state action in cases not involving discrimination.
Each party cites numerous cases dealing with the amount of governmental involvement which is necessary before a private entity becomes sufficiently entangled with governmental functions that federal jurisdiction attaches. If any principle emerges from these cases, it would appear to be that, at least where race is not involved, it is necessary to show that the Government exercises some form of control over the actions of the private party. (emphasis supplied).
Spark v. Catholic University of America, supra, at 1281-82.
Here there is no such control. the USOC is an independent body, and nothing in its chartering statute gives the federal government the right to control that body or its officers. Furthermore, the facts here do not indicate that the federal government was able to exercise any type of "de facto" control over the USOC. The USOC decided by a secret ballot of its House of Delegates. The federal government may have had the power to prevent the athletes from participating in the Olympics even if the USOC had voted to allow them to participate, but it did not have the power to make them vote in a certain way. All it had was the power of persuasion. We cannot equate this with control. To do so in cases of this type would be to open the door and usher the courts into what we believe is a largely nonjusticiable realm, where they would find themselves in the untenable position of determining whether a certain level, intensity, or type of "Presidential" or "Administration" or "political" pressure amounts to sufficient control over a private entity so as to invoke federal jurisdiction.
We accordingly find that the decision of the USOC not to send an American team to the summer Olympics was not state action, and therefore, does not give rise to an actionable claim for the infringements of the constitutional rights alleged.
(b) Constitutionally Protected Rights
Assuming arguendo that the vote of the USOC constituted state action, we turn briefly to plaintiffs' contention that by this action they have been deprived of their constitutional rights to liberty, to self-expression, to travel, and to pursue their chosen occupation of athletic endeavor. Were we to find state action in this case, we would conclude that defendant USOC has violated no constitutionally protected right of plaintiffs.
We note that other courts have considered the right to compete in amateur athletics and have found no deprivation of constitutionally protected rights. As the Government has pointed out in Parish v. National Collegiate Athletic Association, 506 F.2d 1028 (5th Cir. 1975), basketball players sought an injunction to prevent the NCAA from enforcing its ruling declaring certain athletes ineligible to compete in tournaments and televised games. The court, quoting Mitchell v. Louisiana High School Athletics Association, 430 F.2d 1155, 1158 (5th Cir. 1970), stated that:
... the privilege of participation in interscholastic activities must be deemed to fall... outside the protection of due process.
Plaintiffs have been unable to draw our attention to any court decision which finds that the rights allegedly violated here enjoy constitutional protection, and we can find none. Plaintiffs would expand the constitutionally-protected scope of liberty and self-expression to include the denial of an amateur athlete's right to compete in an Olympic contest when that denial was the result of a decision by a supervisory athletic organization acting well within the limits of its authority. Defendant has not denied plaintiffs the right to engage in every amateur athletic competition. Defendant has not denied plaintiffs the right to engage in their chosen occupation. Defendant has not even denied plaintiffs the right to travel, only the right to travel for one specific purpose. We can find no justification and no authority for the expansive reading of the Constitution which plaintiffs urge. To find as plaintiffs recommend would be to open the floodgates to a torrent of lawsuits. The courts have correctly recognized that many of life's disappointments, even major ones, do not enjoy constitutional protection. This is one such instance.
At this point, we find it appropriate to note that we have respect and admiration for the discipline, sacrifice, and perseverance which earns young men and women the opportunity to compete in the Olympic Games. Ordinarily, talent alone has determined whether an American would have the privilege of participating in the Olympics. This year, unexpectedly, things are different. We express no view on the merits of the decision made. We do express our understanding of the deep disappointment and frustrations felt by thousands of American athletes. In doing so, we also recognize that the responsibilities of citizenship often fall more heavily on some than on others. Some are called to military duty. Others never serve.Some return from military service unscathed. Others never return. These are the simple, although harsh, facts of life, and they are immutable.