CURRENT LEGAL ISSUES IN HIGH SCHOOL ATHLETICS

John Cooper IMG

IMG ACADEMY

Ò  Founded in 1978 by Nick Bollettieri as a tennis boarding school on 15 acres in Bradenton, FL, 45 Miles south of Tampa.

Ò  Graduates include Andre Agassi, Serena Williams and Maria Sharapova.

Ò  Trainees include Cam Newton and Eli Manning Ò  Now 500 acres; 760 employees Ò  Includes 8 sport disciplines: Tennis, Golf, Soccer,

Baseball, Basketball, Lacrosse, Football and Track and Field

UNIQUE BUSINESS MODEL

Ò  Full time college prep boarding school: currently 950 full-time students from more than 80 countries enrolled in prekindergarten through 12th grade and post-graduation. About half the students are international. Vast majority are from affluent families—tuition is $70,000+

Ò  Camps: Currently 8,000 weekly summer campers

Ò  Events: 70-100 events per year held on and off campus

Ò  Team Training: Pro soccer teams (US and international), CFL teams, college teams, elite youth teams, Olympic/NGB, etc.

Ò  Pro Training: Elite athlete training, NFL Combine training, MLB pre-spring training, NBA Combine, etc

Ò  Sponsorships: Under Armour (UA athlete training center, product R&D/innovation/testing, build brand ambassadors) and Gatorade (Gatorade Sports Science Institute, access to elite youth)

HIGH SCHOOL FOOTBALL INC., A LOOK AT IMG ACADEMY COVER OF NEW YORK TIMES ON SEPTEMBER 19, 2015

CONCUSSION LIABILITY

Ò  High school cases modelled after and the NFL and NCAA cases

Ò  The NFL settlement in April (up to $1 billion for thousands of former players, imposed a care regime).

Ò  NCAA proposed settlement (up to $70 million in funds, provide head injury evaluations and step up safety efforts).

Ò  For the most part, cases seek changes, not compensation Ò  Looking for the “right” defendant

É  State legislatures (who have made the laws) of course have immunity

É  High school associations are the opposite of the NCAA or NFL (relatively little funds and many constituents)

É  Coaches and nurses may have gross negligence standard and have comparatively less judgment potential (expensive, fact-specific, expert-heavy cases for individual plaintiffs)

PIERSCIONEK V. ILLINOIS HIGH SCHOOL ASSOCIATION Ò  One of the first high school concussion cases. Seeking to have:

É  Have medical professionals with concussion expertise present at all football games and on call for all football practices

É  Screen players for brain injuries É  A program to educate teachers about identifying concussions. É  Establishment of a "medical monitoring" program that would have allowed all

ex-high school football players since 2002 to be tested for problems that might be related to a concussion and thereafter seek treatment

Ò  Case dismissed in October, 2015 É  Issue should be dealt with in the state Legislature, not a courtroom. É  High school athletes and their families accept risk with contact sports. É  Imposing broader liability on the IHSA would certainly change the sport of

football and potentially harm it or cause it to be abandoned. É  IHSA launched a new campaign devoted to concussion awareness. "Play

Smart. Play Hard" included a new website about concussions and an advisory council charged with recommending policy changes.

É  The judge also said that plaintiffs needed to establish that IHSA "acted with intent to cause the injury."

MORE CASES TO COME . . . Ò  Hausfeld firm is leading a new Mississippi class-action lawsuit against the NCAA

and the National Federation of State High School Associations seeking to represent a class of all current high school football players in the United States as of December 2013 É  Seeks the NCAA and NFHS to provide high schools with training, materials and certifications

around concussion management plans (including insurance coverage).

Ò  Hites v. Penn. Interscholastic Athletic Association (December, 2015)) É  PIAA didn’t properly track concussions and or post-concussion protocol for

football and softball É  Seeking to establish a trust fund, require PIAA-sanctioned events to be

staffed with medical personnel, and resources for medical care, including post-injury monitoring.

Ò  Pop Warner cases (Wisconsin (suicide) and California (quadriplegic)) É  Claim Pop Warner does not properly oversee/verify/enforce training by

volunteer coaches (but “intent to injure”?) É  Direct claims of “gross” negligence by volunteer coaches for encouraging

head-first tackling (overcoming the waiver signed by parent) É  Judgment proof? Declining participation and profits

SOME WINS IN INDIVIDUAL CASES

Ò  Wheelchair-bound Iowa athlete received nearly $1 million from a U.S. District Court in Des Moines on May 11, 2015 because the school nurse was negligent in notifying coaches and the student’s guardian of a possible concussion.

Ò  Plaintiff had a pre-existing condition that exacerbated his head injury. Ò  Complicated case as bullying was also alleged (footballs thrown at

head) Ò  More of a nurse duty-of-care case than a concussions protocol case,

as the jury found that the nurse should have advised the coaches of the injury.

Ò  Liability insurance from a group program will cover the payout offered through the Iowa Association of School Boards and two insurance partners (340 districts participating)

DIFFICULT CASES

Ò  Courts have generally been unwilling to impose liability on schools or coaches for students suffering concussions: É  Causation: did concussion happen on school team (rather than on club team, or

ski vacation) É  Proximate cause: difficult to prove coaches or teachers actions were the

proximate cause of the concussion—inconsistent application of the protocol caused the injury?

É  Gross negligence standard may be difficult to overcome É  Risk acceptance: athletes are well aware of the dangers of playing sports É  Immunity: public schools generally enjoy school district immunity for injuries

suffered during recreational activities.  É  All states have passed concussion legislation, providing guidance to the

associations and schools But these cases will keep coming and Pierscionek has little precedential value.

SOME PROTECTIVE MEASURES

Ò  Training, training, training: ensure coaches are trained on the concussion protocol and complete an annual concussions training courses in all affected sports.

Ò  Document training. If necessary utilize online resources (e.g., the 22-minute online video is provided by the National Federation of State High School Associations). Verify comprehension by testing and requiring active watching.

Ò  Require doctors to submit written approval for athletes' returns to play, with doctors specializing in brain care preferred.

Ò  Exceed association protocols if possible (e.g., have licensed physicians on the sidelines).

Ò  Players and their parents and guardians sign concussion fact sheets that acknowledge risks and provide information before approval to play.

SOCIAL MEDIA ISSUES AND SCHOOL AUTHORITY TO SANCTION STUDENT-ATHLETES Ò Public schools obviously are state actors. Ò Private schools could be indirectly implicated

when state athletic association is sanctioned. Ò State athletic association is likely a state actor

(Brentwood Supreme Court case (“pervasive entwinement of state officials in not-for-profit Tennessee)).

Ò  If state actor, must have a “compelling state interest” and be narrowly tailored.

WISCONSIN INTERSCHOLASTIC ATHLETIC ASSOCIATION  Ò  Sent a letter to member schools asking student sections to tone down student chants:

É  Heading into the new year with the holiday tournaments and conference schedules ramping up, and the winter sports Tournament Series soon to follow, we want to identify a point of emphasis for sportsmanship this season.

É  As we reviewed the fall tournaments and the sportsmanship evaluations and observations, we want to address concerns with a noticeable increase in the amount of chants by student sections directed at opponents and/or opponents’ supporters that are clearly intended to taunt or disrespect.

É  Not wanting to restrict creativity or enjoyment, an enthusiastic and boisterous display of support for a school’s team is welcomed and encouraged at interscholastic events when directed in a positive manner. However, any action directed at opposing teams or their spectators with the intent to taunt, disrespect, distract or entice an unsporting behavior in response in not acceptable sportsmanship. Student groups, school administrators and event managers should take immediate steps to correct this unsporting behavior.

É  Some specific examples of unsporting behavior by student groups including chants directed at opposing participants and/or fans. Among the chants that have been heard at recent high school sporting events are: “You can’t do that,” “Fundamentals,” “Air ball,” “There’s a net there,” “Sieve,” “We can’t hear you,” The “scoreboard” cheer, and “Season’s over” during tournament series play.

Ò  Does the WIAA really deserve the grief it’s getting for this letter (Jay Bilas, Forbes, Daily Mail (UK))? Would these restrictions work at a public university like University of Wisconsin?

Ò  Will this direction result in consistent discipline across schools?

STUDENT PROTESTS . . .

STUDENT’S RESPONSE TWEET:

Ò  EAT SHIT WIAA

Ò  Student(a three-sport athlete) was suspended for five games during this basketball season for the tweet (same penalty as underage drinking or fighting).

Ò  School can obviously restrict students from using profanity or otherwise disrupting learning environment (a “compelling state interest”).

Ò  There is no indication it was seen by anyone while at school. Ò  It did not affect, much less disrupt, school activities--after all, the school did

not even know about the tweet until later on. Ò  About the only link to make this "in-school" speech is that she sent the tweet

from school. Ò  The problem is of course the profanity, but profanity can be protected in non-

school forums that do not cause an actual disruption. Ò  Should she appeal?

COURT DECISIONS MIXED

Ò  Courts continue to struggle with the issue whether schools have the authority to sanction students or student-athletes for inappropriate, off-campus postings on social media websites in violation of school or athletics codes of conduct.

Ò  Fact-specific, witness-intensive cases to be avoided if possible. Ò  Since 2011, six cases have been decided on the issue by U.S. Courts

of Appeal and a dozen other rulings have been issued by U.S. District Courts.

Ò  In precisely one-half of those cases, courts have held that such punishments violate student-free-speech rights, while in the others, courts have upheld school action because the speech in question created a substantial disruption at school, constituted bullying or harassment, or manifested a true threat of violence against members of the school community.

WIAA APOLOGIZES . . .

Ò  Please let me begin by offering a sincere apology for any distress or dissatisfaction which may have come your way as a result of a sportsmanship email from Todd Clark dated December 22, 2015. The intentions of that email have become much scrutinized and misunderstood. From our perspective, the email was simply a reminder in advance of the many holiday tournaments held every year across the membership. Nothing more, nothing less, than what has been shared across the membership via the Sportsmanship Manual since 2005. To be clear, there has been no new directives, no new rules, no new mandates, no new enforcement expectations associated with the email. We know that the challenges of keeping interscholastic athletics a fun, safe and educational experience for our athletes, students and fans are never ending. We see and respect the everyday efforts of individual members and conferences in striving to create the positive environment you are proud of — and we appreciate those efforts. Carry On! Please keep up the great work, just as you have been doing. I invite you to share your updates to our current publication with me or with Todd Clark, who oversees this committee. Perhaps with your input, the committee will be able to identify new ways to capture the interests and intentions of the WIAA membership in and around the topic of education-based athletics. Perhaps they will find that those things which were identified in the Manual in 1997 or in 2005 are, in fact, outdated in 2016. But either way, this presents our membership with an opportunity to revisit our goals, objectives and expectations surrounding sportsmanship. Thank you for your time and support on this matter. David J. Anderson Executive Director WIAA

FALSE PRETENSES?

FALSE PRETENSES?

From 2014, Chicago high school player suspended by the Illinois High School Association (IHSA) after a photographer captured a still image of player holding his two middle fingers up during a game after one of his three pointers was waved off by an official. •  No one at the game noticed--not the refs, not the fans, not either team's

coaches or their players.   And no one after the game said anything, either. •  Peoria Star published the image on-line with the caption "Jalen Brunson of

Lincolnshire Stevenson makes a gesture to Chicago Whitney Young crowd." •  It sparked an uproar and the IHSA decided to suspend Brunson for the

following game.  •  Brunson apologized on Twitter, but stressed that he did not intentionally

give the middle finger.  It occurred unintentionally while he had thrown up his hands in frustration.

SUSPENSION REVERSED!

Ò  Brunson and his family appeared at a hastily called hearing with the IHSA set just hours before the consolation game. They argued that the photo -- a mere still image representing a fraction of a second in a bodily movement -- was taken completely out-of-context and that the IHSA was punishing Brunson because of public reaction, not because of wrongdoing. They also argued that no one at the game noticed.

Ò  The IHSA agreed and the suspension was reversed. Ò  If truly unintentional (?), and if suspension had not been

reversed, query whether he would have a claim for false pretenses against the newspaper.

ON-FIELD “CRIMINAL” CONDUCT

Ò  Probably not a trend but some interesting cases Ò  Obviously can’t allow criminal and tort law to

regulate sports, or the games would not survive and/or courts would be overwhelmed.

Ò  What is an “assault” on the street is a fair play on the field

Ò  Courts must have a much higher standard—even an intentional act to injure (e.g., plunking, late hit) are part of the game and assumed.

Ò  Has to go way beyond unsportsmanlike

FELONY WATER POLO Ò  December, 2015 California case where felony assault and battery charges are brought against

a 15-year old high school water polo player for breaking an opponent’s nose during a game.   Ò  Referees apparently didn’t see what happened, because no foul was called Ò  The alleged incident occurred away from the ball in play and resulted in a broken nose of the

other player, who required surgery.   Ò  Exactly what happened between the boys is disputed. But people who have seen the video say

it shows the accused boy delivering what appears to be a purposeful blow with his leg or knee to the other boy’s face in front of his goal. Both boys were playing the 2-meter position, which tends to be particularly physical.

Ò  The incident was videotaped, and the videotape was provided to the police. Ò  Student got straights As and had never been in trouble. Ò  Parents: “Simply put, the criminal justice system is not the place to control and address issues

as described above in any sport, which happen hundreds of times per year, when there is appropriate officiating and ruling infrastructure in place at the league and school levels . . . Not to mention, the dangerous precedent it would set for high school sports in general.”

TEXAS HIGH SCHOOL HIT ON REFEREE

The former assistant high school football coach plead guilty to assault for an attack on a game referee by two of his players, a misdemeanor charge with a sentence of 18 months of probation, fined him $1,500 and ordered him to serve 120 hours of community service and pay restitution to the referee

Ò  High schools’ rights to games is settled law (Gannett v. WIAA)

Ò  Despite the ruling in O'Bannon, the prevailing law is that copyright interests preempt rights of publicity claims, so we should not see a compensation claims coming from high school students arising from game broadcasts themselves.

Ò  Potential for claims in the endorsement area—be careful with sponsor materials mixed with social media posts