Amicus Curiae Brief — TENN. SEC. SCHOOL ATHLETIC v. Brentwood Acad.

69 Ea |

()

No. 06-427

|

In The

Supreme Court of the Gnited States

Sd

TENNESSEE SECONDARY SCHOOL

ATHLETIC ASSOCIATION,

Petitioner.

V.

BRENTWOOD ACADEMY,

Respondent.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

@ = a

BRIEF AMICUS CURIAE OF THE NATIONAL

COLLEGIATE ATHLETIC ASSOCIATION

IN SUPPORT OF PETITIONER

Sf

WILLIAM C. ODLE

Counsel of Record

LINDA J. SALFRANK

JONATHAN F. DUNCAN -

SPENCER FANE BRITT

& BROWNE LLP

1000 Walnut Street.

Suite 1400

Kansas City, MO 64106-2140

(816) 474-8100

~

COOCSLE LAW BRIEF PRINTING CO) | sum) 225-8904

OR CALL COLLECT 109) 542-2871

QUESTIONS PRESENTED

Amicus will address the following questions, as

framed by the parties’ reasons for granting a writ of

certiorari and now presented on merits review:

I. Whether this Court should reconsider and

overturn its holding in Brentwood Academy

uv. Tennessee Secondary School Athletic Asso-

- ciation, 531 U.S. 288 (2001), which consti-

tuted a break with existing precedent and

created an ad hoc approach to “state action”

determinations that is incapable of princi-

pled application.

II. Whether the Sixth Circuit erred in deter-

mining the relative substantial importance

of “competitive equity” in scholastic and

amateur sports.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................cccssesscssssseceseseeeees i

i EE ccctictnccccestsnctesnencernsnsinsincencendannnn ii

TABLE OF AUTHORITITEG. ................scssssssssssssserssessesees lil

INTEREST OF AMICUS CURIAE ........ccccccccscceceeeseeeees 1

SUMMARY OF ARGUMENT .....0..........cccceccessseeeeeeeeeeees 2

I tui sinnisnitiniiinninsnininanimiainmnenbionennniet 5

I. Brentwood I Represented An Abrupt And

Unwarranted Departure From This Court’s

State Action Jurisprudence................ceeseeeeceeeeees ll

Il. The Brentwood I State Action Framework Is

Not Capable Of Principled Application.............. 14

III. Competitive Equity Is Always A Substantial,

Although Not A State, Interest ................:ccsceeees 22

aR ccennseccrenensnnsnnnssnenusitienduassnstanmenesenienesnenanen 28

TABLE OF AUTHORITIES

Page

CASES

Blum v. Yaretsky, 457 U.S. 991 (1982)..........cceeeeeees passim

BMW of North America, Inc. v. Gore, 517 U.S. 559

Sarai iciciesceviiintelaiiheiaaldaieanediaeieinieidaiaiaitinnainabiohuabetiags 21

Brentwood Academy v. Tennessee Secondary

School Athletic Association, 180 F.3d 758 (6th

SE See inaciidiciceanntnndbictecinnananveninidgninssiinnmmaesiel 6, 7, 8,12

Brentwood Academy v. Tennessee Secondary School

Athletic Association, 531 U.S. 288 (2001).............. passim

Brentwood Academy v. Tennessee Secondary School

Athletic Association, 442 F.3d 410 (6th Cir.

Ties seatbelt iniasiaiiddabiniasepiaiiniidenuentpiiiiitinultia 20, 23, 28

Business Electronics Corp. v. Sharp Electronics

ig, Gare es Ue CU cents ttnticeitesinnnicienenninnanenmnnes 27

Civil Rights Cases, 109 U.S. 3 (1883)...........cccccccrssssssseeeees 11

Cohane v. The National Collegiate Athletic

Association, 2007 WL 247710 (2d Cir. January

ink SUID ecieieclinpseniienssitaiiciasnapiiiaeainsinhanivsiiaciainibeiniietiiiniiten 17, 18, 19

Crissman v. Dover Downs Entmt., 289 F.3d 231 (3d

SEIS, SITE cnerictesdisasichceeicentbanenipeitinieteunbibadlnnpaiteamianiidamiiqnanédimeietiiins 14

Crowder v. Conlan, 740 F.2d 447 (6th Cir. 1984)............. 13

D’Alessio v. Securities and Exchange Commission,

ee Be Ce ee ee ercceeretcscnentnitcccccrncecnneveccesennes 15

Desiderio v. NASD, 191 F.3d 198 (2d Cir. 1999)............... 16

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978).......... 11

Gross v. Fond Du Lac County Agric. Soc’y, Inc.,

2005 U.S. Dist. LEXIS 19537 (E.D. Wis. Sept. 6,

iv

TABLE OF AUTHORITIES - Continued

Page

Hardy v. University Interscholastic League, 759

ee TET ED, TIT iiiinstiinisinimcenneeciiniidetaminitennematianinans 26

Jackson v. Metropolitan Edison, 419 U.S. 345

Sei el tensashinstetenitiiaindtipiainstnnetanmeninmmnanieten 7, 11,12

Keeling v. Schaefer, 181 F. Supp. 2d 1206 (D. Kan.

ST ctsecsieiieabcniniibetieiniiiinaitadilaniteinmibaniiiaienidsintanmnennen 14

Kirtley v. Rainey, 326 F.3d 1088 (9th Cir. 2003)............... 14

Leshko v. Servis, 423 F.3d 337 (3d Cir. 2005)... 14

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)....7, 8, 9, 12

Mahan v. Oklahoma Secondary Sch. Activities

Ass’n, 652 P.2d 765 (Okla. 1982).............cccccssssssereeeeerees 25

Maine v. Taylor, 477 U.S. 131 (1986)...........cceeeeeeeseeeeeeeeees 27

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ......... 21

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)........... 13

NCAA v. Miller, 10 F.3d 633 (9th Cir. 1993).........000+ 26, 27

NCAA v. Roberts, 1994 WL 750585 (N.D. Fla. 1994)....... 26

NCAA.v. Smith, 525 U.S. 459 (1999).............ccccceeeeeeeeeeeeeeee 9

NCAA v. Tarkanian, 488 U.S. 179 (1988)..............04. passim

NCAA v. Yeo, 171 S.W.3d 863 (Tex. 2005).........cccccseeeereees 26

Parratt v. Taylor, 451 U.S. 527 (1981)...........cccccccsesseereeees 21

Patterson v. McLean Credit Union, 491 U.S. 164

Sasa saseicicecpsutcieeiaetieiiieaehdabdibuatapiiaeabiiniaiinagaiibidienenianeain 21

Payne v. Tennessee, 501 U.S. 808 (1991)........ceececceseeeeeees 21

Rendell-Baker v. Kohn, 457 U.S. 839 (1982) ....... 7,9, 12,13 —

Sabeta v. Baptist Hosp. of Miami, Inc., 410 F. Supp.

ee ee i Se ccceescsnsnepensevartonnnacnsterecrtneniianes 15

v

TABLE OF AUTHORITIES - Continued

Page

San Francisco Arts & Athletics, Inc. v. United

States Olympic Committee, 483 U.S. 522 (1987).....24, 25

Snepp v. United States, 444 U.S. 507 (1980)... 20

State Oil Co. v. Kahn, 522 U.S. 3 (1997) .......ccccecsceeeeeeseees 27

Tancredi v. Metro. Life Ins. Co., 378 F.8d 220 (2d

SAG SEI sccesecnsyennsonnnssiscdiieisesieiiuingiempiiviniiiiniiiiidaiaaduiimaalas 14,18

United States v. Cruikshank, 92 U.S. 542 (1876).............. 11

United States v. Int'l Bhd. of Teamsters, 941 F.2d

1292 (2d Cir. 1991), cert. denied, 502 U.S. 1091

CU nsevsccocssvsnsnencunvecdinenssscennnnnesabiaidiiaideabiieniaieadiaaiiaae 16

United States v. Nixon, 418 U.S. 683 (1974) ........ccceceseeees 21

Verizon Communications Inc. v. FCC, 535 U.S. 467

Cie crrcecensiesevenssnnrensontneunenesnoesidenieneeiadaniindtaaniamin 27

Vieth v. Jubelirer, 541 U.S. 267 (2004)...........ccccsceceeeesseees 21

Wang v. Blue Cross Blue Shield Ass’n, 55 F. App’x

Re Be Ge Be cccsescccescesssnsecvenionastetiabinbaaaienaiiiiia 14

Willis v. Town of Marshall, 293 F.Supp. 2d 608

CURA: Seip oscnsetaveseieieieiisessnenibenndniieainenimemmmaiaeiats 14

STATUTES

SD WAL. B Te ceccccnensescccsessesousenisenvintiiiciniammiaaaaiana 27

BD Ue lide Bibi iccceycscusssescissnnisnsesennciotensinmaenaaall 27

GE UE. BR iecicnscistnnictnctiininitaee 27

RULES

BE GRR Decl, OED cccessscressrsseeinnnninniniamenaa 18

TABLE OF AUTHORITIES -— Continued

Page

OvHER AUTHORITIES

Kevin P. Braig, A Game Plan to Conserve

the Interscholastic Athletic Environment After

LeBron James, 14 Marq. Sports L. Rev. 343 (2004)........ 22

Lisa J. Chadderdon, No Political Speech Allowed:

Common Interest Developments, Homeowners

Associations, and Restrictions on Free Speech, 21

J. Land Use and Envtl. Law 233 (2006)...............-.000-+- 15

John Fee, The Formal State Action Doctrine and

Free Speech Analysis, 83 N.C.L. Rev. 569 (2005) ......... 16

Alan R. Madry, Statewide School Athletic Associa-

tions and Constitutional Liability: Brentwood

Academy v. Tennessee Secondary School Athletic

Association, 12 MARQ. SporTs L. REV. 365 (2001)........ 16

Donna M. Nagy, Playing Peekaboo With Constitutional

Law: the PCAOB And Its Public/Private Status, 80

Notre Dame L. Rev. 975 (2005)............cccccccccesesseeeeeeeeees 15

Michael Novak, Endzones, Bases, Baskets, Balls,

and the Consecration of the American Spirit,

Madison Books, rev'd Ed. (1994)..............:ccccceeeeeeeeeeeeees 22

Michael L. Wells, Identifying State Actors in Consti-

tutional Litigation: Reviving the Role of Substan-

tive Context, 26 CARDOZO L. REV. 99 (2004).........:cc0c0008 17

RE SE eee 25

Ee ee 21

1

—

INTEREST OF AMICUS CURIAE’

The National Collegiate Athletic Association (“NCAA”)

is a voluntary association composed of colleges, universi-

ties and athletic conferences throughout the United

States. Its purpose is, and always has been, to promote

amateur athletics in conjunction with higher education.

Membership in the NCAA is purely voluntary and it is

funded exclusively by membership dues and income

generated in connection with NCAA events and champion-

ships. The NCAA does not receive any federal or state

governmental funding or subsidy.

Much like the members of Petitioner in the present

case, NCAA member institutions have developed a set of

rules by which all members agree to abide. These rules are

designed to ensure that: (1) athletics are subordinate to

academics; (2) student athletes are not subject to exploita-

tion; «nd (3) there is and remains competitive equity

among member institutions in NCAA sanctioned sporting

events. Member institutions also developed an effective

manner of policing themselves and determining uniform

and appropriate corrective action when a member seeks to

gain an unfair advantage or otherwise fails to follow the

rules adopted by the membership.

Because of the voluntary nature of membership in the

NCAA, its inclusion of both public and private member

institutions, and the absence of any individual state

* Pursuant to Rule 37.6 of the Rules of the Supreme Court of the

United States, Amicus states that no counsel for any party to this cause

authored this brief in whole or in part, and no person or entity other

than Amicus made any monetary contribution to the preparation or

submission of this brief. In addition, Amicus has sought and received

consent from counsel for Respondent to submit this brief.

2

delegation of authority or regulatory power, this Court has

previously recognized that the NCAA is not a “state actor.”

NCAA v. Tarkanian, 488 U.S. 179, 193 (1988). The NCAA

has relied on Tarkanian in pursuing its mission as well as

in resolving disputes with member institutions, their

agents and employees. But this Court’s decision in Brent-

wood Academy v. Tennessee Secondary School Athletic

Association, 531 U.S. 288 (2001), and the decision below in

this case, make it clear that the “entwinement” standard

for determining when a private entity can be a state actor

has only confused, if not implicitly supplanted, this Court’s

long-standing precedent and has proven incapable of

principled application. For this reason, Amicus joins

Petitioner in requesting that this Court reconsider and

overturn its decision in Brentwood.

+

SUMMARY OF ARGUMENT

1. The “entwinement” test that has emerged from this

litigation is predicated on facts that would not give rise to

a finding of state action under this Court’s long-standing

Jurisprudence and, therefore, is an abrupt and unwar-

ranted departure from that precedent. This Court’s initial

determination that the Tennessee State Secondary Ath-

letic Association (““TSSAA”) is a “state actor” was not

founded on any traditional notion of state action as previ-

ously understood by this and other courts. Indeed, follow-

ing established precedent, the Sixth Circuit first found

that the TSSAA was not a state actor because, among

other things, it is a private, non-profit and voluntary

association of both public and private schools that does not

receive any state funding. This Court reversed, creating a

new “entwinement” standard and holding that the TSSAA

3

was so “entwined” with the State of Tennessee that it had

become a state actor. This Court based its finding primar-

ily on a non-binding, ineffectual rule of the Tennessee

State Board of Education that had merely recognized the

TSSAA’s historical and beneficial role in the promotion

and oversight of interscholastic athletics. Because that

rule had no practical effect on the actions of either the

TSSAA or the State, because the State had no authority to

delegate any power to the TSSAA concerning athletics,

and because the so-called rule was repealed prior to the

conduct complained of by Brentwood Academy in this

litigation, the actions of the Board of Education could

never have amounted to state action under any previously

recognized standard. Likewise, the Court’s attribution of

state action to the TSSAA’s collection of gate receipts as

public “funding” finds no basis in existing law. Only

through fashioning the brand-new, undefined (and there-

fore expansive) notion of entwinement could the TSSAA be

transformed from a voluntary private association into a

state actor.

2. Lower court confusion over the meaning and

application of the “entwinement” test has proven it incapa-

ble of principled application, subverting the purpose of

limits on state action and leading to present and future

protracted litigation. The term “entwinement” was never

defined by the Court to guide lower courts, nor does it

appear in this Court’s prior state action jurisprudence. As

such, “entwinement” represents a new, greatly expansive

test, which leaves voluntary associations such as Peti-

tioner, Amicus and others lost in a sea of doctrinal] uncer-

tainty. Both courts and commentators have expressed

concern that the notion of “entwinement” will be an

exception to the traditional restraints of the state action

4

doctrine that will effectively swallow the whole. Already,

the United States Court of Appeals for the Second Circuit

has seemingly applied the ill-defined bounds of “entwine-

ment” to encompass Amicus, in direct conflict with an

express ruling to the contrary by this Court. It is becoming

increasingly clear that the “entwinement” test leaves

private individuals and organizations such as Petitioner

and many others unable to know whether they will be held

state or private actors until after discovery and motion

practice, or — as in the case at bar — even after appellate

review. Any such standard is inherently unworkable and

only prone to spawn far more litigation than it might hope

to avoid.

3. Following remand from this Court, the Sixth

Circuit’s attempt to apply First Amendment and Due

Process principles to the activities of the TSSAA further

demonstrates that the TSSAA is not a state actor. Follow-

ing this Court’s finding that the TSSAA is as a state actor,

upon remand, the Sixth Circuit had virtually no guidance

as to how to glean and apply the constitutional implica-

tions that follow from this conclusion. The Sixth Circuit’s

awkward imposition of intermediate First Amendment

scrutiny and Due Process analysis upon such matters as

alleged high school recruiting violations only demonstrates

the practical and theoretical fallacies inherent in treating

the TSSAA, and similar associations, as state actors.

There exists no meaningful precedent for distinguish-

ing alleged violations for pre-matriculation contact with

student athletes (as alleged here) from coaches complain-

ing to officials about “bad calls,” shouting epithets, or

other conduct that may violate an association’s rules. The

folly of the Sixth Circuit’s First Amendment analysis is

perhaps best demonstrated by its attempt to prioritize and

5

define what athletic purposes serve a “substantial state

interest.” In this regard, the Sixth Circuit’s failure to

recognize the importance of competitive equity in sports,

as well as in any competitive activity - even those in

which there is a state interest — well illustrates that

organizations such as the TSSAA are best suited to self-

determine their own means and ends, not state legisla-

tures, courts or the Constitution. In other words, this case

provides an example of what happens when state action is

defined too broadly. Where, as here, there can never be a

controlling state interest precisely because the action at

issue is not state action — even though the interest itself

may be very substantial to those parties legitimately

concerned.

¢

ARGUMENT

This case presents a question of enduring national

importance; that is, should the criteria for actions deemed

“fairly attributable to the State,” Blum v. Yaretsky, 457

U.S. 991, 1004 (1982), be expanded beyond their reason-

able and traditional limits, so that any private person or

entity alleged to be somehow “entwined” with the State

inevitably becomes a “state actor”? This Court’s opinion in

Brentwood Academy v. Tennessee Secondary School Ath-

letic Association, 531 U.S. 288 (2001) (“Brentwood I”),

effectively answered this question in the affirmative. In so

doing, the Court ignored established standards for deter-

mining state action, creating instead a brand-new, unde-

fined and expansive doctrine of “entwinement.” Confusion

over the meaning and application of Brentwood I has

caused the Sixth Circuit (and other courts) to stretch the

6

concept of state action far beyond its traditional and well-

established meaning.

The facts and procedural history below have been

extensively briefed by the parties and need not be repeated

by Amicus. However, a few essential pcints bear emphasis.

The Tennessee Secondary School Athletic Association

(“TSSAA”) is a private, non-profit membership corporation

organized to promote and regulate sport among public and

private high schools that volunteer to become members.

531 U.S. at 291. The association is supported solely by

membership dues and gate receipts and receives no state

funding or other subsidy. Jd. The TSSAA’s governing

structure consists of secondary school principals, assistant

principals and superintendents from member schools, both

public and private, none of whom are paid by the State in

this capacity. Jd.* The State charges a fee to the TSSAA for

its use of any state-owned facilities, and does not exempt it

from state taxation. Jd. Finally, no Tennessee law purports

to authorize the State to oversee or regulate interscholas-

tic athletics, nor does the State delegate such authority to

the TSSAA. Id. Prior to Brentwood I, upon first consider-

ing this case, the Sixth Circuit had little trouble conclud-

ing that “[t]hese facts make clear that the TSSAA is not an

arm of the government.” Brentwood Academy v. Tennessee

Secondary School Athletic Association, 180 F.3d 758, 762

(6th Cir. 1999). Turning to well-established “contours of

the state action doctrine,” under Blum v. Yaretsky, 457

* As noted by the dissent in Brentwood I, while at the time in

question the TSSAA’s Board of Control consisted of employees of public

schools, there is nothing that prevents private school officials from

election to the Board and, in any event, Board members are charged

with acting on behalf of all member schools rather than their individual

institution. Jd. at 307 (Thomas, J., dissenting).

7

‘U.S. 991 (1982), Lugar v. Edmondson Oil Co., 457 U.S. 922

(1982), and Rendell-Baker v. Kohn, 457 U.S. 839 (1982),

the Sixth Circuit found that the TSSAA could not be

regarded as a state actor under the three existing stan-

dards articulated by this Court. 180 F.3d at 763. First,

finding that regulation of interscholastic sport is not a

power traditionally within the province of the state (and

acknowledging the unanimity of courts on this point), the

Court of Appeals correctly found that the TSSAA did not

meet the “public function test” necessary to find state

action. Jd. Second, the court found no indicia of “state

compulsion,” holding that the record was absent of any

evidence that the State so “coerced or encouraged” the

TSSAA that its decisions “must be regarded as the choice

of the state.” Jd.

In rejecting the “compulsion” rationale, the Circuit

Court found irrelevant the fact that the Board of Educa-

tion had once promulgated a subsequently repealed

resolution “designating” the TSSAA to conduct interscho-

lastic activities. Jd. at 764. Aside from the fact that the

State has never itself played such a role, the Sixth Circuit

found that such a meaningless proclamation was alone

insufficient to tie the actions of the TSSAA inextricably to

the State. Jd. (citing Jackson v. Metropolitan Edison, 419

U.S. 345 (1974)). (This issue finds its significance from the

fact that the majority in Brentwood I relied heavily on

what is tantamount to the Board’s “non-binding resolu-

tion” in finding “entwinement” between the TSSAA and

the State of Tennessee. 531 U.S. at 300-01.) Third, and

finally, the Sixth Circuit also rejected the argument that

TSSAA may be regarded as a state actor under the “sym-

biotic relationship” test for essentially the same reason —

the absence of any evidence of “significant encouragement,

8

either overt or covert, that the choice must in law be

deemed to be that of the State.” 180 F 3d at 764.

Applying decades-old precedent of this Court and its

state action doctrine, the Sixth Circuit reached the inevi-

table conclusion that, under the facts at bar, the TSSAA

could not be fairly regarded as a state actor under any

established framework. Jd. at 766. This holding was

perfectly consistent with this Court’s state action juris-

prudence, which cautions against attaching the State’s

“badge of authority” to private actors, because the state

action requirement “preserves an area of individual

freedom by limiting the reach of federal law.” Lugar, 457

U.S. at 936. The holding also provided other private

associations that govern voluntary athletic (and similar)

activities, such as the NCAA, with continuity in the law,

reaffirming this Court’s ruling in NCAA v. Tarkanian, 488

U.S. 179 (1988).

Eschewing its own well-established precedent, by a 5-

4 vote, this Court reversed the Sixth Circuit in Brentwood

I, finding, for the first time, that an undefined showing of

“entwinement” was sufficient to establish state action. 531

U.S. at 296-97. As noted by the dissent, the term “en-

twinement” appears nowhere in this Court’s previous state

action jurisprudence. Jd. at 312-13. (Thomas, J., dissent-

ing). Although acknowledging its 1982 line of cases, id. at

298, the majority opinion opts not to apply the standards

announced in those cases, but instead relies on two tenu-

ous threads between the TSSAA and the State to find

entwinement.

First, the majority created an artificial nexus between

the TSSAA and the State by citing the 1972 proclamation

by the Tennessee Board of Education recognizing the

9

TSSAA’s historical role in overseeing high school athletics.

Id. at 293-94. Apart from the fact this “rule” was repealed

in 1996, one year before the dispute at hand, id., the

majority mistakenly characterizes the Board’s action as a

“delegation” to regulate athletics “in lieu” of “its own

authority.” Jd. at 29i. In fact, no Tennessee law ever

granted the Board any such authority and nothing in the

record suggests that this rule was anything more than the

equivalent of a non-binding resolution or legislative

proclamation. As further noted by the dissent, “[t]here is

no indication that the TSSAA invited this resolution or

that the resolution in any way altered the actions of the

TSSAA or the State following its adoption in 1972.” Jd. at

308 n.2 (Thomas, J., dissenting). In this regard, the

resolution was nothing like the kind of close state-nexus

connection required by Blum, Lugar and Rendell-Baker.

The only other arguably relevant State-Association tie

evident in the majority opinion is the purported financial

relationship created between the TSSAA and Tennessee.

Id. at 299. The Court concluded that “public schools have

largely provided for the Association’s financial support,”

id., based upon the supposition that “[t]he Association

thus exercises the authority of the predominantly public

schools to charge for admission to their games; the Asso-

ciation does not receive this money from the schools, but

enjoys the schools’ moneymaking capacity as its own.” Jd.

This Court has never before found state action based upon

a similar, “indirect financial benefit” basis. To the contrary,

it has expressly rejected it. See NCAA v. Smith, 525 U.S.

459, 468 (1999) (NCAA not a state actor as the result of

receiving dues from members who receive federal financial

assistance); see also Rendell-Baker, 457 U.S. at 843 (such a

“fiscal relationship with the State is not different than

10

that of many contractors performing services for the

government.”). In the words of the Brentwood | dissent:

“The TSSAA provides a service ~- the organization of

athletic tournaments - in exchange for membership dues

and gate fees, just as a vendor could contract with public

schools to sell refreshments at school events. Certainly the

public school could sell its own refreshments, yet the

existence of that option does not transform the service

performed by the contractor into state action.” 531 U.S. at

311 (Thomas, J., dissenting).

In light of the questionable state action factors identi-

fied by the majority, and because of the absence of any

meaningful definition of what else might constitute en-

twinement, Brentwood I remains an inscrutable and

ultimately unworkable precedent. Further, it disregards

(and perhaps eviscerates) the fundamental holding of

Tarkanian and leaves associations such as the TSSAA, the

NCAA and any similarly situated entity foundering in

uncertainty.

Every bit as disturbing, this Court’s holding in Brent-

wood I has implications reaching far beyond the First

Amendment and Due Process concerns at issue in the

present case. If allowed to stand, it would impose an

unknown panoply of constitutional obligations on hereto-

fore private actors under the Fourth, Fifth, Sixth and

Fourteenth Amendments. Accordingly, in addition to the

recent, direct evidence that Brentwood I is incapable of

principled application, this Court should also consider the

vast uncertainty that future courts and litigants face in

confronting a regime in which an entity may well be

unaware it qualifies as a state actor until litigation,

following discovery or, ultimately, following motion prac-

tice or even appellate resolution.

11

I. Brentwood I Represented an Abrupt and

Unwarranted Departure from this Court’s

State Action Jurisprudence

The imposition of constitutional obligations on private

individuals and entities has been, at best, historically

problematic. The early, extremely narrow view of what

could amount to state action, see United States v. Cruik-

shank, 92 U.S. 542 (1876); Civil Rights Cases, 109 U.S. 3

(1883),’ eventually gave way to a broader approach, in

which courts looked toward whether private action in

reality was performing a “public function.” See, e.g.,

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974)

(holding that a “company town,” having been allowed by

the state to perform all of the functions and activities

normally within the province of a city, must adhere to the

First and Fourteenth Amendments). At the same time, in

making this determination, this Court has rejected the

sort of “balancing” test that would leave potential state

actors no understandable basis for being classified as such.

See, e.g., Flagg Brothers, Inc. v. Brooks, 436 U.S. 149

(1978).

A clear standard, capable of consistent and fair

application, eventually emerged from three benchmark

cases, all decided in 1982. First, in Blum, 457 U.S. 991,

this Court rejected the notion that individuals may be

subject to constitutional restraints merely because some of

their activities or policies are regulated by the government.

* Of course, in their historical context of the Reconstruction era,

these cases presented extreme examples of the failure to find state

action in the face of blatant assaults on the rights of freed slaves by

private actors who were - at a minimum - acting with the tacit

approval or even open encouragement of the State.

12

In Blum, this Court found that state penalties imposed on

nursing homes as the result of decisions made by such

facilities and their physicians did not transform either into

state actors, as they were not performing any “public

function.” Jd. at 1004. Blum established an unequivocal

guiding principle that, in every case, courts must deter-

mine whether an action “can fairly be attributed to the

State.” Id.; see also Jackson, 419 U.S. at 352.

The admonition to restrain from too readily clothing a

private actor under the shroud of state action is equally

evident in Lugar, 457 U.S. 922. While the narrow question

in Lugar concerned the involvement of state officials in the

prejudgment attachment process instituted by private

creditors, its wider holding created a second standard for

determining state action as recognized here by the Sixth

Circuit in its first panel opinion; that is, whether an entity

may be deemed a state actor because it has received

“significant aid,” encouragement or enabling by state

officials so as to be acting under color of state law. Id. at

936. The Lugar test does not examine whether a private

individual “performs a traditional function reserved to the

states,” but instead asks whether his conduct is signifi-

cantly promoted in some way that would otherwise not be

possible without assistance of the State. As the Sixth

‘Circuit originally found, in this case, the ceremonial nod of

approval once given by the State Board of Education to the

TSSAA regarding its oversight with respect to secondary

school athletics comes nowhere near meeting this well-

established standard. 180 F.3d at 763.

Finally, this Court previously recognized a third

framework for defining who is a state actor in Rendell-

Baker, 457 U.S. 839. Often referred to as the “symbiotic

relationship” test, this approach begins with the central

13

question posed by Blum: whether the alleged infringement

on federal rights is fairly attributable to the state? Jd. at

839-43. This, always, is the ultimate inquiry. The nuance

presented by the “symbiotic relationship” notion is simply

whether there is a nexus of mutuality such that the

private actor can fairly be said to act as a proxy for the

State. Id. Neither extensive state regulation, e.g., Blum,

457 U.S. at 1004, nor state funding is alone sufficient to

support a finding of a symbiotic relationship. Jd.; Moose

Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972); Crowder

v. Conlan, 740 F.2d 447, 450-51 (6th Cir. 1984). In the

present case, it is undisputed that the TSSAA was not

subject to State regulation of any nature, nor was it the

recipient of one penny of State funding. Under any appli-

cation of this standard, the TSSAA cannot be fairly said to

qualify as a “state actor.”

These three frameworks all operate to reach the same

basic determination whether it is the State, not the indi-

vidual, that is actually behind the challenged conduct.

More importantly, they were crafted to ensure this finding

is made with the utmost care, to limit the reach of federal

law upon private actors and to “avoid the imposition of

responsibility on a State for conduct it could not control.”

Tarkanian, 488 U.S. at 191. Once again, it is undeniable

that the State of Tennessee did not and could not coerce

(or, conversely, prohibit) the TSSAA from promulgating or

enforcing its own rules among its voluntary membership.

Because the TSSAA does not satisfy any of these three

well-established tests, by this Court’s pre-existing prece-

dent, its conduct could not “be fairly attributable to the

State.” Blum, 457 U.S. at 1004. In finding otherwise, the

. majority in Brentwood I crafted an entirely new test:

whether the conduct of the individual and the State are

14

sufficiently “entwined” to constitute state action. 531 U.S.

at 288-89. The majority did not actually define what might

constitute “entwinement,” nor did it purport to tie that

concept to any of the three traditional frameworks. See /d.

at 312 (Thomas, J. dissenting). As such, entwinement

created a new doctrine of state action, without the prophy-

lactic constraints developed under prior law designed to

limit state-action status solely to those private actors

whose conduct can be “fairly attributed” to the State.

II. The Brentwood I State Action Framework is

Not Capable of Principled Application

The undefined, amorphous entwinement test an-

nounced in Brentwood I has resulted in pronounced

confusion among the lower courts and robust criticism by

commentators. Lower courts have variously described the

entwinement doctrine as “labyrinthine,” “nebulous,”

“vague,” and a “freewheeling gestalt analysis.“ Lower

courts have become confused even about how many differ-

ent state action tests there actually are. See Wang v. Blue

Cross Blue Shield Ass’n, 55 F. App’x 802, 803 (9th Cir.

2003) (“seven approaches to the issue”); Keeling v. Schae-

fer, 181 F.Supp. 2d 1206 (D. Kan. 2001) (four tests);

* See Petition for Writ of Certiorari, at 28 (citing Leshko v. Servis,

423 F.3d 337, 338 (3d Cir. 2005) (“labyrinthine”); Kirtley v. Rainey, 326

F.3d 1088, 1094-95 (9th Cir. 2003) (“vague”), Tancredi v. Metro. Life Ins.

Co., 378 F.3d 220, 230 (2d Cir. 2004) (“nebulous”); Crissman v. Dover

Downs Entmt., 289 F.3d 231, 233 (3d Cir. 2002) (“little is straightfor-

ward”), Willis v. Town of Marshall, 293 F. Supp. 2d 608, 615 (W.D.N.C.

2003) (“anything but clear and consistent”), rev'd in part on other

grounds, 426 F.3d 251 (4th Cir. 2005); Gross v. Fond Du Lac County

Agric. Soc’y, Inc., 2005 U.S. Dist. LEXIS 19537, at *23 (E.D. Wis. Sept.

6, 2005) (“freewheeling gestalt analysis”)).

15

Sabeta v. Baptist Hosp. of Miami, Inc., 410 F. Supp. 2d

1224 (S.D. Fla. 2005) (three tests). This reaction should

not be surprising; it was bluntly predicted by the dissent:

Because the majority never defines “entwine-

ment,” the scope of its holding is unclear. If we

are fortunate, the majority's fact-specific analysis

will have little bearing beyond this case. But if

the majority’s new entwinement test develops in

future years, it could affect many organizations

that foster activities, enforce rules, and sponsor

extracurricular competition among high schools —

not just in athletics, but in such diverse areas as

agriculture, mathematics, music, marching

bands, forensics, and cheerleading. Indeed, this

entwinement test may extend to other organiza-

tions that are composed of or controlled by, public

officials or public entities, such as firefighters,

policemen, teachers, cities, or counties.

Id. 314-15 (Thomas, J., dissenting).’ Without question, as

the dissent notes, the new doctrine of “entwinement”

extends far beyond the facts of this case and could be used

to make “public” many institutions and activities long

regarded as private. See, e.g., D’Alessio v. Securities and

Exchange Commission, 380 F.3d 112 (2d Cir. 2004) (noting

that the New York Stock Exchange has never been held to

* Scholarly concern over the imminent expansion of Brentwood I

beyond the facts of this case has already begun. See Donna M. Nagy,

Playing Peekaboo With Constitutional Law: the PCAOB And Its

Public/Private Status, 80 Notre Dame L. Rev. 975 (2005) (questioning

the propriety and workability of applying Brentwood to the newly

created Public Company Accounting Oversight Board); Lisa J. Chad-

derdon, No Political Speech Allowed: Common Interest Developments,

Homeowners Associations, and Restrictions on Free Speech, 21 J. Land

Use and Envtl. Law 233, 242 (2006) (noting that, following Brentwood,

“there is no single, clear state action doctrine.”).

16

be a state actor); Desiderio v. NASD, 191 F.3d 198, 206-07:

(2d Cir. 1999) (National Association of Securities Dealers

(“NASD”) not a state actor); see generally United States v.

Int'l Bhd. of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991),

cert. denied, 502 U.S. 1091 (1992). In each of these cases,

Brentwood might easily be read to transform these private

associations with voluntary members into state actors

merely by virtue of some amorphous “entwinement” with

the state. For example, the oversight role the NASD has

played with its members is at least as comprehensive as

the role played by the TSSAA. Certainly, that role has at

least been “acknowledged” or recognized by the SEC, see

ibid., inasmuch as the Tennessee Board of Education has

acted similarly, yet NASD has never been held to be a

state actor — yet.

Commentators likewise have been harshly critical of

the new “entwinement” framework. See Kevin P. Braig, A

Game Plan to Conserve the Interscholastic Athletic Envi-

ronment After LeBron James, 14 Marq. Sports L. Rev. 343,

382 (2004) (“the reasoning in Brentwood Academy that a

state high school athletic association such as the OHSAA

is a ‘state actor’ is based on an intuitive, ad hoc doctrine

grounded on a ‘vague notion of entwinement. The Court’s

decision is conspicuously not based on prior conceptions of

the state action doctrine. ...’”) (emphasis added); see also

John Fee, The Formal State Action Doctrine and Free

Speech Analysis, 83 N.C.L. Rev. 569, 587 (2005) (charac-

terizing “entwinement” as “so malleable that no outcome is

excluded ... artificial and incapable of principled applica-

tion”); Alan R. Madry, Statewide School Athletic Associa-

tions and Constitutional Liability: Brentwood Academy v.

Tennessee Secondary School Athletic Association, 12 MARQ.

Sports L. Rev. 365 (2001) (“incoherent,” “ad hoc,” and

17

“rides against a strong contrary tide”); Michael L. Wells,

Identifying State Actors in Constitutional Litigation:

Reviving the Role of Substantive Context, 26 CARDOZO L.

REV. 99, 125 (2004) (“the Court appears to have gone

astray”).

A most recent, and extremely troubling, attempt to

apply Brentwood can be found in the Second Circuit Court

of Appeal’s decision in Cohane v. The National Collegiate

Athletic Association, No. 05-5860, 2007 WL 247710 (2d Cir.

Jan. 25, 2007) (“Cohane”). With a mere one-line, out-of-

context quote citing Brentwood I, the Second Circuit

appears to read that case to sub silentio overturn — or at

least unrecognizably alter — this Court’s longstanding

precedent in Tarkanian. Slip. Op. p. 4. In Cohane, the

District Court had dismissed plaintiff’s claim that the

NCAA is a state actor in accord with the clearly an-

nounced criteria of Tarkanian*; that is, that the NCAA is a

voluntary organization independent of any one state,

composed of public and private institutions, receiving its

funding from member dues and gate receipts, and without

any authority or powers normally reserved to the State.

Purporting to apply Brentwood I (and, presumably, using

its new entwinement standard), the Second Circuit theo-_

rized that the plaintiff might be able to plead facts that

somehow fit within this essentially undefined framework.

Id. In so doing, the Second Circuit attempted to distin-

guish Tarkanian by reliance on dicta as the supposed

alignment of interests between UNLV and Coach Tar-

kanian or the bench trial accorded Tarkanian but not

-

* Amicus understands that this Court is well aware of the facts and

the holding of Jarkanian and will discuss only those portions of the

opinion necessary to its argument.

)

18

Cohane. Slip Op. at p. 5. However, none of the Second

Circuit’s ersatz “distinguishing features” had played any

part in this Court’s holding in Tarkanian. In effect, the

Second Circuit held that, under certain unknown and

unknowable circumstances left open by Brentwood I and

contrary to Tarkanian, the NCAA may or may not be a

state actor. This cavalier disregard of Tarkanian in favor

of the all enveloping state action “entwinement” doctrine

is all the more disturbing because it did so in a “summary

opinion;” one that is unpublished and, supposedly, an

unremarkable statement of well-accepted law. See 2d Cir.

L.R. 0.23. In reality, it is nothing of the sort.’

Justice Thomas’ dissent in Brentwood I eerily pre-

dicted the unrestrained expansion of state action evi-

denced by Cohane. In refuting the majority’s invocation of

Brentwood I as being ostensibly consistent with Tar-

kanian, the dissent observed:

Indeed, the reference to Tarkanian is ironic

because it is not difficult to imagine that applica-

tion of the majoritys entwinement test could

change the result reached in that case, so that

the National Collegiate Athletic Association’s ac-

tions could be found to be state action given its

large number of public institutional members

that virtually control the organization.

531 U.S. at 314 n. 7 (Thomas, J., dissenting).

” Although it is not cited in Cohane, the Second Circuit’s unchecked

application of Brentwood is _presaged by its opinion in Tuncredi v.

Metropolitan Life Insurance Co., 378 F.3d 220, 229 (2d Cir. 2004), which

holds that after Brentwood, as a practical] matter, there can virtually

never be a frivolous or unfounded allegation of state action under the

expansive “entwinement” framework. Cohane has proven the Circuit

true to its word.

19

As foretold by the dissent, Cohane’s reliance on

Brentwood I well illustrates the problems inherent in

announcing a new rule without form or substance. Indeed,

the new standard effectively allowed the Second Circuit to

all but disregard the facts central to Tarkanian’s holding:

that the NCAA has “no governmental powers to facilitate

its investigation ... no power to subpoena witnesses, to

impose contempt sanctions, or to assert sovereign author-

ity over any individual.” 488 U.S. at 197. Because the

TSSAA’s authority is similarly limited, the Sixth Circuit’s

state action holding here likewise contravenes Tarkanian.

The only logical way to square this disregard for the

uncontroverted facts is to presume that the lower courts

read Brentwood IJ as substantially altering, if not entirely

overruling, the framework articulated by Tarkanian.

As Cohane illustrates, Brentwood I gives bodies such

as the NCAA, Petitioner or virtually any private quasi-

regulatory body conceivably “entwined” with the State no

pragmatic, meaningful way of knowing when or how it

may be found to be a state actor. With an almost unre-

stricted universe of possible facts, an entity could be found

to be a state actor during the course of an administrative

proceeding, following discovery or motion practice in

litigation or, as was the case here, following a determina-

tion on appeal.

Another practical implication of Brentwood I can be

seen by examining the facts of the case at bar. If the

TSSAA is indeed a state actor, it will be faced with numer- ~

ous Hobbesian choices. For example, should it be subjected

to any level of First Amendment scrutiny, would courts

limit Brentwood I to the recruiting violations asserted

here, or would private schools be able to challenge stan-

dards governing the fight songs played by “pep bands,”

- —

20

banners flown at athletic events, controversial calls (or

player/coach ejectments) by officials, or even the rules of a

particular sport? As noted by the TSSAA in its Petition for

Certiorari, Brentwood I places a voluntary association of

private actors in the incongruous, unfair position of having

less ability to enforce the rules its own members have

adopted than the State itself would have to enforce speech

restrictions against its employees. See Petition for Certio-

rari, at 27 (citing Snepp v. United States, 444 U.S. 507

(1980)). Likewise, faced with the unavoidable uncertainty

of the “entwinement” doctrine, bodies such as the TSSAA

would have strong incentive to exclude the Brentwood

Academies of the world, a choice that itself is both unde-

sirable and fraught with other potential legal conse-

quences. Id. at 30. The censequences of not doing so,

however, would be equally deleterious, leaving such

entities to face unfettered litigation they can neither

afford nor wait to wend its way through a maze of courts.

See Braig, supra, at Sports L. Rev. 343, 364-65.

In precisely the same manner, the Sixth Circuit’s

finding of a Due Process violation raises the specter of still

additional uncertainty. Perhaps because the TSSAA is a

voluntary association comprised of secondary schools that~

have agreed to abide by a set of rules for resolving griev-

ances, the Sixth Circuit frankly conceded that “[t]here is

no applicable precedent that describes the precise process

a school such as Brentwood should receive from a state

athletic association. ...” Brentwood Academy v. Tennessee

Secondary School Athletic Association, 442 F.3d 410, 436

(6th Cir. 2006). There is good reason for this. The Sixth

Circuit could find no other instance of a wholly voluntary,

private and self-governing organization being subject to

the Due Process constraints imposed by Brentwood I.

Instead, it was reduced to searching for guidance from

21

such inapposite authority as Parratt v. Taylor, 451 U.S.

527 (1981). 442 F.3d at 433. Comparing the normative

procedural hearing standards accorded by an unquestion-

able state actor - a corrections institution in Parratt —

with those in the case at bar only serves to underscore the

inherent defect in treating private, contractually man-

dated regulatory schemes as public.

Put simply, Brentwood I was what the dissent said it

was: a misguided attempt to articulate a new, deeply

flawed standard for determining state action. As such, the

principle of stare decisis does not require blind deference

to Brentwood I for at least three compelling reasons. First,

because the case “involved an interpretation of the Consti-

tution, and the claims of stare decisis are at their weakest

in that field, where [the Court’s] mistakes cannot be

correct by Congress,” there exists little restraint on this

Court to remedy a wrongly decided decision. See Payne v.

Tennessee, 501 U.S. 808, 828 (1991). Fundamentally, it is

within the exclusive province of this Court to determine

whether state action exists sufficient to bring an otherwise

private actor under the penumbra of acting under “color of

law.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803); United States v. Nixon, 418 U.S. 683, 705 (1974).°

Second, such considerations are “doubly weak” where, as

here, the majority’s opinion in Brentwood I evinces an

“inability to enunciate [a] judicially discernable and

manageable standard that it thought existed... .” Vieth v.

Jubelirer, 541 U.S. 267, 305 (2004); see also BMW of North

America, Inc. v. Gore, 517 U.S. 559, 599 (1996) (Scalia, J.,

dissenting) (decisions insusceptible of principled applica-

tion are not entitled to stare decisis effect); Patterson v.

* The Federalist No. 78, pp. 523, 525 “[t]he interpretation of the

laws” would be “the proper and peculiar province of the courts.”

~~

22

McLean Credit Union, 491 U.S. 164, 173 (1989) ([Wle have

overruled our precedents when subsequent cases have

undermined their doctrinal underpinnings... .”). Finally,

stare decisis should not constrain this Court to act where,

as here, the decision at issue departs from prior precedent.

This Court should overturn Brentwood I and restore

its pre-existing, well-established standards for determin-

ing state action.”

Ill. Competitive Equity Is Always a Substantial,

- Although Not a State, Interest

In the study of civil religions, our thinkers have too

much neglected sports. It is the fashion, nowadays,

to swing out wildly at all established institutions,

including sports. It is true that sports often tell us

a great a deal about a people - but almost as

tea leaves tell us about the future.”

* * * *

* As stated herein, Amicus believes Brentwood I was wrongly

decided and unnecessarily casts an opaque cloud over the meaning and

ordinary application of the state action doctrine. While Cohane provides

one concrete example of this, the Second Circuit’s failure to properly

apply Tarkanian itself was in error and continues to be at issue in that

litigation, wholly apart from whether Brentwood / is upheld. At this

printing, the NCAA has moved for panel rehearing/rehearing en banc in

that case and, if denied, intends to seek certiorari review before this

Court.

° Michael Novak, Endzones, Bases, Baskets, Balls, and the

Consecration of the American Spirit, Madison Books, rev'd Ed. (1994).

23

Nothing reveals humanity so well as the games it plays. .. .

Actually, you reveal yourselves best in how you play.”

The Sixth Circuit’s attempt to impose a First Amend-

ment and Due Process regime upon the TSSAA, and

require it to show substantial “state” interest in enforce-

ment of its recruiting rules, only serves to illuminate the

infirmities inherent in Brentwood Is state action holding.

In other words, this case provides a troubling example of

the consequences of defining state action too broadly. In

such cases, as here, there can never be a substantial state

interest — precisely because the action at issue is not itself

state action but, rather, action in which only the interests

of private actors are pervasive and substantial.

Accordingly, the state action ruling in Brentwood I

leaves open problematic, perhaps logically unanswerable

questions. Beyond determining that the TSSAA is a “state

actor,” in remanding this case to the Sixth Circuit, this

Court gave virtually no guidance on how lower courts

should apply the constitutional mandates that follow from

this conclusion. It is hardly surprising, therefore, that both

District Court and the Sixth Circuit struggled with — for

example — the level of scrutiny given to First Amendment

restrictions in the context of interscholastic athletics.

This flaw is perhaps best exemplified by the lower

court’s apparent disregard for the importance of “competi-

tive equity,” see 442 F.3d at 427-28, a notion of fair play

that transcends all sporting activities. The Sixth Circuit’s

holding that an interest in a “level playing field” is not

comparable with what it characterized as substantial

" “Q,” Star Trek: the Next Generation, “Hide and ‘Q’”, September

25, 1987 (Act One).

24

“state” objectives concerning academics, athletics and

student exploitation, is testament to why the TSSAA, not

the courts, should determine its own rules of the game.”

In this regard, Amicus respectfully suggests the

second question raised by Petitioner, the substantial

importance of competitive equity in interscholastic sport-

ing events, does not turn on the Sixth Circuit’s erroneous

application of First Amendment law, nor does it depend on

the level of scrutiny applied under that constitutional

edict. Rather, the critical role played by competitive equity

in all sport only serves to illustrate, in fact dispositively,

. that organizations governing such activities should not be

held to be state actors. Courts have explicitly found that

oversight of sport is not a traditional function of the state

and, accordingly, the state itself has no interest in promo-

tion or dissuasion of any specific sport objective. See San

Francisco Arts & Athletics, Inc. v. United States Olympic

Committee, 483 U.S. 522, 545 (1987) (“[nJeither conduct

nor the coordination of amateur sports has been a tradi-

tional governmental function.”). This, however, in no way

leads to the conclusion that competitive equity is not a

critical component of sport regulation or oversight by

bodies constituted for this purpose. To the contrary, no-

tions of essential fairness and equity pervade all levels of

* By stressing the wider import of competitive equity to all sports,

the NCAA does not intend to suggest that this interest “outweighs”

concerns over student-athlete exploitation and the primacy of academ-

ics in the interscholastic and intercollegiate context. All three are

substantial interests that the NCAA and Petitioner share. The fact that

competitive equity transcends scholastic sport — and, as noted below,

sport itself ~ merely illustrates how ill-suited courts such as the Sixth

Circuit are to evaluate and weigh these substantial interests.

25

sport, from little league to intramural basketball to ama-

teur and professional sports.

The NCAA’s own Constitution cites competitive equity

as a fundamental purpose of the Association. See NCAA

Const. §§ 1.2, 1.3.1 and 2.7. This is not simply an empty

creed: to ensure fairness and balance among its members,

the NCAA employs its own Research Staff that conducts

ongoing studies of trends, data and characteristics of

intercollegiate sports, including monitoring competitive

equity through examination of, for example: (1) student-

athlete performance; (2) race and gender demographics; (3)

graduation rates; (4) the use of performance-enhancing

substances; and (5) the impact of wagering and associated

behaviors on collegiate sports. See NCAA Research Staff,

http://www.NCAA.org. The NCAA consistently monitors

these and other areas to promote the same three interests

asserted by the TSSAA on behalf of student athletes,

including providing a level playing field for all. The State

plays no role in promoting, furthering or assisting in these

goals. Yet, it is beyond any doubt that they are goals which

are substantially important to amateur sport in the

United States.

Not only does the State itself have no interest in the

promotion or oversight of amateur athletics, San Francisco

Arts & Athletics, Inc, 483 U.S. at 545, because the volun-

tary competitive bodies which do govern interscholastic

activities have the real expertise in this area, states and

the courts should accord great deference in their affairs.

See Mahan v. Oklahoma Secondary Sch. Activities Ass’n,

652 P.2d 765 (Okla. 1982) (“Surely the schools themselves

should know better than any one else the rules under

which they want to compete with each other in athletic

events”).

26

In attempting to “micromanage”: the--TSSAA and -

second-guess its application of rules agreed to by all of its

members including Brentwood Academy, the Sixth Circuit

erroneously substituted its judgment for that of the one

body that actually has the incentive, expertise and ability

to ensure fairness: the TSSAA. As succinctly put by the

Fifth Circuit Court of Appeals over twenty years ago: “We

are not super referees over high school athletic programs.

Questions about eligibility for competition may loom large

in the eyes of youths, and even their parents. We do not

disparage their interest in concluding, as here, that these

issues are not of constitutional magnitude.” Hardy v.

University Interscholastic League, 759 F.2d 1233, 1235

(5th Cir. 1985); see also NCAA v. Yeo, 171 S.W.3d 863, 863-

64 (Tex. 2005) (citing Hardy with approval and holding

that disputes concerning the administration of interscho-

lastic sports are best left to schools, and are not the

concern of courts or the Constitution).

There is yet another compelling reason why states

(and courts) should refrain from meddling in the affairs of

voluntary organizations such as the TSSAA and Amicus.

Rules alone cannot foster competitive equity if they cannot

be applied consistently. In the case of the NCAA, courts

have ruled that state attempts to “overrule” its practices

and procedures run afoul of the Commerce Clause. See

NCAA v. Miller, 10 F.3d 633, 638 (9th Cir. 1993); NCAA v.

Roberts, No. 94-40413, 1994 WL 750585 (N.D. Fla. Nov. 8,

1994). Miller, for example, involved the State of Nevada’s

attempt to legislate around this Court’s ruling in Tar-

kanian, aid place state law above the NCAA's enforcement

procedures. The Ninth Circuit struck down the Nevada

law, holding that piecemeal state legislation attempting to

regulate the NCAA’s national practices and procedurés

27

violated the Commerce Clause. Miller, 10 F.3d at 638. Just

as the Commerce Clause prevents states from dictating

differing lengths for railroad cars, so must the NCAA be

afforded consistent treatment by the states to accomplish

its national purpose. /bid. To the great extent Petitioner

regulates Tennessee athletics across the broad spectrum of

different high schools, public and private, while not

implicating the Commerce Clause, the TSSAA has pre-

cisely the same need for consistency which would be

frustrated by different state courts reaching disparate

conclusions regarding the application of its rules.

To be sure, the Sixth Circuit’s failure to find a “sub-

stantial state interest” in competitive equity rested on the

fundamentally flawed assumption of state action. Yet, even

where state interests are at stake, for example in the field

of anti-trust, laws and courts are committed to do precisely

the same thing that the TSSAA has attempted here: make

certain that competing interests are given a level playing

field with no unfair advantage to either side. See, e.g.,

State Oil Co. v. Kahn, 522 U.S. 3, 14 (1997); Business

Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717,

726 (1988). Indeed, entire federal governmental depart-

ments such as the Securities and Exchange Commission

have been created to ensure fairness in the securities

markets. See 15 U.S.C. § 78n(e), et seq. Similar considera-

tions have driven legislation and rule-making in such

diverse areas as communications (see 47 U.S.C. § 251(c),

(Communications Act of 1996); Verizon Communications

Inc. v. FCC, 535 U.S. 467, 488 (2002)), interstate trade (see

Maine v. Taylor, 477 U.S. 131, 148, n. 19 (1986)), and

international trade (see 19 U.S.C. § 1526). For similar

reasons, even if the TSSAA were deemed to be a state actor,

these authorities strongly suggest that any reasonable

28

“intermediate scrutiny” analysis would necessarily pre-

sume competitive equity to be a substantial state interest.

Among all competitive endeavors, the substantial

importance played by competitive equity is readily appar-

ent. Likewise, it is axiomatic that those most deeply

concerned with fostering and preserving such equity are

best suited to determine how to achieve this critical

objective. By erroneously placing its own judgment above

that of the TSSAA, the Sixth Circuit inadvertently proved

just how unsuited the State and the courts are in making

value judgments regarding the ends and means of ama-

teur sports. The awkward application of the First Amend-

ment “state interest” test, 442 F.3d at 427-28, merely

confirms that organizations like the TSSAA cannot be

contorted into “state actors” without resulting in egregious

injury to their very purpose and mission.

_ For all of these reasons, the length of the field, the

size of the ball, the number of players and who can play,

the seasons of play and practice, as well as the innumer-

able other critical elements of sports are best left to those

who organize and play them. The substantial importance

of these considerations are undeniable in the world of

sport; they are equally of no consequence to the State, the

courts or the Constitution.

+

CONCLUSION

Amicus respectfully suggests that this Court’s prior

decision in Brentwood I was wrongly decided, inadver-

tently creating a new “state action” rule without founda-

tion in existing precedent and which is incapable of

principled application. The confusion among the lower

29

courts as to the meaning of “entwinement” is pronounced

and quickly growing. Under the circumstances, deference

to stare decisis can and should give way to providing

private individuals and organizations such as Petitioner

and Amicus meaningful guidance before placing upon

them the burden of the many substantial Constitutional

obligations intended to be imposed upon the State.

Respectfully submitted,

WILLIAM C. ODLE

Counsel of Record

LINDA J. SALFRANK

JONATHAN F. DUNCAN

SPENCER FANE BRITT &

BROWNE LLP

1000 Walnut Street,

Suite 1400

Kansas City, MO 64106-2140

(816) 474-8100