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Bowers v. National Collegiate Athletic Association

August 20, 2003

MICHAEL BOWERS
v.
THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AS AN ASSOCIATION AND A REPRESENTATIVE OF ITS MEMBER SCHOOLS A/K/A NCAA; THE NCAA INITIALELIGIBILITY CLEARINGHOUSE; CEDRIC W. DEMPSEY, EXECUTIVE DIRECTOR OF THE NCAA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CALVIN SYMONS, MANAGING DIRECTOR OF THE NCAA STUDENT-ELIGIBILITY CLEARINGHOUSE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; ACT INC; UNIVERSITY OF IOWA; AMERICAN INTERNATIONAL COLLEGE; THE STATE OF NEW JERSEY, INTERVENOR-DEFENDANT IN DISTRICT COURT
TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, DEFENDANT/THIRD-PARTY PLAINTIFF
v.
DELAWARE STATE UNIVERSITY; THE UNIVERSITY OF MEMPHIS; UNIVERSITY OF MASSACHUSETTS AMHERST, THIRD-PARTY DEFENDANTS UNIVERSITY OF MASSACHUSETTS AMHERST AND DELAWARE STATE UNIVERSITY, APPELLANTS IN 02-3236
KATHLEEN BOWERS*FN1, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL BOWERS
v.
THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AS AN ASSOCIATION AND A REPRESENTATIVE OF ITS MEMBER SCHOOLS A/K/A NCAA; THE NCAA INITIAL ELIGIBILITY CLEARINGHOUSE; CEDRIC W. DEMPSEY, EXECUTIVE DIRECTOR OF THE NCAA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CALVIN SYMONS, MANAGING DIRECTOR OF THE NCAA STUDENT-ELIGIBILITY CLEARINGHOUSE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; ACT, INC.; UNIVERSITY OF IOWA; AMERICAN INTERNATIONAL COLLEGE
THE STATE OF NEW JERSEY, INTERVENOR-DEFENDANT IN DISTRICT COURT TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, DEFENDANT/THIRD-PARTY PLAINTIFF
v.
DELAWARE STATE UNIVERSITY; THE UNIVERSITY OF MEMPHIS; UNIVERSITY OF MASSACHUSETTS AMHERST, THIRD-PARTY DEFENDANTS THE UNIVERSITY OF MEMPHIS, APPELLANT IN NO. 01-4226
KATHLEEN BOWERS*FN2, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL BOWERS
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AS AN ASSOCIATION AND A REPRESENTATIVE OF ITS MEMBER SCHOOLS A/K/A NCAA; THE NCAA INITIAL-ELIGIBILITY CLEARINGHOUSE; CEDRIC W. DEMPSEY, EXECUTIVE DIRECTOR OF THE NCAA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CALVIN SYMONS, MANAGING DIRECTOR OF THE NCAA STUDENT-ELIGIBILITY CLEARINGHOUSE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; ACT, INC.; UNIVERSITY OF IOWA; AMERICAN INTERNATIONAL COLLEGE; THE STATE OF NEW JERSEY, INTERVENOR-DEFENDANT IN DISTRICT COURT TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, DEFENDANT/THIRD-PARTY PLAINTIFF
v.
DELAWARE STATE UNIVERSITY; THE UNIVERSITY OF MEMPHIS; UNIVERSITY OF MASSACHUSETTS AMHERST, THIRD-PARTY DEFENDANTS UNIVERSITY OF IOWA, APPELLANT IN NO. 01-4492
KATHLEEN BOWERS*FN3, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL BOWERS
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AS AN ASSOCIATION AND A REPRESENTATIVE OF ITS MEMBER SCHOOLS A/K/A NCAA; THE NCAA INITIAL-ELIGIBILITY CLEARINGHOUSE; CEDRIC W. DEMPSEY, EXECUTIVE DIRECTOR OF THE NCAA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CALVIN SYMONS, MANAGING DIRECTOR OF THE NCAA STUDENT-ELIGIBILITY CLEARINGHOUSE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; ACT, INC.; UNIVERSITY OF IOWA; AMERICAN INTERNATIONAL COLLEGE; THE STATE OF NEW JERSEY, INTERVENOR-DEFENDANT IN DISTRICT COURT TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, DEFENDANT/THIRD-PARTY PLAINTIFF
v.
DELAWARE STATE UNIVERSITY; THE UNIVERSITY OF MEMPHIS; UNIVERSITY OF MASSACHUSETTS AMHERST, THIRD-PARTY DEFENDANTS THE UNIVERSITY OF MASSACHUSETTS, APPELLANT IN NO. 02-1789



On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 97-cv-02600) Honorable Stephen M. Orlofsky, District Judge

Before: Nygaard, Smith, and Greenberg, Circuit Judges

The opinion of the court was delivered by: Greenberg, Circuit Judge.

As amended August 27, 2003.

MICHAEL BOWERS
v.
THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AS AN ASSOCIATION AND A REPRESENTATIVE OF ITS MEMBER SCHOOLS A/K/A NCAA; THE NCAA INITIALELIGIBILITY CLEARINGHOUSE; CEDRIC W. DEMPSEY, EXECUTIVE DIRECTOR OF THE NCAA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CALVIN SYMONS, MANAGING DIRECTOR OF THE NCAA STUDENT-ELIGIBILITY CLEARINGHOUSE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; ACT INC; UNIVERSITY OF IOWA; AMERICAN INTERNATIONAL COLLEGE; THE STATE OF NEW JERSEY, INTERVENOR-DEFENDANT IN DISTRICT COURT
TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, DEFENDANT/THIRD-PARTY PLAINTIFF
v.
DELAWARE STATE UNIVERSITY; THE UNIVERSITY OF MEMPHIS; UNIVERSITY OF MASSACHUSETTS AMHERST, THIRD-PARTY DEFENDANTS UNIVERSITY OF MASSACHUSETTS AMHERST AND DELAWARE STATE UNIVERSITY, APPELLANTS IN 02-3236
KATHLEEN BOWERS*FN1, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL BOWERS
v.
THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AS AN ASSOCIATION AND A REPRESENTATIVE OF ITS MEMBER SCHOOLS A/K/A NCAA; THE NCAA INITIAL ELIGIBILITY CLEARINGHOUSE; CEDRIC W. DEMPSEY, EXECUTIVE DIRECTOR OF THE NCAA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CALVIN SYMONS, MANAGING DIRECTOR OF THE NCAA STUDENT-ELIGIBILITY CLEARINGHOUSE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; ACT, INC.; UNIVERSITY OF IOWA; AMERICAN INTERNATIONAL COLLEGE
THE STATE OF NEW JERSEY, INTERVENOR-DEFENDANT IN DISTRICT COURT TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, DEFENDANT/THIRD-PARTY PLAINTIFF
v.
DELAWARE STATE UNIVERSITY; THE UNIVERSITY OF MEMPHIS; UNIVERSITY OF MASSACHUSETTS AMHERST, THIRD-PARTY DEFENDANTS THE UNIVERSITY OF MEMPHIS, APPELLANT IN NO. 01-4226
KATHLEEN BOWERS*FN2, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL BOWERS
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AS AN ASSOCIATION AND A REPRESENTATIVE OF ITS MEMBER SCHOOLS A/K/A NCAA; THE NCAA INITIAL-ELIGIBILITY CLEARINGHOUSE; CEDRIC W. DEMPSEY, EXECUTIVE DIRECTOR OF THE NCAA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CALVIN SYMONS, MANAGING DIRECTOR OF THE NCAA STUDENT-ELIGIBILITY CLEARINGHOUSE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; ACT, INC.; UNIVERSITY OF IOWA; AMERICAN INTERNATIONAL COLLEGE; THE STATE OF NEW JERSEY, INTERVENOR-DEFENDANT IN DISTRICT COURT TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, DEFENDANT/THIRD-PARTY PLAINTIFF
v.
DELAWARE STATE UNIVERSITY; THE UNIVERSITY OF MEMPHIS; UNIVERSITY OF MASSACHUSETTS AMHERST, THIRD-PARTY DEFENDANTS UNIVERSITY OF IOWA, APPELLANT IN NO. 01-4492
KATHLEEN BOWERS*FN3, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL BOWERS
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AS AN ASSOCIATION AND A REPRESENTATIVE OF ITS MEMBER SCHOOLS A/K/A NCAA; THE NCAA INITIAL-ELIGIBILITY CLEARINGHOUSE; CEDRIC W. DEMPSEY, EXECUTIVE DIRECTOR OF THE NCAA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CALVIN SYMONS, MANAGING DIRECTOR OF THE NCAA STUDENT-ELIGIBILITY CLEARINGHOUSE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; ACT, INC.; UNIVERSITY OF IOWA; AMERICAN INTERNATIONAL COLLEGE; THE STATE OF NEW JERSEY, INTERVENOR-DEFENDANT IN DISTRICT COURT TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, DEFENDANT/THIRD-PARTY PLAINTIFF
v.
DELAWARE STATE UNIVERSITY; THE UNIVERSITY OF MEMPHIS; UNIVERSITY OF MASSACHUSETTS AMHERST, THIRD-PARTY DEFENDANTS THE UNIVERSITY OF MASSACHUSETTS, APPELLANT IN NO. 02-1789

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 97-cv-02600) Honorable Stephen M. Orlofsky, District Judge

Richard L. Bazelon (argued) Bazelon, Less & Feldman 1515 Market Street 7th Floor Philadelphia, PA 19102

Barbara E. Ransom Public Interest Law Center of Philadelphia 125 South 9th Street Suite 700 Philadelphia, PA 19107 Attorneys for Appellees Michael Bowers and Kathleen Bowers, administratrix ad prosequendum of the Estate of Michael Bowers

Shannon D. Farmer (argued) Abigail L. Flitter, Esq. John B. Langel, Esq. Ballard, Spahr, Andrews & Ingersoll 1735 Market Street 51st Floor Philadelphia, PA 19103 Attorneys for Appellee Temple University

Jack J. Wind Margulies, Wind, Herrington, & Knopf 15 Exchange Place, Suite 510 Jersey City, NJ 07302

Thomas S. Miller Attorney General Gordon E. Allen (argued) Deputy Attorney General 1305 East Walnut Street Hoover State Office Building, 2nd Floor Des Moines, IA 50319 Attorneys for Appellant University of Iowa

Andrea M. Silkowitz Office of Attorney General of New Jersey Division of Law 124 Halsey Street P.O. Box 45029 Newark, NJ 07102 Attorney for State of New Jersey

Ralph F. Boyd, Jr. Assistant Attorney General Seth M. Galanter Sarah E. Harrington (argued) United States Department of Justice Civil Rights Division Appellate Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Attorneys for Intervenor United States of America

Michael K. Willison Dickie, McCamey & Chilcote One Greentree Centre Suite 201 Marlton, NJ 08053-3105 Attorneys for Appellant Delaware State University

Peter L. Frattarelli Archer & Greiner One Centennial Square P.O. Box 3000 Haddonfield, NJ 08033

Kae Carpenter Todd Mary M. Collier (argued) Assistant Attorney General Civil Litigation and State Services Division Office of the Attorney General of Tennessee P.O. Box 20207 Nashville, TN 37202 Attorneys for Appellant University of Memphis

Linda B. Celauro (argued) John J. Peirano Gary S. Prish Carpenter, Bennett & Morrissey 100 Mulberry Street Three Gateway Center Newark, NJ 07102 Attorneys for Appellant University of Massachusetts

Thomas C. Hart Ruprecht, Hart & Weeks 306 Main Street Millburn, NJ 07041 Attorneys for American International College

Before: Nygaard, Smith, and Greenberg, Circuit Judges

The opinion of the court was delivered by: Greenberg, Circuit Judge.

PRECEDENTIAL

Argued July 8, 2003

Filed: August 20, 2003

OPINION OF THE COURT

I. FACTUAL AND PROCEDURAL HISTORY

This matter comes on before this court on appeals by the University of Iowa ("Iowa"), Delaware State University ("Delaware State"), the University of Massachusetts ("UMass"), and the University of Memphis ("Memphis") in an action Michael Bowers brought under Title II of the Americans with Disabilities Act ("ADA") and section 504 of the Rehabilitation Act as well as under the New Jersey Law Against Discrimination ("NJLAD"). Among the appellants, however, Bowers sued only Iowa although he also sued Temple University ("Temple"), which is an appellee and is participating in this appeal, and certain other parties that have been dismissed from the action or are not participating in the appeal. During the course of the proceedings, Michael Bowers has died leading to his mother Kathleen Bowers being substituted for him. Nevertheless, as the parties have done in their briefs, as a matter of convenience we will treat him as the sole appellant in this opinion referring to him as "Bowers".

In determining this matter, we accept as true the facts Bowers alleged in his complaint, as amended, and the facts Temple alleged in its third-party complaint against Memphis, UMass, and Delaware State. Inasmuch as the history of this case is long and complicated, we set forth only the portions necessary for resolution of the appeal.

The case may be said to have its origin in the circumstances that Bowers played football in high school in New Jersey and was interested in obtaining an athletic scholarship at a National Collegiate Athletic Association ("NCAA") Division I or II school. The NCAA is an unincorporated voluntary association of more than 1000 members, a majority of which are public and private four year colleges. See Cureton v. NCAA, 198 F.3d 107, 110 (3d Cir. 1999). In fact, the universities involved on this appeal are NCAA members.

Bowers suffered from a diagnosed learning disability that prevented him from taking several of the secondary school courses the NCAA considers to be core requirements for athletic eligibility and for the award of an athletic scholarship. The complaint and third-party complaint allege that the five universities we have mentioned, i.e., Temple, Iowa, Delaware State, UMass, and Memphis, recruited Bowers for their football programs but that the NCAA Clearinghouse, which determines whether student-athlete prospects meet required education guidelines, determined that he did not meet the requirement that a student take 13 core courses in his secondary school. In 1996, after the universities learned of Bowers's status, they ceased recruiting him.*fn4

On May 23, 1997, Bowers filed a complaint alleging that the NCAA, the NCAA Initial Eligibility Clearinghouse, and a number of individual defendants violated, inter alia, the ADA and the Rehabilitation Act in their treatment of him. After the district court denied Bowers's motion for preliminary injunctive relief, Bowers v. NCAA, 974 F. Supp. 459, 467 (D.N.J. 1997), he amended his complaint to join Temple, Iowa, and American International College as defendants and to add state law claims under the NJLAD. The district court subsequently granted summary judgment in favor of the Clearinghouse and granted in part and denied in part the motions for summary judgment filed by the NCAA, Temple, Iowa, and American International College.*fn5 Bowers v. NCAA, 9 F. Supp. 2d 460 (D.N.J. 1998). Following the district court's disposition of subsequent motions for summary judgment in Bowers v. NCAA, 118 F. Supp. 2d 494 (D.N.J. 2000), Temple filed a third-party complaint on November 21, 2000, seeking contribution for any monetary liability it might have to Bowers from Delaware State, UMass, and Memphis. These three universities had not been parties to this litigation and Bowers has not sued any of them.

Subsequently, Bowers moved to add claims against Iowa and on July 3, 2001, the district court granted that motion. Bowers v. NCAA, Civ. No. 97-2600, 2001 WL 1772801, at *10 (D.N.J. July 3, 2001). In its opinion, in response to Iowa's contention that the amendment would be futile as it was immune from suit, the court held that Iowa was not an arm of the State of Iowa for Eleventh Amendment purposes and thus it was not immune. Id. at * 9. Iowa did not appeal from that order at that time.

All three third-party defendants moved to dismiss the third-party complaint, arguing that neither Title II nor section 504 contemplates an award for contribution and further arguing, in the cases of Memphis and Delaware State, that the Eleventh Amendment applied to them and barred Temple's action against them as the provisions for abrogation and waiver of immunity in the two statutes were unconstitutional. The district court, on November 7, 2001, granted in part and denied in part Memphis's motion, holding that Memphis was an arm of the State of Tennessee for Eleventh Amendment purposes, Temple's contribution claim under the NJLAD against Memphis was barred by the doctrine of sovereign immunity, there is a right of contribution under Title II of the ADA and section 504 of the Rehabilitation Act, Congress validly abrogated Memphis's Eleventh Amendment immunity under Title II of the ADA, and Memphis waived its Eleventh Amendment immunity under the Rehabilitation Act by accepting federal funds. Bowers v. NCAA, 171 F. Supp. 2d 389, 397-409 (D.N.J. 2001).

The district court denied with prejudice Delaware State's motion to dismiss Temple's claims for contribution under Title II and section 504 as, unlike Memphis with respect to the State of Tennessee, it did not come forward with evidence demonstrating its relationship to the State of Delaware. Id. at 399. The court, however, did not make other dispositive rulings on the Eleventh Amendment issues, though it did invite UMass and Delaware State to submit additional briefing on these issues and granted Temple an opportunity to reply to this briefing.*fn6 Id. at 409. Memphis filed a notice of appeal from the November 7, 2001 order on November 21, 2001, and Iowa filed a notice of appeal from the July 3, 2001 order on December 21, 2001.

On November 21, 2001, UMass filed a motion pursuant to 28 U.S.C. § 1292(b) for a prescribed statement with respect to the district court's ruling that there is a right of contribution under Title II and section 504 of the Rehabilitation Act. Delaware State joined in that motion but Memphis did not. On December 7, 2001, UMass filed supplemental papers in support of its motion to dismiss, addressing the Eleventh Amendment issues, but Delaware State did not file any similar additional papers. On March 6, 2002, the district court granted the motions of UMass and Delaware State for a certified order pursuant to 28 U.S.C. § 1292(b) with respect to the contribution issues. It also found that UMass was an arm of the State of Massachusetts for Eleventh Amendment purposes, but consistently with its order with respect to Memphis, denied UMass's motion to dismiss Temple's claims against it under section 504 and Title II and dismissed Temple's claims against it under the NJLAD. It also dismissed Temple's claim for contribution under the NJLAD against Delaware State as it declined to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over that claim. Bowers v. NCAA, 188 F. Supp. 2d 473, 481-82 (D.N.J. 2002). These dispositions left Temple's claim for contribution under Title II and section 504 alive against all three third-party defendants but eliminated the NJLAD contribution claim from the third-party complaint. The court, however, stayed all proceedings related to the third-party complaint pending resolution of Memphis's appeal. Id. at 483.*fn7

Iowa now appeals at No. 01-4492 from the district court's order reflecting its finding that it is not an arm of the State of Iowa for Eleventh Amendment purposes and Iowa, Memphis at No. 01-4226, and UMass at No. 02-1789, appeal from the district court's orders reflecting its Eleventh Amendment determinations with respect to the abrogation of and waiver of sovereign immunity. Delaware State did appeal from the district court's order denying its motion to dismiss on Eleventh Amendment grounds but it has dismissed that appeal voluntarily. With our permission UMass and Delaware State appeal at No. 02-3236 from the district court's orders of November 7, 2001, and March 6, 2002, reflecting its conclusion that there is a right to contribution under Title II of the ADA and section 504 of the Rehabilitation Act. On March 19, 2002, the United States filed a notice of intervention pursuant to 28 U.S.C. § 2403(a), advising that it was intervening to argue that Congress validly abrogated the states' Eleventh Amendment immunity under Title II and that states accepting federal funds waived that immunity under the Rehabilitation Act. Thus, the appeals raise significant issues with respect to Iowa's status under the Eleventh Amendment, the abrogation and waiver of the states' Eleventh Amendment immunity by and pursuant to the ADA and the Rehabilitation Act, and whether there can be a right of contribution under those acts. Preliminarily, however, we address procedural and jurisdictional matters with respect to Iowa and Memphis.

II. JURISDICTION AND STANDARD OF REVIEW

Subject to the timeliness issue with respect to Iowa's appeal, we have jurisdiction over the orders denying the appellants Eleventh Amendment immunity under 28 U.S.C. § 1291 as those orders are final for purposes of appeal under the collateral order doctrine. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 687 (1993). We have jurisdiction with respect to the contribution issues under 28 U.S.C. § 1292(b). Inasmuch as we are deciding this appeal by ...


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