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Sports Law
University of California, Berkeley School of Law
Levien, Jason M.

Sports Law
Fall 2009 – Levien
a)      Eligibility issues
i)        A transfer rule limits the ability of student-athletes immediately to participate in interscholastic competition after the athlete moves from one school to another.  
ii)      A common type of transfer rule renders the student athlete ineligible to engage in interscholastic competition for a period of time. 
iii)    Reasons for transfer rules include:
(1)   Deterring recruitment of student-athletes
(2)   Affording academics a higher priority than athletics
(3)   Protecting the institutions’ athletic-related interests in the student athlete? (a cynical reason)
iv)    5th/14th Amendment Due process
(1)   5th Amendment
(a)    “No person shall . . . be deprived of life, liberty, or property, without due process of law”
(2)   14th Amendment
(a)    “nor shall any state deprive any person of life, liberty, or property, without due process of law”
v)      Cases on the issue
(1)   Generally afford state associations a high level of deference, even when substantial constitutional claims are made. 
(2)   Brentwood Academy v. Tennessee Secondary School Athletic Assn.
(a)    State sanctioned a private school because they began practicing in the spring before they were supposed to. They got 4 years probation, 2 years no longer allowed to compete for state championships, and $3,000 fine.
(b)   School got an injunction because the court found that the athletic association was a state actor, performing a state function. Thus they were subject to 14th amendment requirements, i.e. due process.
(i)     6th circuit reversed saying there was no state action and it went up to the supreme court
(c)    SC found that there was state action. 84% of the schools were public, but 100% of the administration and officers of the athletic association were state employees. Also all of the employees of the association had the right to participate in the state retirement plan. Thus there was a state entwinement that could not be distinguished and Brentwood won on the question of state action.
(i)     Didn’t want states giving separate rights, they wanted there to be a federal right to constitutional protections.
1.      Always ask if there is a state actor, if so, is there a constitutional claim? Then proceed with analysis
o       Indiana High School Athletic Assn. v. Carlberg – Kid transferred from high schools for academic reasons. Because Kid transferred for nonathletic reasons w/o a change of permanent residence, he had only limited athletic eligibility for 365 days.
(d)   Issue: Kid alleged that the Transfer Rule violated his constitutional rights under the due process clause and equal protection clause of the 14th Amend, and arbitrary and capricious in violation of Indiana common law
(e)    Due process claim dismissed—no constitutional right to participate in interscholastic athletics and thus was not entitled to procedural due process before the IHSAA’s adverse eligibility determination
(f)    Equal protection claim dismissed—absent a burden on a constitutionally protected right, or creation of a suspect class, rational basis test
(i)     Preserved integrity of interscholastic athletics by preventing recruiting
(g)   Under state common law, courts of Indiana have jxn to review challenges to state action
(i)     e.g., the IHSAA rules and enforcement decisions (which may be challenged by students, but not members, aggrieved by such decisions)
(ii)   Standard of review for IHSAA rule-making—“arbitrary and capricious”
1.      Narrow standard of review, and the reviewing court may not substitute the judgment of the IHSAA
2.      Met only where it is willful and unreasonable, without consideration and disregards the facts or circumstances of the case, or without some basis which would lead a reasonable and honest person to the same conclusion
(h)   NOTE: state constitutions may afford more, never less, rights than the Federal Constitution. IHSAA v. Avant
(3)   Walsh – Mootness. By the time the case was heard, the student-athlete’s one-year period of ineligibility had passed
(a)    5th Cir. rejected the association’s argument that the case was moot after applying the “capable of repetition, yet evading review” exception, which provides
(i)     The challenged action was too short in duration to be fully litigated (time to litigate exceeded the year of ineligibility), and
(ii)   There was a reasonable expectation that the same rule would be applied to the same party or another similarly aggrieved party   
(4)   Letendre (Missouri) – good example of judicial deference to state athletic association eligibility determinations
(a)    Rule prohibiting students from competing on both a school and a non-school (club) team in the same sport during the school team’s season
(b)   Power of a court to review the quasi-judicial actions of a voluntary association is limited to determining:
(i)     Whether there are inconsistencies b/w the association’s charter and by-laws and any action taken in respect to them
1.      i.e., has to follow its own rules
(ii)   Whether the member has been treated unfairly, i.e., denied notice, hearing, or an opportunity to defend
(c)    Court has no power to usurp the function of the tribunals of [voluntary] associations, and can only proceed when those tribunals proceed without evidence, or in bad faith, or violate the constitution or rules in dealing with the member
(i)     “strong showing of bad faith or improper behavior,” Overton Park, quoted by Brands
(d)   Equal protection claim dismissed—argues doesn’t apply to no-athletic activities both in and outside school, those who participate in different sports in and outside school, or those who participate in national or Olympic development competitions
b)      Good Conduct Rules – Individual high schools generally have broad authority to discipline and impose sanctions (such as loss of athletic eligibility) on student-athletics engaging in inappropriate conduct
i)        Rules vary and prohibit a range of in-school and outside-of-school activities
ii)      Brands v. Sheldon Community School (dist ct)- Brands was a wrestler who was about to win a high school state champion, who allegedly, while off campus, sexually assaulted a woman. He was suspended by the superintendent and not allowed to wrestle.
(1)   Should the school be allowed to regulate a student’s off campus behavior with respect to athletes? What level of proof should be required of the judge to make a finding in the case which suspends an athlete from play?
(a)    Judge issues a TRO and allows the student to wrestle in the first round of the state playoffs and he wins.
(2)   Plaintiff alleges deprivation of five constitutional rights: 14th amendment equal protection, sub. & procedural due process, 8th amendment right to be from cruel and unusual punishment, and 6th amendment right to counsel.
(a)    Equal protection—no, b/c not suspect class and interest in wrestling or receiving a college scholarship not a right fundamental enough to warrant separate protection
(b)   See Ingram v. Wright – Supreme Court ruled the 8th amendment does not apply to schools
(c)    6th amendment does not apply in this case, it only attaches to criminal trials
(d)   Procedural DP—vagueness of school’s standard of conduct, school’s reliance on hearsay, the timing of the hearing, and the sufficiency of the evidence
(i)     But must first find that Student deprived of liberty or property by the Defendant
1.      Athletes have no legitimate entitlement to participate; no property interest in participation
2.      Even if there was an interest, Student given hearing, hearing early enough for Student to participate state tournament, the decision rested on “some evidence”
(e)    Substantive DP—can show that his right to SDP was denied if Board’s decision violated a fundamental right, like the right to privacy, which cannot be deprived no matter how much procedural protection is used
(i)     Right to privacy does not keep the state from regulating private sexual conduct; here, private conduct injured another student and disrupted the school; also has not regulated the Plaintiff as a student
(3)   Consistent with Brands, courts generally find that student-athletes do not possess a property interest in athletic participation that requires procedural due process
(a)    BUT property interest may be created by the Association’s rules, the high school student/parent handbook, or other documents
c)      Age Rules – Most interscholastic associations impose rules that prohibit the right of student-athletes to engage in interscholastic competition once they reach the age of 19. 
i)        Tiffany – Does a high school athlete have a constitutional right to participate in interscholastic athletic competition during his/her senior year in high school after the athlete has attained the age of 19?
(1)   Most courts that have considered the issue have declined to hold that participation in a single year of high school athletic competition is a property interest protected by the constitution (DPC) 
(a)    However, there is some precedent that suggests it is a constitutionally protectable property interest where it might impact the likelihood of receiving a college scholarship.
(b)   Cf., education is a property interest protected by the DPC
(2)   The court rejects Tiffany’s constitutional claim, but said the Board should have exercised its discretion as required by its own bylaws.
(a)    The rule in place said that is there is a hardship, the Board should consider hardship waivers. But the Board adopted a policy of no exceptions.
(i)     Vindicate right under admin law
d)     Personal Appearance and Grooming Cases
i)        Davenport – grooming regulations does not deprive plaintiffs of any constitutional rights.
(1)   The court leaves the door open to proving a denial of equal protection by establishing that the rule was racially motivated or the rule treated protected classes differently.
ii)      “there is ‘a per se rule that [grooming regulations] are constitutionally valid’” Karr

  But okay if the public school or the interscholastic association is not viewed as sponsoring or endorsing the religious activity (unclear standard) – Santa Fe
a)      Defining the Student Athlete and University Relationship
i)        Contractual and Related Aspects (113):
(1)   Key: The express contractual relationship
(a)    The express K arises out of the Letter of Intent, the Statement of Financial Assistance, and University publications such as bulletins and catalogs.
(b)   These docs contain the promises that provide consideration for the bargain between these parties
(2)   Statement of Financial Assistance – College agrees to extend financial aid to student-athletes to the extent of tuition, fees, room, board, and books.
(a)    Stated purpose is to assist and enable S/A’s to pursue a program of study and to participate in the educational process of the institution;
(3)   In exchange, S/A promises to attend a particular college and participate in athletics
(a)    S/A’s right to continue to receive financial assistance is contingent upon the athlete remaining eligible to participate in the institution’s athletic program
(b)   S/As also promise to comply with the rules and regs of their particular institution, athletic conference, and the athletic association
ii)      Taylor v. Wake Forest University (NC 1972) (p. 114)
(1)   Facts: Taylor went to play football at Wake. He received terrible grades, and told his coach he would miss practice so he could study. His scholarship was terminated. Taylor sued for recovery of education expenses after his scholarship was terminated.
(2)   Reas: Taylor knew his scholarship was awarded for academic and athletic achievement. In consideration of this scholarship, Taylor agreed to maintain his athletic eligibility, and this meant both physically and scholastically As long as his grades equaled or exceeded the requirements, he was maintaining his scholastic eligibility. Participation in and attendance at practice were required to maintain his physical eligibility.
(3)   Held: When Taylor refused to practice in the absence of any injury or excuse other than to devote more time to studies, he was not complying with his contractual obligations
iii)    Ross v. Creighton University (7th Cir. 1992) (p. 121)
(1)   Facts: Ross, a poor high school student took a basketball scholarship to Creighton. The school promised he would receive a “meaningful education.” Ross had a D average at the school, while taking many meaningless courses. He alleges the Athletic department advised him to take these courses, and his work was done for him. Ross asserts that the school failed to provide him with sufficient and competent tutoring, as it had promised. When he graduated he had skills equivalent to a child. He is suing the school for negligence and breach of contract in failing to educate him.
(2)   Ross’ Arguments:
(a)    Educational Malpractice (most states that have considered this claim have rejected it)
(i)     Policy concerns: lack of satisfactory standard of care to evaluate an educator, and inherent uncertainty as to cause of damages (e.g., student motivation, temperament, past experience, and home environment may play a role)
1.      May be practically impossible prove that the alleged malpractice of the teacher proximately caused the learning deficiency of the student
(b)   Negligent Admission – duty to recruit and enroll only students who are reasonable qualified and able to academically perform at the school
(i)     Same policy reasons as above
(ii)   Rejected by court because there are no adequate duty of care against which to measure such a claim
(c)    Creighton negligently inflicted emotional distress on him by admitting him
(i)     Same policy reasons as above
(d)   Breach of Contract in failing to educate him
(i)     The basic relation between a student and a university is contractual in nature
(ii)   To assert this claim, he must point to an identifiable contractual promise that the school failed to honor