Liability in Sport and Recreation Unit 6

Allege selective deprivation of a right that is considered to be fundamental in our society, such as the right to vote or the right to travel freely among the different states.

A law that deprived people of such a fundamental right would receive heightened scrutiny by the courts because of the serious nature of the deprivation. Since sport participation has commonly been ruled to be a privilege rather than a right, this basis for a lawsuit has limited relevance in the sport management con-text.

High School Athletic Associations

An overwhelming majority of cases have found state high school athletic associations to be state actors and therefore they are subject to the laws of the Constitution. When determining if the high school athletic associations are state actors, the courts often use the nexus or entanglement theory.

College Conferences

Courts often conclude that conferences are state actors because they focus on the conference's membership, that the conference is the direct or indirect beneficiary of tax funds or tax concessions from the state, that the majority of its schools are tax-supported institutions, and that the conference uses public facilities, athletic stadiums and gymnasiums, which have been constructed and maintained with tax funds.

Application -

Decisions in cases involving athletic associations may vary depending on the variations of precedent set across jurisdictions or depending on the variation in regional standards. Three potential problem areas are: - Married Students - Alcohol and Drugs - Athletic Associations

Intermediate Scrutiny Three areas of application

Gender classifications and contact sport, Gender discrimination and scheduling seasons and workplace discrimination.

State Action

In order to establish a violation of due process claim, the plaintiff must first establish that the actions complained of were the result of the federal or state government or governmental representative.

constitutional guarantee is found in the Fifth Amendments of the U.S. Constitution states that

No person shall ... be deprived of life, liberty, or property without due process of law."

Fourth Amendment analysis of search and seizure privacy interests Is the Conduct a Reasonable Search?

Only unreasonable searches are prohibited by the Fourth Amendment. However, the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. The Supreme Court consistently asserts what is "reasonable" depends on the context within which a search takes place.

There are two types of due process protected by the courts:

Procedural due process Substantive due process

Under- and Over-inclusiveness

Sometimes courts will invalidate a law because, in its application, it is either underinclusive or over- inclusive, or both at the same time.

Residency classifications

Sport and recreation have provided a variety of examples of classifications that have been challenged on equal protection grounds. Example: Baldwin v. Fish & Game Commission of Montana, the supreme court concluded that the different classification of residents and non-residents and charging them different fees for hunting licenses, was rationally related to the legitimate state purpose of preserving a finite resource.

Life, Liberty, or Property Interest-

There is never going to be a case in sports where a state agency has deprived an individual of his or her life. All of the sport and recreation cases are going to involve actions that deprived an individual of his or her liberty or property interests.

Fourth Amendment analysis of search and seizure privacy interests Is the Conduct a Search?

Under Fourth Amendment analysis, a search occurs when an expectation of privacy which society is prepared to consider reasonable is infringed. The United States Supreme Court has held that the collection and testing of urine constitute a search under the Fourth Amendment.

Recreational Clubs and Facilities

While public lands are constitutionally protected, the question of whether a park and amusement area controlled by a private organization is also constitutionally protected often depends on the facts of the case.

Due Process

a course of legal proceedings according to those rules and principles which have been established by our jurisprudence for the protection and enforcement of private rights.

the Equal Protection Clause . Strict scrutiny

applies to deprivations of fundamental rights and to classifications which are suspect- race, allegiance and national origin.

the Equal Protection Clause Intermediate scrutiny

applies to gender classifications

Nexus or Entanglement Theory

examines whether the state's involvement or entanglement with a private actor's conduct is sufficient to transform the private conduct into state action, and thus subject the conduct to constitutional review.

Specific performance -

is a court order, which may be available to the victim of a breach of contract. Specific performance requires that a defendant comply with (honor) the contract.

Permanent injunction -

is awarded as a remedy following a full hearing on the merits of the case.

the Equal Protection Clause Mere rationality

most classifications are classifications are tested under this standard

Procedural due process-

requires that before a governmental entity (State Actor) deprives an individual of his or her "life, liberty or property" interests, that he or she be provided with the proper procedural due process or procedural fairness. The amount of due process required generally depends on the rights being deprived

Substantive due process

requires the rule or regulation to be fair and reasonable in application as well as content. The substantive due process essence is protection from arbitrary and capricious actions. Two questions are asked in substantive due process: - Does the rule or regulation have a proper purpose? - Does the rule or regulation clearly relate to the accomplishment of that purpose?

Fourteenth Amendment extends the applicability of the due process guarantee to the

states.

Due process is composed into two areas of inquiry;

substantive procedural.

stigma plus test requires the interests to be protected be

tangible, such as employment

Strict scrutiny

triggered when a state deprives a person of his or her fundamental rights.These rights include those articulated in the constitution and those not such as the right to vote, travel and have privacy. The supreme court has concluded race, national origin, and alienage are suspect classifications. The state must prove that the suspect classification is necessary to achieve a compelling governmental interest, and the classification must be the least restrictive means of achieving that interest.

Equal Protection

"No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." With this language, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution pro-vides a guarantee that laws, rules, and regulations will be applied in a fair and non-discriminatory fashion.

Procedural due process

-Addresses the methods used to enforce the rules and regulations. -Examines the decision-making process that is followed in determining whether a rule or regulation has been violated and what sanction should be imposed. Fair treatment is the goal of procedural due process.

Deprivation of Fundamental Right-Strict Scrutiny There are two possible bases on which to challenge a law on equal protection grounds.

-The first is to allege selective deprivation of a right that is considered to be fundamental in our society, such as the right to vote or the right to travel freely among the different states. -The second basis for an equal protection challenge is to claim that the particular law unfairly discriminates by classifying people into a group singled out for different treatment.

Standing Standing concerns a plaintiff's right to bring a complaint in court. In order to establish standing the plaintiff must meet three criteria:

1. The plaintiff bringing the action must have sustained an injury in fact. 2. The interest which the plaintiff seeks to be protected is one for which the court possesses the power to grant a remedy. 3. The plaintiff must have an interest in the outcome of the case.

4-part balancing test to determine the extent to procedural due process

1. The private interest that will be affected by the official action 2. The risk of an erroneous deprivation of such interest through the procedures used 3. The probable value, if any, of additional or substitute procedural safeguards 4. The government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail

As a general rule, courts decline to intervene in the internal affairs of private, voluntary organizations that govern professional and amateur sports. The court will, however, review the decisions where one of the following conditions is met:

1. The rule or regulation challenged by the plaintiff exceeds the scope of the athletic association's authority. 2. The rule or regulation challenged by the plaintiff violates an individual's constitutional rights. 3. The rule or regulation challenged by the plaintiff violates an existing law, such as the Sherman Antitrust Act or the Americans with Disabilities Act. 4. The rule or regulation challenged by the plaintiff is applied in an arbitrary and/or capricious manner. 5. The rule or regulation challenged by the plaintiff violates public policy because it is considered fraudulent or unreasonable. 6. The athletic association breaks one of its own rules.

Public Function Theory -

A court can find state action in the activities of a private party if that party undertakes functions or assumes powers that the government ordinarily performs or exercises. Private activities will only constitute state action if: - The activities involve a function that traditionally has been performed only by government. - The private entity's assumption of the function substantially replaces the government's traditional performance of the function.

Fourth Amendment analysis of search and seizure privacy interests must consider three basic issues.

Does the conduct represent state (governmental) action? Is the conduct a search? Is the search reasonable?

Olympic Organizations

Even though the United States Olympic Committee (USOC) is federally regulated, is a creature of statute, and is a recipient of federal financial support, the courts do not consider their activities as state action.

Application to Athletic Organizations

For private voluntary athlete associations such as high school athletic associations, national organizations governing college athletics, college conferences, Olympic organizations, and professional sports leagues, recognition of sate action depends upon an ad hoc analysis of the facts of each case.

Balancing Test

In addition to considering the existence of reasonable suspicion, the courts typically balance the degree of the intrusion on an individual's privacy interests against the government's interests in testing.

Privacy Interests of Athletes

It has been argued that athletes subject to drug testing have diminished expectations of privacy rendering a Fourth Amendment analysis an insufficient basis on which to declare a Constitutional violation. For example, "communal undress" inherent in athletic participation suggests a reduced expectation of privacy. Also, health examinations are fairly routine to participants in vigorous activities. In the context of such examinations, viewing and touching is tolerated among relative strangers that would be firmly rejected in other contexts.

SEARCH AND SEIZURE/RIGHT TO PRIVACY

It is the primary purpose of this chapter to focus upon privacy interests of student athletes as they relate specifically to the Fourth Amendment of the United States Constitution. Perhaps no issue illustrates this better than case law on urinalysis-drug-testing of high school and intercollegiate athletes.

Strict Scrutiny

Laws that include classifications based on race, ethnicity, national origin, or alienage are considered suspect classifications because there is virtually never any constitutionally permissible justification for segregating people on such bases. The court will be suspicious of any law that makes such a suspect classification and will give it a strict level of scrutiny. The test for a law under strict scrutiny is whether that law is necessary to achieve a compelling governmental interest. In other words, the government must have an essential objective in mind, and the law it passed must be the only way to accomplish that objective. If there is a less discriminatory means to achieve a worthy end, it must be used instead of the challenged law. Almost every law containing a suspect classification fails the test of strict scrutiny and is ruled unconstitutional.

Sliding scale approach

Maintained that the courts should dispense with the rigid tier\ system and balance the rights and interests of the individuals and the state in determining the appropriate level of scrutiny.

Professional Sport Leagues

Since professional sports teams and leagues do not perform a function that has been traditionally reserved to the state, nor are they usually so entwinement with the government that the state is involved in team or league decisions, their actions have historically been found not to constitute state action.

four types of injunctive relief available to the court review

Temporary restraining order Preliminary injunction Permanent injunction Specific performance

Fourth Amendment analysis of search and seizure privacy interests Is There State Action?

The Fourth Amendment protects individuals from invasions of privacy by the government. It does not protect against the conduct of private individuals or organizations. The NCAA is not subject to Fourth Amendment scrutiny.

National Organizations Governing College Athletics

The National organizations governing college athletics include: The National Collegiate Athletic Association (NCAA), The National Association of Intercollegiate Athletics (NAIA), and the National Junior Athletic Association (NJCAA). They are all private voluntary associations composed of both private and public institutions. In 1988, the U.S. Supreme Court found that the NCAA was not a state actor.

The second basis for an equal protection challenge is to claim that the particular law unfairly discriminates by classifying people into a group singled out for different treatment.

The Supreme Court has, over the years, established a three-tiered standard of review for this type of equal protection claim. The Court has ruled that certain classifications are more suspicious than others and therefore trigger different levels of judicial review. Thus, this hierarchically arranged set of tests is based on the type of classification found in the law at issue. Laws containing suspect classifications (race, ethnicity, national origin, alienage) will be subjected to strict scrutiny, the highest level of review. Classifications based on gender or legitimacy of birth is considered quasi-suspect classifications, and laws containing these will receive intermediate level scrutiny. The lowest level of scrutiny, called rational basis review, is used to judge all group classifications other than those established by the Court as suspect or quasi-suspect.

Application

The issue of standing was a determinative factor for the Federal Court when they ruled on a motion to intervene. A motion to intervene can be brought by anyone who is not involved in a court case if they have an interest in the case and it would be difficult for that person, or company, to protect their interest unless they were a party in the case.

Rational Basis Review

The lowest level of equal protection scrutiny is applied to all group classifications other than those established by the Supreme Court as suspect or quasi-suspect. The test for a law under rational basis review is whether that law is reasonably related to a legitimate governmental interest.

Intermediate Scrutiny

The middle tier of equal protection review is applied to the quasi-suspect classifications of gender and legitimacy of birth. The test under intermediate scrutiny is whether the challenged law is substantially related to an important governmental interest. Although this language appears synonymous with the strict scrutiny test, it is meant to be a slightly less rigorous examination of the law at issue.

Governmental Interests Served by Urine Testing

The other side of the balancing test considers the governmental interests served by urine testing. In the context of urine testing of student athletes, the government must show a special need because the testing exceeds the normal need for law enforcement and occurs in the absence of a warrant or probable cause. Examples of special needs which have been successfully asserted to justify warrantless, mandatory urine testing of the intercollegiate athlete include: 1) providing fair and equitable competition, 2) guarding the health and safety of student-athletes, and 3) deterring drug use by testing.

Lowest tier rational basis review

The rational basis review or "mere rationality" test is the easiest standard of review and many classifications have survived legal challenges because the state actor has been able to establish that the classification is rationally related to a legitimate governmental interest.

The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (United States Constitution, Amendment IV)

Arbitrary and capricious-

While the courts do not want to get involved in the internal decision making of voluntary state athletic associations, substantive due process also allow the courts to review the internal decision making of a voluntary state athletic associations if they find the rules were applied arbitrary and capricious (Pierce, 2002). To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement. College athletes have asserted that they have a property right in the form of a scholarship or a property right in a future professional career.

Injunction relief

designed to prevent future wrongs, rather than to punish past actions. I t is only used to prevent an irreparable injury, which is suffered when monetary damages will not provide adequate compensation to the injured party.

Temporary restraining order-

is generally issued to a plaintiff in an emergency situation, without notice (appearance at hearing) to the defendant, and is usually effective for a maximum of 10 days. A plaintiff must prove that he/she will face irreparable harm and that money damages would be an inadequate remedy.

Preliminary injunction -

is granted to a plaintiff prior to a full trial on the merits of a legal action and lasts throughout the trial process of the case. To be awarded a preliminary injunction, the plaintiff must prove: 1. The plaintiff will face a substantial threat of irreparable harm without the preliminary injunction (Often where money damages would be an inadequate remedy, granting the injunction would provide the only remedy). 2. The balance of the hardships favors the plaintiff. 3. The plaintiff possesses a likelihood of success on the merits of the pending case. 4. Granting the injunction will serve the public interest.

Substantive due process-

provides individuals with a level of protection against state interference with certain fundamental rights and liberty interests not specifically protected under the constitution, and ensures that these rights cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking.