The National Collegiate Athletics Association has suspended star college basketball player and projected first pick in the 2020 NBA draft pick, James Wiseman, until January because of a loan his family took out while he was in high school. Throughout his fight against the NCAA investigation, Wiseman has not and will not be entitled to claim any constitutional protections. What’s more, the University of Memphis, the school that recruited him, and Penny Hardaway, the coach who made the loan to Wiseman’s family, are incentivized to avoid helping Wiseman in litigation due to a little known NCAA rule called the “restitution rule.”

The NCAA’s largely unilateral power to discipline Wiseman comes from two aspects of the organization’s legal makeup. First, the Supreme Court held in National College Athletic Association v. Tarkanian that the NCAA is not a state actor under the Fourteenth Amendment and therefore not bound by constitutional due process requirements. Second, the NCAA, rather than adopting bylaws granting athletes the same due process protections that would be mandated by the Constitution, has chosen instead to adopt a “restitution rule,” which permits the NCAA to punish a university who permits an athlete to play during a court-ordered preliminary injunction that later gets reversed or vacated. This means that if a court were to enjoin Wiseman’s suspension pending the outcome of a lawsuit, Memphis risks significant punishment if it allows Wiseman to play during the injunction. The practical effect is to dissuade athletes from filing suits and to alter the likelihood of a court issuing an injunction by changing the calculus of the harm an injunction poses to third parties, one of four factors in preliminary injunction determinations.

This legal infrastructure is the byproduct of the Tarkanian court’s failure to protect the constitutional rights of athletes. As pressure against the NCAA from civil rights groups continues to grow, ensuring athletes can claim constitutional rights against the NCAA is paramount. Athlete eligibility determinations can distort the entire trajectory of many athletes’ lives by tarnishing their reputations, harming the financial wellbeing of their families, and alienating them from the campuses that recruited them.

In Tarkanian, the Court assessed former University of Nevada, Las Vegas basketball coach Jerry Tarkanian’s argument that he was fired by UNLV without due process and that, by threatening the school with sanctions if Tarkanian remained the coach, the NCAA’s conduct became state action. But, because it was UNLV, not the NCAA, who fired Coach Tarkanian, the Court assessed UNLV’s involvement in the NCAA’s rulemaking. Because the NCAA is composed of over 900 institutions across the country, each contributing to the formulation of rules, the organization’s legislation “speak[s] through an organization that is independent of any particular state.” Therefore, the NCAA was not “acting under color of Nevada law” when it told UNLV to either fire Coach Tarkanian or face significant punishment.

It’s worth pausing to recognize the deeply counterintuitive result in Tarkanian. If a group of predominantly state actors form an organization to govern their students, there are two ways to view the status of that organization: first, as a state actor acting on behalf of the member organizations, or, second, as a private organization with a status separate from the member institutions themselves. While the second view has some force, the fact the NCAA wields enough power over member schools to force UNLV to fire the winningest coach in school history renders the organization’s purported “private” nature a mere formalistic abstraction.

The NCAA’s composition of universities from different states was critical to the Court distinguishing Tarkanian in Brentwood Academy v. Tennessee Secondary School Athletic Association, where the Court found state action in an athletic association’s regulation of high school sports at both private and public schools. In Brentwood, the court reasoned that “an organization whose member public schools are all within a single state” has a more substantial connection to that state’s action than the NCAA’s had to Nevada. Therefore, the athletic association’s conduct was state action due to the organization’s “entwinement” with the state of Tennessee.

Brentwood’s legal reasoning undermines the rationale in Tarkanian, and the NCAA’s current treatment of Wiseman demonstrates the dire consequences of leaving the Tarkanian precedent in place.

Brentwood looked at whether the conduct involved “a close nexus between the State and the challenged action” such that the private conduct at issue is “fairly attributable” to that of the state. Moreover, “no one fact can function as a necessary condition” and “fairly attributable is a matter of normative judgement.” As the NCAA has continually grown in power and influence, Tarkanian’s reasoning is hard to square with Brentwood’s call for a fact-specific inquiry.

First, the NCAA’s purported private character is “overborne by the pervasive entwinement of public institutions . . . in its composition and workings.” 67% of Division I schools, where the majority of revenue and recruiting controversies occur, are public. Moreover, the organization’s mission is to “integrate intercollegiate athletics into higher education” and “[support] the role that intercollegiate athletics plays in the higher education mission.” It achieves this by mandating academic standards and regulating recruiting, admissions, and financial aid. It also prohibits athletes from receiving any compensation beyond their scholarships and living expenses. The organization constructs these rules through committees of volunteers from member institutions, and the majority of the Board of Governor’s highest ranking officials are from public institutions. Overall, the NCAA’s mission is to ensure the central role college sports play on public campuses, which has led to its staff of volunteers from public institutions promulgating rules that mandate how schools regulate athletes on campus. The NCAA, then, carries out very similar functions in a similar manner as the athletic association in Brentwood.

This entwinement with public institutions features prominently in matters of athlete discipline. While the NCAA does not have express authority to punish the athletes or employees of the universities, the organization conducts investigations into individual cases, and the findings of the investigation are typically binding on the university. After issuing its finding, it then makes an eligibility determination. The school faces significant consequences if it plays an athlete the NCAA considers ineligible. The restitution rule solidifies NCAA power in this scheme because even if a court grants an athlete an injunction, the school is unlikely to play the athlete for fear of even harsher punishment if he turns out to be ineligible later in the disciplinary process. So, while the athlete is free to take the NCAA to court, litigation is unlikely to provide relief.

Wiseman’s case demonstrates the close nexus between university conduct and NCAA eligibility investigations. Initially, Wiseman was declared eligible in May, but after further documentation emerged, the NCAA relaunched the investigation. Before the season’s first game, the NCAA informed the University of Memphis that Wiseman was likely ineligible. The university played him for the first three games anyway and Wiseman initiated a lawsuit against the NCAA. On November 8th, Wiseman received an injunction allowing him to play pending the outcome of the NCAA investigation, but realizing a suspension was imminent, the university declared Wiseman ineligible and he withdrew the lawsuit six days later. Now, he will not play until January and the university will likely face significant punishment for its decision to stand behind its star player. Wiseman’s saga, ultimately, demonstrates the degree to which the NCAA and university operate in tandem to discipline athletes. While Memphis initially tried to resist the NCAA’s power, and deferred to a court-ordered injunction, the threat of sanction won out and Memphis succumbed to the organization’s eligibility recommendation.

The Tarkanian court responded to the NCAA’s influence in eligibility determinations by suggesting that UNLV could have withdrawn and created its own standards or worked through the NCAA’s legislative process to amend the rules it objected to. But the fact that Memphis has options in responding to NCAA recommendations does not render the NCAA’s role in disciplining athletes private. The university may be the executioner, but the NCAA operates as judge, jury, and legislature.

Moreover, the fact that the NCAA is national, as opposed to the state association at issue in Brentwood, is not determinative. Brentwood rejected such formalism by noting the state action doctrine “looks not to form, but underlying reality.” If the NCAA has entwined itself with schools across the country such that its conduct is fairly attributable to those public institutions themselves, then nation-wide membership merely amplifies the importance of finding state action for athletes and does not diminish the relationship between the NCAA’s promulgation of rules and the universities enforcement of them. Given the power the NCAA retains to punish athletes and conduct investigations into their behavior, the NCAA has no cause to complain of unfairness simply because it imposes those rules on institutions in multiple states.

Ultimately, the NCAA has created a disciplinary apparatus that imposes severe punishment on schools who defy its eligibility recommendations, while simultaneously escaping accountability for those recommendations by making the universities take the final action. This is a perversion of our constitutional system that purports to protect an individual’s ability to hold powerful actors accountable and instead renders athletes powerless. Schools escape accountability by deferring to the NCAA, while the NCAA claims its conduct is private and exempt from the requirements of constitutional rights. Meanwhile, the restitution rule ensures individual claims are rarely filed, decreasing the likelihood of challenging this system. Far from being a situation where we should worry about overextending the reach of federal law, public institutions have forged such a close connection with the NCAA that the only person with a claim of unfairness is the athletes facing arbitrary justice.

James Wiseman will play basketball for Memphis again and will still likely be a top pick in the NBA draft and hopefully have a flourishing professional career. But for many athletes, the NCAA stands as a gatekeeper making decisions that could impact their lives for years to come. As the university and NCAA point the finger at each other, advocates for athletes should fight to overturn a precedent that allows finger pointing to undermine constitutional due process.