The law firm of Morgan and Morgan, claims to have recovered $5 billion for their clients, and last year they claim they successfully resolved 25,000 cases. (http://bit.ly/M_Mresults) However, their latest case may be their toughest. At a press conference today, it was confirmed that Morgan and Morgan will be filing a lawsuit against the National Collegiate Athletic Association (NCAA). The lawsuit alleges that several University of Louisville basketball players' rights to due process were violated by the NCAA. (http://bit.ly/Louisvillelawsuit) Similar issues involved in this lawsuit have already been litigated in court, and have already failed, and will likely fail again.
The Fourteenth Amendment Only Applies to State Actors
The basis of the claims being alleged in this latest lawsuit stem from a violation of due process under the fourteenth amendment. The fourteenth amendment of the Constitution reads in part that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
As a general matter, the protections of the 14th amendment do not extend to private conduct abridging individual rights. Burton v. Willimington Parking Authority, 365 U.S. 715, 722 (1961) It has also been established that individuals and corporations may only be held liable for violations of the 14th amendment, if those individuals and corporations act under the color of state law. United States v. Classic, 313 U.S. 299,326 (1941); Shelley v. Kramer, 334 U.S. 1, 13 (1948); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974). Chief Justice Rehnquist even went so far as to hold that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." DeShaney v. Winnebago County Dep't of Social Sen's., 489 U.S. 189, 195 (1989)
The NCAA is not a State Actor
So is the NCAA a state actor, or acting under the color of state law? The simple answer is no. In 1988 the United States Supreme Court took up this matter in the case of Jerry Tarkanian. National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 179 (1988). Tarkanian was accused of 38 violations by the NCAA, and was subsequently fired for such violations. Id. Tarkanian filed suit alleging the NCAA violated the Due Process Clause of the 14th amendment. Id. The United States Supreme Court ruled that UNLV acting under the guidance of the NCAA did not constitute a state action.
The primary reason this newest claim brought against the NCAA will fail is on the principle of "stare decisis." What does stare decisis mean? It is the legal principle which essentially states that legal precedent will rule. In other words, as noted above, the United State Supreme Court has already evaluated the issues alleged in this newest complaint filed by Morgan and Morgan. Therefore, any court would be required to follow this precedent. Perhaps there are creative ways to distinguish the two cases, but likely any minor distinguishing characteristics would fall on deaf ears.
So legally how can progress be made to change the seemingly limitless power of the NCAA? There are two possible paths that may be successful. The first, which has already been successfully litigated, is the Ed O'Bannon case. What was different about this case? Ed O'Bannon did not allege that the NCAA violated the consistution. Instead, it was an antirturst claim which alleged that the NCAA violated the Sherman Act. The Sherman Act does apply to individuals and corporations. As such, O'Bannon was successful.
The other path which may lead to limiting the NCAA's enormous power? Alleging the NCAA has violated a constitutional amendment that has not been decided by the United States Supreme Court. I have located numerous lawsuits that have alleged that the NCAA violated either the 1st amendment, or the 14th amendment. Therefore, any court who would hear a case brought alleging a violation of such amendments would be required to rule that the NCAA is a state actor. However, if a complaint were to be filed alleging a violation of the the 13th amendment, a court may have the ability to distinguish the ruling in the Tarkanian case. The issue with the 13th amendment would be 1) proving that the NCAA structure essentially creates the essence and badges of slavery and 2) establishing that there is a private right of action available under the 13th amendment.
As such, it appears the NCAA has created a structure nearly impervious to any claims alleging a violation of the constitution. If there is to be success in limiting the NCAA's power then any lawsuits likely must allege violations which are applicable to businesses and individuals, not state actors.