NCAA v. TARKANIAN

Print this transcript Transcript: 

ORAL ARGUMENT OF REX E. LEE ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument first this morning in Number 87-1061, National Collegiate Athletic Association v. Jerry Tarkanian.

Mr. Lee, you may proceed whenever you're ready.

Mr. Lee: Mr. Chief Justice, and may it please the Court, the question in this case is whether the National Collegiate Athletic Association's enforcement of its own standards, among its own members, is state action for Fourteenth Amendment and Section 1983 purposes.

In the early 1970's, the NCAA began an investigation of certain alleged practices at the University of Nevada at Las Vegas, some of which involved its basketball program.

As is the case with all NCAA investigations, the primary responsibility for the investigation rests with the University, and both the University and the Association conducted their own investigations.

The Association's counsel ultimately affirmed some 38 of its Infractions Committee's findings of violations, 10 of which involved the Respondent, who had become the head coach after the time that the Association first received complaints about UNLV.

As part of the prescribed remedy, UNLV was directed to show cause why three persons should not be suspended from coaching and any involvement with intercollegiate athletic activities.

Those three persons were the former head coach, the Respondent, and an assistant coach.

As for the former coach, the suspension was to be permanent, and as to the other two, the suspension was to be for two years.

Unidentified Justice: The suspension from what, Mr. Lee?

Mr. Lee: From coaching, and from all involvement in booster activities and other intercollegiate activities.

It would not have affected his University appointment.

Unidentified Justice: So the NCAA said in effect to UNLV,

"You must suspend so-and-so for a certain period of time? "

Mr. Lee: Not quite.

What it said was... it was an order to show cause why they should not do so.

And that is an important point, actually, Mr. Chief Justice.

Pursuant to that order to show cause, the President of the University assigned a Vice President as hearing officer, who held a hearing and then as a result of that hearing identified for the President three options that were available to the University, and according to the Hearing Officer's recommendation, those three options were the following:

The first was that the university could impose the recommended discipline, which would involve the two-year suspension.

A second was to refuse to do so, and according to the Hearing Officer, this ran the risk that the NCAA might impose other sanctions, some of which might be more severe.

And the third was to withdraw from NCAA membership.

Faced with those choices, the University opted to impose the suspension, which has never been carried out, because of an injunction which was ultimately affirmed by the Nevada Supreme Court, whose state action holding is now before this Court for review.

The Respondent does not contend... nor could he... that the NCAA itself is a governmental entity.

Rather, his argument--

Unidentified Justice: Mr. Lee, did the injunction run against he NCAA, as well as against UNLV?

Mr. Lee: --It ran against UNLV.

Unidentified Justice: Well, then how did NCAA get in the case?

Mr. Lee: Initially, they were not.

The case went up to the Nevada Supreme Court a first time, and the Nevada Supreme Court held that the NCAA was an indispensable party... so it was back, the NCAA was joined, and then it went up a second time.

Unidentified Justice: And the Nevada Court made that at the instance of the Association?

Mr. Lee: Appearing as amicus, that is--

Unidentified Justice: Who said that they were an indispensable part.

Mr. Lee: --That is correct, that is correct.

But we were not joined, initially.

We contended that we should be, and ultimately the Nevada Supreme Court agreed with us on that issue, the first time.

Unidentified Justice: But why did you contend that NCAA was indispensable, Mr. Lee?

Mr. Lee: Well, because the judgment that would ultimately come out of the court would necessarily have an important effect... after all, it was our determination that that was the appropriate remedy for the violation of our rules.

Unidentified Justice: Well, it's a little strange to be arguing in a way that NCAA was a necessary party to the action, and yet should not be considered in any way as State actor.

Is there any tension there?

Mr. Lee: No, no, I think not, because of what this Court said in 1982 about what are the standards for determining state action, and they are not the same standards as for determining whether a party is indispensable.

And those two... there are two requirements, that this Court announced in Lugar v. Edmonson Oil.

The first is that you look to the substantive rule that is being enforced in the particular case and inquire into whether that rule has its source in some State authority.

The second is whether there is sufficient interlinking, intermeshing, between them.

Unidentified Justice: Do you think that Lugar was intended to be the definitive statement of how we determine state action in all cases, even those of perhaps delegation or joint participation?

Mr. Lee: Well, of course, Justice O'Connor, you know much about... much more about what the Court had intended.

Unidentified Justice: Well, you're arguing that that is now the definitive rule.

I'm not sure that I can read Lugar that way, and I'm not sure whether those tests should be applied in all situations of delegation.

Mr. Lee: In our argument, is that they should.

Maybe not or its face... it appears to say all cases, and it announced two requirements, and it said that the difference between the two requirements are demonstrated... is demonstrated by two of the Court's landmark cases.

Moose Lodge, which demonstrates the rule of decision, or the rule of conduct, requirement, and Flagg Brothers, which demonstrates the State actor requirement.

And both of those, of course, reach far beyond the context in Lugar, and far beyond the context in this case, and therefore in our view it is a general rule.

But you don't have to go that far... excuse me.

Unidentified Justice: Well, what if NCAA said, for example, we want drug testing of all participating athletes on a regular basis, and you either do that, or you run the risk of the school being dropped out of the NCAA.

Now, is there any... do we have exactly the same kind of an issue that we have here?

Mr. Lee: Not quite.

If, as I suggested, the first line of defense, Lugar applies across the board for all cases, then it would be the same.

But I... in any event, those two tests, and particularly the first one, ought to apply in a case such as this, and here is why.

Even if it is not the principled, of the two-part, across the board test in all cases that we take, at the very least, when the sole issue in the case is whether a particular rule of conduct has been violated, as it has in this case... the NCAA's standards for eligibility and recruitment... then, at the very least when that's the sole, ultimate issue in the case, then one of the relative inquiries, on a case-by-case approach... one of the most important inquiries... ought to be whether the rule of conduct in that particular case had a governmental source or a non-governmental source.

Unidentified Justice: Well, Mr. Lee, how did the rule become applicable to Mr. Tarkanian?

Sure, it's an NCAA rule, but it also becomes a school rule--

Mr. Lee: No--

Unidentified Justice: --because they joined.

They're a member.

They say,

"we agree to abide by the NCAA rules. "

Mr. Lee: --That's correct.

Unidentified Justice: So this is now the rule for the institution.

Otherwise, how did Tarkanian... how did he get in trouble with the University?

He violated one of their rules.

Mr. Lee: Yes.

The NCAA is composed in part of public universities and in part of State universities.

But it cannot be the rule, I submit, simply because you have some State universities and some private universities, that it thereby becomes, that it thereby becomes--

Unidentified Justice: Well, then, you don't... do you find something erroneous in what I said, that it became a University rule when the University joined and said "We agree"?

Mr. Lee: --It really was not a University rule.

It remained--

Unidentified Justice: Well, if it wasn't, how did they have the nerve to suspend Mr. Tarkanian?

Mr. Lee: --They have the nerve to suspend Mr. Tarkanian because they decided on the basis of their exercise of their own judgment that of the three options available to them, that was the one that was preferable to them.

It was not the NCAA that suspended Tarkanian.

Unidentified Justice: It certainly wasn't.

It was the University.

Mr. Lee: That is correct.

Unidentified Justice: For violating its rule.

Mr. Lee: No, for violating... the University suspended Tarkanian not for violating its rule, but rather because it determined that, of the three options that were available to it, as a result of the order to show cause, the one that was most in the University's interest was the option to impose the recommended, the recommended suspension.

Unidentified Justice: Even if they did... even if the University suspended him for violating a University rule, that might make the University a State actor, but I don't know why that makes NCAA a State actor.

What relief does the Nevada court grant against the NCAA?

Mr. Lee: The relief was against the University and not against the NCAA.

Unidentified Justice: Well, what business has the NCAA got here?

Well, there's an injunction against the NCAA for taking any action against the University.

Mr. Lee: That is correct.

Unidentified Justice: Well, then, there was relief granted.

Mr. Lee: Well, excuse me, in that sense there was.

That is correct.

Unidentified Justice: The NCAA is prohibited from taking any action against UNLV.

Mr. Lee: That is correct.

Unidentified Justice: And you also have to pay its fees, don't you?

Mr. Lee: Ninety percent of them, 90 percent of the--

Unidentified Justice: Mr. Lee, I'm a little confused about what was the basis for the firing here.

It seems to me if the man has an employment contract with the University, the University can't say we're firing you for breaking somebody else's rules.

He must have violated some rule that was imposed by virtue of his employment with the University?

Mr. Lee: --The rules that he violated were the NCAA's rules of eligibility and recruitment.

Unidentified Justice: Well, how did they become applicable to him?

I assume they became applicable to him through his employment contract with the University.

Mr. Lee: They became applicable to him only because the NCAA prescribed

"We have determined that these violations have occurred. "

And the University was ordered to show cause why as a result of those violations he should not be suspended.

But it was the University--

Unidentified Justice: But he must have had an obligation to someone not to commit those violations.

To whom did he have that obligation?

Mr. Lee: --Yes, he had an obligation to his University, in the sense that the University was jointly responsible with the NCAA for seeing to it that they did agree that they would enforce those rules.

But my point is this: that if you take seriously what this Court said in Lugar, about looking to the source of the substantive rules, this is the classic case in which, in which that requirement applies.

If you look to all of the factors that might enter into whether there is or is not state action, the only issue in this case, at the end of the day, the only substantive issue, is whether the rules, some rules have been violated.

Those rules are the eligibility rules that have been set by the University, that have been set by the NCAA, and which have become the University's rules only in the sense that the University is one of those members.

But the University did not have to dismiss him.

There were other options that were available to them... and particularly, particularly in a case where the only issue, the only substantive issue, is the issue whether or not particular rules have been violated, then the source of those rules ought to be relevant to the state action issue.

Unidentified Justice: Take action against him.

Mr. Lee: Excuse me?

Unidentified Justice: The University decided to suspend him.

Mr. Lee: That is correct, but that was--

Unidentified Justice: And they decided, well, this is one or our rules, that we're going to insist he abide by.

Mr. Lee: --This case in that respect, Justice White, really follows a fortiori from this Court's holding in Blum v. Yaretsky.

In that instance, what you had was a decision to transfer patients from a lesser-care facility... excuse me, from a higher-care facility to a lesser-care facility.

And the decision was made... the rule of conduct, or the rule of decision in that particular instance, if you will, was made by private individuals.

But once those private individuals, the doctors, made that decision, it had an effect on important Governmental interests.

The Governmental decision as to how to treat these individuals, the Medicaid program is a Governmental program, but the relevant decisions were in effect made by the private entities... including the amount of money that would be spent by Government.

Nevertheless, what this Court said was that all the Government had done was to respond to those private decisions, and that is exactly what we have in this instance.

You have the NCAA having set its rules, and its members then responding to the termination of those rules violations, and that we submit, under Blum v. Yaretsky and under Lugar, is not state action.

Unidentified Justice: You have a State arbitrator who says that there are three choices, but that the only viable choice is to allow the University's delegation to the NCAA of the power to act as ultimate arbiter of these matters.

And the President of the University adopts that determination.

These are State officials who announce that the NCAA must be the ultimate arbitrator.

Do we not give some deference to that conclusion by the State officials as a matter of State law?

Mr. Lee: As a matter of State law, of course you give deference to them, Justice Kennedy.

But the issue here is whether the state action rules, which are of course constitutional determinations, and interpretations of Section 1983 by this Court... and what the State did in that instance was simply to determine, yes, we became members of the NCAA.

When we become members of the NCAA, we determine that we will abide by their rules.

But they also identified that they had other options.

Unidentified Justice: Were their conclusions correct?

Was the arbitrator correct in what he identified as alternative two?

Mr. Lee: Yes, I think he was... yes, he was.

Alternative two was that they could have said no, and they could have... then other sanctions would have had to be--

Unidentified Justice: He was correct that the University's only real option was to recognize NCAA as the ultimate arbiter?

Mr. Lee: --Well, I don't know that he identified that as the only real option.

It was his recommended option.

But the... I think this point should be made very clear: UNLV did not have to fire Tarkanian.

That was their decision, their option, and they made it from a choice of those three.

Moreover, this first requirement that the Court established in Lugar, in any event, is absent in this case, and regardless of how far it extends, it should be applicable in a case, in a case such as this.

I think that key to decision is to draw a careful decision... excuse me, draw a careful distinction between what the NCAA did on the one hand, and what UNLV did on the other hand.

Unidentified Justice: Mr. Lee?

Mr. Lee: Yes?

Unidentified Justice: Let me return for a moment to this line of questioning... what does Mr. Tarkanian lose if you win here?

Mr. Lee: Well, that is... we believe that if we win, this Court, pursuant to the exercise of its equity powers, does have the authority simply to dissolve the injunction.

Unidentified Justice: Even the injunction against UNLV?

Mr. Lee: Well, we believe that is basically what happened in Moose Lodge, and that this Court would have the authority to do that.

But that is not a central part of our case, and the Court... in the event that the Court disagrees, then that is basically UNLV's problem.

Because this will be the status of the case in the event that--

Unidentified Justice: So what does Mr. Tarkanian lose, if you win?

Mr. Lee: --At the present time, he has an injunction against UNLV that--

Unidentified Justice: And there's no reason that he won't keep on having that, even if you win here.

Mr. Lee: --And in that event... in the event that that happens, then here will be the status of the case.

There is still outstanding an order to show cause applicable to the University of Nevada.

And at that point, there will still be three options available to the University of Nevada, except that the third one will have changed.

And the third one will be to go back to the Nevada State Supreme Court, to go back to the Nevada court, and attempt to persuade them that the injunction should be dissolved because it was based on a premise which the United States Supreme Court has now declared to be faulty.

Unidentified Justice: If you win, it means that... you represent the NCAA, I take it?

Mr. Lee: Yes.

Unidentified Justice: You want the injunction against the NCAA dissolved?

Mr. Lee: That is correct.

Unidentified Justice: And if that's dissolved, it means you can take action against the University.

Mr. Lee: That is correct.

Unidentified Justice: And you may or may not?

Mr. Lee: That is correct.

Unidentified Justice: But the University isn't a party here.

Only Mr. Tarkanian is a party.

Mr. Lee: That is right.

The University is not a party to the action before this Court.

And as a consequence, it will be just as Justice White said.

We can then take action against the University.

Unidentified Justice: Mr. Tarkanian, in Mr. Tarkanian's suit, he got an injunction issued against the NCAA.

Mr. Lee: That is correct.

And that, of course, can be dissolved.

And in the event that that happens, then the University--

Unidentified Justice: Was it at his request that that court enjoined the NCAA from doing anything to UNLV, or was it at