Please review the following facts and then post a fact-driven argument in favor or against the proposition

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Question:

Please review the following facts and then post a fact-driven argument in favor or against the proposition that the NCAA constitutes a state actor.

Facts:

When he became head basketball coach at the University of Nevada, Las Vegas (UNLV) in 1973, Jerry Tarkanian inherited a team with a mediocre 14-14 record. Four years later the team won 29 out of 32 games and placed third in the championship tournament sponsored by the National Collegiate Athletic Association (NCAA), to which UNLV belongs.

Yet in September 1977, UNLV informed Tarkanian that it was going to suspend him. No dissatisfaction with Tarkanian, who was once described as the 'winningest' active basketball coach, motivated his suspension. Rather, the impetus was a report by the NCAA detailing 38 violations of NCAA rules by UNLV personnel, including 10 involving Tarkanian. The NCAA had placed the university's basketball team on probation for two years and ordered UNLV to show cause why the NCAA should not impose further penalties unless UNLV severed all ties during the probation between its intercollegiate athletic program and Tarkanian.

Facing demotion and a drastic cut in pay, Tarkanian brought suit in Nevada state court alleging that he had been deprived of his Fourteenth Amendment due process rights in violation of 42 U.S.C. 1983.

Tarkanian initially was employed on a year-to-year basis but became a tenured professor in 1977. He received an annual salary with valuable fringe benefits, and his status as a highly successful coach enabled him to earn substantial additional income from sports-related activities such as broadcasting and product sponsorship.

UNLV is a branch of the University of Nevada, a state-funded institution. The university is organized and operated pursuant to provisions of Nevada's State Constitution, statutes, and regulations. In performing their official functions, the executives of UNLV unquestionably act under the codes of state law.

The NCAA is an unincorporated association of approximately 960 members and includes virtually all public and private universities and four-year colleges that conduct major athletic programs in the United States. Basic policies of the NCAA are determined by the members at annual conventions. Between conventions, the association is governed by its council, which appoints various committees to implement specific programs.

One of the NCAA's fundamental policies "is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body, and by so doing, retain a clear line of demarcation between college athletics and professional sports." Therefore, it has adopted rules, which it calls legislation, governing the conduct of the intercollegiate athletic programs of its members. This NCAA legislation applies to a variety of issues such as academic standards for eligibility, admissions, financial aid, and to the recruitment of student athletes. By joining the NCAA, each member agrees to abide by and to enforce such rules.

The NCAA's bylaws provide that its enforcement program shall be administered by a Committee on Infractions. This committee supervises an investigative staff, makes factual determinations concerning alleged rule violations, and is expressly authorized to "impose appropriate penalties on a member found to be in violation, or recommend to the Council suspension or termination of membership." In particular, the committee may order a member institution to show cause why that member should not suffer further penalties unless it imposes a prescribed discipline on an employee; it is not authorized, however, to sanction a member institution's employees directly. The bylaws also provide that representatives of member institutions "are expected to cooperate fully" with the administration of the enforcement program. The bylaws do not purport to confer any subpoena power on the committee or its investigators. They state:

"The enforcement procedures are an essential part of the intercollegiate athletic program of each member institution and require full and complete disclosure by all institutional representatives of any relevant information requested by the NCAA investigative staff, Committee on Infractions or Council during the course of an inquiry."

During its investigation of UNLV, the Committee on Infractions included three law professors, a mathematics professor, and the dean of a graduate school. Four of them were on the faculties of state institutions and one represented a private university.

On November 28, 1972, the Committee on Infractions notified UNLV's president that it was initiating a preliminary inquiry into alleged violations of NCAA requirements by UNLV. As a result of that preliminary inquiry, some three years later the Committee decided that an official inquiry was warranted and so advised the UNLV president on February 25, 1976. That advice included a series of detailed allegations concerning the recruitment of student athletes during the period between 1971 and 1975. Many of those allegations implicated Tarkanian. It requested UNLV to investigate and provide detailed information concerning each alleged incident.

With the assistance of the attorney general of Nevada and private counsel, UNLV conducted a thorough investigation of the charges. On October 27, 1976, it filed a comprehensive response containing voluminous exhibits and sworn affidavits. The response denied all of the allegations and specifically concluded that Tarkanian was completely innocent of wrongdoing. Thereafter, the committee conducted four days of hearings at which counsel for UNLV and Tarkanian presented their views of the facts and challenged the credibility of the NCAA investigators and their informants.

Ultimately the committee decided many of the charges could not be supported, but it did find 38 violations of NCAA rules, including 10 committed by Tarkanian. Most serious was the finding that Tarkanian had violated the university's obligation to provide full cooperation with the NCAA investigation. The committee's findings and proposed discipline were summarized in great detail in its so-called "Confidential Report No. 123(47)."

The committee proposed a series of sanctions against UNLV, including a two-year period of probation during which its basketball team could not participate in postseason games or appear on television. The committee also requested UNLV to show cause why additional penalties should not be imposed against UNLV if it failed to discipline Tarkanian by removing him completely from the university's intercollegiate athletic program during the probation period. UNLV appealed most of the committee's findings and proposed sanctions to the NCAA Council. After hearing arguments from attorneys representing UNLV and Tarkanian, on August 25, 1977 the council unanimously approved the committee's investigation and hearing process and adopted all its recommendations.

Promptly after receiving the NCAA report, the president of UNLV directed the university's vice president to schedule a hearing to determine whether the committee's recommended sanctions should be applied. Tarkanian and UNLV were represented at that hearing; the NCAA was not. Although the vice president expressed doubt concerning the sufficiency of the evidence supporting the committee's findings, he concluded that "given the terms of our adherence to the NCAA we cannot substitutebiased as we must beour own judgment on the credibility of witnesses for that of the infractions committee and the Council." With respect to the proposed sanctions, he advised the president that he had three options:

"1. Reject the sanction requiring us to disassociate Coach Tarkanian from the athletic program and take the risk of still heavier sanctions, e.g., possible extra years of probation.

2. Recognize the University's delegation to the NCAA of the power to act as ultimate arbiter of these matters and thus reassign Mr. Tarkanian from his present position-though tenured and without adequate notice-even while believing that the NCAA was wrong.

3. Pull out of the NCAA completely on the grounds that you will not execute what you hold to be their unjust judgments."

Pursuant to the vice president's recommendation, the president accepted the second option and notified Tarkanian that he was to "be completely severed of any and all relations, formal or informal, with the university's intercollegiate athletic program during the period of the university's NCAA probation."