Bowers v. National Collegiate Athletic Ass'n

346 F.3d 402

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

University of Massachusetts Amherst and Delaware State University, Appellants in 02-3236

Kathleen^* Bowers, 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, 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, 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.

No. 01-4226.

No. 01-4492.

No. 02-1789.

No. 02-3236.

United States Court of Appeals, Third Circuit.

Argued July 8, 2003.

Filed August 20, 2003.

COPYRIGHT MATERIAL OMITTED

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 So. 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, N.J. 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, N.J. 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, N.J. 08053-3105, Attorneys for Appellant Delaware, State University.

Peter L. Frattarelli, Archer & Greiner, One Centennial Square P.O. Box 3000 Haddonfield, N.J. 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, N.J. 07102, Attorneys for Appellant University of Massachusetts.

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

BEFORE: NYGAARD, SMITH, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

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.¹

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.² 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...