Regents of University of Minnesota v. National Collegiate Athletic Ass'n

Decision Date02 August 1977
Docket NumberNo. 77-1028,77-1028
Citation560 F.2d 352
CourtU.S. Court of Appeals — Eighth Circuit

John J. Kitchin, Kansas City, Mo. (argued), and George H. Gangwere, Kansas City, Mo., and Wright W. Brooks, Minneapolis, Minn., on brief, for appellant.

Joe A. Walters, Minneapolis, Minn. (argued), and Thomas A. Keller, III, R. Joel Tierney, and Henson & Efron, Minneapolis, Minn., on brief, for appellees.

Joseph M. Goldberg, Minneapolis, Minn., for amici Thompson and Saunders.

David C. Forsberg and Peter W. Sipkins, St. Paul, Minn., for amicus Winey.

Before VAN OOSTERHOUT, Senior Circuit Judge, and BRIGHT and WEBSTER, Circuit Judges.

VAN OOSTERHOUT, Senior Circuit Judge.

This is an interlocutory appeal, pursuant to 28 U.S.C. § 1292(a)(1), from an order of the United States District Court for the District of Minnesota granting plaintiff Regents of the University of Minnesota, a corporate entity commonly and herein referred to as the University, and certain University personnel a preliminary injunction directing the defendant National Collegiate Athletic Association (the Association) to lift an indefinite probation imposed on the University's athletic teams and to refrain from imposing further sanctions on the University until the legal dispute between the parties is resolved on the merits.

The dispute arises out of the University's refusal to declare student basketball players Michael Thompson, David Winey and Philip Saunders ineligible. The University, predicating its action primarily upon 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), maintains in essence that it could not declare the students ineligible consistently with its alleged constitutional duty to afford the students due process of law and that the Association, in seeking to require the University to declare the students ineligible and in imposing sanctions upon the University because it refused to do so, has interfered with that duty. 1 The association maintains, inter alia, that the University could have declared the students ineligible consistently with due process and that it was contractually bound to do so under certain Association rules.

The district court, in an opinion reported at 422 F.Supp. 1158 (D.Minn.1976), concluded that the University had shown a strong probability of success on the merits and that it would be irreparably harmed if a preliminary injunction were not issued. It accordingly issued the preliminary injunction, which the Association now appeals.

Because we disagree with the district court's conclusion that the University has shown a strong probability of success on the merits, we dissolve the preliminary injunction.


The pertinent facts are largely undisputed and commendably documented. They are, however, extensive. We emphasize at the outset that our review of the record serves only to facilitate our determination of the likely outcome when the matter is ultimately tried and is not intended as a complete and definitive recitation of the controlling facts. The district court on remand will of course retain its normal factfinding authority, including the authority to receive such evidence, whether or not in the present record, as the parties may properly offer.

A. The NCAA and pertinent NCAA rules.

The NCAA is an unincorporated association of approximately 830 members. Its active members are four-year colleges and universities located throughout the nation, of which approximately half are governmentally supported. Association policies are established by its members at annual conventions and are directed between conventions by an elected eighteen-member Council. The Association publishes annually a manual which includes, inter alia, its constitution and bylaws, official interpretations thereof and enforcement procedures. The University of Minnesota is a member institution.

The Association does not itself declare student-athletes ineligible, but its rules do require member institutions to take such action in specified circumstances. Under Association constitution 4-2-(a), members agree "(t)o administer their athletic programs in accordance with the Constitution, the Bylaws and other legislation of the Association(.)" Official interpretation 18, immediately following this constitutional provision in the manual, states:

If a student-athlete is ineligible under the terms of the Constitution, Bylaws or other legislation of the Association, the institution shall be obligated immediately to apply the applicable rule to the student-athlete and withhold him from all intercollegiate competition. Subsequent to this action, the member institution may appeal to the NCAA Council, or a subcommittee designated by the Council to act for it, if the member concludes that the circumstances warrant restoration of the student-athlete's eligibility.

Under official enforcement procedure 9, a member's failure "to take appropriate action" on eligibility matters subjects the member to disciplinary sanction.

The specific eligibility standards of direct relevance here are those set out in NCAA constitution 3-1-(a)-(3) 2, 3-1-(g)-(6) 3, and 3-4-(a) 4, all of which concern impermissible payments and other benefits to student-athletes. Insofar as pertinent, each has remained in effect at all times material.

B. The University's investigation and Thompson's complimentary ticket sale.

The impasse ultimately reached between the parties was the result of a long series of events essentially beginning with an official "Letter of Inquiry" dated July 21, 1975, from the Association's Committee on Infractions to University President C. Peter Magrath. The letter, following a wide-ranging preliminary investigation by the Association into the University's basketball program, forwarded a list of 98 alleged violations of NCAA rules and solicited the University's response thereto.

The University promptly retained the services of an attorney for the purpose of conducting its own investigation, advising him that there were "absolutely no restraints on (his) inquiry" and specifically instructing him to report any discovered infractions, whether or not included in the Association's allegations. Also participating in the University's investigation was its Assembly Committee on Intercollegiate Athletics (ACIA), a faculty committee charged with overseeing intercollegiate athletics. There appears to be no dispute that the University's investigation was a thorough one.

On September 25, in the course of the investigation, Michael Thompson admitted he had sold his two 1974-75 complimentary season tickets, with a face value of $78, for a price of $180. Subsequent investigation revealed that he had previously signed a statement that complimentary ticket sales were a violation of Big Ten Conference rules and that the sanction for violation was ineligibility. 5 In October, upon being informed that the sale might be contrary to NCAA and Big Ten rules, Thompson donated $180 to a University scholarship fund. 6 The Thompson ticket sale was not among the violations enumerated in the July 21 Letter of Inquiry.

By letter dated November 26, the ACIA informed Thompson that his ticket sale appeared to violate NCAA rules and that he could appear before an ACIA hearing panel; the letter advised that ACIA "ha(d) specifically excluded recommending ineligibility from participation in basketball (the sanction mandated by the NCAA C(onstitution) 3-1-(a)) as a possible punishment." On the advice of an ACIA faculty member that it would be pointless for him to attend the hearing, Thompson chose not to do so.

Following some sort of hearing on December 5, the ACIA issued its findings on the Thompson matter on December 9. Noting his own admission of sale, ACIA determined: "This clearly violates the principle that an amateur athlete should not profit from his or her athletic ability. The NCAA regulations are quite specific on this point: they require that the athletes involved be declared ineligible to compete." Nevertheless, the ACIA concluded that, unless evidence was adduced showing the violation to have been "far more flagrant than does the present evidence", the penalties to be imposed would be restricted to restitution and withdrawal of the complimentary ticket privilege. The ACIA emphasized that Thompson had admitted the sale, that the practice was widespread, and that primary responsibility for the practice should be borne by the members of the coaching staff, who "allowed representatives of athletic interests into the locker room to transact sales or directly involved themselves in such sales." It observed that other students, equally culpable but more circumspect when questioned, were not subject to discipline. In sum, it concluded that ineligibility was a grossly unfair sanction.

C. The University's response to the Letter of Inquiry.

In contemplation of a December 18, 1975, hearing before the Association's Committee on Infractions, the University submitted its formal response to the July 21 Letter of Inquiry. The response, which consumed 546 pages, disclosed approximately 33 possible infractions of Association rules in addition to those originally cited by the Association, among them Thompson's complimentary ticket sale. The ACIA findings with respect to Thompson were apparently included as a supplement to the response. The remainder of the response is pertinent only insofar as it concerns David Winey and Philip Saunders.

The response advised that Winey had on two occasions in 1974-75, the first through the arrangements of assistant basketball coach Kevin Wilson, been transported to northern Wisconsin by Paul Johnson, a member of a University basketball booster group, and was there provided with meals, lodging and entertainment at a cabin owned by Johnson. The response further advised that Johnson had on occasion extended similar...

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