National Collegiate Athletic Assn. v. Tarkanian , 109 S. Ct. 454 ( 1988 )

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 harm to the plaintiff.” Ante, at 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 Tárkanian 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 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 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 participants] in joint action with the State or its agents.” 449 U. S., at 27. See also Adickes, supra, at 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 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^] 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.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 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.

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.² See Dennis, supra, at 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 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 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 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 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 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.³

I respectfully dissent.

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.

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 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.

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.