I. BOWL CHAMPIONSHIP SERIES
a. College footballs method of determining its national championship
b. Complicated formula uses coaches poll, Harris poll, and computer ratings
c. Top two teams play in National championship; ten total teams play in BCS games (Sugar, Fiesta, Rose, Orange and National Championship
d. PROBLEMS: no true playoff to determine National champion (only NCAA sport not to), Often not clear who is #2, allows writers and/or computers to decide which teams play for the championship
e. GOOD: Controversy creates interest, makes each week count, preserves collegiality of college sports not excessive number of games, preserves traditional bowl system, not just one winner many teams end the season with a win
f. House Report 390: College Football Playoff Act of 2009 (Effective 1/31/2011)
i. To prohibit as an unfair and deceptive act or practice, the promotion, marketing, and advertising of any post-season NCAA division I football game as a national championship game unless such game is the culmination of a fair and equitable playoff system
ii. Applies to:
1. Promotion of the game AND
iii. Enforcement by the Federal Trade Commission
1. The commission has authority to promulgate “rules which define with specificity acts or practices with are unfair or deceptive acts or practices in or affecting commerce
2. There is a lot of money at stake here, 1.2 billion in revenue for host cities; 17.5 million per game split between conferences in each of the 5 BCS games (almost 90 million); 125 million annual television contract with ESPN and BCS schools.
iv. Bill’s Constitutionality:
1. First Amendment: Freedom of Speech
a. False and Misleading speech is not Protected by the First Amendment…
i. If it is protected what level of protection does it get?
1. Rational basis- legitimate interest, rationally related
2. Intermediate scrutiny-substantial interest, narrowly tailored
3. Strict scrutiny- compelling interest, least restrictive means
b. Commercial Speech- 4 part analysis to determine CONSTITUTIONALITY
i. Is it protected by the first amendment?
1. Lawful activity and not be misleading
ii. Is the asserted governmental interest substantial?
iii. Does the regulation directly advance governmental interest asserted?
iv. Whether it is not more extensive than is necessary to serve that interest?
1. Apply intermediate scrutiny standard from Central Hudson
2. Posadas was a step in the direction of diminished protection, allowing regulation of speech where conduct could be prohibited
3. 44 Liquormart, as adopted by Greater New Orleans, rejected Posadas and allowed regulation of speech regardless of whether conduct could be prohibited
v. Merchandising if speech is not commercial but instead expressive then such speech is entitled to strict scrutiny protection
vi. Congress can regulate interstate commerce which is vested to them by Article I, section 8 of the Constitution
1. Congress could prohibit the bowl games
2. Congress could require there to be a playoff
3. Congress could condition federal funds given to NCAA institution on implementation of a playoff system
4. Commerce Clause would allow so long as Congress has a rational basis to regulate
II. THE STUDENT ATHLETE AND UNIVERSITY RELATIONSHIP
a. The relationship between the student-athlete and the university is a contractual one, with the express contract requiring participation by the athlete as a condition to the institution’s obligation to provide aid (Taylor)
i. Express Contract Arising out of:
1. The Statement of Financial Assistance (to assist and enable student-athletes to pursue a program of study and to participate in the educational process of the institution)
e. NCAA Bylaw, Article 15:
i. One year limit- financial aid can be awarded just for one year
ii. Reduction or cancellation can only be done if the student athlete becomes:
1. Ineligible, Serious Misconduct, or Voluntarily Withdraws, not based on athletic ability.
iii. Renewals have to occur on or before July 1 prior to the academic year
1. Hearing before Financial Aid Committee (not AD or FAC)
2. National Letter of Intent (NIL) (Not required)
a. Recruits may sign a letter of intent agreeing to attend the institution for one year in exchange for the institution’s promise, in writing, to provide you athletics financial aid for the entire academic year provided
ey don’t attend a major university and if they don’t play a major sport (Bilney)
IV. JUDICIAL DEFERENCE TO THE NCAA
a. Does the NCAA constitute a State action prohibited by the Fourteenth Amendment and were performed “under color of state law” within the meaning of § 1983?
i. State action is subject to 14th Amendment Scrutiny, Private conduct is not
ii. UNLV suspended Tarkanian, the state entity, was UNLV’s actions in compliance with the NCAA ruels and recommendations turned the NCAA conduct into State Action
1. NCAA did not and could not directly discipline Tarkanian or any other state university employee, but even if the private party can impose its will on a state agency it doesn’t follow that the private party is acting under the color of state law
2. Dissent: On the facts of the present case the NCAA acted jointly with UNLV in suspending Tarkanian
b. The NCAA is not a state actor for purposes of the Fourteenth Amendment in its regulation of its member institutions (NCAA v. Tarkanian)
c. State action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.
i. Private character of the Association is overborne by the pervasive entwinement of public institutions and public officials
d. Interscholastic athletic association is a state actor for purposes of the Fourteenth Amendment in its regulation of high school athletics within the state (Brentwood Academy v. TSSAA)
e. Title IX Prohibition against discriminations: just because NCAA received dues from federally funded members does not mean it is subject to the requirements of Title IX… Because it does not receive “federal financial assistance,” the NCAA cannot be sued under Title IX (NCAA v. Smith)
f. Athletes have third party standing to challenge NCAA eligibility determinations, but courts generally defer to the NCAA unless it has acted arbitrarily, unreasonably, or unfairly in administering its rules, so Bloom can play division one football but cannot be paid for advertisements that came from professional skiing, his argument that it came from his good lucks is not persuasive (Bloom v. NCAA)
g. Student-Athletes have no privacy, property, or liberty interests that prevent their institutions from implementing NCAA drug testing (Brennan)