A Louisiana state appeals court has left intact the ruling of a lower court, which declined to explore a question of damages in a case where a plaintiff alleged that his due process rights were violated when he was deemed ineligible by the Louisiana High School Athletic Association, Inc.
The dispute surfaced when Giles Menard, the son of plaintiffs Creig Menard and Debbie Menard, transferred from Abbeville High School in Vermilion Parish, Louisiana to Lafayette High School in Lafayette, Louisiana. Menard had played varsity football at AHS until he was injured in November 2007.
After transferring to LHS, Giles and the school made an eligibility request to play football. On February 25, 2008, the LHSAA ruled that there was not a bona fide change of plaintiffs’ residence under its rules. Therefore, Giles was ineligible under its “transfer rule” to play football for LHS during his initial year of attendance, which happened to be his senior year.
The plaintiffs filed a petition in Lafayette Parish, seeking a temporary restraining order and further injunctive relief against the LHSAA. The court ultimately sided with the defendant school district, sparking the plaintiffs’ appeal.
Specifically, the Menards challenged the substance of the transfer rule, the LHSAA’s interpretation of the rule as applied to the underlying facts, and its conclusion under the rule that Giles’s residence in Lafayette was not the result of a bona fide change in residence.
“The trial court was correct in concluding that it lacked subject matter jurisdiction to determine those issues, which clearly relate to the internal affairs of a voluntary association,” wrote the appeals court. “As we noted in Johansen v. La. High Sch. Athletic Ass’n, 04-0937, p. 6 (La. App. 1st Cir. 6/29/05), 916 So.2d 1081, 1087, the LHSAA’s actions in investigating eligibility of student athletes and enforcing its own internal regulations are clearly not conducted under color of state law. In Johansen, we also made brief reference to, but did not specifically address, the applicability of 36 U.S.C. § 220526, part of the Amateur Sports Act, 36 U.S.C. § 220501, et seq. Id., 04-0937 at p. 3 n.1, 916 So.2d at 1085 n.1. 36 U.S.C. § 220526(a) provides, in pertinent part:
“An amateur sports organization that conducts amateur athletic competition shall have exclusive jurisdiction over that competition if participation is restricted to a specific class of amateur athletes, such as high school students . . . .
“We find, as contended by the LHSAA, that 36 U.S.C. § 220526(a) serves to preempt plaintiffs’ claims for damages under Louisiana law relating to Giles’s eligibility to play football under the LHSAA’s rules, including the transfer rule, and deprived the trial court of subject matter jurisdiction regarding the merits, interpretation, and enforcement of the LHSAA’s internal rules and regulations. See Slaney v. Internat’l Amateur Athletic Fed’n, 244 F.3d 580, 594-96 (7th Cir. 2001), and Lee v. U.S. Taekwondo Union, 331 F.Supp.2d 1252, 1255-59 (D. Ct. Haw. 2004).”
The appeals court then turned to the plaintiffs’ due process claim, noting that to prevail, the plaintiffs “must show the existence of some property or liberty interest which has been adversely affected by state action. Brennan v. Bd. of Trustees for Univ. of La. Sys., 95-2396, p. 9 (La. App. 1st Cir. 3/27/97), 691 So.2d 324, 330.
“To have a property interest protected by due process, a person must have more than an abstract need or desire for it. He must have a legitimate claim of entitlement to it rather than a unilateral expectation of it. The due process clause of the Fourteenth Amendment does not insulate a citizen from every injury at the hands of the state. Mitchell v. La. High Sch. Athletic Ass’n, 430 F.2d 1155, 1157-58 (5th Cir. 1970). In Walsh v. La. High Sch. Athletic Ass’n, 616 F.2d 152 (5th Cir. 1980), the plaintiff parents challenged the LHSAA’s transfer rule. In rejecting the challenge as ‘outside the protection of due process,’ the court squarely held that ‘[a] student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement.’ Id. at 159-60.
“In their petition, plaintiffs alleged that ‘Giles is an outstanding athlete and will probably be awarded an athletic scholarship to play football in college should [he] be allowed to play football.’ The possibility of obtaining a college athletic scholarship based upon participation in high school athletics simply does not constitute a property interest or right protected by due process, but rather a speculative and uncertain expectation or opportunity. Johansen, 04-0937 at p. 8, 916 So.2d at 1088; Marino v. [Pg 7] Waters, 220 So.2d 802, 806 (La. App. 1st Cir. 1969); Sanders v. La. High Sch. Athletic Ass’n, 242 So.2d 19, 28 (La. App. 3rd Cir. 1970). See also Ind. High Sch. Athletic Ass’n, Inc. v. Carlberg, 694 N.E.2d 222, 241 n.26 (Ind. 1997).”
The appeals court concluded that the plaintiffs’ son ‘had no procedural or substantive due process right to participate in interscholastic sports regulated by the LHSAA. See Johansen, 04-0937 at p. 9, 916 So.2d at 1088. Because a student athlete has no liberty or property interest in participating in interscholastic athletics, plaintiffs cannot prevail on the merits of their claim that either Giles or they were deprived of due process by reason of his being declared ineligible to compete within the LHSAA system. See Brennan, 95-2396 at p. 9, 691 So.2d at 330. As we held in Johansen, no amendment to the factual allegations of plaintiffs’ petition could cure this fundamental flaw in that purported cause of action. Thus, plaintiffs are not entitled under La. C.C.P. art. 934 to amend their petition to attempt to state a violation of due process. See Johansen, 04-0937 at p. 9, 916 So.2d at 1088, and American Int’l Gaming Ass’n, Inc. v. La. Riverboat Gaming Comm’n, 00-2864, p. 17 (La. App. 1st Cir. 9/11/02), 838 So.2d 5, 18.”
The panel of judges went on to review the purpose of the transfer rule as described in Genusa v. Holy Cross College, Inc., 389 So.2d 908, 909 (La. App. 4th Cir. 1980): “The purpose of the transfer rule is prophylactic in nature; without it high schools would be free to recruit athletes with a laissez-faire attitude. It protects the integrity of athletic programs and prevents transgressions by unscrupulous participants.
“As we did in Johansen, we agree with the observation of the court in Genusa that ‘[t]he good intent of the rule is evident.’ Id. The classification made by the transfer rule and the bona fide change of residence rule is not arbitrary or inherently suspect, and does not encroach upon a fundamental constitutional right. See Johansen, 04-0937 at p. 10, 916 So.2d at 1089, and Chabert, 323 So.2d at 779-80.
“As emphasized by the LHSAA, the plaintiffs’ petition fails to set forth any factual basis for a violation of federal or state equal protection rights. See American Int’l Gaming Ass’n, 00-2864 at pp. 16-17, 838 So.2d at 17. Our review of the pleadings, the record, and the parties’ briefs discloses no possible grounds supporting plaintiffs’ conclusory assertion of violation of equal protection rights. Indeed, plaintiffs’ brief on appeal does not set forth any substantive argument relating to equal protection, as opposed to due process. We conclude, in our considered discretion, that the grounds of the objection of no cause of action for violation of equal protection rights cannot conceivably be removed by amendment of the petition under La. C.C.P. art. 934. See, e.g., Johnson v. State, 06-2024, p. 11 n.2 (La. App. 1st Cir. 6/8/07), 965 So.2d 866, 872 n.2, writ denied, 07-1784 (La. 11/9/07), 967 So.2d 507. We accordingly affirm the trial court’s judgment, as amended, as we sustain the objection of no cause of action raised in the peremptory exception as to the equal protection claim.”
Creig And Debbie Menard v. Louisiana High School Athletic Association; Ct. App. La., 1st Cir.; NO. 2009 CA 0800, (La.App. 1 Cir. 12/23/09); 2009 La. App. LEXIS 2187; 12/23/09
Attorneys of Record: (for plaintiffs) John A. Hernandez, III, Lafayette, Louisiana. (for defendant) R. Bradley Lewis, Bogalusa, Louisiana,
