By Alan Goldberger, of Brown Moskowitz & Kallen, P.C.
On November 28, 2014 Frederick A. Douglass Mid-High School and Locust Grove High School competed in an Oklahoma Secondary School Activities Association quarterfinal football playoff game in Oklahoma City, Oklahoma. With just over one minute remaining in the game a touchdown scored by Douglass was called back as a result of a penalty for a sideline foul. The officials enforced the penalty but incorrectly replayed the down in which the touchdown was scored. The correct procedure would have been to count the touchdown and then enforce the penalty. Douglass lost the game by a score of 20-19.
Locust Grove advanced to the next round of the playoffs. Douglass was eliminated by the loss.
Although the OSSAA advised the school that its policy does not permit protests of an official’s error, Douglass appealed to the OSSAA and an appeal hearing was held before the Association’s Board of Directors. When the appeal was denied, Douglass instituted suit against the state association and obtained a temporary restraining order barring the OSSAA from conducting any further football playoff games until a decision by the court on the school’s application for judicial relief. The relief sought was an order directing that the final one minute and four seconds of the Douglass-Locust Grove game be replayed; or, in the alternative that the entire game be replayed due to the officials’ error.
On December 10, 2014 Oklahoma District Judge Bernard M. Jones held a hearing on the case. The following day, Judge Jones issued a decision denying Douglass’s request to replay the game, and dissolving the Temporary Restraining Order he entered one week before.
Concluding that “…the evidence does not support Plaintiff’s likelihood of success on the merits of the case,” the judge ruled that
…it borders on the unreasonable … to think this Court more equipped or better qualified than Defendant to decide the outcome or any portion of a high school football game.
In a four-page written opinion, the Court affirmed the well-established legal principle that “Courts ought not meddle in these activities or others… especially when the parties have agreed to be bound by and have availed themselves to the governance of these activities associations.”
In his concluding remarks Judge Jones eloquently framed the issue and the resolution:
Undoubtedly, the pursuit of further judicial action would result in the frustration of the world of athletics as we know it. This slippery slope of solving athletic contests in court instead of on campus will inevitably usher in a new era of robed referees and meritless litigation due to disagreement with or disdain for decisions of … [game] officials — an unintended consequence which hurts both the court system and the citizens it is designed to protect.
Judge Jones’ decision dismissing the Oklahoma school’s claims was far from the first judicial enunciation of the principle that American courts historically decline to substitute their judgment for that of game officials, for any number of persuasive reasons. Although his opinion did not reference specific legal precedent regarding judicial intervention in game officials ‘calls, Judge Jones was in fact following a line of cases, including two Supreme Court of Oklahoma decisions holding that courts will not consider referee’s calls in an athletic event justiciable controversies or otherwise act as “Super Referees” to decide the outcomes of athletic competition.
History Lessons from Oklahoma
On December 8, 2005, the Oklahoma Supreme Court vacated an injunction issued by a trial court prohibiting the Oklahoma Secondary School Activities Association from enforcing its mandatory two-game suspension of a football player after his disqualification from a game for flagrant unsportsmanlike conduct. Like most of the cases where a court was asked to engage in an “upon further review” analysis of a game officials call, the 2005 case, Brown v. Oklahoma Secondary School Activities Association, 2005 OK 88; 125 P. 3d 1219, involved the ejection of a player which under state governing body regulations, resulted in a summary two-game suspension.
The Supreme Court noted:
Rule 14, Football Championship, Rules Governing Interscholastic Activities In Senior High Schools (2005-06), provides in plain, clear, unambiguous, unmistakable and mandatory language that the official’s decision “shall be final in play-off games as well as regular season”. Therefore, it is not within our province to act as “super referees” to alter or overturn the referee’s determinations. Neither may we, because a referee does not make a call, do so for the official — we may not “call the game” or construe the official’s failure to see every infraction as arbitrary.”
Footnoted in the Supreme Court’s decision was the vintage authority handed down by the very same court 70 years earlier. In Morrison v. Roberts, 183 Okla. 359 (1938), the Court, by way of prescient dictum, articulated the applicable principles:
It is often thought and sometimes vociferously stated that athletic officials, including referees and umpires, have grievously erred in decisions and rulings. But when adopted rules, acquiesced in by all, give them the power of final decision, such decisions should not ordinarily be reviewed by the courts….
It is a matter of common knowledge that in various athletic organizations, and in various athletic contests, certain officials are clothed with final authority to construe rules and enforce penalties, and to suspend players from the game in progress, or for a definite period of time, or to forfeit the game or the match to one participant or the other. Frequently such rule enforcements work more or less grievous injury to one directly affected thereby, without in any sense giving him a right to correct or change the result by court action such as this. The courts generally should leave the final authority in the athletic official or board, with whom that authority is placed by those who had authority to make the rules and authorize the method of application and enforcement.
Despite two state Supreme Court opinions and the Douglass trial court opinion, Oklahoma football does not have a monopoly on such cases.
The 1981, the supreme court of yet another state again affirmed that courts will not “referee” sporting events. In Georgia High School Assn v. Waddell, 248 Ga. 542 (1981), 285 S.E.2d 7, 1 Ed. Law Rep. 965, the Supreme Court of Georgia declined to interject itself in affording a remedy after game officials failed to award a merited “first down” as part of the enforcement of a penalty. The court explained:
…we find no denial of equal protection by the referee’s error here. Were our decision to be otherwise, every error in the trial courts would constitute a denial of equal protection. We now go further and hold that courts of equity in this state are without authority to review decisions of football referees because those decisions do not present judicial controversies.
Other Courts. Other Sports.
In the ensuing years, similar trial and appellate court decisions have turned away teams and athletes on the losing side of a game or disqualification call — right, wrong, or subject to debate — in a number of other states including Florida, New Hampshire, New Jersey, New York and Pennsylvania.
In a noted case involving the New York State Wrestling Championship Tournament, a trial court declined to reverse a wrestling official’s ruling assessing a two point penalty to a high school wrestler in for throwing his headgear skywards at the conclusion of his match. At the end of the match, the apparent victor was ahead, 7-6. The headgear landed near the scorers’ table and, after the winner was declared by the Referee, the Assistant Referee apprised the on-mat Referee of the unsporting act. After conferring with the on-site-for-the-tournament state rules interpreter, the opponent was declared the winner as the two-point penalty made the score 8-7. After a protest to the state wrestling committee, the officials’ decision was upheld. The Matter of Rodriguez v New York State Pub. High School Athletic Assn. Inc., 2005 NY Slip Op 51976, ensued. New York Supreme Court Justice Thomas J. Spargo called the case:
To establish a precedent of reviewing and potentially reversing a referee’s judgment call from the distant ivory tower of a judge’s chambers would cause unending confusion in the interscholastic athletic system.
In this era of “entitlement” and ubiquitous video recording devices and 35-camera-angle instant replay, it is not unreasonable to assume that more cases challenging referees’ rulings will be brought. Still, at the end of the day, sporting events will likely continue to be decided on the court and not in the court.
Alan Goldberger is an attorney and former sports official. He is the author of the book, Sports Officiating: A Legal Guide, now in its second edition; and the coauthor of Sport, Physical Activity and the Law, now in its third edition. A partner in the Summit, New Jersey law firm of Brown Moskowitz & Kallen, P.C., Al serves as counsel to numerous officiating and athletic organizations. He is admitted to the Bar in New Jersey, New York and Maryland. Al has been a featured speaker at numerous national and regional conferences. For more information see www.RefLaw.com.
© Alan Goldberger 2015 All Legal Rights Reserved
