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BOWERS v. NCAA

June 8, 1998

MICHAEL BOWERS, Plaintiff,
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ACT, INC., NCAA INITIAL-ELIGIBILITY CLEARINGHOUSE, TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, UNIVERSITY OF IOWA, AMERICAN INTERNATIONAL COLLEGE, Defendants.



The opinion of the court was delivered by: ORLOFSKY

OPINION

 Table of Contents

 I. Facts and Procedural History

 A. Procedural History

 B. Michael Bowers

 C. The NCAA

 D. Initial Eligibility Status and the Clearinghouse

 E. Bowers' Application to the Clearinghouse

 F. Efforts to Recruit Bowers

 II. Standards on Motions to Dismiss and For Summary Judgment

 A. Motion to Dismiss

 B. Motion for Summary Judgment

 III. Discussion

 A. The Nature of the NCAA

 B. Americans with Disabilities Act (Count I)

 
1. Title II Claim as Against Iowa
 
a. Disability Under the ADA
 
b. By Reason of Such Disability
 
c. Qualified Individual with a Disability
 
2. Title III Claim as Against the NCAA, ACT, and the Clearinghouse
 
a. ACT and the Clearinghouse
 
b. The NCAA
 
i. Place of Public Accommodation
 
ii. Operates a Place of Public Accommodation and Enjoyment of a Place of Public Accommodation
 
iii. Discrimination under Title III

 C. Rehabilitation Act (Count II)

 
1. Disability
 
2. Program or Activity
 
3. Federal Financial Assistance
 
4. Otherwise Qualified Individual and Discrimination Solely by Reason of Disability

 D. New Jersey Law Against Discrimination (Count IV)

 
1. Place of Public Accommodation under the NJLAD
 
2. Liability under the NJLAD

 E. Sherman Act (Count III)

 F. Contract (Count V)

 IV. Conclusion

 ORLOFSKY, District Judge

 This case is about Plaintiff's eligibility to participate in intercollegiate athletics during his freshman year of college. The National Collegiate Athletic Association, the governing body of intercollegiate athletics, has promulgated regulations which determine whether a student-athlete is a "qualifier," "partial qualifier," or "nonqualifier," and thereby whether a student-athlete is eligible to compete in intercollegiate athletics during his or her freshman year. Plaintiff, a promising football player, was determined to be a "nonqualifier," and therefore ineligible for intercollegiate football competition during his freshman year of college. Plaintiff then filed this action claiming, among other things, that his status as a "nonqualifier" was assigned in a fashion that discriminates against the learning disabled in violation of several federal and New Jersey statutes, in particular, the Americans with Disabilities Act, the Rehabilitation Act, and the New Jersey Law Against Discrimination.

 Complicating this litigation somewhat is the fact that a student-athlete's initial eligibility status is not determined by the particular college or university to which he or she applies for admission. Rather, the National Collegiate Athletic Association, an unincorporated association of many colleges and universities throughout the United States, has adopted regulations which are binding upon its members to determine the initial eligibility status of freshman athletes. In turn, a separate private corporation, ACT, Inc., by contract with the NCAA and upon the payment of a fee by the student and the receipt of certain information from a student and the student's high school, then applies these criteria in order to assign a student his or her initial eligibility status. This web of interactions and relationships among several different entities creates difficulties in applying the ADA, the Rehabilitation Act, and the NJLAD. Compounding these difficulties is the fact that the federal courts which have considered how and to what extent the ADA and Rehabilitation Act apply to the NCAA and its eligibility rules have arrived at different results, or at the same result by radically different paths.

 The Complaint filed in this case by Plaintiff, Michael Bowers, alleges claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (Count I), section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (Count II), the Sherman Act, 15 U.S.C. §§ 1 et seq. (Count III), the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (Count IV), and a claim for breach of contract under New Jersey law (Count V). Defendant, the National Collegiate Athletic Association, has moved to dismiss the ADA, Rehabilitation Act, LAD, and Sherman Act claims or, in the alternative, for summary judgment on these claims. Defendants, ACT, Inc. and the NCAA Initial-Eligibility Clearinghouse, have moved to dismiss all five counts alleged in the Complaint or, in the alternative, for summary judgment on these claims. Finally, Defendant, the University of Iowa, has moved to dismiss the ADA, Rehabilitation Act, and Sherman Act claims or, in the alternative, for summary judgment on these claims.

 For the reasons set forth below, the ADA claim (Count I) will be dismissed with prejudice as to ACT, Inc. and the NCAA Initial-Eligibility Clearinghouse. The Sherman Act claim (Count III) will be dismissed with prejudice as to ACT, Inc., the NCAA Initial-Eligibility Clearinghouse, the NCAA, the University of Iowa, as well as the non-moving Defendants, Temple University of the Commonwealth System of Higher Education and American International College. In all other respects, Defendants' motions will be denied.

 I. Facts and Procedural History

 A. Procedural History

 On May 23, 1997, Plaintiff, Michael Bowers ("Bowers"), filed a Complaint in this Court alleging that Defendants, the National Collegiate Athletic Association (the "NCAA"), Cedric Dempsey ("Dempsey"), the Executive Director of the NCAA, the NCAA Initial-Eligibility Clearinghouse (the "Clearinghouse"), *fn1" and Calvin Symons ("Symons"), Managing Director of the Clearinghouse, violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the "ADA"), section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and the Sherman Act, 15 U.S.C. §§ 1 et seq. See, e.g., Compl. PP 77-137.

 On June 6, 1997, pursuant to Rule 65 of the Federal Rules of Civil Procedure, Bowers moved for a preliminary injunction on the ADA claim. After the motion was filed, I instructed the NCAA to determine, on an expedited basis, whether Bowers was entitled to a waiver of the initial eligibility requirements pursuant to section 14.3.1.7 of the NCAA's Bylaws. See NCAA Manual § 14.3.1.7 (1995-96 ed.) (hereinafter NCAA Manual). The subcommittee which was convened to evaluate Bowers' entitlement to a waiver found that Bowers was not so entitled. See Bowers v. National Collegiate Athletic Ass'n, 974 F. Supp. 459, 463-64 (D.N.J. 1997) (Bowers I). *fn2"

 On August 14, 1997, after a hearing lasting several days, I denied the motion for a preliminary injunction. See id. at 460 n.1, 461. I found that Bowers had not demonstrated a likelihood of success on the merits of the ADA claim. Id. at 466-67 & n.3. On August 22, 1997, Bowers filed a notice of appeal to the Court of Appeals for the Third Circuit of the denial of the motion for a preliminary injunction. Bowers ultimately withdrew the appeal. On September 8, 1997, Bowers filed the First Amended Complaint realleging causes of action under the ADA, the Rehabilitation Act, and the Sherman Act. He also added causes of action under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (the "NJLAD"), against the NCAA, ACT, Inc. ("ACT"), and the Clearinghouse, and for breach of contract under New Jersey law against ACT and the Clearinghouse. See Amended Compl. at PP 145-254 & p.38. The First Amended Complaint dropped Dempsey and Symons as Defendants and added as Defendants, ACT, Temple University of the Commonwealth System of Higher Education ("Temple"), the University of Iowa ("Iowa"), and American International College ("AIC").

 While the First Amended Complaint is neither short, nor plain, nor indeed even confined to statements of fact as Rule 8 of the Federal Rules of Civil Procedure generally requires, I briefly summarize the central aspects of Bowers' factual allegations as contained in the First Amended Complaint. *fn3"

 B. Michael Bowers

 Bowers is a resident of Palmyra, New Jersey and currently a student at Temple. Amended Compl. at PP 8, 90. Throughout his primary and secondary school education, Bowers received special education and related services as a result of a learning disability. Id. at PP 5-6, 91-95. Bowers' learning disability, identified more formally as a perceptual impairment, "affects his ability to achieve in spite of his intellectual ability, and . . . interferes with his reading and writing skills." Id. at P 146. Bowers is also a talented football player and during high school was heavily recruited by several Division I and II colleges and universities to play football at the collegiate level, including Temple, Iowa, and AIC. See id. at PP 2-3, 57-59, 68-73, 80-81, 113-114.

 C. The NCAA

 The NCAA is a not-for-profit unincorporated association of approximately 1,200 educational institutions in the United States with its principal place of business in Kansas. Id. at P 9. The NCAA is the "predominant governing body in college sports" and one of its stated purposes is to "maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports." Id. at PP 10, 19.

 The members of the NCAA (the "member-institutions") are grouped into distinct divisions. The distinctions among the divisions determine, inter alia, the scope of the athletic program, the level of competition, and the amount of financial aid distributable through its athletic program. Id. at PP 23-24. For example, Division I members "recruit[] regionally and nationally" and sponsor "one or both of the traditional spectator-oriented, income producing sports of football and basketball" "at the highest feasible level of intercollegiate competition." Id. at P 23 (citing NCAA Manual at § 20.9(e)).

 Among the member-institutions of the NCAA are Temple, Iowa, and AIC, as well as several colleges and universities located in New Jersey, including Rutgers University, William Paterson College, and the College of New Jersey. Id. at PP 13, 56, 64, 76. Temple and Iowa are Division I members, and AIC is a Division II member. Id. at PP 56, 64, 76.

 Since 1969, the NCAA has received federal funds for its National Youth Sports Program. See id. at PP 26-27. Also, "member-institutions pay the NCAA dues from revenues obtained from the tuition and activity fees of the student body, including money paid in whole or part with federal funds." Id. at P 15.

 D. Initial Eligibility Status and the Clearinghouse

 Among its other activities, the NCAA establishes the standards to determine whether an incoming freshman student is eligible to participate in intercollegiate athletics at the Division I or Division II level. This determination is known as a student's "initial eligibility." See, e.g., id. at PP 16, 25, 100, 121. There are three possible initial eligibility statuses: "qualifier," "partial qualifier," or "nonqualifier." Id. at P 122. In combination with whether or not a student has been recruited by a member-institution, a student's initial eligibility status determines, inter alia : whether and when he or she may compete in intercollegiate athletics; whether, when, and with whom he or she may practice or engage in conditioning; and whether and from what sources of funds a student may receive institutional financial aid or an athletic scholarship. See, e.g., id. at PP 97-98, 135-139; see generally NCAA Manual at § 14.3. These requirements are separate from and in addition to the individual member-institutions' requirements for admission. See Amended Compl. at P 100.

 Initial eligibility status is a function of a number of factors, including, whether a student has graduated from high school, a student's Scholastic Aptitude Test ("SAT") score, and a student's grade-point average in "core courses," of which the student must pass a total of thirteen. Id. at PP 98, 122. For Division I eligibility, the core course requirements are four units of English, two units of mathematics, two units of science, two units of social science, one additional unit of English, mathematics, or science, and two additional units of core courses in certain areas. The Division II core course requirements vary slightly from those for Division I. Id. at P 99; see also NCAA Manual at § 14.3.1.

 Under NCAA rules, courses which "are taught at a level below the high school's regular instructional level (e.g., remedial, special education, or compensatory) [are not] considered core courses regardless of course content." Id. at P 105 (emphasis added). However, courses for students with learning disabilities may be accepted as core courses if "the high school principal submits a written statement to the NCAA indicating that students in such classes are expected to acquire the same knowledge, both quantitatively and qualitatively, as students in other core courses." See id. at P 126.

 The actual determination of a student's initial eligibility status is made by the Clearinghouse. The Clearinghouse was established by contract between ACT and the NCAA. Id. at P 35. ACT is a non-profit corporation with its principal place of business in Iowa. Id. at P 33. ACT operates the Clearinghouse and enforces the initial eligibility requirements established by the NCAA. See id. at PP 35, 44-47. ACT and the Clearinghouse are agents of the NCAA member-institutions for the purpose of determining initial eligibility. Id. at P 36. The Clearinghouse, however, operates according to procedures designed by ACT. Id. at PP 37-38, 42, 48-52.

 In addition to charging students a fee to determine their initial eligibility, see, e.g., id. at P 116, "ACT assesses individual NCAA member-institutions a fee to produce a report on student athlete prospects . . . The member-institutions pay [these] fees from revenues obtained from the tuition and activity fees paid by the student body, including money paid in whole or in part with federal funds." Id. at P 41. ACT also receives federal funds in the form of research grants in connection with the operation of a standardized educational assessment service. Id. at P 39.

 E. Bowers' Application to the Clearinghouse

 On or about September 13, 1995, Bowers paid an $ 18 fee to ACT in order for the Clearinghouse to evaluate his initial eligibility application. Id. at P 116. This evaluation included an evaluation of Bowers' high school transcript which denominated Bowers' special education courses as such. See, e.g., id. at PP 95-96, 132. On April 16, 1996, the Clearinghouse informed Bowers' high school, Palmyra High School, of the procedures it would employ to "approve the use of nonstandard tests . . . and use high school courses designated for students with learning disabilities to satisfy core course requirements." Id. at P 129. The Clearinghouse requested, among other things, a copy of the application to take a standardized test under non-standard conditions and a copy of the student's IEP, *fn4" as well as descriptions of his learning disabled courses, course syllabi, and information from the high school principal regarding the relationship between "regular academic course[s]" and the "comparable learning disabled course[s]." See id.

 Shortly thereafter, Palmyra High School began to provide that information to the Clearinghouse. On April 25, 1996, the principal of Palmyra High School informed the Clearinghouse that "students in [special education] classes are expected to acquire the same knowledge, both quantitatively and qualitatively, as students in comparable course(s). The same grading standards are employed in such classes as those utilized in this (these) course(s)." Id. at P 127; see also id. at P 4. On May 17, 1996, Dori Levy, the Director of Special Services of Palmyra Public Schools, identified Bowers as a student with an IEP and informed the Clearinghouse that she administered an untimed SAT exam for him. Id. at P 131. At some point before June 7, 1996, "information about all of [Bowers'] courses including table[s] of contents and course descriptions, proficiencies, outlines, and objectives" was submitted to the Clearinghouse. Id. at P 132.

 On July 30, 1996, "the NCAA through its Clearinghouse" notified Bowers of the final determination that he was a nonqualifier. See id. at P 133. Among various deficiencies, the Clearinghouse determined that Bowers lacked two years of social studies, three years of English, and the requisite additional core courses, and that his application lacked documentation required to accept standardized test scores achieved under non-standard testing conditions. Id.; see generally id. at P 99. Bowers was only given core course credit for three of his high school courses. Id. at P 160.

 As a result of his status as a nonqualifier, Bowers "is ineligible to compete in intercollegiate football" for some period of time, may not practice or condition with qualifiers, may not compete in intercollegiate football for the maximum number of seasons, and may not receive an athletic scholarship. Id. at P 135; id. at P 136 (alleging that Bowers will "lose[] two years of playing eligibility and will be required to compete against upper-class players who have had the advantage of college-level training, conditioning, and/or competition"); id. at P 137 (alleging that as a result of nonqualifier status Bowers "lost any possibility of receiving a full athletic scholarship to any Division I or Division II" school for the 1996-97 school year); id. at P 138 (alleging that Temple "could not offer Bowers a scholarship, nor could it allow him to practice or compete in its athletic program"); id. at P 142 (alleging that Temple assistant football coach notified Bowers that he "would not be eligible for 'qualifier' status until the 1998-99 school year, approximately two years after his registration"); id. at 227 (noting that denial of qualifier status resulted in loss of athletic scholarship, loss of at least two years of playing eligibility, and "diminution of [Bowers'] competitive football skills and prospects as a professional athlete"); id. at P 229. In the Spring of 1997, Bowers enrolled at Temple as a full-time student. Id. at P 140. Bowers received $ 2,275 in need-based financial aid from Temple. Id. at P 141.

 F. Efforts to Recruit Bowers

 Among other schools, Temple, Iowa, and AIC were interested in recruiting Bowers for their football programs. See, e.g., id. at PP 57-59, 69-74, 80. All of the efforts to recruit Bowers hinged, to some extent, on his attaining qualifier status. See, e.g., id. at PP 61, 73-74, 84, 124. After Temple requested an unofficial copy of Bowers' high school transcript, Temple's football recruiter determined that the Clearinghouse would not deem Bowers to be a qualifier. Accordingly, Temple discontinued its efforts to recruit Bowers for its football program, thereby effectively ending his chances of receiving an athletic scholarship from Temple. See id. at PP 59, 61, 137. Similarly, after some initial recruiting contacts with Bowers, a representative of Iowa assured Bowers' mother that, if the Clearinghouse identified Bowers as a qualifier, he would receive a full scholarship. Id. at P 73. After Bowers was designated a nonqualifier, Iowa terminated its efforts to recruit Bowers. Id. at P 74. Finally, after some initial contacts with Bowers, AIC discontinued its interest in Bowers as a football recruit once Bowers was designated a non-qualifier. Id. at P 84; see also id. at P 124.

 Temple, Iowa, and AIC did not offer to apply for a waiver of some or all the initial eligibility requirements on Bowers' behalf. Nor did Temple, Iowa, and AIC inform Bowers of the existence of a waiver procedure. Id. at PP 62, 75, 85; see also id. at P 128 (noting that only NCAA member-institutions had right to appeal determination of eligibility status).

 The Court may exercise jurisdiction over the ADA and Rehabilitation Act claims pursuant to 28 U.S.C. §§ 1331, 1343. The Court may exercise jurisdiction over the Sherman Act claim pursuant to 28 U.S.C. § 1337(a). See Amended Compl. at P 89. Finally, the Court may exercise jurisdiction over the NJLAD and contract claims pursuant to 28 U.S.C. § 1367. *fn5"

 II. Standards on Motions to Dismiss and for Summary Judgment

 The NCAA, ACT and the Clearinghouse, and Iowa have all moved to dismiss Bowers' various claims or, in the alternative, for summary judgment. I review the motions in the light of the following standards.

 A. Motion to Dismiss

 In considering a motion to dismiss under Rule 12(b)(6), the Court may only dismiss a claim if it appears certain that the plaintiff cannot prove any set of facts in support of his or her claims which would entitle him or her to relief. See, e.g., Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). While all well-pled allegations are accepted as true and reasonable inferences are drawn in the plaintiff's favor, see, e.g., Gomez v. Toledo, 446 U.S. 635, 636, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990), the Court may dismiss a claim where, under any set of facts which could be shown to be consistent with a complaint, the plaintiff is not entitled to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Neitzke v. Williams, 490 U.S. 319, 326-27, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) (rule 12(b)(6) does not countenance dismissals based on judge's disbelief of a complaint's factual allegations).

 B. Motion for Summary Judgment

 To the extent I consider matters outside the pleadings, I will treat the motion as one for summary judgment and dispose of the motions as provided for by Rule 56. See Fed. R. Civ. P. 12(b). A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see, e.g., Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996); Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n.3 (3d Cir. 1988), cert. denied, 490 U.S. 1098, 104 L. Ed. 2d 1004, 109 S. Ct. 2449 (1989); Hersh v. Allen Prod. Co., 789 F.2d 230, 232 (3d Cir. 1986).

 In deciding whether there is a disputed issue of material fact, the Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party. See, e.g., Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (noting that no issue for trial exists unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in its favor).

 In deciding whether triable issues of fact exist, Rule 56(e) of the Federal Rules of Civil Procedure provides, in relevant part:

 
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 Fed. R. Civ. P. 56(e). The rule does not increase or decrease a party's ultimate burden of proof on a claim. Rather, "the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 255-56.

 Under the rule, a movant must be awarded summary judgment on all properly supported issues identified in its motion, except those for which the non-moving party has provided evidence to show that a question of material fact remains. Put another way, once the moving party has properly supported its showing of no triable issue of fact and of an entitlement to judgment as a matter of law, for example, with affidavits, which may be "supplemented . . . by depositions, answers to interrogatories, or further affidavits," id., "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Anderson, 477 U.S. at 247-48 ("by its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion . . . ; the requirement is that there be no genuine issue of material fact") (emphasis in original).

 What the non-moving party must do is "go beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also Lujan v. National Wildlife Fed., 497 U.S. 871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990) ("the object of [Rule 56(e)] is not to replace conclusory allegations of the complaint . . . with conclusory allegations of an affidavit"); Anderson, 477 U.S. at 249; Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) ("to raise a genuine issue of material fact . . . the [non-moving party] need not match, item for item, each piece of evidence proffered by the movant," but rather must exceed the "'mere scintilla' threshold"), cert. denied, 507 U.S. 912, 122 L. Ed. 2d 659, 113 S. Ct. 1262 (1993).

 Finally, Rule 56(f) provides that:

 
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

 See Fed. R. Civ. P. 56(f). In contrast to other circuits, the Third Circuit has consistently "underscored the benefits of technical compliance" with Rule 56(f). St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1313-14 (3d Cir. 1994); compare, e.g., International Shortstop, Inc. v. Rally's Inc., 939 F.2d 1257, 1267 (5th Cir. 1991) (requiring only statement of party's need for additional discovery), cert. denied, 502 U.S. 1059, 117 L. Ed. 2d 107, 112 S. Ct. 936 (1992). In particular, our Circuit has stressed the requirement that the party opposing the motion actually file an affidavit "identifying their inability to effectively oppose the summary judgment motion." Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir. 1989).

 "Failure to support a Rule 56(f) motion by affidavit is not automatically fatal to its consideration," as long as the party opposing summary judgment "still identifies with specificity what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained." St. Surin, 21 F.3d at 1314 (quoting Lunderstadt, 885 F.2d at 71 (quoting Dowling v. City of Philadelphia, 855 F.2d 136, 140 (3d Cir. 1988)); see also San Filippo v. Bongiovanni, 30 F.3d 424, 432 (3d Cir. 1994), cert. denied, 513 U.S. 1082, 130 L. Ed. 2d 638, 115 S. Ct. 735 (1995). "While the decision to grant a Rule 56(f) motion lies within the district court's discretion, the motion should be granted almost as a matter of course unless the information is otherwise available to the nonmovant." Russek v. Unisys Corp., 921 F. Supp. 1277, 1285 (D.N.J. 1996) (citations omitted).

 III. Discussion

 I review each of Bowers' five claims seriatim to determine whether Bowers has stated a claim and, if so, whether any of the moving Defendants is entitled to summary judgment on the claim. Before I do so, I must deal with several issues, or should I say, non-issues, related to the nature of the NCAA, to which Bowers devotes far more argument than is necessary.

 A. The Nature of the NCAA

 Bowers alleges that the NCAA is an unincorporated association. Amended Compl. at P 9. Pursuant to Rule 17(b) of the Federal Rules of Civil Procedure, an unincorporated association may be sued in its common name for the purpose of enforcing against it a substantive right existing under federal law or the Constitution. See Fed. R. Civ. P. 17(b)(1); see, e.g., University of Texas at Austin v. Vratil, 96 F.3d 1337, 1339 (10th Cir. 1996). Thus, the NCAA may properly be sued under the ADA, the Rehabilitation Act, and the Sherman Act.

 With respect to non-federal, non-constitutional claims, the capacity of an unincorporated association to be sued under state law "shall be determined by the law of the state in which the district court is held." Fed. R. Civ. P. 17(b). Under New Jersey law, the NCAA may be sued in its common name. See N.J.S.A. 2A:64-1 ("any unincorporated organization or association, consisting of 7 or more persons and having a recognized name, may sue or be sued in ...


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