By Paul J. Greene & Matthew D. Kaiser, Global Sports Advocates
The University of Oklahoma’s defensive lineman, Amani Elijah Bledsoe, started in all 14 games this past season, which culminated in a tough loss against the number one seed, the University of Alabama, in the College Football Playoff semi-finals at the Orange Bowl. Unfortunately for Mr. Bledsoe, this was not his only devastating loss of the year. About two weeks prior to the Orange Bowl, on December 11, 2018, Bledsoe’s lawsuit against the NCAA, which he initiated back in August 2017, finally came to an end when District Judge Jeff Virgin granted the NCAA’s motion for summary judgment, ending Mr. Bledsoe’s case and leaving the NCAA’s Drug Testing Program unchanged.
Back in October 2016, Mr. Bledsoe failed a random drug test by the NCAA when his sample tested positive for clomiphene, which was found in a supplement Mr. Bledsoe had consumed. Mr. Bledsoe appealed the positive test to the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports, but it was ultimately denied and a suspension of 1 year was imposed. He subsequently filed a lawsuit in Oklahoma state court against the NCAA, seeking a finding in the form of a declaratory judgment that the NCAA’s doping appeal process was unconstitutional because it violated both his substantive[1] and procedural[2] due process rights under the Due Process Clause of the Oklahoma Constitution[3]. In order to prevail on his claims, Mr. Bledsoe had to prove that (i) the NCAA was a “state actor”[4] and (ii) the substantive right at issue (i.e. playing college football) is an interest protected by the Oklahoma Constitution.
While the NCAA tried to end the case in 2017 by filing a motion to dismiss for failure to state a claim, Judge Virgin denied this initial NCAA motion after a hearing was held on November 20, 2017.[5] Consequently, after a flurry of submissions, the NCAA filed a motion for summary judgment, as did Mr. Bledsoe. Mr. Bledsoe argued there were no material facts in dispute since the NCAA was a state actor[6], the NCAA failed to consider all of Mr. Bledsoe’s evidence or even apply its own rules appropriately[7], and the suspension directly affected his liberty interests in making a living playing professional football, his reputation, and the guarantees associated with his athletic scholarship from the University of Oklahoma.[8]
The NCAA argued that summary judgment should be granted because the Supreme Court of the United States had already ruled that the NCAA is not a state actor, other courts have concluded participation in collegiate football is not a protected interest under the Due Process Clause, and even if Mr. Bledsoe was able to meet the two circumstances above, the facts presented to the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports do not demonstrate that Mr. Bledsoe deserved a reduced sanction[9].
In his two-page decision, Judge Virgin dismissed Mr. Bledsoe’s motion for summary judgment and granted the NCAA’s motion for summary judgment under the “state actor” prong of the Due Process Clause analysis. In particular, Judge Virgin found the precedent set by NCAA v. Tarkanian[10] clearly established the NCAA is not a state actor and thus cannot violate the Due Process Clause of the Oklahoma Constitution. While Mr. Bledsoe cited both Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n[11] and Board of Regents of University of Oklahoma v. NCAA[12] in an attempt to show the NCAA can be classified as a state actor[13] and thus “judicial intervention” for constitutional claims against the NCAA was necessary[14], Judge Virgin found the NCAA demonstrated that, contrary to Mr. Bledsoe’s argument, the cases he cited actually supported the NCAA’s position that it was not a state actor. Using those cases, the NCAA pointed out that in Brentwood Academy, “the [U.S.] Supreme Court reiterated its holding in Tarkanian that the NCAA is not a state actor, and then explained that a statewide athletics association is critically different than the NCAA . . . .”[15], and that Board of Regents did not address claims under the Oklahoma Constitution and in fact explicitly noted the NCAA was not a state actor.[16]
Because the NCAA was deemed not to be a state actor, “no material facts remain[ed] in dispute” and Judge Virgin granted the NCAA’s motion for summary judgment.[17] Consequently, the holding of Bledsoe reiterated that the NCAA is not a state actor and is insulated from constitutional claims. The decision did not, however, address the validity of the NCAA Drug Testing Program. As this demonstrates, such an anti-doping program is very difficult to challenge, let alone dismantle.
[1]See, Petition, Aug. 24, 2017, p. 9 (substantive rights argued, include his right to play football for Oklahoma University, develop as a student-athlete, and “invest his time, resources, and efforts into . . . developing his skills to earn a living” as a coach or NFL player).
[2] See, Id. at p. 16 (procedural rights argued include “[t]he NCAA arbitrarily, capriciously, and unlawfully enforced” its bylaws and denied Mr. Bledsoe’s appeal, it “administered . . . quasi-criminal punishments . . . on a strict liability basis without any type of knowledge, intent, or mens rea component[,]” and the NCAA lacked “an appropriate level of procedural safeguards.”).
[3] Article II, Section 7 of the Oklahoma Constitution: “No person shall be deprived of life, liberty, or property without due process of law.”
[4] See, National Collegiate Athletic Association’s Reply Brief in Support of Motion to Dismiss, Nov. 13, 2017, p. 2 (“[T]o state a valid claim under the Due Process Clause, Plaintiff must show that the NCAA essentially functioned as the State of Oklahoma in adopting and applying its Drug Testing Program in this case.”).
[5] Ruling and Order, RE: Motion to Dismiss Denied, District Judge Jeff Virgin, November 21, 2017.
[6] See, Petition, p. 11 (Mr. Bledsoe argued the NCAA was a “state actor” because (1) the NCAA is “so dominant in its field that membership in a practical sense is not voluntary but economically necessary for” Mr. Bledsoe and OU, and (2) the NCAA is pervasively entwined with “public institutions and public officials”).
[7] Plaintiff Amani Elijah Bledsoe’s Motion for Summary Judgment, Oct. 25, 2018, pp. 18 — 24. (Mr. Bledsoe argued the NCAA grossly erred in finding he did not fit within the two exceptions provided in the NCAA’s anti-doping rules, namely the “sabotage” exception—or where a third-party administers a substance to the athlete, unbeknownst to the athlete—and “trusted approval” exception—or where the athlete, before using a product, went to an athletics administrator and the administrator assured the athlete that the product had no banned substances in it).
[8] Id. pp. 14-18.
[9] Defendant National Collegiate Athletic Association’s Reply Brief in Support of Motion for Summary Judgement, December 6, 2018, p. 8 (“Plaintiff cannot assert the ‘sabotage defense’ because he admits that he prepared his own drink from an unopened container of Anabolic Peak, so he cannot claim that the substance was directly administered to him by another person.
Plaintiff cannot assert that he complied with the requirement to check all supplements with the Head Athletic Trainer before ingesting them because he concedes that he consumed the supplement without having done so.
Plaintiff cannot assert that [Oklahoma University] did not provide an adequate education program about supplements because he admits he informed the NCAA Appeal Committee that [Oklahoma University] provided him adequate education and training about the risks of using supplements.
Plaintiff cannot assert that he could not fully comprehend [Oklahoma University’s] warning and directives about the use of supplements based on his undiagnosed ADHD because he admits he knowingly elected not to raise the issue of his alleged ADHD during appeal or as new evidence thereafter.”).
[10] 488 U.S. 179 (1988).
[11] 531 U.S. 288, 290 (2001) (“The issue is whether a statewide association incorporated to regulate interscholastic athletic competition among public and private secondary schools may be regarded as engaging in state action when it enforces a rule against a member school.”).
[12] 313 P.3d 891 (Okla. 2013).
[13] See, Brentwood Academy, at 291 (“We hold that the association’s regulatory activity may and should be treated as state action owing to the pervasive entwinement of state school officials in the structure of the association, there being no offsetting reason to see the association’s acts in any other way.”).
See, Board of Regents, at 898 (“In [Christian Heritage Academy v. Oklahoma Secondary School Activities Association] . . ., the court concluded that the OSSAA was subject to the Fourteenth Amendment, because it was a state actor. The court held that the OSSAA’s conduct constituted state action because of the pervasive entwinement of public institutions and public officials in the composition and workings.”].
[14] See, Plaintiff Amani Bledsoe’s Response in Opposition to Defendant NCAA’s Motion to Dismiss, Oct. 10, 2017, p. 16 (“In [Bd. Of Regents of Univ. of Oklahoma v. Nat’l Collegiate Athletic Ass’n,] [t]he Supreme Court of Oklahoma . . . laid a strong foundation for judicial intervention into NCAA actions for constitutional claims . . . .”).
[15] Defendant National Collegiate Athletic Association’s Motion for Summary Judgment and Brief in Support Thereof, Oct. 31, 2018, p. 16.
[16] See, Defendant National Collegiate Athletic Association’s Reply Brief in Support of Motion for Summary Judgment, Dec. 6, 2018, p. 3 (“Plaintiff attempts to characterize the decision of Board of Regents as having ‘laid a strong foundation for judicial intervention into NCAA actions for constitutional claims.’ This argument fails for two reasons: (1) the Board of Regents decision involved federal and state antitrust claims, not claims under the Oklahoma Constitution; and (2) the court in Board of Regents specifically held, “NCAA activities are not state action.”).
[17] Ruling and Order, Dec. 11, 2018.
