Friday Night Lights Shine on First Amendment

By Lee Green

State athletics and activities associations may restrict, within reasonable parameters, recruiting of student-athletes without infringing on the free speech rights of schools and athletics personnel, the United States Supreme Court ruled unanimously in a June 21, 2007 decision.

The decade-old dispute between the Tennessee Secondary School Athletic Association (TSSAA) and Brentwood Academy, a private school known for its powerhouse sports program, involved allegations of illegal recruiting of middle school students. The TSSAA has long restricted its member schools from using "undue influence" in publicity efforts directed at middle school students, an association regulation that essentially prohibits recruiting for sports participation any students prior to their enrollment at a school.

In 1997, Brentwood's football coach mailed a letter to eighth-grade boys inviting them to attend spring football practices. The letter explained that football uniforms and equipment would be distributed at the practice sessions. The letter also stated that "getting involved as soon as possible would definitely be to your advantage" and it was signed "Your Coach."

All of the boys to whom the letter was sent attended at least some of the spring football practices. All had also, prior to attending the sessions, signed contracts manifesting their intent to attend Brentwood, but none had yet "enrolled" as defined by TSSAA rules.

Separate allegations of prohibited recruiting involved assertions of an inappropriate relationship between Brentwood Academy and an AAU basketball coach who purportedly steered talented middle school players to attend the school.

Following a TSSAA investigation and a series of hearings, Brentwood was determined to have committed three recruiting violations and was sanctioned with a $3,000 fine, four years of probation for the school's athletics program, and two-year exclusions of the football and boys basketball teams from postseason competition.

After exhausting all of its administrative remedies, a process that involved two levels of appeal by Brentwood pursuant to the TSSAA's internal review procedures, the school filed a lawsuit in federal court against the state association.

The case presented three issues. The first was whether the TSSAA is a state actor obliged to comply with constitutional requirements related to free speech and due process or, in the alternative, merely a private voluntary association that does not operate as a quasi-governmental entity. This threshold question was litigated as a separate procedural matter and in 2001, the U.S. Supreme Court held that state high school athletics and activities associations are state actors and are required to respect constitutional mandates regarding free speech and due process.

The case was then remanded to federal District Court for evaluation of the remaining two issues as to whether Brentwood's free speech rights and due-process rights had been violated. The District Court determined that the TSSAA's anti-recruiting rule violates Brentwood's First Amendment free speech rights because the rule is a content-based regulation of speech that is not narrowly tailored to accomplish its intended purposes. The District Court also ruled that the TSSAA violated the school's due process rights by considering ex parte evidence (evidence presented without notice to a party that could be adversely affected by the information). The U.S. Court of Appeals for the Sixth Circuit affirmed the District Court's decision.

On appeal by the TSSAA, the U.S. Supreme Court granted certiorari. Oral arguments were held before the Court on April 18, 2007 and on June 21, 2007 the Court issued its decision, reversing the lower court determination and ruling in favor of the TSSAA.

The Supreme Court recognized that schools do possess free speech rights, but that those rights may under certain circumstances be limited. Writing for the Court, Justice John Paul Stevens stated, "The First Amendment protects Brentwood's right to publish truthful information about the school and its athletic programs. It likewise protects the school's right to try to persuade prospective students and their parents that its excellence in sports is a reason for enrolling. But Brentwood's speech rights are not absolute."

"The anti-recruiting rule strikes nowhere near the heart of the First Amendment. TSSAA has not banned the dissemination of truthful information relating to sports ... It has only prevented its member schools' coaches from recruiting individual middle school students ... After all, it is a heady thing for an eighth-grade student to be contacted directly by a coach -- here, 'Your Coach' -- and invited to join a high school sports team. In too many cases, the invitation will come accompanied with a suggestion, subtle or otherwise, that failure to accept will hurt the student's chances to play high school sports."

Addressing the free speech rights of members of voluntary associations, Justice Stevens continued by stating, "Brentwood made a voluntary decision to join TSSAA and to abide by its anti-recruiting rule … This is not to say that TSSAA has unbounded authority to condition membership on relinquishment of any and all constitutional rights … TSSAA can impose only those conditions on speech that are necessary to managing an efficient and effective state-sponsored high school league."

Finally, in a summation of the Court's decision regarding the free speech issues in the case, the majority opinion stated, "That necessity is obviously present here. We need no empirical data to credit TSSAA's common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics. TSSAA's rule discourages precisely the sort of conduct that might lead to those harms, any one of which would detract from a high school sports league's ability to operate ‘efficiently and effectively.' For that reason, the First Amendment does not excuse Brentwood from abiding by the same anti-recruiting rule that governs the conduct of its sister schools. To hold otherwise would undermine the principle, succinctly articulated by the dissenting judge at the Court of Appeals, that ‘high school football is a game. Games have rules.' It is only fair that Brentwood follow them."

The final argument proffered by the school was that its due-process rights were violated when the TSSAA, during its internal review process, heard from witnesses and considered evidence during procedural stages of the investigation at which Brentwood representatives were not present. The claim involved statements purportedly made to the TSSAA board during its initial round of deliberations alleging the promise by an AAU basketball coach that a car would be provided to a star player if he chose to enroll at the school, allegations that were later refuted by live testimony during Brentwood's final appeal before the TSSAA board.

The Supreme Court ruled that the school's due-process rights had not been violated. "The decision to sanction Brentwood for engaging in prohibited recruiting was preceded by an investigation, several meetings, exchanges of correspondence, an adverse written determination from TSSAA's executive director, a hearing before the director and an advisory panel composed of three members of TSSAA's Board of Control, and finally a de novo review by the entire TSSAA Board of Directors. During the investigation, Brentwood was notified of all the charges against it. At each of the two hearings, Brentwood was represented by counsel and given the opportunity to adduce evidence. No evidence offered by Brentwood was excluded."

The Supreme Court's decision in the case is a significant one in terms of its impact on the landscape of interscholastic athletics in the United States. If the Court had struck down the TSSAA's anti-recruiting rule as a violation of the First Amendment's free speech provisions, state associations nationwide would have been faced with the conundrum of how to prevent all-out recruiting wars both in communities with open-enrollment public schools and in communities with private schools offering traditionally strong sports programs. The unanimous opinion of the Court that "[T]he anti-recruiting rule strikes nowhere near the heart of the First Amendment" is an important affirmation that level-playing-field principles between state association member schools and the protection of students against exploitation by schools or athletics personnel should be among the controlling precepts of high school sports.

It is also important to note that the Supreme Court's decision addressed several of the required components of state association rules and procedures, all of which would also apply to governance of interscholastic sports by national organizations such as the NFHS and local entities such as individual leagues or conferences. The first is that regulations should be enacted regarding only those issues essential to the efficient and effective operation of sports programs. The second is that those rules should be tailored as narrowly as possible to accomplish their intended purposes without unnecessarily infringing on any protected rights. The third is that due process must be provided when schools are sanctioned for rules violations and that it is essential to provide schools with adequate notice, opportunity for multiple levels of hearings, and the chance to present all relevant evidence. The fourth is that ex parte communications and any procedures outside of the formally-established adjudicatory process should be avoided.

To read the full-text of the written decision in Tennessee Secondary School Athletic Association v. Brentwood Academy, click here. To listen to the oral arguments made before the U.S. Supreme Court in the case, click here.


Lee Green is an attorney and a professor at Baker (Kansas) University, where he teaches courses in sports law, business law and constitutional law. He may be contacted at Lee.Green@BakerU.Edu.