The Second U.S. Circuit Court of Appeals has ruled in favor of the NCAA in a case brought by former University of Buffalo men’s basketball coach Timothy Cohane, which challenged the NCAA’s infraction process.
“This affirmation speaks to the fairness of the NCAA’s infractions process — from enforcement staff investigations through decisions made by the Committee on Infractions and the Infractions Appeals Committee,” Donald Remy, the NCAA’s chief legal officer.
By way of background, Cohane was hired by the SUNY Buffalo in 1993. He continued to coach the team for five more years at which point defendant Robert Arkeilpane was hired as SUNY’s athletic director.
Cohane accused Arkeilpane of leveraging “a pre-existing friendship and business relationship with Rob Fournier, the then-Director of Compliance for the MAC” to have Cohane accused of violating NCAA rules. Fournier reported the alleged violations to the NCAA.
According to Cohane, “the SUNY Defendants authorized, assisted and conspired with Fournier to violate his due process rights as well as the protocols and rules promulgated by the NCAA and MAC. Specifically, he alleged that with the consent of the SUNY Defendants, Fournier conducted interviews without tape recording them, as required, prepared affidavits for adverse witnesses, intimidated witnesses into giving damaging testimony against Cohane, misrepresented himself to potential witnesses by claiming that he was an attorney or an employee of SUNY Buffalo, and refused Cohane’s request for information regarding the nature of charges against him or documentation of his alleged infractions.”
The NCAA subsequently moved to dismiss, claiming it “was not acting under the color of state law and, alternatively, on the ground that the plaintiff’s allegations were insufficient to support a claim of either substantive or procedural due process.”
In a report dated August 8, 2013, a magistrate judge from the Western District of New York agreed with the NCAA on the state actor point. He also found that the procedural due process claim failed because “(1) the stayed show cause penalty does not constitute a tangible burden upon potential employers as required to invoke the procedural protections of the due process clause; and (2) the NCAA afforded plaintiff adequate process or, alternatively, plaintiff is a public figure with sufficient access to the media to refute the allegations against him regardless of the adequacy of the process afforded by the NCAA.”
The plaintiff appealed.
In 2014, the chief judge for the Western District affirmed the vast majority of a magistrate judge’s report, recommendation, and order dismissing Cohane’s claim.
The chief judge agreed with the magistrate that Cohane could not sustain his allegation that the NCAA, in particular, violated his procedural and substantive due process rights because the NCAA is not a “state actor,” or an arm of the government.
In his review, the chief judge looked at, among other things, the plaintiff’s assertion that the NCAA enforcement staff “adopted an investigation they knew was improper,” thereby denying the plaintiff adequate process.
That argument was faulty, according to the court.
“The alleged improprieties in both the MAC and the NCAA COI’s investigation were raised by the plaintiff before the NCAA Appeals Committee,” the court wrote. “That Committee, which did not include any named individual defendant, credited several of these arguments in reducing the plaintiff’s penalty. The fact that the plaintiff ultimately did not obtain the full relief sought from the appeals committee does not mean that the afforded process was inadequate.”
Timothy M. Cohane v. National Collegiate Athletic Association, et al.; 2nd Cir.; No. 14-1411-cv ; 5/15/15
The full opinion can be viewed here: http://www.ncaa.org/sites/default/files/CohaneDecision.pdf
Attorneys of Record: (for plaintiff: Sean O’Leary, LEAD ATTORNEY, O’Leary & O’Leary, Garden City, NY. (for defendants) William C. Odle, PRO HAC VICE, Linda J. Salfrank, LEADS ATTORNEYS, Spencer, Fane, Britt & Browne, Kansas City, MO; Lawrence J. Vilardo, Connors & Vilardo, LLP, Buffalo, NY; Patrick T. Morphy, Pattison, Sampson, Ginsberg & Griffin, P.C., Troy, NY.
