From Off the Bench: The Potential Role of the U.S. Department of Education in Reforming Due Process in the NCAA

Author:Joshua J. Despain
Position:J.D. Candidate, The University of Iowa College of Law, 2015; B.A., Brigham Young University, 2011
Pages:1285-1326
SUMMARY

The National Collegiate Athletic Association ("NCAA") is based on such ideals as amateurism, fairness, and healthy competition, and ensures compliance with those principles with a formalized system of investigation, infraction hearings, and penalties. Legal minds, as well as the direct participants in the college sports industry, have asserted that the NCAA's disciplinary proceedings deny... (see full summary)

 
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1285
From Off the Bench: The Potential Role
of the U.S. Department of Education in
Reforming Due Process in the NCAA
Joshua J. Despain
ABSTRACT: The National Collegiate Athletic Association (“NCAA”) is
based on such ideals as amateurism, fairness, and healthy competition, and
ensures compliance with those principles with a formalized system of
investigation, infraction hearings, and penalties. Legal minds, as well as the
direct participants in the college sports industry, have asserted that the
NCAA’s disciplinary proceedings deny constitutional rights, and have tried
claiming those rights before various judges across the United States. Since the
U.S. Supreme Court decided NCAA v. Tarkanian in 1988, however, the
NCAA is no longer a state actor, and not subject to the guarantee of due
process in the U.S. Constitution. Though the NCAA has reformed and
adapted its procedures, many student-athletes and others demand more. Two
recent proposals in the U.S. House of Representatives, H.R. 2903 and H.R.
3545, require among their various provisions that any “athletic association”
must enforce its bylaws with “any other due process procedure the Secretary [of
Education] determines by regulation to be necessary.” Student-athletes,
coaches, and their supporters have never looked to the Department of
Education (“DOE”) before to correct the wrongs they perceive in the NCAA.
This Note will show why, in the wake of failures in litigation and previous
legislation, enhancing the role of the DOE is a viable option for NCAA
reformists.
J.D. Candidate, The University of Iowa College of Law, 2015; B.A., Brigham Young
University, 2011. Thank you very much to Brian Porto, Professor of Law at the Vermont Law
School, who helped me arrive at this idea. I would also like to thank Jerold Israel, Alene and Allan
F. Smith Professor of Law Emeritus at the University of Michigan Law Sch ool; Rodney Uphoff,
Elwood Thomas Missouri Endowed Professor of Law at the Universit y of Missouri School of Law
and Member of the NCAA Division I Committee on Infractions; Daniel Matheson, Lectur er of
Recreation & Sports Business at the University of Iowa and former NCAA Associate Director of
Enforcement; and Monica Mims, Associate Director of Compliance at the University of Iowa
Athletics Department, for providing their input and guiding me along the way. I also want to
thank the editors and my fellow writers of the Iowa Law Review. And than ks most of all t o my wife,
Erin, and our children, Allisyn, Patrick, and Maggie.
1286 IOWA LAW REVIEW [Vol. 100:1285
I. INTRODUCTION ........................................................................... 1287
II. THE HISTORY OF DUE PROCESS IN THE NCAA ........................... 1290
A. OVERVIEW OF ATHLETIC DUE PROCESS ................................... 1291
B. EARLY NCAA DUE PROCESS ................................................... 1295
1. Origins of the NCAA, the Committee on Infractions,
and the Enforcement Staff ......................................... 1295
2. Criticisms Against the NCAA’s Due Process Before
Tarkanian ..................................................................... 1297
C. “SHARK REPELLANT: NCAA V. TARKANIAN ......................... 1299
1. The Judiciary Shifts the State Actor Standard ........... 1301
2. Game Changer for Tarkanian ..................................... 1302
D. DUE PROCESS IN THE NCAA IMPROVES—BUT BY ITS OWN
RULES ................................................................................... 1304
III. LITIGATION AND LEGISLATION: INACTION FOR NCAA DUE
PROCESS ...................................................................................... 1310
A. STUDENT-ATHLETES CONTINUE TO TEST THE NCAA .............. 1311
B. LEGISLATURES TO THE RESCUE?............................................. 1313
C. H.R. 2903 AND H.R. 3545: CONGRESS INVITES THE DOE TO
REFORM ................................................................................ 1315
IV. THE DOE CAN SOLVE THE NCAA’S DUE PROCESS PROBLEMS .. 1318
A. THE DOE CAN PROTECT DUE PROCESS, NOT JUST EQUAL
PROTECTION ......................................................................... 1319
B. WITH H.R. 2903 OR H.R. 3545, THE DOE CAN CHANGE NCAA
DUE PROCESS ........................................................................ 1321
C. THE DOE CAN BE AN EFFECTIVE VOICE .................................. 1324
V. CONCLUSION .............................................................................. 1325
2015] FROM OFF THE BENCH 1287
I. INTRODUCTION
In October 2013, the National Collegiate Athletic Association (“NCAA”)
finally meted out its punishment to the University of Miami (“Miami”) after a
two-and-a-half-year investigation of “recruiting inducements and extra
benefits” in the school’s athletic program.1 The penalties consisted of a three-
year probation, a decrease of 12 scholarships for the football and basketball
teams, and consequences for other sports, in addition to the punishments
Miami already self-imposed.2 Despite this severity, the NCAA would likely have
imposed even more, if not for getting in its own way.3
In 2011, Nevin Shapiro, who a federal court later sentenced to 20 years
in prison for his $930 million Ponzi scheme,4 wrote to the NCAA from his jail
cell to report his previous involvement as a Miami booster in offering
improper benefits to Miami student-athletes, coaches, and prospective
student-athletes.5 After uncooperative witnesses held up its investigation, the
NCAA Enforcement Staff resorted to paying Shapiro’s attorney to leverage his
federal bankruptcy depositions and obtain information for the NCAA’s own
purposes.6 Regardless of the potential abuses, investigators purposefully
evaded legal advice when they involved Shapiro’s attorney in the name of a
resourceful solution to their beleaguered investigation.7 This and other
1. NCAA DIV. I COMM. ON INFRACTIONS, UNIVERSITY OF MIAMI PUBLIC INFRACTIONS
REPORT 1, 63–74 (2013), available at http://hurricanesports.com/fls/28700/files/MiamiReport
NCAA.pdf.
2. KENNETH L. WAINSTEIN ET AL., REPORT ON THE NCAA’S ENGAGEMENT OF A SOURCES
COUNSEL AND USE OF THE BANKRUPTCY PROCESS IN ITS UNIVERSITY OF MIAMI INVESTIGATION 63,
67 (2013), available at http://www.kmbc.com/blob/view/-/18593534/data/1/-/8qjf7s/-/
NCAA-report-pdf.pdf; see also Sanctions Levied Agai nst Miami (Fla.), NCAA (Oct. 23, 2013, 4:11
PM), http://www.ncaa.com/news/ncaa/article/2013-10-23/sanctions-levied-against-miami-fla.
3. Steve Eder, After Long N.C.A.A. Inquiry, Miami Loses 12 Scholarships, N.Y. TIMES (Oct. 22,
2013), http://www.nytimes.com/2013/10/23/sports/miami-avoids-further-bowl-ban-in-ncaa-
penalties.html (quoting an Ohio University professor who suggested that because of the NCAA’s
mistakes, Miami had a “trump card” against more severe penalties).
4. United States v. Shapiro, 505 F. App’x 131, 131–32 (3d Cir. 2012).
5. WAINSTEIN ET AL., supra note 2, at 10. Shapiro recounted to Yahoo! Sports that he spent
millions of dollars on Miami athletes to provide cash; travel expens es; entertainment at
restaurants, mansions, yachts, nightclubs, and strip clubs; bounties for injuries to opposing
players; and even prostitutes and an abortion. Charles Robinson, Renegade Miami Football Booster
Spells Out Illicit Benefits to Players, YAHOO! SPORTS (Aug. 16, 2011, 5:37 PM), http://sports.yahoo.
com/news/renegade-miami-football-booster-spells-213700753--spt.html.
6. WAINSTEIN ET AL., supra note 2, at 7, 34.
7. Id. at 15, 32–37, 50.

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