Court Denies Basketball Player Who Sought Immediate Eligibility On Constitutional Grounds

Mar 1, 2019

A federal judge from the West District of Kentucky has denied a high school basketball player’s motion for a preliminary injunction that would prevent the Kentucky High School Athletic Association’s ruling that he is ineligible because of his family’s move from one school district to another for basketball purposes.
The plaintiff (Z) is a prominent high school basketball player, expected to be aggressively recruited by division one universities across the country. In May 2018, Z transferred from Adair County High School to Marshall County High School following a move from Columbia, Kentucky to Benton, Kentucky. Upon transferring, the plaintiff and his father sought waiver of KHSAA Bylaw 6.
KHSAA Bylaw 6 restricts the athletic eligibility of transferring students. Pursuant to Bylaw 6, a transferring student-athlete, who has played in at least one varsity game after starting ninth-grade, is ineligible to participate in athletics at the school transferred to for one year. The period begins from the date of the last varsity game played at the school transferred from.
However, there are exceptions to ineligibility due to transfer listed in Bylaw 6 Section 2. Relevant here, Section 2 provides an exception for student-athletes that have transferred due to a “bona fide change in residence.” But even if a student-athlete qualifies for an exception under Section 2, they may still be found ineligible under Bylaw 6 Section 3. Section 3 states in pertinent part: “A waiver of the period of ineligibility is not required to be granted for those students satisfying one of the exceptions in Sec. 2. … If the change in schools is motivated in whole or part by a desire to participate in athletics at the new school. …”
The Ruling Officer for the KHSAA denied Z’s initial request for waiver. Z appealed that decision at which point a hearing was held before an independent hearing officer. Throughout the hearing Z and his father maintained that the transfer from Adair County to Marshall County was motivated by academics, a desire for Z to graduate in three years, a desire to be in close proximity to an airport due to Z’s father’s job in Maryland, and a slower life style conducive to their Christian values. Z’s father was questioned about Z’s four transfers prior to the ninth-grade and admitted those transfers were, at least in part, motivated by athletics. But he never wavered from his position that the transfer from Adair to Marshall, which occurred after the ninth-grade, was not motivated in whole, or in part, by athletics. According to Z and his father, where Z played was irrelevant. He was going to excel athletically at any school and had already developed the skills necessary to garner scholarship offers from around the country. Instead, Z’s father testified at the hearing that it was more important for Z to select a high school that would prepare him for the academic rigors of college than it was for him to select a high school for athletic motivations.
Toward the hearing’s end, Z’s father was confronted with an article printed in the Paducah Sun on May 25, 2018 based on a phone conversation he had with the article’s author, Edward Marlow. The article, titled “Harmon heading to Marshall County? Not just yet, says dad,” contains several direct quotes from Z’s father, which suggested the move was for basketball purposes. Z’s father admitted to giving the interview and making the statements therein but claimed that some of his words were taken out of context and “twisted.”
The hearing officer issued a recommended order to be approved by the KHSAA Commissioner. The recommended order contained findings of fact and conclusions of law, which supported the initial ruling officer’s determination that waiver of Bylaw 6 not be granted, and Z remain ineligible. The KHSSA Commissioner, Julian Tackett, issued a final order on Nov. 15, 2018. In it, the hearing officer’s recommended order was set aside, and separate findings of fact and conclusions of law were issued, as required by KHSAA due process. The Commissioner determined there had been a bona fide move qualifying Z for an exception under Section 2, but that Z should remain ineligible pursuant to Section 3 because the record reflected that Z’s transfer was motivated, at least in part, by the desire to participate in athletics. In coming to the conclusion that Z’s transfer was in part athletically motivated, the final order relied on the Paducah Sun article, Z’s father’s statement at the hearing indicating that coaching is always a consideration, and Z’s transfers prior to ninth-grade.
Following the final order, Z’s father filed suit against the KSHAA on his behalf in Marshall County Circuit Court. The KSHAA removed the case pursuant to 28 U.S.C. § 1331. The Plaintiff then moved the Court for a preliminary injunction that would allow him to participate in varsity basketball at Marshall County High School while this litigation is pending.
In considering the motion, the court noted that determination whether to issue a preliminary injunction rests on consideration of four factors: (1) whether the movant is likely to prevail on the merits; (2) whether the movant would suffer an irreparable injury if the court does not grant a preliminary injunction; (3) whether a preliminary injunction would cause substantial harm to others; and (4) whether a preliminary injunction would be in the public interest. Abney v. Amgen, Inc., 443 F.3d 540, 547 (6th Cir. 2006) (quoting Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001)).
“While the Court must weigh all four factors when determining whether to grant a preliminary injunction, the movant’s likelihood of success on the merits is more often than not the paramount consideration,” wrote the court. “Candidly, the Court has struggled in determining whether Z has demonstrated a strong likelihood of success on the merits. It is a close call, and the Court is aware of the impact its decision will have on not only Z, but high school basketball players and programs across the state. The Court is also aware that this issue may well be moot before it reaches the substantive stages of the litigation process and the implications that has on the Court’s current decision. See NCAA v. Lasege, 53 S.W.3d 77, 83 (Ky. 2001) While only basketball, the Court recognizes that the opportunities provided by extracurricular athletics have the potential to shape young lives. Suffice it to say the Court does not approach this matter lightly. With this in mind, the Court turns to Z’s substantive arguments.”
Z makes three substantive claims: (1) Bylaw 6 violates the Fourteenth Amendment, (2) Z, nor his father, were provided with notice of the evidence to be used against him at the administrative hearing in violation of the KHSAA’s due process rule Section 2(f)(1) and KRS 13B.090(3), and (3) the final order was unsupported by substantial evidence in violation of KRS 13B.150(2)(c).
While the court conceded that Bylaw 6 Section 3(d)’s phrase “in whole or in part” grants the KHSAA “a very broad standard by which to declare transferring student-athletes ineligible. However, a broad standard is not unconstitutionally vague, and the Plaintiff has not demonstrated that Bylaw 6’s standard is incomprehensible, nor has he demonstrated that it is so indefinite as to be no rule at all. The rule is broad, but it is clear—student-athletes are declared ineligible for one year if their transfer was motivated, even in part, by the desire to play athletics. Z’s success here is unlikely.”
The court noted that “it also appears that Z might be making an equal protection claim under the Fourteenth Amendment. If that is the case, he fails to demonstrate a substantial likelihood of success on the issue. Again, Bylaw 6 implicates no constitutional or fundamental right, nor does it discriminate based on suspect or quasi-suspect classification.”
Another relevant argument made by Z was that Bylaw 6 “violates substantive due process under the Fourteenth Amendment by interfering with his father’s fundamental right to parent his child. It does not. Z’s father has a right to parent his child, which includes the right to control his child’s education. Barrett v. Steubenville City Sch., 388 F.3d 967, 972 (6th Cir. 2004). However, Bylaw 6 does nothing more than restrict Z’s right to participate in high school athletics. Z’s father’s right to control Z’s upbringing and education does not extend so far as to allow him to demand his son be allowed to participate in high school athletics without restriction. Seger, 453 Fed. Appx. at 634. Thus, Z’s claim that Bylaw 6 interferes with his father’s fundamental right to parent his child all but certainly fails.”
Turning to Z’s second argument, the court noted that “the only real question is whether the KHSAA was required to disclose the Paducah Sun article to Z prior to the hearing. … It does not, as the KHSAA points out, require automatic disclosure. Z had the right to inspect any evidence the KHSAA planned to introduce at the hearing. The KHSAA was not required to volunteer such evidence without request. Z offers no evidence, or even allegation, that he ever made such a request. As such, the Court cannot say that Z has demonstrated likely success on the issue.”
The court also sided with the defendant on the final argument, noting that there was substantial evidence for the defendant’s decision.
In conclusion, the court “cannot say confidently that Z likely succeeds on the merits here, and a preliminary injunction is an extreme remedy. Therefore, after analyzing and balancing the four required factors, this court reluctantly finds that the requested preliminary injunction is not warranted in this matter.”
Z.H. v. Ky. High Sch. Ath. Ass’n; W. D. of Ky; 2019 U.S. Dist. LEXIS 5555 *; 2019 WL 178038; 1/11/19
Attorneys of Record: (for plaintiff) William C. Adams, III, LEAD ATTORNEY, Overbey & Adams, Murray, KY. (for defendant) Chad W. Collins, LEAD ATTORNEY, Kentucky High School Athletic Association, Lexington, KY; Jason T. Ams, Bingham Greenebaum Doll LLP – Lexington, Lexington, KY.


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