By Ellen J. Staurowsky, Ed.D., Professor, Sport Management, Drexel University
In Brooke Heike v. Sue Guevara (2013) we encounter a familiar scenario. The story began with an accomplished female high school basketball player from Michigan who drew the attention of several National Collegiate Athletic Association (NCAA) Division I coaches. Heike accepted an offer to attend Central Michigan University (CMU) on a full athletic scholarship for the academic year 2006-2007 with the expectation that she would play for coach Eileen Kleinfelter, a coach who allegedly said, “I can’t guarantee how much playing time you’ll receive, but I can guarantee you an education” (Heike v. Guevara, 2013, para. 4).
Within nine months of enrolling at CMU, a new head coach, Sue Guevara, was hired and charged with rebuilding a program that had struggled to compete in the Mid-American Conference. Heike maintained that from the outset, Guevara mentioned the prospect of transferring although Heike’s athletic scholarship was renewed for the 2007-2008 year. During the summer prior to her sophomore year, Heike worked out with professional trainers to improve her skills but she saw a reduction in playing time from the previous year, appearing in only six games and scoring only two points.
At the end of the 2007-2008 season, a decision was made by Coach Guevara to not renew Heike’s athletic scholarship on the grounds that she “…lacked the necessary athletic basketball skills to be competitive at the Division I level and that during the 2007/2008 season, she lacked the initiative and discipline for self-improvement” (Heike, 2013, para. 9). In accordance with NCAA Bylaw 15.3.2.3, Heike was afforded the opportunity to appeal the decision and to have a hearing on the matter. In her written appeal statement, Heike asserted that Guevara “was trying to get [her] to quit” and to transfer to another institution. Heike further contended that she had been subjected to disparate, discriminatory treatment and had endured harassment due to her race and color and sexual orientation (her heterosexuality) (Heike v. Guevara, 2009). Guevara, in her response, described Heike as a player who “…[c]ould not defend post players…[m]issed lay-ups in drills….[and] missed spring times causing the entire team to have additional sprints” (Heike, 2013, para. 14). Guevara continued, “While [Heike] is a gifted student and intelligent woman off the floor, she consistently struggles to understand key basketball concepts” (Heike, 2013, para. 14).
With her CMU appeal failing, Heike turned to the courts seeking relief on a nine-count complaint that made claims under both federal and state laws, among them violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In determining the appropriate legal framework to apply in addressing the harassment issues raised by Heike, the Court used the employment-discrimination framework, noting that it struck an appropriate balance between employer discretion and equal protection. Recognizing that Heike’s athletic scholarship was analogous to a one-year employment contract, renewable at will, the Court reasoned that “This lawsuit hinges on the decision not to renew that contract and thus is analogous to a state official’s decision whether to retain an employee in an at-will context” (Heike, 2013, para. 43). Athlete evaluations under that theory were thought to be “as or more inherently subjective than employment decisions” with “a coach’s decisions about who plays, how much playing-time each player gets, and whether a player remains part of the team at the end of a season are, by their naturesubjective” (Heike, para. 43).
In affirming the district court’s decision to dismiss Heike’s claims, there was sympathy for Heike as an athlete who had been dismissed from her team. However, the Court noted, “Her lawsuit raises the perhaps commonly contemplated, but seldom actually litigated, question: what legal recourse is available to an athlete who believes that her coach has treated her unfairly? In this case, the answer is: none” (Heike, 2013, para. 1).
This case illuminates a number of issues related to the fate of college athletes on athletic scholarship that are worth contemplating. First, under this ruling, the athletic scholarship is a transaction that shapes the relationship between coach and athlete and renders it analogous to that of an at will employment arrangement. As such, coach assessments are accorded “somewhat more deference than ordinary employers” in making personnel decisions. Second, the NCAA’s argument that the primary focus of a college athlete’s life is on academics is shown not to be the case if considered in light of the tendency to advise athletes to transfer elsewhere when they are no longer of use to the team. According to a 2013 NCAA study of Division I men’s basketball players who transferred to another institution, 90% did so for athletic reasons. Within the construction of an employment context, this would argue that athletes comprise a migratory workforce who travel to where the work is and are advised accordingly. Third, the adequacy of the hearing opportunity provided to an athlete who has had an athletic scholarship revoked, reduced, or not renewed may be worth questioning. While the NCAA bylaw stipulates that the hearing needs to be done outside of the athletic department, athletic department personnel may serve on the committee as long as it is a standing appointment. College athletes, depending on institutional circumstances, may seek advice from faculty members, parents, and others. However, they typically do not have access to an advocacy structure that balances the power issues that are often at play in coach/athlete relationships. And finally, this case demonstrates the purpose of an athletic scholarship, which is to reward athletic performance. Heike lost her athletic scholarship because she was not a good basketball player in the assessment of her coach. The fact that she was a “gifted student and intelligent woman” did not protect Heike from the loss of her athletic scholarship.
According to the CMU Women’s Basketball Media Guide, the team’s record in 2004-2005 was 10-18; in 2005-2006 was 16-12; and in 2007-2008 it was 6-23. One news account indicates that the struggles the team had experienced dated back farther than the Kleinfelter era but Kleinfelter had inherited a program that made recruiting difficult.
References
Editorial. (2007, January 31). Come on Eileen. CMlife.com. Retrieved from http://www.cm-life.com/2007/01/31/comeoneileen
Heike v. Guevara, 519 Fed. Appx. 911; 2013 U.S. App. LEXIS 5420 (6th Cir.),2013 FED App. 0271N (6th Cir.) (6th Cir. Mich., 2013).
Heike v. Guevara, 2009 U.S. Dis. LEXIS 103600 (E.D. Mich., November 6, 2009).
NCAA Staff. (2013). Tracking transfer in Division I men’s basketball. Extra Point: NCAA research to keep you in the game. Indianapolis, IN: National Collegiate Athletic Association. Retrieved from http://www.ncaa.org/sites/default/files/DI_Transfers.pdf
