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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 291

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0298%3A22. Public record. Not legal advice.