By: Dionne L. Koller
The state action doctrine has as its central goal the
preservation of liberty by limiting the intrusion of the government
into the “private” sphere. It achieves this by applying the
Constitution only to government, and not private, action.
Traditionally, amateur sports regulators such as the National
Collegiate Athletic Association (NCAA) and the United States
Olympic Committee (USOC) have been viewed by courts as
private. As a result, this article explains that courts
generally give great deference to amateur sports organizations such
as the NCAA and USOC to regulate sports with little judicial
interference, including in the area of constitutional
litigation. This deference is manifest in the Supreme Court’s
decisions, during the late 1980’s, that the NCAA and the USOC are
private, and not state, actors.
This article makes the claim that these decisions have had
important and un-intended consequences that warrant a
re-examination of the application of the state action doctrine in
the amateur sports context. The most significant consequence
is that a static conception of the nature of the NCAA and the USOC,
and the government’s relationship to them, has developed, so that
the NCAA and the USOC are thought to be private actors as a matter
of law. As a result, these decisions have produced the
paradoxical result that the government has been virtually invited
to exercise far more state power in what was traditionally a
private area. This exercise of state power largely goes
unchecked, and this article argues this is to the detriment of
amateur athletes, a significant number of whom are
African-American. Moreover, this static conception of the
NCAA and USOC, and the government power exercised through them, has
chilled litigation on the issue and perpetuated the perception that
the NCAA and the USOC exploit amateur athletes. This article
argues that because of these consequences, the Supreme Court should
no longer give deference to amateur athletic regulators on the
state action issue, as there is a strong case that state power, now
more than ever, is exercised through America’s most important
amateur sports institutions.