The civil rights claim of a sports writer, who sued the NCAA and the College World Series of Omaha, Inc. after they revoked his press credential, was dismissed after the court reaffirmed that the NCAA “does not act under color of state law for purposes of § 1983.”
Plaintiff Ben Salazar, who is of Mexican-American ethnicity, publishes Nuestro Mundo, a bilingual newspaper in Omaha, Nebraska. Because of the newspaper’s location, the plaintiff and his staff usually receive CWS press credentials, as he did for the 2005 CWS baseball tournament in Omaha. The NCAA and CWS jointly sponsor the annual CWS tournament.
“On June 16, 2005, the plaintiff and a colleague, both bearing Nuestro Mundo press credentials, were admitted to the CWS game through the press box,” wrote the court. “In accordance with past practice approved by the NCAA, they sat in open seats, as Nuestro Mundo does not have assigned seating. The understanding between Nuestro Mundo and the NCAA required that if someone arrived demonstrating assignment to the seats occupied by Nuestro Mundo press members, the Nuestro Mundo press would relocate.”
That night, however, “an exceedingly unpleasant argument over seating erupted.” The court noted that a person not involved in this litigation “rudely berated the plaintiff and his colleague. Then (David) Worlock, in charge of press credentials for the NCAA, appeared, and matters further deteriorated. The parties exchanged words, and Worlock revoked the plaintiff’s credentials. Worlock even grabbed the credentials draped on a cord around the plaintiff’s neck and yanked the cord off of the plaintiff’s person. Then Worlock summarily evicted the plaintiff from the stadium.”
The plaintiff sued, alleging “violations of his First Amendment right to freedom of expression and his right to free access to and use of public accommodations. He seeks to vindicate those rights pursuant to 42 U.S.C. § 1983 and 42 U.S.C. §§ 2000a et seq., the Public Accommodations Title of the 1964 Civil Rights Act.”
The court then reviewed 42 U.S.C. § 2000a (Public Accommodations) and 42 U.S.C. § 1983 (Action Under Color of State Law). Regarding the latter, it noted that a “plaintiff must establish that he was deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under ‘color of state law,’ i.e., by a ‘state actor.’
“The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the State?’ Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982); Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982).
“Thus, an allegation that a private individual has deprived the plaintiff of a constitutional right fails to state a cause of action under 42 U.S.C. § 1983. See, e.g., Pino v. Higgs, 75 F.3d 1461, 1464-67 (10th Cir. 1996): ‘To bring a claim under § 1983, a plaintiff must initially establish that a defendant acted “under color of any statute, ordinance, regulation, custom, or usage, of any State” to deprive the plaintiff of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983.’ Therefore, if the actions of a defendant were ‘not state action, our inquiry ends.’ Rendell-Baker v. Kohn, 457 U.S. at 838.”
Turning to the instant case, the court noted that “even assuming the truth of the factual allegations in the complaint, as amended, the plaintiff has not alleged a factual basis for state action. First, the United States Supreme Court has previously determined that the NCAA does not act under color of state law for purposes of § 1983. See NCAA v. Tarkanian, 488 U.S. 179, 109 S. Ct. 454, 102 L. Ed. 2d 469 (1988). As explained in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 297-98, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001), citing NCAA v. Tarkanian, 488 U.S. at 193, because the NCAA’s policies are shaped by ‘several hundred member institutions’ located in different jurisdictions ‘most of them having no connection with’ any particular state, ‘it was difficult to see the NCAA, not as a collective membership, but as [a] surrogate for . . . one State.’ Thus, the organization’s connection with any one state was ‘too insubstantial to ground a state-action claim.’
”In this case, the plaintiff has failed to explain why the same rationale would not apply to the CWS. In addition, as the NCAA is not a state actor, the plaintiff has asserted no reason why the NCAA’s employee, Worlock, is anything but a private individual. Thus, when Worlock shoved the plaintiff and evicted him from the CWS game on June 16, 2005, Worlock did not act under color of state law. His actions as described by the plaintiff constituted acts of petty meanness, unprofessional conduct, and possibly a battery under state law, but they were the acts of a private individual.
”Therefore, the plaintiff has not stated a claim on which relief may be granted under 42 U.S.C. § 1983 or Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et seq. As a result of the resolution of the foregoing matters, the plaintiff’s claims against the defendants will be dismissed. The claims arising under federal law will be dismissed with prejudice. In addition, the court has discretion under 28 U.S.C. § 1367(c)(3) to decline to exercise supplemental jurisdiction over the claims arising under state law when the court has dismissed the claim(s) over which this court has original jurisdiction, i.e., the federal claims. 28 U.S.C. § 1367 (d) tolled the limitations period for the state law claims against the defendants while this federal case was pending. In the event the plaintiff may wish to assert his claims arising under state law in a state court, any such state law claims in this case will be dismissed without prejudice.”
Ben Salazar v. NCAA, et al.; D. Neb.; 8:06cv415, 2007 U.S. Dist. LEXIS 16736; 3/5/07
Attorneys of Record: (plaintiff) Ben Salazar, Pro se, Omaha, NE. (for defendants) Julie A. Schultz, Koley, Jessen Law Firm, Omaha, NE; Michael C. Cox, Koley, Jessen Law Firm, Omaha, NE.
