The NCAA as Regulator, Litigant, and State Actor

24 Pages Posted: 14 Oct 2011 Last revised: 8 Mar 2022

See all articles by Vikram D. Amar

Vikram D. Amar

University of California, Davis - School of Law; University of Illinois College of Law

Date Written: 2011

Abstract

As a general matter, the Constitution limits the government but not the private sector. Known as the "state action" doctrine, the idea that constitutional constraints apply only when public entities are primarily or substantially involved has been developed by the U.S. Supreme Court in scores of cases. This Article argues that the fundamental inadequacy of and dissatisfaction with the state action doctrine arises from the Court's unwillingness to admit that state action principles are not transsubstantive – that the principles play out differently depending on the particular constitutional claim being asserted. The Article surveys state action rulings to argue that functional considerations – rather than a formalistic, abstract, and uniform quality of "stateness" – should and do dictate when the state action requirement is satisfied and the Constitution's limits are held to apply. The Article then analyzes the Supreme Court's 1988 decision in NCAA v. Tarkanian to explore how a functionalist analysis might play out in the context of the NCAA and other athletic regulatory bodies.

Suggested Citation

Amar, Vikram D., The NCAA as Regulator, Litigant, and State Actor (2011). Boston College Law Review, Vol. 52, No. 2, March 2011, Available at SSRN: https://ssrn.com/abstract=1923799

Vikram D. Amar (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

University of Illinois College of Law

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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