US Sports Law Year in Review (2017/18) – Part 7 - College, high school and youth sports
For ease, we’ve broken down the paper into its respective chapters, which will be published in turn as follows:
Agents and agent regulation
Leagues – labor matters
Leagues – non-labor matters
College, high school and youth sports
International and Olympic sports
Title IX/Gender equity and civil rights;
Intellectual property and broadcasting
Personal injury, health and safety
Stadiums and venues
Sports Betting/Daily Fantasy Sports;
It was drafted under the supervision on Professor Mattew Mitten and Professor Gabriel Feldman, and was presented at the Sports Lawyers Association Conference in Washington DC. The SLA, a non-profit, international, professional organization whose common goal is the understanding, advancement and ethical practice of sports law. Each year in May the SLA hosts an Annual Conference at which the above topics are presented and debated.
LawInSport would like to thank the SLA and in particular Professor Mitten and Professor Feldman for permitting the republication of this work.
On December 6, 2017, Judge Claudia Wilken, who presided over the O’Bannon federal court trial, gave final approval to a $208.7 million settlement by which the NCAA will compensate 43,000 student-athletes who received athletic scholarships limited to the value of tuition, fees, books, and room and board at their respective universities prior to the “full cost of attendance” scholarships now permitted under NCAA rules.
Re NCAA Athletic Grant-In-Aid Cap
In March 2018, Judge Wilken scheduled a ten-day bench trial beginning on December 3, 2018 to hear the consolidated antitrust claims of current and former men’s Division I Football Bowl Subdivision (FBS) football and men’s and women’s Division I basketball student-athletes against the NCAA and eleven athletic conferences whose member universities’ teams participated in these sports. Plaintiffs allege that the defendants violated federal antitrust law by conspiring to impose an artificial ceiling on the economic value of the scholarships and benefits that they may receive from their respective universities as payment for their athletic services. Specifically, they seek injunctive relief against enforcement of NCAA’s rules prohibiting universities from competing to recruit student-athletes with offers of cash or various benefits tethered to educational expenses (e.g., prohibiting tutoring to assist in initial eligibility, transfer eligibility, or waiver requests; restricting reimbursement for computers, science equipment, musical instruments and other items related to the pursuit of various academic studies, but not currently included in the cost of attendance calculation; permitting guaranteed post-eligibility scholarships for undergraduate or graduate study and tutoring costs only at their own institution, not at other) or incidental to athletic participation (e.g., permissible reimbursement for family travel expenses), including rules that have changed after O’Bannon. Regarding the parties’ respective summary judgment motions, Judge Wilken ruled as follows: 1) res judicata and collateral estoppel do not bar plaintiffs’ claims because the challenged NCAA rules are not the same as those at issue in O’Bannon; 2) as in O’Bannon, the relevant market is a college education combined with athletics, or alternatively, the market for the student-athletes’ athletic services; 3) “greater compensation and benefits would be offered in the recruitment of student-athletes absent the challenged rules”; 4) whether the challenged NCAA rules further the procompetitive justifications recognized by O’Bannon (i.e., “integrating academics with athletics” and “preserving the popularity of the NCAA’s product by promoting its current understanding of amateurism”) is a factual issue for trial; and 6) plaintiffs’ proposed less restrictive alternatives (e.g., conference autonomy) to achieve the NCAA’s procompetitive objectives for the challenged rules are not foreclosed by O’Bannon and raise a fact question for resolution at trial. In re NCAA Athletic Grant-In-Aid Cap Antitrust Litigation, 2018 WL 1524005 (N.D. Cal. March 28, 2018).
Chris Spielman class action law suit
In July 2017, Chris Spielman, a former All-American football player at Ohio State University, filed a class action antitrust suit seeking treble damages on behalf of himself and other former Ohio State players (including two-time Heisman Trophy winner Archie Griffin) against Ohio State and IMG College, a sports marketing company that represents the university and many others, in U.S. District Court in Columbus. It is patterned after Ed O’Bannon’s successful antitrust suit against the NCAA and alleges the defendants and co-conspirators Honda and Nike violated federal antitrust law by conspiring to prevent current and former Ohio State football players from receiving any compensation for the unauthorized use of their name, image, and likeness (NIL) rights in various advertising materials and products, including 64 honorary banners hung in Ohio Stadium featuring former Buckeye football players' names and likenesses (including Spielman’s) along with Honda’s corporate logo as well as Nike’s "Legends of the Scarlet and Gray" vintage jerseys and other Buckeyes apparel. In response, Ohio State filed a pay-to-play culture, agreeing to provide access to their most valuable players while also effectively exerting their influence over them. Today’s arrests should also serve as a warning to those who conduct business this way in the world of college athletics.”
United States v. Gatto
The court denied defendants’ motion to dismiss the indictment charging them with conspiring to use interstate or foreign wires in furtherance of a scheme to defraud universities by paying bribes to ensure high school basketball players would attend and play for the universities. United States v. Gatto, 2018 WL 1136109 (S.D.N.Y. Feb. 28, 2018).
Unlawful payments to athletes
In new charges filed in April 2018, the FBI alleges James "Jim" Gatto, former Adidas global sports marketing director for basketball, surreptitiously made two $40,000 payments to the father of a prospective North Carolina State University basketball player to ensure he would attend the university and sign a sponsorship deal with Adidas when he became an NBA player. The new charges also assert that in November 2016 Gatto paid $90,000 to a recruit’s mother in an effort to get the player to attend the University Kansas and to become an Adidas sponsor as an NBA player. No charges have been brought against Kansas, North Carolina State, or either schools’ head basketball coaches, but the investigation is ongoing. The new charges also identify coaches and players associated with the University of Louisville and University of Miami in connection with the previous allegations of corruption involving the recruiting of college basketball players.
As a result of the FBI's multi-year probe into corrupt college basketball recruiting practices, former Louisville coach Rick Pitino is accused of knowing about a $100,000 payment made by Adidas representatives to the family of five-star recruit Brian Bowen to secure his commitment to Louisville, which he denied knowing about. On October 16, 2017, Louisville fired Pitino for cause, which resulted in his filing of a breach of contract suit against the university to recover the $36 million balance of his employment contract. In a counterclaim, Louisville has alleged Pitino is liable for breach of contract, negligence, and unlawful interference with business relationships between the university and the NCAA, Atlantic Coast Conference, media companies, TV networks and sponsors. It is seeking unspecified monetary damages and demands that Pitino indemnify the university for any financial penalties it must pay to the NCAA for rules violations connected to his wrongdoing or breach of employment contract obligations. Independent Commission on College Basketball Proposed Reforms.
Proposed elimination of the “one-and-done rule"
On April 25, 2018, the Commission, which was formed by the NCAA in the wake of the foregoing federal government action and chaired by Condoleezza Rice, former U.S. secretary of state and Stanford University provost, released its recommendations. It proposes elimination of the “one-and-done rule” pursuant to which college basketball players are eligible for the NBA draft after playing one year (which would require agreement by the NBA and NBA Players Association) as well as several other reforms requiring adoption by the NCAA, including: allowing student-athletes to retain their college basketball eligibility until signing a professional contract; a new process for certifying agents and permitting them to advise student-athletes regarding their potential as professional players; creating independent entities that would adjudicate complex and "high-stakes" NCAA rules violation cases; increased penalties for serious NCAA rules violations, including five-year postseason bans for university athletic teams and lifetime bans for coaches; NCAA-run summer basketball events for prospective college basketball players; adding five public members to the NCAA’s Board of Governors (currently consisting of exclusively college and university presidents and chancellors); and requiring coaches, athletics directors, and university presidents to certify annually their compliance with all NCAA rules. The Commission did not recommend that college basketball players receive cash payments for their playing services or be compensated for use of the NILs. It also did not suggest any changes to the college basketball season schedule or the men's NCAA Division I tournament to reduce missed classes or to provide players with more time to focus on academic endeavors. The NCAA’s Board of Governors is considering the Commission’s proposals, which likely will be adopted because it previously pledged an initial $10 million to implement them along with $2.5 million annually thereafter.
Pac 12 NCAA Basketball Reform Task Force
A Pac 12 task force was created after last fall's college basketball federal indictments. The group produced a 50-page report that was unanimously approved by the Pac-12 presidents and chancellors. Like the Commission, the group favors the elimination of the "one and done" rule and tougher rules enforcement independent from the NCAA; and it also advocates sweeping changes to recruiting rules. Pac-12 Commissioner Larry Scott said that the proposed reforms will “help preserve the integrity of collegiate basketball and provide the choice, education and protection that our student-athletes deserve." Proposed College Athletic Protection (CAP) Agreement?
The National College Players Association’s proposed CAP Agreement provides recruited student-athletes with a means of negotiating and obtaining written, legally enforceable benefits and rights permitted by NCAA rules that are not uniformly provided by its member universities, including post-eligibility medical insurance and the ability to be automatically released from a scholarship if a player decides to transfer. Other negotiable benefits include a guaranteed athletic scholarship for a given period of time; stipend and reimbursement money within NCAA limits; medical treatment or expenses reimbursement; and disability insurance. Student-athletes would submit a CAP Agreement to the universities interested in their playing services, with each university agreeing in writing to the particular rights and benefits it will provide, which would provide an alternative to the generally non-negotiable terms of the National Letter of Intent. The CAP Agreements with different universities would enable student-athletes to compare their respective offers and decide which one to accept.
NCAA Rules Enforcement and Governance
Application of Amateurism Rules
Before accepting a football scholarship from the University of Central Florida (UCF), Donald De La Haye began posting humorous YouTube videos with social commentary. Thereafter, De La Haye’s videos have included depictions of his day-to-day life as a UCF athlete and have shown his daily practice regimen as the team’s kicker. His videos eventually became very popular and generated advertising revenues, and he started receiving modest compensation from the YouTube website, which conflicted with NCAA bylaw 12.4.4 permitting a college athlete to “establish his or her own business, provided the student-athlete’s name, photograph, appearance or athletics reputation are not used to promote the business.” In July 2014, the NCAA granted a waiver permitting De La Haye to earn money from his YouTube account for non-athletic postings if he stopped posting athletically-related videos. He subsequently posted a video “Quit College Sports or Quit Youtube?,” which was viewed by thousands. After De La Haye agreed only to stop posting videos referencing his status as a football player or showing off his athletic prowess and continued posting videos about his daily life with his name, image and athletic reputation prominently featured, UCF rescinded his football scholarship because this limited action would not fully comply with the NCAA’s waiver requirements. He has filed a lawsuit alleging that UCF violated his First Amendment right to engage in free speech on social media platforms and that revoking his football scholarship removal was “arbitrary and unreasonable” because it wasn’t related to his academic standing or his athletic performance. Donald De La Haye v. University of Central Florida, Case 6:18-cv-135-ORL-22GJK, Orlando Dist. Ct (2018).
In September 2017, Texas A&M University freshman cross country runner Ryan Trahan claimed he was declared ineligible by the university for violating NCAA bylaw 12.4.4 by posting YouTube videos offering training tips for runners and advertising Neptune water, an ecologically friendly bottle company that started with a friend in 2016. To be granted a waiver that would allow Trahan to retain his college athletics eligibility and promote his company, the NCAA requested that he omit all references to Neptune or his status as a Texas A&M student-athlete on his YouTube channel, which has 14,000 subscribers.
The NCAA recently granted a waiver to Arike Ogunbowale, a University of Notre Dame women’s basketball player who made the game-winning basket for the Irish in the 2018 national championship game, to enable her to participate in Dancing With The Stars (DWTS) and retain her college basketball eligibility. Her appearance on DWTS would violate the NCAA rule prohibiting student-athletes from allowing their NILs to be used for commercial purposes, including appearances on television shows such as DWTS. The NCAA granted this waiver because it deemed Ogunbowale’s appearance on DWTS to be “unrelated to her basketball abilities.”
NCAA Rules Enforcement Decisions
On March 12, 2012, the NCAA Committee on Infractions (COI) determined that the University of North Carolina, Chapel Hill (UNC) was responsible for multiple NCAA rules violations, including academic fraud committed by a former assistant coach and a former tutor who had done work for football student-athletes and refused to cooperate with the NCAA’s investigation. Penalties imposed on the university included a one-year football postseason ban, reduction of 15 football scholarships, vacation of records, and three years’ probation. On June 30, 2014, the NCAA reopened its investigation after learning that additional people with information and others who were previously uncooperative were willing to speak with its enforcement staff. On October 13, 2017, the COI found that over an 18-year period UNC’s Department of African and Afro-American Studies had offered admittedly academically deficient “paper courses” in which numerous student-athletes received too much assistance enabling them to successfully complete these courses and to retain their intercollegiate athletics eligibility. However, the COI determined that UNC did not provide impermissible “extra benefits” to student-athletes because “similar assistance was generally available to all students” and “the record does not establish that the courses were created, offered and maintained as an orchestrated effort to solely benefit student athletes.” UNC previously characterized the assistance provided in these “paper courses” as “academic fraud” in a report to its accreditor, and it acknowledged in the COI hearing that the courses “failed to meet its standards and expectations.” Because “the NCAA defers to academies on matters of academic fraud,” the COI concluded it “cannot second guess UNC's altered position” that it did not. It explained: “As institutions of higher education, the NCAA membership trusts fellow members to hold themselves accountable in matters of academic integrity.” University of North Carolina, Chapel Hill Public Infractions Decision (10/13/2017).
This COI case centered on recruiting violations committed by University of Mississippi boosters as well as rules violations committed by members of its football staff, failure to monitor by the head football coach, and a lack of institutional control over football staff and boosters. An assistant athletics director had arranged for cash payouts between $13,000 and $15,600 facilitated by boosters to recruited student-athletes and lied about doing so in an interview with NCAA investigators. Two football program staffers forged ACT scores for the recruits and enabled a booster to provide five recruits with impermissible housing and transportation. The COI found that the university lacked institutional control over its football program and because this was its third violation of NCAA recruiting rules since 1986, it banned its football team from participation in a 2018 bowl game and imposed other sanctions (e.g., scholarship reductions, vacation of all games in which ineligible players participated, and show-cause orders for several former and current football coaches). Former head football coach Hugh Freeze, who resigned in July 2017 after it was revealed he had called an escort service from his university phone, will be suspended for two games for failing to exercise oversight over his staff if he subsequently is hired about another university—a relatively light penalty because Freeze he had promoted an “atmosphere of compliance” and cooperated with the NCAA’s investigation. See University of Mississippi, Oxford Public Infractions Decision (12/1/2017).
For failing to monitor its football program from 2011-2015 and not ensuring its drug testing program complied with NCAA rules and university policy, the COI placed Rutgers University on probation for two years and publicly reprimanded it. It also found that former football coach Kyle Flood failed to monitor his operations staff and violated university policy by contacting an instructor to make a special academic arrangement for a student-athlete. Rutgers’ cooperating with the NCAA’s investigation, firing Flood and athletic director Julie Hermann, implementing a new drug testing, and hiring a new chief medical officer were mitigating factors considered by the COI in determining its sanction. Rutgers, the State University of New Jersey, New Brunswick Public Infractions Decision (9/22/2017).
The COI imposed an eight-year “show cause” order on Ron Verlin, former University of the Pacific head men’s basketball coach for providing a recruit with a 1,400-word paper to pass of as his own work as well as answers to math course questions to other studentathletes and arranged for them to take unproctored exams. He also attempted to persuade multiple people to lie during the NCAA’s investigation. University of the Pacific Public Infractions Decision, (9/20/2017).
Larry Nassar Criminal Sexual Assault Guilty Pleas and Aftermath
In January 2018, Larry Nassar, the former Michigan State University (MSU) women’s gymnastics team and USA Gymnastics team doctor who sexually molested numerous female gymnasts (more than 250 women accused him of doing so) over 25 years while claiming he was performing legitimate medical treatment on them, was sentenced to up to 175 years in prison after pleading guilty to ten counts of first-degree criminal sexual conduct in Michigan state court proceedings. During his sentencing hearing, more than 150 courageous victims testified about the horror of being sexually assaulted by him. In December 2017, Nasser received a 60-year federal prison sentence after pleading guilty to child pornography charges.
On February 28, 2017, the USOC) announced the resignation of its chief executive Scott Blackmun and reforms to protect athletes from sex abuse.
In a March 2018 response to an NCAA inquiry submitted by its attorney Mike Glazier, MSU has denied it violated any NCAA rules: “I trust that you will see that the University is in no way attempting to sidestep the issues facing it, and that if the University had any reason to believe the criminal conduct of Nassar also implicated NCAA rules violations, the University would accept responsibility in that area as well. However, after a thorough and analytic examination of NCAA legislation, and an application of the known facts associated with the Nassar matter to NCAA legislation, the University finds no NCAA rules violations.”
In April 2018, Congress enacted the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act, which requires amateur athletics governing bodies as well as all adults who interact with minors and amateur athletes to report sex-abuse allegations to local or federal law enforcement authorities within 24 hours. The failure to report a sexual abuse allegation is punishable by up to one year in prison. This law requires the governing bodies for amateur athletes to establish “reasonable procedures” to limit oneon-one interactions between minors and adults, except in emergencies. It also authorizes the United States Center for SafeSport to ensure that aspiring U.S. Olympic athletes can report allegations of abuse to an independent entity for investigation and resolution and to ensure national governing bodies for all Olympic sports follow the strictest standards for child abuse prevention and detection. In addition, this law extends the tort statute of limitations within which sex-abuse victims can sue their offenders to age 28 or up to 10 years after the reasonable discovery of the violation, whichever is later.
Nassar’s lengthy history of sexual assaults has led to several pending lawsuits against the USOC, USA Gymnastics, Bela and Martha Karolyi who operated a Houston, Texas area ranch used as a training ground for the U.S. women’s gymnastics team, and Michigan State University for alleged tortious failures to prevent his egregious conduct or coverups of it.
While hundreds of complaints have been filed with the US Department of Education Office for Civil Rights alleging institutional failure to adequately respond to sexual assault incidents on campus, in September 2017, the new Secretary of Education, Betsy deVos rescinded the 2011 and 2014 sexual assault guidance in favor of a 7-page Q&A. See Q&A on Campus Sexual Assault Misconduct.
Penn State Scandal/Jerry Sandusky Sexual Child Abuse Aftermath
After being found guilty of child endangerment, in June 2017, former Penn State president Graham Spanier was sentenced to 4-12 months in prison, with the first two months in jail and the remainder under house arrest. Former vice president Gary Schultz was sentenced to 6-12 months, with two months in prison. He also was ordered to pay a $7,500 fine and to perform 200 hours of community service. Former athletic director Tim Curley was sentenced to 7-23 months, with three months in jail. In imposing these sentences, Judge John Boccabella stated “They ignored the opportunity to put an end to [Jerry Sandusky’s] crimes when they had a chance to do so. [I’m] appalled that the common sense to make a phone call [to law enforcement officials] did not occur, [which] sort of robs my faith of who we are as adults.”
It was reported that Penn State has paid approximately $250M in settlements, fines, and other costs associated with this scandal (as of June 2017).
California Prohibition on State-Funded and State-Sponsored Travel to States with Discriminatory Laws
California Assembly Bill No. 1887 prohibits state-funded travel to states (as of June 2017, Alabama, Kansas, Kentucky, Mississippi, North Carolina, South Dakota, Tennessee and Texas) that have enacted legislation that discriminates against gay, bisexual or transgender people. This law exempts contractual obligations entered into before 2017, but it presents future potential funding problems for California public university intercollegiate athletic teams with scheduled to participate in regular season or NCAA championship games or athletic events in those states.
Pending Litigation (other than personal injury, health, and safety)
South Carolina women’s basketball coach Dawn Staley has filed a defamation suit against Missouri athletic director Jim Sterk for accusing her of promoting a hostile game day atmosphere and claiming that Missouri players were spit upon and taunted with racial epithets by South Carolina fans during a game. After Sterk’s accusations, South Carolina conducted an investigation and found “no confirmation of the alleged behavior.” The SEC reprimanded Sterk and fined him $25,000 for his comments, and it ordered a review of South Carolina’s game management procedures. The court has ruled that the suit is subject to Alternative Dispute Resolution (ADR), which requires the parties involved to meet with a neutral mediator within 210 days (i.e. before 9/22/2018). If Staley and Sterk cannot reach an out-of-court settlement in that time, the case will go to trial. Dawn M. Staley v. Jim Sterk, S. Carolina Ct. of Common Pleas 5th Cir. (Feb. 22, 2018).
In April 2018, Zaire Webb, a freshman defensive back who was dismissed from the Washington State University football team after he and another player were accused of shoplifting, has sued the university and Mike Leach, its head coach. Webb lost his scholarship and was not permitted to rejoin the team after the charges against him were dropped when store surveillance footage showed he did not commit any theft. He contends the university failed to provide due process before revoking his athletic scholarship and that Leach has selectively enforced his policy of dismissing players who have committed theft, pointing out that another WSU football was permitted to remain on the team after pleading guilty to third-degree assault for mugging and stealing a case of beer from a man.
On August 24, 2017, Amani Bledsoe, a University of Oklahoma football player, sued the NCAA in Oklahoma state court for alleged violation of his due process rights under the Oklahoma constitution arising out of his October 2015 one-year suspension from participation in intercollegiate athletics for testing positive for the banned substance clomiphene. Bledsoe’s lawsuit claims he took one serving of a protein shake provided by an unnamed teammate and that he was unaware it contained a banned substance, but that the NCAA wrongfully denied his internal appeal. In defense, the NCAA maintains that it is not a state actor and participation in athletics is not a fundamental right protected by the Oklahoma Constitution.
In January 2018, the University of Arizona (UA) fired head football coach Rich Rodriguez after Melissa Wilhelmsen, his former administrative assistant, filed a $7.5 million notice of claim against him with the Arizona Attorney General’s Office alleging he ran a hostile workplace and sexually harassed her. UA stated it will honor the separation terms of his contract by paying him a $6 million buyout because its internal investigation did not find sufficient evidence to fire him for cause." Wilhelmsen also is seeking $8.5 million from UA for its alleged negligence and vicarious liability in connection with Rodriguez’ misconduct.
The Pac-12 was sued by a sports marketing company seeking compensation for its role in helping the conference secure a deal in 2013 with AT&T worth "tens of millions of dollars to the member universities.” Alleging that the Pac-12’s refusal to compensate California-based EMG, which had connections to top AT&T executives, “crippled” the company’s business. EMG is seeking an unspecified amount in damages. EMG estimates that the conference’s partnership with AT&T, which includes carriage on U-verse for Pac-12 Networks, is worth $90 million over five years.
The University of Central Florida (UCF) filed a Florida state court suit against architects and contractors involved in the construction of its Spectrum Stadium, which claims the 45,000-seat stadium shifts and sways when the fans move in unison due to defects in the metal framework supporting the seating area.
High School & Youth Sports
President Donald Trump replaced the Obama-era President's Council on Fitness, Sports and Nutrition with a President's Council on Sports, Fitness and Nutrition. New England Patriots coach Bill Belichick, professional golfer Natalie Gulbis, Gold Medal-winning volleyball player Misty May-Treanor, former New York Yankee Mariano Rivera and former NFL player Herschel Walker reportedly will be appointed to the council Trump’s executive order directs the Secretary of Health and Human Services to develop a national strategy to expand children's participation in youth sports, to encourage regular physical activity (including active play), and to promote good nutrition for all Americans.
Legislative proposals to prohibit participation in tackle football before a certain age (e.g., 12 years) or high school have been introduced in some states, including California Illinois, Maryland, and New York, but it has not been enacted in any state yet.
Alabama has enacted the “Coach Safety Act,” which will require youth sports coaches to undergo injury prevention and response training annually. It is applicable to organized sports for athletes 14 and younger “in which there is a significant possibility for a youth athlete to sustain a serious physical injury, including, but not limited to, the sports of football, basketball, baseball, volleyball, soccer, ice or field hockey, cheerleading and lacrosse.” This law requires coaches to receive information on “emergency preparedness, planning, and rehearsal for traumatic injuries; concussions and head trauma; heat and extreme weather-related injury familiarization; physical conditioning and training equipment usage;” and “heart defects and abnormalities leading to sudden cardiac death.”
Under a proposed Ohio law, foreign athletes could be recruited to play high school sports for a handful of private boarding schools. Ohio Senate Republicans inserted a provision in the state budget bill that would allow F-1 visa holders to compete in interscholastic sports and would bar any school district, league, conference or association from having rules to the contrary. Foreign students study in and visit the U.S. primarily on two types of visas issued by the U.S. Department of State: J-1 and F-1. A J-1 visa is valid for one year and cannot be renewed. An F-1 is valid for as long as it takes to finish a course of study. Current OHSAA rules allow exchange students on J-1 visas to participate in high school athletics, as long as certain conditions are met. The amendment inserted in the budget bill specifies that it would only apply to F-1 visa holders who attend an Ohio school that "began operating a dormitory on the school's campus prior to 2014."
Aaron Holzmueller, a high school runner with cerebral palsy from Illinois, sued the Illinois High School Association (“IHSA”), which operates the state’s high school track and field championships, under the Americans with Disabilities Act and the Rehabilitation Act. During the regular season, Holzmueller competed as a part of the Evanston Township High School track team, but time qualification thresholds prevented his participation in the state championship competition and he requested an accommodation that would lower the qualification time threshold for para-ambulatory runners. The district court granted summary judgment for the IHSA, finding that, as a matter of law, the requested accommodation is not reasonable because resolution of this question “turns on whether Holzmueller would have a realistic shot at qualifying if he were not disabled.” The court found no evidence in the record that he could qualify if he were not disabled and determined that because 90% of the state’s able-bodied runners similarly could not qualify, the qualification thresholds have no “particular exclusionary effect on the handicapped,” including Holzmueller. The court concluded that his “request is inconsistent with the Supreme Court's teaching in Martin and [he] has identified no authority that requires IHSA to provide disabled athletes an equivalent opportunity for athletic success by lower qualifying standards for participation . . . in championship events.” Holzmueller v. Illinois High Sch. Assoc., 2017 WL 2907840 (N.D. Ill. July 7, 2017).
The Ninth Circuit ruled that a public high school coach has no First Amendment right to pray on the field during or immediately after games. The Bremerton School District suspended coach Joseph Kennedy, a practicing Christian, after he refused to stop praying in the middle of the field following games. Because communicating with students and spectators was part of his normal job responsibilities, the court concluded the coach was speaking as a public employee during the prayers and “was sending a message” about “what students should believe,” which justified the school district’s disciplinary action. A concurring opinion noted that the school district's actions were also justified to avoid violating the Establishment Clause. Kennedy v. Bremerton School. District, 880 F.3d 1097h Cir. 2018).
In a negligence suit by a 12-year girl who was sexually abused by her youth soccer coach, a California appellate ruled that the U.S. Soccer Association, its California affiliate, and a local soccer league have “a duty to require and conduct criminal background checks of defendants' employees and volunteers who had contact with children in their programs.” Because “parents entrusted their children to defendants with the expectation that they would be kept physically safe and protected from sexual predators while they participated in soccer activities,” the court concluded a “special relationship” exists between defendants and children, which establishes a duty of reasonable care to protect them from foreseeable harm. It found that U.S. Youth Soccer’s “aware[ness] of incidents of physical and sexual abuse of [its] members by its coaches at a steady yearly rate of between 2 and 5 per year” established the requisite general foreseeability of its occurrence. However, the court rejected plaintiff's claim that defendants had a legal duty to warn her about the possibility of being sexually assaulted while playing youth soccer because creating and implementing a sexual abuse education program to protect children would be “extraordinarily burdensome.” Doe v. United States Youth Soccer Association, 8 Cal.App.5th 1118 (Cal. App. 2017), review denied (June 14, 2017).
Former Hamady High School (Flint, Michigan) football player Destin Julian is suing the school and his former coach Gary Lee, alleging he was forced to continue playing football with a head injury. Now nineteen and physically unable to play football, Julian says Lee not only forced him to play while injured, but also created a climate of fear and intimidation in the locker room by calling players “sissies” and “hoe” and using racial slurs when players reported injuries, telling them to “play through the pain.”
A Knox County Circuit Court (Tennessee) judge refused to dismiss a $6 million defamation suit against the mother of a Hardin Valley high school baseball player arising out of her accusations that the team’s head coach and assistant coach abused their players by hitting them with baseballs during a batting drill. The court ruled that the mother’s letter to school administrators describing this "incredibly dangerous" practice drill as both emotionally and physically abusive is not a privileged communication immune from defamation liability. The Tennessee Department of Children's Services and the Knox County Sheriff's Office investigations of her allegations were eventually closed without any charges being filed. The coaches allege that the mother knowingly made this false allegation in retaliation for earlier disagreements about her son's involvement with the team.
In August 2017, a student-athlete Robbie Lopez, and his parents, filed suit against Los Altos High School and its varsity head baseball coach in California state court seeking $150,000 in damages for a “pattern of harassment and bullying.” In particular, he alleges his excessive time on the bench is an abuse of the coach’s discretion, which was in retaliation for his complaint made following a disagreement about a fundraising game (California law prohibits students from being required to participate in fundraising activities).
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission is granted to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: Agents | Anti-Doping | Canadian Football League | Collective Bargaining | Contact | Equality | Major League Soccer (MLS) | MLB Players Association (MLBPA) | National Basketball Association (NBA) | National Football League (NFL) | National Labor Relations Board | NCAA | NFL Player Association (NFLPA) | Olympic Sports | Salary Cap | Student Athletes | Tort | United States of America (USA)
- US Sports Law Year in Review (2017/18) – Part 6 - Individual Sports
- US Sports Law Year in Review (2017/18) – Part 8 - International and Olympic sports
- US Sports Law Year in Review (2017/18) – Part 9 - Gender equality and civil rights
- The potential impact of the Murphy v. NCAA decision on sports betting in the United States
- An introduction to Major League Baseball’s salary arbitration process
About the Author
Matt is a Professor of Law and the Executive Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers at Marquette University Law School in Milwaukee, Wisconsin. He served as the Law School’s Associate Dean for Academic Affairs from July 2002 to June 2004. He currently teaches Amateur Sports Law, Professional Sports Law, Sports Sponsorship Legal and Business Issues Workshop, Antitrust Law, and Torts, and has also taught Comparative Sports Law, International Sports Law, Legal Ethics and Professional Responsibility, and a Sports Law seminar during his 28-year teaching career.
Paul and Abram B. Barron Associate Professor of Law Sher Garner Faculty Scholar and Director, Sports Law Program
Associate Provost for NCAA Compliance
BA, cum laude, 1995, Duke University; MA, JD, with honors, 1999, Duke University