Recent Developments in Sports Law (2015)

1. RECENT DEVELOPMENTS IN SPORTS LAW • Renee James, Esq. • Counsel for NYSPHSAA

2. New York Updates • Duration of Competition Rule • If the student’s failure to enter competition during one or more seasons was caused by accident or illness (or other similar circumstances beyond the control of the student) such pupil’s eligibility shall be extended accordingly in that sport. • Pena v Section III and NYSPHSAA • 118 A.D. 3d 1456 (4th dept. 2014) • Unanimously reversed lower court ruling finding there was a rationale basis for the determination denying petitioner’s application for extended eligibility 2. Students with disabilities participating in noncontact sports no longer limited to one year of additional eligibility • Gorzynski v Section V, State Education Department and the NYSPHSAA • Court held one year wavier for students with disabilities who need additional time to graduate was discriminatory\

3. Dignity for All Students Act • Students should be afforded an environment free from harassment that substantially interferes with their education and freedom from discrimination based on actual or perceived race, color, weight, national origin, ethnic group, religion, disability, sexual orientation, gender and sex. • Simon v Bell-Merrick Central High School (Nassau County 2014) • Cause of action under DASA upheld in suit filed by private school student against public school. Two middle school students allegedly circulated a lewd video and falsely represented the female in the video as the plaintiffs’ middle school daughter who attended a private school. The plaintiffs notified the Merrick school where the students attended and claim they failed do take appropriate action in violation of DASA. • Court held DASA protects all students from cyber bullying even students in a private school.

4. Transgender Student Athletes NYSPHSAA Draft Guidelines NYSPHSAA committed to providing all students with the opportunity to participate in interscholastic activities in a manner consistent with their gender identity. School determines appropriate team assignment for the prospective student athlete. May use, but not require, medical documentation such as counseling or hormone therapy in making determination. Any objection by a member school appeal goes directly to the Commissioner School prohibited from refusing access by transgender students to school restrooms that are consistent with their gender identity. Requiring student to use staff bathroom discriminatory.

5. Maine Human Rights Commission v Orono School District (2014) • School prohibited from refusing access by transgender students to school restrooms that are consistent with their gender identity. Requiring student to use staff bathroom discriminatory.

6. Liability for Sports Related Injuries • Negligence-Duty, breach, proximate cause and injury • Districts must exercise reasonable care to protect student athletes from injuries that may result from unassumed, concealed or unreasonably increased risks. • Districts are not liable for the assumed risks of competition, including injury and fatigue, inherent in competitive sports when students are properly equipped, well trained and play voluntarily. • Dodge ball – • Student suffered facial injuries in gym class colliding with another student. Allegations that gym was too small, too many balls . Complaint cites studies that conclude dodge ball is an inappropriate activity for schools. No assumption of risk defense for physical education classes

7. AED • 917 Education Law • At least one staff person trained in the use of an AED at all school approved extracurricular activities and athletic events • Each school facility should have as its goal a specific response plan that targets a victim’s collapse to defibrillation time less than or equal to 4 to 5 minutes • Internal communication/notification system • Strategic placement and availability critical • Identification of location of AEDs • Regular maintenance • Well defined emergency plan that clearly states policies and procedures relative to use of an AED

8. Concussion Lawsuits • Bukal v Illinois Activities Association • Class action complaint seeking: • No return to play or practice • Mandatory baseline testing • Medical personnel with expertise in concussion diagnosis and treatment present at games and available for contact sport practices • Tracking of concussions • Concussion education • Academic accommodations • Janes v Westfield Academy et al. • Failure to adopt a football player safety policy • Failure to comply with concussion policy • Failure to provide baseline testing • Failure to have medical personnel trained in concussion management at the game • Failure to supervise administration of high school football- ensure coaches had proper certification and training • Failure to provide appropriate equipment • Failure to field a team with adequate number of players to ensure safety of players • Failure to provide adequate training to players and parents • Failure to classify teams accurately to reflect team size and individual size of players

9. Recommendations • Know and follow your policy • Make sure coaches, teachers, athletic trainers, student athletes and parents know and follow your policy • Review your policy annually • Revise the policy if necessary • Ensure pre-season consent forms include information from NYSED Website as required by the CMAA as well as the District’s policies and protocols • Have parents and student athletes sign off that they have read the policy • Make sure the return to play protocol is followed • Use baseline testing • Make sure coaches, PE teachers and trainers are aware of students with prior concussions • Keep up to date on latest information

10. Hazing • Lakeridge High School Dance Team • Federal lawsuit filed alleging federal civil rights • violations, failure to supervise, failure to train • the coaches and failure to provide a safe environment following a summer initiation event, which included the girls wrestling in swim suits on a tarp covered covered in maple syrup and oatmeal. • Sayreville • Football season cancelled, coaches suspended, criminal charges brought against players for alleged pervasive tradition of hazing. • Maine West • Freshmen players were physically and sexually assaulted by upperclassmen • Coach acquitted of criminal charges for failure to report child abuse criminal charges related to the hazing

11. Recommendations • Strong anti-hazing policy • Consistent enforcement of the policy • Communicate the policy and the consequences for participating in hazing • Include a strong statement prohibiting retaliation for reports of hazing and follow up with complainants

12. Social Media/First Amendment • Bell v Itawamba,(N.D. Miss. 2014) • Student suspension for off-campus posting on the Internet of a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing students violated First Amendment. • District did not establish that a material and substantial disruption at school occurred or reasonably could have been forecasted. T.V. and M.K. v Smith-Green Community School • 6 game suspension for raunchy photos of the girls that they posted online during a slumber party violated First Amendment where only disruption was divisiveness among the team over the photos.

13. ACLU v Scappoose School District • To settle the school agreed to the following: • Rescind Dance Team Speech and Social Media Policy that prohibited dance team members and parents from any communication made verbally or written via social media regarding any aspect of the dance team. • Written apology to school community • Paid $25,000 to ACLU for attorneys fees

14. Title IX • Parker v Franklin County School • Non-prime time game claim can proceed to trial. • Girls games being scheduled on weekdays made it difficult to complete homework and resulted in a loss of spectators • Boys play on Friday or Saturday night

15. Ollier v Sweetwater • Court found the District did not fully and effectively accommodate the interests and abilities of female athletes. • Failed to provide equal treatment and benefits in nine areas including recruiting, training, equipment ,scheduling and fundraising • Court found female athletes were provided with inferior practice facilities and received less publicity • Coach fired in retaliation for complaints about the girls softball facilities

16. Three Part Test-Effective Accommodation • Whether participation opportunities for males and females are substantially proportionate to their respective enrollments; or • Where the numbers of one sex have been and are underrepresented among athletes, whether the institution can show a history of and continuing practice of program expansion responsive to the developing interest and abilities of that sex; or • Where there is underrepresentation and the school can demonstrate that the interests and the abilities of the underrepresented sex have been fully and effectively met.

17. Booster Club Contributions • All money and in-kind contributions that a team receives, regardless of the source, are subject to Title IX requirements • Can’t evade responsibility to treat male and female athletes equally by pointing to outside sources as to the cause of the inequality • Example: Pitching machine donated to the boys team- Share with the girls or buy one for the girls