By Kelly O’Donnell, Executive Production Editor, Volume 19
In college athletics, the violations that affect teams and player eligibility are analogous to criminal violations. Just as in criminal law, the National Collegiate Athletics Association’s (“NCAA”) lack of due process in investigations and high penalties disproportionately affect the groups that are overrepresented in violations––overwhelmingly Black and Hispanic athletes from poor backgrounds. Compounding the discriminatory effect, the NCAA often focuses its investigations on the sports that field the most minority athletes, such as football and basketball. It is nearly impossible to uncover data to prove the discriminatory effect the NCAA’s lack of due process has on minority athletes because even an investigation that does not lead to a sanction can result in an injury. Anecdotal evidence and public perception confirm that minority players outnumber all the rest on the short end of the NCAA’s very large stick.
Despite its close relationship with public universities, the NCAA has yet to be declared a state actor subject to the due process requirements of the Fourteenth Amendment. If a court deems the NCAA so inextricably linked to public universities that it is a state actor, the NCAA would be open to a host of due process claims. At least one pending case, Cohane v. NCAA, makes the argument that the NCAA should be declared a state actor. While Cohane focuses on anti-trust violations, a holding that the NCAA is a state actor may also have implications for Fourteenth Amendment due process claims.
If the NCAA were declared a state actor, it is not immediately clear what due process claims might exist against the NCAA. It is possible that the data will show that the NCAA takes fault into account inconsistently and focuses attention on larger state athletic programs, which tend to attract large numbers of minority athletes, resulting in a system that disproportionately affects racial minorities. The NCAA might simply be prosecuting the easiest cases to find: the powerhouse programs, the attention-grabbing sports, the players that are always in the spotlight, and the players struggling financially for whom an improper benefit is more noticeable. These players are disproportionately Black.
The NCAA has recently garnered unflattering attention as a result of the Johnny Manziel scandal. The NCAA imposed sanctions, although minor, on Johnny Manziel, a sophomore quarterback at Texas A&M from a relatively privileged White family, without any evidence that he had violated a rule in the NCAA Manual. Instead, the NCAA stated that Manziel had violated the “spirit” of the rules due to allegations that he accepted payment for autographs. Although upsetting to some Texas A&M fans, forcing “Johnny Football” to miss the first thirty minutes of the season is far from the most extreme penalty that the NCAA has imposed in other situations where it also lacked evidence of wrongdoing. For example, the University of Connecticut’s Ryan Boatwright, a Black player from modest means, became the subject of vague and conveniently-timed NCAA investigation in the 2011–2012 basketball season, raising alarm about the NCAA’s selective enforcement of already-discriminatory policies. The plight of a wealthy, White quarterback might be exactly what it takes for the public to notice that the NCAA’s disciplinary process has gone mostly unsupervised to the detriment of minority collegiate athletes. It is unfortunate that it has taken this long.
A claim against the NCAA for a violation of due process is unlikely in the foreseeable future, and would take more than anecdotal rants from zealous fans. Perhaps it will take a slap on the privileged White kid’s wrist for the rest of America to notice the plight of the underprivileged minority athletes at the mercy of the NCAA’s every whim.
 Joe Nocera, Guilty Until Proved Innocent, N.Y. Times (Jan. 20, 2012), http://www.nytimes.com/2012/01/21/opinion/nocera-guilty-until-proved-innocent.html.
 Kelly O’Donnell is in her third year at the University of Michigan Law School, and a rabid fan of UConn and Michigan athletics.
 See, e.g., Justice on Trial: Racial Disparities in the American Criminal System, Leadership Conference on Civil Rights, May 2000, available at http://www.civilrights.org/publications/justice-on-trial/.
 Joe Nocera, Standing Up to the N.C.A.A., N.Y. Times (Mar. 23, 2012), http://www.nytimes.com/2012/03/24/opinion/nocera-standing-up-to-the-ncaa.html (“[The N.C.A.A.’s] rules enforcing amateurism discriminate against black athletes from disadvantaged backgrounds.”). Also, the Hockey Exception adds to the disparate impact, as few disadvantaged minority students play hockey. Joe Nocera, The Hockey Exemption, N.Y. Times (Feb. 14, 2012), http://www.nytimes.com/2012/02/14/opinion/nocera-the-hockey-exemption.html?ref=joenocera. It seems that such extreme disparate impact in enforcement would satisfy a discriminatory purpose test. See Yick Wo v. Hopkins, 118 U.S. 356 (1886).
 The NCAA is not alone: the NBA and NFL have also been accused of targeting minority players with rules limiting above-the-rim play, “palming,” player dress codes, and celebratory fines which apply disproportionately to Black and Hispanic players. See, e.g., D.J. Leonard, The Real Color of Money: Controlling Black Bodies in the NBA, 30 Journal of Sport and Social Issues 158, 158–79 (2006), available at http://jss.sagepub.com/content/30/2/158.abstract.
 For example, due to an ongoing investigation, the NCAA forced University of Connecticut basketball player Ryan Boatright to sit out when his team played against Notre Dame in his home state of Indiana, where over 400 family members and friends had gathered to watch him play. Brian Buckley, How the NCAA is Ruining Ryan Boatright, Bleacher Report (Jan. 25, 2012), http://bleacherreport.com/articles/1039517-uconn-basketball-how-the-ncaa-is-ruining-ryan-boatright. The NCAA broke the news to Boatright just hours before the game.
 For example, in a collection of the Top 10 Infamous NCAA Sanctions includes Derrick Rose, Reggie Bush, the Fab Five, all of the incidents involving individual players involved only African-American males, except a 1950s-era point shaving scandal. Top 10 Infamous NCAA Sanctions, Real Clear Sports (May 17, 2013), http://www.realclearsports.com/lists/infamous_ncaa_sanctions/intro.html.
 Greg Tyler, Business, the Law, and the NCAA, The Sport Digest (Feb. 17, 2012), http://thesportdigest.com/2012/02/business-the-law-and-the-ncaa/ (“In [Tarkanian v. N.C.A.A., 488 U.S. 179 (1988)] the Court held that the NCAA was not sufficiently linked to public schools to be considered a “state player” and therefore was not subject to due process considerations of the Fourteenth Amendment when conducting investigations.”).
 A suit brought by ex-coach Tim Cohane of the University of Buffalo threatens to bring the NCAA within the definition of a state actor. See Nocera, supra note 3. Nocera has raised the issue of whether the NCAA violates anti-trust laws, but this Comment will focus on the possible Fourteenth amendment violations under a discriminatory purpose or disparate impact analysis. Id. As time passes, however, Cohane’s case looks less likely to be the upset victory many had hoped. Phil Fairbacks, Judge Rules Against Former UB Basketball Coach Suing NCAA, The Buffalo News (Aug. 9, 2013), www.buffalonews.com/apps/pbcs.dll/article?AID=/20130809/CITYANDREGION/130809208/1010. See also Cohane v. NCAA, 2012 U.S. Dist. LEXIS 41217 (W.D.N.Y. Mar. 26, 2012).
 See, e.g., Dan K. Thommasson, NCAA Reform is Long Overdue, The MetroWest Daily (Aug. 21, 2013), http://www.metrowestdailynews.com/opinion/x511615315/Thomasson-NCAA-reform-is-long-overdue. A bill has even been introduced to Congress that would require the NCAA to provide due process. See Jordan Kobtriz, Column: Congress May Be the NCAA’s Best ‘Frenemy,’ The Daily Courier (Aug. 28, 2013), http://www.dcourier.com/main.asp?SectionID=2&SubSectionID=2&ArticleID=122626 (discussing proposed bill which would require the right to a formal administrative hearing and other due process rights). An analysis of the rules governing NCAA athletes could suggest a discriminatory purpose, or at least cast enough suspicious to get some attention. See Joe Nocera, The Stupidest N.C.A.A. Rule, N.Y. Times (Feb. 17, 2012), http://nocera.blogs.nytimes.com/2012/02/17/the-stupidest-n-c-a-a-rule/ (describing sanction for Jim Valvano when he paid for a player’s flight home for a funeral).
 Without intent, this cannot rise to the level of an equal protection claim. Washington v. Davis, 429 U.S. 229, 240 (1976). Although the NCAA is subject to Title VII as an employer, it is not clear that this can be extended to apply to athletes, who are not employees of the NCAA. But if efforts to pay college athletes move forward this could change. See, e.g., Andrei Markovits, A Plea for Remunerating Student Athletes in Revenue-Generating College Sports, The Huffington Post (Sept. 20, 2013), www.huffingtonpost.com/andrei-markovits/paying-student-athletes_b_3951427.html.
 Although some have argued that the NCAA gives big schools in big conferences a pass on violations, studies show otherwise. See Doug Lederman, Half of Big-Time NCAA Programs Had Major Violations, USA Today (Feb. 7, 2011), http://usatoday30.usatoday.com/sports/college/2011-02-07-ncaa-infractions_N.htm.
 For example, when Michigan basketball standout Maurice Taylor was involved in a car accident that injured fellow played, Robert “Tractor” Traylor, the NCAA investigated, demanding the leasing information for Taylor’s SUV. Taylor was an African-American player from inner-city Detroit, and apparently the NCAA didn’t think he could afford the lease on the Ford Explorer he was driving. See University of Michigan Basketball Scandal, Wikipedia, http://en.wikipedia.org/wiki/University_of_Michigan_basketball_scandal (last visited Oct. 17, 2013). That investigation uncovered the Ed Martin scandal involving Chris Webber, which eventually led the University of Michigan to hefty sanctions. See U-M/NCAA Men’s Basketball Investigation Chronology, Office of the Vice President for Communications, available at http://www.vpcomm.umich.edu/pa/key/bball.html (last visited Oct. 17, 2013).
 See, e.g., George Schroeder, ‘No Evidence’ Manziel Took Money for Autographs, USA Today (Aug. 28, 2013), http://www.usatoday.com/story/sports/ncaaf/sec/2013/08/28/johnny-manziel-suspended-for-first-half-of-texas-am-opener-vs-rice/2723767/.
 The Manziel family is allegedly funded by oil money. See Timothy Burke, The Long Con: How the Manziels Conquered America, DeadSpin.com (Aug. 12, 2013), http://deadspin.com/the-long-con-how-the-manziels-conquered-america-1040593220.
 Brett McMurphy, Twitter, (Aug. 29, 2013 4:49 PM EST) https://twitter.com/McMurphyESPN/status/372823225350520832 (“To clarify: Manziel suspension for violating “spirit” of NCAA bylaw 220.127.116.11 & 18.104.22.168. NCAA couldn’t prove he broke any rules source said.”) See, e.g, Our View: Inconsistency Rules in NCAA Punishments, Rockford Register Star (Aug. 29, 2013), http://www.rrstar.com/opinion/x574264636/Our-View-Inconsistency-rules-in-NCAA-punishments (“You didn’t do anything wrong, but we’re going to punish you anyway.”).
 See, e.g., Tim Fontenault, NCAA Continuing to Make Life Miserable for Boatright and Team, Bleacher Report (Jan. 26, 2012), http://bleacherreport.com/articles/1039771-ncaa-continuing-to-make-life-miserable-for-boatright-uconn (discussing how Boatright’s mother’s struggle to make ends meet at times).
 The NCAA’s investigation forced Boatwright to miss playing at the University of Notre Dame in front of his home-town crowd in South Bend, making the announcement only hours before tip-off. See id. (“The young freshman cried in his coach’s arms before a tearful phone call to his mother to break the news.”).
 See, e.g., Joe Nocera, Saving Freshman Ryan, N.Y. Times (Jan. 30, 2010), http://www.nytimes.com/2012/01/31/opinion/nocera-saving-freshman-ryan.html (“It is not an accident that most serious N.C.A.A. “scandals” involve athletes and parents who are disadvantaged. It smells of discrimination.”).
 For an interesting related discussion, see Vincent Thomas, Why?…Because the White Men Said So, TheShadowLeague.com (Aug. 29, 2013), http://theshadowleague.com/articles/why-because-the-white-men-said-so.