• Delay of Game in Former Coach's NCAA Lawsuit
  • July 4, 2012
  • Law Firm: Proskauer Rose LLP - New York Office
  • The SUNY-Buffalo men's basketball program made some noise this spring, but not because the team made the National Collegiate Athletic Association tournament - a feat the Buffalo Bulls haven't accomplished since joining the Mid-American Conference in 1996. Rather, the noise came from the Bulls' mention in an Op-Ed piece in The New York Times. The article concerned the team's former coach, Tim Cohane, and the status of his lengthy legal battle with the NCAA.

    Cohane's lawsuit involves the circumstances of his departure from SUNY-Buffalo in 1999. Back then, the current class of SUNY-Buffalo freshmen were barely out of kindergarten. Cohane says he was forced to resign from his coaching position due to pressure brought on SUNY-Buffalo by the NCAA. Cohane believes SUNY- Buffalo colluded with the NCAA to accuse him of minor NCAA rule violations. Further, he alleges the university threatened that students who did not participate in the NCAA investigation would not be allowed to graduate. Cohane's legal claim is that a 2001 NCAA investigation report defamed him and destroyed his ability to pursue his chosen occupation.

    As today's baby Bulls stampeded their way through grade school, Cohane's case made its way through motion practice in two federal district courts. In 2007, as they entered high school, the Cohane case stepped up too, registering an appearance before the U.S. Court of Appeals for the Second Circuit.

    Constitutional gamesmanship was at the heart of Cohane's appeal to the Second Circuit. The issue: Under what circumstances may the NCAA be considered a "state actor" under the Fourteenth Amendment, and thus potentially liable for violating federal civil rights laws? Cohane argued that the NCAA should be deemed a state actor because it had acted together with the state university in violating his rights, an argument that had been rejected by the district court.

    In considering the issue of state action, the Second Circuit had to account for NCAA v. Tarkanian (1988), a U.S. Supreme Court case that held the NCAA is not a "state actor." Jerry Tarkanian, one of the winningest college coaches of all time, enjoyed tremendous success at UNLV, including capturing the 1990 national title. But Tarkanian bumped heads with the NCAA nearly as often as he won big games. Following a lengthy NCAA investigation of alleged improper recruiting practices by UNLV, the NCAA's Committee on Infractions found numerous violations by the university and Tarkanian himself. The Committee requested UNLV show why additional penalties should not be imposed on UNLV if it failed to suspend Tarkanian. Although UNLV initially contested the NCAA's finding, the University ultimately decided it had no choice but to sanction its prized coach.

    Tarkanian brought suit in Nevada state court against UNLV and the NCAA, alleging he had been deprived "due process" under the Fourteenth Amendment. Ultimately, in a 5-4 split - a metaphorical nail-biter in the highest of courts - Justice Stevens wrote that UNLV "conducted its athletic program under color of the policies adopted by the NCAA," rather than the other way around. Still, the Court left open the possibility that under a different set of facts, state action "nonetheless might lie if [a state university], by embracing the NCAA's rules, transformed them into state rules and the NCAA into a state actor."

    The opening created by Tarkanian prompted the Second Circuit in Cohane v. National Collegiate Athletic Association (2d Cir. 2007) to overturn the district court's dismissal of Cohane's claims. The appeals court held that Cohane's allegations, if proven, "could show that the University willfully participated in joint activity with the NCAA to deprive Cohane of his liberty." The case was remanded to the district court for further proceedings.

    While there have been plenty of "further proceedings," the case has not actually "proceeded" very far. Since the remand, over a hundred docket entries detail extensive discovery disputes and motion practice. Rain delays aren't common in courtrooms, but this case even had that. On August 30, 2011, the case was held in abeyance because Hurricane Irene "caused unforeseen damage to plaintiff's counsel's property." Most recently, the case has stalled while the district court considers the parties' respective motions for summary judgment. Oral argument on the motions was heard in October, 2011.

    The way things are going, a whole new generation of Bulls may reach Division I before Cohane gets his day in court.