By Anthony R. Caruso
Sports is big business. Not because of the dollars involved, or the media coverage, or its impact upon our society and culture. Sports is big business because the courts have become an interested partner.
Never before has the legal system become so intricately involved with the interpretation and administration of the growth and operation of sports in this country. Since the days of Curt Flood challenging the rules of free agency in Major League Baseball, we have witnessed an explosion in sports litigation. Did you know that in New Jersey, a spectator at a minor league game who is hit with a foul ball during the game is deemed to have bad luck, yet his or her fortunes improve if hit during batting practice? Yes, the evolving trend as established by the courts appears to be that a spectator assumes the risk when the game begins, but should be able to expect protection while buying a hot dog prior to the first pitch.
The National Collegiate Athletic Association (NCAA) has also had its bouts in the courts. Everything from contract disputes with coaches to Title IX (federal gender equity rules) implications, and even disputes with major sports equipment manufacturers, the NCAA has become an experienced litigant.
The most distressing development involves our children. Even youth sports is now “in the game” when it comes to the courts. Parents and coaches are suing local sports organizations, our referees and umpires are being physically attacked, and the kids are experiencing more than learning the fundamentals of the game. At least one little league group known to this author has been sued several times in the past few years over various management and operation decisions.
However, one of the most unique sports/courts partnerships has to be one involving a long-running dispute over recruiting high school athletes: Tennessee Secondary State Athletic Association v. Brentwood Academy. In a dispute originating in Tennessee with a 10-year litigation history, these competitors are heading to the United States Supreme Court…for the second time.
The case involves Brentwood Academy, a wealthy private school south of Nashville, and the Tennessee Secondary School Athletic Association, which governs high school sports in the State. Brentwood Academy, with sixteen state championships in the past decade, sent letters in April 1997 inviting 12 eighth-graders to attend spring football practice. The letters were sent by the Academy’s football coach, and the students’ parents already had signed contracts and paid deposits to attend the 780-student elite high school.
The Athletic Association said the letters, which were signed “Your Coach” with follow-up calls being made from the coach, violated rules against recruiting high school players. The TSSAA hit the school with a $3,000 fine, banned it from postseason football play and put the school on probation for four years.
The school unsuccessfully appealed twice, and then sued the Athletic Association alleging that TSSAA had infringed on its free speech rights under the First Amendment. TSSAA contends its members join the association voluntarily, draw up rules and agree to abide by them.
At issue is whether a private school in Tennessee has a free-speech right to contact prospective students about its sports programs, even though the school belongs to an athletics association with anti-recruiting rules that bar such contacts. The focus here is speech rather than conduct, so state associations could still likely prohibit inducements to attend a school and other activities regardless of the outcome.
Lower court rulings favored the school, saying that the First Amendment protected the recruiting letters as an act of free speech. In 2001, the high court determined that the TSSAA behaved in a quasi-governmental fashion and therefore could be sued, and ruled 5-4 in favor of Brentwood, affirming a lower court ruling that afforded First Amendment protection to Brentwood Academy.
The Court is now again being asked to decide whether the Tennessee school’s free-speech rights outweigh rules limiting contacts with student athletes.
The sins of recruiting have often been touted and exposed whenever possible as part of the fight against allowing sports to become “big business.” Even more so than in the case of the NCAA, as the regulator of collegian contact by professional sports organizations, state high school athletic associations routinely prohibit representatives of prep teams from actively chasing middle school athletes. Many feel this is an important protection which must be maintained. TSSAA Executive Director Ronnie Carter has been quoted as fearing a trickle down process if the prohibitions are removed, whereby private schools will start viewing eighth graders the same way colleges look at high school seniors. “From the perspective of educators, we don’t think that’s healthy.”
The role of amateur sports in the education process has long been debated, probably since the Rutgers Princeton inaugural football meeting (which, by the way, Rutgers did win). The NCAA believes intercollegiate sports competition to be an important and integral part of education and promotes “a clear line of demarcation between intercollegiate athletics and professional sports.” Hard to believe, especially in light of the financial pressures inadvertently placed on the athletes to win. When a Rutgers receiver dropped a pass in the end zone late in the game against West Virginia at the end of their 2006 regular season game, it likely cost the program several million dollars-the difference in anticipated revenues between the collegiate bowl Rutgers most likely would have been selected to play in had they won against the Mountaineers, and the bowl game ultimately played.
While some think a victory for Brentwood would not be disastrous for state athletic associations, it could certainly be the strongest blow to date against long standing institutional principles which many view as sacred in scholastic sports. Resulting modifications to recruiting and speech policies could be material if Brentwood prevails. At the very least, state scholastic associations would need to modify their rules to permit more specific information about school sports programs. The fear undoubtedly would be a first step toward high school coaches making house calls to middle-schoolers, with promotional materials in tow, not to mention the potential for the “new media” craze of emails and digital video clips invading a child’s household.
A weakening of recruiting rules also could worsen relations between public and private schools, which have already been strained by inequities of the current situation. Private schools operate without traditional attendance boundaries, and thus could benefit more from relaxed recruiting restrictions than public schools with boundary restrictions. The continuing cry from public schools to “level the playing field” would certainly become more ferocious.
The Supreme Court heard arguments in April 2007, and appeared inclined to uphold the Athletic Association’s rules against recruiting, in the face of a First Amendment challenge by the private academy.
Justice Antonin Scalia expressed doubt about Brentwood Academy’s free-speech rights in relation to the letter. “It was a letter from a coach,” Scalia said. “I mean, that to a young kid, that is recruiting.”
Justices Stephen Breyer and David Souter also had pointed questions for James Blumstein, the attorney representing Brentwood. Blumstein argued the letter was harmless and was sent only to students at other schools who had already signed an “enrollment contract” and planned to attend the academy in the fall. Souter quizzed Blumstein about the small percentage of students who sign the enrollment contracts, but then go to other schools. “Why isn’t there a legitimate interest in preventing recruiting among those youngsters?” Souter asked.
“Enforcement of the rule here imposed only a minimal burden on speech,” said Maureen Mahoney, an attorney for the Athletic Association that regulates 374 dues-paying public and private institutions, told the justices. She argued that athletic recruiting is harmful to young adults and puts too much of an emphasis on sports, and that since Brentwood voluntarily joined the Athletic Association, it must be bound by its rules.
Blumstein further argued that the coach’s letter went to all 12 students who had just been admitted, arguing that the speech in this case was “beneficial” and “welcomed by the families.”
But Mahoney argued irrelevance since not all students who sign contracts end up enrolling. Mahoney told justices that participation in state athletic organizations is voluntary and that the school forfeited some of its free speech rights when it joined the athletic association and agreed to abide by the group’s anti-recruiting rule, which limits contact with students until after they begin attending classes: “Brentwood cannot escape the contractual bargain it made. This was a form of recruiting. Coach-initiated contact with students enrolled in another school should not happen.”
Under the Athletic Association’s rules, however, students who intended to attend the school were allowed to participate in athletic practices before classes started, a fact that prompted Justice Ruth Bader Ginsburg to question why “it’s permissible to do it, but not to talk about it?” Mahoney responded that the problem was not that the students were notified of the practice; it was that the invitation came from the school’s coach.
Chief Justice John Roberts appeared somewhat skeptical and questioned whether letters informing students of dates for spring practice could be seen as permissible speech.
Interestingly, the NCAA, the National School Boards Association and the National Federation of State High School Associations have filed briefs supporting the TSSAA, saying broad powers are needed to protect children by enforcing recruiting rules.
The Bush administration also argued in support of the TSSAA, urging the high court to reverse the lower court decision to allow such groups to decide on its own rules so they can continue to prevent exploitation of children and maintain the delicate balance between academics and athletics.
Brentwood Academy has the support of the National Women’s Law Center, the Association of Christian Schools International and the National Association of Independent Schools.
High school officials worry a Brentwood Academy victory might move state associations toward a collegiate recruiting model, where such conduct would be allowed but regulated, instead of entirely prohibited. It is possible that many private high schools under this model may fall prey to the same temptations of colleges, and seek to circumvent any newly imposed recruiting rules.
The Supreme Court hopes to have a ruling by late June which is certain to have wide ramifications, from equal opportunities for female athletes to the liability and regulatory role of athletic associations such as the NCAA. Hence, the decision of the Court is being closely monitored throughout the country.
One thing is for sure. If Brentwood wins, high school recruiting will never be the same, and sports in general will become even more of a business than “business as usual.”
Anthony R. Caruso, a partner with Fox Rothschild LLP, is the co-chair of the firm’s Sports and Entertainment Practice Group. He represents the National Lacrosse League and various sports/ entertainment companies and personalities, and is a former owner of a minor league basketball team and a former sports agent.