From Off the Bench: The Potential Role of the U.S. Department of Education in Reforming Due Process in the National Collegiate Athletic Association

Abstract

The National Collegiate Athletic Association (“NCAA”) is based on such ideals as amateurism, fairness, and healthy competition, and ensures compliance with those principles with a formalized system of investigation, infraction hearings, and penalties. Legal minds, as well as the direct participants in the college sports industry, have asserted that the NCAA’s disciplinary proceedings deny constitutional rights, and have tried claiming those rights before various judges across the United States. Since the U.S. Supreme Court decided NCAA v. Tarkanian in 1988, however, the NCAA is no longer a state actor, and not subject to the guarantee of due process in the U.S. Constitution. Though the NCAA has reformed itself and adapted its procedures, many student-athletes and others demand more. Two recent proposals in the U.S. House of Representatives, H.R. 2903 and H.R. 3545, require among their various provisions that any “athletic association” must enforce its bylaws with “any other due process procedure the Secretary [of Education] determines by regulation to be necessary.” Student-athletes, coaches, and their supporters have never looked to the Department of Education (“DOE”) before to correct the wrongs they perceive in the NCAA. This Note will show why, in the wake of failures in litigation and previous legislation, the DOE is a viable option for NCAA reformists.