Understanding Sports Law Litigation Procedures
In order for school and athletics administrators to proactively adopt best-practices strategies related to the legal issues that impact their sports programs – including standards designed to minimize the likelihood of student-athlete injuries; to safeguard the constitutional rights of players such as due process, equal protection, freedom of speech, freedom of assembly, freedom of religion and the right of privacy; to protect athletes against hazing and sexual harassment; to ensure gender equity and Title IX compliance within programs; to fulfill obligations under federal disability law to students with learning or motor skill challenges; and to honor all other legal mandates to the young people in their charge – school and athletics personnel must have an understanding of the procedural aspects of sports law litigation.
Many district and school administrators, as part of their educational preparation to become superintendents, principals and other staffers, have taken school law courses dealing with lawsuit and trial processes. And many athletic directors, coaches, trainers and other athletic personnel, as part of their educational background, have taken sports law classes addressing the steps involved in the typical athletic program court case. Understanding the procedural elements that are incorporated into judicial resolution of a dispute is often a critical component in correctly applying the legal standard( s) established by a court’s decision to a school sports program, both in regard to better protecting student-athletes and as related to minimizing the legal exposure of the institution and its personnel.
The following is a primer designed to refresh the knowledge of litigation procedures for school and athletics administrators and is organized to mirror four years of undergraduate sports law coursework.
Sports Law 101: Freshman Year – Temporary Restraining Orders
In the event that a student-athlete is suspended or dismissed from a team for having engaged in some form of misconduct prohibited by the squad’s code of conduct and the player along with his or her parents/legal guardians have filed a lawsuit challenging the sanctions, the first procedural maneuver by the family is likely to be a request of the court to issue a temporary restraining order (TRO) prohibiting the school from imposing the punishment pending a full resolution of the case. A TRO is a pre-trial injunction that functions as a court order blocking implementation of sanctions until and unless a judicial determination is made that the suspension or dismissal is lawful and does not violate the student’s rights.
In order to obtain a TRO, the plaintiff(s) will have to prove two criteria: 1) that the punishment will inflict “irreparable harm” on the student-athlete, and 2) that the player has a likelihood of success on the merits of the claim at trial.
An example of the issuance of a TRO is a case filed in U.S. District Court in Pennsylvania in May of 2017, Levy (B.L.) v. Mahanoy Area School District, involving a sophomore cheerleader, a minor identified by her initials (B.L.), sanctioned for inappropriate postings on social media allegedly in violation of the student-athlete code of conduct at Mahanoy Area High School. Off-campus and using her privately-owned phone, B.L. had taken 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 suspended for one year from the squad because the profane posting violated the student-athlete code of conduct given that the language used in the communication was “disrespectful to the coaches, the school, and the other cheerleaders.” B.L.’s parents (family surname Levy) then filed a federal lawsuit claiming that her posting was constitutionally protected by the Free Speech Clause of the First Amendment and the first procedural step taken by the plaintiffs was to request a TRO restoring B.L. to the team pending a full trial on the constitutional issues.
Despite the general maxim that participation in school extracurricular activities, including sports, is a privilege not a right, in October of 2017 the court issued a TRO, deciding that B.L. would suffer irreparable harm because she had not waived her First Amendment rights by agreeing to the cheer squad’s rules embodied in the code of conduct and that B.L. had a likelihood of success on the merits because of the “strict scrutiny” standard applied by courts to free speech cases.
Sports Law 250: Sophomore Year – Summary Judgments
A second procedural step often taken by one or both sides in sports law cases is to request that the court issue a summary judgment – a decision granted in favor of one of the parties without a full trial. In order to receive such a disposition of a lawsuit, the side requesting it will have to prove two criteria: 1) that there are no remaining issues of material fact requiring resolution by a full trial, and 2) the court can apply prevailing legal standards to those undisputed facts to decide that the movant should prevail without a full trial.
In the Mahanoy case, after receiving the TRO in October of 2017, the plaintiffs made a motion for a summary judgment that, in March of 2019, was granted by the U.S. District Court, which concluded that there was no dispute regarding the facts of the case – not about the wording of B.L.’s posting on Snapchat nor the requirements set forth in the code of conduct nor the punishment that had been imposed on B.L. In order to resolve the case, all that was needed was for the court to apply the law to those uncontroverted facts by interpreting the prevailing student free speech precedents established by the U.S. Supreme Court’s rulings in Tinker v. Des Moines ISD (schools have authority only over speech that creates a substantial disruption of the educational process) and Bethel School District v. Frasier (schools have authority only over on-campus speech). Because a substantial disruption did not occur and because the social media postings took place off-campus, the District Court ruled that, as a matter of law, B.L.’s free speech rights had been violated.
Sports Law 375: Junior Year – Settlements & Trials on the Merits
Often, in sports law cases involving school athletics programs, once a court has issued a summary judgment in favor of one of the parties, a settlement will be agreed to in order to save both sides of the lawsuit the additional time and ongoing legal expenses should the party that lost the summary judgment motion decide to appeal or otherwise extend the litigation process.
In Mahanoy, after summary judgment was issued in favor of B.L. and the Levy family, the school district might have offered to settle by significantly reducing B.L.’s punishment, revising the language of the code of conduct, paying some portion of the family’s legal fees, or making some other favorable concession. However, the district – believing that the summary judgment involved an erroneous application by the lower court of student free speech principles and hoping to clarify its future legal authority to respond to inappropriate student postings on social media – instead appealed the ruling to the U.S. Court of Appeals for the Third Circuit.
If in Mahanoy, the U.S. District Court had refused to grant a summary judgment because of remaining issues regarding the facts of the case, a trial on the merits would have been scheduled and depending on the backlog of cases pending in the jurisdiction, would have likely taken place in 2019 or 2020. Three types of such proceedings are generally available: 1) bench trials, 2) jury trials and 3) alternative dispute resolution (ADR) techniques.
A bench trial would be presided over by a judge who, based on submitted evidence and testimony of witnesses, makes findings regarding both the facts and the law, then issuing a written opinion applying prevailing legal standards to the facts to decide the outcome of the suit. A jury trial, an option available to either party in civil suits in most states based on the U.S. Constitution’s Seventh Amendment, with the size of the jury dependent on requirements in the specific jurisdiction, would lead to a verdict resolving the case. ADR, an increasingly common option in this era of multi-year backlogs of civil suits in many states, would involve referral by the court of the case – with the consent of the parties – to an extra-judicial process such as arbitration, mediation, conciliation or any of their many progeny.
Sports Law 499: Senior Year – Appellate Procedures
In most cases involving bench trials or jury trials in federal and state courts, and even generally in suits resolved via ADR techniques, the losing side in a trial on the merits will receive one appeal as a matter of right – an automatic review for the requesting party. However, a second appeal, for instance to the U.S. Supreme Court or to the highest court in a state, may require leave – a requirement that the appellate court grant a party’s petition for additional review. U.S. Court of Appeals reviews are heard by three-judge panels and the resulting decisions are sometimes, although rarely, granted an en banc rehearing (French for “in bench” and signifying an additional appeal on a legal question of exceptional importance that will be held before all the active judges serving on the appellate court).
In the case of most requests to the U.S. Supreme Court to hear an appeal, the high court has discretion whether to signify consent by issuing a writ of certiorari (Latin for “send the record up” so that the Supreme Court will have the transcripts of the lower court proceedings upon which to base the final appeal). The Court grants review in only a small percentage of cases, since the year 2000 receiving 7,000-8,000 petitions annually and granting only about 80 of those per year, most in cases where conflicting rulings on a legal issue of national importance have been made by lower courts and the high court wishes to establish nationwide uniformity regarding the legal principle in question. For its 2019-20 term, the most recently completed session, the Court received 7,212 requests for appeal and issued 74 writs of certiorari.
In the Mahanoy case, the school district’s appeal to the U.S. Court of Appeals for the Third Circuit was of right and in July of 2020, the appellate court upheld the lower court’s decision granting summary judgment to B.L. and making permanent the TRO restoring her to the cheer team. The Third Circuit’s ruling that B.L.’s social media posts were constitutionally protected by the Free Speech Clause of the First Amendment was based on the concept of stare decisis (Latin for “let the decision stand” – the legal principle that a court is obligated to abide by the precedents established by prior decisions in its jurisdiction and that a court may overturn its own precedents, but only if a compelling argument exists for a change in settled law). The full-text of the ruling and the appellate court’s analysis of the stare decisis impact of existing student free speech law is available at https://casetext.com/case/bl-v-mahanoy- area-sch-dist-3. An en banc rehearing was not requested by the school district, which instead, in August of 2020, filed a petition for certiorari with the Supreme Court.
On January 8, 2021, the U.S. Supreme Court granted cert and agreed to hear an appeal of the Third Circuit’s decision in Mahanoy in order to address the specific legal question of school authority over off-campus, inappropriate postings by students or student-athletes on social media. The oral arguments in the case were held before the high court (via audio conference because of the pandemic) on April 28, 2021. The audio of those oral arguments is available online at www.oyez.org and a decision from the high court is expected near the end of its current term in late June of 2021.
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.