… Or The Kid Dies: The NCAA’s Little First Amendment Problem

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… Or The Kid Dies: The NCAA’s Little First Amendment Problem

A shorter version of this column was published in the Maryland Daily Record August 1, 2011

My eyebrows rose in amazement as I read a message direct from Elizabeth Heinrich, Interim Chief of Compliance at the University of Michigan Athletic Department, to my law partner Mark, warning him of ten things he must not do.[1]  Mind you, Mark’s only Wolverine connection is that some years back he graduated from the Michigan Law School.  He is not a current student, staff or faculty member.  He is not a member of any athletic booster association.  In short, he is not someone you’d think Ms. Heinrich would assume she could boss around.

No Precatory Niceties

Yet the communication brushes aside any precatory niceties.  Mark is informed that: “You MAY NOT make recruiting contacts with prospects, their relatives or legal guardians.”  He is told: “You MAY NOT contact a prospect’s coach, principal, or counselor in an attempt to evaluate the prospect.”  Even when he’s allowed to do things, Ms. Heinrich would place curbs, as in: “You MAY attend high school or junior college competitions provided no contact occurs with the prospect or the prospect’s relatives.”  Well, it’s no doubt a relief to know that Mark may attend high school sporting events, though it may be a source of anxiety to him to know that the arena may teem with people he is forbidden to address.

At this point, you may be asking, as I did: Who the heck is Ms. Heinrich and what gives her the idea she can tell Mark what to say and whom to greet?[2]  Well, I can tell you one thing she clearly is, and that is, for First Amendment purposes, a state actor.[3]  Now I dare say that even Ms. Heinrich, even with all the authority of the State of Michigan behind her, would recognize that she does not actually have the legal power to regulate these things.  But she does issue a threat that may effectively substitute for that power: “Any infraction will jeopardize a prospect or student-athletes [sic] opportunity to attend and compete for UM no matter how minor it may seem.”

Of course, it’s not the State of Michigan itself establishing the threat, but rather the National Collegiate Athletic Association.  “The NCAA has strictly limited the role you, as a Michigan Fan, may take with regard to prospects and student-athletes.”  In other words, if Mark exercises his free-speech rights and tells a high schooler he/she should think about Ann Arbor, it’s not the state action of the University of Michigan penalizing the poor kid, but the NCAA.  And, at least in some decisions, the NCAA has been held not to be a state actor.[4]

No Calling The Cops

So the chill on Mark’s free speech works a bit like the scene we’ve all seen in the movies: the bad guy holds a gun to some terrified child’s head and says to a parent: “Keep your mouth shut or the kid dies.”  It makes the parent think twice about exercising free speech rights to call the cops.  The only variation here is that here the state actor issuing the warning isn’t the one holding the kid: the (supposedly private) NCAA is holding the kid.

The question, then, is whether the NCAA can chill Mark’s free speech by occasioning a threat by Michigan, a state actor, that it won’t field any student athlete Mark addresses.

The NCAA certainly thinks so.  Read NCAA Rule 13.02.14,[5] which dubs as a “representative of the institution’s athletics interests” [sic], among many other people, “an individual … who is known (or who should have been known) by a member of the institution’s … athletics administration to … have been involved … in promoting the institution’s athletics program.”  Ms. Heinrich is without doubt “a member of the institution’s athletic administration.”  And if you assume, as Ms. Heinrich does, and probably correctly, that most alums would do Michigan’s athletics program a good turn if they could, you probably reach the same conclusion she did, namely that she knows or should know that Mark is, unbeknownst to himself, a “representative of the institution’s athletics interests.”  And the prohibitions listed above have their roots in NCAA prohibitions that extend to all “representatives.”  So, yes, it looks as if the NCAA thinks it can chill Mark’s speech by occasioning Ms. Heinrich’s threats against athletes he’d like to talk to.

No Shutting Down Political Debate

So, is the NCAA right?  There’s not much law on the subject.  The closest cases seem to be Crue v. Aiken (7th Cir. 2004), and the lower court opinion affirmed there.[6]  But they’re not on all fours.  The would-be free speakers in Crue opposed the University of Illinois’ use of a generic Native American figure, Chief Illiniwek, as the school’s mascot.  They tried to embarrass Illinois by announcing plans to contact high school prospects, warning them about the mascot, and implicitly suggesting they might want not to be associated with a school that employed it.  The university chancellor pulled an Elizabeth Heinrich and sent an e-mail to all faculty, staff and students warning that “No contacts are permitted with prospective student athletes … without express authorization of the Director of Athletics or his designee.”  Again, NCAA rules were cited in justification.  The inevitable lawsuit pointed out the little First Amendment problem the e-mail had created.

The courts had no problem concluding that when Illinois tried to gag these communications, it was a state actor, and the gag order was unconstitutional.  And this was a painfully obvious penalty whistle.  There’s not much room for interpretation when a state school tries to shut down a political protest (the very thing the First Amendment most protects), irrespective of NCAA rules.

But what if the students had actually planned, on their own and without involvement of the “athletics administration,” to contact the same prospects to sell them on the joys of Champaign-Urbana?  We don’t have a First Amendment-based ruling yet covering that situation.

No Getting Past State Power

I’d assume that in such a case, the university and the NCAA would argue that these restrictions are required to preserve the amateur ideal, that if freelance boosters get into the act, students will start receiving who knows what solicitations, and unreported remuneration.[7]  I’d agree that there could be real challenges to amateurism if free speech reigned.  But are state actors allowed to favor only speech conducive to amateurism in the first place?  Does not commercialism, both advocacy therefor and speech which embodies it, have equal speech rights with amateurism and professionalism, whichever the state might prefer as a matter of policy?  Bates v. Arizona State Bar, anyone?[8]  The Supreme Court has recently supported free speech even over reasonable economic regulation and over efforts to keep politicians from being beholden to corporations. So I’d bet on the speakers every time.  I’d even bet on Mark if he sued to force Michigan to grant varsity status to students he’d awarded athletic scholarships through a freelance program of his own creation, notwithstanding some kind of private status for the NCAA.

And here’s why: The NCAA has no power separate from what its constituent schools endow it with.  When the NCAA tells the state not to suit up a young athlete, the NCAA is doing no more than exercising the state’s power delegated to it in the first place. If the University of Michigan, a state actor, has delegated to the NCAA the power to determine whether or not it should favor amateurism, surely the NCAA is, at least for that purpose, exercising the University’s power.  Call the NCAA private if you want, but recognize that it has no power over Michigan which Michigan did not give it, and as such, is exercising Michigan’s borrowed state power for at least that purpose.  If, then, the University does the NCAA’s bidding informed by that choice, and excludes a young athlete simply because Mark solicited him or paid him openly or secretly, that exclusion is state action, irrespective of the NCAA’s supposedly private status.  And, as I have just pointed out, enforcing a choice in favor of amateurism by forcing student athletes to abjure professionalism in order to enjoy the privilege of competing on a state-sponsored team probably would be held to violate the First Amendment.  At least it would if this were a principled, consistent, and predictable Supreme Court.  (But that’s a different column.)

No Tears For Amateurism

Anyhow, there are few things more inimical to First Amendment commercial freedom than NCAA “amateurism.”  And while I recognize that something would be lost if “amateurism” were dispatched by the courts, I think the world of college athletics would be better on balance  without it.  “Amateurism” destroys the market power of students to capitalize on what may well be their greatest assets, and all it provides, at least in immediate return, is a college education and some farm league experience, the fair market value of which may be vastly less than what the college receives in the bargain.[9]  College sports are often big business for the colleges – but never for the students who play by the rules.  Why should they be left out?  And why should Mark?

[1].  News coverage of the message here.

[2].  If the question were why she was doing it, the answer would be simple enough: Michigan is seeking to clean up its act after some widely publicized violations of NCAA rules.  See, e.g. here and here concerning recent problems with the football team that led to the removal of its head coach, and, herefor earlier scandals that cost the head basketball coach his job.

[3].  In National Collegiate Athletic Assn. v. Tarkanian (1988), the Supreme Court held the NCAA itself not to be a state actor, though that case may have been distinguished out of practical existence in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n (2000), which held an NCAA equivalent for state high schools was a state actor.  The central rationale for the distinction, that there was one state sovereignty behind most of the high schools in the state association as opposed to the plethora of state sovereignties behind the NCAA, does not seem tenable, in that all of the state sovereignties are just that, state sovereignties, and the fact that there is more than one of them merely means that there are several state actors collaborating.  I predict that if that part of the Tarkanian holding is ever revisited, it will be overruled.  In any case, it is one thing for a private actor to chill the exercise of free speech, another thing for a state university, which is clearly a state actor, to do so, even in response to the dictates of a private actor.  That it is a state actor was an assumption that was so obvious as to require no explanation in Crue v. Aiken, the Illinois case discussed below.

[4].  See previous note.

[5].  For some reason the NCAA puts its “Legislation” on the web, but it is hard to find.  Getting access to the NCAA’s Legislative Services Database (without first applying for a password and necessarily identifying yourself as a student, faculty, member of the press, etc.) is not easy; copy-protection renders copying individual “Legislation” harder; and harder still is obtaining a usable hyperlink that will take one back to an individual article.  The best I can tell a reader who like me is unaccredited and wishes to see this “Legislation” for himself or herself is to start at www.ncaa.org, and drill down from the Resources page.  If you come across a document entitled Instructions for Online Manual (Bylaw) Search, ignore it.  The instructions there are inapplicable from top to bottom.  Happy hunting!  And in the meantime, you think maybe an organization that calls its rules “Legislation” looks a little bit like a state actor?

[6].  204 F.Supp.2d 1130 (C.D. Ill. 2002).

[7].  In Crue, the Seventh Circuit pointed out that in “prior restraint” cases involving political speech, like Crue itself, courts will apply a balancing test, the so-called NTEU test, under which the state will be required to identify an interest which outweighs the interests of a large number of potential speakers before they have even spoken.  The interest has to be quite significant to outweigh such widespread free speech rights.  I do not pretend that a frontal challenge to prior restraints on genuinely commercial solicitation of college athletes would fall precisely in this category, for two separate reasons.  First,as I state above, Crue involves clearly political speech.  Historically, commercial speech did not receive the same kind of protection as did political speech.  But the historical political/commercial distinction seems to carry less and less weight as the years go by.  So perhaps the subject-matter of the speech might not distinguish Mark’s hypothetical challenge to Michigan’s enforcement of the NCAA bans on commercial solicitation or over-solicitation of student athletes as much as one would have expected.  But for sure Mark’s challenge, in order to be truly effective, would have to involve post-hoc sanctions, not prior restraint.  (In lay terms, Mark would have had to have already exercised his free speech rights and paid a student athlete to attend and play for Michigan, and the case would have to be about whether the student could be constitutionally sanctioned for accepting such compensation.)  Either way, I’d expect that something like the NTEU test would still have to be relied upon in the end; there is no obvious other way to sort the matter out.  And since the NCAA’s notion of amateurism is the undisputed interest and justification for the rules the athlete and/or Mark would be challenging on First Amendment grounds, I would expect it to be raised as the consideration to balance against the free speech rights being penalized.

[8].  This was not a case about “amateurism” but rather its apparent opposite, “professionalism.”  The rationale on both sides was, however, quite similar.  The State Bar felt that it was unprofessional and unseemly for lawyers to advertise and tried to discipline two lawyers who did it.  The Arizona Bar’s ideal of professionalism, as the Supreme Court held, did not prevail over the free speech right of lawyers who wished to solicit clients.  The Court held that by allowing the advertising prices, the needs of legal consumers were served.  Clearly, more information about athletic programs, and more voices providing more competitive inducements to young athletes to enter these programs, would be of similar benefit to the latter.

[9].  The NCAA’s use of its market power obviously resembles and may in fact be an antitrust violation.  And it is significant that the one big case of which I know in which athletes complained on antitrust grounds of being shut out of big paydays by the NCAA’s rules was settled, with the NCAA ponying up a $10 million fund to keep the case from going to trial.  Read about it here.

Copyright (c) Jack L. B. Gohn

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