National Collegiate Athletic Ass'n v. Miller

Citation10 F.3d 633
Decision Date23 November 1993
Docket NumberNos. 92-16184,92-16227 and 92-16234,s. 92-16184
Parties, 87 Ed. Law Rep. 412 The NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, an unincorporated association, Plaintiff, Michael Alsup, Intervenor, and Jerry Tarkanian, and Lois Tarkanian, Counter-Claimants-Appellants, v. Robert F. MILLER, Governor, State of Nevada, et al., Defendants, and The National Collegiate Athletic Association, Walter Byers, S. David Berst, and Robert Stoup, Counter-Defendants-Appellees. The NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, an unincorporated association, Plaintiff-Appellee, v. Robert F. MILLER, Governor, State of Nevada, et al., Defendants, and Tim Grgurich; Ronald Ganulin, Defendants-Appellants. The NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, an unincorporated association, Plaintiff, and Shelley Fischer, Counter-Claimant-Appellant, v. Robert F. MILLER, Governor, State of Nevada, et al., Defendants, and The National Collegiate Athletic Association, Walter Byers, S. David Berst, and Robert Stoup, Counter-Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Alton G. Burkhalter, Giles & Burkhalter, Santa Ana, CA, for defendant-appellant Jerry Tarkanian.

Roy E. Smith, Galatz, Earl, Catalano & Smith, Las Vegas, NV, and Charles E. Thompson, Thompson & Harper, Las Vegas, NV, for defendants-appellants Tim Grgurich and Ronald Ganulin.

Keith E. Galliher, Jr., Las Vegas, NV, for defendant-appellant Shelley Fischer.

John J. Kitchin, Swanson, Midgley, Gangwere, Clarke & Kitchin, Kansas City, MO, and James S. Beasley, Beasley, Holden & Brooks, Reno, NV, for plaintiff-appellee The National Collegiate Athletic Ass'n.

Appeal from the United States District Court for the District of Nevada.

Before: TANG, TROTT and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Jerry Tarkanian, Tim Grgurich, Ronald Ganulin, and Shelley Fischer appeal the district court's order declaring that the provisions of Nevada Revised Statutes Secs. 398.155-398.255 1 ("the Statute"), which impose certain requirements on interstate national collegiate athletic associations, violate Article I, Section 8, Clause 3 (the Commerce Clause) and Article I, Section 10 (the Contract Clause) of the United States Constitution. The district court granted the declaratory judgment and enjoined appellants from taking any action to seek protection under the Statute. 2 We affirm.


The National Collegiate Athletic Association ("NCAA") is a voluntary, unincorporated association of 1,056 members, including four-year colleges and universities, conferences, associations, and other educational institutions. Members of the NCAA are located in each of the United States.

Among the purposes of the NCAA are these: 1) "to initiate, stimulate and improve intercollegiate athletics programs for student-athletes;" 2) "to uphold the principle of institutional control of, and responsibility for, all intercollegiate sports in conformity with the constitution and bylaws of this Association;" 3) "to encourage its members to adopt eligibility rules to comply with satisfactory standards of scholarship, sportsmanship and amateurism;" 4) "to formulate ... and publish rules of play governing intercollegiate athletics;" 5) "to supervise the conduct of, and to establish eligibility standards for, regional and national athletics events;" 6) "to legislate, through bylaws or by resolutions of a Convention, upon any subject of general concern to the members related to the administration of intercollegiate athletics[;]" and 7) "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 intercollegiate athletics and professional sports." NCAA Const. Secs. 1.2 and 1.3.1. The Association is also entrusted with the responsibility of promoting the opportunity for competitive

equity among its member institutions. Id. Sec. 2.7

At the annual convention, the member institutions of the NCAA enact legislation dealing with athlete recruiting, eligibility, financial aid, admissions, and other matters. All NCAA legislation must be adopted by a vote of the active members. Id. Sec. 5.01.1. NCAA legislation consists of both substantive rules and a procedural enforcement program. As a condition of membership, each institution is obligated to apply and enforce all NCAA legislation related to its own athletic programs. Id. Sec. 1.3.2. The NCAA Manual also specifically provides that: "the enforcement procedures of the Association shall be applied to an institution when it fails to fulfill this obligation." Id.; see also NCAA v. Tarkanian, 488 U.S. 179, 183, 109 S.Ct. 454, 457, 102 L.Ed.2d 469 (1988).

Whenever an alleged rules violation is reported to the NCAA, the matter is handled pursuant to the enforcement program. The enforcement program is administered by the Committee on Infractions, which establishes investigation procedures that must later be approved by the NCAA Council and the full membership of the NCAA. The Manual details the procedures that must be followed in processing an infractions case. NCAA Bylaws 19, 32.

The first step in the process is for the enforcement staff to notify the institution in question that the NCAA is making a preliminary inquiry into the institution's athletics policies and practices. NCAA Bylaw If the enforcement staff determines that a possible rule violation has occurred, it sends an official inquiry letter to the chief executive officer of the institution. The official inquiry must include a statement of the NCAA rule alleged to have been violated and the details of each separate allegation. The enforcement staff must also provide the institution and other involved individuals with the names of the principals involved and the names, addresses and telephone numbers of any people contacted during the NCAA investigation. The institution is required to notify past or present staff members or prospective, past, or present student-athletes who may be affected by the charges that they have the opportunity to submit any information they desire to the Committee and that they and their personal legal counsel may appear before the Committee. The institution is also required to investigate the charges and to indicate whether it feels that the allegations are substantially correct. It may also submit written evidence to support its response to the official inquiry. See NCAA Bylaw 32.5.

After the institution has submitted its written response to the official inquiry in a case involving a major violation, the enforcement staff must "prepare a summary statement of the case that indicates the status of each allegation and identifies the individuals upon whom and the information upon which the staff will rely in presenting the case." The summary is presented to the Committee, the institution, and all other affected individuals before the Committee hearing. NCAA Bylaw 32.5.10(a). The institution and affected individuals and their legal counsel are permitted to review any memoranda or documents upon which the enforcement staff will rely in the presentation of its case, but only at the NCAA national office. NCAA Bylaw 32.5.10(b).

Prior to the Committee on Infractions hearing, prehearing conferences are held with the NCAA staff, the institution and all affected individuals and their legal counsel. At those meetings, the NCAA staff is required to provide all of the information upon which it intends to rely at the hearing. All involved parties review the relevant documents. Areas of factual dispute are identified. Unsupported allegations may be withdrawn and the institution and affected individuals can determine whether they need to conduct any further interviews in order to supplement their responses to the official inquiry. NCAA Bylaw 32.5.10(c).

The Committee on Infractions hearing consists of a detailed presentation of the case by the enforcement staff followed by a response from the institution and any affected individuals (or their legal representatives) who desire to respond. NCAA Bylaw 32.6.5. After the hearing, the Committee members privately make their determinations of fact, determine appropriate corrective action, if any,

and prepare their written report. NCAA Bylaws 32.6.6, 32.7. The institution is entitled to appeal the Committee's findings of fact and any corrective action taken against it to the NCAA Council. NCAA Bylaw 32.9

In 1991, the Nevada legislature enacted the Statute. Essentially, the Statute requires any national collegiate athletic association 3 to provide a Nevada institution, employee, student-athlete, or booster who is accused of a rules infraction with certain procedural due process protections during an enforcement proceeding in which sanctions may be imposed. 4 Many of the procedures required by the Statute are not included in the NCAA enforcement program. For example, the NCAA does not provide the accused with the right to confront all witnesses, the right to have all written statements signed under oath and notarized, the right to have an official record kept of all proceedings, or the right to judicial review of a Committee decision.

The Statute provides that a state district court may enjoin any NCAA proceeding that violates the statutory provisions. Furthermore an aggrieved institution which raises a successful challenge under the Statute is entitled to costs, reasonable attorney's fees, and compensatory damages equal to "100 percent of the monetary loss per year or portion of a year which is suffered ... as a result of a penalty imposed in violation of [the Statute]." Nev.Rev.Stat. Sec. 398.245. Finally, the Statute prohibits an association from impairing the rights or privileges of membership of any institution as a consequence of any rights granted by sections 398.155-398.255. Id. Sec. 398.235(3). Thus, the NCAA...

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