Sports Law Attorney Examines the Viability of Disappointment Lawsuits

Dec 4, 2009

By Russell Romriell
Timothy Epstein of SmithAmundsen LLC in Chicago spoke to a group of law students November 20 at the University of Texas School of Law in Austin, TX about the future of disappointment lawsuits in the context of amateur athletes.
A disappointment lawsuit is a claim by a student athlete that misallocation of playing time has led to a decrease in future earning potential. These claims can take the form of a breach of contract claim or as a claim for tortious interference with an athlete’s proprietary interest in a future career as a professional athlete. Although these types of lawsuits are becoming more common, they do not have a winning record, and plaintiffs face a difficult obstacle before succeeding in a disappointment lawsuit.
One of the difficulties athletes face is showing that future earning potential really was lost. In some of the earlier cases that have been brought, the athletes who brought the suit went on to have less than successful careers. Although not definitive, these cases show why courts might be unwilling to award a plaintiff damages for lost earning potential based on unproven abilities.
One case that came close was National Collegiate Athletic Association v. Yeo. Joscelin Yeo was a swimmer from Singapore, and was one of Singapore’s leading athletes. She swam in several high level competitions including four Olympic Games. In 1998, Yeo enrolled and swam at the University of California at Berkeley where she established a relationship with her soon to be 2000 Olympics coach. Her coach, Michael Walker, then transferred to the University of Texas at Austin and Yeo followed so she could continue training for the 2000 Olympics with her coach.
Cal opposed the transfer, and Yeo was ruled ineligible to compete during the 2000-2001 season. Although Yeo did sit out during the swimming season, she also competed in the 2000 Olympics, which required a waiver from the regular academic requirements. In Fall 2001, Yeo began swimming for the University of Texas. Cal opposed again. Although Yeo had sat out the required time, Cal complained that her participation in the Olympics and low credit hours meant that she remained ineligible. The Big XII conference and NCAA agreed with Cal, and the University of Texas declared Yeo ineligible.
Yeo filed for an injunction that would prevent UT from declaring her ineligible so that she could participate in the upcoming championships. She argued that “by denying Yeo an opportunity to protect her vested interest in her established athletic reputation UT-Austin had violated the Texas Constitution’s due course of law provision and, therefore, UT-Austin’s declaration of ineligibility could not be enforced.”
The Court of Appeals agreed with Yeo, and she was able to compete. The Court recognized that Yeo had an existing professional and athletic reputation, and also that the cultural background of Singapore might contribute to a damaged reputation if Yeo were not allowed to compete. Based on these considerations, the Court of Appeals granted the injunction.
The victory was short-lived, however, because the Supreme Court of Texas reversed the decision and ruled that all reputations are equally protected regardless of previous accomplishments. As a result, every athlete is considered to have no protected interest in his or her athletic reputation.
Although the case ultimately failed, there is some future for disappointment lawsuits. Plaintiffs face an uphill battle, but it does seem possible that given the right set of facts a court could rule in the plaintiff’s favor. One example could be if a young baseball pitcher is overused, or is taught to throw a curve ball at a young age. There is some medical support that shows these pitchers lose much of their ability before they get through high school. The difficulty remains to show what future athletic career or earning potential the athlete could have had.
Russell Romriell is a third year law student at the University of Texas School of Law.


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