They Take Classes, Don't They?: Structuring a College Football Post Season

42 Pages Posted: 17 Feb 2012

See all articles by Josephine R. Potuto

Josephine R. Potuto

University of Nebraska at Lincoln - College of Law

Date Written: February 16, 2012


The fourteenth amendment affords procedural due process, equal protection, and substantive bill of rights protections. It applies to state actors, not private ones. The NCAA is an association of colleges and universities that regulates intercollegiate athletics. It is a private actor. On occasion the Supreme Court has treated private actors as state actors for purposes of the fourteenth amendment. The NCAA is not one of them.

There is ongoing discussion whether the NCAA should be treated as a state actor. One side focuses on the NCAA’s monopoly power as "the only game in town" and its impact on non-members, particularly student-athletes, who have no say in its policies. The other side worries that state actor status would bring protracted and often frivolous lawsuits and thwart its ability to provide an even playing field because student-athletes whose eligibility is at issue could compete during pendency of litigation.

The conventional wisdom, shared by both sides, is that NCAA state actor status necessarily would trigger greater judicial and legislative oversight of NCAA processes; substantially more opportunities for non-members to prevail against alleged NCAA over-reaching; and fundamental, perhaps widespread, change to the way the NCAA operates.

In my article I discuss why the conventional wisdom likely is wrong, and conclude that the only clear consequence to the NCAA’s regulatory authority over intercollegiate athletics attendant on NCAA state actor status would be to end or at least cabin NCAA bylaws and policies that accord preferential treatment to women and racial and ethnic minorities. In all other ways the NCAA might well be able to proceed as usual.

Keywords: private associations, state actor, due process, first amendment, sports

Suggested Citation

Potuto, Josephine R., They Take Classes, Don't They?: Structuring a College Football Post Season (February 16, 2012). Available at SSRN: or

Josephine R. Potuto (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

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