Legal Issues in Athletics Administration
Over the course of the year, lawsuits were 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 impacting school sports programs. In each instance, the principles established illustrate the importance for school administrators and athletics personnel of understanding contemporary issues in sports law and proactively applying that knowledge to policy development and day-to-day management of their athletics programs.
Liability for Sports Injuries
In January 2016, in Dixon v. Pop Warner Football, the youth football organization and four football coaches agreed to a settlement in excess of $1 million in a lawsuit filed by the mother of Donnovan Hill, who during a Los Angeles-area game in 2011 when he was 13 years old sustained neck and spinal cord injuries resulting in permanent quadriplegia when attempting to make a tackle by leading with his head, a practice the suit alleged had been taught and encouraged by his coaches.
In December 2015, the California judge overseeing the case ruled that the pre-participation waiver of liability Hill’s mother had signed did not bar suing for gross negligence and scheduled a trial for May of 2016 on the issues as to whether Pop Warner would be held vicariously liable for a lack of reasonable care in its selection and training of coaches and the failure of those coaches to provide proper technique instruction and adequate supervision of players. The settlement also resolved a separate misrepresentation lawsuit filed by Hill’s family alleging that Pop Warner continued to state on its website for years after the injury that, because of the organization’s stringent safety protocols, no player had ever been catastrophically injured. On May 11, Donnovan died after complications from surgery related to his injuries. In response to the Dixon case and numerous other similar incidents in youth football, Pop Warner changed its rules regarding head-on tackling, kickoffs, practice drills, contact safety protocols and mandatory football-specific safety training for coaches.
In June 2016, a $10.5 million settlement was reached in Carter v. Kern High School District, a case in which a Bakersfield (California) High School student, Mitch Carter, was wearing a chicken costume at a football pep rally in the school’s gymnasium when, at the encouragement of athletic department personnel in what was supposed to be a mock attack on an upcoming opponent’s mascot, Carter was dogpiled by approximately 30 members of the Bakersfield football team.
With an estimated 6,000 pounds of schoolmates on top of him, he was kicked, punched, and had his head repeatedly pounded against the hard, wooden floor. Because of the laughter and applause from the students attending the pep rally, school officials failed to intervene in a timely fashion and, after realizing that Carter was being injured, were slow to pull the pile of 200-to-300-pounders off him. Carter sustained numerous injuries, including broken bones, a damaged pituitary gland and a Grade 3 (severe) concussion. He spent six months in a brain injury treatment center and has since suffered from multiple indicia of Chronic Traumatic Encephalopathy (CTE).
Applying the doctrine of comparative negligence, in the first phase of its deliberations, the jury found the school district and its personnel 100 percent responsible for failing to exercise reasonable care to fulfill its duties to provide a safe environment and adequate supervision of athletic department-related activities. During the subsequent phase of the trial, as the jury was deliberating to determine the financial damages it would award, the parties agreed to the $10.5 million settlement (the district’s insurers were concerned that the jury would return with a far greater financial award).
In March 2016, a $2 million settlement was finalized in McNamee v. Hillsborough County School Board (FL), a resolution originally agreed to in October 2015 in a case involving a 16-year-old, high school football player who sustained a head injury during practice while not wearing a helmet, who allegedly received only a cursory evaluation by a coach and athletic trainer, and who was reputedly left alone in a training room for a half-hour before being allowed to drive himself home, at which time his parents immediately transported him to a hospital emergency room where he was diagnosed with a fractured skull and a severe concussion. The lawsuit alleged negligent supervision, lack of an emergency medical response plan, inadequate immediate medical response, and failure to comply with a Florida High School Athletic Association bylaw mandating liability insurance coverage for student-athletes.
During 2016, numerous concussion-related lawsuits were filed against school districts and high school coaches across the country. In February 2016, a lawsuit was refiled in federal court in Texas, Ripple v. Marble Falls ISD, that had been dismissed in April 2015 because of a failure to complete a prerequisite administrative process. The case involved a high school football player whose school and coaches had allegedly ignored indicia of multiple concussions and purportedly pressured the young man to continue practicing and competing in violation of the state concussion protocol statute and state association policies.
In March 2016, a suit was filed in Montana, Back v. Belt Valley School District, seeking $20 million from the district, its athletic director, its football coaches and an athletic trainer for allegedly disregarding their state concussion law by prematurely returning a concussed player to action who then suffered a second head injury that rendered him a quadriplegic.
In May 2016, a lawsuit was filed in Florida, Holley v. Florida High School Athletic Association and Orange County Public Schools, in which a lacrosse player sustained a concussion in a violent collision with an opponent during a game and allegedly was not removed from the contest or evaluated for a head injury despite exhibiting multiple indicia of a head injury, all in violation of the state’s concussion management law.
In August 2016, in Goodman v. Trousdale, a Kentucky appellate court upheld a lower court’s refusal to dismiss a traumatic brain injury case involving a Hart County High School cheerleader who fell and struck her head while practicing a stunt run, and asserting that the cheer sponsor violated both the Kentucky state concussion statute and Kentucky High School Athletic Association policies governing head injuries.
In November 2016, a suit was filed in state court in Connecticut, O’Reilly v. Glastonbury Public Schools, alleging failure by school athletic personnel to follow state-mandated concussion protocols in a case in which a high school cheerleader fell from a pyramid and hit her head on a hardwood gymnasium floor.
In February 2016, in what might serve as a blueprint for Title IX compliance by school districts nationwide, district officials and athletic administrators in the Santa Paula (California) Unified School District, after receiving input from female student-athletes, their parents and members of a women’s advocacy group regarding athletic inequities in the district, undertook a comprehensive Title IX self-audit. The assessment resulted in the addition of five new girls programs – varsity golf, varsity water polo, junior varsity water polo, junior varsity tennis and freshman soccer – in order to remedy sports participation disparities between girls and boys.
Led by the district superintendent and the Santa Paula High School athletic director, a strategic plan was developed to ensure equitable distribution of resources between girls and boys teams, including uniforms, equipment, practice facilities, competition facilities, locker rooms, access to quality coaching and others of Title IX’s 11 categories of benefits and opportunities related to sports participation. Because of the proactive leadership by school officials, no complaints were filed with the U.S. Department of Education’s Office for Civil Rights (OCR) – the federal agency charged with enforcing Title IX – nor were any lawsuits filed. The district and its personnel were able to retain control over the situation and implement the corrective measures that they knew would best serve their students, while at the same time complying with both the spirit and the technical legal requirements of Title IX.
In March 2016, a settlement was reached just two weeks before a trial was to begin in a Washington state federal court in Carpio v. Federal Way Public Schools, a Title IX suit filed by the father of two female wrestlers attending separate schools, Todd Beamer High School and Decatur High School, one of whom was a twotime state champion in her weight class. Among the inequities alleged between the boys and girls wrestling teams at the two schools were that boys practiced in wrestling rooms designed for their sport while girls were limited to using the cafeterias; boys received access to more time with coaches and superior quality of coaching than girls; boys received two uniforms each while girls received one; transportation and lodging for road trips were provided by the school for the boys, but not for the girls; and girls endured multiple other disparities included in Title IX’s 11 areas of other athletic benefits and opportunities accompanying sports participation and for which equivalence must be provided.
The settlement included a timeline for the implementation of a series of specific remedies agreed to by the parties, along with the hiring of a district athletic director to ensure equitable and consistent practices across all of the sports programs in the district’s four high schools and seven middle schools.
Constitutional Law: Freedom of Speech & Social Media
In February 2016, the U.S. Supreme Court denied certiorari and refused to hear an appeal of Bell v. Itawamba County School Board, an August 2015 ruling by the U.S. Fifth Circuit Court of Appeals sitting en banc (all 15 active judges participating) that reversed a December 2014 ruling by a Fifth Circuit three-judge panel that the district had violated the free speech rights of a student expelled from his extracurricular activities and suspended from school for posting online a video he created featuring a rap song that accused two coaches at Itawamba Agricultural High School (Mississippi) of inappropriate conduct with female students.
In the 2015 en banc ruling, the Court of Appeals upheld the district’s actions and ruled that it did not violate the student’s free speech rights based upon the “substantial disruption” standard established in the U.S. Supreme Court’s 1969 decision in Tinker v. Des Moines School District, concluding that the intimidating and harassing language directed at school officials in the postings could reasonably be forecast to cause a substantial disruption on school property and that, despite the fact that the postings took place off school property, the school had the authority to punish the offender.
Constitutional Law: Freedom of Speech and National Anthem Protests
As with so many other actions by professional athletes that quickly filter down to college, high school and youth sports, San Francisco 49ers quarterback Colin Kaepernick’s national anthem protests have trickled down to athletes at all levels. Since he initiated his protests against social injustice during his team’s first preseason game in mid-August, hundreds of college, high school and youth sports athletes have engaged in similar stands at the beginning of games. The issue facing school and athletic administrators has been whether to sanction players conducting such protests with suspensions or expulsions from their teams and whether such punishments would be constitutionally permissible or would violate the student-athletes’ First Amendment rights to freedom of speech, expression and protest.
Based on U.S. Supreme Court decisions interpreting the authority of schools to limit student speech, any penalties levied by a public school (a state actor) on a national anthem protest would likely fail judicial scrutiny on constitutional grounds should the student file a free speech challenge in court.
In the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District (1969), a case in which students conducted an anti-Vietnam War protest that was just as controversial then as the national anthem protests are today, Justice Abe Fortas made the now-famous statement in the Court’s majority opinion that “students do not shed their constitutional rights at the schoolhouse gate” and concluded that schools do not have the authority to limit student speech unless it “materially and substantially” interferes with the educational process. Subsequent cases clarified that schools may limit on-campus student speech that is lewd or profane, speech that is part of the school curriculum (such as a student newspaper), speech that advocates drug use by students and speech that constitutes a true threat against the school community.
The national anthem protests that have taken place at dozens of high school sports events nationwide do not fit into any of those categories of permissible restrictions on student speech. And courts have consistently refused to apply the legal standard that interscholastic sports participation is a privilege, not a right, when freedom of speech issues are involved in a sanction imposed on a student.
Despite the objections from community members that consistently arise to anthem protests by student-athletes – blowback that is often vitriolic in nature – school and athletic administrators might be best served by taking note of the following quote. Commenting on his advocacy of freedom of speech and promoting the “marketplace of ideas” concept he first posited in the Supreme Court’s decision in Abrams v. United States (1919), Justice Oliver Wendell Holmes Jr. once stated to a newspaper reporter that “every American believes in free speech unless it’s speech he doesn’t agree with.”
Constitutional Law: Freedom of Religion
In January 2016, in Matthews v. Kountze Independent School District, the Texas Supreme Court ruled that a full review should be granted to the constitutional claims of a high school cheer squad in a case dealing with the right of squad members to display religious messages on banners at their public school’s athletic events. The dispute arose in September 2012 when the district, concerned that the display of Bible verses on run-through banners at high school football games violated the First Amendment’s Establishment Clause, prohibited the practice. Citing their free speech and free exercise of religion rights, the cheerleaders filed a lawsuit and a state trial court judge issued a temporary restraining order staying the implementation of the ban pending a full resolution of the case.
In April 2013, the district changed its policy to allow such banners at school sports events and in May 2013, the same judge who had previously issued the temporary injunction ruled that the display of the banners was constitutionally permissible. The Kountze ISD then requested that a state appellate court clarify the district’s obligations regarding church-and-state issues, but in May 2014, a Texas Court of Appeals ruled that the issue was moot because of the district’s policy change.
The January 2016 decision by the Texas Supreme Court stated that the issue is not moot, because the district could reinstate the ban in the future if it so decided, and remanded the case back to the Texas Court of Appeals for a full review of the First Amendment issues related to the situation, foremost the question whether the banners are school-sponsored speech (in which case they are impermissible under the Establishment Clause) or whether they are private speech by the cheerleaders (in which case they are permissible based on the Free Speech Clause and the Free Exercise of Religion Clause). That decision is expected sometime during 2017.
Constitutional Law: Invasion of Privacy
In November 2016, criminal charges were filed in a case, State v. Mathers, illustrating the need for operators of athletic facilities, including schools, to enact reasonable rules and safeguards designed to protect the privacy of individuals using restrooms, locker rooms and shower rooms against surreptitious photography using digital cameras, smartphones, tablets or other devices.
The situation involved a former Playboy Playmate of the Year, Dani Mathers, 29, who took a picture of a 70-year-old woman in a locker room shower at an LA Fitness Center and posted the image on her Snapchat social media account, along with a mocking caption fat-shaming the elderly woman. Mathers received extensive backlash for the malicious act from her Snapchat followers, the media and her radio-station employer, who fired her after the incident, and the victim is threatening a civil suit for invasion of privacy.
Although Mathers argued to authorities investigating the incident that the victim did not have a reasonable expectation of privacy in a shower room, the Los Angeles City Attorney’s Office – although acknowledging a diminished level of privacy against what presumably was a limited number of persons who might have been physically present in the fitness center locker room – concluded that no one would expect a nude photo taken without permission to be disseminated to tens of thousands on social media. The criminal charge filed against Mathers is an invasion of privacy cause of action called Dissemination of Private Images, which carries a possible sentence of up to six months in jail, although a diversion program is a more likely penalty for a first offense.
The lesson to be learned from the situation for school athletic programs is that student-athlete codes of conduct should include strict prohibitions on the use of cameras in any form, now ubiquitous in their presence in electronic devices, in locker rooms, shower rooms and restrooms, and that an emphasis should be placed by athletic personnel on educating student-athletes regarding common-sense parameters for the posting of images and messages on social media.
Constitutional Law: Due Process
In August 2016, in DeLaTorre v. Minnesota State High School League, a federal judge dismissed a lawsuit filed by a former high school soccer player who claimed that the state athletic association had violated his constitutional right to due process when it refused to grant to him an exception to the state’s transfer and residency requirements for athletic eligibility. The case involved a student at Cretin-Derham Hall High School whose parents were divorced and who in 2012 had moved from Mexico with his mother and sister and played on the high school soccer team, followed by a decision to return to Mexico to live with his father for his sophomore year of high school.
When he returned to CDH for his junior year and attempted to regain his eligibility to play interscholastic soccer, DeLaTorre discovered that he would be required to sit out a year and would not be eligible until his senior year. After an appeal to the MSHSL failed, he sued the association and several of its officials for a violation of his right to due process. In ruling that DeLaTorre did not have a constitutionally protected property or fundamental liberty interest to successfully make a due process claim, the judge cited numerous judicial rulings holding that participation in interscholastic athletics is a privilege, not a constitutional right. The court therefore concluded that, because DeLaTorre had prior notice of the eligibility rules and transfer bylaws, along with receiving an opportunity to request a waiver and appeal the denial of that waiver, his legal interests had been more than adequately protected.
Constitutional Law: Equal Protection and Transgender Students
On May 13, 2016, a Dear Colleague Letter (DCL) was jointly issued by the U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Justice’s Civil Rights Division summarizing the Title IX obligations of schools regarding transgender students in the context of the law’s prohibition on sex discrimination. The DCL states that for purposes of Title IX, a student’s sex is considered to be gender identity, not anatomical gender at birth and, therefore, schools may not treat a transgender student differently than they would treat other students of the same biological gender, including with regard to sports participation opportunities and access to facilities such as restrooms, locker rooms and shower rooms.
The DCL is available full-text at www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. Issued along with the DCL was a separate document titled Examples of Policies and Emerging Practices for Supporting Transgender Students containing policies that school districts, state education agencies and state high school associations have adopted to help ensure that transgender students enjoy a supportive and nondiscriminatory school environment. That document is available at www2.ed.gov/about/offices/list/oese/oshs/emergingpractices.pdf.
In April 2016, in G.G. v. Gloucester County School Board, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that the refusal by a school to allow the use by transgender students of school facilities (such as a restroom) consistent with their gender identity is unlawful because such restrictions constitute gender discrimination specifically prohibited under Title IX as clarified by the May 2016 DCL. The case involved a female-to-male transgender boy who had been using the boys restrooms at Gloucester (Virginia) High School with no problems arising from his use of those facilities until community members objected on political grounds, followed by the school district enacting a ban on the practice.
In May 2016, the Fourth Circuit refused to grant an en banc rehearing of the case (with all 17 active judges participating). In August 2016, the U.S. Supreme Court issued a stay of the original Fourth Circuit ruling, pending its decision whether to hear an appeal of the case. In October 2016, the Supreme Court granted certiorari and will review the case to resolve two issues: 1.) Whether courts should defer to the May 2016 DCL; and 2.) whether educational institutions covered by Title IX must treat transgender students consistent with their gender identity. More than 7,000 petitions for appeals are received by the Supreme Court each year and approximately 80 cases are granted review. The G.G. suit is considered by many legal experts to be the most significant case on the Court’s docket this term; oral arguments will likely be held in February or March of 2017, with the Court’s ruling in the case expected in June 2017.
In August 2016, in State of Texas v. U.S.A., a suit filed by a coalition of the attorneys general of 11 states, a federal judge blocked implementation of the May 2016 Title IX DCL requiring schools to provide access for transgender students to facilities such as restrooms consistent with their gender identity pending resolution of issues concerning the validity of the DCL as a source of law and whether the definition of sex in Title IX should be interpreted as gender identity or anatomical gender at birth. The U.S.A. has filed an appeal of the ruling with the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court’s decision in the G.G. case will likely impact the ongoing viability of the ruling in the State of Texas case.
In September 2016, related to a hazing incident that garnered extensive media attention throughout the year, a federal civil suit was filed against an East Tennessee school district, a high school principal, an athletic director and a basketball coach. The plaintiff in Doe v. Hamilton County Department of Education was a freshman on the Ooltewah High School basketball team who as part of a hazing ritual, in the basement of a cabin in which the team was staying during a December 2015 road trip, was sodomized with a pool cue and sustained injuries so severe that he had to be rushed to a hospital for emergency surgery. Three other freshmen were also raped with the pool cue during the hazing. The pleadings in the case allege knowledge by school personnel of a long history of hazing incidents in Ooltewah’s athletic program, often violent and resulting in physical injury to victims, and a failure to develop and implement effective anti-hazing policies.
The incidents led to the cancellation of the remainder of the team’s 2015-16 basketball season. The three perpetrators of the attack were convicted in a juvenile court of aggravated rape and aggravated assault and received sentences of varying lengths in juvenile detention. The school’s athletic director pleaded guilty to failure to report child abuse and entered a diversion program which upon completion will permit his record to be expunged. The head basketball coach pleaded not guilty to similar charges, arguing that the Tennessee Child Abuse Reporting Law is too vague concerning who is required to report instances of sexual assault, to whom the reports should be made and how timely such reports must be.
In November 2016, a $1 million settlement was reached in Doe v. Maine Township High School District 207, a hazing suit brought by five soccer players at Maine West High School in Des Plaines, Illinois, who in the fall of 2012 were initiated by older players on their team who after a practice administered physical beatings, tore off their pants and underwear, and sodomized them with fingers and sticks. The six perpetrators were charged in juvenile court with assault and two soccer coaches were charged with failure to report child abuse. All of the criminal charges were eventually dropped, but the school board disciplined the students and fired the coaches. In response to the incidents, the state of Illinois enacted a statute criminalizing the failure by a school official to report hazing and the school district hired a consulting firm to develop an anti-hazing policy, conduct training sessions for personnel regarding the policy, and provide educational programs for students and student-athletes on hazing and bullying.
Sexual Harassment and Violence
In March 2016, in Doe, et al v. Torrance Unified School District, 18 current and former wrestlers at Torrance (California) High School filed a civil lawsuit seeking an unspecified amount of damages alleging they were sexually molested by their wrestling coach, Thomas Snider. The suit asserts that district and school administrators had for years been warned about the coach’s behavior, but had repeatedly ignored those disclosures by school personnel, student-athletes and parents, resulting in Snider having the opportunity to prey on additional generations of young men at the school.
In October 2016, Snider was convicted in criminal court of a range of sexual offenses involving his molestation of 25 boys at the school and he was sentenced to a prison term of 69 years to life. The legal standard that will be applied to the sexual harassment civil suit against the school district is whether someone in a position to take remedial action had knowledge the abuse was occurring and exhibited deliberate indifference to correcting the situation. Knowledge plus deliberate indifference. It is the legal standard established by the U.S. Supreme Court in two landmark cases involving school liability for sexual harassment, Gebser v. Lago Vista ISD (1998) and Davis v. Monroe County Board of Education (1999), with both rulings illustrating the need for schools to take immediate corrective action whenever school personnel receive notification or through any means become aware that sexual harassment or violence is occurring on campus.
On December 11, 2015, just eight days after the lawsuit was filed, a settlement was reached in Kempf v. Michigan High School Athletic Association, a case involving a deaf high school wrestler who had been denied an exception to MHSAA regulations that limited his American Sign Language interpreter to the coach’s box at the corner of the mat, a limitation that made it difficult for the interpreter to maintain line-of-sight for hand signal communication with the student-athlete during matches. The waiver had originally been denied because of safety concerns that allowing the interpreter to move around the perimeter of the mat might result in collisions with either the official or the wrestlers, but the settlement included common sense restrictions on the interpreter’s movements designed to avoid interference with a match or collisions with anyone on the mat. The resolution of the situation was consistent with the requirements of federal disability laws requiring that rule waivers be granted as long as the requested accommodations
are reasonable and would not result in a fundamental alteration of the nature of the activity in question.
Labor Law: Fair Labor Standards Act
On May 18, 2016, the United States Department of Labor (DOL) announced the final version of new standards revising the Fair Labor Standards Act (FLSA) minimum wage and overtime requirements and establishing an implementation date for the updated regulations of December 1, 2016. The core component of the new rules is an increase to the minimum salary level required for salaried “white collar” workers – employees whose primary job duties are executive, administrative or professional in nature – to be considered exempt from the FLSA. The new standards raise the compensation threshold from $455 per week ($23,660 annually) to $913 per week ($47,476 annually).
The importance of the change for schools and athletics programs is that under the old scheme, “white collar” employees earning an annualized salary of at least $23,660 were considered exempt and could work unlimited overtime hours with no overtime pay owed to them. Now, any salaried worker making below $47,476 will need to be compensated at time-and-a-half (of the employee’s salary broken down into an effective hourly rate) for every hour worked beyond 40 in a workweek. The financial repercussions of the change may be severe for many districts because of the likelihood that a significant percentage of school and athletic program employees across the country earn between $23,660 and $47,476 and those who do will have had their status shift on December 1, 2016, from FLSA-exempt to non-exempt.
Important to note with regard to the implementation date for the FLSA revisions is that on November 22, 2016, in State of Nevada v. U.S. Department of Labor, a lawsuit filed by a coalition of 21 states and more than 50 business groups, a federal judge in Texas granted a motion enjoining the implementation of the new FLSA regulations which were scheduled to go into effect on December 1, 2016. In addition, the judge granted a request that the injunction would apply nationwide.
The DOL issued a statement indicating that it would immediately appeal the ruling and that the agency believed that the revisions, which had been planned since March 2014 and regarding which all states and business groups had received an opportunity to comment throughout the last 2½ years, should be implemented as scheduled. “We strongly disagree with the decision by the court, which has the effect of delaying a fair day’s pay for a long day’s work for millions of hardworking Americans. The [FLSA] overtime revisions are the result of a comprehensive, inclusive rulemaking process, and we remain confident in the legality of all aspects of the new rules.”
School districts that have developed plans for dealing with the FLSA revisions should maintain a state of readiness to immediately implement those compliance strategies in the event that an appellate court issues an emergency stay to block the State of Nevada ruling or altogether overturns the ruling. Note: As of the copy deadline for this article, no action had been taken by an appellate court to reinstate an implementation date for the FLSA revisions.
State Association Power
On November 23, 2016, in Fenwick High School v. Illinois High School Association, a state court judge in Illinois rejected a legal challenge by a high school that it be allowed to advance to the Class 7A state championship football game because of a mistake by game officials that led to a loss in its semifinal playoff game. Fenwick High School led 10-7 with four seconds remaining in the game when its quarterback, on fourth down from the team’s own 15-yard line, threw the ball high and deep down the field to run out the clock, but was penalized for intentional grounding. The referees incorrectly awarded Fenwick’s opponent, Plainfield North High School, with a 10-yard penalty and an untimed down which was used to kick a game-tying field goal to force overtime. Fenwick scored a touchdown and extra point to go up 17-10, but Plainfield North responded with a touchdown and two-point conversion to win 18-17.
The IHSA later issued a statement acknowledging that the rules specify that a loss of down penalty, such as intentional grounding, that occurs as time expires, shall not lead to an untimed down. Three days after the game, the IHSA Board of Directors decided that it did not have the authority to overturn Bylaw 6.033, which states “the decisions of game officials shall be final; protests against the decision of a game official shall not be reviewed by the Board of Directors.” The bylaw originally was enacted by a vote of all IHSA member schools – including Fenwick – and, according to the association’s rule-making procedures, the Board did not have the power to discretionarily choose not to abide by the rule. In announcing the decision, the judge expressed empathy for the Fenwick players and community, but stated “Here, as on the playing field, one side wins and one side loses.”
Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee