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tial Report No. 111(35) on February 19, 1976. Secondly, the number of student-athletes affected by the enforcement procedures were relatively insignificant. In Confidential Report No. 111(35), the NCAA found 122 violations by the University of Minnesota. Only six of these violations affecting only three student-athletes would have required a prior evidentiary hearing. This imposes no great administrative burden on the NCAA. Moreover, the societal costs of not affording student-athletes a prior evidentiary hearing are great. The Circuit Court noted this cost as follows:

We well appreciate that our decision leaves the Association's member institutions with the sometimes delicate task of declaring individuals ineligible when facts are found which reasonably reflect proscribed conduct and with not declaring them ineligible when such facts are not found. We cannot say that this task will always be an easy one, nor can we deny that the member institution will occasionally find itself in the position where fairness to the individual and adherence to contractual obligations may seemingly conflict. [App. A, A-41]

Judge Devitt more completely stated the societal cost:

It apparently has not been fully appreciated by the NCAA that its member institutions have a dual obligation to the NCAA and to the students...

At its January 1975 annual convention in Washington, D.C., the NCAA was afforded the opportunity to amend its procedures to specifically provide for institutional hearings before finding ineligibility. President Horn of California State University at Long Beach offered a proposal (#68) to provide a 30 day period "prior to the axe falling" for the holding of an

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institutional hearing. President Horn said "the student-athletes, just as any other human being in our Angelo-Saxon judicial oriented society, would have to receive notice and opportunity for a hearing with respect to his ineligibility.

The proposal was not adopted. Had it or some similar provision been included in the NCAA enforcement procedure so as to make crystal clear the hearing rights of student athletes and the respect such hearings must be accorded by NCAA, this unfortunate confrontation between the University of Minnesota and the NCAA might have been avoided. [App. B B-9-10]

This Court, therefore, should not allow the Circuit Court to give binding effect to decisions reached in hearings that do not conform with the minimum procedural safeguards required to protect the interests of studentathletes where a different finding has been made in a good faith hearing providing the minimum procedural safeguards. The Circuit Court's decision thwarts the fundamental objective of the due process clause which is to assure fairness. Accordingly, this Court should exercise its discretion to review the Circuit Court's decision.

III.

THIS COURT SHOULD SETTLE THE UNRESOLVED ISSUE OF WHETHER THE VOID FOR VAGUENESS DOCTRINE APPLIES TO NCAA ELIGIBILITY RULES ENFORCED IN UNIVERSITY DISCIPLINARY PROCEEDINGS.

Although not expressly stating that the University of Minnesota would not violate the student-athletes' rights to substantive due process by applying the applicable eli

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gibility rules, the Circuit Court essentially held that no substantive due process violation would have occurred if the University of Minnesota had declared its student-athletes ineligible.

The Eighth Circuit examined each charged violation and found that the conduct in all but one instance24 was fairly embraced and understood as within the terms of the applicable NCAA legislation. It found that these rules were the ones under which each student-athlete was charged, were in effect at the time of the violation and required a declaration of ineligibility upon the finding of the violation. Further, the Court of Appeals concluded that the association gave fair warning in language the common world understands of what would result if the student-athletes accepted such benefits.

The Circuit Court's finding that the NCAA rules afforded the student-athletes substantive due process presents this Court with the opportunity to settle the uncertainty among the Circuits of whether the "void for vagueness" doctrine inherent in the due process clause applies to college and university rules and regulations. In Esteban v. Central Missouri State College, 415 F. 2d 1077, 1088 (8th Cir. 1969) cert. denied 398 U.S. 965 (1970) then Circuit Judge Blackmun ruled that codes of general conduct were constitutionally permissible, stating:

Thirdly, we do not find the regulation at all difficult to understand and we are positive the college student, who is appropriately expected to possess some minimum intelligence, would not find it difficult. It asks

24 The Court of Appeals questioned whether Saunders' use of Mrs. Kienzle's car could reasonably have been understood as a violation of NCAA rules but did not resolve the issue in light of his two other violations. App. A, A-37 at n. 29.

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for the adherence to standards of conduct which befit a student and it warns of the danger of mass involvement. ...

Fourthly, we see little basically or constitutionally wrong with flexibility and reasonable breadth, rather than meticulous specificity, in college regulations relating to conduct. Certainly these regulations are not to be compared with the criminal statute. They are codes of general conduct which those qualified and experienced in the field have characterized not as punishment but as part of the educational process itself and as preferably to be expressed in general rather than in specific terms. (Citations omitted)

The Eighth Circuit summarized its holding as follows: [11-14] Let there be no misunderstanding as to our precise holding. We do not hold that any college regulation, however loosely framed, is necessarily valid. We do not hold that a school has the authority to require a student to discard any constitutional right when he matriculates. We do hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; that it may expect that its students adhere to generally accepted standards of conduct; that, as to these, flexibility and elbow room are to be preferred over specificity; that procedural due process must be afforded (as Judge Hunter by his first opinion here specifically required) by way of adequate notice, definite charge, and a hearing with opportunity to present one's own side of the case and with all necessary protective measures; that school regulations are not to be measured by the standards which prevail for the criminal law and for criminal procedure; and that the courts should inter

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fere only where there is a clear case of constitutional infringement.

The Seventh Circuit in Soglin v. Kauffman, 418 F. 2d 163, 167 (7th Cir. 1969) rejected the Esteban approach and applied the void for vagueness doctrine to the term "misconduct" as a standard for disciplinary action.

The doctrines of vagueness and overbreadth, already applied in academic contexts, presuppose the existence of rules whose coherence and boundaries may be questioned. (Citations omitted) These same considerations also dictate that the rules embodying standards of discipline be contained in properly promulgated regulations. University administrators are not immune from these requirements of due process in imposing sanctions. Consequently, in the present case, the disciplinary proceedings must fail to the extent that the defendant officials of the University of Wisconsion did not base those proceedings on the students' disregard of university standards of conduct expressed in reasonably clear and narrow rules.

In so doing, the Seventh Circuit noted its disagreement with Esteban.

The use of "misconduct" as a standard in imposing the penalties threatened here must therefore fall for vagueness. The inadequacy of the rule is apparent on its face. It contains no clues which could assist a student, an administrator or a reviewing judge in determining whether conduct not transgressing statutes is susceptible to punishment by the University as "misconduct". Since the misconduct standard is invalid on its face, it was unnecessary for the district court to make any findings with respect to plaintiffs' activities on October 18, 1967. (Citations omitted)