"Consent Decree": Does it make the NCAA a State Actor?

UNC Chapel Hill Professor Dr. Richard Southall, who is also Director of the College Sport Research Institute, wonders why the NCAA and Penn state have referred to the agreement signed by President Rodney Erickson and the NCAA as a "consent decree" (the validity for which I discuss in a previous post).

I also wondered about the phrase "consent decree" and assumed it to mean, at least in this context, something akin to a settlement between two parties who could otherwise have legal claims against one another. For example, Penn State could have sought an injunction to stop the NCAA; instead, by signing the decree, it has consented to the NCAA's punishment. The NCAA has reached settlements with other schools concerning infractions and the agreement with Penn State seemed like another example.

But as Richard notes to me in an e-mail, the phrase "consent decree" is normally used by government actors (e.g., courts, the Department of Justice, the Securities and Exchange Commission etc.) when settling claims with private parties. Neither he nor others I have spoken with can remember the NCAA entering into "consent decrees" with other schools. According to a brief search by me on Lexis/Nexis, I did find that the NCAA previously entered into a consent decree -- but it was with the U.S. Department of Justice.

The website Legal Dictionary on Law.com defines consent decree as
"an order of a judge based upon an agreement, almost always put in writing, between the parties to a lawsuit instead of continuing the case through trial or hearing. It cannot be appealed unless it was based upon fraud by one of the parties (he lied about the situation), mutual mistake (both parties misunderstood the situation) or if the court does not have jurisdiction over the case or the parties. Obviously, such a decree is almost always final and non-appealable since the parties worked it out. A consent decree is a common practice when the government has sued to make a person or corporation comply with the law (improper securities practices, pollution, restraints of trade, conspiracy) or the defendant agrees to the consent decree (often not to repeat the offense) in return for the government not pursuing criminal penalties. In general a consent decree and a consent judgment are the same."
So if a phrase sounds like it would be made the government, does that mean it was made by the government? Well, use of "consent decree" probably doesn't transform the NCAA into a state actor, which the Supreme Court said it wasn't in NCAA v. Tarkanian and as a result the NCAA need not offer its member institutions and student-athletes due process. I can't imagine use of a term in one instance would have that kind of profound effect.

But I wonder why the NCAA would use "consent decree" now but not (apparently) before?

UPDATE:

In addition to the thoughtful comments to this post, consider these comments:

Drexel University Professor Dr. Ellen Staurowsky, an expert on college sports and the NCAA:
"The thought occurs that perhaps the use of the term is a reflection of who the NCAA's legal counsel is. According to Donald Remy's bio, he has previously held positions including deputy assistant attorney general at the U.S. Department of Justice; assistant to the General Counsel of the Army; law clerk to the 6th Circuit United States Court of Appeals; and senior vice president, deputy general counsel and chief compliance officer at Fannie Mae. That might explain it although the language still interests me a great deal."
Dr. Southall:
"As [Dr. Staurowsky] and I discussed earlier isn't a consent decree usually either between a "state actor" (governmental entity – DoJ, SEC, etc.) and an individual or corporation being investigated, or imposed by the court after negotiations between a plaintiff and defendant? It seems that in this case the NCAA is not a state actor nor the Court, but a voluntary organization that has imposed (the NCAA's language) on a member. Does a truly voluntary member waive any right to appeal? Sounds like a tactic similar to imposing upon NCAA athletes a requirement regarding the use of their names and likenesses….Oh never mind:)"

Do Penn State fans have any legal recourse?

I received an email from a Penn State alum named Jordan who asked me if Penn State fans can do anything legally to the NCAA or Penn State. I think there are at least three legal strategies - defamation, consumer fraud and consent decree invalidation - that could be used. None of them, however, would likely work.

Here are some quick thoughts on them:

1) SUING THE NCAA FOR DEFAMATION: I don't think Penn State fans/ticket holders can sue the NCAA for defamation with any hopes of success. They likely do not have standing to bring a claim, since none of them were named or referred to (specifically or generally) by the NCAA or anyone at the NCAA.

Theoretically, Penn State as an institution could bring a defamation claim against the NCAA, but the consent decree (assuming it is valid) would take that claim off the table. Plus, truth is an absolute defense to defamation and the Freeh Report would be used by the NCAA.

2) SUING PENN STATE FOR CONSUMER FRAUD: It's possible that ticket holders could sue Penn State under a consumer fraud claim - the gist of it would be that the on-field product was somehow misleading since a cover up and scandal were occurring. But don't expect that to work. For one, those types of claims always seem to fail. They failed when a Jets fan brought a claim against the New England Patriots for Spygate, arguing the games were rigged. And they would fail if fans brought claims against the Saints for watching a hit man show instead of a football game. The problem is that when fans buy a seat to a game, it's a contractual right to watch a game and nothing more. People who went to Penn State games, be they Penn State fans or fans of other schools, were never denied that right. Even if the contractual right was broader, the scandal still had nothing to do with the players who played the games.

3) INVALIDATING THE CONSENT DECREE: Maybe the best legal strategy for Penn State fans would be to encourage the Board of Trustees to portray the consent decree as invalidly executed, and then for the university to seek an injunction from a court to restrain the NCAA's sanction.

Did President Erickson adequately notify the Board of Trustees about the decree? Did he receive its permission? Did he have the legal authority to bind Penn State to such an agreement without the Board's notice or permission? If he didn't, could the NCAA still rely on his signature? These are important process questions. Relevant Board rules and terms of Erickson's employment contract would prove crucial in answering them.

Practically, though, I don't see this strategy working: it seems like the university's key decision-makers (even if not many alumns, fans and students) are on board with accepting the NCAA's judgment.

My Column for CNN on Penn State and the NCAA

In a column for CNN, I take issue with the NCAA's process that led to its sanctioning of Penn State. Here's an excerpt:

But I'm less comfortable with how fast the ruling was made. The NCAA clearly bypassed its normal procedure for investigating and sanctioning. This procedure often takes more than a year and involves several hearings.

Consider what the NCAA did not give Penn State. Normally the association notifies the school that an official inquiry is going to be held. Notice is followed by an investigation and, if the NCAA finds fault, a written explanation of the allegations is given. The school has 90 days to respond, after which it may request more time to respond or schedule a hearing before the NCAA's Committee on Infractions.

Then comes the hearing, which resembles a trial or arbitration hearing. If the school is found to be at fault, it can appeal to the NCAA's Infractions Appeals Committee. Penn State did not receive 90 days to respond, nor did it get a trial or an opportunity to appeal.

To read the rest, click here.

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