Be Careful What You Wish For: Trump's Order Could Strip the NCAA of a 30-Year Legal Protection

Good morning, and thanks for spending part of your day with Extra Points.

I’ve already written a bit about the Trump administration’s latest executive order on college sports. I don’t think it’s practical or particularly good politics, and I don’t expect it to solve any meaningful problems for the NCAA. But I am, of course, just a journalist. I’m not a lawyer or constitutional scholar.

Luckily, we know some of those constitutional scholars. Regular EP contributors Dr. Neal Ternes (Northern Illinois), Joe Sabin (Southeastern Louisiana) and Sam Ehrlich (Boise State) have a guest post today which suggests that this order could actually create an even bigger constitutional issue for college sports.

I’ll turn the time over to them:

You’re probably already familiar with the latest foray by President Donald Trump into college sports.  As a refresher, Trump held a college sports summit at the White House on March 6 featuring several Republican lawmakers, former coaches, NCAA leaders, conference commissioners, and Cody Campbell where attendees bemoaned the flood of litigation challenging rules regulating player movement, eligibility, and compensation and urged the government to intervene so those same NCAA and conference leaders could reestablish order.  Then, on April 3, the President signed an executive order that purported to use the threat of removing federal funding as an enforcement mechanism for the NCAA’s rules.  Industry insiders quickly noted that the order is unconstitutional and will very likely be struck down in court if it is enforced.

However, in their quest to enlist the federal government in solving the antitrust issues in college sports, NCAA leaders and conference commissioners may be creating new Constitutional issues that will similarly undermine the restrictions they are trying to enforce.

To explain why, we need to talk about state action. 

The protections/prohibitions of the U.S. Constitution only apply to entities that are part of the government, also known as state actors.  This includes public universities and government agencies.  For example, private entities do not owe the people freedom of speech protections and thus can (and frequently do) fire employees for sharing political speech. 

However, a privately operated entity may be said to be a state actor in certain circumstances, meaning the constitution applies to the actions they take while working with the state.  The test for when a private entity becomes a state actor is notoriously inconsistent and there is not single determining factor that guarantees a private actor will be involved in state action; it’s generally a totality of circumstances that lead to such a determination. 

Generally, a private actor may be involved in state action when it enters into a joint economic enterprise with government for which both parties benefit, when its leadership includes government officials, and when its actions are directed by the government.

The NCAA, despite being comprised of multiple public institutions and having officials from public schools in its governing positions, is not a state actor.  That was solidified in a 1988 Supreme Court ruling, NCAA v. Tarkanian.  You may recall former UNLV men’s basketball coach Jerry Tarkanian who was suspended with a show-cause penalty after the NCAA found 38 rules violations in the program.  Tarkanian sued UNLV for violation of his Fourteenth Amendment right to due process and the NCAA intervened.  The Court ruled 5-4 for the NCAA, saying that the association was not operating under the color of any single state law when it sanctioned Tarkanian and that UNLV was not using its power as a state actor to enforce NCAA rules.  

That decision has been foundational to the legal status of the NCAA for over 30 years, giving the association blanket immunity to sanction coaches, schools, and athletes without due process, to regulate speech in ways that might otherwise violate the First Amendment, and to operate without adhering to Title IX.  It is hard to exaggerate exactly how essential being considered a private entity for legal purposes is to the NCAA’s current business model. 

But that also makes Trump’s order a problem.