The Big Picture Home Page<\/a> | Previous Big Picture Column<\/a> | Next Big Picture Column<\/a><\/p>\n A shorter version of this column was published in the Maryland Daily Record August 1, 2011<\/p>\n 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]\u00a0 Mind you, Mark\u2019s only Wolverine connection is that some years back he graduated from the Michigan Law School.\u00a0 He is not a current student, staff or faculty member.\u00a0 He is not a member of any athletic booster association.\u00a0 In short, he is not someone you\u2019d think Ms. Heinrich would assume she could boss around.<\/p>\n Yet the communication brushes aside any precatory niceties.\u00a0 Mark is informed that: \u201cYou MAY NOT make recruiting contacts with prospects, their relatives or legal guardians.\u201d\u00a0 He is told: \u201cYou MAY NOT contact a prospect\u2019s coach, principal, or counselor in an attempt to evaluate the prospect.\u201d\u00a0 Even when he\u2019s allowed to do things, Ms. Heinrich would place curbs, as in: \u201cYou MAY attend high school or junior college competitions provided no contact occurs with the prospect or the prospect\u2019s relatives.\u201d\u00a0 Well, it\u2019s 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.<\/p>\n 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]\u00a0 Well, I can tell you one thing she clearly is, and that is, for First Amendment purposes, a state actor.[3]\u00a0 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. \u00a0But she does issue a threat that may effectively substitute for that power: \u201cAny infraction will jeopardize a prospect or student-athletes [sic<\/em>] opportunity to attend and compete for UM no matter how minor it may seem.\u201d<\/p>\n Of course, it\u2019s not the State of Michigan itself establishing the threat, but rather the National Collegiate Athletic Association.\u00a0 \u201cThe NCAA has strictly limited the role you, as a Michigan Fan, may take with regard to prospects and student-athletes.\u201d\u00a0 In other words, if Mark exercises his free-speech rights and tells a high schooler he\/she should think about Ann Arbor, it\u2019s not the state action of the University of Michigan penalizing the poor kid, but the NCAA.\u00a0 And, at least in some decisions, the NCAA has been held not to be a state actor.[4]<\/p>\n So the chill on Mark\u2019s free speech works a bit like the scene we\u2019ve all seen in the movies: the bad guy holds a gun to some terrified child\u2019s head and says to a parent: \u201cKeep your mouth shut or the kid dies.\u201d\u00a0 It makes the parent think twice about exercising free speech rights to call the cops.\u00a0 The only variation here is that here the state actor issuing the warning isn\u2019t the one holding the kid: the (supposedly private) NCAA is holding the kid.<\/p>\n The question, then, is whether the NCAA can chill Mark\u2019s free speech by occasioning a threat by Michigan, a state actor, that it won\u2019t field any student athlete Mark addresses.<\/p>\n The NCAA certainly thinks so.\u00a0 Read NCAA Rule 13.02.14,[5] which dubs as a \u201crepresentative of the institution\u2019s athletics interests\u201d [sic<\/em>], among many other people, \u201can individual … who is known (or who should have been known) by a member of the institution\u2019s … athletics administration to … have been involved … in promoting the institution\u2019s athletics program.\u201d\u00a0 Ms. Heinrich is without doubt \u201ca member of the institution\u2019s athletic administration.\u201d\u00a0 And if you assume, as Ms. Heinrich does, and probably correctly, that most alums would do Michigan\u2019s 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 \u201crepresentative of the institution\u2019s athletics interests.\u201d\u00a0 And the prohibitions listed above have their roots in NCAA prohibitions that extend to all \u201crepresentatives.\u201d\u00a0 So, yes, it looks as if the NCAA thinks it can chill Mark\u2019s speech by occasioning Ms. Heinrich\u2019s threats against athletes he\u2019d like to talk to.<\/p>\n So, is the NCAA right?\u00a0 There\u2019s not much law on the subject.\u00a0 The closest cases seem to be Crue v. Aiken (7th Cir. 2004)<\/a><\/em>, and the lower court opinion affirmed there.[6]\u00a0 But they\u2019re not on all fours.\u00a0 The would-be free speakers in Crue<\/em> opposed the University of Illinois\u2019 use of a generic Native American figure, Chief Illiniwek, as the school\u2019s mascot.\u00a0 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. \u00a0The university chancellor pulled an Elizabeth Heinrich and sent an e-mail to all faculty, staff and students warning that \u201cNo contacts are permitted with prospective student athletes … without express authorization of the Director of Athletics or his designee.\u201d\u00a0 Again, NCAA rules were cited in justification.\u00a0 The inevitable lawsuit pointed out the little First Amendment problem the e-mail had created.<\/p>\n 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.\u00a0 And this was a painfully obvious penalty whistle.\u00a0 There\u2019s 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.<\/p>\n But what if the students had actually planned, on their own and without involvement of the \u201cathletics administration,\u201d to contact the same prospects to sell them on the joys of Champaign-Urbana?\u00a0 We don\u2019t have a First Amendment-based ruling yet covering that situation.<\/p>\n I\u2019d 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]\u00a0 I\u2019d agree that there could be real challenges to amateurism if free speech reigned.\u00a0 But are state actors allowed to favor only speech conducive to amateurism in the first place?\u00a0 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?\u00a0 Bates v. Arizona State Bar<\/a><\/em>, anyone?[8]\u00a0 The Supreme Court has recently supported free speech even over reasonable economic regulation<\/a> and over efforts to keep politicians from being beholden to corporations.<\/a> So I\u2019d bet on the speakers every time.\u00a0 I\u2019d even bet on Mark if he sued to force Michigan to grant varsity status to students he\u2019d awarded athletic scholarships through a freelance program of his own creation, notwithstanding some kind of private status for the NCAA.<\/p>\n And here’s why: The NCAA has no power separate from what its constituent schools endow it with.\u00a0 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.\u00a0 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.\u00a0 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.\u00a0 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.\u00a0 At least it would if this were a principled, consistent, and predictable Supreme Court.\u00a0 (But that’s a different column.)<\/p>\n Anyhow, there are few things more inimical to First Amendment commercial freedom than NCAA \u201camateurism.\u201d\u00a0 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\u00a0 without it.\u00a0 “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]\u00a0 College sports are often big business for the colleges \u2013 but never for the students who play by the rules.\u00a0 Why should they be left out?\u00a0 And why should Mark?<\/p>\n [1].\u00a0 News coverage of the message here<\/a>.<\/p>\n<\/div>\n [2].\u00a0 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.\u00a0 See, e.g. here<\/a> and here<\/a> concerning recent problems with the football team that led to the removal of its head coach, and, here<\/a>for earlier scandals that cost the head basketball coach his job.<\/p>\n<\/div>\n [3].\u00a0 In National Collegiate Athletic Assn. v. Tarkanian (1988)<\/a>, 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\u2019n (2000)<\/a>, which held an NCAA equivalent for state high schools was<\/em> a state actor.\u00a0 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<\/em> sovereignties, and the fact that there is more than one of them merely means that there are several state actors collaborating.\u00a0 I predict that if that part of the Tarkanian<\/em> holding is ever revisited, it will be overruled.\u00a0 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.\u00a0 That it is a state actor was an assumption that was so obvious as to require no explanation in Crue v. Aiken<\/a><\/em>, the Illinois case discussed below.<\/p>\n<\/div>\n [4].\u00a0 See previous note.<\/p>\n<\/div>\n [5].\u00a0 For some reason the NCAA puts its \u201cLegislation\u201d on the web, but it is hard to find.\u00a0 Getting access to the NCAA\u2019s 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 \u201cLegislation\u201d harder; and harder still is obtaining a usable hyperlink that will take one back to an individual article.\u00a0 The best I can tell a reader who like me is unaccredited and wishes to see this \u201cLegislation\u201d for himself or herself is to start at www.ncaa.org<\/a>, and drill down from the Resources page.\u00a0 If you come across a document entitled Instructions for Online Manual (Bylaw) Search, ignore it.\u00a0 The instructions there are inapplicable from top to bottom.\u00a0 Happy hunting!\u00a0 And in the meantime, you think maybe an organization that calls its rules \u201cLegislation\u201d looks a little bit like a state actor?<\/p>\n<\/div>\n [6].\u00a0 204 F.Supp.2d 1130 (C.D. Ill. 2002).<\/p>\n [7].\u00a0 In Crue<\/em>, the Seventh Circuit pointed out that in “prior restraint” cases involving political speech, like Crue<\/em> itself, courts will apply a balancing test, the so-called NTEU<\/a> 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.\u00a0 The interest has to be quite significant to outweigh such widespread free speech rights.\u00a0 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.\u00a0 First,as I state above, Crue<\/em> involves clearly political speech.\u00a0 Historically, commercial speech did not receive the same kind of protection as did political speech.\u00a0 But the historical political\/commercial distinction seems to carry less and less weight as the years go by.\u00a0 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.\u00a0 But for sure Mark’s challenge, in order to be truly effective, would have to involve post-hoc sanctions, not prior restraint.\u00a0 (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.)\u00a0 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.\u00a0 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.<\/p>\n<\/div>\n [8].\u00a0 This was not a case about \u201camateurism\u201d but rather its apparent opposite, \u201cprofessionalism.\u201d\u00a0 The rationale on both sides was, however, quite similar.\u00a0 The State Bar felt that it was unprofessional and unseemly for lawyers to advertise and tried to discipline two lawyers who did it.\u00a0 The Arizona Bar\u2019s ideal of professionalism, as the Supreme Court held, did not prevail over the free speech right of lawyers who wished to solicit clients.\u00a0 The Court held that by allowing the advertising prices, the needs of legal consumers were served.\u00a0 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.<\/p>\n<\/div>\n [9].\u00a0 The NCAA\u2019s use of its market power obviously resembles and may in fact be an antitrust violation.\u00a0 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\u2019s rules was settled, with the NCAA ponying up a $10 million fund to keep the case from going to trial.\u00a0 Read about it here<\/a>.<\/p>\n<\/div>\n<\/div>\n Copyright (c) Jack L. B. Gohn<\/p>\n The Big Picture Home Page<\/a> | Previous Big Picture Column<\/a> | Next Big Picture Column<\/a><\/p>\n","protected":false},"excerpt":{"rendered":" Of course, it\u2019s not the State of Michigan itself establishing the threat, but rather the National Collegiate Athletic Association. \u201cThe NCAA has strictly limited the role you, as a Michigan Fan, may take with regard to prospects and student-athletes.\u201d So the chill on Mark\u2019s free speech works a bit like the scene we\u2019ve all seen in the movies: the bad guy holds a gun to some terrified child\u2019s head and says to a parent: \u201cKeep your mouth shut or the kid dies.\u201d 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\u2019t the one holding the kid: the (supposedly private) NCAA is holding the kid.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[2899,2901,2902,2887,2898,2904,2897,2900,2894,2886,187,2885,2884,2903,2896,2883,2882,2891,167,2893,2892,2890,2895,2357,2888,2889],"class_list":["post-2506","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-amateurism","tag-antitrust","tag-antitrust-status-of-college-sports","tag-athletics","tag-bates-v-arizona-state-bar","tag-brentwood-academy-case","tag-chief-illiniwek","tag-citizens-united","tag-crue-v-aiken","tag-elizabeth-heinrich","tag-first-amendment","tag-freedom-of-association","tag-freedom-of-speech","tag-jerry-tarkanian","tag-mascot","tag-national-collegiate-athletic-association","tag-ncaa","tag-private-actor","tag-professionalism","tag-representative-of-the-institutions-athletics-interests","tag-rule-13-02-14","tag-state-actor","tag-university-of-illinois","tag-university-of-michigan","tag-university-of-michigan-athletics","tag-university-of-michigan-law-school"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2506","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2506"}],"version-history":[{"count":32,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2506\/revisions"}],"predecessor-version":[{"id":3002,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2506\/revisions\/3002"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2506"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2506"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2506"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}… Or The Kid Dies: The NCAA’s Little First Amendment Problem<\/span><\/h2>\n
No Precatory Niceties<\/h3>\n
No Calling The Cops<\/h3>\n
No Shutting Down Political Debate<\/h3>\n
No Getting Past State Power<\/h3>\n
No Tears For Amateurism<\/h3>\n
\n