Academic journal article Journal of Law and Education

Third and Goal: High School Athletic Association Restrictions and the Privileges and Immunities Clause

Academic journal article Journal of Law and Education

Third and Goal: High School Athletic Association Restrictions and the Privileges and Immunities Clause

Article excerpt


Athletics has long been a point of interest for Americans. Historically, athletics has been viewed as merely a pastime or hobby. However, as shown by recent court decisions, the view of athletics is quickly changing. School athletics are no longer seen as simply after school activities, but rather they are seen as prospective career goals for those highly skilled individuals. Based on this transition, regulations placed on children playing sports must be reevaluated.

High school is an important time for a young athlete in determining their prospects of becoming a professional. The high school that a child attends could have a direct result on the colleges that recruit them. Given the prevalence of professional scouting at collegiate events, the colleges or universities interested in recruiting a high school student could provide the necessary resources that child needs to obtain their career goals. However, by placing unnecessary and discriminatory restrictions on these students, they have a harder time achieving these goals. A certain county in one state may have a better athletic program than a neighboring county across state lines. A highly talented high school athlete may want to go to a school in the state with a better athletic program in order to increase the chances of playing at both the collegiate and professional level.

First, this article will summarize Alerding v. Ohio High School Athletic Association, a federal court decision, whereby high school students were denied the ability to play football simply because they were out-of-state students. This decision is a model example of restrictions placed on high school athletes that infringe upon their constitutional rights. Next, this article will examine the National Labor Relation Board's decisions regarding the unionization of college athletes at Northwestern University. The first decision expands the conception of college athletics from an extra-curricular activity to a form of employment. However, this decision was overturned shortly after on the basis of a jurisdictional issue. Finally, this article will explain how the National Labor Relations Board's reversal of the first decision may be a setback in terms of the employment status of college athletes, but it does not put an end to the changing landscape of athletics at the collegiate level.

Restraints on out-of-state high school athletes may violate the Privileges and Immunities Clause because high school athletics has become a path to a professional career. By denying out-of-state children the right to play on a certain sports team, the athletic associations are denying them the opportunity to pursue a potential career.


High school athletic associations impose a number of rules and regulations upon teams and players, many of which are quite restrictive. In 1985, children attending high school in Ohio were not allowed to play football on the school's team because they were residents of Kentucky.1 The Ohio High School Athletic Association had a by-law which barred nonresidents from participating in Ohio sports.2 The Kentucky residents fded suit, claiming that the by-law violated their constitutional rights as provided by the Privileges and Immunities Clause.3 The court concluded that the by-law did not violate any constitutional rights because the right to participate in interscholastic sports is not a fundamental privilege within the meaning of the Privileges and Immunities Clause.4

The court utilized a two-prong test established by the U.S. Supreme Court to determine the application of the Privileges and Immunities Clause to a state's act of discriminating against out-of-state residents.5 The test requires the court to first determine whether or not the challenged act burdened one of the privileges and immunities protected by the Clause, and if so, whether there was a justification which rendered the discrimination permissible. …

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