12/26/1991

UCCSN Board of Regents' Meeting Minutes
December 26-27, 1991








12-26-1991

Pages 48-61



BOARD OF REGENTS

UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA

December 26, 1991



The Board of Regents met on the above date in the System

Administration building, 1621 E. Flamingo Road, Suite 15-A,

Las Vegas and the System Administration building, 2601 Enter-

prise Road, Reno, in a special teleconference meeting.



Members present:



Las Vegas : Mrs. Carolyn M. Sparks, Chairman

Mrs. Shelley Berkley

Mr. Joseph M. Foley

Dr. Lonnie Hammargren

Mrs. June F. Whitley



Reno : Dr. James Eardley

Mrs. Dorothy S. Gallagher

Mr. Daniel J. Klaich



Gardnerville : Dr. Jill Derby



Others present : Chancellor Mark H Dawson, Reno

President Anthony Calabro, WNCC, Reno

President Joseph Crowley, UNR, Reno

President Robert Maxson, UNLV, Las Vegas

Vice President John Irsfeld, UNLV, Las Vegas

Mr. Donald Klasic, General Counsel, Las Vegas

Mr. Bradley Booke, Assistant General Counsel,

Las Vegas

Mr. Ron Sparks, Vice Chancellor, Reno

Mrs. Karen Steinberg, Acting Vice Chancellor,

Reno

Ms. Mary Lou Moser, Secretary, Reno



Chairman Carolyn Sparks called the meeting to order at 10:00 A.M.

She stated that the U. S. District Court has ordered the NCAA to

name the System as a party in the case of NCAA vs. Miller, et al

by no later than December 24, 1991. The court also ordered that

the System would have 10 days after service of the NCAA's notice

to the System that it was a party in the law suit to decide

whether the System wished to be in the case as either a plaintiff

or a defendant. She stated the purpose of this meeting was to

discuss that order and determine how the System should proceed.



General Counsel Klasic stated this was an unusual meeting in that

a lawyer/client conference normally is done in private, but be-

cause of the Nevada Open Meeting Law, the discussion is to take

place in open session. Mr. Klasic acknowledged the presence of

other counsel representing parties in the litigation which was

also unusual, and that they may wish to lobby the Board during

the meeting.



Mr. Klasic related that the 1991 Nevada State Legislature had

enacted Chapter 55, Statutes of Nevada 1991, which compels the

NCAA to enter into due process procedures before it can impose

sanctions upon institutions or require institutions to impose

sanctions upon employees. On or about November 12, 1991, the

NCAA filed a law suit challenging the validity of that law.

They made four claims:



1) That Chapter 55 constituted a burden on interstate

commerce by attempting to control the activities of a

national organization through a Nevada statute.



2) A violation of the First Amendment, interfering with

the NCAA's members to clearly associate under their

own rules.



3) A violation of the Fourteenth Amendment by forcing the

NCAA to be subjected to liability under a vague and

over broad statute.



4) A violation of the U. S. Constitution prohibition, the

impairment of contract, in this case the obligations

of the NCAA membership to abide by their own rules and

regulations.



Particularly, they are claiming that the NCAA membership

have agreed to uniformly apply the rules to everyone and

if this law is upheld, and the laws of other states are

also upheld, in point of fact this would deny a level

playing field to the NCAA membership because there would

be in essence, anywhere from 1 to 50 different sets of

rules.



(Dr. Hammargren entered the meeting.)



Mr. Klasic continued that at the present that there is due proc-

ess legislation in Illinois, Nebraska, Florida, as well as here

in Nevada. California, Kansas and Minnesota are all considering

such legislation and the procedures are a little different in

each such case. The NCAA is seeking a declaration that Chapter

55 is invalid, or an injunction against the defendants preventing

them from enforcing or using this law.



Mr. Klasic stated there are a number of defendants, one of which

was Governor Miller, because of the Eleventh Amendment to the

Constitution which provides that a state or state agency may not

be sued in Federal Court either at law or in equity. There is a

case from the U. S. Supreme Court which indicates that State Of-

ficials can be sued in their official capacity for prospective

injunction relief, and that is why Governor Miller has been named

in this particular case. In addition, Mr. Klasic stated they had

also named former, or past, employees of UNLV: Jerry Tarkanian,

Tim Grgurich, Ron Ganulin and Shelley Fisher. Mr. Ganulin is no

longer with UNLV.



Mr. Klasic continued that a motion for preliminary injunction was

filed by the NCAA and hearing was set for December 19, 1991.

Either at or prior to that meeting the Attorney General moved to

have Governor Miller removed from the law suit. An employee of

UNLV, Mr. Mike Alsup, moved to intervene into the lawsuit. And

at least one person, either in a motion or in a brief, brought

up whether UNLV was an indispensable party. At the hearing, the

judge asked a number of questions and the NCAA attorney answered

that the NCAA does not act directly against individual employees

of the College or University involved with the NCAA. Instead,

it makes the demand or request for the institution to so act.

On that basis the judge concluded that UNR and UNLV were indis-

pensable parties under Rule 19 of the Federal Rules of Civil

Procedure.



Continuing, Mr. Klasic related that the judge then took a number

of actions which are found in the minutes of the court which were

filed on December 20, 1991. The judge granted Mr. Alsup's motion

to intervene; he did not decide whether the Governor should be

removed, but will set a briefing schedule and decide that later.

The judge then stated:



"The court finds that all regulations of the NCAA, which

applied to members are directed towards the respective in-

stitutions and pursuant to Rule 19, Federal Rules of Civil

Procedure, that the University of Nevada is an indispensa-

ble party to this litigation. It is ordered that the Uni-

versity of Nevada (Board of Regents) be joined as a party

defendant, that defendant shall be served with a copy of

this order and the original complaint within five days of

this date. The University of Nevada (Board of Regents) has

ten days thereafter in which to indicate to the plaintiff

whether they wish to be joined as a party plaintiff or

party defendant. The plaintiff is then granted a leave

of court to file and serve an amended complaint properly

naming this party."



Mr. Klasic stated the court stated it found no immediate harm in

order to issue an injunctive relief, and indicated the matter

could be raised at the hearing on the merits, set up a briefing

or discovery schedule, and finally ordered that the matter would

be set for a hearing on the merits for trial Friday, February 28,

1992 before the court in Las Vegas, Nevada.



Mr. Klasic stated that on December 24, 1991 he was served with

Notice of Order Requiring Joinder of Necessary Parties, sent by

the attorneys for the NCAA. The ten days begin that day and a

decision must be made by January 3, 1992.



Mr. Foley stated he would propose a motion for the Board to abide

by the court's order, to leave their true identity in this case

without necessarily enmeshing the Board in every side issue that

may be between plaintiffs and defendants at this time.



Mr. Foley moved that the Regents enter their appearance in this

action as intervenors, and that they do so within the time al-

lloted; and to request an extension of time until about January

10, 1992 to file any motions or pleading. Mr. Klaich seconded.



Mr. Foley stated that the intervention is covered by the Federal

Rules of Civil Procedure 24. He read a portion of the rule he

felt was pertinent:



Rule 24, part c, "....when the constitutionality of a act

of Congress affecting the public interest is drawn in

question in any action in which the United States or an

officer or agency or employee thereof is not a party, the

court shall notify the Attorney General of the United States

as provided in Title 28 USC, Section 2403. When the con-

stitutionality of any statute of the state affecting the

public interest is drawn in question in any action in which

the state or agency, officer or employee thereof, is not a

party, the court shall notify the Attorney General of the

State of Nevada as provided in 28 USC, Section 2403. A

party challenging the constitutionality of legislation

should follow the attention of the court to its conse-

quential duty, but failure to do so is not a waiver of the

constitutional right otherwise timely asserted."



Mr. Foley stated this fits the Board's position in that last

Summer the NCAA promulgated a set of substantive and procedural

due process rules. These rules are to be addressed by the NCAA

at their meeting in early January, which is the reason Mr. Foley

asked for an extension of time. If adopted, Mr. Foley suggested

the rules could then be compared with Nevada rules and see what,

if any, differences there are. He stated he felt this motion

would give the Board the greatest latitude possible at this time.



Dr. Derby asked what would happen after the intervenor status and

what the position of the Board would be at that time? Mr. Foley

stated the Regents would be individually named along with the

System, so they would be the clients and have counsel. Counsel

will advise the Board on the process, if the court approves them

to be an intervenor, and the Board would have an opportunity to

review the brief before it was filed.



Dr. Derby asked whether the Board would have the option to par-

ticipate. Mr. Foley stated that is why he has asked to be an

intervenor because the court has ordered us into the case. Dr.

Derby stated she felt it was important to defend the Nevada Gov-

ernor and Legislature, she felt the NCAA was late in developing

due process procedures; and felt the Board should not enter the

case on the side of the NCAA at this time.



Mr. Booke stated that the reform package presently before the

NCAA will be presented at the convention of the NCAA's membership

in January, not to be voted on as an entire package, but is for

comments by all of the membership. The package itself will be

adopted or not as follows: All of the procedural aspects of the

package can be adopted by the Infractions Committee on its own

and is the bulk of the package. The substantive changes in the

package must be adopted by a vote of the membership and will

likely not occur in January, but at some later time, possibly at

a special convention or at a later convention of the membership.



Mr. Klasic stated that as many as 8 of the 11 recommendations

can be made without a vote of the membership. He related that

an NCAA counsel stated that after the NCAA convention had an

opportunity to discuss the recommendations, they plan to meet

with the Infractions Committee to determine which could be im-

plemented as soon as possible.



Mr. Klasic stated that the Board had several options available

to them: 1) file a motion to dismiss on the basis UCCSN is not

truly an indispensable party, 2) Mr. Foley's motion to enter as

an intervenor, and 3) file a motion or an extension of time in

which to determine which side to enter the case until after NCAA

does meet and find out whether the Board is comfortable with that

decision. Mr. Foley stated he wished the Board to file now as an

intervenor before a brief or plea is filed. In answer to a ques-

tion from Dr. Derby, Mr. Klasic added that the judge has already

made a decision that the UCCSN is already a party defendant, and

if no decision is made today, UCCSN will automatically be so

considered.



Mrs. Berkley stated that after speaking with Mr. Foley, she did

not feel Rule 24 was applicable, that the Board had been ordered

by the judge to be either a plaintiff or defendant. She stated

she had taken an oath of office to uphold the laws of the State

of Nevada, and the Legislature has passed a law and whether the

Board agrees with the law, it is the law of the State. Mrs.

Berkley stated she felt the Board should enter as a defendant.

She added that the NCAA could change their rules at any time.

Therefore, she would vote against the motion.



In answer to a question from Mr. Klaich, Mr. Booke stated that

Mr. Mike Alsup is an Academic Advisor to the Men's Basketball

program. He was informed that the current parties defendant to

this law suit are Mr. Alsup, Governor Miller (and the Attorney

General has filed a motion to have him dismissed), Mr. Jerry

Tarkanian, Mr. Tim Grgurich, Mr. Ron Ganulin and Ms. Shelley

Fischer. Mr. Klaich asked that if the basis of the suit is to

declare the State statute unconsitutional, why are the individ-

uals involved? Mr. Booke stated there is not a specific al-

legation of unconstitutionality as applied, but it was his

understanding that the reasoning behind naming of the individual

defendants is that those individuals made specific demands that

the Nevada due process statute be followed to the exclusion of

the NCAA enforcement procedures in the pending UNLV infractions

case. Mr. Alsup, not named in the suit, has served to intervene

on the same basis.



Mr. Klaich stated he understood Judge Mc Kibben's point that the

NCAA requests that member institutions "punish" individuals

rather than imposing any sanctions themselves. However, he

wondered whether this lawsuit concerned any particular incident

or was about an unconstitutional statute? Mr. Booke stated the

prayer for relief in the complaint is a declaration of the

unconstitutionality of the statute, but to make clear the the

mechanism by which the NCAA operates against individuals; if the

Infraction Committee finds an individual employee to have com-

mitted NCAA violations, then it orders the institution to impose

a penalty against the individual. If the penalty is not imposed,

then the Infractions Committee reserves to right to penalize the

institution further. He related that was, in fact, the basis

upon which this year's Men's Basketball Team is not permitted

to participate in post-season competition or to appear on tele-

vision. The penalty was ordered imposed against the institution

in 1977; the penalty was to suspend Coach Tarkanian for two

years, but because of legal proceedings the institution was

unable to impose that penalty. As a consequence, last October

(1990), the Infractions Committee went back and imposed an addi-

tional penalty against the institution as a substitute for fail-

ing to impose the penalt against Coach Tarkanian.



Mr. Klaich asked who was paying for the attorneys for all these

defendants? Mr. Klasic stated that under NRS Chapter 41, UCCSN

is obligated to give a defense to any employee who is sued as a

result of activities arising out of his official duties. In

this case, these particular employees are claiming that they are

defending themselves as a result of duties they took as basket-

ball coaches, etc., and they are now suffering from the NCAA's

official inquiry, and the NCAA has now gone one step forward

and is suing them for standing up for their due process rights

under the Nevada Statute. Normally, UCCSN would provide a

defense with its own attorneys, but the law does provide that

in the event there is any possibility of a conflict, we can

hire an outside attorney or attorneys to handle the matter for

them and to pay their bill.



Mr. Klasic stated that in this particular instance, two of the

defendants have made what appears to be a timely request for

defense. By law, the individual has 15 days in which to make a

request. Mr. Ganulin was within the time, and Mr. Grgurich made

a request although his expiration time occurred during a holiday

so he has a good argument for having been timely. Mr. Tarkanian

and Ms. Fischer did not make their requests within the allotted

time. UCCSN is not obligated to provide defense for Mr. Alsup

as he has entered the suit as an intervenor. Nonetheless, Mr.

Klasic stated that because UCCSN will have to provide a defense

for Mr. Ganulin and Mr. Grgurich, and in order to show goodwill

and good faith in this matter, UCCSN is prepared to offer a de-

fense to the others as well. He reminded the Board that UCCSN

is encountering a very major budget problem -- perhaps a 12%

cut in funds, or a $23 million cut for FY 92 and a $24 million

cut for FY 93. In the official inquiry, there is a separate

matter in which an obligation has been made to pay these at-

torneys, and UNLV has paid out about $450,000 to defend these

particular individuals. In that regard, Mr. Klasic stated he

was offended by some comments made by some of the attorneys in

this matter about how the University is not defending these

people.



Mr. Klaich asked whether we would be prepared to use UCCSN at-

torneys. Mr. Klasic stated UCCSN would hire one attorney to

represent all the employees in the suit. He related that it

would be the most economical and fair method of proceeding, and

that the interests of all the parties are exactly the same; is

the law constitutional or not? He added that he had received

some resistance, and did not know whether they would be willing

to do that or not; however, he felt UCCSN is obligated to provide

a defense in the case of Mr. Ganulin and Mr. Grgurich, and they

are prepared to offer a defense with respect to the other indi-

viduals, but with one attorney representing them all.



Mr. Klaich then asked why the individual members of the Board of

Regents are parties to this action. Mr. Klasic stated it had to

do with the Eleventh Amendment. The State of Nevada, or a state

agency, cannot be named a party defendant in a Federal action,

either in law or in equity. The U. S. Supreme Court has ruled

that, in point of fact, if it is only applicable to injunctive

relief and not to money damages, an appropriate applicable State

Official must be named as the party.



Mrs. Berkley stated that, notwithstanding the budget crunch, no-

where in the law suit does it refer to whether funds are avail-

able. Mr. Klasic stated that UCCSN could not provide the defense

because there may be a conflict down the road between UCCSN and

these four individuals. He added that he could find no conflict

between the individuals themselves, and he stated that under

normal circumstances only one attorney from his office would

have represented them anyway. However, not being able to do

that because of a possible conflict later on, UCCSN would provide

one attorney and pay the fees for that one attorney, rather than

five.



Mr. Klaich stated he had serious reservations about whether the

court order is correct or incorrect; however, his opinion is

irrelevant. He added that it appears that the judgment is in-

correct in saying UCCSN is indispensable parties because it is

a declaratory relief action, and, it does not involve any

specific request to issue any sanctions against any specific

party and therefore he has a serious question as to why UNR and

UNLV are indispensable parties. These Universities are not

requested to take any specific action and therefore, he stated

he believed, it was in error, which is irrelevant. He stated

the concept of due process is extremely important to all as a

fundamental part of the legal system that should be carefully

protected. He stated he did not necessarily agree with Regent

Berkley that because he took an oath as a Regent, that he has a

"blind" obligation to defend any statute enacted by the Legis-

lature because, obviously, one of the elements of the independ-

ent judiciary is that statutes may be constitutional or uncon-

stitutional. He stated he felt regardless of the manner in

which the Board entered this preceding that one of the positions

the Board would have to analyze and be prepared to argue is the

fact that this particular statute may be unconstitutional for

the resons presented by Mr. Klasic with respect to the NCAA, or

it may be an unconstitutional invasion of the administrative

prerogatives of the Board of Regents.



Mr. Klaich stated that he would not want to waive, in any way,

that possible argument. He stated that Regent Foley has proposed

a reasonable method for the Board to become a reasonable party to

the action. Once the Board is subjected to the jurisdiction of

the court, the judge may order whatever he wants. Dr. Derby

questioned what was meant by the judge being able to order

whatever he wanted. Mr. Klaich explained that once you enter an

appearance in a lawsuit, the court has jurisdiction over you,

basically for all purposes. You have one opportunity in your

first appearance before the court to make whatever objections to

the jurisdiction that you might want to make, but once you enter

an appearance, you are there for all purposes. And therefore

the first appearance is very important.



Mr. Klasic stated that Regent Klaich had made a very important

point: not to tie the hands of your attorneys here in terms of

possible actions and defenses. He stated there are about four

options for the Board:



1) Enter on the side of the plaintiff.



2) Enter on the side of the defendant.



3) File a motion to get out of the case on the basis of not

being an indispensable party.



4) Enter in the manner of Regent Foley's suggestion, as

intervenor.



Mr. Klaich questioned that the Board was already a party in the

case. Mr. Klasic stated that the judge had ordered the Board

in as a defendant by reason of being served with the minutes of

the court order, served a copy of the amended complaint, and

should get a decision within 10 days as to whether the Board

would be a defendant or plaintiff, at which time another amended

complaint will be filed naming the Board one or the other, and

he presumed that if no decision is made by the Board, it would

receive an amended complaint naming them as a party defendant.



Mr. Klaich stated he understands this, but is really offended by

it, that his whole concept of the legal system is that if someone

has a "beef" about someone, they file a complaint, go off to a

judge and find out who is right and who is wrong. He added that

he felt the judge has distorted the typical process, and that

although he understands the indispensable parties, that someone

has to sue someone else, then the judge, if he feels the Board

is an indispensable party, could tell the NCAA to sue us, at

which time the Board would be a defendant and could do whatever

they decide to do. Again, he stated he felt that Regent Foley's

suggestion is the most flexible. He explained that joining as

either a plaintiff or defendant is fraught with political un-

knowns; that if the Board joins as a plaintiff it is immediately

aligned with the NCAA and whatever action it decides to take,

and if joined as a defendant the Board is immediately aligned

with the other interests, and he did not think the Board should

be put in that position. He stated he felt the Board should be

put in the position of getting into the case, seeing what it is

about, retaining all alternatives and react accordingly without

being branded as being with one or the other by mere fact of

whether it is a plaintiff or defendant.



Mrs. Gallagher stated that she was in support of Regent Foley's

motion, that it would buy time to give the Board a chance to see

what other facts might come forth. Regent Foley stated that due

process is generic, no matter whose process, and he felt the

Board and its members is in support of that due process. He

added this had been the basis for his decision and he urged the

Board not to become embroiled in the controversy of either side,

but to embroil itself on the side of due process. Mrs. Whitley

stated she agreed. She asked Mr. Booke whether the Board would

abide by NCAA due process rules, or whose? Mr. Book stated that

is the question of the lawsuit, and that the System is in be-

tween, in following the laws of the State of Nevada and the Board

policy which states it will follow all NCAA rules. He added that

the Board may find it has to amend its policy.



Mrs. Berkley asked Mr. Klasic his legal opinion of the Board

being an intervenor. However, she stated that the Board must

be aligned with the Governor and Legislature, that the NCAA does

not pay the bills or buy buildings for the institutions, but the

Legislature does.



Dr. Eardley stated that as a non-lawyer Regent he must depend

upon the Board's Legal Counsel for advice. He related that he

was not called upon as a Regent when the law was developed; that

someone took advantage of the process and was able to have the

bill passed in the Legislature. He related that he understood

two things: 1) that the Board policy states it will abide by

the NCAA rules, which may have to be changed; and 2) that the

NCAA's purpose is to keep an honest collegiate program going,

and he would not want to go out against them when they are try-

ing to put some sense throughout the country on the type of

sports, their legality and how the programs are conducted at

the institutions. He stated he would be willing to intervene

and buy some time, but basically he wanted his Legal Counsel to

give advice.



Mr. Klasic stated that his recommendation is based solely on

legal considerations, not taking political or public relations or

any other factors into consideration, and that it is his duty to

make such recommendations based on only the legal considerations.

He recommended the Board enter the suit on the side of the NCAA

because it would do the least damage to the Board legally. He

related that if the Board is on the defendant's side and this

law is upheld, the system could be hurt very badly by the NCAA,

even up to and including expulsion from that organization. He

continued that even if this law is struck down, and the System

is on the defendant's side, the NCAA would clearly look upon it

with hostility and suspicion, and may even go against the Sys-

tem on pending matters with the NCAA. He stated that if the

Board is on the plaintiff's side and the law is upheld, there

would be no liability from these defendants, and reminded the

Board that in July 1992 the NCAA would still be around, but Mr.

Tarkanian will have resigned and Mr. Grgurich has indicated he

will be leaving. Mr. Ganulin has already resigned. In addi-

tion, he added that if the Board is on the side of the plaintiff

and the law is upheld, there is the possibility of attorneys'

fees, but normally, defendants are not very successful in ob-

taining attorney's fees in civil rights cases. He again stated

the least harmful action, in point of view of legal liabilities,

is to enter the case on the side of the plaintiff. However, he

stated that he would cheerfully act as the Board directs in this

particular matter.



Mr. Booke added that there are pending matters with the NCAA

which could potentially be adversely affected by the position the

Board takes. He related that the mmost significant matter is the

pending problem involving the Women's Track and Field program at

UNLV. The situation is that they have not met minimum participa-

tion requirements and face possible penalties of some of the

other programs, not just this one, which could amount to all of

the programs being taken out for 1992-93. The violation is al-

ready noted and found and UNLV is now on appeal before the NCAA

Council, which will be heard on January 5, 1992. Mr. Klaich

questioned whether which side the Board takes could have an

effect on the pending matters before the NCAA. Mr. Booke replied

that it could, and that possibility should not be ignored. Mrs.

Berkley questioned whether that was the kind of organization with

which to be aligned, that it was ludicrous to her that the NCAA

would destroy a whole athletic program at UNLV. She stated that

she happened to be at the State Legislature when the law was

voted upon and the Legislators were very angry they were being

threatened by this outside arbitrary, capricious bully. Mr.

Booke related that as Legal Advisor in responding to Mr. Klaich's

question, that if you do x and it is contrary to someone else,

they respond, and that it is simply a reality that needs to be

addressed.



President Joseph Crowley stated that as indicated by Mr. Booke

the matter of the Women's Track Team is before the NCAA Council,

and elected body of the NCAA membership, and that he is a member

of the Council. He stated that he did not believe the Council

has acted, or would act "arbitrarily and capricously", or in a

bully-like fashion, that, in fact, the rule is very clear and

could have been applied by the Council in its October meeting,

and instead it found a way to allow UNLV to pursue a waiver of

the rule before the Council at its January meeting. He stated

the behavior was far from arbitrary and capricious in manner,

and something they did not have to do because the rule is clear,

but it took that action because it wished to make available to

the institution to seek that waiver.



Nevada State Assemblyman Bob Price stated that he had attended a

National Conference for State Legislators in August, 1991, and

one of the panel sessions was on collegiate athletics. Panel

members were an attorney and acting Director of NCAA and a

University President who was on the NCAA Executive Board. Mr.

Price related there was a great deal of interest in the session

from Legislators whose states have similar legislation to that of

Nevada, and a number whose states are contemplating such legisla-

tion. He stated a number of the Legislators were quite upset

with the arrogant attitutde of the panel members who held the

position that states do not have the constitutional or legal

right to have any regulation over the NCAA. Mr. Price pointed

out to them that many businesses, such as banking, transporta-

tion, etc., doing business nationwide currently deal with many

different state regulations. He added that in the State of

Kansas, where the NCAA is headquartered, NCAA petitioned to not

pay propety tax on the basis of being an educational organiza-

tion. Mr. Price pointed out that policy is overwritten by law,

law is overwritten by the constitution of the State, and Federal

law overrides the State laws, and that he believes the State has

the right to establish laws which will affect organizations such

as the NCAA. He urged the Board to strongly consider upholding

the State laws. He added that if the NCAA continues along the

same lines as in the past, he felt the organization would not be

allowed to exist much longer.



President Maxson stated he appreciated President Crowley's re-

marks, and added that UNLV would be judged by 22 members of its

peers and felt they would be treated fairly. He added that the

Council had leaned over backwards to help UNLV through the

matter and felt it would be resolved and would not be a major

issue. The President stated he felt it would be a mistake to be

a plaintiff in the case, and related that due process must be up-

held. However, he said, that they are frustrated, that they need

to be spending time on academics. He agreed that Regent Foley's

suggestion was the best avenue at this time so that both parties

can work together to find a solution to the matter.



Regent Derby stated that with the important decisions facing the

Board, the matter needed to be solved quickly, however, she felt

that taking this "non-position" will "drag out" the case, which

will dominate the Board's time.



Mr. Foley stated he felt that was a misunderstanding, that the

Board is taking a position in support of due process, and that

after reading the NCAA proposed rules he feels they will closely

follow the Nevada law.



Regent Hammargren stated he felt the Board should follow State

law, and should enter the suit as a defendant.



Mr. Alan Burkhalter, attorney for Mr. Jerry Tarkanian, stated he

had spent 120 hours studying the State law, and felt that it is

consititutional. He related he did not think this suit was a

matter of choosing between academics and athletics, but was in

supporting fundamental fairness and allowing persecution of

Nevada citizens. He reminded the Board that the NCAA had visit-

ed the State of Nevada before, and two lower courts had found

the NCAA had violated their rules. He stated that two years ago

Congress had directed the NCAA Infractions Committee to "clean up

its act" but felt the NCAA had not done so. He urged the Board

to enter the suit on the side of fairness, which is, in his

opinion, as a defendant.



President Crowley spoke in support of Mr. Foley's motion, and

recapped the discussion thus far:



There is a lot we don't know, and can't know for a while.



There have been well-spoken comments on supporting the Legis-

lature and the Governor.



There is also the question of whether the Governor will be

excused from this case.



There is the policy of the Board requiring that the insti-

tutions abide by the NCAA rules.



The institutions incorporate that policy into contracts for

coaches.



There hasn't been much discussion about what the State's

law, if any, would be on the way that the two insitutions

do business.



It is not known what the future of due process in NCAA will

be. Counsel has provided an analysis which suggests that

the current due process proposed rules are in keeping with

the consitutional requirements for administrative due proc-

ess, which will be intensely discussed at the NCAA conven-

tion in January and by the Council, as well.



On the question of the continued membership of the two

institutions in the NCAA, it is a voluntary organization,

established and continuing to exist principally, to

regulate intercollegiate athletics. It is an association

that is devoted, virtually by unanimous support of its

membership, to the concept of a level playing field. It

believes there must be a level playing field in regulation

and enforcement, since that is primarily why it is in

business. That is why it has brought suit in the State of

Nevada because if it cannot enforce the same set of re-

quirements across the 50 states, then it has two choices:

1) it can go out of business, or 2) the institutions in

states where special protection is required by State law

can be removed from the Association.



President Crowley stated that there are some considerable stakes

involved and he felt the motion buys some time to review the

complex questions facing the System.



After a reading of the motion stated above, and a clarification

by Mr. Klasic, which was agreed upon by Mr. Foley and Mr. Klaich,

the motion now reads:



Mr. Foley moved that the Board enters an appearance in this

action as intervenors within the time allotted. Mr. Klaich

accepted the clarification.



Dr. Hammargren moved to amend the motion that if the Board is

not judged as intervenors, that it be judged as a defendant.

Mrs. Berkley seconded.



Upon roll call vote the amendment failed:



Aye: Berkley, Derby, Hammargren, Whitley

Nay: Eardley, Foley, Gallagher, Klaich, Sparks



The original motion carried upon roll call vote:



Aye: Eardley, Foley, Gallagher, Klaich, Whitley, Sparks

Nay: Berkley, Derby, Hammargren



Regent Foley suggested that Board members submit their thoughts

to Legal Counsel, that he draw up a position paper for review

by the Board. In answer to a question from Regent Derby, Mr.

Klasic stated the usual procedure is for the attorney to prepare

a statement and present it to the client. The answer must be

forwarded to the court by January 3, 1992. In this matter the

Board has until January 24, 1992 to file any other motions it

may care to.



Regent Klaich suggested that the Chairman, Chancellor and Counsel

police the law suit. The Chairman may wish to appoint other

Regents to this group; however, he stated he would not be avail-

able. He added that special meetings of the Board to discuss all

the "twists and turns" of the lawsuit is an enormous waste of

time and is not beneficial. There are a great many other matters

for the Board to address, such as a serious budget shortfall in

the State.



Chairman Sparks stated the matter is now turned over to Legal

Counsel to continue handling the case.



The meeting adjourned to 12:00 noon.



Mary Lou Moser

Secretary to the Board

12-26-1991