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.
Constitutional Law: Due Process & Vaping
In September 2019, in L.H. v. Lawrenceburg Community School Corporation, a Dearborn, Indiana, Superior Court judge ruled that the district did not violate the due process rights of a football player caught with a vape pen in May in violation of the student-athlete code of conduct regarding possession of alcohol, tobacco or drugs by suspending him for five of the team’s nine games scheduled for the 2019 season. The complaint filed in the suit claimed that the policy allows for suspension from athletic participation only when a student tests positive for the use of alcohol, tobacco or drugs (not for mere possession) and that even with a positive test, the maximum penalty is 50 percent of a season’s games. The complaint asserted that the player, L.H., did not test positive for nicotine in a drug test administered in June and that, even if he had, the fivegame suspension was greater than the 50 percent allowed for such a violation (5/9 = 55.5%).
The judge held that the code of conduct should be interpreted broadly and in his written decision stated that “The court looks at the totality of the Handbook and not one particular word or sentence … the [Handbook] imposes a specific 50 percent suspension for a positive drug test. The fact that the [Handbook] does not specifically provide for a specific percentage suspension for [possession of] a vapor pen does not prohibit a suspension at all … if the health dangers of vaping, discipline and the importance of following rules/law are learned at the age of 17, at the cost of five high school games, it could be one of the best life lessons to ever happen to this young man.”
Despite the court’s reliance upon the concept that participation in interscholastic athletics is a privilege, not a right, and that schools are entitled to levy sanctions as a teachable moment remedy for misconduct, it should be noted that institutions would be best served by carefully crafting the language of codes of conduct and adhering with precision to that language in order to avoid providing violators with grounds to argue that the policy is being applied in an arbitrary and capricious manner justifying reversal of a teachable moment sanction imposed by the school.
Constitutional Law: Due Process & Being Cut from Teams
In May 2019, in another of the long line of precedents addressing the issue whether students have a constitutional right to participate in school sports programs, a federal trial court judge denied a motion for a rehearing of his October 2018 ruling for the school in a case involving a high school soccer player cut from his team, Doe v. Ladue Horton Watkins High School (MO). The 16-year-old junior, identified in court documents as John Doe, didn’t make the varsity squad at the school and was barred from returning to the junior varsity team because younger players were given priority based on the coach’s discretion. His family sued, claiming several constitutional and civil rights-related violations. However, in the court’s written opinion in the case, U.S. District Judge John Ross stated, “[the school] argues that Doe will suffer no harm because he has no legal right to participate in high school sports … the Court agrees … Courts have long held that participation in interscholastic athletics programs is not a property right, but a privilege … accordingly, Doe suffers no legal harm by being excluded from the JV team.”
Constitutional Law: Freedom of Speech & Social Media
In March 2019, in Levy (B.L.) v. Mahanoy Area School District, a U.S. District Court in Pennsylvania granted summary judgment to a cheerleader (B.L.) dismissed from the squad for inappropriate postings on social media allegedly in violation of the student-athlete code of conduct at Mahanoy Area High School, concluding that her communications were constitutionally protected by the Free Speech Clause of the First Amendment, and making permanent the temporary injunction restoring her to the cheer team that had been issued in October 2017 by the same federal court.
In May 2017, off-campus and using her privately-owned phone, B.L. took a photo of herself and a friend holding up their middle fingers and posted it on the social media platform Snapchat with the caption “f*** school, f*** softball, f*** cheer, f*** everything.” A few days thereafter, the cheer sponsor informed B.L. that she was being dismissed from the squad because the profane posting violated the student-athlete code of conduct because it was “disrespectful to the coaches, the school and the other cheerleaders.” The U.S. District Court’s 2019 decision that the cheerleader’s free speech rights had been violated was based on the precedents established in the U.S. Supreme Court’s rulings in Tinker v. Des Moines ISD – a substantial disruption had not occurred as a result of the Snapchat posting – and Bethel School District v. Frasier, through which the high court limited the authority of schools over students for the use of profane language to that which occurs on campus.
Constitutional Law: Freedom of Religion & Prayer
In January 2019, the U.S. Supreme Court denied the petition for a writ of certiorari in Kennedy v. Bremerton School District, thereby refusing to hear an appeal of the October 2017 decision by the U.S. Court of Appeals for the Ninth Circuit that a Washington school district was not required to allow a high school football coach to pray on the field at the end of each game, an activity that often involved players, coaches and other students.
The Supreme Court’s denial of the coach’s request to review the Ninth Circuit’s ruling was not unexpected – in recent years the Court has granted “cert” on average only 80 times per term out of 7,000 to 8,000 requests – but the format of the denial of cert was unusual. Typically, refusal to hear an appeal is via a one-sentence statement with no explanation; however, in the Kennedy case, it was accompanied by a six-page explanation written by Justice Alito and joined by Justices Thomas, Gorsuch and Kavanaugh indicating that the four believed the coach might have valid claims under the Free Speech Clause of the First Amendment, the Free Exercise Clause of the First Amendment, and Title VII of the Civil Rights Act’s prohibition of discrimination on the basis of religion, but also explaining why those issues weren’t “ripe for review” in the case.
Constitutional Law: Equal Protection & Gender Discrimination
In March 2019, in D.M. & Z.G. v. Minnesota State High School League, the U.S. Court of Appeals for the Eighth Circuit concluded that the Equal Protection rights of two boys prohibited by MSHSL rules from trying out for their schools’ competitive dance teams had likely been violated because the state association policy limiting participation to girls constituted gender discrimination in violation of the Fifth and Fourteenth Amendments and the appellate court, therefore, issued a preliminary injunction suspending application of the association rule. In April, the MSHSL settled the case by agreeing to change its policy and allow boys to try out for competitive dance squads beginning with the 2019-20 school year.
Constitutional Law: Equal Protection & Race Discrimination
In September 2019, in a legal pronouncement illustrating an important standard of practice for sports officials, state associations, schools and coaches, with regard to dress codes, grooming requirements, hairstyle rules and similar policies affecting student- athletes, the New Jersey Division on Civil Rights and the New Jersey Attorney General’s Office issued a new Equal Protection guidance related to hairstyle discrimination following the December 2018 incident when a wrestler for Buena High School was ordered by a match referee to either cut off his dreadlocks or forfeit his match. Video of the official supervising the visibly distressed wrestler as his hair was cut by an athletic trainer on the mat in front of a gymnasium full of spectators was shown on news and sports programs nationwide and went viral on the internet.
The referee claimed that he believed the wrestler’s locks to be in violation of an NFHS rule governing the length of an athlete’s hair and the circumstances in which a student-athlete must wear a hair covering. In the DCR guidance, the agency stated that discrimination includes requirements based on traits that are intertwined or closely associated with race, ethnicity, religion or other protected class status. Furthermore, the DCR and the New Jersey State Interscholastic Athletic Association announced an agreement that included a review of all rules having a potentially discriminatory impact, implicit bias training for school athletics personnel, and a two-year suspension of the referee. The lesson to be learned from the incident is that any grooming requirement for student-athletes that might disproportionately impact individuals of a particular race, ethnicity, religion, gender or other protected class – unless justified by significant safety implications – should be eliminated.
Constitutional Law: Equal Protection & Transgender Students
In May, in Doe v. Boyertown Area School District, the U.S. Supreme Court denied a petition for certiorari seeking to appeal the July 2018 ruling by a three-judge panel of the U.S. Court of Appeals for the Third Circuit that rejected claims made by six cisgender students at Boyertown Area Senior High School (PA), who argued that their rights were violated because of having to encounter transgender teens using the restrooms or locker rooms at the school consistent with their gender identity. The Appeals Court also denied the request of the appellants for an en banc rehearing of the case by all 12 judges who serve on the Third Circuit (en banc designates a hearing by all of the judges on an appellate court, rather than by a panel of three judges selected from among them).
In 2016, the Boyertown Area School District (BASD) implemented a new policy allowing students to use the restrooms or locker rooms consistent with their gender identity, including a procedure through which the transgender student applies and receives approval from a team of trained school counselors and administrators before receiving permission to use the gender-aligned facilities of their choice. The district also constructed numerous single-user bathrooms (eight at the high school), alternative dressing rooms attached to locker rooms, and private shower stalls, so that any student or student-athlete who felt uncomfortable in the presence of a transgender student could choose to use a private facility.
The decision joins a growing body of federal court case rulings nationwide affirming the rights of transgender students, a trend with clear implications for the development of policies by boards of education and school districts with regard to transgender students in the general school population and to student-athletes participating in school physical education and athletics programs.
In June 2019, in Soule v. Connecticut Interscholastic Athletic Conference, a female, cisgender track athlete filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) alleging the CIAC’s inclusive policy allowing transgender athletes to compete without restrictions based on their gender identity violates Title IX and Equal Protection principles because the policy disadvantages cisgender females. The complaint was filed after two transgender girls won events at the indoor and outdoor state meets. The OCR’s investigation of the complaint is scheduled to take place in 2020 and could lead to either a resolution agreement in the case or to the filing of a federal lawsuit.
Constitutional Law: Defamation Suits Against Parents
In September 2019, in McGuire v. Bowlin, the Minnesota Supreme Court ruled that parents who disseminate false information about a high school coach may be sued for defamation. From the fall of 2012 to the spring of 2014, Nathan McGuire was the head coach of the girls basketball team at Woodbury High School, during which time he faced increasing criticism from several parents of players who accused McGuire of various forms of misconduct in a campaign apparently designed to get the coach fired. They circulated rumors that he had recently been in jail (a falsehood), had stolen funds from the school (another falsehood), and had mistreated members of the team in violation of state law (an investigation following maltreatment-of-minor reports filed by the parents with the Minnesota Department of Education concluded no mistreatment had occurred).
McGuire filed a defamation suit against the parents, with the case eventually reaching the state supreme court on the question of the legal standard for determining whether a coach has been defamed by statements made by parents, specifically the question whether a public school coach is considered to be a “public official,” thereby invoking a higher burden of proof on the coach while attempting to prove defamation and collect damages from the defendant- parents. The Minnesota high court concluded that a public school coach is not a public official and need not prove actual malice by the parents, but only that the parents were negligent in making false statements about him, unanimously deciding that “basketball is not fundamental to democracy” and that a coach’s duties are not “within the scope of governmental affairs” that would lead to a coach being classified as a public official. The case was remanded to a state trial court for disposition of the defamation claim using the negligence standard of fault, a determination likely to be made sometime during 2020.
Sports Officials: Independent Contractors or Employees?
In June 2019, in Pennsylvania Interscholastic Athletic Association v. National Labor Relations Board, the D.C. Court of Appeals held that lacrosse referees in the state are independent contractors, not employees of the state association, and therefore lacked the legal authority to unionize. The classification of workers as “employees” or “independent contractors” is a highly significant determination, both for the parent organization and the individuals whose status is in dispute. If workers in a given occupation and circumstance are found to be employees, then the employer typically has to withhold from paychecks any federal income tax due, any applicable state income tax owed, any local income tax due, Social Security tax, and Medicare tax, along with paying the necessary matching components of income taxes, and any additional taxes that fall only upon the employer such as federal unemployment tax and state unemployment tax. The employer would also have to contribute to workers compensation systems and provide any benefits to employees mandated by federal, state and local law.
In addition, an employer must provide to employees all of the legal protections set forth in statutes such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act and the NLRA, which sets forth all of the procedures applicable to employees desiring to unionize. Finally, the compliance burden alone, in terms of the paperwork filings mandated by all of the federal and state agencies with jurisdiction over employees, is an overwhelming task for employers.
However, if workers are classified as independent contractors, each individual is responsible for his or her own tax issues and benefit schemes, along with being entitled to a very limited range of federal and state statutory protections, including highly restricted rights under the NLRA to unionize and collectively bargain.
The distinction between an employee and independent contractor involves an analysis of the amount of control the parent organization exercises over the individual. In the PIAA case, the D.C. Court of Appeals applied a set of 10 specific criteria historically used by courts to evaluate the status of workers in reaching its conclusion that amateur sports officials are independent contractors.
Sports Officials: Protections Against Assault
In April 2019, legislation was introduced in Ohio that would strengthen penalties for assaults on sports officials. The state already has laws in place making such attacks immediately before, during or after sports events a misdemeanor, but the new legislation – House Bill 208 and Senate Bill 118, would raise the classification of the crime to a fifth-degree felony, punishable by up to a year in prison and a $2,500 fine, consistent with the legal protections in place for teachers, health care workers and firefighters. A survey conducted in 2017 by the National Association of Sports Officials and completed by more than 17,000 officials found that 80 percent of officials quit after two years and that harassing behavior by adult spectators at sports events is the primary reason they quit. Presently, all 50 states and the District of Columbia have legal protections, both criminal and civil, in place for all citizens against assault, battery and harassment. Twenty-one states have assault laws specifically designed to protect sports officials. For a complete listing of those jurisdictions, consult the Sports Officials Legislative Scorecard Map available at www.naso.org.
Fair Pay to Play Act & Impact on High School Athletes
On October 1, 2019, California Governor Gavin Newsom signed into law Senate Bill 206, informally titled the Fair Pay to Play Act, a historic piece of legislation that will go into effect on January 1, 2023, and allow college athletes in the state to monetize their name, image and likeness (NIL) by entering into endorsement deals despite NCAA amateurism rules forbidding student-athletes from profiting from such arrangements. On October 30, 2019, the NCAA Board of Governors Federal and State Legislation Working Group, comprised of college presidents, conference commissioners, athletics administrators and student-athletes, voted to change the association’s rules to permit student-athletes to benefit financially from their NIL “in a manner consistent with the collegiate model,” setting forth a set of guidelines for each NCAA division to use when revising its amateurism rules, a process to be completed by January 1, 2021.
Although the new California law and similar legislation introduced in more than a dozen other states since the enactment of SB 206 do not provide NIL rights for high school student-athletes, the legislation presents a variety of challenges that legislatures, state associations, school districts and scholastic athletic personnel will need to address in order to prevent the exploitation of high schoolers. These issues fit primarily into three categories: 1) access by sponsors to the high school athletes who upon matriculation to college will have NIL rights; 2) timing questions as to when NIL rights will attach for those athletes as they transition from high school to college; and 3) the compensation rubric that will be implemented for the flow of NIL monies to college athletes and the related NIL publicity and recruiting promises that will be communicated by universities to high school prospects. For a full exposition of the unintended consequences of the Fair Pay to Play Act for high school student-athletes and recommendations for protecting high schoolers, read the article in the November 2019 issue of High School Today.
Criminal Law & Fraud
In a dispute akin to a private citizen attempting to sell the Brooklyn Bridge or a tract of swampland in Florida, in March 2019, court files were unsealed by the D.C. Attorney General in a whistleblower lawsuit filed three years earlier, Washington International Soccer League & District of Columbia v. Washington, seeking $120,000 that had been paid by a recreational adult soccer league to Larry Washington, a resident of Laurel, Maryland, who allegedly had rented the WISL playing fields belonging to the D.C. Public Schools by fraudulently misrepresenting to league officials that he was authorized to lease the venues on behalf of the school district when he was, in fact, merely a member of the community with no ties whatsoever to the district.
Washington’s scam was successful for four years with the WISL playing its games on district fields until a high school custodian notified administrators at his school that a group of soccer players who had reserved a venue through proper channels showed up only to find its field in use by the WISL. The suit, based on the D.C. False Claims Act, had been under seal as is typical in whistleblower cases during the investigatory phase, until March when the D.C. Attorney General decided to intervene and join the WISL in the action. A jury trial has been requested and should take place sometime during 2020.
Liability for Sports Injuries
In January 2019, in Smero v. City of Saratoga Springs, a New York state appellate court refused a request for a rehearing of its April 2018 decision upholding a $1.6 million lower court jury award (later reduced to $1.22 million) to a spectator who sustained permanent brain damage when hit in the head during a practice by an errant hockey puck. The jury’s decision was rooted in the failure of the city-owned venue to exercise reasonable care to fulfill the duty to provide a safe playing environment for players, coaches and spectators. At the moment she was hit, the victim was walking down a ramp on the side of the Plexiglass-enclosed rink behind a goal that was not positioned at the end of the rink as it would have normally been for a practice or game. Two practices were taking place simultaneously, therefore, the goals were positioned in a cross-ice arrangement dividing the rink into two practice areas, and the shot that hit the victim sailed over the goal and through an open door onto the ice along the side of the rink. The standard of practice illustrated by the case is that an important component of the duty to provide a safe playing environment is reasonable care in the setup of the environment for the sports activity in question – an obligation that here could have easily been satisfied by simply ensuring that the door onto the ice remained closed during the practice.
In August 2019, in Platt v. Cedar Falls Community Schools, an Iowa school district agreed to a settlement of $60,000 with a family whose daughter was hit in the head with a bat during a bunting drill inside a batting cage during softball practice as she was picking up balls and was struck in the head from behind with a bat swung by a teammate. The victim, a member of the junior varsity team, was not wearing a protective helmet at the time of the incident, because allegedly the team had enough helmets to outfit the entire varsity squad, but not the junior varsity team. The blunt force trauma to her head caused the victim to lose consciousness, fall to the ground and begin bleeding from the ear. The original filings in the lawsuit alleged a failure by the defendants to fulfill their duties of specific supervision (supervising athletes while they are engaged in the sports activity itself) and provision of protective athletic equipment.
The standard of practice illustrated by the case is that athletic personnel should exercise an increased level of caution whenever student-athletes are participating in activities where there is a foreseeably increased level of danger because of the nature of the activity – so many of the injuries resulting in litigation seem to occur when players or P.E. students are crowded together swinging bats, golf clubs or using other equipment in multi-sport environments, often indoors when practices or classes are moved because of inclement weather or other circumstances.
In October 2019, in Paolucci v. Sachem Central School District, a New York state appeals court ruled that district and athletics personnel did not breach their promise to provide therapy services and mental health support to teammates of the late Joshua Mileto, a former football player at Sachem East High School, who died on August 10, 2017 when a 400-pound log he and four other players were carrying in a football camp drill which simulated a training exercise for Navy SEALs fell and struck Mileto on the head. The suit alleged that mental health counseling for the survivors was discontinued after two sessions and was badly needed by Mileto’s teammates, many of whom were suffering Post Traumatic Stress Disorder- like symptoms after witnessing his death. The four appellate court judges who heard the case concurred in their written opinion, concluding that the district had provided adequate support to players and coaches using in-house counseling services and there was no legal duty to expand that support using outside providers.
In April 2019, in Aspinall v. Murrieta Valley Unified School District, a California Court of Appeals refused to grant a motion for a rehearing of its March 2018 decision in favor of a school district and football coach in a case in which a player sustained a severe concussion, resulting in permanent brain damage and other health problems related to a traumatic brain injury. William Aspinall was participating in a seven-on-seven tournament held during a spring semester physical education course required for all members of the Murrieta High School football team and which was taught by the junior varsity football coach. Players wore cleats, but not helmets or pads, and were instructed to play two-hand touch, avoid physical play, and to “only go at half or quarter speed.”
However, according to the court’s written opinion, the coach “knew the participants would be aggressive, competitive, and going full speed” and the games became “brutal and very physical” and “participants were tackling, fighting, trash-talking, and getting hurt left and right.” As the sole supervisor for more than 60 participants in the class and tournament, the coach was unable to control high level of contact during play and Aspinall suffered his injury when he and a teammate made head-to-head contact when they collided at full speed while trying to intercept a pass. Aspinall sued the district and the coach for negligence in failing to fulfill the duties of supervision, proper technique instruction, protective athletic equipment, evaluation of players for injuries, and immediate medical response.
In an outlier of a ruling, the appellate court upheld a lower court jury finding that the defendants were negligent, but that Aspinall had not met the burden of proof in showing that his injuries were caused by the defendants’ lack of reasonable care and that Aspinall had assumed the risk of his injury. The appellate court also upheld the exclusion of expert testimony to the jury that would have established the need for and modern trend towards the use of helmets in seven-on-seven; the need for a greater number of supervisors for an activity with 60+ participants, and other failings of reasonable care in the operation of the PE class and tournament.
Despite the district and coach escaping liability because of the appellate court’s decision, the standard of practice illustrated by the case is clear – to best ensure the safety of student-athletes, athletic programs must implement strategies during off-season programs to fulfill all of the categories of duties owed to the young people with responsibility for whose well-being schools and coaches are charged.
In October 2019, an external review by a law firm, WilmerHale, was released regarding a sexual assault that took place on October 31, 2018, an incident that received the most extensive national media coverage of any sports hazing occurrence in 2018, but which is representative of the dozens of such episodes that take place each year in high school athletic programs around the country. The situation involved four football players, all minors, who were allegedly attacked and sodomized with a broomstick in an unsupervised locker room at Damascus High School, a sports powerhouse that is one of 25 high schools in the Montgomery County Public Schools (MCPS), the largest district in Maryland, which serves 160,000- plus students in its 205 schools.
On the following day, the incident was reported to school district officials after victims disclosed to their parents what had happened and after social media postings by members of the team attempting to apologize to the victims became public. Upon learning of the allegations, MCPS administrators immediately fulfilled their mandatory reporting duties under the Maryland Child Abuse Reporting Act and contacted law enforcement officials. According to the police report compiled through interviews with the five alleged perpetrators and the four victims, the “brooming” ritual was a hazing practice that allegedly went back many years in the football program at the school.
In November 2018, four of the perpetrators were charged as adults with first-degree rape and other sexual assault charges, but each later had his case transferred to juvenile court. A fifth was charged as a juvenile with second-degree rape. All of the perpetrators negotiated plea deals, but because of the closed nature of juvenile court proceedings, it is unclear precisely to what charges the five pleaded guilty and the punishments imposed on each.
The WilmerHale external review was commissioned to determine whether hazing is endemic to MCPS athletics and activity programs and to identify strategies that should be employed going forward to protect students from hazing, bullying, and harassment. The review examined three key areas: 1) fostering a positive culture; 2) implementing robust supervision practices; and 3) ensuring timely reporting of incidents and appropriate responses.
The review concluded that, overall, “MCPS has fostered a generally positive culture around athletics and other extracurriculars,” and “MCPS has a robust set of districtwide regulations with respect to mandatory reporting requirements and procedures.” The report did, however, set forth an extensive list of procedures to strengthen supervision and safety for students participating in school-sponsored after-school activities. A two-page summary of the external review and the full-text of the report, which could serve as a blueprint for any school district committed to developing and implementing strategies for the prevention and remediation of hazing, are available on the MCPS website at www.montgomeryschoolsmd.org.
In May 2019, a $750,000 settlement, initially agreed to in September 2018, was finalized in the case of John Doe v. Hamilton County Department of Education, a federal civil suit filed against an East Tennessee school district, a high school principal, an athletic director, and a basketball coach related to a high school basketball hazing incident involving a former Ooltewah High School basketball player who required emergency surgery after his bladder was punctured in a hazing incident in which players were sodomized with pool cues. The plaintiff in Doe was a freshman on the Ooltewah High School basketball team, who as part of a hazing ritual that took place 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.
In November 2019, the Custer County School District (Montana) announced that it has agreed to settle for $9 million a lawsuit by former student-athletes who were the victims of sexual abuse by a sports trainer. In September 2018, a class action lawsuit reminiscent of the Larry Nassar situation at Michigan State University was filed against the district, along with numerous school officials, and athletics personnel, alleging that James “Doc” Jensen, a man who claimed to be an athletic trainer although he was never certified and had no known medical training, sexually abused more than 100 males student-athletes at Custer County District High School during his 28-years of employment at the institution from the early 1970s to the late 1990s.
In July 2019, Jensen, 79, was convicted on federal charges of sexual enticement and coercion and sentenced to 12 years in federal prison. In August 2019, he was convicted in state court of charges involving child pornography and sentenced to 20 years in state prison to be served after his release from federal prison. In July 2019, in Doe v. Scotts Bluff Public Schools, a Nebraska school district settled a civil suit for $2.75 million involving a golf coach, Michael Klein, who in November 2017 was sentenced to 24-to-32 years in prison on multiple counts of sexual assault against two former players who he groomed and developed sexual relationships with beginning when they were in their early teens. The complaint in the civil suit alleged sexual assault, sexual battery, and intentional infliction of emotional distress, along with assertions that school officials were aware of the coach’s misconduct, but failed to intervene to remedy the situation. The settlement paperwork, as is typical in such scenarios, included language that the resolution of the case was not an admission of wrongdoing or any liability on behalf of the district, but was agreed to merely to avoid the costs and uncertainties of continuing litigation.
Title IX Compliance
In July 2019, in Tyler v. Huntsville City Schools, a settlement was agreed to in a federal lawsuit that originated with a formal complaint filed with the U.S. Department of Education’s Office for Civil Rights (OCR) alleging unequal treatment of the girls’ sports teams at Lee High School (Alabama), including inequities for female student-athletes in nine of the 11 broad categories of “athletics benefits and opportunities” that accompany sports participation. The dispute focused on issues related to the treatment of Lee High School’s softball program as compared to its baseball program, but was expanded to examine all of the girls’ teams at the school. The written settlement sets forth the nine general areas where preference had historically been given to boys’ teams, along with a timeline for the district to remedy dozens of specific problems within the nine categories, including 1) equipment, uniforms, and supplies; 2) scheduling of games and practice times; 3) travel, transportation, and per diem inequities; 4) access to quality coaching; 5) opportunity to receive academic tutoring; 6) locker rooms, practice facilities, and competition facilities; 7) athletic training and medical services; 8) meals and dining services; and 9) marketing/publicity services provided to teams.
The settlement specifies that it is the responsibility of the school to remedy Title IX inequities even if the source of the funding that created the disparate treatment came from an outside source such as boosters, donors, fundraisers, or corporate sponsors. The district also agreed to pay the plaintiffs’ attorneys fees, $50,525.75.
Fair Labor Standards Act
In October 2019, the U.S. Department of Labor announced changes to the Fair Labor Standards Act (FLSA) requirements for an employee to be considered exempt with regard to the application of minimum wage and overtime requirements, an issue relevant to the use by high school athletic programs of non-exempt school employees as coaches or support personnel at sports events. The changes are to the minimum salary amounts for an employee classified as having executive, administrative, or professional duties (EAP) to qualify as exempt – they are being increased from $23,660/year ($455/week) to $35,568/year ($684/week). For an employee to qualify as an exempt “highly compensated individual,” the increase is from $100,000/year to $107, 432/year. A different set of increases had been scheduled to go into effect on January 1, 2017, but were rescinded following the 2016 presidential election. The new set of increases goes into effect on January 1, 2020, therefore school districts will need to re-evaluate the status of anyone earning a salary between the old amounts and the new amounts.