United States District Court, E.D. Arkansas, Western Division
National Collegiate Athletic Association's
(“NCAA”) motion to dismiss [Doc. No. 19] is
Board of Trustees of Arkansas Tech University
(“Arkansas Tech”) filed suit against the NCAA
claiming a breach of contract and civil rights violations
under 42 U.S.C. section 1983 and the Arkansas Civil Rights
Act (“ACRA”). The NCAA argues dismissal is proper
because Arkansas Tech has not shown that the NCAA violated
its contract and because the NCAA is not a state actor
capable of being sued under section 1983 or the ACRA.
Tech is a Division II member of the NCAA. As a member,
Arkansas Tech pays dues, and both Arkansas Tech and the NCAA
agreed to abide by the obligations found in the Division II
Manual, which operates as a contract. In 2012, Arkansas Tech
violated the NCAA bylaws by allowing the women's
basketball program to pay security deposits for on-campus
housing on behalf of six of its players. After Arkansas Tech
recognized its violations, it self-reported to the NCAA. As a
result, the NCAA conducted an investigation as to whether
Arkansas Tech committed similar violations from 2009 to 2013.
the investigation, Arkansas Tech sent a Summary Disposition
Report to the NCAA's Committee on Infractions
(“COI”). The report reviewed the COI's
proposed factual findings and violations and suggested
self-imposed penalties. The COI accepted the report and
issued additional penalties, one of which required Arkansas
Tech to vacate 205 wins from its men's and women's
basketball teams. Arkansas Tech rejected this penalty and
requested a hearing on the issue. The COI denied the hearing
and upheld its decision. Arkansas Tech appealed the decision
to the NCAA's Infractions Appeals Committee
(“IAC”). The IAC explained that the penalty
imposed by the COI was not excessive based on the totality of
violations and prior NCAA precedent. IAC March 4, 2016,
Report, Ex. G, Doc. No. 14 at 472-74, and it denied the
appeal. The IAC did not expressly rule on whether the COI
abused its discretion.
Tech argues that the NCAA's actions breached the Division
II Manual in two ways: the NCAA violated bylaw 126.96.36.199,
which requires it to issue a ruling as to whether the COI
abused its discretion, and the NCAA violated bylaw 19.01.1,
which Arkansas Tech construes to imply a duty of good faith
and fair dealing.
Rule of Civil Procedure 12(b)(6) permits dismissal when the
plaintiff fails to state a claim upon which relief may be
granted. To meet the 12(b)(6) standard, a complaint must
allege sufficient facts to entitle the plaintiff to the
relief sought. See Ashcroft v. Iqbal, 556 U.S. 662,
663 (2009). Although detailed factual allegations are not
required, threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, are
insufficient. Id. When deciding a motion to dismiss,
only the complaint, materials necessarily embraced by the
pleadings, and matters of public record are to be considered.
Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th
doctrine of judicial noninterference requires dismissal of
Arkansas Tech's contract claim. Arkansas Tech is correct
that judicial interference may be appropriate when
associations comprised of voluntary members violate the law
or the association's own bylaws. Spirit Lake Tribe of
Indians ex rel. Committee of Understanding and Respect v.
NCAA, 715 F.3d 1089, 1093-94 (8th Cir. 2013). The facts
as alleged, however, do not demonstrate that the NCAA
violated the law or its bylaws. Bylaw 188.8.131.52 provides,
“A penalty prescribed by the Committee on Infractions
shall not be set aside on appeal except on a showing by the
appealing party that the penalty is excessive such that it
constitutes an abuse of discretion.” NCAA Division II
Manual, Ex. A, Doc. No. 14, at 420. The bylaw clearly places
the burden of proof on Arkansas Tech as the appealing party,
not on the NCAA. Moreover, the bylaw sets out what must
happen for a penalty to be set aside, not for a penalty to be
upheld. Nothing alleged in the complaint establishes that the
NCAA violated bylaw 184.108.40.206.
a breach of the implied covenant of good faith and fair
dealing does not provide an independent cause of action.
Parker v. PHH Mortg. Corp., No. 4:11CV00439 BSM,
2014WL626594, at *3 (E.D. Ark. Feb. 18, 2014).
NCAA's motion is granted as to Arkansas Tech's
section 1983 claim because the NCAA is not a state actor.
Nat'l Collegiate Athletic Ass'n v.
Tarkanian, 488 U.S. 179, 196 (1988). In
Tarkanian, the Supreme Court held that the
“NCAA is properly viewed as a private actor at odds
with the State when it represents the interests of its entire
membership in an investigation of one public
university” and that the “NCAA enjoyed no
governmental powers to facilitate its investigation. . . .
Its greatest authority was to threaten sanctions against [the
university], with the ultimate sanction being expulsion of
the university from membership.” Id. at 197.
“[S]uch governance cannot rise to the level of state
action, ” and “the receipt of federal funding . .
. cannot transform the NCAA into a state actor.”
The Spirit Lake Sioux Tribe of Indians v. The Nat'l
Collegiate Athletic Ass'n, No. 2:11-CV-95,
2012WL12886993, at *7-8 (D.N.D. May 1, 2012).
“Tarkanian foreclosed any claim that [the
university] may have had that the NCAA is a state
actor.” Id. (italics added).
to Arkansas Tech's assertions, the Supreme Court's
more recent holding in Brentwood does not change the
outcome. If anything, Brentwood reinforces
Tarkanian. In Brentwood, the Supreme Court
reiterates Tarkanian's holding that the
NCAA's “connection with [the state is] too
insubstantial to ground a state-action claim” because
“the NCAA's policies were shaped not by the
[university] alone, but by several hundred member
institutions, most of them having no connection with [the
state], and exhibiting no color of [state] law.”
Brentwood Academy v. Tennessee Secondary School Athletic
Ass'n, 531 U.S. 288, 297-98 (2001). Materials
attached to Arkansas Tech's complaint confirm that the
NCAA is comprised of members across the United States and
Canada. Moreover, Brentwood is easily
distinguishable from the facts at hand because the
organization found to be a state actor in Brentwood
was comprised solely of schools within a single state,
Brentwood Academy, 531 U.S. at 290, whereas the NCAA
is comprised of schools from across the United States and
Canada, see. e.g., NCAA Constitution, Ex. A, Doc.
No. 14, at 61 (“Membership is available to colleges . .
. located in Canada and the United States, its territories or
a section 1983 claim, a claim brought under the ACRA requires
state action. See Rudd v. Pulaski Cty. Special Sch.
Dist.,20 S.W.3d 310, 312 (Ark. 2000). Accordingly,
Arkansas Tech's section 1983 and ACRA claims are
dismissed in their ...