Justice v. National Collegiate Athletic Ass'n

Decision Date18 November 1983
Docket NumberNo. 83-552 TUC ACM.,83-552 TUC ACM.
Citation577 F. Supp. 356
PartiesSteve JUSTICE, David Wood, Ivan Lesnik and Craig Vesling, Plaintiffs, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant.
CourtU.S. District Court — District of Arizona




Stompoly & Even, John G. Stompoly, John R. Even, David L. Horley, Tucson, Ariz., Evans, Kitchel & Jenckes, David F. Gaona, James A. Craft, Phoenix, Ariz., for plaintiffs.

Fennemore, Craig, Von Ammon, Udall & Powers, Calvin H. Udall, Ruth V. McGregor, Phoenix, Ariz., Swanson, Midgley, Gangwere, Clark & Kitchin, George H. Gangwere, Kansas City, Mo., for defendant.


KELLEHER, District Judge*.

The plaintiffs in this action, student-athlete players at the University of Arizona, request that a preliminary injunction be issued against the National Collegiate Athletic Association (NCAA) to prevent enforcement of NCAA sanctions which render the University of Arizona football team ineligible to participate in post-season competition in the 1983 and 1984 seasons or to make television appearances in the 1984 and 1985 seasons.1

The plaintiffs bring both constitutional and antitrust claims. The constitutional claims are brought pursuant to 42 U.S.C. § 1983, with jurisdiction invoked under 28 U.S.C. § 1343. The antitrust claim alleges violation of Section 1 of the Sherman Act, and jurisdiction is invoked under 28 U.S.C. §§ 1331 and 1337 and Section 16 of the Clayton Act, 15 U.S.C. § 26.

The defendant filed a motion to dismiss, or in the alternative, a motion for summary judgment pursuant to Rules 12 and 56 of the Federal Rules of Civil Procedure, respectively. This Court held a hearing on the motions for preliminary relief and for dismissal or summary judgment on October 18, 1983. From the testimony presented and memoranda and exhibits received, the Court finds as follows:


The pertinent facts on this record are without significant dispute. The four plaintiffs in this action are members of the University of Arizona varsity football team. Plaintiff Lesnik is a senior undergraduate in his last year of eligibility. Plaintiff Wood is a junior undergraduate. Plaintiffs Vesling and Justice are sophomore undergraduates, although Justice is classified as a "freshman red shirt" for purposes of athletic eligibility. Plaintiffs Lesnik, Wood, and Vesling are members of the first-string football team. All four of the plaintiffs were awarded an athletic scholarship to play football at the University of Arizona and were recruited by the University prior to the imposition and announcement of the sanctions.

The NCAA is an unincorporated association that regulates a substantial part of the nation's intercollegiate athletics. It is composed of approximately 960 four-year colleges and universities located throughout the United States. Approximately fifty percent of its members are private institutions and fifty percent are funded by the federal or state governments. The policies of the NCAA are established by its member universities and colleges at annual conventions and are carried out by the NCAA Council. The Council is composed of 46 persons who are elected by the membership at the annual conventions. 1983-84 NCAA Manual, NCAA Constitution, Article 5, Section 1. The University of Arizona is a public institution and at all pertinent times has been a member of the NCAA.

The NCAA publishes annually a manual which contains the NCAA constitution, bylaws, executive regulations, enforcement procedures, recommended policies, and rules of order. The NCAA constitution states in Article 2, Section 2, that "a basic purpose of the Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between college athletics and professional sports." The constitution also sets forth certain principles for the conduct of intercollegiate athletics. The section entitled the "Principle of Amateurism and Student Participation" defines an amateur student-athlete as "one who engages in a particular sport for the educational, physical, mental and social benefits derived therefrom and to whom participation in that sport is an avocation." Id. at Article 3, Section 1. This section also provides that a student-athlete shall not be eligible for participation in an intercollegiate sport if the individual: "(1) Takes or has taken pay, or has accepted the promise of pay, in any form, for participation in that sport ...." Id. Section 3-1-(g) of the constitution details the types of practices that constitute "pay" for participation in intercollegiate athletics,2 and the NCAA bylaws contain numerous provisions concerning recruitment of and financial aid to student athletes by member universities.

On May 17, 1983, the Committee on Infractions of the NCAA issued Confidential Report No. 183(107). The report contained the results of the NCAA's investigation of the University of Arizona's football program, and detailed numerous violations of the NCAA constitution and bylaws by the University during the years 1975 through 1979. The Committee on Infractions proposed that disciplinary action be imposed upon the University of Arizona, including loss to the University football program of its eligibility both to participate in post-season competition following the 1983 and 1984 seasons and to appear on television during the 1984 and 1985 seasons. Ineligibility for post-season competition and for television appearances are among the disciplinary measures which Section 7-(b) of the NCAA Enforcement Procedure Program allows the Infractions Committee or Council to impose against member institutions.3 The Committee notified the University of its right to appeal any of the findings or penalties to the NCAA Council.4 No appeal was taken.

The Infractions Committee's report documented numerous occasions on which staff members and representatives of the University football program—including the then head coach of the football team—provided compensation or extra benefits to student athletes who are either in the University's football program or being recruited for the program. Specifically, the football staff was found to have provided the student athletes with benefits such as free airline transportation between school and their homes, free lodging, and cash and bank loans for the athletes' car payments, rental payments, and personal use. The University of Arizona has at no time denied that these violations occurred. Neither do the plaintiffs in this action dispute the fact that the violations did occur.

In their complaint, the plaintiffs allege that the NCAA's imposition of the sanctions deprives them of their constitutionally protected rights: (a) to be free of punishment in the absence of guilt; (b) to participate in intercollegiate athletic competition —including post-season bowl games— and receive the national exposure critical to securing a professional football contract; and (c) to pursue the vocation of their choice and to exercise their freedom of expression without prior restraints. The plaintiffs also allege that the sanctions by an association of colleges and universities in competition with the University of Arizona constitute a group boycott in violation of Section 1 of the Sherman Act.

The plaintiffs allege further that by precluding them from competing with other highly rated college football teams in post-season play and denying them the exposure necessary to compete for contracts and bonuses with professional football teams upon graduation, the sanctions will cause them immediate and irreparable harm if not corrected before post-season bowl game invitations are extended in November of 1983. The plaintiffs thus seek a preliminary injunction prohibiting the NCAA from implementing the sanctions.


The traditional equitable criteria for granting preliminary injunctive relief are: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to the plaintiff if the requested relief is not granted; (3) a balance of hardships favoring the plaintiff; and (4) advancement of the public interest (in certain cases). See Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980); Sierra Club v. Hathaway, 579 F.2d 1162, 1167 (9th Cir.1978). In the Ninth Circuit, the moving party may meet its burden by demonstrating either: (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) that serious questions are raised and the balance of hardships tip sharply in favor of the moving party. These principles are not necessarily separate tests but rather are extremes of a single continuum. Benda v. Grand Lodge of International Association of Machinists, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). The critical element is the relative hardship to the parties. If the balance of harm tips decidedly toward the moving party, then he need not show as "robust a likelihood of success on the merits as when the balance tips less decidedly." Id. at 315; Wilson v. Watt, 703 F.2d 395, 399 (9th Cir.1983). The "irreducible minimum," however, is that the moving party demonstrate "a fair chance of success on the merits" or "questions ... serious enough to require litigation." Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 753 (9th Cir.1982), quoting Benda, 584 F.2d at 315. Failure by the moving party to demonstrate any chance of success on the merits will not suffice, and makes a determination of potential injury or a balancing of hardships unnecessary. See Sports Form, Inc., 686 F.2d at 753. The Court will now evaluate whether the plaintiffs have presented evidence sufficient to...

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