College Athletes and Due Process Protection: What's Left After National Collegiate Athletic Association v. Tarkanian?
The purpose of this article is to examine whether college students should be entitled to constitutional due process before being deprived of their athletic eligibility. Contrary to the Supreme Court's holding in Tarkanian, the author contends that traditional arguments in support of constitutional protection for college athletes are still compelling. In assessing Tarkanian and other cases impacting this issue, the author will discuss some inconsistencies between court opinions and the realities of big time college sports. These inconsistencies ultimately disadvantage athletes and buttress the NCAA's unbridled regulatory authority over intercollegiate athletics. For example, courts have tended to temper their discussion about the unfairness of NCAA procedures or rulings with the notion that members are always free to withdraw: that there are alternatives to the NCAA. Although this position is technically accurate because institutions are free to resign from the NCAA, it is inconsistent with the view of most experts that there is no viable alternative to the NCAA for successfully marketing athletic programs.
This article is divided into three principal parts. The first part examines the NCAA structure and function as it relates to individual student-athletes. Any discussion of constitutional due process protection for college athletes must be conducted in light of NCAA policy and rules that govern, almost exclusively, all aspects of intercollegiate sports.
The second part of the article focuses on state action, a prerequisite for successfully invoking the due process protections of the fourteenth amendment. It considers popular arguments by student-athletes and others about when NCAA actions constitute state action and thereby subject them to constitutional scrutiny. Of course, any discussion of the state action doctrine requires a close examination of the Tarkanian decision.
The third part investigates the controversy of whether student-athletes have a constitutional property interest in maintaining their intercollegiate eligibility. After a judicial finding of state action, traditional due process analysis requires plaintiffs to demonstrate that they were deprived of a property interest, something more substantial than a “unilateral expectation” to a benefit.
In the conclusion, the author advocates judicial intervention on behalf of student-athletes embroiled in eligibility disputes with the NCAA. The author suggests that the Court incorrectly decided Tarkanian and that serious consequences may result. In addition, the author posits that student-athletes possess a property interest in their athletic eligibility for purposes of successfully invoking the due process clause of the fourteenth amendment. The author also recommends legislative action, both on the federal and state level, and suggests that litigation based on state constitutions may be more effective for student-athletes.
John P. Sahl, College Athletes and Due Process Protection: What's Left After National Collegiate Athletic Association v. Tarkanian?, 21 Arizona State Law Journal 621 (1989).