The Legal Issue
In recent years, numerous legal challenges have been filed by student-athletes or schools disputing the decision of a state association regarding the eligibility of an athlete or the outcome of an athletic contest. In some cases, the dispute involves the application of governing body transfer or anti-recruiting rules. In others, in contention is an association decision that a game must be forfeited because of the use of an ineligible player or the claim by a losing team that an erroneous call by game officials cost the squad a victory.
Each of these scenarios typically involve challenges to the legal authority of the governing body to enforce regulations that were agreed to in advance by institutions based on their voluntary membership in the state association and concern rules that are in dispute only because their application to the case-in-question resulted in a negative outcome for the complainant with regard to the eligibility of a star athlete or further advancement for a team in state playoffs. Such lawsuits also involve issues broader than the application of a specific association rule, in particular the extent of the legal power of sport governing bodies, the proper role of the judicial system in resolving disputes involving school athletics and whether athletic competitions should ultimately be decided not on the field, but in a courtroom.
Kithier v. Michigan High School Athletic Association (MHSAA)
On January 11, 2018, a U.S. District Court judge found in favor of the MHSAA in a challenge by the family of a high school basketball player who had been ruled ineligible by the association because his transfer to a new high school had been deemed by the governing body to be athletically motivated. The subject of the case was Thomas Kithier, an ESPN four-star recruit and Michigan State University signee, who transferred to Clarkston High School for his senior year after playing his first three years at Dakota High School.
During the summer of 2017, Kithier competed for the All-Ohio Red in the Nike Elite Youth Basketball League, one of the three major circuits of AAU basketball sponsored by athletic shoe and apparel companies along with leagues underwritten by Adidas and Under Armour. The 6’8” power forward, who had previously played for an AAU team based in his home state of Michigan, joined the All-Ohio Red in order to play with “my future point guard,” fellow Michigan State signee Foster Loyer, who had led Clarkston High School to the 2017 Michigan Class A state championship. Kithier and Loyer were the only two non-Ohio players on the AAU squad. In August, after the conclusion of the AAU season, Kithier announced his transfer to Clarkston for his senior year, and he stated in several newspaper interviews that his purpose for transferring was to play his senior season alongside Loyer.
School administrators at Dakota High School refused to sign Kithier’s transfer waiver, which triggered an ineligibility that would have kept him out of action at Clarkston until mid-January. Those officials also reported the situation to the MHSAA, which investigated and issued an initial ruling in October 2017 that the transfer was athletically motivated, thereby triggering a 180-day ineligibility period that would encompass the entire basketball season. In December 2017, that decision was upheld on appeal by a five-person MHSAA executive committee. Soon thereafter, the lawsuit was filed, and the January 11, 2018 ruling denied the family’s request for a temporary restraining order that would have restored Kithier’s eligibility pending full resolution of the case, a process that would have taken at least several months, thus effectively ending Kithier’s high school basketball career.
The Kithier dispute involved issues often debated in cases challenging the authority of state association eligibility rules. On one side of the argument are those who assert that if a family is paying taxes to support educational institutions and a school-ofchoice system is in place, then a student should be allowed for any reason – academics, athletics, other extracurriculars, or even level of social assimilation at an institution – to attend any school without any restrictions related to the motivation for the transfer and that the only criteria should be what is best for the student as judged exclusively by the family.
On the other side of the argument are those who contend that it is imperative, given the modern-day reality of the nature of high school sports and the influence of club sport organizations – AAU basketball, 7-on-7 summer football, travel team soccer and baseball, club volleyball and swimming – along with the role of corporate sponsors throughout the youth sports ecosystem, that state associations should be able to enact regulations to ensure a level playing field in high school sports, discourage transfers primarily for athletics, and limit defacto recruiting by school sports programs.
The rule in question in the Kithier case was Regulation I, Section 9 (E) of the MHSAA Handbook, a regulation that has seven clauses defining an “athletically motivated transfer” and which was enacted pursuant to a vote of MHSAA member schools, all of whom are voluntary members of the state association and who voted for the rule as part of a statewide initiative to maintain a level playing field through a mechanism designed to provide recourse when a transfer is shown to have been influenced by non-academic factors. Part 7 was the determining factor in the MHSAA ruling against Kithier.
In the January 11, 2018 decision, federal judge Marianne O. Battani ruled that the MHSAA, like other state activity and athletic associations, is governed by the law of voluntary associations and that member schools are legally obligated to abide by regulations duly enacted through proper association procedures. She also found that Kithier did not have a constitutional right to play for Clarkston, basing that part of her decision on a long history of judicial precedents establishing the principle that participation in extracurricular activities, including interscholastic sports, is a privilege, not a legally enforceable constitutional guarantee. Judge Battani also addressed the argument asserted by the Kithier family that Thomas’ transfer was solely for academic reasons – to take a math class and a media class at Clarkston with content allegedly unavailable in any courses at Dakota – by stating that if academic motivations were truly the sole incentive for the transfer, then Thomas had suffered no harm because he was allowed to attend Clarkston and thus had access to the curricular benefits being claimed as the reason for his transfer.
On February 1, 2018, the Kithier family, in a tacit acknowledgement that it had no viable legal grounds for further appeal, withdrew its lawsuit, thus bringing the case to a conclusion.
Other Recent Cases Addressing 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 a referee’s mistake resulted in a loss in a state semifinal game. Fenwick High School led 10-7 with four seconds remaining in the game when its quarterback, on fourth down from its 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 its 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 play. 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 to disregard the regulation. 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.”
In February 2016, the Indiana Court of Appeals upheld the authority of the Indiana High School Athletic Association to follow the rules enacted by all of its member schools that resulted in penalties on Hammond High School and Griffith High School, including a double forfeit, cancellation of remaining regular-season games, and a bar on state tournament participation, because of a fight during a basketball game between the two schools that escalated into a melee involving players, coaches, parents and fans.
In November 2016, the Alabama Supreme Court upheld the authority of the Alabama High School Athletic Association to, pursuant to rules enacted by all of its member schools, including the affected institution, eliminate Washington County High School from the state football playoffs for using an ineligible player in its first-round win, a legal challenge that had resulted in a postponement of the second round of the playoffs.
In October 2015, a state trial court judge upheld the authority of the New York State Public High School Athletic Association to, pursuant to a rule establishing a minimum number of regular-season games for an athlete to be eligible for the postseason, enforce a football playoff game forfeiture against Aquinas High School for using an ineligible player.
And in November 2015, a state trial court judge upheld the authority of the Oklahoma Secondary School Activities Association to, pursuant to bylaws enacted by all of its member schools, enforce the disputed outcome of a football playoff game in which referees incorrectly negated a Douglas High School touchdown, resulting in a win for its opponent Locust Grove.
In its written opinion, although acknowledging the unfairness of a bad call potentially impacting the outcome of an athletic contest, the court stated, “[m]ore tragic, however, would be for this Court to assert itself in this matter. While mindful of the frustrations of the young athletes who feel deprived by the inaction of the [OSSAA], it borders on the unreasonable and extends far beyond the purview of the judiciary to think this Court more equipped or better qualified to decide the outcome or any portion of a high school football game. Courts ought not meddle in these activities or others, especially when [the Oklahoma City Public Schools and Douglas] have agreed to be bound by and have availed themselves to the governance of the [OSSAA]. The court continued, “There is neither statute nor case law allowing this Court discretion to order the replaying of a high school football game ... [t]he pursuit of further judicial action would result in the frustration of the world of athletics as we know it. This slippery slope of resolving athletic contests in court would inevitably usher in a new era of robed referees and meritless litigation due to disagreement with or disdain for decisions of game officials.”
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. He may be contacted at Lee.Green@BakerU.Edu.