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Che as 417 F.Supp. 883 (1976) volved in the dispute irrationally discrimi. Pearce, 395 U.S. 711, 722-23, 89 S.Ct. 2072, bates against D.U. in that other schools 23 L.Ed.2d 656 (1969); Oyler v. Boles, 368 τα as Michigan State and Minnesota, U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). which have committed arguably more seri- In sum, harsh treatment based on open fous violations, have had penalties imposed defiance by the University's highest offionly on the teams involved in those viola- cial, while undoubtedly seeming unfair to tions.

many, is not unconstitutionally discriminaPlaintiffs' argument ignores a vital dis- tory merely. because it differs from the

treatment of other schools in differing cirtinction between the University's case and

cumstances. that of the other mentioned schools. It is that the willful violation of NCAA legisla

III. ** tion in D.U.'s case was not merely at the behest of a coach or administrator connect-,

(19) This Court is of expressly limited with a particular sport. It was the act) ed jurisdiction whose statutory duties do of the highest executive official of the Uni

not include sitting as a final arbiter of 5 versity of Denver. Nor are we persuaded disputes between an association and its 1.. that the act was a product of a misunder membership. A disturbing aspect of this

standing rather than one of defiance. litigation is the attempt to rely upon the While the University may have justifiably federal judiciary to resolve essentially pri

vate disputes because of the refusal of the considered the opinion of Warren Brown to

Association and member institution to deal be merely a personal point of view, any doubt as to the official position of the

with each other on a reasoning and where NCAA was removed when D.U. was noti

necessary compromising basis. Several unfied in writing on December 13, 1974, that

fortunate consequences have resulted. For the Association's officers had concluded the

example, it seems to have been virtually

ignored that the continuing defiance by information previously provided indicated

D.U. of NCAA authority for nearly two that the student-athletes were ineligible. $ In the name of principle Chancellor Mitchell

years was at least partially attributable to

the lack of administrative continuity within chose to ignore the notification and contin

D.U.'s athletic department caused by the ved the participation of the ineligible hock. untimely death of Athletic Director Hoyt ey players in intercollegiate competition for

Brawner. The delay of ten months beDearly two more years. The penalty im

tween the decision to bring an official inposed was consistent with the treatment of

quiry and actual notification to the Univerthree other schools in similar circumstances.

sity with subsequent findings and proposed Regardless of the propriety of the penalty penalties delayed receipt by the new Athci in view of certain arguably extenuating letic Director Ronald Oyer of the reason for

circumstances, to be discussed, we cannot the harsh treatment. Earlier notice might say that the penalties imposed unconstitu- have led Mr. Oyer to seek earlier complitionally discriminate against the University ance than he did and thus would have lessof Denver.

ened the period of continued defiance. It should be pointed out that each school Earlier explanation of the distinction beis sanctioned on the basis of the particular tween receipt of aid while in school and not circumstances involved in each case, much in school might have had a similar effect. like actions taken in the areas of criminal It should also be noted that the NCAA's enforcement ard sentencing. Like those insistence on the continued ineligibility of areas, this seems one particularly ill suited plaintiff Falcone is apparently based on the for intermeddling upon review. Absend a former regulation 0.1.5 which specifically claim of discrimination based on an arbi- prohibited such compensation, but specifitrary and recognizable classification such as cally applied only to student-athletes playrace, religion or national origin, the Courting on foreign teams. Falcone is an Ameriwill not intervene. Cr. North Carolina v. can who received compensation from an ORDERED that plaintiffs' motioh for summary judgment should be and the same hereby is denied with the foregoing excep tion, and that defendants' motion for summary judgment should be and the same hereby is granted with the same exception.

Aserices arezteur team. It might be ar. goed that the restrictions were meant to be even more stringent in the case of American student-athletes, Exhibit X, page 3, but this was far from clear.

Most importantly, because of the refusal of Association and member institution to cooperate student-athletes in all sports must suffer the consequences. We cannot constitutionalize amateur sports to protect their interests: The result may well be to develop new levels of cynicism in young students who are so often the pawns in the games of power between associations, and associations and member institutions. But if nothing else, this case may well demonstrate that defiance in the name of principle can prove to be inflexibility disguised as a virtue It is

ORDERED that plaintiffs' motion for a preliminary injunction should be, and the same hereby is denied, except that the NCAA shall not take any actions against the University of Denver based on its refusal to forfeit the crophy and receipts from the 1973 National Collegiate Hockey Championship untü the Association has con: sidered the interpretation of the Executive Regulations discussed herein and has pro vided the University a hearing on the issue of whether the student-athletes or the school knew or had reason to know of the ineligibility of two hockey players who participated in the 1973 tournament. It is further

ACY NUMBER SYSTEM

7. The interests of others concerned with this

dispute have also not been mentioned. Studenis and fans who have supported the Univer: sity's athletic teams will now be deprived of the possible memories of team triumphs and championships.

Mr. Moss. Professor Brody, we do want to thank you. I find that your testimony is helpful in giving me a better understanding of some of the frustrations that you obviously experienced in attempting to carry through responsibly as counsel for the university, and on behalf of the players.

I am impressed by the total lack of any rights for players before any body of the National Collegiate Athletic Association. There certainly appears to be a denial of ordinary due process to the educational institutions. There is a total denial of any kind of process for the athletes. That a young man who is now in high school, unaware of NCAA and its multitude of rules and interpretive opinions, is going to be held answerable to them for the conduct in high school, I find shocking.

I think that the courts, in this case, would have been well advised to have searched just a little further. It seems they shunted it off as quickly as possible on the question of property rights. We'll explore property rights a little further because NCAA is selling something when it sells broadcast rights. NCAA is selling something when it engages in the promotion of merchandise. If it has a property right it had to get it from the member institutions. If they have it, we have to find out where they get it from. But there must be a right there some place because it is being promoted and marketed. Or, if not, then a massive fraud is being committed and perhaps we should refer that question to the Federal Trade Commission to determine whether a fraud is, in fact, being committed, or perpetrated in this instance.

But, in any event, we will continue to pursue this until we have further information.

Mr. SANTINI. Mr. Chairman, might I ask further consideration of both the chairman, and this committee, about what appears to me to be a result of testimony yesterday and my followup on that testimony of Miss Tyree to be another arena into which the absolute power of the NCAA has stumbled. That is this: Its present so-called tax-exempt status. I am advised that their 1975 and 1976 tax returns check off the box that says, “No Lobbying Activity," or words to that precise effect. Yet, they have turned around and, in their annual publications, laud and taut several different instances as to where they have aggressively engaged in lobbying activities. Not just this committee, but on several legislative fronts involving several kinds of issues. It suggests to me that they have wondered into, in this absolute power perception, another legal thicket, and I think it ought to be a subject of further pursuits and inquiry of this committee, and part of our recommendation process.

Mr. Moss. The gentleman raises a question as to the appropriateness of the affidavits filed by the NCAA for the purposes of being classified or securing classification as a nonprofit association.

That is not within the official jurisdiction of this committee. If it is the desire of the gentleman that that matter be referred to the Department of Justice for a resolution, the Chair will be happy to undertake to make such references.

Mr. SANTINI. I would make such a motion in urging that, Mr. Chairman.

26-961 0.79 - 45

Mr. Moss. The Chair will see that that matter is referred to the Department of Justice for reference. It is not within the jurisdiction of this subcommittee.

The committee appreciates your appearance, Mr. Brody, and we thank both you and Mr. Armstrong.

We now stand adjourned, subject to the call of the Chair.

[Whereupon at 12:05 p.m., the subcommittee was adjourned, subject to the call of the Chair. ]

NCAA ENFORCEMENT PROGRAM

FRIDAY, JUNE 9, 1978

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m., in room 2123, Rayburn House Office Building, Hon. John E. Moss (chairman) presiding

Mr. Moss. The subcommittee will be in order.

We will resume hearings this morning on the enforcement procedures and practices of the National Collegiate Athletic Association. This phase of our investigation, the enforcement phase, commenced over 6 months ago, and is now nearing its end. We have about a month to go after which the members of this subcommittee will begin to deliberate on a report. That report, I am confident, will have a universal impact on this colorful and highly controversial subject.

In the meantime, we will hear from a variety of witnesses and let me take this opportunity to outline our remaining schedule.

Next week on June 15 and 16 we will hear from representatives of the University of Kansas, Yale University, and North Carolina Central University. A week after that, on June 22, we will hear from Hofstra University and the University of Nevada at Reno. Finally, in mid-July on the 12th, 13th, and 14th, we will have the benefit of the NCAA's own views of the entire hearing record to date. Naturally, these dates are subject to change because of action on the floor of the House.

In those final 3 days, by the way, we expect to hear from virtually all pertinent NCAA principals, the association's president, its executive director, its enforcement staff, its infractions committee, and others.

Today we turn first to an eminent gentleman who is in the unique position to offer us constructive suggestions. Mr. Charles Neinas is presently Commissioner of the Big Eight Conference. Before that Mr. Neinas was himself a top member of the staff of NCAA.

As we look more and more in this hearing record to positive suggestions for enhancing intercollegiate athletics and just what role, if any, the Congress of the United States should take, we welcome Commissioner Neinas and whatever suggestions he can offer.

After Commissioner Neinas' testimony, we will welcome representatives of another university which has encountered the NCAA enforcement process. As with other institutions we have heard from in the past several months, the experiences of the University of Nevada-Las Vegas with the NCAA have not been altogether happy ones. At the

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