Can There Be Sport Without Attorneys?
We often see opinion pieces decrying the prevalence of attorneys in our society. We certainly live in a litigious era. In the mythical Old West people may have settled disputes with pistols; but in modern America people all too frequently whip out their attorneys and go to court at the first sign of trouble.
We expect to read about legal issues in the sports pages when we are following pro sports. We also recognize that legal issues are now part of the landscape of college sports. Many people now are worried that the sky is falling as they observe legal actions becoming more and more the norm even in high school sports. What’s a sports administrator, coach or official to do?
It is no longer possible for anyone working in sports administration at the high school level to do so without having at least a working knowledge of how state laws can affect high school sports. A recent online search going back just three years located a number of lawsuits over issues related to the conduct of high school sporting events. Three of these cases will be discussed here.
Brentwood Academy v. Tennessee Secondary Schools Activities Association (THSAA), 551 U.S. 291 (2007). This case comes close to the record for longest running litigation involving participation in high school athletics. In 1997 the THSAA adopted an anti-recruiting rule designed to rein in alleged excesses of private schools in recruiting athletes, primarily in football and basketball. Brentwood Academy was soon sanctioned after its football coach was found to have sent out “recruiting letters” to 8th graders attempting to interest them in enrolling at the grade 9-12 school near Nashville. The school promptly sued, alleging an infringement of its 1st Amendment freedom of expression rights.The case made it to the U.S. Supreme Court in 2001 on the issue of whether or not the THSAA was a “state actor” and thus forced to abide by the first amendment when adopting rules. The Court ruled 5-4 that it was and sent the case back down. The case made it back to the court in 2007 on the substantive issue concerning the anti-recruiting rule. The Court ruled 9-0 that the THSAA was within its rights to promulgate the rule and that, since membership was voluntary and the rules were approved by member schools, there were no first amendment concerns.
The aftermath is that the THSAA maintains a separate division for those private schools who wish to recruit athletes in some way. These schools may play other member schools during the regular season but must compete separately for state championships. It took 10 years, three trips to the 6th Circuit Court of Appeals, and two trips to the U.S. Supreme Court to bring about this result. Legal costs were estimated to be into six figures.
Communities For Equity v. Michigan High School Athletic Association (MHSAA), 192 F.R.D. 568 (W.D. Mich. 1999). Another long running case is found in Michigan, where a couple of female athletes challenged the Michigan High School Activities Association, which scheduled women’s basketball in the spring and softball in the fall, (different from every other state). While the MHSAA felt there were valid reasons for this, the plaintiffs argued that this limited their exposure to college coaches because Michigan athletes were not seen during what for colleges were regular recruiting periods. The timing of the seasons also made it difficult for athletes to compete on non-school “club” teams during their off seasons, thus further limiting opportunities to be scouted by college coaches.The matter was fought out in court until April, 2007 when the U.S. Supreme Court declined to hear the case, thus ratifying lower court rulings in favor of the plaintiffs. On March 31, 2010, the federal District Court that had original jurisdiction in the case awarded a total of $5.3 million (including interest) to the plaintiffs’ attorney for legal fees and costs. This ruling has been appealed and is still pending before the 6th Circuit Court of Appeals.
The MHSAA was forced to move the seasons—to spring for softball and to winter for basketball. The federal courts in effect ruled that the actions of the MHSAA had violated the equal protection clause of the 14th amendment of the U.S. Constitution by treating female athletes differently from their male counterparts. The courts also ruled that women had been denied equal opportunities under Title IX of the Civil Rights Act, first enacted in 1972.
Kahuku HS v. Oahu Interscholastic Association (OIA) et al. On Nov. 8, 2010 attorneys representing the football team at Kahuku High School in suburban Honolulu filed suit in Circuit Court seeking a temporary restraining order prohibiting the school’s football team from being kicked out of the state high school playoffs over the use of an ineligible player. The school had allowed a fifth-year senior to play in most of its game during the season, as a reserve. The matter was apparently brought to the attention of the governing body (by someone from another school) prior to the school’s last regular season game.School officials blamed the problem on a “clerical error” and argued in court filings that the school and its players would be irreparably harmed if the ban were allowed to stand. The attorneys for OIA argued that since travel and game plans had already been made for the first games scheduled for Friday, Nov. 12, that the entire playoffs would be thrown into chaos if a TRO were to be granted.
This court case is just one in a growing body of instances where schools that face punishment for rules violations go to court to try and force their way into further competitions. The argument is always that “Our school is being unfairly treated and no real investigation has taken place. There are extenuating circumstances and, if there is any fault, it was inadvertent and you shouldn’t punish an entire team for the actions of a few people”.
A hearing was held in Honolulu on Nov. 9 and the judge ruled in favor of OIA and refused to issue a TRO. The playoffs continued without Kahuku High School. Less than three weeks later a starting defensive player being recruited by Division 1 football schools committed suicide in his parents’ garage. No one can know whether there was any connection between the two events.
The three cases highlighted here are representative of a growing trend in high school sports. Parents of players are willing to file lawsuits over administrative matters that have long been seen as the province of high school governing bodies. Anyone working in sports administration in a high school setting must be alert to the potential legal ramifications of almost every decision that is made, from scheduling to player eligibility to how sporting events are covered.
The coach, principal, and athletic director may be the most visible figures involved in high school sports, but the real MVPs may be the attorneys who advise and represent them, their school boards, and the state athletic associations. This brief survey of the landscape found legal actions in ten states involving issues of eligibility and participation. “Play ball” is talking on a new meaning in the litigious society of the early 21st Century.
Greg Tyler, MPA, JD, MLIS
Mr. Tyler is the Director of the Library/Archivist at the United States Sports Academy. He is also a former practicing attorney.