NIAAA Leadership Training Institute: Sports Law & Legal Issues in Athletics Administration III

1. NIAAA Leadership Training Institute: Course 508 SPORTS LAW LEGAL ISSUESIN ATHLETICSADMINISTRATION III PRESENTERS:Mike Quinn – CMAA – Lakewood HS Zac Stevenson – CMAA – Lakeview HS National InterscholasticAthletic Administrators Association

2. LEADERSHIP TRAINING INSTITUTE LEGAL ISSUES FACULTY Lee E. Green, J.D. Attorney & Professor Emeritus Baker University (Baldwin City, Kansas) 913.708.3565 Lee.Green@BakerU.Edu Arthur D. Ballard, CAA Director of Athletics, Facilities & Transportation Estill County Schools (Irvine, Kentucky) 606.723.2181 x2231 arthur.ballard@estill.kyschools.us Peggy L. Pennepacker, CAA Director of Athletics, State College Area School District (State College, Pennsylvania) 814.231.1143 ppackt9@yahoo.com

3. LEADERSHIP TRAINING INSTITUTE LEGAL ISSUES COURSES  Sports In The Courts: An Introduction To Sports Law  Liability For Sports Injuries & Risk Management  Legal Duties, Case Law, & Standards Of Practice  Sports Law Policy Development & Documentation 504 LTC  Title IX & Gender Equity In Interscholastic Athletics  Title IX: Conducting An Athletic Program Self-Audit  Sexual Harassment: Legal Issues & Case Law  Sexual Harassment: Policy Development 506 LTC  Hazing: Case Law, Legal Standards & Policy Development  Constitutional Law Issues In Athletics Programs  Statutory Law: Fair Labor Standards Act, Americans With Disabilities Act, FERPA, & HIPAA In School Athletics  Social Media: Legal Standards & Policy Development  Event Security & Management: Legal Issues  Transgender Participation In School Sports: Legal Issues  Pregnant & Parenting Student-Athletes: Legal Rights  Intellectual Property Issues In School Sports Programs 508 510 LTC LTC

4. LTC 510 ADMINISTRATIVE MATTERS • Four Hour Course & Complete Attendance Required For Credit • Schedule For Breaks • Evaluations Will Be Completed Online Via The NIAAA Website & Certificates Then Printed • Note Course Materials Included In LTC 510 Manual • Note Potential Use Of Course Materials For In-Service Training Of Athletic Personnel

5. LEGAL DISCLAIMER The Information Provided In This SeminarIs NOT A Substitute For Legal Advice. There May Be Nuances Of State Or LocalLaw That Could Affect Implementation OfStrategies Or Policies Discussed In The Course. Participants Are Strongly Encouraged To Seek The Advice Of Their State Association Or School District Legal Counsel.

6. Scholastic Collegiate INTRODUCTION TO SPORTS LAW SPORTS-RELATED LAWSUITS: 2015  Constitutional Rights Lawsuits 145(114) 23733(22) 57  Sports Injury Related Lawsuits 545(884) 1412 94(104) 192  Title IX Complaints (Athletics) 157(146) 288 29(29) 42  Title IX Lawsuits (Athletics) 63(27) 3714(11) 14  Sexual Harassment Complaints212(372) 722 98(46) 98  Sexual Harassment Lawsuits 71(169) 277 36(31) 81  Hazing Lawsuits 145(292) 153 42(26) 38  Disabilities Complaints + Suits188(181) 164 39(23) 29  Employment/Labor Complaints191(138) 248 70(31) 33  Employment/Labor Lawsuits 84(107) 321 31(17) 52 National InterscholasticAthletic Administrators Association

7. HAZING Synopsis Of Hazing Issues:  Hazing Survey  Review Of Hazing-In-Athletics Court Cases  Discussion Of The Psychology Of Hazing  Overview Of Anti-Hazing Legal Standards:  U.S. Supreme Court Case Precedents  State Anti-Hazing Statutes  Anti-Hazing School Policies: Steps In Developing, Implementing & Monitoring An Effective Policy  Discussion Of Hazing Survey

8. HAZING • RECENT HAZING COURT CASES INVOLVING SCHOLASTIC ATHLETICS • Each Of These Court Cases Involved Either A Criminal Prosecution For Hazing Pursuant To State Anti-Hazing Laws, Assault Laws Or Sexual Battery Laws And/Or A Civil Lawsuit For Monetary Damages Against The School & Its Athletics Personnel. • Importance Of Examining Court Cases: To Find The Common Threads Running Through Scholastic Athletics Hazing Situations & To Identify Categories Of Fact Patterns To Be Used In Developing An Effective Anti-Hazing Policy.

9. HAZING CATEGORIES OF FACT PATTERNS IN SCHOLASTIC ATHLETICS HAZING CASES  Physical Abuse: beatings, paddlings, spankings, sleep deprivation, excessive exercise or exertion, etc.  Confinement: tied up, locked inside lockers, closets, car trunks, lashed to goal posts, backstops, etc.  Disgusting Substances: covered with feces, urine, motor oil, syrup, peanut butter, blood, paste, glue, etc.  Alcohol Consumption: forced to drink underage, forced to drink excessively, alcohol poisoning, etc.  Inappropriate Clothing: forced to play sports nude or in underwear, panties/bras, or other such attire.

10. HAZING CATEGORIES OF FACT PATTERNS IN SCHOLASTIC ATHLETICS HAZING CASES  Illegal Acts: forced to commit illegal acts such as stealing alcohol, shoplifting, gang activity, etc.  Humiliation Rituals: individuals singled out from group for some combination of above treatment.  Sexual Acts: simulation of sexual acts, performance of actual sexual acts, incorporation of sex toys, etc.  Sexual Battery: commission by others of sexual assault & sexual battery on victims (many sodomy cases).  Away-From School: hazing at summer camps, preseason camps, overnight trips, and on buses on road trips.

11. HAZING PSYCHOLOGY OF HAZING • TYPICAL ARGUMENTS ASSERTED FOR HAZING:  Team-building & character-building  Create unity, camaraderie, loyalty, discipline, & team spirit  Break down big egos & bring everyone down to same level  Impose a “ritual of intensification” to engender team bonding  Reassure senior group members that newcomers value membership  Nostalgia-ritual rationalization “because we had to go through it”  WHY DO STUDENT-ATHLETES COMMIT/SUBMIT:  The Collective Effect  The Imitation Effect  The Conformity Impulse  TYPICAL COMMUNITY REACTION TO HAZING:  Rationalization that victims gave “consent”  Rationalization that perpetrators merely engaged in “horseplay”  Rationalization of “halo effect” regarding perpetrators  Rationalization of “shifting blame” to victims for speaking out  Rationalization escalating into comprehensive “spiral of deception”

12. HAZING United States Supreme Court Harassment-Related Cases  Gebser v. Lago Vista Independent School District Strict Liability Imposed On Schools If Knowledge That Harassment Is Occurring & Deliberate Indifference To Fix   Oncale v. Sundowner Offshore Services, Inc. Same-Gender Sexual Harassment Is Actionable   Davis v. Monroe County Board Of Education Peer Harassment Is Actionable & Strict Liability For School If Knowledge & Deliberate Indifference To Fix = Hazing Cases (Civil Suits) Are Increasingly Being Litigated As Peer Sexual Harassment.

13. HAZING STATE STATUTES CRIMINALIZING HAZING: EXAMPLE – OREGON’S ANTI-HAZING LAW EFFECTIVE DATE: JAN 1, 2010 Be It Enacted by the People of the State of Oregon: SECTION 1. ORS 163.197 is amended to read: (1) A student organization or a member of a student organization commits the offense of hazing if, as a condition or precondition of attaining membership in the organization or of attaining any office or status in the organization, the organization or member intentionally hazes any member, potential member or person pledged to be a member of the organization. (2) (a) A student organization that violates subsection (1) of this section commits a Class A violation. (b) A member of a student organization who personally violates subsection (1) of this section commits a Class B violation.

14. HAZING OREGON ANTI-HAZING STATUTE [CONTINUED]: (3) Consent of the person who is hazed is not a defense in a prosecution under this section. (4) As used in this section: (a) 'Haze' means: (A) To subject an individual to whipping, beating, striking, branding or electronic shocking, to place a harmful substance on an individual's body or to subject an individual to other similar forms of physical brutality; (B) To subject an individual to sleep deprivation, exposure to the elements, confinement in a small space or other similar activity that subjects the individual to an unreasonable risk of harm or adversely affects the physical health or safety of the individual; (C) To compel an individual to consume food, liquid, alcohol, controlled substances or other substances that subject the individual to an unreasonable risk of harm or adversely affect the physical health or safety of the individual; or

15. HAZING OREGON ANTI-HAZING STATUTE [CONTINUED]: (D) To induce, cause or require an individual to perform a duty or task that involves the commission of a crime or an act of hazing. (b) 'Member' includes volunteers, coaches and faculty advisers of a student organization. (c) 'Student organization' means a fraternity, sorority, athletic team or other organization that is organized or operating on a college, university or elementary or secondary school campus for the purpose of providing members an opportunity to participate in student activities of the college, university or elementary or secondary school. SECTION 2. The amendments to ORS 163.197 by section 1 of this 2009 Act apply to conduct occurring on or after the effective date of this 2009 Act. Governor signed bill into law: June 24, 2009.Effective date of law: January 1, 2010.

16. HAZING Developing An Anti-Hazing PolicyFor Your Athletics Program Step #1: Creating A Working Definition Of Hazing

17. HAZING Definition Of Hazing Hazing occurs when an act is committed against a student or a student is coerced into committing an act that creates a substantial risk of harm to the student or to any third party in order for the student to be initiated into or affiliated with any school group, club, athletics team, grade level, activity or organization. Hazing includes but is not limited to: • Any activity involving an unreasonable risk of physical harm, including paddling, beating, whipping, branding, electric shock, sleep deprivation, exposure to weather, placement of harmful substances on the body, and participation in physically dangerous activities.

18. HAZING Definition Of Hazing [continued] • Any activity involving the consumption of alcohol, drugs, tobacco products, or any other food, liquid, or other substance that subjects the student to an unreasonable risk of physical harm. • Any activity involving actions of a sexual nature or the simulation of actions of a sexual nature. • Any activity that subjects a student to an extreme and unreasonable level of embarrassment, shame, or humiliation or which creates a hostile, abusive, or intimidating environment. • Any activity involving any violation of federal, state or local law or any violation of school district policies and regulations.

19. HAZING Step #2: Developing Procedures For Reporting Incidents Of Hazing Interface With Title IX Compliance Officer & Sexual Harassment Reporting Policy. Step #3: Communicating The Anti-Hazing Policy To Personnel & Students Media For Communication With Coaches, Parents, And Students. Step #4: Developing Alternative Team-Building & Character-Building Activities Discuss The Hazing Workshop Exercise. Focus On Alternative Traditions/Rituals. Step #5: Monitoring Ongoing Compliance With The Anti-Hazing Policy

20. HAZING TeachingCharacterThroughSport BruceBrown 101TeambuildingActivities GregDale ChampionshipTeamBuilding JeffJanssen TeamCaptain’sLeadershipManual JeffJanssen

21. HAZING Rob Miller Craig Hillier

22. LEADERSHIP TRAINING INSTITUTE RECOMMENDED READING!! NIAAA’s Guide to InterscholasticAthletic Administration Human Kinetics PublishingFirst Edition – 2013 ISBN: 978-1450432771 Available Hardcover or eBook: www.humankinetics.com [NIAAA Member Discount Code: N921] or www.amazon.com or www.barnesandnoble.com

23. CONSTITUTIONAL LAW ISSUES ININTERSCHOLASTIC ATHLETICS MOST COMMON CONSTITUTIONAL LAWISSUES IMPACTING HIGH SCHOOL SPORTS  First Amendment: Freedom Of Speech  First Amendment: Freedom Of Assembly  First Amendment: Free Exercise Of Religion Clause & Establishment Clause  Fourth Amendment: Search & Seizure [Drug Testing] & Invasion Of Privacy • Fifth & Fourteenth Amendments: Equal Protection • Fifth & Fourteenth Amendments: Due Process

24. CONSTITUTIONAL LAW ISSUES ININTERSCHOLASTIC ATHLETICS FIRST AMENDMENT FREEDOM OF SPEECH  Killion v. Franklin Regional School District  Pinard v. Clatskanie School District  Cunningham v. Lenape Regional High School District  Brentwood Academy v. Tennessee SSAA – Part I  Brentwood Academy v. Tennessee SSAA – Part II FIRST AMENDMENT FREEDOM OF ASSEMBLY  Smith v. Chippewa Falls  Bush v. Dasell-Cokato School District FIRST AMENDMENT RELIGION CLAUSES  Santa Fe ISD v. Doe  Borden v. School District of East Brunswick

25. CONSTITUTIONAL LAW ISSUES ININTERSCHOLASTIC ATHLETICS FOURTH AMENDMENT S & S: DRUG TESTING  Vernonia v. Acton  Pottawatomie County v. Earls  Penn-Harris-Madison School Corp. v. Joy  Tannehill v. Lockney Independent School District  Theodore v. Delaware Valley School District  York v. Wahkiakum School District FOURTH AMENDMENT S & S: PRIVACY  Brannum v. Overton  Long v. Texas FIFTH & FOURTEENTH A. EQUAL PROTECTION  Hayden v. Greensburg Community School Corp.  Fitzgerald v. Barnstable School District  Gruenke v. Seip

26. CONSTITUTIONAL LAW ISSUES ININTERSCHOLASTIC ATHLETICS FIFTH & FOURTEENTH AMEND. DUE PROCESS  Makanui v. Waimea High School  Letendre v. Missouri HSAA  Thompson v. Tates Creek High School  James v. Tallahassee High School  G.H. v. Minnesota State High School League  Gates v. Florida HSAA  O.J. Mayo v. West Virginia SSAA  Lebron James v. Ohio High School Activities Assoc.

27. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS Federal Statutory Law Issues In High School Sports  Fair Labor Standards Act Overtime/Minimum Wage Issues Regarding School Employees Also Working In Athletics Program  Americans With Disabilities Act et alSports Participation Rights Of Students With Disabilities & Other Disability Compliance Mandates  Federal Educational Rights & Privacy Act [FERPA]Privacy Regulations Regarding Student Information  Health Insurance Portability & Accountability Act[HIPAA]Privacy Mandates Regarding Student Medical Info

28. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS Fair Labor Standards Act Issues For High School Athletics Programs THE HISTORY OF THE FLSA:  Enactment & Purpose Of The FLSA  The First Sports-Related FLSA Issue

29. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS FLSA COMPLIANCE FRAMEWORK FLSA – The Statute: Title 29 U.S.C. §§ 201 – 219 FLSA – Supporting Regulations: 29 C.F.R. Chpt 5 Compliance Support: www.dol.gov/esa/whd/flsa General Rule: Non-exempt employees must be paid overtime when they work > 40 hours in a week. Key: Classifying An Employee As “Non-Exempt” Or As “Exempt” “Exempt” – 3 Criteria:  Must be salaried (cf hourly pay) &  Must earn $23,660 per year ($455/week) & [Dec 1, 2016 - $47,476 ($913/week)]  Must have “exempt job duties”

30. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS FLSA COMPLIANCE FRAMEWORK “Exempt Job Duties” – 4 Categories:  Executive  Administrative  Professional  Highly Compensated Common Categories Of Exempt Job Duties: Superintendents, Program Directors, District Level Athletics Directors, Principals, Assistant Principals, Athletics Directors, Teachers, Nurses With An RN, Counselors, Certified A. Trainers Common Categories Of Non-Exempt Job Duties: Bookkeepers, Bus Drivers, Cafeteria Workers, Custodians, Maintenance Workers, Media Assistants, Receptionists, School Resource Officers, Secretaries, & Teacher’s Aides.

31. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS FLSA COMPLIANCE FRAMEWORK Four FLSA Exceptions:  Independent Contractors  Trainees  Volunteers  service is offered freely and voluntarily without any express or implied coercion by employer and [“paper the trail” with volunteer agreements]  nominal compensation only (expenses) and  volunteer duties must be dissimilar from employee’s regular job duties  Activities Considered Occasional & Sporadic  activity is not a regularly scheduled assignment and  it is performed solely at the employee’s option and  it involves duties dissimilar from regular duties  Occasional/sporadic employee may be paid

34. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS

35. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS FEDERAL DISABILITIES LEGISLATION& SCHOLASTIC SPORTS PROGRAMS A Hypothetical Sports-Disability Law Scenario:High School Hoopster Tom Brown  Exceeds maximum age limit for participation  Has already played four seasons  Has already attended high school for eight semesters  Violates transfer/residency rules and must sit out  Does not satisfy GPA academic eligibility requirements  Does not have medical clearance to participate

36. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS WHY THE NAME TOM BROWN FOR THE PROTAGONIST OF OUR DISPUTE? 1857 Novel By Thomas Hughes About His Prep School Sports Days Playing Cricket/Rugby Book Promotes The Character- Building Aspects Of Athletics & Espouses A “Muscular Spirituality” - Sports As A Forum For Personal Growth, Physical Development, Academic Enlightenment, & Principles Of Sportsmanship.

37. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS PARTICIPATION RIGHTS OF STUDENTSWITH DISABILITIES • THE “RIGHT” TO PARTICIPATE?? • Generally - No Constitutionally Protected Property Right Exists For Students To Participate In Athletics • But - Under Limited Circumstances - A Right To Participate May Be Derived From Other Sources Of Law • FOUR KEY SOURCES OF LAW • Section 504 Of The Rehabilitation Act Of 1973 • Title II Of The Americans With Disabilities Act [Public] • Title III Of The Americans With Disabilities Act [Private] • The Individuals With Disabilities Education Act [IDEA]

38. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS KEYS TO SEC. 504/ADA/IDEA UNREASONABLE ACCOMMODATIONS? “Disabled” = physical/mental impairment that substantially limits one or more major life activities “Otherwise Qualified” = satisfy all essentialskill/ability/physical/eligibility requirements for participation (in spite of the disability or with reasonable accommodations) • Fundamental Alterations:modifications which fundamentally alter the nature of the activity or purpose of the rule in question • Undue Financial/Administrative Burdens:modifications which impose excessive burden on governing body/school to implement • Safety/Health Risk: modifications posing excessive risk to the disabled person or other participants based objective medical evidence, careful medical reasoning and sound medical judgment.

39. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS SPORTS PARTICIPATION RIGHTS OF STUDENTS WITH DISABILITIES CURRENT STATE OF THE LAW • Maximum Age Limits For Athletics Participation • Eight Semester/Four Season Limits On Participation • Transfer/Residency Requirements For Participation • Academic Eligibility Requirements For Participation • Medical Clearance Restrictions On Participation

40. FEDERAL STATUTORY LAW ISSUES IN SCHOLASTIC ATHLETICS OCR ADMIN. LAW DECISIONS & OTHER COURT CASES INVOLVING DISABILITIES ISSUES IN ATHLETICS PROGRAMS Little Axe Oklahoma P. Schools Maine School Admin District #1 Shelby County Alabama S. Dt. Adlai Stevenson Dt. Illinois #125 Lauderdale County Mississippi Salem New Hampshire S. Dt. Caleasieu Parish Louisiana S. Dt. DeKalb County Georgia S. Dt. Evans County Georgia S. Dt. Muncie Indiana Comm. Schools John Doe v. Alabama A.A. UIL v. Buchanon & Bomer Crocker v. Tennessee SSAA Jordan v. Indiana HSAA

41. LTC 508 WRAP UP CONGRATULATIONS ON COMPLETING THE LTC 508LEGAL ISSUES III COURSE!!! INSTRUCTIONS REGARDING COURSE EVALUATIONS & CERTIFICATES

42. LTC 508 WRAP UP Course Evaluation Process, and retrieval of your certificate: Go to niaaa.org Log in as yourself, Go to Groups Go to Leadership Training Institute Click on the course you completed Click on Group pages Click on Course evaluation