Petitioner National Collegiate Athletic Association (NCAA), an
unincorporated association consisting of approximately 960 public
and private universities and colleges, adopts rules governing
member institutions' recruiting, admissions, academic eligibility,
and financial aid standards for student athletes. The NCAA's
Committee on Infractions conducts investigations, makes factual
determinations, and is expressly authorized to impose penalties
upon members that have violated the rules, but is not authorized to
sanction a member institution's employees directly. After a lengthy
investigation of allegedly improper recruiting practices by the
University of Nevada, Las Vegas (UNLV), a state university, the
Committee found 38 violations, including 10 by respondent
Tarkanian, UNLV's basketball coach. The Committee imposed a number
of sanctions upon UNLV, and requested it to show cause why
additional penalties should not be imposed if it failed to suspend
Tarkanian from its athletic program during a probation period.
Facing demotion and a drastic cut in pay, Tarkanian brought suit in
Nevada state court, alleging that he had been deprived of his
Fourteenth Amendment due process rights in violation of 42 U.S.C. §
1983. Ultimately, Tarkanian obtained injunctive relief and an award
of attorney's fees against both UNLV and the NCAA. Concluding that
the NCAA's conduct constituted state action for jurisdictional and
constitutional purposes, the Nevada Supreme Court affirmed in
relevant part.
Held: The NCAA's participation in the events that led
to Tarkanian's suspension did not constitute "state action"
prohibited by the Fourteenth Amendment, and was not performed
"under color of " state law within the meaning of § 1983. The NCAA
cannot be deemed to be a state actor on the theory that it misused
power it possessed by virtue of state law, since UNLV's decision to
suspend Tarkanian, while in compliance with the NCAA's rules and
recommendations, did not turn the NCAA's conduct into action under
color of Nevada law. Although it must be assumed that UNLV, as an
NCAA member and a participant in the promulgation of the
Association's rules, had some minor impact on the NCAA's policy
determinations, the source of the rules adopted by the NCAA is not
Nevada, but the collective membership, the vast majority of which
was located in other States. Moreover, UNLV's decision to
Page 488 U. S. 180
adopt the NCAA's rules did not transform them into state rules,
and the NCAA into a state actor, since UNLV retained plenary power
to withdraw from the NCAA and to establish its own standards. The
NCAA's investigation, enforcement proceedings, and consequent
recommendations did not constitute state action on the theory that
they resulted from a delegation of power by UNLV, because: UNLV
delegated no power to the NCAA to take specific action against any
University employee; UNLV and the NCAA acted as adversaries
throughout the proceedings; the NCAA enjoyed no governmental powers
to facilitate its investigation; and the NCAA did not -- indeed,
could not -- directly discipline Tarkanian, but could only threaten
additional sanctions against UNLV if the University chose not to
suspend its coach. Furthermore, even assuming the truth of
Tarkanian's argument that the power of the NCAA is so great that
UNLV had no practical alternative but to comply with the
Association's demands, it does not follow that the NCAA was
therefore acting under color of state law. Pp.
488 U. S.
191-199.
103 Nev. 331,
741 P.2d 1345,
reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BLACKMUN, SCALIA, and KENNEDY, JJ., joined.
WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL,
and O'CONNOR, JJ., joined,
post, p.
488 U. S.
199.
JUSTICE STEVENS delivered the opinion of the Court.
When he became head basketball coach at the University of
Nevada, Las Vegas (UNLV), in 1973, Jerry Tarkanian inherited a team
with a mediocre 14-14 record. App. 188, 205. Four years later, the
team won 29 out of 32 games, and placed third in the championship
tournament sponsored by the National Collegiate Athletic
Association (NCAA), to which UNLV belongs.
Id. at 188.
Yet, in September, 1977, UNLV informed Tarkanian that it was
going to suspend him. No dissatisfaction with Tarkanian,
Page 488 U. S. 181
once described as "the
winningest' active basketball coach,"
id. at 19, motivated his suspension. Rather, the impetus
was a report by the NCAA detailing 38 violations of NCAA rules by
UNLV personnel, including 10 involving Tarkanian. The NCAA had
placed the university's basketball team on probation for two years,
and ordered UNLV to show cause why the NCAA should not impose
further penalties unless UNLV severed all ties during the probation
between its intercollegiate athletic program and
Tarkanian.
Facing demotion and a drastic cut in pay, [
Footnote 1] Tarkanian brought suit in Nevada state
court, alleging that he had been deprived of his Fourteenth
Amendment due process rights in violation of 42 U.S.C. § 1983.
[
Footnote 2] Ultimately
Tarkanian obtained injunctive relief and an award of attorney's
fees against both UNLV and the NCAA. [
Footnote 3] 103 Nev. 331,
741 P.2d 1345
(1987) (per curiam). NCAA's liability may be upheld only if its
participation in the events that led to
Page 488 U. S. 182
Tarkanian's suspension constituted "state action" prohibited by
the Fourteenth Amendment and was performed "under color of" state
law within the meaning of § 1983. [
Footnote 4] We granted certiorari to review the Nevada
Supreme Court's holding that the NCAA engaged in state action when
it conducted its investigation and recommended that Tarkanian be
disciplined. 484 U.S. 1058 (1988). We now reverse. [
Footnote 5]
I
In order to understand the four separate proceedings that gave
rise to the question we must decide, it is useful to begin with a
description of the relationship among the three parties --
Tarkanian, UNLV, and the NCAA.
Tarkanian initially was employed on a year-to-year basis, but
became a tenured professor in 1977. He receives an annual salary
with valuable fringe benefits, and his status as a highly
successful coach enables him to earn substantial additional income
from sports-related activities such as broadcasting and the
sponsorship of products.
Page 488 U. S. 183
UNLV is a branch of the University of Nevada, a state-funded
institution. The University is organized and operated pursuant to
provisions of Nevada's State Constitution, statutes, and
regulations. In performing their official functions, the executives
of UNLV unquestionably act under color of state law.
The NCAA is an unincorporated association of approximately 960
members, including virtually all public and private universities
and 4-year colleges conducting major athletic programs in the
United States. Basic policies of the NCAA are determined by the
members at annual conventions. Between conventions, the Association
is governed by its Council, which appoints various committees to
implement specific programs.
One of the NCAA's fundamental policies
"is to maintain intercollegiate athletics as an integral part of
the educational program and the athlete as an integral part of the
student body, and by so doing, retain a clear line of demarcation
between college athletics and professional sports."
App. 80. It has therefore adopted rules, which it calls
"legislation,"
ibid., governing the conduct of the
intercollegiate athletic programs of its members. This NCAA
legislation applies to a variety of issues, such as academic
standards for eligibility, admissions, financial aid, and the
recruiting of student athletes. By joining the NCAA, each member
agrees to abide by and to enforce such rules.
The NCAA's bylaws provide that its enforcement program shall be
administered by a Committee on Infractions. The Committee
supervises an investigative staff, makes factual determinations
concerning alleged rule violations, and is expressly authorized
to
"impose appropriate penalties on a member found to be in
violation, or recommend to the Council suspension or termination of
membership. [
Footnote 6]"
In particular,
Page 488 U. S. 184
the Committee may order a member institution to show cause why
that member should not suffer further penalties unless it imposes a
prescribed discipline on an employee; it is not authorized,
however, to sanction a member institution's employees directly.
[
Footnote 7] The bylaws also
provide that representatives of member institutions "are expected
to cooperate fully" with the administration of the enforcement
program.
Id. at 97. The bylaws do not purport to confer
any subpoena power on the Committee or its investigators. They
state:
"The enforcement procedures are an essential part of the
intercollegiate athletic program of each member institution
Page 488 U. S. 185
and require full and complete disclosure by all institutional
representatives of any relevant information requested by the NCAA
investigative staff, Committee on Infractions or Council during the
course of an inquiry."
Ibid.
During its investigation of UNLV, the Committee on Infractions
included three law professors, a mathematics professor, and the
dean of a graduate school. Four of them were on the faculties of
state institutions; one represented a private university.
The NCAA Investigation of UNLV
On November 28, 1972, the Committee on Infractions notified
UNLV's president that it was initiating a preliminary inquiry into
alleged violations of NCAA requirements by UNLV. As a result of
that preliminary inquiry, some three years later, the Committee
decided that an "Official Inquiry" was warranted, and so advised
the UNLV president on February 25, 1976. That advice included a
series of detailed allegations concerning the recruitment of
student athletes during the period between 1971 and 1975. Many of
the allegations implicated Tarkanian. It requested UNLV to
investigate and provide detailed information concerning each
alleged incident.
With the assistance of the Attorney General of Nevada and
private counsel, UNLV conducted a thorough investigation of the
charges. On October 27, 1976, it filed a comprehensive response
containing voluminous exhibits and sworn affidavits. The response
denied all of the allegations, and specifically concluded that
Tarkanian was completely innocent of wrongdoing. Thereafter, the
Committee conducted four days of hearings, at which counsel for
UNLV and Tarkanian presented their views of the facts and
challenged the credibility of the NCAA investigators and their
informants. Ultimately, the Committee decided that many of the
charges could not be supported, but it did find 38 violations of
NCAA
Page 488 U. S. 186
rules, including 10 committed by Tarkanian. Most serious was the
finding that Tarkanian had violated the University's obligation to
provide full cooperation with the NCAA investigation. [
Footnote 8] The Committee's findings
and proposed discipline were summarized in great detail in its
so-called "Confidential Report No. 123(47)." App. 122-204.
The Committee proposed a series of sanctions against UNLV,
including a 2-year period of probation during which its basketball
team could not participate in post-season games or appear on
television. The Committee also requested UNLV to show cause why
additional penalties should not be imposed against UNLV if it
failed to discipline Tarkanian by removing him completely from the
University's intercollegiate athletic program during the probation
period. UNLV appealed most of the Committee's findings and proposed
sanctions to the NCAA Council. After hearing arguments from
attorneys representing UNLV and Tarkanian, the Council, on August
25, 1977, unanimously approved the Committee's investigation and
hearing process, and adopted all its recommendations.
UNLV's Discipline of Tarkanian
Promptly after receiving the NCAA report, the president of UNLV
directed the University's vice-president to schedule a hearing to
determine whether the Committee's recommended sanctions should be
applied. Tarkanian and UNLV were represented at that hearing; the
NCAA was not. Although the vice-president expressed doubt
concerning the sufficiency of the evidence supporting the
Committee's findings, [
Footnote
9] he concluded that,
"given the terms of our adherence to
Page 488 U. S. 187
the NCAA, we cannot substitute -- biased as we must be -- our
own judgment on the credibility of witnesses for that of the
infractions committee and the Council."
Id. at 75. With respect to the proposed sanctions, he
advised the president that he had three options:
"1. Reject the sanction requiring us to disassociate Coach
Tarkanian from the athletic program and take the risk of still
heavier sanctions,
e.g., possible extra years of
probation."
"2. Recognize the University's delegation to the NCAA of the
power to act as ultimate arbiter of these matters, thus reassigning
Mr. Tarkanian from his present position -- though tenured and
without adequate notice -- even while believing that the NCAA was
wrong."
"3. Pull out of the NCAA completely on the grounds that you will
not execute what you hold to be their unjust judgments."
Id. at 76.
Pursuant to the vice-president's recommendation, the president
accepted the second option and notified Tarkanian that he was
to
"be completely severed of any and all relations, formal or
informal, with the University's Intercollegiate athletic program
during the period of the University's NCAA probation."
Id. at 70.
Tarkanian's Lawsuit Against UNLV
The day before his suspension was to become effective, Tarkanian
filed an action in Nevada state court for declaratory and
injunctive relief against UNLV and a number of its officers. He
alleged that these defendants had, in violation of 42 U.S.C. §
1983, deprived him of property and liberty without the due process
of law guaranteed by the Fourteenth Amendment to the United States
Constitution. Based on a stipulation of facts and the testimony
offered by Tarkanian,
Page 488 U. S. 188
the trial court enjoined UNLV from suspending Tarkanian on the
ground that he had been denied procedural and substantive due
process of law. UNLV appealed.
The NCAA, which had not been joined as a party, filed an
amicus curiae brief, arguing that there was no actual
controversy between Tarkanian and UNLV; thus, the suit should be
dismissed. Alternatively, the NCAA contended that the trial court
had exceeded its jurisdiction by effectively invalidating the
enforcement proceedings of the NCAA, even though the Association
was not a party to the suit. Should a controversy exist, the NCAA
argued, it was a necessary party to litigate the scope of any
relief. Finally, it contested the trial court's conclusion that
Tarkanian had been denied due process. The Nevada Supreme Court
concluded that there was an actual controversy, but agreed that the
NCAA was a necessary party, and therefore reversed and remanded to
permit joinder of the NCAA.
University of Nevada v.
Tarkanian, 95 Nev. 389,
594 P.2d 1159
(1979).
The Lawsuit Against NCAA
Tarkanian consequently filed a second amended complaint adding
the NCAA. The defendants promptly removed the suit to Federal
District Court on the ground that joinder of the NCAA substantially
had altered the nature of the litigation. The District Court held,
however, that the original defendants had waived their right to
remove the suit when it was first filed, and therefore granted
Tarkanian's motion to remand the case to the state court. After a
4-year delay, the trial judge conducted a 2-week bench trial and
resolved the issues in Tarkanian's favor. The court concluded that
NCAA's conduct constituted state action for jurisdictional and
constitutional purposes, and that its decision was arbitrary and
capricious. It reaffirmed its earlier injunction barring UNLV from
disciplining Tarkanian or otherwise enforcing the Confidential
Report. Additionally, it enjoined the NCAA from conducting "any
further proceedings against the
Page 488 U. S. 189
University," from enforcing its show-cause order, and from
taking any other action against the University that had been
recommended in the Confidential Report. App. 34.
Two weeks after the trial court's opinion was entered, Tarkanian
filed a petition for attorney's fees pursuant to 42 U.S.C. § 1988.
Asserting that this was the first time Tarkanian had claimed relief
under § 1988, the NCAA again sought removal to Federal District
Court on the ground that the litigation had changed substantially.
When the university defendants declined to join the removal
petition, the NCAA contended that they should be realigned as
plaintiffs because they actually wanted Tarkanian to prevail. The
District Court, however, again ordered the litigation remanded, and
the Ninth Circuit agreed. App. to Pet. for Cert. A120. Even before
the Ninth Circuit ruled, the Nevada trial court had awarded
Tarkanian attorney's fees of almost $196,000, 90% of which was to
be paid by the NCAA. App. 41-42. The NCAA appealed both the
injunction and the fee order. Not surprisingly, UNLV, which had
scored a total victory except for its obligation to pay a fraction
of Tarkanian's fees, did not appeal.
The Nevada Supreme Court agreed that Tarkanian had been deprived
of both property and liberty protected by the Constitution, and
that he was not afforded due process before suspension. It thus
affirmed the trial court's injunction insofar as it pertained to
Tarkanian, but narrowed its scope
"only to prohibit enforcement of the penalties imposed upon
Tarkanian in Confidential Report No. 123(47) and UNLV's adoption of
those penalties."
103 Nev. at 343, 741 P.2d at 1353. The court also reduced the
award of attorney's fees. [
Footnote 10]
Page 488 U. S. 190
As a predicate for its disposition, the State Supreme Court held
that the NCAA had engaged in state action. Several strands of
argument supported this holding. First, the court assumed that it
was reviewing "UNLV's and the NCAA's imposition of penalties
against Tarkanian,"
id. at 335, 741 P.2d at 1347, rather
than the NCAA's proposed sanctions against UNLV if it failed to
discipline Tarkanian appropriately. Second, it regarded the NCAA's
regulatory activities as state action because "many NCAA member
institutions were either public or government supported."
Ibid. Third, it stated that the right to discipline a
public employee "is traditionally the exclusive prerogative of the
state" and that UNLV could not escape its responsibility for such
disciplinary action by delegating that duty to a private entity.
Id. at 336, 741 P.2d at 1348. The court next pointed to
our opinion in
Lugar v. Edmondson Oil Co., 457 U.
S. 922,
457 U. S. 937
(1982), in which we held that the deprivation of a federal right
may be attributed to the State if it resulted from a state-created
rule and the party charged with the deprivation can fairly be said
to a state actor. Summing up its holding that the NCAA's activities
constituted state action, the Nevada Supreme Court stated,
"The first prong [of
Lugar] is met because no third
party could impose disciplinary sanctions upon a state university
employee unless the third party received the right or privilege
from the university. Thus, the deprivation which Tarkanian alleges
is caused by the exercise of a right or privilege created by the
state. Also, in the instant case, both UNLV and the NCAA must be
considered state actors. By delegating authority to the NCAA over
athletic personnel decisions, and by imposing the NCAA sanctions
against Tarkanian, UNLV acted
Page 488 U. S. 191
jointly with the NCAA."
103 Nev. at 337, 741 P.2d at 1349.
II
Embedded in our Fourteenth Amendment jurisprudence is a
dichotomy between state action, which is subject to scrutiny under
the Amendment's Due Process Clause, [
Footnote 11] and private conduct, against which the
Amendment affords no shield, no matter how unfair that conduct may
be.
Shelley v. Kraemer, 334 U. S. 1,
334 U. S. 13
(1948);
see Jackson v. Metropolitan Edison Co.,
419 U. S. 345,
419 U. S. 349
(1974). As a general matter the protections of the Fourteenth
Amendment do not extend to "private conduct abridging individual
rights."
Burton v. Wilmington Parking Authority,
365 U. S. 715,
365 U. S. 722
(1961).
"Careful adherence to the 'state action' requirement preserves
an area of individual freedom by limiting the reach of federal
law"
and avoids the imposition of responsibility on a State for
conduct it could not control.
Lugar, 457 U.S. at
457 U. S.
936-937. When Congress enacted § 1983 as the statutory
remedy for violations of the Constitution, it specified that the
conduct at issue must have occurred "under color of" state law;
thus, liability attaches only to those wrongdoers
"who carry a badge of authority of a State and represent it in
some capacity, whether they act in accordance with their authority
or misuse it."
Monroe v. Pape, 365 U. S. 167,
365 U. S. 172
(1961). As we stated in
United States v. Classic,
313 U. S. 299,
313 U. S. 326
(1941):
"Misuse of power, possessed by virtue of
Page 488 U. S. 192
state law and made possible only because the wrongdoer is
clothed with the authority of state law, is action taken 'under
color of' state law."
In this case, Tarkanian argues that the NCAA was a state actor
because it misused power that it possessed by virtue of state law.
He claims specifically that UNLV delegated its own functions to the
NCAA, clothing the Association with authority both to adopt rules
governing UNLV's athletic programs and to enforce those rules on
behalf of UNLV. Similarly, the Nevada Supreme Court held that UNLV
had delegated its authority over personnel decisions to the NCAA.
Therefore, the court reasoned, the two entities acted jointly to
deprive Tarkanian of liberty and property interests, making the
NCAA as well as UNLV a state actor.
These contentions fundamentally misconstrue the facts of this
case. In the typical case raising a state action issue, a private
party has taken the decisive step that caused the harm to the
plaintiff, and the question is whether the State was sufficiently
involved to treat that decisive conduct as state action. This may
occur if the State creates the legal framework governing the
conduct,
e.g., North Georgia Finishing, Inc. v. Di-Chem,
Inc., 419 U. S. 601
(1975); if it delegates its authority to the private actor,
e.g., West v. Atkins, 487 U. S. 42
(1988); or sometimes if it knowingly accepts the benefits derived
from unconstitutional behavior,
e.g., Burton v. Wilmington
Parking Authority, supra. Thus, in the usual case, we ask
whether the State provided a mantle of authority that enhanced the
power of the harm-causing individual actor. [
Footnote 12]
This case uniquely mirrors the traditional state action case.
Here, the final act challenged by Tarkanian -- his suspension --
was committed by UNLV. A state university without question is a
state actor. When it decides to impose a serious disciplinary
sanction upon one of its tenured employees, it must comply with the
terms of the Due Process Clause of the Fourteenth Amendment to the
Federal Constitution.
Accord, 470 U. S.
Loudermill,
Page 488 U. S. 193
470 U. S. 532
(1985);
Board of Regents of State Colleges v. Roth,
408 U. S. 564
(1972). Thus when UNLV notified Tarkanian that he was being
separated from all relations with the university's basketball
program, it acted under color of state law within the meaning of 42
U.S.C. § 1983.
The mirror image presented in this case requires us to step
through an analytical looking glass to resolve the case. Clearly,
UNLV's conduct was influenced by the rules and recommendations of
the NCAA, the private party. But it was UNLV, the state entity,
that actually suspended Tarkanian. Thus, the question is not
whether UNLV participated to a critical extent in the NCAA's
activities, but whether UNLV's actions in compliance with the NCAA
rules and recommendations turned the NCAA's conduct into state
action.
We examine first the relationship between UNLV and the NCAA
regarding the NCAA's rulemaking. UNLV is among the NCAA's members,
and participated in promulgating the Association's rules; it must
be assumed, therefore, that Nevada had some impact on the NCAA's
policy determinations. Yet the NCAA's several hundred other public
and private member institutions each similarly affected those
policies. Those institutions, the vast majority of which were
located in States other than Nevada, did not act under color of
Nevada law. It necessarily follows that the source of the
legislation adopted by the NCAA is not Nevada, but the collective
membership, speaking through an organization that is independent of
any particular State. [
Footnote
13]
Cf. Allied Tube & Conduit Corp. v. Indian Head,
Inc., 486 U. S. 492,
486 U. S.
501
Page 488 U. S. 194
(1988) ("Whatever
de facto authority the [private
standard-setting] Association enjoys, no official authority has
been conferred on it by any government . . .").
State action nonetheless might lie if UNLV, by embracing the
NCAA's rules, transformed them into state rules and the NCAA into a
state actor.
See Lugar, 457 U.S. at
457 U. S. 937.
UNLV engaged in state action when it adopted the NCAA's rules to
govern its own behavior, but that would be true even if UNLV had
taken no part in the promulgation of those rules. In
Bates v.
State Bar of Arizona, 433 U. S. 350
(1977), we established that the State Supreme Court's enforcement
of disciplinary rules transgressed by members of its own bar was
state action. Those rules had been adopted
in toto from
the American Bar Association Code of Professional Responsibility.
Id. at
433 U. S. 360,
n. 12. It does not follow, however, that the ABA's formulation of
those disciplinary rules was state action. The State Supreme Court
retained plenary power to reexamine those standards, and, if
necessary, to reject them and promulgate its own.
See id.
at
433 U. S. 362.
[
Footnote 14] So here, UNLV
retained the authority to withdraw
Page 488 U. S. 195
from the NCAA and establish its own standards. The university
alternatively could have stayed in the Association and worked
through the Association's legislative process to amend rules or
standards it deemed harsh, unfair, or unwieldy. [
Footnote 15] Neither UNLV's decision to
adopt the NCAA's standards nor its minor role in their formulation
is a sufficient reason for concluding that the NCAA was acting
under color of Nevada law when it promulgated standards governing
athlete recruitment, eligibility, and academic performance.
Tarkanian further asserts that the NCAA's investigation,
enforcement proceedings, and consequent recommendations constituted
state action because they resulted from a delegation of power by
UNLV. UNLV, as an NCAA member, subscribed to the statement in the
Association's bylaws that NCAA "enforcement procedures are an
essential part of the intercollegiate athletic program of each
member institution." App. 97. It is, of course, true that a State
may delegate authority to a private party, and thereby make that
party a state actor. Thus, we recently held that a private
physician who had contracted with a state prison to attend to the
inmates' medical needs was a state actor.
West v. Atkins,
487 U. S. 42
(1988). But UNLV delegated no power to the
Page 488 U. S. 196
NCAA to take specific action against any university employee.
The commitment by UNLV to adhere to NCAA enforcement procedures was
enforceable only by sanctions that the NCAA might impose on UNLV
itself.
Indeed, the notion that UNLV's promise to cooperate in the NCAA
enforcement proceedings was tantamount to a partnership agreement
or the transfer of certain university powers to the NCAA is belied
by the history of this case. It is quite obvious that UNLV used its
best efforts to retain its winning coach -- a goal diametrically
opposed to the NCAA's interest in ascertaining the truth of its
investigators' reports. During the several years that the NCAA
investigated the alleged violations, the NCAA and UNLV acted much
more like adversaries than like partners engaged in a dispassionate
search for the truth. The NCAA cannot be regarded as an agent of
UNLV for purposes of that proceeding. It is more correctly
characterized as an agent of its remaining members which, as
competitors of UNLV, had an interest in the effective and
evenhanded enforcement of the NCAA's recruitment standards. Just as
a state-compensated public defender acts in a private capacity when
he or she represents a private client in a conflict against the
State,
Polk County v. Dodson, 454 U.
S. 312,
454 U. S. 320
(1981), the NCAA is properly viewed as a private actor at odds with
the State when it represents the interests of its entire membership
in an investigation of one public university. [
Footnote 16]
Page 488 U. S. 197
The NCAA enjoyed no governmental powers to facilitate its
investigation. [
Footnote 17]
It had no power to subpoena witnesses, to impose contempt
sanctions, or to assert sovereign authority over any individual.
Its greatest authority was to threaten sanctions against UNLV, with
the ultimate sanction being expulsion of the university from
membership. Contrary to the premise of the Nevada Supreme Court's
opinion, the NCAA did not -- indeed, could not -- directly
discipline Tarkanian or any other state university employee.
[
Footnote 18] The
express
Page 488 U. S. 198
terms of the Confidential Report did not demand the suspension
unconditionally; rather, it requested "the University . . . to show
cause" why the NCAA should not impose additional penalties if UNLV
declines to suspend Tarkanian. App. 180. Even the university's
vice-president acknowledged that the Report gave the University
options, other than suspension: UNLV could have retained Tarkanian
and risked additional sanctions, perhaps even expulsion from the
NCAA, or it could have withdrawn voluntarily from the
Association.
Finally, Tarkanian argues that the power of the NCAA is so great
that the UNLV had no practical alternative to compliance with its
demands. We are not at all sure this is true, [
Footnote 19] but even if we assume that a
private monopolist can
Page 488 U. S. 199
impose its will on a state agency by a threatened refusal to
deal with it, it does not follow that such a private party is
therefore acting under color of state law.
Cf. Jackson,
419 U.S. at
419 U. S.
351-352 (State's conferral of monopoly status does not
convert private party into state actor).
In final analysis, the question is whether "the conduct
allegedly causing the deprivation of a federal right [can] be
fairly attributable to the State."
Lugar, 457 U.S. at
457 U. S. 937.
It would be ironic indeed to conclude that the NCAA's imposition of
sanctions against UNLV -- sanctions that UNLV and its counsel,
including the Attorney General of Nevada, steadfastly opposed
during protracted adversary proceedings -- is fairly attributable
to the State of Nevada. It would be more appropriate to conclude
that UNLV has conducted its athletic program under color of the
policies adopted by the NCAA, rather than that those policies were
developed and enforced under color of Nevada law.
The judgment of the Nevada Supreme Court is reversed, and the
case is remanded to that court for further proceedings not
inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
The trial court found that Tarkanian, as head basketball
coach,
"is annually paid (in lieu of his salary as a professor)
$125,000, plus 10% of the net proceeds received by UNLV for
participation in NCAA-authorized championship games, plus fees from
basketball camps and clinics, product endorsements, and income
realized from writing a newspaper column, speaking on a radio
program entitled 'THE JERRY TARKANIAN SHOW,' and appearing on a
television program bearing the same name."
App. 18.
That compensation was "entirely contingent on [Tarkanian's]
continued status as the Head Basketball Coach at UNLV." As a
tenured professor alone, he would have earned about $53,000 a year,
the court found.
Ibid.
[
Footnote 2]
That section provides, in part:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the "
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for
redress.
[
Footnote 3]
The fees were awarded pursuant to 42 U.S.C. § 1988, which
authorizes a court, in its discretion, to award the prevailing
party in an action brought under § 1983 a reasonable attorney's fee
as a part of the costs.
[
Footnote 4]
In this case, the under color of law requirement of 42 U.S.C. §
1983 and the state-action requirement of the Fourteenth Amendment
are equivalent.
See Rendell-Baker v. Kohn, 457 U.
S. 830,
457 U. S. 838
(1982);
see also Lugar v. Edmondson Oil Co., 457 U.
S. 922,
457 U. S.
928-935 (1982).
[
Footnote 5]
Although the NCAA's status as a state or private actor is a
novel issue in this Court, lower federal courts have entertained
the question for a number of years. Initially, Federal Courts of
Appeals held that the NCAA was a state actor for § 1983 purposes.
E.g., Regents of University of Minnesota v. NCAA, 560 F.2d
352 (CA8),
cert. dism'd, 434 U.S. 978 (1977);
Howard
University v. NCAA, 166 U.S.App.D.C. 260, 510 F.2d 213 (1975);
Parish v. NCAA, 506 F.2d 1028 (CA5 1975);
Associated
Students, Inc. v. NCAA, 493 F.2d 1251 (CA9 1974) (per curiam).
Since our decisions in
Lugar v. Edmondson Oil Co., supra,
Rendell-Baker v. Kohn, supra, and
Blum v. Yaretsky,
457 U. S. 991
(1982), all issued on the same day, lower courts have held to the
contrary.
E.g., McCormack v. NCAA, 845 F.2d 1338 (CA5
1988);
Karmanos v. Baker, 816 F.2d 258 (CA6 1987);
Graham v. NCAA, 804 F.2d 953 (CA6 1986);
Arlosoroff v.
NCAA, 746 F.2d 1019 (CA4 1984).
See Spath v. NCAA,
728 F.2d 25, 28 (CA1 1984) (dictum).
[
Footnote 6]
App. 98. Among the sanctions that the Committee may impose
"against an institution" are:
"(1) Reprimand and censure;"
"(2) Probation for one year;"
"(3) Probation for more than one year;"
"(4) Ineligibility for one or more National Collegiate
Championship events;"
"(5) Ineligibility for invitational and post-season meets and
tournaments;"
"(6) Ineligibility for any television programs subject to the
Association's control or administration;"
"(7) Ineligibility of the member to vote or its personnel to
serve on committees of the Association, or both;"
"(8) Prohibition against an intercollegiate sports team or teams
participating against outside competition for a specified
period;"
"(9) Prohibition against the recruitment of prospective
student-athletes for a sport or sports for a specified period. . .
. "
Id. at 103-104.
[
Footnote 7]
Upon finding that misconduct by an employee of a member
institution caused NCAA rules to be violated, the Committee may
require the member to
"show cause why:"
"(i) a penalty or an additional penalty should not be imposed
if, in the opinion of the Committee (or Council), it does not take
appropriate disciplinary or corrective action against athletic
department personnel involved in the infractions case, any other
institutional employee if the circumstances warrant, or
representatives of the institution's athletic interests; or"
"(ii) a recommendation should not be made to the membership that
the institution's membership in the Association be suspended or
terminated if, in the opinion of the Committee (or Council), it
does not take appropriate disciplinary or corrective action against
the head coach of the sport involved, any other institutional
employee if the circumstances warrant, or representatives of the
institution's athletic interests."
Id. at 104.
[
Footnote 8]
See App. 141-150, 190, 196.
[
Footnote 9]
"Most serious is the charge that Coach Tarkanian attempted to
frustrate the NCAA's application of the rules by getting people to
'change their story' or to fabricate bodies of countervailing
evidence. I am not convinced that the NCAA investigation adequately
supports this charge, and yet we must remember that the NCAA
infractions committee, and the NCAA Council, both composed of
distinguished scholars, administrators, and lawyers, believed
otherwise."
Id. at 72.
[
Footnote 10]
The court held the NCAA was not liable for fees Tarkanian
incurred during the first trial and first appeal to the State
Supreme Court. Not only did those events occur before the NCAA was
a party to the litigation, the court explained, but, since the
trial court's judgment was reversed, Tarkanian had not prevailed,
and thus was not eligible for fees pursuant to § 1988. In a later
opinion, the Supreme Court ordered that Tarkanian be allowed
additional fees for services performed on his second appeal before
that court.
[
Footnote 11]
"No State shall . . . deprive any person of life, liberty, or
property, without due process of law. . . ." U.S.Const., Amdt. 14,
§ 1.
[
Footnote 12]
E.g., Jackson v. Metropolitan Edison Co., 419 U.
S. 345,
419 U. S. 351
(1974) ("[T]he inquiry must be whether there is a sufficiently
close nexus between the State and the challenged action of the
regulated entity so that the action of the latter may fairly be
treated as that of the State itself").
[
Footnote 13]
The situation would, of course, be different if the membership
consisted entirely of institutions located within the same State,
many of them public institutions created by the same sovereign.
See Clark v. Arizona Interscholastic Association, 695 F.2d
1126 (CA9 1982),
cert. denied, 464 U.S. 818 (1983);
Louisiana High School Athletic Association v. St. Augustine
High School, 396 F.2d 224 (CA5 1968). The dissent apparently
agrees that the NCAA was not acting under color of state law in its
relationships with private universities, which constitute the bulk
of its membership.
See post at
488 U. S. 202,
n. 2.
[
Footnote 14]
Petitioners in
Bates contended that enforcement of
disciplinary rules circumscribing attorney advertising violated §§
1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and the First
Amendment, made applicable to the States by the Fourteenth
Amendment. 433 U.S. at
433 U. S. 353.
The Court unanimously concluded that state action existed in
deciding that, by the doctrine enunciated in
Parker v.
Brown, 317 U. S. 341
(1943), respondent was immune from Sherman Act liability. The Court
reached the merits of petitioners' First and Fourteenth Amendment
claims without discussing whether state action existed for
Fourteenth Amendment purposes.
Bates, 433 U.S. at
433 U. S.
363-384.
Although by no means identical, analysis of the existence of
state action justifying immunity from antitrust liability is
somewhat similar to the state action inquiry conducted pursuant to
§ 1983 and the Fourteenth Amendment. In both contexts, for example,
courts examine whether the rule in question is a rule of the State.
Compare Hoover v. Ronwin, 466 U.
S. 558,
466 U. S. 569
(1984) ("[T]he Court has required a showing that the conduct is
pursuant to a
clearly articulated and affirmatively expressed
state policy' to replace competition with regulation") (citation
omitted), with Lugar, 457 U.S. at 457 U. S. 937
("[T]he deprivation must be caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed by
the State or by a person for whom the State is responsible"). The
degree to which the activities of the state entity and the arguably
private entity are intertwined also is pertinent. Compare
Hoover, 466 U.S. at 466 U. S.
569-570, with Burton v. Wilmington Parking
Authority, 365 U. S. 715,
365 U. S.
721-726 (1961).
[
Footnote 15]
Furthermore, the NCAA's bylaws permit review of penalties, even
after they are imposed,
"upon a showing of newly discovered evidence which is directly
related to the findings in the case, or that there was a
prejudicial error in the procedure which was followed in the
processing of the case by the Committee."
App. 107. UNLV could have sought such a review, perhaps on the
theory that the NCAA's investigator was biased against Tarkanian,
as the Nevada trial court found in 1984.
Id. at 20. The
NCAA Committee on Infractions was authorized to "reduce or
eliminate any penalty" if the University had prevailed.
Id. at 108.
[
Footnote 16]
Tarkanian argues that UNLV and the NCAA were "joint
participants" in state action. Brief for Respondent 42. He would
draw support from
Burton v. Wilmington Parking Authority,
365 U. S. 715
(1961), in which a lease relationship between a private restaurant
and a publicly owned parking structure entailed "an incidental
variety of mutual benefits,"
id. at
365 U. S. 724:
tax exemptions for the restaurant, rent payments for the parking
authority, and increased business for both. Because of this
interdependence, we held, the restaurant and parking authority
jointly violated the Fourteenth Amendment when the restaurant
discriminated on account of race.
Id. at
365 U. S. 725.
In the case before us, the state and private parties' relevant
interests do not coincide, as they did in
Burton; rather,
they have clashed throughout the investigation, the attempt to
discipline Tarkanian, and this litigation. UNLV and the NCAA were
antagonists, not joint participants, and the NCAA may not be deemed
a state actor on this ground.
[
Footnote 17]
In
Dennis v. Sparks, 449 U. S. 24
(1980), on which the dissent relies, the parties had entered into a
corrupt agreement to perform a judicial act. As we explained:
"[H]ere the allegations were that an official act of the
defendant judge was the product of a corrupt conspiracy involving
bribery of the judge. Under these allegations, the private parties
conspiring with the judge were acting under color of state law; and
it is of no consequence in this respect that the judge himself is
immune from damages liability. Immunity does not change the
character of the judge's action or that of his coconspirators.
Indeed, his immunity is dependent on the challenged conduct's being
an official judicial act within his statutory jurisdiction, broadly
construed. Private parties who corruptly conspire with a judge in
connection with such conduct are thus acting under color of law. .
. ."
Id. at
449 U. S. 28-29
(footnote and citations omitted). In this case, there is no
suggestion of any impropriety respecting the agreement between the
NCAA and UNLV. Indeed the dissent seems to assume that the NCAA's
liability as a state actor depended not on its initial agreement
with UNLV, but on whether UNLV ultimately accepted the NCAA's
recommended discipline of Tarkanian.
See post at
488 U. S. 203.
In contrast, the conspirators in
Dennis became state
actors when they formed the corrupt bargain with the judge, and
remained so through completion of the conspiracy's objectives.
Cf. Adickes v. S. N. Kress & Co., 398 U.
S. 144,
398 U. S.
149-150, and n. 5 (1970) (private restaurant that denied
plaintiff service in violation of federal law would be liable as
state actor upon proof that it conspired with police officer to
deprive plaintiff of her constitutional rights).
[
Footnote 18]
Tarkanian urges us to hold, as did the Nevada Supreme Court,
that the NCAA by its rules and enforcement procedures has usurped a
traditional, essential state function. Quite properly, he does not
point to the NCAA's overriding function of fostering amateur
athletics at the college level. For while we have described that
function as "critical,"
NCAA v. Board of Regents of the
University of Oklahoma, 468 U. S. 85,
468 U. S. 120
(1984), by no means is it a traditional, let alone an exclusive,
state function.
Cf. San Francisco Arts & Athletics, Inc. v.
United States Olympic Committee, 483 U.
S. 522,
483 U. S. 545
(1987) ("Neither the conduct nor the coordination of amateur sports
has been a traditional government function"). Tarkanian argues
instead that the NCAA has assumed the State's traditional and
exclusive power to discipline its employees.
"[A]s to state employees connected with intercollegiate
athletics, the NCAA requires that its standards, procedures and
determinations
become the State's standards, procedures
and determinations for disciplining state employees,"
he contends.
"The State is
obligated to impose NCAA standards,
procedures and determinations, making the NCAA a joint participant
in the State's suspension of Tarkanian."
Brief for Respondent 34-35 (emphases in original).
This argument overlooks the fact that the NCAA's own legislation
prohibits it from taking any direct action against Tarkanian.
Moreover, suspension of Tarkanian is one of many recommendations in
the Confidential Report. Those recommendations as a whole were
intended to bring UNLV's basketball program into compliance with
NCAA rules. Suspension of Tarkanian was but one means toward
achieving that goal.
[
Footnote 19]
The university's desire to remain a powerhouse among the
Nation's college basketball teams is understandable, and
nonmembership in the NCAA obviously would thwart that goal. But
that UNLV's options were unpalatable does not mean that they were
nonexistent.
JUSTICE WHITE, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and
JUSTICE O'CONNOR join, dissenting.
All agree that UNLV, a public university, is a state actor, and
that the suspension of Jerry Tarkanian, a public employee, was
state action. The question here is whether the NCAA acted jointly
with UNLV in suspending Tarkanian, and thereby also became a state
actor. I would hold that it did.
I agree with the majority that this case is different on its
facts from many of our prior state action cases. As the majority
notes, in our "typical case raising a state action issue, a private
party has taken the decisive step that caused the
Page 488 U. S. 200
harm to the plaintiff."
Ante at
488 U. S. 192.
In this case, however, which in the majority's view "uniquely
mirrors the traditional state action case,"
ibid., the
final act that caused the harm to Tarkanian was committed, not by a
private party, but by a party conceded to be a state actor. Because
of this difference, the majority finds it necessary to "step
through an analytical looking glass" to evaluate whether the NCAA
was a state actor.
Ante at
488 U. S.
193.
But the situation presented by this case is not unknown to us,
and certainly is not unique. In both
Adickes v. S. H. Kress
& Co., 398 U. S. 144
(1970), and
Dennis v. Sparks, 449 U. S.
24 (1980), we faced the question whether private parties
could be held to be state actors in cases in which the final or
decisive act was carried out by a state official. In both cases, we
held that the private parties could be found to be state actors if
they were "jointly engaged with state officials in the challenged
action."
Id. at
449 U. S.
27-28.
The facts of
Dennis are illustrative. In
Dennis, a state trial judge enjoined the production of
minerals from oil leases owned by the plaintiff. The injunction was
later dissolved on appeal as having been issued illegally. The
plaintiff then filed suit under 42 U.S.C. § 1983, alleging that the
judge had conspired with the party seeking the original injunction
-- a private corporation -- the sole owner of the corporation, and
the two sureties on the injunction bond to deprive the plaintiff of
due process by corruptly issuing the injunction. We held
unanimously that, under the facts as alleged, the private parties
were state actors because they were "willful participant[s] in
joint action with the State or its agents." 449 U.S. at
449 U. S. 27.
See also Adickes, supra, at
398 U. S. 152
(plaintiff entitled to relief under § 1983 against private party if
she can prove that private party and police officer "reached an
understanding" to cause her arrest on impermissible grounds).
On the facts of the present case, the NCAA acted jointly with
UNLV in suspending Tarkanian. First, Tarkanian was suspended for
violations of NCAA rules, which UNLV embraced in its agreement with
the NCAA. As the Nevada
Page 488 U. S. 201
Supreme Court found in its first opinion in this case,
University of Nevada v. Tarkanian, 95 Nev. 389, 391,
594 P.2d 1159,
1160 (1979), "[a]s a member of the NCAA, UNLV contractually agrees
to administer its athletic program in accordance with NCAA
legislation." Indeed, NCAA rules provide that NCAA "enforcement
procedures are an essential part of the intercollegiate athletic
program of each member institution." App. 97.
Second, the NCAA and UNLV also agreed that the NCAA would
conduct the hearings concerning violations of its rules. Although
UNLV conducted its own investigation into the recruiting violations
alleged by the NCAA, the NCAA procedures provide that it is the
NCAA Committee on Infractions that "determine[s] facts related to
alleged violations," subject to an appeal to the NCAA Council.
Id. at 98, 101. As a result of this agreement, the NCAA
conducted the very hearings the Nevada Supreme Court held to have
violated Tarkanian's right to procedural due process. [
Footnote 2/1]
Third, the NCAA and UNLV agreed that the findings of fact made
by the NCAA at the hearings it conducted would be binding on UNLV.
By becoming a member of the NCAA, UNLV did more than merely
"promise to cooperate in the NCAA enforcement proceedings."
Ante at
488 U. S. 196.
It agreed, as the university hearing officer appointed to rule on
Tarkanian's suspension expressly found, to accept the NCAA's
"findings of fact as in some way superior to [its] own." App. 74.
By the terms of UNLV's membership in the NCAA, the NCAA's findings
were final and not subject to further review by any other body,
id. at 101, and it was for that reason that UNLV suspended
Tarkanian, despite concluding that many of those findings were
wrong,
id. at 76.
Page 488 U. S. 202
In short, it was the NCAA's findings that Tarkanian had violated
NCAA rules, made at NCAA-conducted hearings, all of which were
agreed to by UNLV in its membership agreement with the NCAA, that
resulted in Tarkanian's suspension by UNLV. On these facts, the
NCAA was "jointly engaged with [UNLV] officials in the challenged
action," and therefore was a state actor. [
Footnote 2/2]
See Dennis, supra, at
449 U. S.
27-28.
The majority's objections to finding state action in this case
were implicitly rejected by our decision in
Dennis.
Initially, the majority relies on the fact that the NCAA did not
have any power to take action directly against Tarkanian as
indicating that the NCAA was not a state actor.
Ante at
488 U. S.
195-196. But the same was true in
Dennis: the
private parties did not have any power to issue an injunction
against the plaintiff. Only the trial judge, using his authority
granted under state law, could impose the injunction.
Next, the majority points out that UNLV was free to withdraw
from the NCAA at any time.
Ante at
488 U. S.
194-195. Indeed, it is true that, when considering
UNLV's options, the university hearing officer noted that one of
those options was to "[p]ull out of the NCAA completely." App. 76.
But of course the trial judge in
Dennis could have
withdrawn from his agreement at any time as well. That he had that
option is simply irrelevant to finding that he had entered into
an
Page 488 U. S. 203
agreement. What mattered was not that he could have withdrawn,
but rather that he did not do so.
Finally, the majority relies extensively on the fact that the
NCAA and UNLV were adversaries throughout the proceedings before
the NCAA.
Ante at
488 U. S. 196. The majority provides a detailed
description of UNLV's attempts to avoid the imposition of sanctions
by the NCAA. But this opportunity for opposition, provided for by
the terms of the membership agreement between UNLV and the NCAA,
does not undercut the agreement itself. Surely our decision in
Dennis would not have been different had the private
parties permitted the trial judge to seek to persuade them that he
should not grant the injunction before finally holding the judge to
his agreement with them to do so. The key there, as with any
conspiracy, is that ultimately the parties agreed to take the
action.
The majority states in conclusion that
"[i]t would be ironic indeed to conclude that the NCAA's
imposition of sanctions against UNLV -- sanctions that UNLV and its
counsel, including the Attorney General of Nevada, steadfastly
opposed during protracted adversary proceedings -- is fairly
attributable to the State of Nevada."
Ante at
488 U. S. 199.
I agree. Had UNLV refused to suspend Tarkanian, and the NCAA
responded by imposing sanctions against UNLV, it would be hard
indeed to find any state action that harmed Tarkanian. But that is
not this case. Here, UNLV did suspend Tarkanian, and it did so
because it embraced the NCAA rules governing conduct of its
athletic program and adopted the results of the hearings conducted
by the NCAA concerning Tarkanian, as it had agreed that it would.
Under these facts, I would find that the NCAA acted jointly with
UNLV, and therefore is a state actor. [
Footnote 2/3]
I respectfully dissent.
[
Footnote 2/1]
The NCAA's petition for certiorari challenged the Nevada Supreme
Court's holding that the procedures here violated procedural due
process. Our grant of the petition, however, was limited solely to
the state action question. I therefore take as a given, although I
do not decide, that the hearings provided to Tarkanian were
constitutionally inadequate.
[
Footnote 2/2]
The Court notes that the United States Courts of Appeals have,
since our decisions in
Rendell-Baker v. Kohn, 457 U.
S. 830 (1982),
Lugar v. Edmondson Oil Co.,
457 U. S. 922
(1982), and
Blum v. Yaretsky, 457 U.
S. 991 (1982), held unanimously that the NCAA is not a
state actor.
Ante at
488 U. S. 182,
n. 5.
See McCormack v. NCAA, 845 F.2d 1338, 1346 (CA5
1988);
Karmanos v. Baker, 816 F.2d 258, 261 (CA6 1987);
Graham v. NCAA, 804 F.2d 953, 958 (CA6 1986);
Arlosoroff v. NCAA, 746 F.2d 1019, 1021-1022 (CA4 1984).
In none of those cases, however, did the courts address the theory
before us here.
E.g., McCormack, supra, at 1346. Indeed,
in
Arlosoroff, on which the subsequent decisions
principally rely, the plaintiff was challenging the actions of
Duke, a private university. The issue of joint action between the
NCAA and a public university would never have arisen in that
case.
[
Footnote 2/3]
The NCAA does not argue that, if it is found to be a state
actor, the injunction entered against it by the trial court is
invalid. Tr. of Oral Arg. 49. I therefore express no opinion on
that question.