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Sports Law
Temple University School of Law
Duru, N. Jeremi

Duru – Sports Law -2015
Sport is now serious business
Reflects both best and worst of us.
Lots of money and big impact on society
There is debate on whether “Sports Law” exists. Sports law seems to be various types of law as applied to sports (agency, tort, labor law, etc.).
HIGH SCHOOL CONTEXT (questions over eligibility to play)
DEFERENCE RULE: There is different standard of review to voluntary organizations. However, Judicial review of High School governance in sports IS available under ARBITRARY and CAPRICIOUS standard. SCHOOL BOARD usually wins and decision is final. However, is discretion is promised in bylaws, it must be followed!
(pg 32):  Student basketball player Avant had gone to private high school. He transferred into a public school in the same town. His parents did not move. This was in his junior year. The IHSAA (athletic organization in High school) had a rule to govern transfers to eliminate jumping and recruiting. He was ineligible for one year. He argued financial hardship for change: IHSAA RULES:
If your transfer accompanies change of residence, then you are eligible for all sports.
There was no change of residence here, hence not applicable.
If your transfer DOES NOT accompany change of residence, you are INELIGIBLE for 1 year to play varsity sports (JV is ok).
The Public school had a rule against seniors in JV athletics. Hence Avant could not play and would have career done unless hardship rule saves him.
If transfer for Athletic reasons, ineligible to play for both varsity and JV.
Findings were inconclusive to say this.
Hardship rule: If enforcement of eligibility rule does not accompany purpose of rule and results in UNDUE HARDSHIP on student, no need to follow the transfer rule.
Court reviews but upholds decision of board.
Avant didn’t mention financial hardship when he transferred. Court said this was a pretext to get away from a problematic coach.
Policy: Response is schools/athletic associations are closest and know best. Also a lot of these athletes are kids and there is paternalistic and school board knows best.
Deference could end a career but courts believe boards are in best position to judge educational context.
More attention seems to be given to sports than other school activities since sports seem to be a bigger problem.
Duru: View that prevailed is that sport is something that towers over other activities and needs more regulation.
MAJORITY RULE: Majority rule: Participation in interscholastic sports is not a constitutionally protected property interest.
Brands: (pg 50): Student athlete was standout wrestler in high school. All indications suggest scholarship opportunities. In January of 1987, incident involving Brands and a few others having a sexual encounter between them and a 16 year old high school student (from Brand). Principal’s investigation concludes that action on that day violated disciplinary policy. Brands was made ineligible for the rest of the season (which meant missing big tournaments) Superintendent affirmed decision. School board affirms.  Plaintiffs file complaint with court seeking TRO and preliminary injunction right before the tournament weigh ins. Court issued very temporary TRO and after sectionals there would a hearing over temporary restraining order. Was there 14th Amendment due process violation?
Rule TRO: Very fact intensive (see 4 factors for preliminary injunction). Public interest/injury to school is heavily weighted
Court says probability of prevailing is too low for TRO. Hence court does NOT grant TRO.
Court said Brands received plenty of process.
Decision was not arbitrary or capricious as P’s alleged actions hurt the school.
Court finds that there is no property right created in sports participation even when board regulates.
: (minority) Court found that participation in high school sports in last year was very important to his development educationally and economically and hence could be a property interest.
No distinction between Boyd and Brand given. Court just goes with minority rule.
Danger is at extremes. If Boyd is read narrowly, it would only protect those who are “good” at sports. If read broadly, it would protect everyone and maybe give student right to BE on team even if they can’t qualify.
: Case talks about how leaders in schools need to be held to higher standard (leadership). School authorities may base discipline matters on immoral acts.
This case is limited. However, since student athletes seen as being in the forefront and receive more accolades, higher standard seen as justified.
AGE RULE: No right to play. Schools can set age limits
Tiffany (pg 59): Tiffany had been held back from playing because he was 19 years before September 1st of senior year. Tiffany had been held back in kindergarded/1st grade but WITH the parents’ approval. Arizona organization had a rule that if you turn 19 before Sept 1 of school year, you are ineligible to play sports.
As you grow older, you have more physical dominance (14 year old and 19 year old have massive gulf). SAFTY is biggest concern.
Don’t want to encourage people to delay school in order to be competitively better
With non-contact sports, there is still too much unfair advantage.
Exception to rule: In individual situations, the bylaws allow the committee to waive or modify any of the rule where there are circumstances beyond their control or his or her parents.
Just because parents approved doesn’t mean they had control.
Tiffany cannot succeed under Boyd. Competing interest were more persuasive because he did not assert and cognizable interest that rises to that high Boyd threshold.
Court found he very much enjoyed participation but that it wouldn’t be in the sense that Boyd found it.
Court rejects argument that Tiffany got his GPA up just so he could play sports (i.e. sports gives structure and motivation).
Court holds that Tiffany does not have a right to play sports here. He can be deprived of right to play sports without due process.
Court does find fault with school district of not following its bylaws. With regard to 19 year old eligibility rule, the organization denied petition and didn’t use discretion. So school was forced to use their discretion this time.
However most likely a court would not likely look past board once they used “discretion.”
DRUGS RULE: Reasonable (probable) Cause/ Individualized suspicion is not necessary for student-athlete drug testing.
(pg 74): Drug use became problem in school and athletes were seen as leaders in “drug culture.” Student-Drug policy adopted. Every student has to do a urine drug test to play. 10 athletes a week are pulled at random (no suspicion of drug use). If you don’t consent, you can’t play. If student fails, there is another test to confirm the positive result. If they fail, they can either participate in a 6-week urinanalysis or they would be suspended from sports. James Acton was in 7th grade in 1991. He had no drug history. His parents refused to sign consent form and sued seeking injunctive relief for 4th amendment search and seizure clause.
For criminality, Search under 4th Amendment requires PROBABLE CAUSE. But school context is different and probable cause not required:
1) Students in public schools have diminished expectation of privacy
2) Undercut school’s ability to maintain order in schools
3) Detrimental to school’s ability to keep order
Privacy: Majority says privacy interest in public schools is weak even in athletic context. Under temporary custodian and less privacy in school. Even further weakened in student athletes because:
Shower together (naked in locker room)
Duru: Locker room privacy and bodily fluid testing are different things
When you go out to sports, you subject yourself to voluntary regulations
Information that urinalysis discloses about body. Only gets to drugs and not something else that is published
Stop drug use is COMPELLING
O’Connor believes testing should be based on reasonable suspicion. Takes offense at holding student scholars being held to high standard.
TLO precedent: Individualized suspicion of wrong doing was necessary for drug testing for schools. This was search of a student.
Sports are a privilege as is any other activity. TLO was just a student so there is higher standard. They cou

college athlete like an employment relationship? If it were seen as employment relationship, it would change everything. This is rejected
CONS of viewing as employment:
Would only deal with scholarship athletes and not non-scholarship folks. There would be different treatment with folks.
Also, would open up a lot of new legal doors on race. Would be too much to apply to college sports
However, there is a lot more subjectivity/discretion allowed to coach in sports. Because coach can determine “it” and who has it.
These claims tend to lose. Duru says this is probably not an issue.
PROS of viewing as employment:
This is a contract with compensation in terms of services.
Would separate amateur athletes from professional athletes.
Should student-athletes get paid?
NCAA prevents any form of payment to athletes. Can’t even accept gifts.
Would raise a lot of complications. How these students deal with others who don’t get paid? Also, how high will it go. This is a slippery slope.
This is raging controversy. People have a picture of what amateur athletics are.3 schools of thought:
Status Quo (no payment)
Employee status (athletes get protection of employees but not get paid in any manner other than scholarship)
Payment permitted.
Some say that maybe we should limit colleges ability to make so much money. On the other hand, that money goes to better the school.
NCAA RULES INFRACTIONS PROCESS
RULE: NCAA is not state action and does not come under due process clause of 14th Amendment.
Gives NCAA more leeway as it is not a state actor and hence more deference
(pg. 117): Tark the shark was a coach for UNLV in basketball for long time. Turned team around. In 1976, NCAA asks UNLV to investigate recruiting violations. UNLV concludes Tark was INNOCENT across the board. NCAA holds hearings and says Tark was innocent on some rules but not others. NCAA issues report saying Tark violated NCAA rules 38 times. They put UNLV on probation and asked university to show cause why NCAA shouldn’t throw book at UNLV. They ask UNLV to suspend Tark. UNLV VP expressed doubt over lack of evidence for Tark but given relationship with UNLV, the university can’t substitute judgment. UNLV feels its hands are tied. UNLV fires Tark. Tark sues for lack due process.
Pulling out of NCAA in order to not fire coach was ruled out pretty quickly since it is a huge deal. You lose a lot of revenue.
Tark argued that the university delegated its functions to NCAA in suspending Tark. Hence, in doing this it was “clothing the association with authority for UNLV to apply NCAA rules to Tark”
Court rejects this and says it was not state action and not done under color of law.
Dissent says the two were jointly engaged and hence if they are doing it together, it must be state action.
NCAA modified its rules after this case and offers more process than it did (probably because it felt vulnerable).
Bloom (pg 189): Bloom was a high school star and excelled in football and track. Bloom recuited to play football in Colorodo. However, he was also a professional skier in the Olympics. With repute came endorsements like modeling contract, nickelodeon show. He was concerned about NCAA would envoke bylaw and Requested NCAA to waive rule. NCAA said no. Bloom discontinued endorsements but sued to get injunction.