Tark the Shark at the Supreme Court

Jerry Tarkanian, the controversial and colorful college basketball coach, died on Wednesday. Basketball fans remember Tark the Shark for his four Final Four appearances (including one national championship) and for his distinctive appearance and habits. (The New York Times’ obituary described him as “a baldheaded, sunken-eyed presence on the bench known for nervously chewing on towels during games.”) Constitutional law aficionados remember him for taking his legal battle against the NCAA all the way to the Supreme Court.

Coach Tarkanian was an aggressive recruiter infamous for his atrocious player graduation rates, and the NCAA regularly sanctioned him for violating its rules. “They’ve been my tormentors my whole life,” he once said. “I’ve fought them the whole way. I’ve never backed down. And they never stopped.” One way he fought back was by suing the NCAA for violating his due process rights.

The case that made it to the Supreme Court in 1988, NCAA v. Tarkanian, centered on the question of whether the NCAA, when it enforced its rules against Tarkanian, was a “state actor” for purposes of the Fourteenth Amendment. If so, the organization could be held to account under the Amendment’s due process requirements. If not, the actions of the NCAA, as a private entity, did not have to meet constitutional due process standards. The Nevada Supreme Court had ruled in Tarkanian’s favor, finding that the NCAA was a state actor. The U.S. Supreme Court reversed with a rather unusual 5-4 alignment: Justice Stevens wrote the opinion joined by Chief Justice Rehnquist and Justices Blackmun, Scalia, and Kennedy; Justice White wrote a dissent joined by Justices Brennan, Marshall, and O’Connor. The NCAA, the Court ruled, was not a state actor, and thus Tarkanian could not bring a due process challenge against the organization.

The legal issue was notably a tangled one, even for the chronically tangled area of law known as the state action doctrine. The core complication here was that Tarkanian’s punishment was being administered by his employer, the University of Nevada, Las Vegas, which as a state university was clearly a “state actor” under the Fourteenth Amendment. But the university was only acting under the direction of the NCAA, a private organization of which UNLV, along with hundreds of other state and private universities, was a member. So here we have the unusual situation of a private actor making the rules for a state actor. Although four justices found that the NCAA “acted jointly” with the UNLV and thus should be treated as a state actor, five justices disagreed, concluding that the NCAA’s actions were sufficiently detached from any state involvement so as to remain “private” under the Fourteenth Amendment.

After his loss at the Supreme Court, Tarkanian remained in his job, although he was forced to accept a slew of new sanctions. A few years later, Tark the Shark had another go at the NCAA. This time he won a settlement worth $2.5 million.

2 thoughts on “Tark the Shark at the Supreme Court”

  1. Stunningly, two people known for their Hall of Fame coaching prowess, Dean Smith and Jerry Tarkanian, died just days apart.

    But what most don’t know about them is that they were activists, particularly when it comes to due process and constitutional civil rights.

    In Dean Smith’s case, he actually apeared at a clemency hearing for a death row inmate in 1998, and told then-Governor of North Carolina that he was a murderer if he followed through with this execution.

    Good article, and it shows that Tark the Shark wasn’t just a basketball coach, but much more — off the court — including an activist who took his battle from the court and into a courtroom.

    At the National Center For Due Process, we salute both Dean Smith and Jerry Tarkanian.

  2. The really criminal thing here are all the players that gave their heart and soul to Jerry Tarkanian and were used by him. These poor victims got these scholarships and a lot of illegal “free stuff” to recruit them to come play basketball, but not an education. Tarkanian was a shark, a land shark, who consumed some talented basketball players’ futures for his own selfish glory. There are some great basketball coaches who didn’t use young guys like this so they deserve the acknowledgement more that Tark the Shark! 6. Coaches Dean Smith and John Wooden were great mentors with lots of player success stories while Tarkanian was a talented USER.

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