Cite as 417 F.Supp. 885 (1976) wolved in the dispute irrationally discrimimates against D.U. in that other schools such as Michigan State and Minnesota, which have committed arguably more seripus violations, have had penalties imposed only on the teams involved in those violaLions. Plaintiffs' argument ignores a vital distinction between the University's case and that of the other mentioned schools. It is that the willful violation of NCAA legislation in D.U.'s case was not merely at the behest of a coach or administrator connect ed with a particular sport. It was the act of the highest executive official of the University of Denver. Nor are we persuaded that the act was a product of a misunder standing rather than one of defiance While the University may have justifiably considered the opinion of Warren Brown to be merely a personal point of view, any doubt as to the official position of the NCAA was removed when D.U. was notified in writing on December 13, 1974, that the Association's officers had concluded the information previously provided indicated that the student-athletes were ineligible. In the name of principle Chancellor Mitchell chose to ignore the notification and continued the participation of the ineligible hockey players in intercollegiate competition for nearly two more years. The penalty imposed was consistent with the treatment of three other schools in similar circumstances. Regardless of the propriety of the penalty in view of certain arguably extenuating circumstances, to be discussed, we cannot say that the penalties imposed unconstitutionally discriminate against the University of Denver. It should be pointed out that each school is sanctioned on the basis of the particular circumstances involved in each case, much like actions taken in the areas of criminal enforcement and sentencing. Like those areas, this seems one particularly ill suited for intermeddling upon review. Absent a claim of discrimination based on an arbitrary and recognizable classification such as race, religion or national origin, the Court will not intervene. Cf. North Carolina v. Pearce, 395 U.S. 711, 722-23, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). In sum, harsh treatment based on open defiance by the University's highest official, while undoubtedly seeming unfair to many, is not unconstitutionally discriminatory merely because it differs from the treatment of other schools in differing circumstances. III. [19] This Court is one of expressly limited jurisdiction whose statutory duties do not include sitting as a final arbiter of disputes between an association and its membership. A disturbing aspect of this litigation is the attempt to rely upon the federal judiciary to resolve essentially private disputes because of the refusal of the Association and member institution to deal with each other on a reasoning and where necessary compromising basis. Several unfortunate consequences have resulted. For example, it seems to have been virtually ignored that the continuing defiance by D.U. of NCAA authority for nearly two years was at least partially attributable to the lack of administrative continuity within D.U.'s athletic department caused by the untimely death of Athletic Director Hoyt Brawner. The delay of ten months between the decision to bring an official inquiry and actual notification to the University with subsequent findings and proposed penalties delayed receipt by the new Athletic Director Ronald Oyer of the reason for the harsh treatment. Earlier notice might have led Mr. Oyer to seek earlier compliance than he did and thus would have lessened the period of continued defiance. Earlier explanation of the distinction between receipt of aid while in school and not in school might have had a similar effect. It should also be noted that the NCAA's insistence on the continued ineligibility of plaintiff Falcone is apparently based on the former regulation 0.1.5 which specifically prohibited such compensation, but specifically applied only to student-athletes playing on foreign teams. Falcone is an American who received compensation from an American amateur team. It might be argoed 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 trophy and receipts from the 1973 National Collegiate Hockey Championship until the Association has considered the interpretation of the Executive Regulations discussed herein and has provided 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 ORDERED that plaintiffs' motion for summary judgment should be and the same hereby is denied with the foregoing exception, and that defendants' motion for summary judgment should be and the same hereby is granted with the same exception. KEY NUMBER SYSTEM 7. The interests of others concerned with this dispute have also not been mentioned. Students and fans who have supported the University'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 - 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, 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 |