Cohane v. National Collegiate Athletic Association et al

Filing 24

Judge Richard G. Stearns: ORDER entered granting in part and denying in part 8 Motion to Dismiss. "Defendants motion to dismiss the Complaint is ALLOWED IN PART as to Hosty, Price, and Cooper for lack of personal jurisdiction, and DENIED IN PART as to the NCAA for failure to state a claim for which relief may be granted. The NCAA will have until June 9, 2014 to file any motions to dismiss the claims on substantive grounds." (RGS, int2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-10494-RGS
TIMOTHY M. COHANE
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, THOMAS HOSTY,
DAVID PRICE, SHEPARD COOPER, and DOES 1-50
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
May 8, 2014
STEARNS, D.J.
This diversity action is the latest chapter in a long-running dispute
between Timothy Cohane and the National Collegiate Athletic Association
(NCAA) over the circumstances of his 1999 departure as head coach of the
men’s basketball team at State University of New York at Buffalo (SUNY). 1
In 2000, the NCAA Committee on Infractions (COI) found that Cohane had
violated various NCAA recruiting rules while coaching at SUNY. Cohane
alleges that in August of 2001, after a hearing before the NCAA Infractions
In 2003 and 2004, Cohane sued various officers of SUNY Buffalo and
the NCAA in the United States District Courts for the Eastern and Western
Districts of New York over the loss of his position. See Cohane v. Greiner,
04-CV-00943 (E.D.N.Y), and Cohane v. NCAA, No. 04-CV-0181 (W.D.N.Y.).
The two cases were consolidated and decided in March of 2014, when
defendants’ motions for summary judgment were granted. See Cohane v.
NCAA, 2014 WL 1279151 (W.D.N.Y. Mar. 27, 2014).
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Appeal Committee (IAC) in Boston, the individual defendants represented
to the IAC that Cohane had presented false evidence. These statements
were later memorialized in a 2006 NCAA memorandum, 2 which was
distributed to various university administrators. Cohane learned of these
statements only in October of 2010, when he was provided a copy of the
memorandum.
Cohane alleges that the statements and the memorandum impugned
his integrity, harmed his reputation, and made it impossible for him to ever
again be hired as a head coach in NCAA Division One basketball. He asserts
four claims: defamation (slander) (Count I); defamation (libel) (Count II);
intentional interference with advantageous relations (Count III); and
negligence (Count IV).

The NCAA moves, pursuant to Fed. R. Civ. P.

12(b)(6), to dismiss the Complaint for failure to state a claim for which relief
may be granted. The individual defendants move, pursuant to Fed. R. Civ.
P. 12(b)(2), to dismiss the Complaint for lack of personal jurisdiction.
Defendants also suggest that this case may be subject to a res judicata bar
once the judgment in the New York cases becomes final.
The memorandum set out the position of the COI on certain
recommendations made to the IAC regarding improvements to be made in
the NCAA administrative appeals process. Cohane’s case was referenced as
an example of an appeals hearing where new evidence, “some of which was
clearly false,” was offered and received. Defs.’ Ex. D at 3.
2

2

Claims as to the NCAA
The NCAA contends that as an unincorporated association, it cannot
be party to a lawsuit in Massachusetts. 3 See Save the Bay, Inc. v. Dep’t of
Pub. Utilities, 366 Mass. 667, 675 (1975). Although the court previously
relied on this reasoning in denying Cohane’s motion to remand the case to
the state court, upon reconsideration, the court believes that rationale of
Diluzio v. United Elec., Radio & Mach. Workers of Am., Local 274, 386
Mass. 314 (1982), extends to the NCAA.
In

Diluzio,

the

Supreme

Judicial

Court

(SJC)

held

that

unincorporated labor unions were legal entities capable of being sued in
their own name.
Structurally and functionally, a labor union is an institution
which involves more than the private or personal interests of its
members. It represents organized, institutional activity as
contrasted with wholly individual activity. This difference is as
well defined as that existing between individual members of the
union. The union’s existence in fact, and for some purposes in
law, is as perpetual as that of any corporation, not being
dependent upon the life of any member. It normally operates
under its own constitution, rules and by-laws which, in
controversies between member and union, are often enforced
by the courts. The union engages in a multitude of business and
The NCAA does not challenge the Complaint on personal jurisdiction
grounds, and concedes that “the Complaint could be arguably construed as
alleging . . . that the NCAA is subject to general jurisdiction in the
Commonwealth of Massachusetts.” Defs.’ Mem., Dkt. # 9 at 8.
3

3

other official concerted activities, none of which can be said to
be the private undertakings of the members.
Id. at 316, quoting United States v. White, 322 U.S. 694, 701-702 (1944).
Thus,
[i]t would be unfortunate if an organization with as great power
as (a labor union) has in the raising of large funds and in
directing the conduct of (its) members in carrying on, in a wide
territory, industrial controversies and strikes, out of which so
much unlawful injury to private rights is possible, could
assemble its assets to be used therein free from liability for
injuries by torts committed in course of such strikes.
Diluzio, 386 Mass at 318, quoting United Mine Workers v. Coronado Coal
Co., 259 U.S. 344, 388-389 (1922). The SJC concluded that “our common
law rule that labor unions as unincorporated voluntary associations are not
legal entities for the purpose of suing or being sued is [not] suited to present
conditions.” Diluzio, 386 Mass. at 314.
Although the SJC limited its holding to unincorporated labor unions
and left open the status of other unincorporated associations, Diluzio, 386
Mass. at 319 n.6, the rationale of Diluzio has since been extended to include
unincorporated associations that operate independently from its members.
In Northbrook Excess & Surplus Ins. Co. v. Med. Malpractice Joint
Underwriting Ass’n of Massachusetts, 900 F.2d 476 (1st Cir. 1990), the

4

Court found that Medical Malpractice Joint Underwriting Association (JUA)
was a jural entity despite its unincorporated status. Id. at 479-480.
We think that the [Diluzio] court’s rationale is applicable in this
case. As an involuntary association created by legislative
mandate, the JUA differs significantly from the aggregations of
individuals pursuing a common purpose contemplated by the
old common law rule.
It is a non-profit underwriting
association which issues policies in its own name and divides
fixed profits among its members according to an established
formula. Its existence is not dependent on the life of any
member but is at the prerogative of the legislature. It engages
in general malpractice underwriting work which represents
organized, institutional activity as contrasted with wholly
individual activity. The JUA, like the labor union under
consideration in Diluzio, shares many of the institutional
characteristics of incorporated entities which have jural status.
Id. at 480 (quotation marks and citations omitted).
The NCAA also “shares many of the institutional characteristics of
incorporated entities which have jural status.”

Id.

It is a national

organization whose members “includ[e] virtually all public and private
universities and 4-year colleges conducting major athletic programs in the
United States.”

NCAA v. Tarkanian, 488 U.S. 179, 183 (1988).

It

promulgates and enforces rules “governing the conduct of the intercollegiate
athletic programs of its members.” Id.

5

The NCAA’s bylaws provide that its enforcement program shall
be administered by a Committee on Infractions.
The
Committee supervises an investigative staff, makes factual
determinations concerning alleged rule violations, and is
expressly authorized to “impose appropriate penalties on a
member found to be in violation, or recommend to the Council
suspension or termination of membership.” In particular, the
Committee may order a member institution to show cause why
that member should not suffer further penalties unless it
imposes a prescribed discipline on an employee . . . . The
bylaws also provide that representatives of member institutions
“are expected to cooperate fully” with the administration of the
enforcement program.
Id. at 183-84 (citations omitted).

As the national governing body for

collegiate athletics, the NCAA is also
an institution which involves more than the private or personal
interests of its members. It represents organized, institutional
activity as contrasted with wholly individual activity. . . . The
[NCAA’s] existence . . . is as perpetual as that of any
corporation, not being dependent upon the life of any member.
It normally operates under its own constitution, rules and bylaws . . . [and] engages in a multitude of business and other
official concerted activities, none of which can be said to be the
private undertakings of the members.
Diluzio, 386 Mass. at 316.

It would similarly be “unfortunate if an

organization with as great power as [the NCAA] has in . . . in directing the
conduct of (its) members . . . could assemble its assets to be used therein
free from liability for injuries by torts committed in course of [its
activities].” Id. at 318.4
Although the court now finds that the NCAA is properly joined as a
defendant in this case, the outcome of Cohane’s motion to remand to state
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6

Claims as to the Individual Defendants
Cohane contends that this court has specific personal jurisdiction
over Thomas Hosty, David Price, and Shepard Cooper because they were
present in Boston in August of 2001 when they made the allegedly
defamatory statements to the IAC. To invoke specific personal jurisdiction,
Cohane must allege sufficient facts to pass a tripartite test. 5
First, the claim underlying the litigation must directly arise out
of, or relate to, the defendant’s forum-state activities. Second,
the defendant’s in-state contacts must represent a purposeful
availment of the privilege of conducting activities in the forum
state, thereby invoking the benefits and protections of that
state’s laws and making the defendant’s involuntary presence
before the state’s courts foreseeable. Third, the exercise of
jurisdiction must, in light of the Gestalt factors, be reasonable.
United Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960
F.2d 1080, 1089 (1st Cir. 1992).
court remains unchanged. For diversity purposes, “an unincorporated
association shall be deemed to be a citizen of the State where it has its
principal place of business and the State under whose laws it is organized.”
28 U.S.C. § 1332(d)(10). Cohane’s Complaint identifies the national office
of the NCAA as being in Indianapolis, Indiana, which does not disturb the
complete diversity of the parties, as Cohane is a resident of Rhode Island.
To exercise jurisdiction over non-resident defendants in a diversity
action, the court “must find contacts that, in the aggregate, satisfy the
requirements of both the forum state’s long-arm statute and the Fourteenth
Amendment.” Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st
Cir. 1994). The Massachusetts Long-Arm Statute is coextensive with the
constitutional limits of due process, ‘Automatic’ Sprinkler Corp. of Am. v.
Seneca Foods Corp., 361 Mass. 441, 443 (1972), and the two inquiries
collapse into one of due process.
5

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Cohane’s assertion of personal jurisdiction fails because his
allegations do not support a finding that the individual defendants
“purposefully avail[ed themselves] of the privilege of conducting activities
in [Massachusetts].”

Id.

The “purposeful availment” “prong is only

satisfied when the defendant purposefully and voluntarily directs his
activities toward the forum so that he should expect, by virtue of the benefit
he receives, to be subject to the court’s jurisdiction based on these
contacts.” United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 624 (1st
Cir. 2001).
In the context of a defamation claim, “purposeful availment” is
determined by where the effects of the defamatory statements are intended
to be felt. Calder v. Jones, 465 U.S. 783, 788-790 (1984); see also Noonan
v. Winston Co., 135 F.3d 85, 90 (1st Cir. 1998) (acknowledging that in
Calder, “the Supreme Court adopted an effects test for determining
purposeful availment in the context of defamation cases”).

In Calder,

Shirley Jones brought suit for libel, inter alia, in California state court
against Iain Calder and John South, two Florida reporters who authored
and edited an article about Jones in Florida that was published in a
magazine with national circulation. The Supreme Court found that the

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California courts could exercise personal jurisdiction over the reporters
because
[t]he allegedly libelous story concerned the California activities
of a California resident. It impugned the professionalism of an
entertainer whose television career was centered in California.
The article was drawn from California sources, and the brunt of
the harm, in terms both of respondent’s emotional distress and
the injury to her professional reputation, was suffered in
California. In sum, California is the focal point both of the story
and of the harm suffered. Jurisdiction over petitioners is
therefore proper in California based on the “effects” of their
Florida conduct in California.
Id. at 788-789. See also Walden v. Fiore, 134 S. Ct. 1115, 1121-1122, 11231124 (2014) (“For a State to exercise personal jurisdiction consistent with
due process, the defendant’s suit related conduct must create a substantial
connection with the forum State[,]” and noting that “[t]he crux of Calder
was that the reputation-based effects of the alleged libel connected the
defendants to California, not just to the plaintiff.”).
In contrast, Cohane does not allege that he felt the defamatory effects
of the individual defendants’ statements to the IAC or the memorandum in
Massachusetts. Cohane is a resident of Rhode Island. If anywhere, the
alleged harm to his reputation would be felt where he is a resident, rather
than where the statements were made.

Because the named individual

defendants’ alleged defamatory statements cannot be said to have been
calculated to cause injury to Cohane in Massachusetts, a federal court
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sitting in diversity cannot properly exercise personal jurisdiction over these
defendants.
ORDER
Defendants’ motion to dismiss the Complaint is ALLOWED IN PART
as to Hosty, Price, and Cooper for lack of personal jurisdiction, and
DENIED IN PART as to the NCAA for failure to state a claim for which
relief may be granted. The NCAA will have until June 9, 2014 to file any
motions to dismiss the claims on substantive grounds.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

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