Risk Management
In a society and an era where the trend is toward individuals with any grievance whatsoever – whether a substantive dispute with potential merit as a lawsuit or a frivolous claim lacking the solid legal foundation for a legitimate cause of action – immediately pursuing litigation as their preferred recourse, risk management in the context of minimizing legal exposure has become an inescapable part of the job description for school and athletics personnel. It is imperative that a wide range of school officials – superintendents, principals, athletics directors, coaches, athletic trainers, event supervisors and other athletics personnel – be aware of and familiar with the details of the ever-increasing scope of legal issues related to school athletics programs.

The following is a checklist of 10 key sports law topics, ranked in order of importance with regard to the incidence with which each category is generally resulting in legal claims against districts, school administrators and athletics personnel (#1 is the topic of highest current relevance).

10. Retaliation Against Complainants
In the decade since the ruling by the U.S. Supreme Court in Jackson v. Birmingham Board of Education that retaliation against an individual who complains about violations of Title IX in a school setting is itself a separate violation of Title IX, a flood of retaliation lawsuits have been filed against educational institutions. The typical high school sports retaliation suit involves a coach, student-athlete or parent who either voices concerns to school officials regarding an alleged Title IX issue or files a formal complaint to the U.S. Office for Civil Rights (OCR) and then suffers some form of disadvantageous treatment or negative consequences from school personnel as “blowback” for having expressed his or her point of view on the issue. And although the Jackson case dealt with retaliation only in the context of complaints regarding alleged Title IX violations, other cases have found retaliation to be actionable in cases where the constituent’s concerns related to other athletics program issues.

It is imperative that school and athletics administrators not only avoid any form of actual retaliation, but that they also endeavor to avoid even the appearance of retaliation against anyone who expresses concern or disagreement with athletics program policies or strategies. The financial liability of institutions and personnel for retaliation has in many cases been greater than the damages for the substantive violation of law that had initially motivated the complainant. For instance, in the landmark retaliation suits by three persons (an assistant athletic director and two coaches) who had complained of Title IX violations at Fresno State University, resolution of the Title IX cases resulted only in injunctions directing the school to correct athletics inequities in its sports program, whereas the three individuals received a total of $14.64 million in damages for the retaliation they suffered after originally bringing the issues to the attention of the university.

9. Title IX & Gender Equity in Athletics Programs
Since the mid-1990s, between 125 and 150 Title IX complaints against school districts have typically been filed each year with the OCR, with approximately half resulting in a resolution agreement (settlement) after the initial phases of an OCR investigation and the other half resulting in federal lawsuits. And in a few anomalous years, the number of complaints has soared. For instance, in 2011, 210 school districts encompassing 525 high schools were named in formal complaints filed with the OCR.

The incidence of complaints and lawsuits illustrates the need for school and athletics administrators to ensure that they have a thorough understanding of the Title IX regulatory framework, including the expectations of both the OCR and the federal courts with regard to compliance. Most important for high schools is a complete and accurate grasp of the OCR’s so-called “laundry list” of 11 areas of “other athletics benefits and opportunities” out of which the vast majority of Title IX complaints arise, including equivalence between girls teams and boys teams with regard to facilities and locker rooms, equipment and uniforms, travel and transportation, access to quality coaching, publicity and marketing support, game and practice scheduling, and other categories of program resources and support. It is also critical for school personnel to have a thorough understanding of the nuances of the so-called “three prong test” for evaluating whether a school provides adequate sports participation opportunities for its female students. And as part of a proactive compliance strategy, schools should conduct periodic self-audits in an effort to identify and correct any violations of either the letter or the spirit of Title IX law.

8. Disabilities Law Applied to Athletics Programs
Issues continue to arise in school athletics programs involving the application to sports of the Americans With Disabilities Act, the Individuals With Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973. In January of 2013, the OCR issued a “Dear Colleague Letter” clarifying the obligations of schools with regard to providing sports participation opportunities for students with disabilities. The core message of the directive is that students with disabilities should be granted equal opportunity to participate alongside their peers in school athletics programs, club sports, intramural sports and physical education courses. If a student with a disability is not otherwise qualified and reasonable accommodations are not available to allow the student to participate in mainstream programs, the letter makes it clear that pursuant to existing disabilities laws, schools have an obligation to provide sports participation opportunities through adapted athletics programs – ones specifically developed for students with disabilities – or allied programs – ones designed to combine students with and without disabilities together in a physical activity

7. Transgender Policies for Athletics Programs
The development of fair, practical and legally sufficient policies regarding the inclusion of transgender athletes in school sports activities is one of the latest civil rights challenges facing educational institutions. In April 2014, the OCR issued an updated policy guidance clarifying that the civil rights guarantees in Title IX extend to all students, regardless of their sexual orientation or gender identity. The inclusion of transgender students in the new guidance reflects evolving legal standards nationwide, both through laws enacted by state legislatures and via policies implemented by state associations.

Currently, 33 state associations have adopted formal policies setting forth anti-discrimination directives regarding transgender student-athletes and guidelines governing their participation in school athletics programs. School personnel seeking guidance on the issue might consult a 2010 position paper titled On The Team: Equal Opportunity for Transgender Student-Athletes that was endorsed by the NFHS and NCAA. The 57-page document, available full-text at www.nclrights.org, sets forth detailed recommendations for policy development; protection of the privacy, safety and dignity of transgender student-athletes; and best practices for schools, athletic administrators and coaches.

6. Sexual Harassment in Athletics Programs
Hostile environment sexual harassment claims involving allegations of inappropriate relationships between athletics personnel and student-athletes continue to plague schools and fracture communities across the country. A closely related issue is the failure by school officials in many instances of alleged sexual harassment of student-athletes who are minors to follow the requirements of state child abuse reporting laws regarding mandatory reports to law enforcement or child protective services agencies.

Effectively combatting the problem requires in-depth knowledge by school and athletics administrators of the elements of a hostile environment sexual harassment claim, along with the development and implementation of a strong and effective anti-sexual harassment policy that is communicated to all athletics personnel, student-athletes and parents. Also important to minimizing vicarious liability for sexual harassment is the process of in-servicing all athletics personnel regarding both sexual harassment and the specific requirements of the state’s child abuse reporting statute.

Over the last decade, in sexual harassment civil suits, based on U.S. Supreme Court precedents, courts have tended to find school and athletics personnel vicariously liable in those instances where the official had knowledge that the harassment was occurring and exhibited deliberate indifference to correcting the situation.

5. Hazing in Athletics Programs
Hazing continues to be a widespread problem in school athletics programs and one of the most highly litigated claims against districts and athletics personnel, with courts typically imposing liability either because of the failure to create an anti-hazing policy or for developing a policy that is substantively inadequate or ineffectively implemented.

Since the beginning of 2014, more than 150 incidents of alleged hazing in school athletics programs have been reported by national media, including many involving physical abuse or sexual assaults resulting in criminal prosecution of the direct perpetrators for felony assault or sex crimes, some involving prosecution of school personnel for failure to report child abuse, and almost all leading to civil suits. Using the same standard employed in sexual harassment cases, courts have tended to find school and athletics personnel vicariously liable in those situations where the official had knowledge that hazing was occurring and exhibited deliberate indifference to immediately correcting the situation.

4. Constitutional Rights of Student-Athletes
In cases involving the suspension of a student-athlete for violating athletic department or team codes of conduct, increasing numbers of lawsuits have been filed alleging a violation of the young person’s constitutional and civil rights. A student-athlete suspended for inappropriate criticism of a coach often challenges claiming a violation of his or her First Amendment freedom of speech. A suspension for attendance at a party where alcohol is served often results in a First Amendment freedom of assembly challenge. Suspension for failing a drug test often brings a Fourth Amendment search and seizure challenge. A suspension for misbehavior often results in a Fifth/Fourteenth Amendment due process challenge. A suspension alleged to be more severe than that given to other students for the same offense often brings a Fourteenth Amendment equal protection challenge. In order to proactively ensure that sanctions against student-athletes withstand judicial scrutiny, school and athletics personnel must have a thorough understanding of the interpretation by courts of constitutional rights in sports settings.

3. Social Media Issues and School Authority to Sanction Student-Athletes
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. 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. 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.

2. Liability for Sports Injuries and the Duties of Athletics Personnel
Since the mid-1990s, hundreds of civil suits per year have been filed by injured student-athletes against schools, administrators and athletics personnel, most asserting a negligent failure to exercise reasonable care to safeguard the health and well-being of the athlete. Out of these cases has emerged an extensive body of law focusing on the need for athletics personnel to understand the legal responsibilities imposed on them with regard to student-athletes, including the duties of planning, supervision, technique instruction, warnings, safe playing environment, safe equipment, matching and equating athletes, evaluation of injuries, return-to-action protocols, immediate medical response, emergency medical response planning, safe transportation, and other categories of responsibilities intended to protect athletes from injury.

1. Concussion Management and Return-To-Play Protocols
On January 30, 2014, the governor of Mississippi signed into law the Mississippi Youth Concussion Act. All 50 states and the District of Columbia now have a sports concussion law in place. Most of the state laws contain three common tenets: 1) any athlete suspected of having sustained a concussion must immediately be removed from play; 2) the athlete may not be returned to action the same day; and 3) the athlete may be returned to action only after written clearance is provided by a licensed health-care professional (the definition of which varies widely from state-to-state).

Some of the state laws contain additional requirements, including mandates that athletics personnel complete an annual concussion education course, that baseline testing be implemented by schools or that student-athletes and parents be provided with concussion education materials and sign a concussion-information form. Administrators and coaches should be familiar with the details of their state’s concussion statute; the full-text of each state law may be accessed through the National Conference of State Legislatures at www.ncsl.org/research/military-and-veterans-affairs/traumatic-brain-injury-legislation.aspx.

Other Sports Law Issues Affecting School Athletics Programs
• Event Management Legal Issues
• Employment Law & Coaches Contracts
• Trademark Law & School Mascots/Logos
• Pregnancy Discrimination In Sports
• Labor Law & FLSA Issues
• Student-Athlete Privacy Issues
• Facilities Management Legal Issues
• Prayer/Religious Activities At Sports Events
• Drone Use Legality At Practices/Games
• Liability For Erroneous Insurance Disclosures
• Legality Of Sports Drug Testing Programs
• Native American Mascot Legal Concerns
• High School Sports Event Broadcast Rights
• Participation Rights of Homeschooled Students