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Sports Law
University of North Carolina School of Law
Osborne, Barbara

Sports Law Outline – BARBARA OSBORNE – FALL 2015
1.       High Schools Sports
a.       Regulatory Structure
                                                   i.            Beginnings
1.       Began primarily as student run organizations.
a.       Lots of problems with this. Win-at-all costs, recruiting ineligible players.
2.       Moved into faculty control and then into Athletic Associations
                                               ii.            Athletics Associations
1.       Every state has an Athletic association, generally made of public + private HS
a.       There is a national group called the “National Federation of High Schools” that has also come into existence
2.       Interscholastic athletics is largely regulated under rules formulated at state level by state athletic associations
a.       There is some relief in the legislative process.
b.       Some of the state legislatures think that hs athletics warrant legislative protections, and so build them into the statutes
3.       These athletic associations can be a mix of private schools, public schools.
                                             iii.            Judicial Regulation of Interscholastic Athletics
1.       General Rule : Courts will only provide relief to an aggrieved party if the subject rule, application, or enforcement is found to be arbitrary and capricious or violates a state/federal statute or const. law provision.
a.       Basically, is the rule reasonable?
b.       Again:
                                                                                                                           i.      Courts won’t intervene unless law is capricious or arbitrary
                                                                                                                         ii.      Courts will intervene assuming state action
                                                                                                                       iii.      Courts will intervene if a statute or violates public policy
                                                                                                                       iv.      Courts are deferential to educational institutions
2.       Courts are deferential to the HSAAs because they assume that these orgs have more experience and that their judgment won’t be any more superior
b.       State Action
                                                   i.            Questions:
1.       Was the actor in the case created by a state agency?
2.       Was the state entangled or involved in the action?
3.       Was the item something that was a traditional state action?
                                                 ii.            Brentwood
1.       State Action Can be Found only if close nexus between state and challenged action.
2.       This case is like Tarkanian in some respects. It’s a private athletic association that has regulatory power over public institutions and sets rules for these institutions.
a.       However, there are certain pieces of entanglement here:
                                                                                                                           i.      Majority of schools are public that fall under this umbrella.
                                                                                                                         ii.      Employees of the HSAA received state benefits (pension/health plan)
                                                                                                                       iii.      The activities were all confined to a single state.
                                                                                                                       iv.      State board  of ed members were all ex oficio members of HSAA.
3.       Dissent would argue
a.       Look @ how the organization was created. State of TN didn’t make the HSAA. This is unprecedented, never found a state actor before b/c of entwinement. Lots of consequences
b.       Doesn’t think this was the historical province of the schools to regulate this. Also thinks that the fiscal interaction happens in other avenues, such as when government contracts for services. Doesn’t necessarily create a state actor.
4.       IS this a traditional function of the state?
                                               iii.            Brentwood II (HSAA—state action in this case)
1.       This case was free speech and due process grounds
2.       Rule: Organizations can regulate the time, manner, and place of speech. It’s well within the organization’s abilities to regulate speech about how HS athletes are allowed to be recruited.
3.      Brentwood voluntarily joined the HSAA and agreed to follow its anti recruiting rule
4.      In general here, you see that courts remain very deferential to HSAAs and sports orgs. The thought is that people give up their rights to play the sports and there is some kind of tradeoff there.
5.      Case also says that without this rule, you might see further exploitation of student athletes. High school sports are games. Games have rules. Play by the rules.
c.       Eligibility Issues
                                                  i.            Transfers
1.       Again, courts very deferential to sporting boards.
2.       Usually limit athletes from competing on another school’s team for a period of time.
3.       Usually a number of reasons offered for these rules:
a.       To deter recruitment and harassment of student athletes
b.       To give academics a higher priority than the athletics programs.
                                               ii.            Conduct
1.       Again, individual High schools have broad discretion for disciplining students.
2.       Good conduct rules usually sanction a # of activities. These can include the use of tobacco, alcohol, drugs, and violating community norms of behavior.
3.       Good Conduct Codes
a.       States have said that it’s ok to regulate student conduct 24/7 while they are in seasons.
                                                                                                                           i.      Some have said that it goes too far to say 24.7.365 in HS.
                                                                                                                         ii.      College cases are the ones where you might have year round. The college makes an investment in you and the investment exists yr round.
4.       Brands v Sheldon School (run a train, kicked off the team. No property interest in playing a sport, but maybe if there was a scholly awarded that you’re losing)
a.       Facts
                                                                                                                           i.      Girl has a # of football players having sex with her, including π.
                                                                                                                         ii.      Π is a great wrestler, is in line for a college scholarship for wrestling.
                                                                                                                       iii.      Π made 5 constitional rights claims:
1.       SDP, PDP, EP, 8th amendment, 6th amendment
2.       EP is rejected, doesn’t identify a class he belongs to that caused him to be discriminated against. (San Antonio v. Rodriguez). Court also dispatches the 6th amendment claims + 8th. They don’t apply in the school setting.
b.       PDP
                                                                                                                           i.      Need to know if there was a deprivation of a property interest
1.       Clear majority of courts have said that there is not a property interest in participating in sports
2.       HOWEVER, there may be a property interest in a scholarship that has been awarded.
                                                                                                                         ii.      Administrative Element
1.       Here the board followed its own rules.
2.       You can create a property right if person is entitled to something, you set up a process to deprive that person of the something, and then abandon that process.
                                                                                                                       iii.      Also, a different standard b/w the PDP due in a courtroom and the PDP that is due in a classroom/school. So things like hearsay are admissible in a school.
c.       SDP
                                                                                                                           i.      Has to show that the decision was arbitrary or capricious.
                                                                                                                         ii.      Here, he hasn’t shown that. He hasn’t shown that the decision itself is arbitrary or capricious.
                                                                                                                       iii.      There is some right to privacy and autonomy over sexual conduct identified in Griswold
1.       However, here they were looking at how this disturbed the school and another student within the school.
                                             iii.            Age
1.       Increasingly being challenged by people with learning or physical disabilities. They get challenged under the ADA. Tiffany case looks @ constitutionality of these age rules
2.      Tiffany v. Arizona (age Problem, kid was held back b/c of disability—wanted to play—admin law, have to follow your own admin procedure)
a.       Facts
                                                                                                                           i.      Tiffany, π, had a learning disability. He was held back 2x b/c of his learning disability. He was 19 before his sr. year of HS would start. Wanted to play football.
                                                                                                                         ii.      Athletic Association had bylaws that said that you could waive an eligibility rule.
b.       Holding
                                                                                                                           i.      Court, trying to get around the rule, said that they didn’t follow their own administrative procedure.

n apology, they didn’t interfere with her schooling.
                                                                                                                         ii.      Requiring an apology isn’t an interference w/ the speech
2.       Generally, Courts give HS a lot of latitude to maintain order and discipline
3.       IS all speech protected?
a.       No. Most protected is political. When content of speech is matter of public concern.
4.       What speech is protected?
a.       If your complaint/speech rises to the level of being a public concern
b.       If you’re reporting a coach for something that’s criminal in nature
c.       If you’re reporting a safety issue as well, that can be protected speech.
5.       If the parents made the speech, it’d be the same type of issue. If the parents are disruptive, they can be asked to not be on school grounds.
                                             iii.            Religion
1.       Free Exercise Clause – protects the rights of students/coaches/employees of the institution, others who attend games, protects their rights to act upon religious beliefs.
2.       Establishment Clause – limits the power of the government to endorse/approve a religion.
3.       Overall thought is that the government needs to be religiously neutral.
4.       Free Exercise Clause Cases
a.       Menora v.IL HSAA (Yammaka Durign Bball Game)
                                                                                                                           i.      IL HSAA said you can’t wear any type of headwear during athletic competition.
                                                                                                                         ii.      Safety concerns that said somebody would trip, get hurt
                                                                                                                       iii.      Issue also; is this a facially neutral ban? Is it one that only gets @ religious headwear?
                                                                                                                       iv.      Said also that a # of courts have ignored this case.
b.       Walsh v. LHSAA
                                                                                                                           i.      Need to show intentional discrimination to make a free exercise claim based on a completely neutral regulatory procedure/statute.
                                                                                                                         ii.      Student wanted to transfer b/c he wanted to go to a Lutheran School, didn’t want to have to sit out a year.
c.       Employment Division v. Smith Controls
                                                                                                                           i.      If it’s a law that is made that is facially neutral, not to discriminate against religious or non, then it’s constitutional.
5.       Establishment Clause Cases
a.       Santa Fe Ind. School District v. Doe (Public School Prayer @ Football Game)
                                                                                                                           i.      Issue?:
1.       Can a public school allow a student led, student initiated prayer to be broadcast over the PA system?
                                                                                                                         ii.      Arguments:
1.       You can argue that once it’s out of the school’s hands (as in to a student election as it was in this case), that it’s not an est. case anymore
                                                                                                                       iii.      Real v. Sham purpose?
1.       What was the purpose of this prayer?
a.       School says solemnize the event, promote good sportsmanship, etc.
2.       But is that the real purpose?
                                                                                                                       iv.      Is this creating some sort of coercion by allowing students to address the crowd over the PA system of the school?