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him adversely. During the 1970s, federal courts had held consistently that the NCAA was a “state actor,”meaning it had to provide “due process”to institutions and individuals whom it investigated and punished for rules violations .122 Due process takes one of two alternative forms, namely, procedural or substantive. The former refers to the procedural protections necessary to ensure fairness when government imposes criminal penalties or administrative sanctions on individuals. The latter refers to the requirement that government action not be arbitrary and capricious or infringe on certain “fundamental ” rights, such as the rights to marry, have children, and make basic decisions about their upbringing.123 Procedural due process lay at the heart of Tarkanian v. NCAA. To succeed, a plaintiff who alleges the denial of procedural due process must show that (1) state or federal governmental action is involved, (2) the aggrieved party is a person, and (3) the governmental action infringed on the plaintiff’s constitutionally protected interest in life, liberty, or property. When a constitutionally protected interest is at stake and fair procedures are required, just what process is due is determined by striking a balance between (a) the private interest that will be affected by the of‹cial action; (b) the risk of an erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (c) the government’s interest, including the function involved and the ‹nancial and administrative burdens likely to result from additional or substitute procedures.124 Jerry Tarkanian’s right to live was not at stake in his battle with the NCAA, but both his liberty interest in preserving his reputation and his property interest in retaining his coaching job were.125 Under the NCAA’s enforcement mechanism, the NCAA, a private association, could force a public university, such as UNLV, which unquestionably was a governmental entity required to observe due process, to penalize a private citizen, such as Coach Tarkanian.126 In these circumstances, the university was required to provide due process, but the procedures governing the outcome were the NCAA’s procedures, not the university’s. Scrupulous adherence to due process by the university would not ensure fairness to accused persons if the NCAA’s procedures were arbitrary and capricious. Thus, Jerry Tarkanian’s chances for success in his lawsuit depended on the courts holding that the NCAA, despite its private character, was suf‹ciently linked to public colleges and universities or performed a suf‹ciently regulatory function that it was a “state actor”within the meaning of the Fourteenth Amendment to the 118 the supreme court and the ncaa Constitution and Section 1983 and, hence, had to observe due process in its investigations and hearings. In the earliest cases in which plaintiffs, who usually were athletes declared ineligible for collegiate competition, challenged the fairness of NCAA enforcement procedures, courts held that the NCAA was indeed a state actor required to provide due process. For example, in Buckton v. NCAA, the court held that the NCAA was a state actor when it denied eligibility for collegiate ice hockey to Canadian athletes who had played Junior A hockey in Canada, which the NCAA considered to be professional sport.127 The Buckton court reasoned that the NCAA was a state actor because public institutions comprised half of its member institutions; the court even found the private institution involved in the Buckton case, Boston University, to be a state actor because it received state and federal funds.128 This view prevailed in a series of cases decided through 1982; therefore, when the Tarkanian litigation began, the prevailing judicial view was that NCAA action was state action.129 But showing that a private entity had behaved as a state actor became signi‹cantly more dif‹cult after the United States Supreme Court’s 1982 decisions in Rendell-Baker v. Kohn, Blum v. Yaretsky, and Lugar v. Edmonson Oil Company.130 In Buckton and other early cases featuring due process challenges to the NCAA, courts had relied, wholly or in part, on “public function” analysis in concluding that the NCAA behaved as a state actor when enforcing its rules. Under this legal doctrine, a private entity was a state actor for due process purposes if it acted in ways and in pursuit of aims typically associated with governmental functions.131 But in Rendell-Baker and Blum, both of which arose outside the context of college sports, the Supreme Court announced a more restrictive interpretation of...

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