Ethics playoff in high court

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A SQUABBLE that started on a basketball court will soon be played out in the United States Supreme Court. On Oct. 5, the justices will hear arguments in NCAA v. Tarkanian - one of the rare sports-related cases it has ever taken. The issue, however, is not about jocks - but jurisdiction.

Simply, it is this: Does the the National Collegiate Athletic Association perform as a government body when it regulates college sports? And if it is such a ``state actor,'' must it provide constitutionally mandated due process when conducting an investigation and before assessing penalties for rule violations?

What the court decides could well affect how the 1,000 or more public and private colleges and universities play the recruiting game and conduct their athletic programs. These schools associate voluntarily under the umbrella of the NCAA.

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The outcome could also help resolve the controversy over whether the NCAA can legally mandate drug testing for amateur athletes.

The key player in this judicial confrontation is Jerry Tarkanian, a popular coach at the University of Nevada Las Vegas, one of the nation's top college basketball teams. For more than a decade, the NCAA has been trying to get Tarkanian to play according to its rules - slapping suspensions on him for alleged recruiting violations and raising questions in connection with suspected preferred academic treatment of student athletes. Tarkanian has insisted that the association was acting on hearsay complaints and inconclusive inquiries. Also he claimed he has not been given a full opportunity to answer charges. When faced with a two-year NCAA-imposed suspension as basketball coach, he took the matter to the Nevada courts - and he won.

A trial judge concluded that the NCAA's investigation of Tarkanian was illegal because it relied on unrecorded interviews and disputed recollections. The state court also questioned NCAA procedures - holding that it was operating as a state entity and must conform to constitutionally prescribed due-process requirements.

Last year, Nevada's Supreme Court voided the suspension order and awarded the college coach $200,000 in legal fees.

In taking the case to the US Supreme Court, NCAA lawyers insist that Tarkanian enjoyed a ``home-court advantage'' in the state judicial system. The association also argues that if Nevada's interpretation of the law is upheld, it will thwart the NCAA's ability to fairly and forcefully set standards for intercollegiate athletics.

Kansas City lawyer James McLarney stresses that the only issue before the Supreme Court is the NCAA's status as a legal entity. His firm represents the NCAA. It flatly rejects the proposition advanced by Tarkanian that the association is a ``state actor,'' - often operating as a public body in conjunction with state institutions, such as the University of Nevada.

Last year, in a case involving the United State Olympic Committee and a San Francisco group that sponsored the ``Gay Olympics,'' the Supreme Court ruled that the USOC was a private organization, although it was chartered by Congress.

Under this reasoning, the NCAA insists that it, too, should be considered private.

John Weistart, a Duke University law professor who specializes in athletics and the legal process, points out that the justices must now determine ``where the power of the NCAA comes from,'' particularly in the light that some of its members are state schools.

Professor Weistart adds that the association now enjoys ``awesome power'' under ``de facto legal immunity.'' He suggests, however, that even if it loses its status as a private group, its enforcement authority could remain stable - and even be strengthened. ``By requiring constitutional review, [the court] might force the NCAA to be more disciplined in its procedures,'' Weistart adds.

On the other hand, Joseph Daly, a professor of law at Hamline University in Minnesota, says that if the NCAA loses, ``it must totally reverse its procedures for dealing with violations.'' Professor Daly explains that the association's authority would be greatly weakened by an adverse ruling in this case.

He believes that - aside from the legal issues involved - the Supreme Court may have felt some urgency to take this case since college athletics are having a growing impact on state institutions. Many charge that intercollegiate sports - and the way they are conducted - are often inconsistent with educational goals.

Richard Lapchick, who heads the Boston-based Center for the Study of Sports in Society, says that the association's disciplinary clout - whether or not it is acting in lieu of the state - has usually tended to be minimal - a slap on the wrist and short suspension.

But he points out that when the NCAA has doled out stiff punishments - such as the recent so-called ``death penalty'' to Southern Methodist University suspending the college's football program for two years for rampant recruiting violations - it has resulted in major self-reform by the schools themselves.

``NCAA is only as effective as its member institutions,'' Lapchick explains. ``It is up to these schools to govern their own houses.''

A Thursday column

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