Tuesday, 24 July 2012

"Consent Decree": Does it make the NCAA a State Actor?

UNC Chapel Hill Professor Dr. Richard Southall, who is also Director of the College Sport Research Institute, wonders why the NCAA and Penn state have referred to the agreement signed by President Rodney Erickson and the NCAA as a "consent decree" (the validity for which I discuss in a previous post).

I also wondered about the phrase "consent decree" and assumed it to mean, at least in this context, something akin to a settlement between two parties who could otherwise have legal claims against one another. For example, Penn State could have sought an injunction to stop the NCAA; instead, by signing the decree, it has consented to the NCAA's punishment. The NCAA has reached settlements with other schools concerning infractions and the agreement with Penn State seemed like another example.

But as Richard notes to me in an e-mail, the phrase "consent decree" is normally used by government actors (e.g., courts, the Department of Justice, the Securities and Exchange Commission etc.) when settling claims with private parties. Neither he nor others I have spoken with can remember the NCAA entering into "consent decrees" with other schools. According to a brief search by me on Lexis/Nexis, I did find that the NCAA previously entered into a consent decree -- but it was with the U.S. Department of Justice.

The website Legal Dictionary on Law.com defines consent decree as
"an order of a judge based upon an agreement, almost always put in writing, between the parties to a lawsuit instead of continuing the case through trial or hearing. It cannot be appealed unless it was based upon fraud by one of the parties (he lied about the situation), mutual mistake (both parties misunderstood the situation) or if the court does not have jurisdiction over the case or the parties. Obviously, such a decree is almost always final and non-appealable since the parties worked it out. A consent decree is a common practice when the government has sued to make a person or corporation comply with the law (improper securities practices, pollution, restraints of trade, conspiracy) or the defendant agrees to the consent decree (often not to repeat the offense) in return for the government not pursuing criminal penalties. In general a consent decree and a consent judgment are the same."
So if a phrase sounds like it would be made the government, does that mean it was made by the government? Well, use of "consent decree" probably doesn't transform the NCAA into a state actor, which the Supreme Court said it wasn't in NCAA v. Tarkanian and as a result the NCAA need not offer its member institutions and student-athletes due process. I can't imagine use of a term in one instance would have that kind of profound effect.

But I wonder why the NCAA would use "consent decree" now but not (apparently) before?


In addition to the thoughtful comments to this post, consider these comments:

Drexel University Professor Dr. Ellen Staurowsky, an expert on college sports and the NCAA:
"The thought occurs that perhaps the use of the term is a reflection of who the NCAA's legal counsel is. According to Donald Remy's bio, he has previously held positions including deputy assistant attorney general at the U.S. Department of Justice; assistant to the General Counsel of the Army; law clerk to the 6th Circuit United States Court of Appeals; and senior vice president, deputy general counsel and chief compliance officer at Fannie Mae. That might explain it although the language still interests me a great deal."
Dr. Southall:
"As [Dr. Staurowsky] and I discussed earlier isn't a consent decree usually either between a "state actor" (governmental entity – DoJ, SEC, etc.) and an individual or corporation being investigated, or imposed by the court after negotiations between a plaintiff and defendant? It seems that in this case the NCAA is not a state actor nor the Court, but a voluntary organization that has imposed (the NCAA's language) on a member. Does a truly voluntary member waive any right to appeal? Sounds like a tactic similar to imposing upon NCAA athletes a requirement regarding the use of their names and likenesses….Oh never mind:)"

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