By Paul J. Greene and Matthew D. Kaiser
On August 24, 2017, Amani Elijah Bledsoe, a defensive lineman for the University of Oklahoma, filed a lawsuit in Oklahoma state court against the NCAA, challenging the denial of his NCAA doping appeal.[1] The lawsuit asks for a finding from the court in the form of a declaratory judgment that the NCAA wrongly denied Mr. Bledsoe’s internal doping appeal by violating his substantive and procedural due process rights under Oklahoma law. Mr. Bledsoe also sought an injunction to permit him to play the first 4 games of the 2017 season. In his complaint, Mr. Bledsoe claims his name and reputation has been “forever impugned” because of the NCAA’s actions and that his draft status for the NFL will be affected by the NCAA’s denial of his rights. The NCAA filed a motion to dismiss Mr. Bledsoe’s complaint. A hearing has been scheduled for November 20th. Since the court did not grant the injunction sought by Mr. Bledsoe he will be forced to finish out his 1-year suspension, which ends on October 4, 2017.
Mr. Bledsoe received a full-ride scholarship out of high school to the University of Oklahoma (“OU”) and began his freshman year at OU in 2016. Since high school, Mr. Bledsoe regularly purchased and used whey protein powder as part of his diet and continued to do so at OU. In September 2016, Mr. Bledsoe ran out of his own whey protein powder and asked an OU teammate where he could buy some more. Mr. Bledsoe did not have a car, so his teammate told Mr. Bledsoe that he had an unopened container of whey protein powder called “Inner Armour Sports Nutrition: Anabolic Peak” and allowed Mr. Bledsoe to use it until he bought his own bottle. Mr. Bledsoe only consumed “one very large serving” of the Inner Armour powder before finally buying his own.[2] On October 5, 2016, the NCAA selected Mr. Bledsoe for a random drug test. Two weeks later, Mr. Bledsoe’s A sample came back positive for clomiphene, a prohibited substance under the NCAA’s rules because it is a hormone regulator that can help raise testosterone levels. Mr. Bledsoe then had his B sample tested, which confirmed its presence. The OU Athletic Director timely notified the NCAA of his appeal.
Once clomiphene was confirmed in both of Mr. Bledsoe’s samples, Mr. Bledsoe gave all of his multi-vitamins and supplements—including Inner Armour and his own whey protein powder (Optimum Nutrition)—to OU’s Head Athletic Trainer to verify that there were no prohibited substances in them. The trainer did not find any on the ingredient labels. The supplements were then sent to Aegis Sciences Corporation for independent testing to detect the presence of clomiphene. Aegis found the Inner Armour powder contained approximately 81 parts per million of clomiphene, while no other supplement came back positive for clomiphene. Mr. Bledsoe submitted a written appeal on November 28, 2016, to the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports (“the Committee”), and three days later on December 1, 2016, the Committee heard Mr. Bledsoe’s appeal. The Committee ultimately found against Mr. Bledsoe and denied his appeal, meaning Mr. Bledsoe was suspended for one calendar year beginning on October 5, 2016.
Mr. Bledsoe filed a lawsuit in state court against the NCAA alleging that the entire NCAA doping appeals process is unconstitutional under the Oklahoma Constitution because it violates his substantive and procedural due process rights. In order to prove the NCAA is a state actor and thus the Oklahoma Constitution is applicable, Mr. Bledsoe relies on two arguments, namely (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”.[3]
Mr. Bledsoe then argues his substantive rights, such as the right to participate on the OU football team, “develop as an OU scholarship student-athlete”, and continue to build to become a professional football player or football coach,[4] were allegedly infringed upon when the NCAA arbitrarily, capriciously, and unlawfully found against Mr. Bledsoe. He further claims he was not afforded proper due process because he “was precluded from fully and fairly presenting his complete case to the NCAA, both in his written submission and appeal hearing.”[5]
In response, on September 18, 2017, the NCAA filed a motion to dismiss Mr. Bledsoe’s complaint. The NCAA argues that Mr. Bledsoe’s petition should be dismissed because he has failed to prove that (1) “the NCAA is a ‘state actor’ for purposes of the Due Process Clause,” and that (2) “the privilege of playing college football is a liberty or property interest protected by the Oklahoma Constitution.”[6]
The NCAA argues that even though it is made up of public and private schools, it is a private actor, citing NCAA v. Tarkanian[7], a case decided by the US Supreme Court. In Tarkanian, the US Supreme Court held that the NCAA was not a state actor because it had “no governmental powers to facilitate its investigation”, it “could not [] directly discipline Tarkanian or any other state university employee[,]” and “even if . . . [theoretically] a private monopolist can impose its will on a state agency by a threatened refusal to deal with it, it does not follow that such a private party is therefore acting under the color of state law.”[8]
Applying “[t]he Supreme Court’s reasoning in Tarkanian” to Mr. Bledsoe’s case, the NCAA asserts the NCAA’s anti-doping process and program “cannot be attributed to the State of Oklahoma or any other individual State”, especially because the NCAA did not act as an agent to OU.
The NCAA subsequently claims Mr. Bledsoe’s “Petition must be dismissed for an independent reason: [Mr. Bledsoe] also fails to establish that the privilege of playing college football is a constitutionally protected liberty or property interest under the Oklahoma Constitution.”[9] Citing to Scott v. Oklahoma Secondary School Activities Ass’n,[10] which held that “a [high school] student’s participation in interscholastic athletics is not a right but a privilege” and thus the Fourteenth Amendment’s Due Process Clause was not implicated, the NCAA claimed Mr. Bledsoe likewise could not invoke the guarantees of the Oklahoma Constitution’s Due Process Clause for intercollegiate athletics. [11]
The court will hear arguments during the hearing scheduled for November 20th. No timetable has been set for a decision on the NCAA’s motion to dismiss.
Paul J. Greene is the Founder of Global Sports Advocates.
Matthew D. Kaiser is an associate at Global Sports Advocates.
[1] Appeal in full can be read at https://deadspin.com/oklahomas-amani-bledsoe-sues-ncaa-over-drug-suspension-1803762308.
[2] Petition, para. 25.
[3] Id. at paras. 59-60.
[4] Id. at para. 53.
[5] Id. at para. 75.
[6] Response at 1.
[7] 488 U.S. 179 (1988).
[8] Id. at 198.
[9] Response at 8.
[10] 2013 OK 84 (Okla. 2013).
[11] Response at 8.
