CURRENT LEGAL ISSUES IN CURRENT LEGAL ISSUES IN SCHOLASTIC ATHLETICS SCHOLASTIC ATHLETICS

PRESENTER:PRESENTER:LEE E. GREEN, J.D.LEE E. GREEN, J.D.

PROFESSOR – BAKER UNIVERSITYPROFESSOR – BAKER UNIVERSITY

2011 AIAAA CONFERENCE2011 AIAAA CONFERENCEPRESCOTT, ARIZONAPRESCOTT, ARIZONA

SPORTS-RELATED LAWSUITS: 2010SPORTS-RELATED LAWSUITS: 2010 Scholastic Collegiate Constitutional/Civil Rights 142 17 Sports Injury Related Suits 827 96 Title IX Complaints 112 24 Title IX Lawsuits 38 9 Sexual Harassment Complaints 348 52 Sexual Harassment Lawsuits 119 23 Hazing Lawsuits 277 19 Disabilities Complaints + Suits 162 31 Employment Law Complaints 195 49 Employment Law Lawsuits 87 24

LIABILITY FOR SPORTS INJURIESLIABILITY FOR SPORTS INJURIES Felix v. Barre Supervisory Union Felix v. Barre Supervisory Union (Settled July 2010)(Settled July 2010) 16-year-old football player sustains neck/spinal injury in16-year-old football player sustains neck/spinal injury in head-down, helmet-to-helmet contact (quadriplegia). head-down, helmet-to-helmet contact (quadriplegia). Lawsuit alleged violations of duties of proper techniqueLawsuit alleged violations of duties of proper technique instruction, warnings, and supervision. instruction, warnings, and supervision. Pre-settlement, Vermont Supreme Court had ruled outPre-settlement, Vermont Supreme Court had ruled out assumption of risk and statutory immunity defenses. assumption of risk and statutory immunity defenses. Settlement amount not disclosed; structured payoutSettlement amount not disclosed; structured payout intended to cover estimated lifetime medical care ($9 M). intended to cover estimated lifetime medical care ($9 M). Hunt v. Public School Athletic League Hunt v. Public School Athletic League (Settled Sept 2010)(Settled Sept 2010) Undersized high school football player suffered a Undersized high school football player suffered a brokenbroken neck in scrimmage against bigger players (paraplegia). neck in scrimmage against bigger players (paraplegia). Suit alleged violations of duties of supervision, techniqueSuit alleged violations of duties of supervision, technique instruction, warnings, medical response, evaluation of instruction, warnings, medical response, evaluation of injuries (premature return to action), and matching/ injuries (premature return to action), and matching/ equating athletes for safe participation. equating athletes for safe participation. Settlement amount: $8 M (est. lifetime medical care). Settlement amount: $8 M (est. lifetime medical care).

LIABILITY FOR SPORTS INJURIESLIABILITY FOR SPORTS INJURIES Estate of Max Gilpin v. Stinson Estate of Max Gilpin v. Stinson (Settled September 2010)(Settled September 2010) Wrongful death civil suit against high school footballWrongful death civil suit against high school football coach for heat-stroke death of player. coach for heat-stroke death of player. Trial was scheduled for May 2010 but was delayed soTrial was scheduled for May 2010 but was delayed so parties could engage in mediation leading to settlement. parties could engage in mediation leading to settlement. $1.75 M settlement donated to Max Gilpin Beat The$1.75 M settlement donated to Max Gilpin Beat The Heat Foundation (education re heat-related risks). Heat Foundation (education re heat-related risks). Reese v. New York City Public Schools Reese v. New York City Public Schools (Settled Jan 2010)(Settled Jan 2010) P.E. class dodgeball injury; rainy day/six classes/100 P.E. class dodgeball injury; rainy day/six classes/100 kidskids in small gym using soccer balls instead of dodgeballs. in small gym using soccer balls instead of dodgeballs. Settlement for $20,000 (cost of dental surgeries). Settlement for $20,000 (cost of dental surgeries). Juleson v. Springfield School District Juleson v. Springfield School District (Filed July 2010)(Filed July 2010) High school football referee struck from behind on theHigh school football referee struck from behind on the field by golf cart driven by 2-year-old boy. field by golf cart driven by 2-year-old boy. Suit alleges failure to supervise and failure to provide aSuit alleges failure to supervise and failure to provide a safe environment; ref seeking $265,000 in damages. safe environment; ref seeking $265,000 in damages.

LIABILITY FOR SPORTS INJURIES:LIABILITY FOR SPORTS INJURIES:CONCUSSIONSCONCUSSIONS

Protecting Student Athletes From Concussion Act of 2010 Protecting Student Athletes From Concussion Act of 2010 H.R. 6172 introduced in Congress on Sept 22, 2010 andH.R. 6172 introduced in Congress on Sept 22, 2010 and would impose uniform national concussion management would impose uniform national concussion management standards and educations reqs on schools nationwide. standards and educations reqs on schools nationwide. Hearings held before House Education & Labor C. inHearings held before House Education & Labor C. in Sept 2010; testimony by doctors/medical researchers on Sept 2010; testimony by doctors/medical researchers on frequency/severity of TBIs in school and youth sports. frequency/severity of TBIs in school and youth sports. Bill is a high-school-focused follow-up to the ConcussionBill is a high-school-focused follow-up to the Concussion Treatment & Care Tools Act (ConTACT) of 2009. Treatment & Care Tools Act (ConTACT) of 2009. Arizona Law Regarding Concussions: ARS 15-341 (2011) Arizona Law Regarding Concussions: ARS 15-341 (2011) State law requiring athletes suspected of having State law requiring athletes suspected of having sustainedsustained a concussion to be immediated removed from play and a concussion to be immediated removed from play and cleared to return only after written release by a health cleared to return only after written release by a health health care provider trained in evaluation and mgmt of health care provider trained in evaluation and mgmt of concussions (physician, trainer, nurse practitioner, or concussions (physician, trainer, nurse practitioner, or physician assistant). Note education signoff requirement. physician assistant). Note education signoff requirement.

LIABILITY FOR SPORTS INJURIES:LIABILITY FOR SPORTS INJURIES:CONCUSSIONSCONCUSSIONS

NFHS Revised Concussion Management Guidelines NFHS Revised Concussion Management Guidelines Went into effect for the 2010-11 school year. Went into effect for the 2010-11 school year. Numerous state associations have adopted the new Numerous state associations have adopted the new NFHSNFHS guidelines as mandatory protocols in their states (e.g. the guidelines as mandatory protocols in their states (e.g. the Illinois High School Association, in August 2010, voted Illinois High School Association, in August 2010, voted to make mandatory the NFHS concussion guidelines). to make mandatory the NFHS concussion guidelines). Consult your state association website and hard-copyConsult your state association website and hard-copy publications to ensure compliance in your jurisdiction. publications to ensure compliance in your jurisdiction. NFHS Online Course: Concussion In Sports – What YouNFHS Online Course: Concussion In Sports – What You Need To Know Need To Know (Launched Spring of 2010)(Launched Spring of 2010) Free course; takes 20-30 minutes to complete; may beFree course; takes 20-30 minutes to complete; may be used to educate coaches, student-athletes, parents, and used to educate coaches, student-athletes, parents, and other sports event supervisors; includes extensive other sports event supervisors; includes extensive printable resources; available at printable resources; available at www.nfhslearn.comwww.nfhslearn.com. . Center For Disease Control (CDC) ResourcesCenter For Disease Control (CDC) Resources Extensive concussion management info: Extensive concussion management info: www.cdc.govwww.cdc.gov. .

FREE SPEECH & CYBERSPACE ISSUESFREE SPEECH & CYBERSPACE ISSUEST.V. & M.K. v. Smith-Green Comm. Schools T.V. & M.K. v. Smith-Green Comm. Schools (August 2011)(August 2011) Volleyball players suspended from team for postingVolleyball players suspended from team for posting inappropriate pictures depicting sexually explicit activity inappropriate pictures depicting sexually explicit activity taken at summer sleepover on their MySpace pages. taken at summer sleepover on their MySpace pages. Court ruled school violated free speech rights of theCourt ruled school violated free speech rights of the student-athletes. School intends to appeal the ruling. student-athletes. School intends to appeal the ruling. L.P. & A.B. v. Northshore School Dt. L.P. & A.B. v. Northshore School Dt. (March 2010)(March 2010) Mediation ordered in free speech case involving two h.s.Mediation ordered in free speech case involving two h.s. cheerleaders suspended from squad for sexting incident cheerleaders suspended from squad for sexting incident involving use of privately-owned cell phones. involving use of privately-owned cell phones. S.T. v. Pearl Public School District S.T. v. Pearl Public School District (Docketed for 2011)(Docketed for 2011) Cheerleader suspension for inappropriate postings onCheerleader suspension for inappropriate postings on Facebook challenged on free speech & privacy grounds; Facebook challenged on free speech & privacy grounds; cheer coach required team members to provide her with cheer coach required team members to provide her with account passwords to monitor members postings. account passwords to monitor members postings.

FREEDOM OF RELIGIONFREEDOM OF RELIGION& ESTABLISHMENT CLAUSE ISSUES& ESTABLISHMENT CLAUSE ISSUES

Marszalek v. Dearborn Public Schools Marszalek v. Dearborn Public Schools (Settled March 2010)(Settled March 2010) Wrongful termination based on religious discriminationWrongful termination based on religious discrimination case by wrestling coach who alleged his coaching contract case by wrestling coach who alleged his coaching contract was not renewed because of his Christian beliefs. was not renewed because of his Christian beliefs. Majority of students at the school are Muslim; case Majority of students at the school are Muslim; case beganbegan when Muslim wrestlers and their parents complained when Muslim wrestlers and their parents complained that coach was trying to convert them to Christianity. that coach was trying to convert them to Christianity. District settled case for $25,000 to avoid cost of a trial. District settled case for $25,000 to avoid cost of a trial. Iacono v. Croom Iacono v. Croom (October 2010)(October 2010) Temporary restraining order issued by federal court Temporary restraining order issued by federal court lifting suspension of female student for violating district lifting suspension of female student for violating district no-piercing rules. no-piercing rules. Student is member of Church of Body Modification, aStudent is member of Church of Body Modification, a non-theistic denomination that encourages piercings. non-theistic denomination that encourages piercings. Courts focus only on sincerity of belief, not legitimacy. Courts focus only on sincerity of belief, not legitimacy.

DUE PROCESS ISSUES & THEDUE PROCESS ISSUES & THE“RIGHT” TO PARTICIPATE IN SPORTS “RIGHT” TO PARTICIPATE IN SPORTS

Natke v. North Branch Area School Dt. Natke v. North Branch Area School Dt. (Feb 2010)(Feb 2010) 16-year-old baseball player suspended for one-third of 16-year-old baseball player suspended for one-third of season pursuant to Athletic Code of Conduct for stealing season pursuant to Athletic Code of Conduct for stealing a case of beer from a store (charged with retail theft). a case of beer from a store (charged with retail theft). Lawsuit based on due process, equal protection, andLawsuit based on due process, equal protection, and breach of contract (created by Code of Conduct). breach of contract (created by Code of Conduct). Federal court ruled athletic participation is a privilege notFederal court ruled athletic participation is a privilege not a constitutional right and that no equal protection or a constitutional right and that no equal protection or contract violation occurred. contract violation occurred. Doe v. Silsbee Independent School Dt. Doe v. Silsbee Independent School Dt. (Sept 2010)(Sept 2010) U.S.U.S. Court of Appeals ruled district did not violate aCourt of Appeals ruled district did not violate a cheerleader’s due process, equal protection, or free speech cheerleader’s due process, equal protection, or free speech rights for removing her from squad for failing to cheer for rights for removing her from squad for failing to cheer for a member of boys basketball team who had allegedly a member of boys basketball team who had allegedly sexually assaulted her (but who was not indicted). sexually assaulted her (but who was not indicted).

DRUG TESTING PROGRAMSDRUG TESTING PROGRAMSADMINISTERED BY HIGH SCHOOLS ADMINISTERED BY HIGH SCHOOLS

Brown v. Shasta Union High School Dt. Brown v. Shasta Union High School Dt. (Sept 2010)(Sept 2010) The California Court of Appeals upheld the May 2009The California Court of Appeals upheld the May 2009 ruling by a trial court that the school district’s random, ruling by a trial court that the school district’s random, suspicionless drug testing policy for students involved in suspicionless drug testing policy for students involved in non-sport extracurricular activities violates the search/ non-sport extracurricular activities violates the search/ seizure and privacy provisions of the state constitution. seizure and privacy provisions of the state constitution. Although testing of student-athletes was upheld by theAlthough testing of student-athletes was upheld by the decision, case is the most recent in a series striking down decision, case is the most recent in a series striking down drug-testing programs by ruling that a state constitution drug-testing programs by ruling that a state constitution grants even greater privacy protections than does the grants even greater privacy protections than does the Bill of Rights to the U.S. Constitution. Bill of Rights to the U.S. Constitution. Long v. Goshen County School Dt. Long v. Goshen County School Dt. (Argued June 2010)(Argued June 2010) Wyoming Supreme Court will soon decide appeal of Wyoming Supreme Court will soon decide appeal of 20092009 trial court decision upholding drug testing of students trial court decision upholding drug testing of students involved in sports and extracurricular activities. involved in sports and extracurricular activities.

HAZINGHAZING Elk River High School (Minnesota) – Elk River High School (Minnesota) – August 2010August 2010 Varsity football program temporarily suspended and 9Varsity football program temporarily suspended and 9 players eventually dismissed or suspended for hazing in players eventually dismissed or suspended for hazing in which upperclassman struck/poked victims near their which upperclassman struck/poked victims near their buttocks with broomsticks. buttocks with broomsticks. School board has now implemented an anti-hazing educ.School board has now implemented an anti-hazing educ. program for athletics personnel, athletes, and parents. program for athletics personnel, athletes, and parents. Carmel High School (Indiana) – Carmel High School (Indiana) – May 2010May 2010 4 basketball players charged with assault, battery, and4 basketball players charged with assault, battery, and criminal recklessness for locker room/bus hazing. criminal recklessness for locker room/bus hazing. Incident led to resignation of varsity head coach and Incident led to resignation of varsity head coach and dismissal of 3 freshmen team coaches. dismissal of 3 freshmen team coaches. $2.25 M tort lawsuit filed against district and coaches $2.25 M tort lawsuit filed against district and coaches alleging “a lengthy history of sexual abuse and bullying alleging “a lengthy history of sexual abuse and bullying by students in the athletics program.” by students in the athletics program.”

HAZINGHAZING Clarksville High School (Tennessee)Clarksville High School (Tennessee) Summer football camp hazing incident; cell phone videoSummer football camp hazing incident; cell phone video posted online of beatings inflicted on underclassmen. posted online of beatings inflicted on underclassmen. Investigation found culture of hazing permeated school’sInvestigation found culture of hazing permeated school’s athletics program; head football coach resigned and six athletics program; head football coach resigned and six players were suspended from football team. players were suspended from football team. Robertson High School (New Mexico)Robertson High School (New Mexico) Final sentencing hearing in criminal cases related to AugFinal sentencing hearing in criminal cases related to Aug 2008 football camp hazing-sodomy incidents; five of six 2008 football camp hazing-sodomy incidents; five of six attackers already sentenced; last received one-year prison attackers already sentenced; last received one-year prison sentence for his actions at June sentencing hearing. sentence for his actions at June sentencing hearing. Also in June, civil lawsuits filed against district and sportsAlso in June, civil lawsuits filed against district and sports personnel alleging tolerance of pervasive culture of hazing. personnel alleging tolerance of pervasive culture of hazing. Arizona Anti-Hazing Law: ARS 15-2301 (2011)Arizona Anti-Hazing Law: ARS 15-2301 (2011) Copy of statute is attached to handout. Copy of statute is attached to handout.

SEXUAL HARASSMENTSEXUAL HARASSMENT USA Swimming LawsuitsUSA Swimming Lawsuits Five separate lawsuits involving multiple victims inFive separate lawsuits involving multiple victims in swim clubs nationwide (criminal charges also filed in swim clubs nationwide (criminal charges also filed in several of the cases against the coaches involved). several of the cases against the coaches involved). September 2010: USA Swimming implements a newSeptember 2010: USA Swimming implements a new athlete protection policy (full-text at athlete protection policy (full-text at usaswimming.orgusaswimming.org).). Doe v. Flaherty Doe v. Flaherty (U.S. 8th Circuit - August 2010)(U.S. 8th Circuit - August 2010) Trentadue v. Redmon Trentadue v. Redmon (U.S. 7th Circuit - October 2010) (U.S. 7th Circuit - October 2010) Doe involved a high school girls’ basketball coach in aDoe involved a high school girls’ basketball coach in a sexual relationship with a player and Trentadue involved sexual relationship with a player and Trentadue involved a JROTC instructor in a sexual relationship with student. a JROTC instructor in a sexual relationship with student. Rulings dealt with a variety of issues, including theRulings dealt with a variety of issues, including the standard of liability of schools and personnel for S.H. standard of liability of schools and personnel for S.H. Legal Standard:Legal Standard: Strict liability when a school official in Strict liability when a school official in a position to take remedial action has knowledge that a position to take remedial action has knowledge that sexual harassment is occurring and exhibits deliberate sexual harassment is occurring and exhibits deliberate indifference to remedying the situation. indifference to remedying the situation.

TITLE IX & GENDER EQUITYTITLE IX & GENDER EQUITY Biediger v. Quinnipiac University Biediger v. Quinnipiac University (July 2010)(July 2010) U.S. District Court ruling: Competitive cheer squadU.S. District Court ruling: Competitive cheer squad members cannot be counted as varsity athletes for Title members cannot be counted as varsity athletes for Title IX compliance (computing substantial proportionality). IX compliance (computing substantial proportionality). Court relied on 2008 OCR pronouncement setting forthCourt relied on 2008 OCR pronouncement setting forth criteria for a sport and found deficiencies in Quinnipiac’s criteria for a sport and found deficiencies in Quinnipiac’s cheer program with regard to many of those criteria. cheer program with regard to many of those criteria. Judge noted likelihood in future of competitive cheerJudge noted likelihood in future of competitive cheer being recognized as a sport. being recognized as a sport. Recission of 2005 OCR E-Survey Policy Recission of 2005 OCR E-Survey Policy (April 2010)(April 2010) 2005 OCR policy allowed schools to comply with three-2005 OCR policy allowed schools to comply with three- prong test by using e-surveys and counting non-responses prong test by using e-surveys and counting non-responses as having no interest in participating in sports. as having no interest in participating in sports. Federal Title IX Data-Reporting LegislationFederal Title IX Data-Reporting Legislation House & Senate versions progressing through House & Senate versions progressing through committee.committee. NWLC OCR Complaints Against 12 Districts NWLC OCR Complaints Against 12 Districts (Nov 2010) &(Nov 2010) & Mass Filings In Oregon, Washington, & Idaho (2011) Mass Filings In Oregon, Washington, & Idaho (2011)

FAIR LABOR STANDARDS ACTFAIR LABOR STANDARDS ACT Purdham v. Fairfax County Schools Purdham v. Fairfax County Schools (March 11, 2011)(March 11, 2011)

4th Circuit Court of Appeals: 4th Circuit Court of Appeals:

Volunteer coaches are exempt from overtimeVolunteer coaches are exempt from overtime requirements of FLSA if: requirements of FLSA if:

Freely provide services &Freely provide services &

Job duties are dissimilar from regular job &Job duties are dissimilar from regular job &

Paid only a nominal amountPaid only a nominal amount

Stipends are “nominal” Stipends are “nominal”

Lee E. Green, J.D. - Baker University618 Eighth Street

Baldwin City, Kansas 66006Office: 785.594.8336

Email: Lee.Green@BakerU.Edu

2011 AIAAA CONFERENCE2011 AIAAA CONFERENCEPRESCOTT, ARIZONAPRESCOTT, ARIZONA