U.S. Court of Appeals for the Ninth Circuit lets ruling stand that bars felon coaches from NCAA events

By Glenn Minnis | Jun 30, 2017

SAN FRANCISCO — A federal judge panel has sided with the NCAA in a legal dispute where an African-American youth basketball coach charged that the NCAA's policy of banning convicted felons from coaching in its sanctioned events is discriminatory.

In a decision filed on June 27, the U.S. Court of Appeals for the Ninth Circuit ruled that Dominic Hardie “failed to present viable alternatives” in staking his civil rights violation claim.  

In an opinion authored by U.S. Circuit Judge Richard Tallman, the court acknowledged that while Hardie’s expert witness showed that “significant racial disparity exists,” that fact alone did not outweigh other matters the NCAA must concern itself with in protecting its athletes.

“Hardie has offered no evidence to suggest that the increased risk posed by coaches with prior felony convictions, even if small, is immaterial to protecting the safety of young athletes,” the decision said. “Nor does he offer evidence to address the increased risk to preserving the integrity of college athletics from nonviolent crimes like sports bribery.”

In his 2011 filing, Hardie charged the NCAA’s ban prohibited its Division I coaches and recruiters from attending tournaments in which convicted felons coach middle school and high school girls, regardless of the nature of their crime.

His attorneys also noted that prior to that time nonviolent offenders had been allowed to coach at NCAA-sanctioned tournaments if their crime had occurred more than seven years earlier.

After founding his nonprofit in 2009, through which he coaches girls’ basketball, Hardie moved to file suit four years later after the NCAA ban made him ineligible for certain events.  

While claiming violation of his civil rights, Hardie acknowledged that he was convicted of drug possession when he was 23, but he has not been convicted of any new crimes in 15 years.

Since then, he has earned a social work degree, worked as a child protective services staffer and sent 30 girls to college on scholarship through his Houston-based Triple D Hoops AAU program.

As an alternative to what he called the disparate acts brought on by the ban, Hardie presented the courts with two added options: Either return to the pre-2011 policy when only felons convicted of violent crimes were banned, or evaluate coaches with a criminal history on a case-by-case basis.

“The NCAA could have reasonably concluded that the level of risk under the pre-2011 policy was unacceptable, even if no tournament participants had yet been harmed,” the panel said as part of its ruling. “Indeed, Hardie has not rebutted the NCAA’s assertion that under the pre-2011 policy, certain nonviolent felonies, such as financial crimes, possession of controlled substances and sports bribery, posed unreasonable risks for the safety of student-athletes and the integrity of the recruiting process.”

Hardie was represented by Jon Greenbaum of the Lawyers’ Committee for Civil Rights Under Law, Brian R. Matsui, James Sigel, Jack W. Londen and M. Andrew Woodmansee of Morrison & Forerster LLP and Jeffrey M. David of Call & Jensen.

The NCAA was represented by Seth Waxman, former U.S. solicitor general, who has argued at least 75 cases before the U.S. Supreme Court, and Daniel S. Volchok, David M. Lehn and Ari Holtzblatt of WilmerHale.

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