we held the organization's connection with Nevada too insubstantial to ground a
state action claim.
But dictum in Tarkanian pointed to a contrary result on facts like ours, with an organization
whose member public schools are all within a single State. "The situation would, of course, be
different if the [Association's] membership consisted entirely of institutions located within the
same State, many of them public institutions created by the same sovereign." To support our
surmise, we approvingly cited two cases: Clark v. Arizona Interscholastic Assn., 695 F.2d 1126
(CA9 1982), cert. denied, 464 U.S. 818, 78 L. Ed. 2d 90, 104 S. Ct. 79 (1983), a challenge to a
state high school athletic association that kept boys from playing on girls' interscholastic
volleyball teams in Arizona; and Louisiana High School Athletic Assn. v. St. Augustine High
8
School, 396 F.2d 224 (CA5 1968), a parochial school's attack on the racially segregated system
of interscholastic high school athletics maintained by the athletic association. In each instance,
the Court of Appeals treated the athletic association as a state actor.
Just as we foresaw in Tarkanian, the "necessarily fact-bound inquiry," leads to the conclusion of
state action here. The nominally private character of the Association is overborne by the
pervasive entwinement of public institutions and public officials in its composition and
workings, and there is no substantial reason to claim unfairness in applying constitutional
standards to it.
The Association is not an organization of natural persons acting on their own, but of schools, and
of public schools to the extent of 84% of the total. Under the Association's bylaws, each member
school is represented by its principal or a faculty member, who has a vote in selecting members
of the governing legislative council and board of control from eligible principals, assistant
principals and superintendents....
In sum, to the extent of 84% of its membership, the Association is an organization of public
schools represented by their officials acting in their official capacity to provide an integral
element of secondary public schooling. There would be no recognizable Association, legal or
tangible, without the public school officials, who do not merely control but overwhelmingly
perform all but the purely ministerial acts by which the Association exists and functions in
practical terms. Only the 16% minority of private school memberships prevents this entwinement
of the Association and the public school system from being total and their identities totally
indistinguishable.
To complement the entwinement of public school officials with the Association from the bottom
up, the State of Tennessee has provided for entwinement from top down. State Board members
are assigned ex officio to serve as members of the board of control and legislative council, and
the Association's ministerial employees are treated as state employees to the extent of being
eligible for membership in the state retirement system....
[Plaintiff’s
[Discussion here of the Association’s claim that a decision for the plaintiff would lead to an
“epidemic of unprecedented federal litigation.”]
The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
DISSENTBY: THOMAS
DISSENT: JUSTICE THOMAS, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and
JUSTICE KENNEDY join, dissenting.
9
We have never found state action based upon mere "entwinement." Until today, we have found a
private organization's acts to constitute state action only when the organization performed a
public function; was created, coerced, or encouraged by the government; or acted in a symbiotic
relationship with the government. The majority's holding -- that the Tennessee Secondary School
Athletic Association's (TSSAA) enforcement of its recruiting rule is state action -- not only
extends state-action doctrine beyond its permissible limits but also encroaches upon the realm of
individual freedom that the doctrine was meant to protect....
Because the majority never defines "entwinement," the scope of its holding is unclear. If we are
fortunate, the majority's fact-specific analysis will have little bearing beyond this case. But if the
majority's new entwinement test develops in future years, it could affect many organizations that
foster activities, enforce rules, and sponsor extracurricular competition among high schools -- not
just in athletics, but in such diverse areas as agriculture, mathematics, music, marching bands,
forensics, and cheerleading. Indeed, this entwinement test may extend to other organizations that
are composed of, or controlled by, public officials or public entities, such as firefighters,
policemen, teachers, cities, or counties. I am not prepared to say that any private organization
that permits public entities and public officials to participate acts as the State in anything or
everything it does, and our state-action jurisprudence has never reached that far. The state-action
doctrine was developed to reach only those actions that are truly attributable to the State, not to
subject private citizens to the control of federal courts hearing § 1983 actions.
I respectfully dissent.
10
THE INDIANA HIGH SCHOOL ATHLETIC ASSOCIATION, INC. Appellant-Defendant,
vs. JOAN DURHAM, INDIVIDUALLY, and JOAN DURHAM AS NATURAL PARENT and
GUARDIAN OF BERNARD L. DURHAM, A MINOR, and BERNARD L. DURHAM,
Appellees-Plaintiffs.
No. 49A05-9912-CV-00531
COURT OF APPEALS OF INDIANA, FIFTH DISTRICT
748 N.E.2d 404; 2001 Ind. App. LEXIS 751
May 7, 2001, Filed
PRIOR HISTORY: [**1] APPEAL FROM THE MARION SUPERIOR COURT. Cause No.
49D02-9909-CT-001280. The Honorable Kenneth H. Johnson, Judge.
JUDGES: VAIDIK, Judge. NAJAM, J., and KIRSCH, J., concur.
OPINIONBY: VAIDIK
Facts and Procedural History
In the summer of 1999, B.J. [Plaintiff, B.J. Durham] transferred from Park Tudor High School
(Park Tudor) to North Central High School (North Central). B.J. participated in varsity crosscountry and track during his freshman and sophomore years at Park Tudor. B.J. had attended
private school, either at Park Tudor or at St. Richard's School since second grade. B.J. has three
brothers who also attended private schools.
During 1998, B.J.'s mother, Joan Durham, and her husband, Tim Durham, separated and initiated
divorce proceedings. Tim is not B.J.'s biological father. B.J.'s biological father lives in France
and does not contribute to B.J.'s support. Around January or February of 1999, the time came to
sign 1999-2000 re-enrollment contracts for B.J. and his three brothers in their private schools. At
that time, Joan and Tim's divorce was not yet final. Joan decided not to sign the contracts
because she could no longer afford the tuition to send her children to private schools. She
instead enrolled her sons including B.J. in the public school system where the family resided,
Washington Township. B.J. enrolled in North Central. In the fall of 1999, an IHSAA transfer
form was completed on behalf of B.J. so that he could continue participating in sports at North
Central. Joan indicated on the form that the recent divorce created such a financial burden on her
that she could not afford to keep B.J. enrolled at a private school. Joan also provided the IHSAA
with financial information and court filings to support the listed reason for B.J.'s transfer.
In 1997, before the divorce, the taxable income of the family was $ 405,590. However, after the
separation, Joan's taxable income was $ 134,620, resulting in a sixty-seven percent drop in the
family income. However, Joan's substantial debt and regular expenses greatly reduce the
11
availability of this income. Further, Joan does not have significant assets that she can access to
assist her in reducing her debt or paying her expenses.
Specifically, there are two mortgages on the family home, the first one is for $ 460,000, and the
second mortgage is for $ 130,000. Thus, although the house's appraisal value is somewhere
between $ 580,000 and $ 680,000, any proceeds from a sale of this home would be severely
reduced by these mortgages. There was also a tax lien on the house at the time Joan had to make
the decision of whether or not to re-enroll her children in private schools. This tax lien also
prevented Joan from selling the family home. Joan's yearly fixed bills, including the mortgage
and utilities, total over $ 96,000. In addition, charges at Park Tudor total $ 11,895 for tuition,
fees, and books per child. Joan also has many other regular expenses, including credit cards,
insurance, health care, camp, piano and tennis lessons, tutors, and household expenses such as
groceries and landscaping. Further, the child support paid by Tim for his one child is not
received in cash, as it is applied to paying off the tax lien on the house. Although she owns stock
in the company for which she works, she has borrowed against that to keep her house. In fact,
she receives temporary assistance from her parents in exchange for some work that she does for
them to enable her to stay in the family home and continue to keep up payments on her debt.
Park Tudor, as the sending school, also had to offer the reason for B.J.'s transfer. Initially, Park
Tudor had included in the transfer form that B.J. told coaches, administrators, and other students
that "he wanted to go to a better track/c.c. [cross-country] program and that is why he is leaving."
B.J. denied making such statements. However, Park Tudor changed its position after speaking
with its athletic director who had subsequently learned that B.J.'s family situation prompted the
transfer. Park Tudor recommended that B.J. be awarded full eligibility to compete in sports at
North Central.
On August 25, 1999, IHSAA Assistant Commissioner Sandy Searcy granted B.J. only limited
eligibility, which prohibited B.J. from competing at the varsity level, and denied B.J. a hardship
exception.
The Durhams, through North Central's athletic director, appealed that decision to the IHSAA
Executive Committee. The Durhams were led to believe that the question of whether B.J.
transferred for athletically motivated reasons would not be an issue discussed at the hearing
scheduled before the Executive Committee. A hearing was held, at which B.J., Joan, and the
athletic directors from both schools testified. Evidence was presented that B.J. had been running
with the junior varsity cross-country team at North Central, and that if he enjoyed full eligibility,
B.J. would be one of the school's top runners. Joan testified that B.J. had suffered a great deal as
a result of the IHSAA's decision. She relayed that he had problems with anxiety in the past, and
that his running had helped him through this difficult time for his family. B.J. testified that he did
not want to leave Park Tudor, and that he refused to explain why he was leaving when asked
about the move at Park Tudor. Assistant Commissioner Searcy also testified that she was
convinced that the change in the Durham's financial circumstances was permanent and
substantial although not beyond their control. Park Tudor's athletic director, referring to Park
Tudor's initial comment on B.J.'s transfer form, stated that the reference was the result of
bantering between athletes and coaches due to the rivalry with North Central.
12
The Executive Committee agreed with Assistant Commissioner Searcy's decision, denying B.J.
full eligibility and issuing findings. The Executive Committee concluded that B.J. transferred
schools without a change in residence and failed to fit within any of the criteria of the Transfer
Rule to gain full eligibility. Further, the Committee determined that B.J. did not meet the
necessary conditions to gain full eligibility through the hardship exception to the Transfer Rule.
Even though Searcy had testified that there had been a permanent and substantial change in
financial circumstances, the IHSAA Executive Committee reasoned that B.J. failed to produce
sufficient proof that the reason for transfer was beyond the control of him and his family. The
IHSAA also noted that some evidence existed that the transfer may have been motivated by
athletic reasons, even though the Durhams did not know that this was an issue before the
Executive Committee.
The Durhams sought a temporary restraining order in court. On September 17, 1999, the trial
court granted the temporary restraining order. On September 20, 1999, B.J. filed the complaint
asking that the IHSAA's decision be overturned and that a permanent injunction be issued to
allow B.J. to run cross-country on North Central's varsity team. On October 15, 1999, the trial
court held a hearing on the request for injunctive relief. The court allowed the administrative
record to be supplemented, but did not conduct a new evidentiary hearing.
On October 22, 1999, the court granted the permanent injunction, and issued findings and
conclusions. The court found that the IHSAA's findings were arbitrary and capricious. The court
concluded that B.J. had met the conditions of the hardship exception to the Transfer Rule by
showing a significant change in financial circumstances caused by his mother's recent divorce.
The trial court noted that Joan's total expenses before private tuition are about equal to her
income. Moreover, the court reasoned that B.J. did not need to prove poverty status to fall within
the confines of the Hardship Rule, as the IHSAA does not have an income test. The court instead
determined that B.J. did meet the requirements listed in the Hardship Rule, concluding that
allowing B.J. to enjoy full athletic eligibility would not violate the spirit of the Transfer Rule.
The court noted that the only possible evidence of athletic motivation, the bantering among
students and coaches, was hearsay within hearsay. Further, this evidence was not confirmed by
personal knowledge, but rather was an assumption made due to a rivalry with North Central. The
IHSAA appealed the trial court's findings. Initially, this court stayed the appeal so that the trial
court could decide the issue of attorney fees. The trial court denied the Durhams' request for
attorney fees, and the stay was lifted.
Discussion and Decision
Upon appeal, the IHSAA asserts that the trial court applied the standard of review over its
decisions improperly. The IHSAA contends that its rulings are entitled to great deference and
should be reversed only if they are willful and unreasonable without consideration of the facts
and circumstances in the case. In this case, the IHSAA argues that the trial court merely
reweighed the evidence and substituted its own decision. The Durhams insist that this case is
moot because the time for the injunction has expired, and there are no outstanding unresolved
issues between these parties. Alternatively, the Durhams counter that the IHSAA's conduct is not
free from judicial review, and the IHSAA violated its own rules in denying B.J. a hardship
exception.
13
I. IHSAA--Background and Rules
The IHSAA is a voluntary association designed to regulate interschool athletic competition.
[**10] It establishes standards for eligibility, competition, and sportsmanship. For each school
year, the IHSAA publishes a manual containing its Articles of Incorporation and By-Laws. This
manual contains specific rules regarding eligibility. The rule in question in this case is Rule 19,
known as the Transfer Rule. The Transfer Rule guides athletic eligibility when a student moves
to a new school district. Rule 19-4 provides that a student will be ineligible for 365 days if he or
she transfers schools for "primarily athletic reasons." Further, Rule 19-6.2 gives the IHSAA the
authority to grant limited eligibility to a student who transfers to another school without a
corresponding change of residence by his or her parent(s)/guardian(s). However, if one or more
of the criteria under Rule 19-6.1 are met, then a student may enjoy full and immediate eligibility,
even without a change of residence by his or her parent(s)/guardian(s).
If none of the criteria in Rule 19-6.1 are met, then a student must fall within the hardship
exception to the Transfer Rule to gain full and immediate eligibility. Rule 17.8, entitled
"Hardship" grants the authority to set aside any rule, including the Transfer [**11] Rule, if
certain conditions are met. In particular, Rule 17-8.1 lists these three conditions:
a. Strict enforcement of the Rule in the particular case will not serve to accomplish the purpose
of the Rule;
b. The spirit of the Rule has not been violated; and
c. There exists in the particular case circumstances showing an undue hardship that would result
from enforcement of the Rule.
Further, among those situations to receive general consideration for a hardship exception is the
following: "a change in financial condition of the student or a student's family may be considered
a hardship, [*410] however, such conditions or changes in conditions must be permanent,
substantial and significantly beyond the control of the student or the student's family." IHSAA
Manual, Rule 17-8.4.
When a student moves to a new school district, an investigation and a transfer report must be
completed if athletic eligibility at the new school is desired. Included in this report are forms
filled out by the sending school, the receiving school, and the student and/or the student's
parent(s)/guardian(s). The report must include the relevant circumstances and documents and
recommendations regarding immediate eligibility from both schools.
II. Mootness
Initially, the Durhams assert that the IHSAA's appeal should be denied because the case is moot.
The Durhams contend that there are no outstanding issues between the parties because the
injunction has been lifted, the issue of attorney fees has been decided, and North Central did not
win any State titles with B.J.'s participation.
14
However, the IHSAA replies that the problem with the majority of litigation surrounding
eligibility decisions is that the injunction granted by the trial court expires before the matter has
been fully litigated and appealed. The IHSAA also contends that the case is not moot because its
Restitution Rule allows the IHSAA to make the school forfeit victories, team awards, and funds
received from a tournament if it has been determined that an ineligible student athlete has
competed for that school. Alternatively, the IHSAA argues that even if the issues have been
decided in this case, this court should hear the case because it involves questions of public
interest.
An issue becomes moot when it is no longer live and the parties lack a legally cognizable interest
in the outcome or when no effective relief can be rendered to the parties...... The IHSAA relies
upon the exception that an otherwise moot case may be decided on the merits if the case involves
a question of great public interest. Indiana courts recognize that a moot case can be reviewed
under a public interest exception when it involves questions of great public importance.
Although Indiana does not require that the issue be capable of repetition, cases falling into the
public interest exception usually involve issues that are likely to recur.
The IHSAA argues that this exception applies to the instant case because the issue involves
children and education, matters that are considered of great public concern, and our court has
previously held that a challenge to an IHSAA eligibility rule is an issue of substantial public
interest.
While at first glance high school athletics may not seem to be of great public importance,
according to the IHSAA, over 160,000 students statewide participate in sports under the IHSAA
eligibility rules. Thus, this issue touches many in our state. Further, the issue of eligibility when a
student transfers schools has arisen several times and has been the subject of much litigation...
The public interest exception to the mootness doctrine applies to this case, allowing us to decide
the merits.
III. Were the Trial Court's Findings Clearly Erroneous?
[The] IHSAA asserts that even if the trial court used the appropriate standard of review
governing its decisions, the trial court's findings were clearly erroneous. The IHSAA asserts that
the evidence, as adduced in its written findings, supports its denial of full eligibility and a
hardship exception.
In particular, the IHSAA asserts that some evidence existed that B.J. transferred for athletically
motivated reasons. It points to the bantering about North Central having a better cross-country
and track program. The trial court concluded that this was "hearsay within hearsay" and was not
substantial evidence. The IHSAA counters that hearsay is admissible during administrative
proceedings, and can be found to be substantial evidence of probative value. The IHSAA also
contends that the Durhams failed to establish that the purpose of the Transfer Rule would not be
served by denying B.J. a hardship exception due to this evidence of "school jumping."
Here, the trial court did not abuse its discretion in holding that the IHSAA's conclusion that there
was some evidence supporting that B.J. transferred for athletic reasons was arbitrary and
15
capricious. Although hearsay may be admissible in administrative proceedings, this evidence of
bantering was based upon Park Tudor's mistaken assumption that B.J. was transferring for
athletic reasons. As soon as Park Tudor officials learned of the Durhams' circumstances, the
transfer report was corrected to reflect that they recommended that B.J. be given full eligibility
under a hardship exception. Thus, any evidence of athletic motivation was recanted by Park
Tudor. Further, Park Tudor's retraction is against their own interest, as it would seem that Park
Tudor would be interested in not having B.J. compete against it due to its rivalry with North
Central. Despite this, Park Tudor supported B.J.'s pursuit of a hardship exception.
Additionally, the Durhams were led to believe that athletic motivation would not be an issue in
B.J.'s case. It is unfortunate that the IHSAA listed athletic motivation as a reason for transfer
even though little or no evidence supports it.... In the instant case, the trial court recognized this
practice and found no evidence in the record to support the IHSAA's conclusion that athletic
motivation played a role in B.J.'s transfer. Thus, the trial court's findings with respect to athletic
motivation were not clearly erroneous.
Further, the IHSAA argues that B.J. did not establish undue hardship because he failed to show
that his family's circumstances were beyond his or his family's control and that he could not
afford to attend private school. The IHSAA contends that the trial court merely reweighed the
evidence of the family's finances, and that the Durhams still enjoyed a high standard of living.
The IHSAA concluded that the decision to send B.J. to North Central was a choice.
Rule 17-8.1, the general section of the Hardship Rule, states that the IHSAA may grant a
hardship exception if 1) strict enforcement of the rule in the particular case will not serve to
accomplish the purpose of the rule; 2) the spirit of the rule has not been violated; and 3) there
exists in the particular case circumstances showing an undue hardship that would result from
enforcement of the rule. Thereafter, specific circumstances are listed as candidates for hardship
exceptions. One such circumstance that may be considered a hardship is a change in financial
condition of the student or a student's family if the change is permanent, substantial, and
significantly beyond the control of the athlete or the athlete's family.
....With the evidence submitted by Joan in the IHSAA administrative proceedings regarding her
recent divorce and family's change in finances, no reasonable and honest person could conclude
that the Durhams have not met this specific consideration listed within the Hardship Rule.
The trial court in the case before us found that the IHSAA ignored its own rules and instead
interjected a condition of undue hardship not found in its rules that the Durhams prove their
poverty before B.J. be given a hardship exception. We agree.
Contrary to IHSAA's assertion, the Hardship Rule does not read that an athlete's family must
prove that it is a hardship case. In fact, financial hardship or poverty is not contained within the
change in financial condition provision or the Hardship Rule generally. Instead, the "hardship"
referred to in the Hardship Rule focuses on the hardship faced by the student athlete if the rule is
strictly enforced. In this case, B.J. would face a hardship if he had to run at the junior varsity
level because through no fault of his own and without any athletic motivation, B.J. was forced to
16
transfer schools because of a substantial and permanent change in his family's financial
condition....
Even if we were to read a financial hardship requirement into the Hardship Rule, the Durhams
would meet such a condition. The evidence in the record is undisputed that Joan had a significant
amount of debt and her income had decreased by sixty-seven percent as a result of the divorce.
At first glance, Joan's taxable income of $ 134,620 may not appear to suggest a family in
financial hardship. However, a closer look reveals that Joan's monthly expenses are about equal
to her monthly income. Joan's mortgage and utilities total $ 96,000 yearly, and she has many
other regular expenses including health care, insurance, and various household expenses. Joan
also has no assets that she could access to alleviate her financial burdens. Although Joan may be
able to sell her house, she would net very little in proceeds after her mortgage debt was satisfied.
Further, Joan would like to keep her children in the family home to avoid more disruption in
their lives, in light of the divorce. The IHSAA should not be in the business of second-guessing
personal financial decisions, but should accept the circumstances as they are.
Given the evidence in this case, the trial court did not abuse its discretion in overturning the
IHSAA's denial of full eligibility and refusal to grant a hardship exception.... The trial court in
this case properly identified arbitrary and capricious action by the IHSAA.
Judgment affirmed.
NAJAM, J., and KIRSCH, J., concur.
17
Mitchell Marshall v. Alabama High School Athletic Association, et al.
2970679
COURT OF CIVIL APPEALS OF ALABAMA
717 So. 2d 404; 1998 Ala. Civ. App. LEXIS 390
May 22, 1998, Released
PRIOR HISTORY: Appeal from Montgomery Circuit Court. (CV-97-2358).
JUDGES: ROBERTSON, Presiding Judge, Yates, Monroe, Crawley, and Thompson, JJ.,
concur. Sarah M. Greenhaw.
OPINIONBY: ROBERTSON
OPINION: [*404]
Mitchell Marshall appeals from a judgment dismissing his complaint for injunctive relief against
the Alabama High School Athletic Association ("AHSAA") and Montgomery Academy ("the
Academy"). We affirm.
Marshall's son played in a high school football game on November 21, 1997, for the Academy
against Red Level High School. At the conclusion of this game, as one of the referees was
leaving the field, someone approached the referee and struck him in the face with a fist. As a
result of this incident, the executive director of the AHSAA sent a letter to the Academy on
November 24, directing it to identify the person who had struck the referee; the Academy
responded by naming Marshall. The executive director then assessed the Academy a $ 1,000
fine, placed it on probation for one year, and directed that the Academy "shall not participate in
an interscholastic athletic contest for the remainder of the 1997-98 school year in which ...
Marshall is in attendance." On November 25, after a meeting of its board of directors, the
Academy's headmaster accepted the sanctions imposed, noting that "Marshall has committed
voluntarily to comply with this injunction."
However, on November 26, 1997, two days before the Academy's next scheduled football game,
Marshall sued the AHSAA and the Academy, seeking temporary, preliminary, and permanent
injunctive relief to prevent the AHSAA and the Academy from enforcing those sanctions
mandated by the AHSAA preventing the Academy from participating in sports events at which
Marshall was in attendance. The trial court denied Marshall's requests for a temporary restraining
order and a preliminary injunction on November 28, 1997. After an ore tenus proceeding, the
trial court entered a judgment denying injunctive relief.
Marshall appealed the trial court's judgment to the Alabama Supreme Court; that court
transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.
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In its six-page judgment, the trial court concluded that "the law in the State of Alabama is clear
that courts should not interfere with the internal operations of the [AHSAA] unless its actions are
the result of fraud, lack of jurisdiction, collusion or arbitrariness...."
On appeal, Marshall does not contend that the sanctions imposed upon the Academy by AHSAA
are the products of fraud or collusion. Instead, he contends that the AHSAA constitution and
bylaws do not authorize the AHSAA to prevent the Academy from participating in athletic
contests at which Marshall is in attendance, and that that sanction is arbitrary and within the trial
court's jurisdiction to enjoin.
Under Articles IV and VIII of the AHSAA's constitution, its executive director is empowered to
act on behalf of the AHSAA's "central board of control" and its "district board of managers" and
it may discharge the duties of enforcement of the AHSAA constitution and bylaws. Moreover,
Article X of the AHSAA constitution specifically provides that "a school may be charged with
violating the laws of the [AHSAA] or with unsportsmanlike conduct," that the AHSAA "may
take action in a case without receiving a formal complaint," and that "the Executive Director has
the authority to act on any case which needs immediate action." While a note to Article VII of
the AHSAA constitution indicates that the central board has adopted a schedule of punishments,
including a minimum fine of $ 500 and probation for "physical abuse" of officials, there is no
indication in the note that these penalties are exclusive or that "probation" may not include a
stipulation that a team not play contests while a fan found to have committed unsportsmanlike
conduct is in attendance. Thus, we reject Marshall's contention that the AHSAA was without
jurisdiction to prevent the Academy from competing in athletic events at which he was in
attendance.
Neither do we agree with Marshall that the AHSAA's penalty was arbitrary. As this court has
stated, "a decision cannot be said to be 'arbitrary' when there is a reasonable justification for the
decision or where the determination is founded upon adequate principles or fixed standards."
Alabama Dep't of Public Health v. Perkins, 469 So. 2d 651, 652 (Ala. Civ. App. 1985). There
was evidence before the trial court that in similar situations over the past 15 years where a fan of
a member school has assaulted a game official, the AHSAA has directed the school to remove its
team from the playing field of a contest if that fan is in attendance at the contest. Moreover, the
AHSAA has published notices of its issuance of such sanctions on at least three occasions in its
official bulletin sent to member schools. Finally, Marshall testified that he thought it was "all
right" for him to hit the referee and that he would do it again under the same circumstances.
Thus, it cannot be said that the sanctions imposed by the AHSAA upon the Academy were not
issued according to fixed standards, or that there was no reasonable justification for them.
Marshall failed to adduce "clear and convincing evidence" tending to demonstrate that the
AHSAA's sanctions against the Academy were a product of "fraud, collusion, or arbitrariness,"
as required by Medders. The trial court thus correctly determined that it had no jurisdiction to
enjoin the sanctions against the Academy, and its judgment denying injunctive relief and
dismissing Marshall's complaint is due to be affirmed.
AFFIRMED. Yates, Monroe, Crawley, and Thompson, JJ., concur.
19