Standing Up to the N.C.A.A.
By JOE NOCERA
Published: March 23, 2012 81 Comments
Over the past few months, I have used this column to explore the various injustices perpetrated by the N.C.A.A. I have written about the way it terrorizes the parents of athletes it is investigating — athletes, I should note, who are invariably suspended before they are even told the charges against them. I have questioned the N.C.A.A.’s lack of due process and its indifference to the most rudimentary concepts of fairness. I have pointed out that its rules enforcing amateurism discriminate against black athletes from disadvantaged backgrounds.
And I have wondered, more than once, how an organization as powerful as the N.C.A.A. can deprive one group of students — “student-athletes,” as the N.C.A.A. insists on calling them — of rights that every other university student, and for that matter, every other American, assumes are his as a matter of course.
Part of the answer, for sure, is institutional arrogance. But it’s also rooted in court rulings. In a 1988 case, N.C.A.A. vs. Tarkanian (yes, that’s Jerry Tarkanian, the infamous former University of Nevada at Las Vegas coach), the Supreme Court ruled that the N.C.A.A. was not a “state actor.” A state actor is a legal term for any institution that acts as an arm of the government — and is, therefore, subject to constitutional mandates like due process. Since then, the N.C.A.A. has waved the “we’re-not-a-state-actor” flag whenever it’s been sued for violating someone’s rights. Since it’s not a state actor, it argues, its members have no constitutional rights.
Which is why I’ve become intrigued by an obscure court case that is slowly wending its way to trial. Once again, the N.C.A.A. is being sued by a coach, though one not nearly as well-known as Tarkanian. Tim Cohane, the head basketball coach at the State University of New York at Buffalo, was forced to resign in late 1999 after he was alleged to have violated N.C.A.A. rules. (The main violation, usually considered extremely minor, was that he had observed potential recruits play pickup basketball in the university gym.) The school apparently wanted to fire Cohane, even though he had recently gotten a new contract. The easiest way to push him out was to gin up some infractions. The N.C.A.A., it appears, was only too happy to go along.
In the spring of 2001, the N.C.A.A. issued its report — based largely on a joint investigation with the university and its conference, the Mid-American Conference — describing Cohane’s behavior as “unethical,” and issuing a “show cause” order, meaning that any school that wanted to hire him had to “show cause” why it should be allowed to do so. For a college coach, this is the kiss of death.
Cohane, who had coached for 25 years without running afoul of the rules — and who denies doing anything improper — sued, charging that he had been defamed by the N.C.A.A. and that his rights had been violated. It was only when he and his lawyer, Sean O’Leary, began to dig into what had happened that they found the real improprieties — the ones committed by the investigators.
The most egregious was that SUNY-Buffalo officials had threatened to strip the school’s basketball players of their eligibility unless they implicated Cohane. Graduating seniors, whose eligibility had expired, were told that they wouldn’t graduate if they didn’t point the finger at Cohane. The N.C.A.A. knew that players were being coerced to lie — and did nothing to stop it. Indeed, those lies became part of its report. Years later, a number of players submitted affidavits as part of the Cohane lawsuit, saying they had never seen their former coach do anything wrong but had been pressured to implicate him.
Naturally, the N.C.A.A. responded by trying to get the case tossed out on the grounds that it was not a state actor. The trial judge agreed. But, in 2007, the appeals court overruled that decision and said that because the N.C.A.A. had acted in concert with the university — which, as a state-run school, is undeniably a state actor — it, too, could be considered a state actor. The N.C.A.A. then appealed to the Supreme Court, to no avail.
Five years later, the case is still awaiting a trial date. Cohane, who was 58 when he left SUNY-Buffalo, is now close to 70. It could be another five years before the case is over, but he has no intention of settling. “I want to make sure this doesn’t happen to others,” he told me.
“It has been an incredible fight,” said O’Leary, his lawyer. “But once the N.C.A.A. enforcement process is exposed at trial, people will be outraged.”
I hope that happens; the appalling tactics of N.C.A.A. investigators have long remained hidden away, in secret files the general public never gets to see. They deserve a public airing. But that’s not the real significance of the Cohane case.
The real significance is that if Cohane wins, the law itself might finally force the N.C.A.A. to change its ways. Because, at long last, it would be labeled the state actor it has always been.