Bowers v. National Collegiate Athletic Ass'n, Act

• Citation: 171 F.Supp.2d 389
• Decision Date: 07 November 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, Temple University of the Commonwealth System of Higher Education, Defendant and Third-Party Plaintiff, v. Delaware State University, University of Memphis, University of Massachusetts Amherst, Third-Party Defendants.
• Court: U.S. District Court — District of New Jersey

Page 389

171 F.Supp.2d 389

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, Temple University of the Commonwealth System of Higher Education, Defendant and Third-Party Plaintiff, v. Delaware State University, University of Memphis, University of Massachusetts Amherst, Third-Party Defendants.

No. CIV. A. 97-2600.

United States District Court, D. New Jersey.

November 7, 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 and Third-Party Plaintiff, 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.

Linda B. Celauro, 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.

I. INTRODUCTION

Can states be made to pay damages for violating Title II of the Americans with Disabilities Act? That controversial question lies at the heart of this motion, the latest in a long series of difficult issues stemming from the claims by Michael Bowers, a young, learning-disabled football player, that discrimination based upon his learning disability has prevented him from receiving an athletic scholarship to college. The Plaintiff's latest Complaint names some, but apparently not all, of the colleges with whom he sought to play football. As a result, one of the named defendant universities interpleaded a trio of third-party defendant schools, public universities all, from whom it seeks contribution in the event of a damages verdict against it. Thus, although of somewhat lesser public moment, the availability or not of a right to contribution under federal and New Jersey laws prohibiting discrimination against the disabled is also a critical question in the present motion. The Third-Party Defendants have now moved to dismiss the Third-Party Complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), arguing principally that there is no such right to contribution, or, alternately, that since they would have sovereign immunity from suit by the Plaintiff, the Third-Party Plaintiff can have no basis for contribution.

I conclude, however, that there is a right to contribution in such cases, and that, in enacting Title II of the Americans with Disabilities Act, Congress validly abrogated the sovereign immunity of the States embodied in the Eleventh Amendment to the United States Constitution. I also conclude that the State of Tennessee, at least, waived its Eleventh Amendment immunity from suit when it accepted federal funds pursuant to the terms of the Rehabilitation Act. Thus, for the reasons set forth more fully below, I shall grant the Third-Party Defendants' motions in part and deny them in part with prejudice. I shall also deny the motions by two of the Third-Party Defendants to dismiss the Third-Party Plaintiff's claims for contribution under New Jersey law without prejudice to the Third-Party Defendants' opportunity to renew their motions pending submission of additional materials supporting their entitlement to claim their parent state's sovereign immunity.

II. FACTS AND PROCEDURAL HISTORY

This is the eighth opinion I have issued in the course of adjudicating the claims asserted by Plaintiff, Michael Bowers ("Bowers"), that he was discriminated against by various entities as a result of his disability. See Bowers v. NCAA, 974 F.Supp. 459 (D.N.J.1997) (Bowers I); Bowers v. NCAA, 9 F.Supp.2d 460 (D.N.J. 1998) (Bowers II); Bowers v. NCAA, 118 F.Supp.2d 494 (D.N.J.2000)(Bowers III); Bowers v. NCAA, 130 F.Supp.2d 610(D.N.J.2001)(Bowers IV); Bowers v. NCAA, No. 97-2600 (D.N.J. Feb. 6, 2001)(unpublished)(Bowers V); Bowers v. NCAA, No. 97-2600 (D.N.J. July 3, 2001)(unpublished)(Bowers VI); Bowers v. NCAA, 151 F.Supp.2d 526 (D.N.J.2001) (Bowers VII). The essential facts underlying Bowers's Complaint are by now well rehearsed, to say the least.

Briefly, Bowers was a talented highschool football player, who sought to parlay his skills on the football field into an athletic scholarship at a four-year university. He was "recruited" by a number of the defendant institutions, including Temple University of the Commonwealth System of Higher Education ("Temple"), the University of Iowa ("Iowa"), and American International College ("AIC"). That is, he talked with representatives from the schools, and from their football teams, about the possibility that the school would offer him a scholarship. Bowers has alleged that some of these conversations involved actual promises to grant him a scholarship.

All of the defendant and third-party defendant universities are members of the National Collegiate Athletic Association ("NCAA"). The NCAA, by the consent of its members, sets minimum standards of academic preparedness for student-athletes entering college. See Bowers II, 9 F.Supp.2d at 467. Students who do not meet the NCAA's "initial eligibility" requirements cannot compete in intercollegiate athletics their freshman year, and face certain other restrictions on their practice time and their eligibility to receive financial assistance from their college or university. Id. at 467-68. In order to establish eligibility, a student must have successfully completed at least thirteen "core" courses, as defined by the NCAA. Id. at 468. Core courses taught below the "regular instructional level" for the student's secondary school will only be counted if the student or a college or university applies for, and is granted, a waiver of the core course requirement for that student. Id. Waivers are based on an individualized assessment of the student's record, pursuant to a consent decree entered into between the NCAA and the United States Department of Justice, under which review must be by experts in the field of special education.

The NCAA initially determined that Bowers had taken only three of its required thirteen core courses. See Id.. It concluded, as a result, that he was a "nonqualifier" — that is, not eligible to play football or receive an athletic scholarship at least for his freshman year, and possibly for longer. See id. at 467, 469. The NCAA's determination was based on the fact that, as a result of a diagnosed learning disability, Bowers had been enrolled primarily in special education classes, which the NCAA found to be below "regular instructional level." See Bowers I, 974 F.Supp. at 462; Bowers II, 9 F.Supp.2d at 467, 469. After the commencement of this suit, I ordered the NCAA to review Bowers's request for a waiver under the NCAA bylaws. See Bowers I, 974 F.Supp. at 463. Although the NCAA's Subcommittee, on review, gave Bowers credit for several more core classes, it still concluded he was well short of the thirteen needed to make him a "qualifier." Id. at 464.

News of Bowers's non-qualifier status had a devastating effect on his prospects for a football scholarship. All of the efforts to recruit Bowers by the various defendant institutions, including Temple, Iowa, and AIC, were contingent on the assumption that he would be a "qualifier." See Bowers II, 9 F.Supp.2d at 469. Although Bowers subsequently enrolled at Temple, he did so as an ordinary student; he did not play football, nor did he receive an athletic scholarship. 2d Am. Compl. at ¶¶ 141-44.¹

On May 23, 1997, Bowers initiated this suit, seeking injunctive relief, and perhaps damages, against the NCAA, and certain of its officers, pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213 (2000) ("ADA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (2000) ("Rehab.Act"), and the Sherman Act, 15 U.S.C. §§ 1-37 (2000). On September 8, 1997, Bowers filed an Amended Complaint, which for clarity I will now refer to as the First Amended Complaint, dropping the officer defendants and adding ACT, Inc. and the NCAA Initial Eligibility Clearinghouse, the NCAA's contractors, as well as Defendants, Temple, Iowa, and AIC. The First Amended Complaint also asserted claims under the New Jersey Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-1 to -42 (West 1993 & Supp.2001) against all defendants, and claims under New Jersey contract law against NCAA's contractors.

I subsequently dismissed all of Bowers's Sherman Act claims, see Bowers II, 9...