Bowers v. National Collegiate Athletic Ass'n

• Decision Date: 06 August 2001
• Docket Number: No. CIV. A. 97-2600.,CIV. A. 97-2600.
• Parties: Michael BOWERS, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ACT, Inc., NCAA Initial Eligibility Clearinghouse, Temple University of the Commonwealth System of Higher Education, University of Iowa, American International College, Defendants.
• Court: U.S. District Court — District of New Jersey

151 F.Supp.2d 526

Michael BOWERS, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ACT, Inc., NCAA Initial Eligibility Clearinghouse, Temple University of the Commonwealth System of Higher Education, University of Iowa, American International College, Defendants.

No. CIV. A. 97-2600.

United States District Court, D. New Jersey.

August 6, 2001.

COPYRIGHT MATERIAL OMITTED

Barbara E. Ransom, Max Lapertosa, Public Interest Law Center of Philadelphia, Philadelphia, PA, Richard L. Bazelon, Bazelon, Less & Feldman, P.C., Marlton, NJ, for Plaintiff, Michael Bowers.

Charles J. Vinicombe, J. Freedley Hunsicker, Jr., John Schultz, Julianne Peck, Amy E. Pizzutillo, Drinker, Biddle & Shanley LLP, Princeton, NJ, for Defendant, National Collegiate Athletic Association.

Robert A. Burgoyne, Fulbright & Jaworski LLP, Washington, DC, Nicholas M. Kouletsis, Pepper Hamilton, LLP, Cherry Hill, NJ, for Defendants, ACT, Inc. and NCAA Initial Eligibility Clearinghouse.

Mark Schantz, Andrew Ives, Office of the General Counsel, University of Iowa, Iowa City, IA, Thomas J. Miller, Attorney General, Gordon E. Allen, Deputy Attorney General, Office of the Iowa Attorney General, Des Moines, IA, William O. Perkins, Jr., Jersey City, NJ, Jack Jay Wind, Margulies, Wind, Herrington & Knopf, P.C., Jersey City, NJ, for Defendant, University of Iowa.

John B. Langel, Abigail L. Flitter, Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia, PA, for Defendant, Temple University of the Commonwealth System of Higher Education.

James H. Savage, Ruprecht, Hart & Weeks, LLP, Millburn, NJ, for Defendant, American International College.

John J. Farmer, Jr., Attorney General of New Jersey, Jeffrey C. Burstein, Senior Deputy Attorney General, The State of New Jersey, Newark, NJ, for Intervenor, The State of New Jersey.

John James Peirano, Jr., Carpenter, Bennett & Morrissey, Newark, NJ, for Third-Party Defendant, University of Massachusetts Amherst.

Peter L. Frattarelli, Archer & Greiner, A Professional Corporation, Haddonfield, NJ, for Third-Party Defendant, University of Memphis.

Michael K. Willison, Dickie, McCamey & Chilcote, Lawrenceville, NJ, for Third-Party Defendant, Delaware State University.

OPINION

ORLOFSKY, District Judge

Once again, this protracted and hotly contested case alleging disability discrimination requires this Court to analyze and resolve a novel issue of law. This novel issue involves the interplay between the United States Constitution and state law prohibiting discrimination on the basis of disability. This Court must now address whether the Plaintiff, Michael Bowers ("Bowers"), may maintain his claims under the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. § 10:5-1, against Defendants, National Collegiate Athletic Association ("NCAA"), ACT, Inc. and the Initial Eligibility Clearinghouse ("ACT/Clearinghouse"), the University of Iowa ("Iowa"), Temple University of the Commonwealth System of Higher Education ("Temple") and American International College ("AIC"). The Defendants argue, among other things, that to apply the NJLAD to them in this case would violate the Due Process and Dormant Commerce Clauses of the United States Constitution because the NJLAD can not apply to places of public accommodation not located within New Jersey, even if the alleged victim of discrimination is a New Jersey resident.

For the reasons discussed below, I conclude that: (1) the application of the NJLAD to the Defendants based upon the facts and circumstances of this case does not violate the Due Process Clause of the United States Constitution; (2) the application of the NJLAD to the Defendants based upon the facts and circumstances of this case does not violate the Dormant Commerce Clause of the United States Constitution; (3) the NCAA is not entitled to summary judgment on Bowers's NJLAD claim; and (4) ACT/Clearinghouse is entitled to summary judgment on Bowers's claim that it aided and abetted the NCAA in violation of the NJLAD. I also conclude that the State of New Jersey's Motion to Intervene, described below, must be granted. Additionally, Bowers's Motion to Amend, as it relates to the NJLAD, is granted.

I. FACTUAL AND PROCEDURAL HISTORY¹

At its core, this case tests the applicability of laws prohibiting disability-based discrimination to the practices of the NCAA. In this case, Bowers has sued the NCAA under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) and the NJLAD. Among other claims, Bowers alleges that the NCAA discriminates against the learning disabled through initial eligibility requirements that govern whether a student may participate in intercollegiate college athletics. Bowers has also sued Temple, Iowa, and AIC for discrimination on the ground that these schools stopped recruiting Bowers to play football when they concluded that his learning disability would likely result in the NCAA declaring him a nonqualifier. Bowers has also sued ACT/Clearinghouse, which is operated by ACT, and is responsible for making eligibility determinations pursuant to the NCAA's regulations. Temple recently filed a Third-Party Complaint against Delaware State University, the University of Memphis and the University of Massachusetts Amherst. Also, Bowers recently amended his First Amended Complaint to add state law claims of fraud, promissory estoppel and equitable estoppel against the University of Iowa.²

On November 2, 2000, I filed Bowers III, 118 F.Supp.2d 494 (D.N.J.2000). In Bowers III, I denied without prejudice the Defendants' motions for summary judgment as they related to Bowers's claims under the NJLAD.³ Because no party had fully briefed the issue of the potential extraterritorial application of the NJLAD and whether such application would be constitutional, I granted twenty days to both Bowers and the Defendants to submit additional briefing on this issue. All parties submitted such briefing or joined another party's brief.⁴

After reviewing these supplemental briefs, I determined that it was appropriate, under 28 U.S.C. § 2403(b) and Federal Rule of Civil Procedure 24(c), to certify to the Attorney General of the State of New Jersey that the constitutionality of the NJLAD had been called into question. By letter dated February 5, 2001, I informed the Attorney General that the constitutionality of the NJLAD had been called into question, and I invited the state to present its views on the question of whether the application of the NJLAD to the Defendants in this case would be constitutional. On March 6, 2001, the State of New Jersey filed a Motion to Intervene⁵ and a brief on the issue of the constitutionality of applying the NJLAD to the Defendants in the circumstances of this case. Bowers, the NCAA and ACT subsequently submitted briefs in response to the state's brief.⁶ As this issue is now thoroughly briefed, it is ready for resolution.

II. DISCUSSION

Defendants argue that the NJLAD cannot apply to them under the facts of this case without violating the Due Process and the Dormant Commerce clauses of the United States Constitution. Among other things, Defendants argue that the NJLAD may not, under the United States Constitution, apply to defendants who are not places of public accommodation within New Jersey, even if the alleged victim of discrimination is a New Jersey resident.

A. Due Process Clause

The United States Supreme Court has employed a "contacts" analysis, similar to that used in the personal jurisdiction context, to determine whether a particular state's substantive law may be constitutionally applied to a particular set of facts. In Allstate Insurance Company v. Hague, the Supreme Court determined "that for a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." 449 U.S. 302, 312-13, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). The Court explained that it "has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction." Id. at 308, 101 S.Ct. 633.

The Eighth Circuit has explained that "[t]he basic rule is the state whose law is chosen to control a case must have a substantial factual contact with the parties or the transaction giving rise to the litigation. Without sufficient contacts, the state has no legitimate interest in the outcome of the litigation." McCluney v. Jos. Schlitz Brewing Co., 649 F.2d 578, 581 (8th Cir. 1981).

Therefore, under this method of analysis, to determine whether a state's substantive law may constitutionally apply to an occurrence or transaction, the relationship of the state, whose law is to be applied, to the facts at issue must be examined. The Defendants argue that New Jersey's contacts with this litigation are tenuous at best. Bowers argues that there are sufficient New Jersey contacts such that it would not offend the United States Constitution to apply New Jersey law here. Because each Defendant's relationship to New Jersey with respect to Bowers's action is unique, I will analyze each relationship separately to determine whether New Jersey law may, consistent with the Constitution, apply to Bowers's claims against each Defendant.

Before I examine New Jersey's contacts to this litigation, however, I must review some case law construing the NJLAD that provides a legal framework for the following discussion. It is relatively clear that, under New Jersey law, a plaintiff's New Jersey residence alone is not sufficient to trigger application of the NJLAD. See, e.g., Buccilli v. Timby, Brown & Timby, 283 N.J.Super. 6, 660 A.2d 1261 (N.J.Super.Ct.App.Div.1995) (holding that Pennsylvania law, and not the NJLAD, would govern a New...