Athletic Management, 13.3, April/May 2001, http://www.momentummedia.com/articles/am/am1303/bbtssaa.htm
On February 20, the United States Supreme Court handed down a ruling that settled a long-standing question about the nature of state high school athletic associations. In Brentwood Academy v. The Tennessee Secondary School Athletic Association (TSSAA), the Court ruled that the Association is a state actor, meaning its actions can be challenged on constitutional grounds.
By a 5-4 margin, the Supreme Court overturned a lower court’s decision, explaining that the TSSAA is a state actor because it is so closely “entwined” with the state. Public schools account for about 85 percent of the association’s membership and principals of those schools were considered to be acting in their official capacities as state employees when they tended to association business.
“This had always been a lingering question,” says Ronnie Carter, Executive Director of the TSSAA. “Some courts said state associations were state actors and some said they were not. By this ruling, the Supreme Court has said the TSSAA is a state actor, so from this point forward that will not be an argument we go through every time we go to court.”
As state actors, state associations will be bound by the same constitutional guidelines affecting government agencies. This means they may have to revisit some of their processes for those accused of breaking association rules.
“This case can be very important, because it will give individuals more rights to sue the state for transgressions caused by these agencies,” says Mark Conrad, Associate Professor, Legal and Ethical Studies, Schools of Business at Fordham University, and Publisher of Mark’s Sportslaw News . “The associations’ processes and disciplinary actions will have to change with this kind of threat.
“It’s one thing to be a private organization, it’s another to be part of the state,” Conrad continues. “As a state actor, an association has to comply with due process and all other constitutional rights. The whole idea of punishment and the hearings involving a punishment or sanction are going to have to be weighed much more in favor of a due process standard. Associations cannot say ‘I feel like sanctioning you’ after a quick 10-minute hearing. Infraction hearings may become mini-trials.”
As a result, state association officials will now take a look at their rule books in a bit of a different light. “We’ll examine our rules a little closer and make sure the terminology and wording we use will pass the constitutional test for the First Amendment, or whatever law it happens to be,” Carter says. “If we were not state actors, then the rules would not necessarily have to pass those constitutional tests in federal court.”
The rule facing scrutiny right now in the Brentwood case centers on recruiting. Like most state high school athletic associations, the TSSAA does not allow member schools to recruit for athletics. In this particular case, the TSSAA ruled that Brentwood violated the recruiting rule by providing free football tickets to a middle school coach and two players, and sending a letter to all incoming ninth graders inviting them to join the football team for spring practice while they were still in the eighth grade.
In taking the matter to court, Brentwood claimed the TSSAA’s recruiting rule violated its First Amendment rights. A district court agreed. The TSSAA appealed to the Sixth Circuit court, which ruled that the TSSAA was not a state actor, and thus not bound by the First Amendment. Brentwood appealed that decision to the Supreme Court, which took the case, in part, because other circuits had previously ruled that state associations were indeed state actors.
Now that the Supreme Court has settled the question of state actor status, the Sixth Circuit court will go back and determine whether the TSSAA’s rule does, in fact, violate the First Amendment. A decision is expected sometime within the next three to 18 months.
“It will be a bit of a stretch for Brentwood to win on this point,” Conrad says. “It depends on whether the speech is a content restriction or not. It gets pretty tricky there and depends on what tests the court uses and how legitimate the rule is.”
While any case argued in front of the U.S. Supreme Court is an important one, Carter feels the Sixth Circuit’s next decision in the Brentwood case could have an even greater impact on the association, and high school sports in general, should it go against the TSSAA. “This decision will be directed toward the ability to write a recruiting rule and what it can restrict,” Carter says. “Our rule restricts schools from making initial contact and singling out kids and calling them on the phone or going to visit them for athletic purposes.
“If that’s struck down as unconstitutional,” he continues, “it will make it permissible for Ronnie Carter to visit a 14-year-old eighth grader who is a great basketball player on the other side of town, and talk to him and his parents about coming to my school, public or private. That’s the scary thing.”