The state action doctrine has as its central goal the preservation of liberty by limiting the intrusion of the government into the "private" sphere. It achieves this by applying the Constitution only to government, and not private, action. Traditionally, amateur sports regulators such as the National Collegiate Athletic Association (NCAA) and the United States Olympic Committee (USOC) have been viewed by courts as private. As a result, this article explains that courts generally give great deference to amateur sports organizations such as the NCAA and USOC to regulate sports with little judicial interference, including in the area of constitutional litigation. This deference is manifest in the Supreme Court's decisions, during the late 1980's, that the NCAA and the USOC are private, and not state, actors.
This article makes the claim that these decisions have had important and un-intended consequences that warrant a re-examination of the application of the state action doctrine in the amateur sports context. The most significant consequence is that a static conception of the nature of the NCAA and the USOC, and the government's relationship to them, has developed, so that the NCAA and the USOC are thought to be private actors as a matter of law. As a result, these decisions have produced the paradoxical result whereby the government has been virtually invited to exercise far more state power in what was traditionally a private area. This exercise of state power goes largely unchecked, and I argue this is to the detriment of amateur athletes, a significant number of whom are African-American. Moreover, this static conception of the NCAA and USOC, and the government power exercised through them, has chilled litigation on the issue and perpetuated the perception that the NCAA and the USOC exploit amateur athletes. This article argues that because of these consequences, the Supreme Court should no longer give deference to amateur athletic regulators on the state action issue, as there is a strong case that state power, now more than ever, is exercised through our most important amateur sports institutions.
Frozen in Time: The State Action Doctrine's Application to Amateur Sports, 82 St. John's L. Rev. 183 (2008)