     14-1411-cv
     Cohane v. Nat’l Collegiate Athletic Ass’n

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER
     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
     after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
     this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
     party must cite either the Federal Appendix or an electronic database (with the notation “summary
     order”). A party citing a summary order must serve a copy of it on any party not represented by
     counsel.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 15th day of May, two thousand fifteen.
 4
 5   PRESENT:
 6              CHESTER J. STRAUB,
 7              BARRINGTON D. PARKER,
 8              SUSAN L. CARNEY,
 9                                 Circuit Judges.
10   __________________________________________
11
12   TIMOTHY M. COHANE,
13
14                                  Plaintiff-Appellant,
15
16                                  v.                                                      No. 14-1411-cv
17
18   NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
19   TOM HOSTY, STEPHANIE HANNAH, JACK
20   FRIEDENTHAL, WILLIAM R. GREINER, DENNIS
21   BLACK, ROBERT ARKEILPANE, WILLIAM MAHER,
22   ERIC EISENBERG, MID AMERICAN CONFERENCE,
23   AND ROBERT FOURNIER,
24
25                    Defendants-Appellees.*
26   __________________________________________
27
28   FOR PLAINTIFF-APPELLANT:                                     SEAN O’LEARY, Sean O’Leary &
29                                                                Associates, PLLC, Brooklyn, NY.
     *
         The Clerk of Court is respectfully directed to amend the official caption to conform with the above.
 1
 2   FOR DEFENDANTS-APPELLEES                           WILLIAM ODLE, Shook, Hardy, & Bacon,
 3   NATIONAL COLLEGIATE ATHLETIC                       LLP, Kansas City, MO (Lawrence J.
 4   ASSOCIATION, HOSTY, HANNAH, AND                    Vilardo, Connors & Vilardo, LLP, Buffalo,
 5   FRIEDENTHAL:                                       NY, on the brief).
 6
 7   FOR DEFENDANTS-APPELLEES                           JEFFREY W. LANG, Assistant Solicitor
 8   GREINER, BLACK, ARKEILPANE,                        General (Barbara D. Underwood, Solicitor
 9   MAHER, AND EISENBERG:                              General, and Andrea Oser, Deputy
10                                                      Solicitor General, on the brief), for Eric T.
11                                                      Schneiderman, Attorney General of the
12                                                      State of New York, Albany, NY.
13
14   FOR DEFENDANTS-APPELLEES                           R. TODD HUNT (Aimee W. Lane, on the
15   MID AMERICAN CONFERENCE                            brief), Walter Haverfield LLP, Cleveland,
16   AND FOURNIER:                                      OH.
17
18          Appeal from a judgment of the United States District Court for the Western District
19   of New York (Skretny, C.J.).

20          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
21   ADJUDGED, AND DECREED that the March 28, 2014 judgment of the District Court
22   is AFFIRMED.

23          Plaintiff Timothy M. Cohane appeals the District Court’s grant of summary judgment
24   to defendants—the National Collegiate Athletic Association (“NCAA”), the Mid American
25   Conference (“MAC”), and certain NCAA and MAC employees and/or affiliates, as well as
26   certain employees of Cohane’s former employer, the State University of New York at
27   Buffalo (“SUNY Buffalo”). In two suits that were consolidated at summary judgment,
28   Cohane claimed, under 42 U.S.C. § 1983, that defendants acted together to deprive him of
29   his liberty interest in his reputation without due process of law in violation of the Fourteenth
30   Amendment to the U.S. Constitution. Cohane also claimed that the NCAA and its
31   associated individual defendants (the “NCAA Defendants”), and the MAC and its employee
32   Robert Fournier (the “MAC Defendants”), tortiously interfered with his contracts with
33   SUNY Buffalo in violation of New York law.



                                                    2
 1          All claims stemmed from defendants’ investigations into alleged violations by Cohane
 2   of NCAA and/or MAC rules. Cohane resigned from SUNY Buffalo during the course of
 3   the investigations and eventually was issued a “show-cause” order by the NCAA’s
 4   Committee on Infractions. The order stipulated that if Cohane sought “employment or
 5   affiliation in an athletically related position at an NCAA member institution” during a certain
 6   defined period of time, he and the institution would be “requested to appear before the . . .
 7   Committee on Infractions to consider whether the member institution should be subject to
 8   [certain NCAA] show-cause procedures . . . , which could limit the coach’s athletically related
 9   duties at the new institution for a designated period.” Ex. N to Decl. of David J. State at 19-
10   20, Cohane v. Greiner, No. 04-cv-943 (W.D.N.Y. Feb. 28, 2011), ECF No. 196-15. The show-
11   cause order was stayed pending the outcome of Cohane’s appeal to the NCAA Appeals
12   Committee. The Appeals Committee modified the order to terminate on the date of the
13   Appeals Committee’s decision, with the result that the order was stayed for the duration of
14   its term.

15          On defendants’ motions for summary judgment, the District Court, accepting in
16   substantial part the magistrate judge’s Report and Recommendation, granted judgment in
17   defendants’ favor. Cohane timely appealed. We assume the parties’ familiarity with the
18   underlying facts and the procedural history of the case, to which we refer only as necessary
19   to explain our decision.

20          We review a district court’s grant of summary judgment de novo. Segal v. City of New
21   York, 459 F.3d 207, 211 (2d Cir. 2006). Summary judgment is warranted when “the movant
22   shows that there is no genuine dispute as to any material fact and the movant is entitled to
23   judgment as a matter of law.” Fed. R. Civ. P. 56(a). When the nonmoving party will bear
24   the burden of proof at trial, the moving party can satisfy its burden at summary judgment by
25   “pointing out to the district court” the absence of a genuine dispute with respect to any
26   essential element of its opponent’s case: “a complete failure of proof concerning an essential
27   element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex
28   Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).


                                                        3
 1          While “[a] person’s interest in his or her good reputation alone, apart from a more
 2   tangible interest, is not a liberty or property interest sufficient to invoke the procedural
 3   protections of the Due Process Clause or create a cause of action under [42 U.S.C.] § 1983,”
 4   the loss of reputation may be the basis for a constitutional claim “if that loss is coupled with
 5   the deprivation of a more tangible interest.” Patterson v. City of Utica, 370 F.3d 322, 329-30
 6   (2d Cir. 2004). To prevail on such a procedural due process claim—often called a “stigma-
 7   plus” claim—a plaintiff must show “(1) the utterance of a statement sufficiently derogatory
 8   to injure his or her reputation, that is capable of being proved false, and that he or she claims
 9   is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff’s
10   status or rights.” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (internal quotation marks
11   omitted). Crucially, “the ‘plus’ imposed by the defendant must be a specific and adverse
12   action clearly restricting the plaintiff’s liberty—for example, the loss of employment, or the
13   termination or alteration of some other legal right or status.” Velez v. Levy, 401 F.3d 75, 87-
14   88 (2d Cir. 2005) (citation and other internal quotation marks omitted).

15          Cohane argues that notwithstanding the fact that the show-cause order imposed by
16   the NCAA Committee on Infractions was stayed for the duration of its term, the order
17   created a material burden constituting a “plus” by impairing his prospects of receiving
18   another head coaching position. Cohane argues that the inclusion of his name and violations
19   in the NCAA’s permanent personnel records created the requisite material burden as well,
20   also because of its expected effects on his job prospects. But we have explained that
21   “deleterious effects flowing directly from a sullied reputation, standing alone, do not
22   constitute a ‘plus’ under the ‘stigma plus’ doctrine.” Sadallah v. City of Utica, 383 F.3d 34, 38
23   (2d Cir. 2004) (alterations and other internal quotation marks omitted). When, as here, the
24   loss of job prospects is merely a “normal repercussion[] of a poor reputation,” it cannot be
25   the basis for a stigma-plus claim. Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994).

26          Further, Cohane has not presented evidence that these purported material burdens
27   were “state-imposed.” See Vega, 596 F.3d at 81. To show that a private entity acted as a
28   state actor through joint activity with the state, a plaintiff must show that the private entity
29   and the state “share[d] some common goal to violate the plaintiff’s rights,” Betts v. Shearman,
                                                     4
 1   751 F.3d 78, 85 (2d Cir. 2014), and that “the state was involved with the activity that caused
 2   the injury giving rise to the action,” Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d
 3   255, 257-58 (2d Cir. 2008) (per curiam) (emphasis and internal quotation marks omitted).
 4   Cohane has failed to raise a genuine dispute as to whether the NCAA, a private entity, and
 5   SUNY Buffalo, a state actor, shared a common goal to violate his rights, let alone that they
 6   shared such a goal with respect to the decision to impose the show-cause order or to place a
 7   record of Cohane’s infractions in the NCAA’s personnel files. Because there was no
 8   evidence of a material state-imposed burden or state-imposed alteration of Cohane’s status
 9   or rights, the District Court properly granted summary judgment in defendants’ favor on
10   Cohane’s due process claims.

11          Finally, the only tortious interference claims at issue on this appeal are those against
12   the MAC Defendants. See Cohane v. Nat’l Collegiate Athletic Ass’n, 215 F. App’x 13, 15 (2d Cir.
13   2007) (summary order) (affirming the dismissal of Cohane’s tortious interference claims
14   against the NCAA Defendants). Under New York law, “[t]ortious interference with contract
15   requires the existence of a valid contract between the plaintiff and a third party, defendant’s
16   knowledge of that contract, defendant’s intentional procurement of the third-party’s breach
17   of the contract without justification, actual breach of the contract, and damages resulting
18   therefrom.” Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 (1996) (citations
19   omitted). Cohane now abandons his argument of tortious interference with his employment
20   contract and focuses instead on the contract he entered into with SUNY Buffalo in effecting
21   his resignation. But Cohane fails to raise a genuine dispute as to whether that resignation
22   contract was actually breached. The District Court properly granted judgment in favor of
23   the MAC Defendants on Cohane’s tortious interference claims.

24                                                 * * *
25          We have considered Cohane’s remaining arguments and find them to be without
26   merit. We AFFIRM the judgment of the District Court.

27                                                 FOR THE COURT:
28                                                 Catherine O’Hagan Wolfe, Clerk of Court

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