Free Speech or Illegal Recruiting?

By Batista, Paul J. | JOPERD--The Journal of Physical Education, Recreation & Dance, November-December 2007 | Go to article overview
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Free Speech or Illegal Recruiting?


Batista, Paul J., JOPERD--The Journal of Physical Education, Recreation & Dance


Tennessee Secondary School Athletic Association v. Brentwood Academy

U.S. Supreme Court

127 S.Ct. 2489

June 21, 2007

The Brentwood case has traveled a long and winding road over the last 10 years, leading it to the door of the U.S. Supreme Court on three separate occasions. This dispute involved constitutional issues of free speech and due process relating to an anti-recruiting rule adopted by the state athletic association. The Supreme Court granted certiorari twice and rendered opinions on both occasions. With the most recent decision, it appears the litigation has finally concluded.

The Parties

The Tennessee Secondary School Athletic Association (TSSAA) is a nonprofit corporation responsible for administering, coordinating, and regulating the junior and senior high school athletic programs in Tennessee (TSSAA, 1999). Brentwood Academy is a coeducational, independent, college-preparatory school (Brentwood Academy, n.d.). Brentwood voluntarily joined TSSAA, and its teams regularly participated in athletic contests sponsored and regulated by TSSAA (Brentwood Academy vs. TSSAA, 1998). By joining the association, Brentwood agreed to abide by the constitution and bylaws of the association (TSSAA, 2007).

Facts of the Case

In 1997, rival public high school coaches alleged that Brentwood violated the TSSAA rule against recruiting prospective student-athletes. The recruiting rule, found in Article II, Section 17 of the TSSAA bylaws, prohibited the use of undue influence on a student by any person connected with the school to secure or to retain a student for athletic purposes (TSSAA, 2007). Enforcement of the rule was spelled out in Article III, Section 3, which authorized the TSSAA "to suspend, to fine, or otherwise penalize any member school for the violation of any provisions of the Constitution or Bylaws ..." (TSSAA, 2007, p. 19).

After conducting an investigation, TSSAA concluded that Brentwood had committed three offenses: (1) Brentwood's basketball coach conducted a forbidden off-season basketball practice, (2) Brentwood's football coach provided free football game tickets to a junior high school coach who used the tickets to take two prospective student-athletes to a Brentwood game, and (3) Brentwood's football coach sent a letter in violation of the TSSAA recruiting rule. This third allegation became the focal point of this case.

The Brentwood head football coach sent a letter and made phone calls to the male eighth-grade students who, along with their parents, had signed contracts expressing their intention to enroll the following fall as high school freshmen at Brentwood. The letter invited the boys to attend spring football practice sessions, encouraged them to get involved as soon as possible because it would be to their advantage, and advised them that by enrolling in Brentwood they would be allowed to participate in spring football practice pursuant to TSSAA rules. The Brentwood high school football coach signed the letter as "Your Coach." By sending the letter inviting the students to attend, Brentwood violated the recruiting rule, according to the TSSAA.

Based on the results of their investigation, TSSAA concluded that Brentwood had violated the recruiting rule. Consequently, TSSAA imposed sanctions, which Brentwood unsuccessfully challenged through the internal appeal process set forth in the TSSAA bylaws.

Brentwood I (2001) -- State Actor Issue

Having exhausted its administrative appeals, Brentwood filed suit against TSSAA and its executive director in federal court under the authority of 42 U.S.C. [section] 1983, the federal civil rights statute. Brentwood alleged that TSSAA had violated Brentwood's First Amendment free speech guarantees, Fourteenth Amendment due process and equal protection rights, and numerous other federal and state statutes. To prevail under [section] 1983, a plaintiff must allege and prove two things: (1) that the plaintiff was deprived of a right provided by the U.

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