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December 10, 1973

HOWARD UNIVERSITY and Mori Diane, Plaintiffs,

Gesell, District Judge.

The opinion of the court was delivered by: GESELL

GESELL, District Judge.

Howard University placed third in the 1970 National Collegiate Athletic Association (NCAA) soccer championship and first in 1971. Acting on complaints by other members, the NCAA subsequently determined that Howard had fielded one ineligible foreign player in 1970 and four ineligible foreign players in 1971. For these and other infractions not here relevant and following a hearing conducted in accordance with the NCAA Constitution and By-Laws, Howard was penalized after the 1972 soccer season by exclusion from the 1973 soccer championship and was directed to return the team trophies for 1970 and 1971 in accordance with a mandatory NCAA rule applicable in such circumstances.

 This suit, brought by the University and one of the foreign soccer players declared ineligible, seeks injunctive and declaratory relief based on the broad claim that the applicable NCAA rules and procedures denied players equal protection and due process as required by the United States Constitution. The case proceeded non-jury on stipulated documents supplemented by oral testimony and is now before the Court on briefs following full argument.

 Before turning to the merits, the question of the Court's subject-matter jurisdiction must be resolved. In order to state a claim under the Fifth or Fourteenth Amendment, plaintiffs must establish that NCAA's decisions constitute state or federal action. The NCAA is a voluntary, non-profit association composed of approximately 664 colleges, universities and other institutions of learning, 45 athletic conferences, and some 60 associate or affiliated organizations. Its influence and activities are felt nationally. Approximately fifty percent of the institutional members are state supported and the membership includes the Army, Navy, Air Force and Coast Guard Academies.

 The Association is governed by a complex manual which contains the Constitution, the By-Laws and various interpretations and executive actions implementing the same. The Constitution and By-Laws have been developed at annual conventions, and the affairs of the Association are conducted between such conventions by an eighteen-member council, its executive committee, and a paid staff. Investigators and lawyers on the staff interpret and enforce the large body of NCAA rulings and precedents.

 The Association's purposes are well defined by its Constitution. It is committed to the maintenance of collegiate athletics as an integral part of the educational program and to the elimination of professionalism from college athletics. To this end, it sponsors intercollegiate programs of member institutions, including championships, and concerns itself with admission policies, financial aid, eligibility, etc. The NCAA encourages its member institutions to adopt rules to comply with satisfactory scholarship standards, sportsmanship and amateurism. The Association has established itself as a major influence throughout the college community. Member institutions receive approximately $14,000,000 annually from NCAA-sponsored events, and there is enormous college interest in these events.

 Some 100,000 foreign or alien students matriculate in this country and those that are athletes are subject to NCAA regulations if they attend a member institution. Howard University is a voluntary member of the NCAA and is particularly and understandably concerned with the participation of foreign students in college athletics. There are some 2,600 foreign students enrolled at Howard and they constitute about twenty-five percent of the total student body. Although most of these students are also black, no claim of racial discrimination has been advanced.

 Coming, then, to the merits, the plaintiffs contend that the NCAA Constitution and By-Laws governing eligibility of foreign players are arbitrary and discriminate irrationally against such students, whether these rules are viewed singly or in combination. *fn2" It is further urged that the penalties that were imposed following rule infraction hearings before the appropriate NCAA bodies denied due process, particularly to the individual students affected, such as plaintiff Mori Diane. The three substantive rules which are the focus of the controversy are the so-called five-year rule, the 1.600 rule and the foreign-student rule. The text of each rule is attached as an appendix to this Memorandum. It should be recognized that these particular rules fit into a complex, intricate system of other regulations and procedures designed to further the legitimate purposes of the NCAA as they have been previously summarized. The Court, in considering each of these rules separately, must give substantial deference to the NCAA's considered judgment and experience as to the most appropriate means of furthering its legitimate goals.

 The five-year rule is designed to compel the regular progression of athletes through a four-year college curriculum without unnecessary or material delay. The rule prevents a student athlete from exhausting his eligibility at one institution and then simply repeating the process by enrollment in another institution for an additional four years, or from otherwise artificially prolonging his education for the purpose of extending his athletic career. This rule is applicable to foreign students and American citizen students alike. It is reasonable and fundamental to the Association's objectives and in no way discriminates against aliens.

 The 1.600 rule applies only to championship events. Its effect is to require that students entering an institution, whether or not that student is an alien, must, by the Scholastic Aptitude Test or the American College Test, establish a predictable grade which is something in the range of D to C-. Students unable to achieve this educational standard are not permitted to engage in athletics during their freshman year. The rule is also immediately and appropriately related to the purposes of the Association. It prevents, or at least reduces, the exploitation of young men recruited for athletics who are not representative of the student body, and it serves to foster the Association's objective of limiting athletic competition to bona fide students who are primarily engaged in academic pursuits. This rule appears again to be reasonably and narrowly related to the legitimate objectives and purposes of the Association, particularly since it is limited to championship games during the freshman year. The rule may have a somewhat greater impact on foreign students, who might have difficulty taking the required American tests in their home countries, but the fact that any student may take such tests soon after entering an American college vitiates this incidental discrimination.

 The problem of how best to assure minimal academic accomplishment by college athletes is admittedly complex and subject to debate. The record shows that the Association has been flexible in attempting to develop an appropriate standard and that in fact rule 1.600 is up for reconsideration at the next annual convention, but it was in effect at the relevant time and there is no reason to find it inappropriate in any way. The evidence established that certain NCAA institutions blatantly solicited established foreign student athletes to improve team quality in total disregard for academic proficiency, and it is entirely reasonable for the Association to apply the minimal standard indicated in this rule to aliens to avoid a reoccurrence of such abuses.

 The foreign-student rule, on the other hand, contains an explicit classification according to alienage and one that is, on balance, unjustified. Under its terms, foreign students lose a year of eligibility for every year after their nineteenth birthday in which they have participated in athletic competition. No such limitation is placed on American citizens. Plaintiffs urge that this rule is arbitrary, unreasonably, excessively vague, and designed to favor United States citizen students over aliens. These allegations place a heavy burden upon the defendant, for the Supreme Court has recently ruled that classifications based on alienage are inherently suspect and should be subject to close judicial scrutiny. In re Application of Fre Le Poole Griffiths for Admission to the Bar, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973). In this context, the Court noted that:

In order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is "necessary . . . to the ...

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