Second Circuit: NCAA Relationship with School Must be Explored

Mar 16, 2007

A panel of judges with the 2nd U.S. Circuit Court of Appeals has ruled, in part, against the NCAA in a case where a coach sued the association, the school and several school officials, claiming they violated his Constitutional right to due process.
In so ruling, the panel found that plaintiff Timothy Cohane should have an opportunity to prove that SUNY Buffalo (his employer) and the NCAA worked together in a “concerted” effort that deprived Cohane of his Constitutional right to due process.
Cohane was hired as head coach at 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, 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.
“In September of 1999, Arkeilpane interviewed the student athletes on the SUNY Buffalo basketball team, many of whom made statements which exonerated Cohane of violating NCAA rules and regulations. From September 1999 through January 2000, Arkeilpane and Fournier threatened student athletes with loss of their scholarships and NCAA eligibility, as well as forfeiture of their degrees, to compel them to change their testimony and sign false affidavits implicating Cohane. At all times, the sum and substance of the students’ taped statements and the existence of the conflicting affidavits were intentionally withheld from Cohane.” The court continued that Cohane was forced to resign his position at SUNY Buffalo in December 1999.
“On January 18, 2000, the MAC Infractions Committee voted to adopt the findings in Fournier’s report and forwarded the matter to the NCAA for further action against Cohane. Between the MAC hearing in January 2000 and the NCAA hearing in February 2001, the SUNY Defendants denied Cohane access to records that would have exonerated him.
“In the Spring of 2000, some student athletes who had exhausted their NCAA eligibility refused to interview with NCAA enforcement staff. In response, Arkeilpane and Maher threatened the students that their degrees would not be issued if they did not cooperate in the investigation.
“In January 2001, in response to the official NCAA inquiry, SUNY Buffalo failed to disclose the existence of exculpatory information or the identity of potential witnesses with such information, or to advise the conference about the conflicting affidavits. At the NCAA hearing on February 9, 2001, the defendants permitted false affidavits to be presented as evidence, knowingly gave false and misleading testimony and withheld exculpating evidence and witnesses. As a consequence, the NCAA banned Cohane from coaching for four years, thereby destroying his coaching career and professional reputation. Moreover, the stigmatizing charges are part of Cohane’s personnel file maintained by SUNY Buffalo, which has been disclosed and is likely to be disclosed to any prospective employers.”
Cohane sued on January 17, 2003.
As the litigation progressed, the NCAA, the school and the individual defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). The district judge granted the motion, spawning the appeal.
The appeals court held that the district judge “erred in concluding that Cohane could prove no set of facts showing that the NCAA was a ‘willful participant in joint activity with the State,’ see Brentwood Academy v. Tenn. Secondary Sch. Athletic Assoc., 531 U.S. 288, 295, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001) (internal quotation marks omitted), to deprive him of his liberty, to pursue his chosen occupation, without due process of law, see Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630 (2d Cir. 1996) (internal quotation marks omitted), cert. denied, 519 U.S. 1150, 117 S. Ct. 1083, 137 L. Ed. 2d 218 (1997).
“Specifically, the District Court, relying on the Supreme Court’s decision in NCAA v. Tarkanian, 488 U.S. 179, 109 S. Ct. 454, 102 L. Ed. 2d 469 (1988), held that the complaint failed to plead sufficiently the NCAA’s ‘joint activity’ with the University. The plaintiff in Tarkanian asserted that The University of Nevada at Las Vegas’s cooperation with the NCAA’s investigation made the latter an agent of the State. 488 U.S. at 196. The Supreme Court rejected this claim because ‘the notion that UNLV’s promise to cooperate in the NCAA enforcement proceedings was tantamount to a partnership agreement or the transfer of certain university powers to the NCAA is belied by the history of this case.’ Id. (emphasis added). In Tarkanian, the Supreme Court noted that during the NCAA’s investigation, UNLV ‘denied all of the allegations’ and maintained ‘that Tarkanian was completely innocent of wrongdoing.’ Id. at 185. The Court concluded that ‘the NCAA and UNLV acted much more like adversaries than like partners engaged in a dispassionate search for the truth.’ Id. at 196.
“The facts relied on by the Supreme Court in Tarkanian were found by a Nevada state court following a two-week bench trial. See id. at 188. In contrast, the District Court, in this case, was required to accept all of the allegations in Cohane’s complaint as true, including those describing a pattern of collusion between the University and the NCAA. In particular, the complaint alleges that the University forced Cohane’s resignation immediately upon learning of the charges in an attempt to placate the NCAA (Compl. PP 27-30), actively participated in the case against Cohane in the hearings held by the Mid-American Conference and the NCAA (id. PP 31-33, 37), intimidated student-witnesses into giving false statements to NCAA investigators by threatening to wrongfully withhold their degrees (id. PP 35-36), suborned perjury at the NCAA hearing (id. P 37), and adopted the Report and its findings thereby placing its imprimatur upon the defamatory statements and penalties imposed on Cohane (id. PP 38, 41). The allegations that the University abused its authority to confer or withhold degrees, but also that this abuse of power improperly pressured students into providing false testimony (Compl. PP 35-36), distinguish this case from Tarkanian, where “there [was] no suggestion of any impropriety respecting the agreement between the NCAA and UNLV.” 488 U.S. at 197 n.17. Further in Tarkanian, “[t]he NCAA enjoyed no governmental powers to facilitate its investigation,” including the power to subpoena witnesses. Id. at 197. Cohane specifically alleges that the University used its authority to compel witnesses to testify against him just as if they had been compelled by subpoena.
“These non-conclusory allegations combined with the others in the complaint, if proven, could show that the University willfully participated in joint activity with the NCAA to deprive Cohane of his liberty. Cohane could show that without the State’s assistance and the exercise of its coercive authority upon the student witnesses, the NCAA could not have issued the defamatory report and imposed sanctions on Cohane. Certainly, the NCAA may be able to rebut these claims and show that it did not engage in concerted action with the University, but at this point in the litigation, it was error for the District Court to interpret Tarkanian as holding categorically that the NCAA can never be a state actor when it conducts an investigation of a state school.”
Timothy M. Cohane v. NCAA et al.; 2nd Cir.; No. 05-5860-cv, 2007 U.S. App. LEXIS 1841; 1/25/07
Attorneys of Record: (for appellant) SEAN O’LEARY, O’Leary & O’Leary, Garden City, N.Y. (for appellees) Lawrence J. Vilardo, Connors & Vilardo, LLP, Buffalo, N.Y. (Linda J. Salfrank, Jonathan F. Duncan, Spencer Fane Britt & Browne LLP, Kansas City, Mo., on the brief).


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