The opinion of the court was delivered by: Orlofsky, District Judge
Can states be made to pay damages for violating Title II of the Americans with Disabilities Act? That controversial question lies at the heart of this motion, the latest in a long series of difficult issues stemming from the claims by Michael Bowers, a young, learning-disabled football player, that discrimination based upon his learning disability has prevented him from receiving an athletic scholarship to college. The Plaintiff's latest Complaint names some, but apparently not all, of the colleges with whom he sought to play football. As a result, one of the named defendant universities interpleaded a trio of third-party defendant schools, public universities all, from whom it seeks contribution in the event of a damages verdict against it. Thus, although of somewhat lesser public moment, the availability or not of a right to contribution under federal and New Jersey laws prohibiting discrimination against the disabled is also a critical question in the present motion. The Third-Party Defendants have now moved to dismiss the Third-Party Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing principally that there is no such right to contribution, or, alternately, that since they would have sovereign immunity from suit by the Plaintiff, the Third-Party Plaintiff can have no basis for contribution.
I conclude, however, that there is a right to contribution in such cases, and that, in enacting Title II of the Americans with Disabilities Act, Congress validly abrogated the sovereign immunity of the States embodied in the Eleventh Amendment to the United States Constitution. I also conclude that the State of Tennessee, at least, waived its Eleventh Amendment immunity from suit when it accepted federal funds pursuant to the terms of the Rehabilitation Act. Thus, for the reasons set forth more fully below, I shall grant the Third-Party Defendants' motions in part and deny them in part with prejudice. I shall also deny the motions by two of the Third-Party Defendants to dismiss the Third-Party Plaintiff's claims for contribution under New Jersey law without prejudice to the Third-Party Defendants' opportunity to renew their motions pending submission of additional materials supporting their entitlement to claim their parent state's sovereign immunity.
II. FACTS AND PROCEDURAL HISTORY
This is the eighth opinion I have issued in the course of adjudicating the claims asserted by Plaintiff, Michael Bowers ("Bowers"), that he was discriminated against by various entities as a result of his disability. See Bowers v. NCAA, 974 F. Supp. 459 (D.N.J. 1997) (Bowers I); Bowers v. NCAA, 9 F. Supp. 2d 460 (D.N.J. 1998) (Bowers II); Bowers v. NCAA, 118 F. Supp. 2d 494 (D.N.J. 2000)(Bowers III); Bowers v. NCAA, 130 F. Supp. 2d 610(D.N.J. 2001)(Bowers IV); Bowers v. NCAA, No. 97-2600 (D.N.J. Feb. 6, 2001)(Bowers V); Bowers v. NCAA, No. 97-2600 (D.N.J. July 3, 2001)(Bowers VI); Bowers v. NCAA, 151 F. Supp. 2d 526 (D.N.J. 2001) (Bowers VII). The essential facts underlying Bowers's Complaint are by now well rehearsed, to say the least.
Briefly, Bowers was a talented high-school football player, who sought to parlay his skills on the football field into an athletic scholarship at a four-year university. He was "recruited" by a number of the defendant institutions, including Temple University of the Commonwealth System of Higher Education ("Temple"), the University of Iowa ("Iowa"), and American International College ("AIC"). That is, he talked with representatives from the schools, and from their football teams, about the possibility that the school would offer him a scholarship. Bowers has alleged that some of these conversations involved actual promises to grant him a scholarship.
All of the defendant and third-party defendant universities are members of the National Collegiate Athletic Association ("NCAA"). The NCAA, by the consent of its members, sets minimum standards of academic preparedness for student-athletes entering college. See Bowers II, 9 F. Supp. 2d at 467. Students who do not meet the NCAA's "initial eligibility" requirements cannot compete in intercollegiate athletics their freshman year, and face certain other restrictions on their practice time and their eligibility to receive financial assistance from their college or university. Id. at 467-68. In order to establish eligibility, a student must have successfully completed at least thirteen "core" courses, as defined by the NCAA. Id. at 468. Core courses taught below the "regular instructional level" for the student's secondary school will only be counted if the student or a college or university applies for, and is granted, a waiver of the core course requirement for that student. Id. Waivers are based on an individualized assessment of the student's record, pursuant to a consent decree entered into between the NCAA and the United States Department of Justice, under which review must be by experts in the field of special education.
The NCAA initially determined that Bowers had taken only three of its required thirteen core courses. See Bowers II, 9 F. Supp. 2d at 469. It concluded, as a result, that he was a "nonqualifier"-that is, not eligible to play football or receive an athletic scholarship at least for his freshman year, and possibly for longer. See id. at 467, 469. The NCAA's determination was based on the fact that, as a result of a diagnosed learning disability, Bowers had been enrolled primarily in special education classes, which the NCAA found to be below "regular instructional level." See Bowers I, 974 F. Supp. at 462; Bowers II, 9 F. Supp. 2d at 467, 469. After the commencement of this suit, I ordered the NCAA to review Bowers's request for a waiver under the NCAA bylaws. See Bowers I, 974 F. Supp. at 463. Although the NCAA's Subcommittee, on review, gave Bowers credit for several more core classes, it still concluded he was well short of the thirteen needed to make him a "qualifier," Id. at 464.
News of Bowers's non-qualifier status had a devastating effect on his prospects for a football scholarship. All of the efforts to recruit Bowers by the various defendant institutions, including Temple, Iowa, and AIC, were contingent on the assumption that he would be a "qualifier." See Bowers II, 9 F. Supp. 2d at 469. Although Bowers subsequently enrolled at Temple, he did so as an ordinary student; he did not play football, nor did he receive an athletic scholarship. 2d Am. Compl. at ¶¶ 141-44. *fn1
On May 23, 1997, Bowers initiated this suit, seeking injunctive relief, and perhaps damages, against the NCAA, and certain of its officers, pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213 (2000) ("ADA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (2000) ("Rehab. Act"), and the Sherman Act, 15 U.S.C. §§ 1-37 (2000). On September 8, 1997, Bowers filed an Amended Complaint, which for clarity I will now refer to as the First Amended Complaint, dropping the officer defendants and adding ACT, Inc. and the NCAA Initial-Eligibility Clearinghouse, the NCAA's contractors, as well as Defendants, Temple, Iowa, and AIC. The First Amended Complaint also asserted claims under the New Jersey Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-1 to -42 (West 1993 & Supp. 2001) against all defendants, and claims under New Jersey contract law against NCAA's contractors.
I subsequently dismissed all of Bowers's Sherman Act claims, see Bowers II, 9 F. Supp. 2d at 466, as well as all claims against ACT, Inc. and the Clearinghouse, see id.; Bowers III, 118 F. Supp. 2d at 500; Bowers VII, 151 F. Supp. 2d at 541-43. I also concluded that Bowers has standing to pursue his Rehab. Act claims only to the extent that he seeks money damages for intentional discrimination. See Bowers III, 118 F. Supp. 2d at 503-04. Because I found that Bowers had no standing to seek injunctive relief, and Title III of the ADA provides private parties only with injunctive relief, I dismissed his Title III claims. See Bowers IV, 130 F. Supp. 2d at 614. I then permitted Bowers to amend his Complaint to clarify that he was seeking non-injunctive relief under the Rehab. Act against AIC, and under both the ADA and the Rehab. Act against Temple and Iowa. See Bowers V, slip op. at 4. In the course of ruling on Bowers's Motion for Leave to Amend, I determined that compensatory damages are available under Title II of the ADA ("Title II") only if intentional discrimination is alleged. Id. at 7-8. Since Bowers has alleged intentional discrimination in violation of Title II, I permitted him to amend his Complaint to clarify that he was seeking compensatory damages under that Title. Id.; see also 2d Am. Compl., Count I Requested Relief ¶ 8. In addition, I concluded that the University of Iowa is not an arm of the State of Iowa, such that it was appropriate to allow Bowers to amend his Complaint to seek damages under common law theories of promissory estoppel, equitable estoppel, and fraud against Iowa. See Bowers VI, slip op. at 25-26.
During the pendency of Bowers's Motion for Leave to Amend, Temple sought leave to add as third-party defendants, Delaware State University ("Delaware State"), the University of Memphis ("Memphis"), and the University of Massachusetts Amherst ("U. Mass."). I granted Temple's Motion on November 17, 2000, and on November 21, 2000, Temple filed a third-party complaint against Delaware State, Memphis, and U. Mass. (collectively, "Third-Party Defendants"). U. Mass. filed this Motion to Dismiss for Failure to State a Claim, pursuant to Fed. R. Civ. P. 12(b)(6), on April 11, 2001. On April 20, 2001, Memphis filed its own Motion to Dismiss for Failure to State a Claim, as well as a Motion to Dismiss for Lack of Subject Matter Jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). Delaware State has joined both of Memphis' motions. *fn2
I have jurisdiction over Bowers's claims under the ADA and Rehab. Act pursuant to 28 U.S.C. §§ 1331 and 1343(a), and supplemental jurisdiction over his claims under New Jersey state law pursuant to 28 U.S.C. § 1367. I have jurisdiction over Temple's claims pursuant to 28 U.S.C. § 1367(a).
A. Rule 12(b)(6) Standard
Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for failure to state a claim upon which relief may be granted. "In considering a Rule 12(b)(6) motion, the Court may dismiss a complaint if it appears certain the plaintiff cannot prove any set of facts in support of its claims which would entitle it to relief." Mruz v. Caring, Inc., 39 F. Supp. 2d 495, 500 (D.N.J. 1999) (Orlofsky, J.) (citing 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, the Court may dismiss a complaint where, under any set of facts which could be shown to be consistent with a complaint, the plaintiff is not entitled to relief." Id. (citing Gomez v. Toledo, 446 U.S. 635, 636 (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)); see also Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Finally, Rule 12(b)(6) authorizes a court to dismiss a claim on a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326 (1989).
B. Whether Temple May Assert Claims for Contribution Under Title II and the Rehab. Act
1. Whether a Right to Contribution Exists Under Title II or Under the Rehab. Act
In their Rule 12(b)(6) filings, the Third-Party Defendants each assert that neither the Rehab. Act nor Title II of the ADA creates a right of action for third-party plaintiffs to seek contribution from defendants not named by the principal plaintiff. See U. Mass.'s Br. at 4; Memphis's R. 12(b)(6) Br. at 2-3. Neither statute expressly creates a right to contribution. See 42 U.S.C. § 12133 (2000); *fn3 29 U.S.C. § 794a(a)(2) (2000). *fn4 Ordinarily, when Congress has explicitly provided a remedial scheme for a statute, and chosen to omit a right of contribution, the presumption is that a court should not imply one. See Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639-40 (1981); Northwest Airlines, Inc. v. Transp. Workers Union of Am., 451 U.S. 77, 93-94 (1981). Indeed, to the extent that a right to contribution is, in ...