29

II.

THE COURT OF APPEALS' DECISION GIVES PRECEDENCE TO FINDINGS REACHED IN PROCEEDINGS OFFENDING THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OVER FINDINGS REACHED IN PROCEEDINGS SATISFYING THIS CONSTITUTIONAL REQUIREMENT.

While not technically deciding the issue of whether the NCAA procedures afforded the involved student-athletes procedural due process of law, the Eighth Circuit effectively found that procedural due process requirements were satisfied because of the binding effect which it gave to the NCAA findings of fact and determinations of violations made in Confidential Report No. 111 (35) in resolving the different findings and determinations of the NCAA and the University of Minnesota. The Court of Appeals specifically found that the University of Minnesota's proceedings afforded the student-athletes procedural due process of law. App. A, A-33. However, its reliance on the findings of the NCAA that were reached in constitutionally infirm proceedings has eviscerated all of the procedural due process safeguards utilized by the University of Minnesota.23

This Court has consistently held that the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The hearing required is only one appro23 Supra, at 26-27.

30

priate to the nature of the case. Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 313 (1950); Goldberg v. Kelly, 397 U.S. 254, 263 (1970). The timing and content of the notice and nature of the hearing will depend upon the appropriate accomodation of competing interests. Goss v. Lopez, 419 U.S. 565, 579 (1975).

In Goss v. Lopez, supra, at 579-83, the Supreme Court balanced the student's interest in avoiding an unfair or mistaken exclusion from the education process against the risk of error inherent in the school disciplinary context. It held that due process requires in connection with short-term suspensions from school that the student be given oral or written notice of the charges against him and if he denies them, an explanation of the evidence that the authorities have and an opportunity to present his side of the story. In addition, the Court noted that as a general rule notice and hearing should precede removal of the student from school. Here, the NCAA enforcement procedures did not afford the University of Minnesota's student-athletes with even these rudimentary precautions against unfair or mistaken findings of violations of NCAA regulations let alone a prior evidentiary hearing. Nor did the NCAA provide the University of Minnesota or the student-athletes with a statement of the evidence relied on in making its findings in Confidential Report No. 111 (35) or Confidential Report No. 118 (42) as required by the due process clause. Goldberg v. Kelly, supra, at 271. There can be no doubt but that the NCAA considered its findings contained in Confidential Report No. 111 (35) final throughout all subsequent hearings and appeals before the NCAA and imposed penalties for failing to adhere to them.

31

The Circuit Court tacitly recognized the invalidity of the NCAA findings by questioning whether the NCAA could sanction the University of Minnesota for failing to declare Winey and Saunders ineligible as of March 4, 1976, the date when the University accepted the findings of Confidential Report No. 111 (35) but at which time neither Winey nor Saunders had been afforded a hearing. App. A, A-31 n. 24. It failed to resolve this issue by noting that the penalties imposed on the University of Minnesota in Confidential Report No. 118 (42) were primarily for failing to declare the student-athletes ineligible after May 4, 1976. In effect, the Circuit Court recasts the NCAA's findings of violations to pass constitutional scrutiny.

Subsequent to Goss v. Lopez, this Court in Mathews v. Eldridge, supra, at 335, again articulated the facts that must be considered in identifying the specific dictates of the due process clause.

first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Citation omitted.]

A balancing of these factors compels the conclusion that the procedural safeguards set forth by the Minnesota state district court in Thompson v. University of Minnesota, App. C, C-8, and followed by the University of Minnesota, are the minimum precautions necessary to afford a student-athlete due process of law. See also, Behagen

32

v. Intercollegiate Conference of Faculty Representatives, 346 F. Supp. 602 (D. Minn. 1972). It also compels the conclusion reached by Chief Judge Devitt in granting the preliminary injunction that the University of Minnesota was required by law to afford the athletes a hearing before passing on their eligibility and could not later disavow the findings made by its Committees in order to comply with its NCAA membership obligation to abide by NCAA rules and decisions and that to have done so would have made a mockery of due process. App. B., B-7-8.

The interest of student-athletes affected by the NCAA findings of the violations is a loss of eligibility coupled with a scarred reputation. The district court in Buckton v. NCAA, 366 F. Supp. 1152, 1159 (D. Mass. 1973) accurately stated the consequences of the NCAA's findings that a student-athlete violated an eligibility rule:

A reasonable if not necessary implication would be that plaintiffs lacked moral fiber because they took money under improper circumstances. Such an implication would scar their reputations, not only on their own campus but in athletic circles throughout the country, in a way that no subsequent finding of eligibility would ever fully erase.

These interests are sufficient to require a prior evidentiary hearing. Board of Regents v. Roth, 408 U.S. 564, 574 (1972).

Second, the risk of an erroneous deprivation of eligibility and imposition of a stigma on the student-athletes' reputations is substantial. This Court noted in Goss v. Lopez, supra at 579-80:

The concern would be mostly academic if the disciplinary process were a totally accurate, unerring

26-961 O-79-23

33

process, never mistaken and never unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.

Moreover, the veracity and credibility of witnesses plays a substantial role in the decision making process and therefore an evidentiary hearing with attendant procedural safeguards is appropriate. See Mathews v. Eldridge, supra, at 343-44. Goldberg v. Kelly, supra, at 263-271. The initial findings of the NCAA Committee on Infractions are final. The appeal procedures available to the student-athletes can restore the student-athletes' eligibility, but do not overturn the finding of a violation; consequently, the stigma of having accepted money under improper circumstances remains with the student-athlete unaffected by NCAA procedures.

Finally, there are no great administrative burdens in providing student-athletes with a hearing prior to making a decision affecting his eligibility. The NCAA disciplinary proceedings against the University of Minnesota basketball program covered over two years before Confidential Report No. 111(35) was issued. The NCAA began its investigation of the University of Minnesota in 1974, and launched its official inquiry in July of 1975. The University of Minnesota responded in December of 1975 and the NCAA Committee on Infractions issued its Confiden