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Current Legal Issues in Athletics Administration NEBRASKA COACHES ASSOCIATION MULTI-SPORTS CLINIC – LINCOLN – JULY 2021 CURRENT LEGAL ISSUES IN ATHLETICS ADMINISTRATION PRESENTER: LEE E. GREEN, J.D. PROFESSOR EMERITUS BAKER UNIVERSITY TOPICS COVERED IN HANDOUT COVID-19 Sports Law Litigation. Constitutional Law: Student-Athlete Freedom of Speech. Constitutional Law: Social Media. Constitutional Law: Due Process & Being Cut from Teams. Constitutional Law: Due Process & Vaping. Constitutional Law: Freedom of Religion & Prayer. Constitutional Law: Equal Protection & Gender Discrimination. Constitutional Law: Equal Protection & Discrimination Based On Race-Ethnicity-Religion. Constitutional Law: Equal Protection & Participation Rights Of Transgender Athletes. Constitutional Law: Privacy Issues. Constitutional Law: Defamation Suits Against Parents. Liability for Sports Injuries. Liability for Concussions. Hazing Prevention Legal Standards. Sexual Harassment in Athletic Programs. Title IX & New OCR Sexual Assault/Harassment Regulations. Title IX & Sports Program Inequities for Girls’ Athletics Teams. Sports Officials: Legal Protections Against Assault. Fair Labor Standards Act Regulations Impacting School Sports. Nebraska-specific information such as the state hazing law, the state concussion protocol statute, the state child abuse reporting law, and the state activities association’s equity and inclusion policy addressing the participation of transgender students in school athletics programs, are included below in the appropriate section. Legal Issues in Athletics Administration Over the course of the calendar year 2020, a new category of legal disputes arose never- before encountered by school and athletics administrators: COVID-19 related lawsuits. In addition, litigation was filed, court cases were decided, legislation was enacted, administrative agency rulings were released, state athletic association decisions were issued, and other legal pronouncements were handed down regarding the wide range of issues traditionally impacting school sports programs. In each instance, whether related to COVID-19 or traditional interscholastic sports law issues, the principles established illustrate the importance for school administrators and athletics personnel of understanding contemporary legal issues and proactively applying that knowledge to policy development and day-to-day management of their athletics programs and sports personnel, including coaches, trainers, and event supervisors. COVID-19-Related Sport Law Cases Beginning in mid-March of 2020, example after example emerged across the country of school and athletics administrators relying on the recommendations of national, state, and local public health authorities to make decisions clearly intended to be in the best interests of the health, safety, and well-being of students and student-athletes regarding academic scheduling and sports seasons only to find those decisions challenged by a small-yet-vocal minority of parents or community members. In general, the objectors disagreed with alterations to class scheduling or postponement of athletics seasons with their dissenting views based not on the opinions of scientific or medical experts, but solely on the fact that other schools in neighboring communities, counties, or states had adopted different strategies. In many of those situations, in a reflection of the nature of our litigious society – even in the middle of a pandemic that has resulted in over twelve million Americans being infected with COVID-19 and more than a quarter-million losing their lives to the coronavirus – lawsuits were filed by objectors attempting to prioritize sports over the public health crisis. One such typical case was Mermigis v. New York Governor Andrew Cuomo, the New York Public High School Athletic Association, and Niagara Falls High School, et al (including numerous individually- named state association, section, and school athletic administrators across the state). The September filing in New York State Court by the father of a Niagara Falls High School football player was a class-action suit seeking a temporary restraining order (TRO) to overrule the decision of the NYPHSAA and its eleven geographic sections to move football season from the fall of 2020 to the spring of 2021. On October 30, a New York Supreme Court judge ruled against granting the injunction that would have directed high school football to resume in the fall. In his ruling, the judge noted that a TRO requires that the plaintiff demonstrate that the affected persons (high school football players across New York) would suffer irreparable harm and have a substantial likelihood of success on the merits if a full trial was to be held later. The judge cited the spring football season as a viable option that nullified any claim of irreparable harm, along with the fact that participation in high school sports is a privilege, not a constitutionally-protected right. He also relied upon affidavits from the New York State Department of Health regarding the high-risk status of football with relation to the coronavirus, stating that the delay of the season to the spring “[is] a wise policy … the court owes a great deference to the protective measures ordered by [the state association, its sections, and the member schools] in response to the COVID-19 crisis.” Similar rulings were issued in the two court cases Let Us Play Coalition v. Illinois Governor J.B. Pritzker & the Illinois High School Association and Doe v. Minnesota State High School League, in both of which the plaintiffs sought injunctions following the postponement of football and volleyball to the spring, with judges deferring to medical and scientific experts over the objections of those who disagreed with deferral of the sports seasons for a few months. In the MSHSL case, the state association’s Sports Medicine Advisory committee – relying on an evolving analysis by state public health authorities – later revised its recommendations regarding the two sports and the MSHSL reinstated the fall seasons of the two sports, emphasizing that the health and well-being of student-athletes as determined by medical and scientific advice took precedence over all other criteria with regard to the scheduling of sports seasons. In early September, in Hepler et al v. Shawnee Mission School District & Blue Valley School District, a state court judge deferred to local health experts in denying a TRO that would have allowed the immediate resumption of girls’ golf at the ten high schools in the two districts, the sport having been put on hold based on the analysis of Johnson County (KS) public health authorities. Later in the month, when the county health department revisited the scientific data on the spread of the coronavirus in the area and modified its recommendations, the districts allowed resumption and ultimately completion of the girls’ golf season, again emphasizing that medical and scientific advice took priority over sports-focused objections by parents about the scheduling of golf seasons in neighboring districts, counties, and states. Another category of COVID-19-related lawsuits are those in which parents or other constituents have challenged limits on crowd sizes at sports events. On October 1, 2020, in County of Butler v. Wolf, the U.S. Third Circuit Court of Appeals upheld as constitutional crowd size restrictions imposed by Pennsylvania Governor Tom Wolf that were based on recommendations by public health authorities and that limited indoor gatherings to 25 and outdoor to 250, restrictions that were vehemently objected to by parents of high school student- athletes whose dissents were based on comparisons to crowd limits in neighboring states. On October 5, 2020, in J.W. et al v. Minnesota State High School League, the families of football and volleyball players at four high schools filed suit challenging limits on fans that the plaintiffs claimed were intended to deprive parents of the right to support their children playing high school sports. The state association’s restrictions on crowd sizes were based on medical recommendations from the Minnesota Department of Health and after science-based updates to advice proffered by public health authorities, on October 9, the MSHSL revised its guidelines for indoor sports and the lawsuit was withdrawn. And in September 2020, in a lawsuit filing that garnered national media attention because of the frustrations over the years of school districts and administrators nationwide who in the midst of attempting to provide exemplary educational and extracurricular programs to America’s young people are regularly forced to endure the filing of frivolous suits regarding every detail of those efforts, a district actually became the plaintiff in a crowd-size case – Blue Springs School District v. Jackson County, Missouri – when based on recommendations by the county health department, high school football crowds were limited to 100 persons. The district objected, citing not scientific data regarding health and safety, but rather the larger crowd sizes permitted at high school games in neighboring counties and states and the greater number of fans permitted in some professional football venues. In late September, a state court judge denied the district’s request for a TRO, and in early October, after public health authorities – based on evolving medical evidence – amended its COVID-19 protocols to allow larger crowds, the district dropped the lawsuit. An ongoing concern for school districts nationwide is the liability question as to whether
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