Published on
William T. Perryman*
I. Introduction
The National Collegiate Athletic Association (“NCAA” or “the Association”) infractions process has long been criticized as a kangaroo court, a characterization that reflects a system in which the lines between investigator, prosecutor, and adjudicator are blurred.[1] A recent and quiet revolution in the NCAA’s internal operating procedures, however, seems to have moved the goalposts from difficult to challenge to nearly impossible to overturn.[2] Effective January 1, 2023, the NCAA Division I membership codified a “no reasonable person” standard of review for all infractions appeals.[3]
This shift toward a more insulated appeals process arrived on the eve of a pivotal moment for student-athlete rights. In the landmark House v. NCAA settlement, the Association agreed to pay billions in back-damages and, for the first time, allow schools to share athletic revenue directly with players.[4] This article argues that by adopting an ultra-deferential standard of review while simultaneously hiding behind the “state action” shield of NCAA v. Tarkanian, the NCAA has created a vacuum of accountability that leaves institutions and their athletes without meaningful recourse.[5]
II. The Standard of Review
The NCAA’s revised “no reasonable person” standard of review signifies more than a procedural tweak; it marks a step toward professionalizing the NCAA infractions process by aligning it with the deeply deferential standards applied in federal labor and commercial arbitration, and, by extension, in professional sports.[6] Under the new NCAA Division I Bylaw 19.13.1.1, a Committee on Infractions (“COI”) decision shall be affirmed by the Infraction Appeals Committee (“IAC”) if there is “information in the case record supporting the decision” and shall not be set aside unless “no reasonable person” could have made that decision.[7]
The previous abuse of discretion standard required a finding to be supported by “the weight of the evidence,” granting the IAC the authority to intervene when the COI reached a conclusion that was clearly contrary to the information presented. The current standard of review now insulates a COI decision from reversal unless the appellant can prove that no reasonable person could have reached such a conclusion.[8] This effectively cements a COI finding as long as a mere shred of information that supports the finding exists in the record.
In practice, this new standard mirrors the “exceedingly deferential” standard applied by federal courts when reviewing arbitral awards under the Federal Arbitration Act.[9] As the First Circuit demonstrated in Boston Celtics Ltd. Partnership v. Shaw, an arbitral award will be upheld so long as the arbitrator was “even arguably attempting to apply the contract.”[10] In Shaw, the court held it was not the judiciary’s role to determine if the arbitrator’s interpretation of the contract was correct, but merely whether the arbitrator was “even arguably construing or applying the contract and acting within the scope of its authority.”[11] If that low bar is met, a court lacks jurisdiction to intervene, even in the face of serious legal or factual errors.
The NCAA has now institutionalized this same hands-off philosophy. By requiring an appellant to prove that “no reasonable person” could have reached the COI’s conclusion, the NCAA ensures that as long as the COI was “even arguably attempting to apply” the Division I Manual, the decision is effectively bulletproof.[12] To win an appeal now, a college athlete must prove a negative: that no reasonable person could have looked at the evidence and reached that result. Whereas a professional athlete accepts this type of limited review in exchange for the benefits of a collective bargaining agreement, the student athlete is forced to navigate a similar system of finality without any of the underlying contractual protections.[13]
III. The State Action Deadlock: Tarkanian and Brentwood
While internal appeals have become largely impossible to win, the NCAA remains immune from constitutional scrutiny. This protection stems from a fractured Supreme Court jurisprudence, anchored by the 1988 precedent of NCAA v. Tarkanian.[14]
A. The Baseline: NCAA v. Tarkanian (1988)
In Tarkanian, the NCAA investigated the University of Nevada, Las Vegas (“UNLV”) and issued a show-cause order directing the state-run institution to sever all ties with its legendary basketball coach, Jerry Tarkanian.[15] UNLV complied.[16] To the layperson, particularly one familiar with the immense regulatory authority the NCAA exerts over state-funded universities, the Association appears to be the primary actor wielding what looks like state power. This impression matters. If the NCAA were a state actor, it would be bound by the Fifth and Fourteenth Amendments. Instead, “private” status allows it to bypass constitutional Due Process altogether, leaving a labor force trapped within a monopsony with no ability to bargain for better protections. In Tarkanian, the NCAA was clearly an actor wielding its power. They were the force behind the punishment. Suggesting otherwise would be like telling a University of Missouri fan that the 2019 postseason football ban came from the university itself, not from the NCAA.[17]
Nevertheless, a 5-4 Supreme Court majority held that the NCAA itself was not a state actor.[18] This was because, in the Court’s view, the ultimate “state action” came from UNLV, which retained a theoretical choice in the matter: It could refuse to suspend Tarkanian and simply accept the NCAA’s sanctions or withdraw from the Association entirely.[19] Writing for the majority, Justice Stevens argued the NCAA’s role was akin to a private party to whom the state had delegated its power over personnel decisions in exchange for the benefits of membership.[20] This “private actor” reasoning is thus arguably built upon a legal fiction: that a university would ever rationally choose the nuclear option of withdrawal over compliance.[21] But by characterizing the NCAA as a private voluntary association to which universities delegate authority, the Court exempted it from the due process requirements of the Fourteenth Amendment, despite its very real power to derail the careers of state employees.[22]
B. The Exception: Brentwood Academy v. TSSAA (2001)
Thirteen years later, the Court appeared to shift its focus from delegation to entwinement. In Brentwood Academy, the Court found that the Tennessee Secondary School Athletic Association (“TSSAA”) was a state actor when it penalized a private school for recruiting violations.[23] Justice Souter’s majority opinion introduced the “pervasive entwinement” test, arguing that because the TSSAA was composed primarily of public school officials, funded by public school dues, and performed a function that the state would otherwise have to perform, it was a state actor in all but name.[24] The Court distinguished Tarkanian by noting that the TSSAA operated within a single state, making the “state” connection more direct than the NCAA’s national, multi-state reach.[25]
Thus, under Brentwood, a state high school association is a state actor; yet under Tarkanian, the NCAA, which performs the exact same regulatory function at a higher level, is not. The House v. NCAA settlement makes this irony even sharper.[26] If state universities are now directly paying athletes, the “entwinement” between the state university’s treasury and the NCAA’s regulatory framework is deeper than it ever was in 1988.
IV. The House Settlement: The Final Blow to “Private Action”
A. The NCAA as Manager of State Funds
Under the House framework, the NCAA is no longer just regulating on-field behavior; it is regulating the treasury of the state.[27] When an institution like the University of Missouri, a land-grant, state-funded entity, allocates millions of dollars in revenue to its student-athletes, it does so under a monetary cap and a set of reporting requirements dictated exclusively by the NCAA.
In Tarkanian, the Court could plausibly argue that the NCAA was a private advisor because the financial stakes were localized to coaching contracts.[28] Post-House, however, the NCAA acts as a central planning commission for state university budgets.[29] If the NCAA were to use its infractions process to punish a public, land-grant institution for a revenue-sharing violation, it would be a private entity in Indianapolis penalizing a state entity for the way it manages public funds. This level of control over the budget of a state institution is the definition of state action under the entwinement theory.
B. The End of the Amateurism Debate
The House settlement also effectively settles the amateurism debate, moving college sports towards a professionalized employment model. This raises significant due process concerns. Under Cleveland Board of Education v. Loudermill, public employees possessing a property interest in their positions are constitutionally entitled to notice and an opportunity to respond prior to termination.[30] When the NCAA exercises its infractions process to strip an athlete of these earned funds, it is no longer regulating amateurism; it is adjudicating a state employee’s right to contractually guaranteed property. Yet unlike every other professionalized sector involving state employees, the NCAA’s disciplinary framework lacks the strict constitutional or collectively bargained protections that govern such actions elsewhere.[31]
By forcing a professional model through House while maintaining the “no reasonable person” standard in infractions, the NCAA has created a world where a state employee can have her salary stripped away by a process that avoids the Fourteenth Amendment. The NCAA is essentially acting as a private Department of Labor for the state, yet it claims it is not entwined enough to owe athletes a fair hearing. By creating a system where the NCAA dictates the specific dollar amounts a state university can pay its students, the Association has proved the dissenters in Tarkanian right: the NCAA and the state have become “joint participants” in a single enterprise.[32]
V. The Proposed Solution
The search for a structural remedy has recently centered on the anticipated work of the Saban Committee, the informal name for the presidential commission on college sports reform that was to be co-chaired by former Alabama coach Nick Saban.[33] News of the commission has effectively been paused, however, as Saban himself has expressed skepticism about the necessity of a formal panel and the White House has pivoted toward direct executive action and legislative support.[34]
With internal mechanisms and high-level commissions stalled, the burden falls to Congress.[35] The NCAA has continuously lobbied for a “safe harbor” or a limited antitrust exemption from Congress, and the conversation must move beyond mere labor stability.[36] Any federal intervention that merely codifies the status quo would be a disaster for athlete rights. If Congress is to grant the NCAA the protection of federal law, it must demand a statutory due process mandate in return.
A. Abolishing The “No Reasonable Person Standard”
The first condition of any federal antitrust exemption must be the statutory abolition of the “no reasonable person” standard for infractions appeals. As argued throughout this article, this standard, imported from the world of bargained-for labor arbitration, is fundamentally incompatible with a system lacking collective bargaining. Congress should mandate a substantial evidence standard of review for all significant infractions decisions.[37] By requiring the Infractions Appeals Committee to actually weigh the merits of a case rather than searching for a single piece of evidence on which to affirm the COI, the process would move closer to the administrative fairness expected of any body exercising quasi-governmental power over state employees and students.[38]
B. Independent, Third-Party Adjudication
The current “kangaroo court” characterization stems from the fact that the NCAA’s adjudicators, investigators, and prosecutors are essentially members of the family.[39] Even if the individuals are well-intentioned, the structural bias of an internal committee, where the adjudicators are often administrators from peer institutions, is unavoidable. A federal solution should require the NCAA to outsource its infractions adjudication to independent, third-party bodies such as the American Arbitration Association.[40] If the NCAA wants to benefit from the finality of arbitration seen in professional sports, it must adopt the actual neutrality that justifies such deference in the professional ranks.[41]
C. Codifying Reality
Finally, Congress should clarify that for the purposes of due process, any athletic association that manages the revenue-sharing frameworks of state universities, as the NCAA does post-House, must be held to a standard equating the Fourteenth Amendment.[42] This does not mean every NCAA meeting becomes a public forum, but it does mean that when a coach’s livelihood or a student’s education is at stake, the “legal fiction” of the private association can no longer be used to bypass the Constitution.
VI. Conclusion
The NCAA’s legal position has become untenable. By grafting an extreme standard of deference from professional sports, the NCAA has constructed a procedural fortress around its infractions system, while simultaneously retreating behind its “private actor” shield to evade constitutional scrutiny. The recent House settlement confirms that the NCAA is no longer a mere private association; it is the de facto regulator of a massive, publicly funded commercial enterprise. Permitting such an entity to operate under a “no reasonable person” standard of review undermines the rule of law for the sake of administrative convenience.
This impasse reveals that meaningful change will not come from within the NCAA. Therefore, if the Association continues to seek federal safe harbor legislation, Congress must use that leverage to demand due process for athletes and coaches in return. Until the standard of review is fundamentally reformed, or the state action doctrine is updated to reflect the reality of college sports in 2026, coaches and athletes at public universities will remain subject to a system that wields state power without providing state justice.[43]
* B.A., Rhodes College, 2022; J.D. Candidate, University of Missouri School of Law, 2026; Associate Editor, Missouri Law Review, 2025–2026. Thank you to Rachel Carlson, Lucas Reed, and Christy Hoffmann for their help in the editing process.
[1] See Terri Peretti, What If the NCAA Was a State Actor? Here, There, and Beyond, 20 Roger Williams U. L. Rev. 437, 439 (2015) (likening NCAA proceedings to “kangaroo courts”).
[2] Nat’l Collegiate Athletic Ass’n, NCAA Division I Manual § 19.13.3.1 (2023).
[3] Id.
[4] See In re Coll. Athlete NIL Litig., No. 4:20-cv-03919-CW, 2024 WL 5360139 (N.D. Cal. Oct. 7, 2024); Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 109 (2021) (Kavanaugh, J., concurring) (“The NCAA’s business model would be flatly illegal in almost any other industry in America.”).
[5] See Susan Westover, Note, National Collegiate Athletic Association v. Tarkanian: If NCAA Action Is Not State Action, Can Its Members Meaningfully Air Their Dissatisfaction?, 26 San Diego L. Rev. 953 (1989); Press Release, Univ. of Mo. Sys., Statements from Leaders Regarding Recent NCAA Sanctions (reviewed Apr. 18, 2019), https://www.umsystem.edu/ums/news/news_releases/020119_news (last visited Mar. 12, 2026) (arguing the system was “shockingly inappropriate” and “punishes those who have nothing to do with the violation” despite “exemplary cooperation”).
[6] Compare Nat’l Collegiate Athletic Ass’n, NCAA Division I Manual § 19.13.1.1 (2022), with 9 U.S.C. § 10 (2018) (providing extremely narrow grounds for vacating an award under the Federal Arbitration Act) and United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960) (holding that courts should defer to an arbitrator’s contract interpretation).
[7] See Nat’l Collegiate Athletic Ass’n, NCAA Division I Manual § 19.13.1.1 (2022). The COI is an independent administrative body comprised of representatives from NCAA member institutions and the public, tasked with adjudicating Level I and Level II violations, such as recruiting inducements, academic misconduct, and “lack of institutional control.” See also id. § 19.3.1 (defining the composition and duties of the Committee); id. § 19.1.1 (outlining the violation structure). Unlike on-field officials who manage game-play rules, the COI functions as the trial-level adjudicator for institutional misconduct; however, the “no reasonable person” standard of review for appeal creates a level of deference that rivals the most restrictive standards in federal arbitration. Cf. United Steelworkers, 363 U.S. at 596.
[8] See Univ. of N.C. at Chapel Hill, Pub. Infractions Report 20 (2012), https://web3.ncaa.org/lsdbi/search/miCaseView/report?id=102358 (“To believe the former assistant coach was unaware is contrary to common sense and the weight of the evidence.”). Compare Nat’l Collegiate Athletic Ass’n, NCAA Division I Manual § 19.10.1.2(a) (2021) (authorizing the Infractions Appeals Committee to set aside a finding if it was “clearly contrary to the information presented to the hearing panel”), with Nat’l Collegiate Athletic Ass’n, NCAA Division I Manual § 19.10.1.2.2.1 (2022) (eliminating the “clearly contrary” standard and requiring affirmance of a panel’s findings unless “no reasonable person could have made the appealed determination”).
[9] See 9 U.S.C. § 10 (2018); Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001) (noting that judicial review of labor arbitration decisions is “among the narrowest known to the law” and that even a “serious error” by the adjudicator does not justify reversal).
[10] Boston Celtics Ltd. P’ship v. Shaw, 908 F.2d 1041, 1045 (1st Cir. 1990) (citing United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987)).
[11] Id.
[12] See NCAA Division I Infractions Appeals Comm., Internal Operating Procedures § 3-1 (2025).
[13] Athletes across the “Big Four” professional sports leagues have accepted limited judicial review of arbitration and disciplinary decisions in exchange for the premium benefits secured through collective bargaining, such as escalating salary caps, robust pension plans, and a seat at the table in league governance. Shaw, 908 F.2d at 1047 (explaining that limited review was required because the player had contractually bound himself to the terms of the collective bargaining agreement).
[14] Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179 (1988).
[15] Id. at 181.
[16] Id.
[17] Id. at 191. In 2019, the NCAA imposed a postseason ban on the University of Missouri’s football, baseball, and softball programs following an investigation into academic misconduct involving a former campus tutor who completed coursework for twelve student-athletes. Despite the University’s proactive self-reporting and “exemplary cooperation” throughout the investigation, the NCAA Infractions Appeals Committee upheld the sanctions in November 2019. This prompted widespread criticism regarding the NCAA’s broad discretionary power to penalize member institutions regardless of their internal compliance efforts. See Jake May, NCAA Upholds Postseason Ban, Sanctions for Mizzou Athletics, Sports Illustrated (Nov. 26, 2019), https://www.si.com/college/2019/11/26/missouri-bowl-ban-appeal-ncaa.
[18] Tarkanian, 488 U.S. at 179 (1988).
[19] Id. at 191, 198–99.
[20] Id. at 194–95.
[21] Withdrawal from the NCAA is widely considered a nuclear option because the Association maintains a near-monopoly over elite intercollegiate athletics. Loss of membership results in an immediate and devastating loss of revenue from media rights deals, a collapse in athletic recruitment, and a significant decline in university applications and alumni donations, which are often tied to the visibility of major college sports. See, e.g., Andrew Zimbalist, Unpaid Professionals: Commercialism and Conflict in Big-Time College Sports 8-10 (Princeton Univ. Press 1999) (discussing the symbiotic relationship between NCAA membership, institutional prestige, and financial solvency).
[22] Tarkanian, 488 U.S. at 194 (finding no state action where the NCAA enjoys no governmental powers).
[23] Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 291 (2001).
[24] Id. at 295–96.
[25] Id. at 298 (The Association’s “nominally private character… is overborne by the pervasive entwinement of public institutions and public officials.”).
[26] In re Coll. Athlete NIL Litig., No. 4:20-cv-03919-CW, 2024 WL 5360139 (N.D. Cal. Oct. 7, 2024).
[27] “The House framework” refers to the landmark 2024 settlement agreement that effectively ended the NCAA’s amateurism model by permitting member institutions to share revenue directly with student-athletes for the first time in the Association’s history. See House v. Nat’l Collegiate Athletic Ass’n, No. 4:20-cv-03919-CW (N.D. Cal. June 6, 2025) (order granting final approval of $2.8 billion settlement); see also Bernard G. Dennis III & Jason S. Kaner, A New Era Begins: NCAA Amateurism is Out as Direct Athlete Compensation + College Sports Commission Enter the Arena, Jackson Lewis (June 24, 2025), https://www.jacksonlewis.com/insights/new-era-begins-ncaa-amateurism-out-direct-athlete-compensation-college-sports-commission-enter-arena. By establishing a multibillion-dollar backpay fund and a future revenue-sharing cap, initially set at approximately $20.5 million per school, the framework transforms the NCAA from a rules-enforcement body into a central financial regulator with direct oversight of university budgets and state-appropriated funds. Id.
[28] Tarkanian, 488 U.S. at 196–97.
[29] See Bernard G. Dennis, III & Jason S. Kaner, College Sports Commission Goes Live as NCAA Era Enters New Phase, Jackson Lewis (June 11, 2025), https://www.jacksonlewis.com/blogs/college-sports-commission-goes-live-ncaa-era-enters-new-phase (last visited Mar. 6, 2026) (describing the CSC’s role in overseeing “Revenue Sharing,” “NIL Go” reporting, and mandatory “Roster Limits” across all Division I member institutions).
[30] Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (establishing the due process requirements of notice and a meaningful opportunity to respond prior to deprivation of a protected property interest).
[31] Id.
[32] See Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 199 (1988) (White, J., dissenting).
[33] See Patrick Andres, Nick Saban Expected to Help Lead Presidential Commission on College Sports Reform, Sports Illustrated (May 7, 2025), https://www.si.com/college-football/nick-saban-help-lead-presidential-commission-college-sports-reform.
[34] See Saban downplays need for college sports commission, urges unified NIL rules, Sports Bus. J. (May 15, 2025), https://www.sportsbusinessjournal.com/Articles/2025/05/15/saban-downplays-need-for-college-sports-commission-urges-unified-nil-rules/.
[35] See Carter Bahns, White House halts Donald Trump’s plan for college sports commission amid ongoing legislation talks, Per Report, CBS Sports (May 22, 2025), https://www.cbssports.com/college-football/news/white-house-halts-donald-trumps-plan-for-college-sports-commission-amid-ongoing-legislation-talks-per-report/.
[36] See Mitchell Capp, College sports at a crossroads: with Congress stalled, collective bargaining gains momentum, McDonald Hopkins (Dec. 15, 2025), https://www.mcdonaldhopkins.com/insights/news/college-sports-collective-bargaining-gains-momentum; see also Ryan J. Regula et al., Coming Sooner or Later: Congress Considers Bills to Standardize Name, Image, and Likeness Rights, Snell & Wilmer (Oct. 27, 2025), https://www.swlaw.com/publication/coming-sooner-or-later-congress-considers-bills-to-standardize-name-image-and-likeness-rights/. An antitrust exemption is a specific legal carve-out granted by Congress or the courts that allows an industry to engage in behavior, such as price-fixing or restricted competition, that would otherwise violate the Sherman Act. See, e.g., Fed. Baseball Club of Balt., Inc. v. Nat’l League of Pro. Baseball Clubs, 259 U.S. 200 (1922). The NCAA is currently seeking such an exemption to protect its new post-House revenue-sharing model from further litigation. See Student Compensation and Opportunity through Rights and Endorsements (SCORE) Act, H.R. 4312, 119th Cong. (2025) (proposing a limited antitrust exemption for the NCAA and member conferences to enforce compensation caps and eligibility rules).
[37] Universal Camera Corp. v. Nat’l Lab. Rels. Bd., 340 U.S. 474, 488 (1951) (holding that a substantial evidence review requires consideration of the “whole record,” including evidence that “fairly detracts” from the agency’s findings).
[38] Id.
[39] See Peretti, supra note 1, at 439.
[40] See Katharine Ross, The Potential Role of ADR in NCAA Academic Fraud Cases, 2020 J. Disp. Resol. 487, 491 (2020).
[41] Id.
[42] Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 199 (1988) (White, J., dissenting).
[43] See Peretti, supra note 1, at 439.