Recruiting rule faces test at the top court

It’s an ingenious argument likely to be debated in gyms, football stadiums and law schools across the nation.

Brentwood Academy, a private high school in Brentwood, Tenn., has been claiming 1st Amendment privileges for violating the state’s anti-recruiting rules.

Last week, the U.S. Supreme Court agreed to hear the case, Tennessee Secondary School Athletic Assn. vs. Brentwood Academy. Oral arguments are set for April, with a decision expected during the summer that could have implications nationwide on high school sports programs.

The case is in its 10th year of a legal quandary, and it’s the second time the Supreme Court has intervened. Combined legal fees have surpassed $3 million.

It started in 1997, when Brentwood, which has won nine state football championships in 21 title-game appearances since 1974, was fined $3,000 and put on four years probation for sending out letters and making phone calls to a dozen incoming ninth-graders, inviting them to participate in spring football practice.

Brentwood officials claim the students had already signed contracts and paid deposits to attend the school and were eligible to practice with the team, but the TSSAA ruled the school violated recruiting rules because the students weren’t officially enrolled.

Brentwood filed a federal lawsuit, claiming its free speech rights were violated. A U.S. District Court judge agreed, along with the Sixth Circuit Court of Appeals. Now, the Supreme Court will have to decide.

“At the end of the day, if the Sixth Circuit opinion is upheld, it’s going to create problems for maintaining discipline, order and competitive balance at the high school level,” said Dan Lazaroff, director of Loyola Sports Law Institute. “And it’s going to create questions whether associations can be effective in protecting exploitation of high school athletes.”

Brentwood insists it supports a strong recruiting rule, but the issue revolves around “whether a school giving information about a permitted activity to students already committed to the school can be censured for initiating contact with students,” according to the academy’s headmaster, Curt Masters.

The fact the Supreme Court is being asked to decide whether a high school recruiting rule is unconstitutional is the perfect subject matter for Sports Illustrated’s weekly “Sign of the Apocalypse.”

The dissenting opinion in the Sixth Circuit Court decision offers an appropriate overview of how out of whack this case is.

“High school football is a game,” Judge John Rogers wrote. “Games have rules. To have federal courts, under the guise of applying the enduring principles of the 1st Amendment, reverse the ordinary application of high school football recruiting rules -- where the core values of the Amendment are not even remotely involved -- unduly trivializes these constitutional principles.”

In 2001, the Supreme Court decided in a 5-4 vote that Tennessee’s sports association was a state actor, subjecting it to constitutional oversight.

That opened the way for Brentwood’s 1st Amendment claims.

The case could have profound national implications because most state associations that run high school sports programs have similar rules barring recruiting.

Because it believes the court’s decision may affect its interests, the National Federation of State High School Assns. is likely to submit a “friend of the court” brief in support of the TSSAA. Some state associations may do the same.

“Recruiting is part of college sports but not at the high school level,” Bruce Howard, director of publications and communications for the NFSHSA, wrote in an e-mail. “If some schools were allowed to recruit and others could not, it could have a devastating effect on high school sports.”

Competitive equity would go out the window if there were no recruiting rules, but two courts have already ruled that fostering competitive equity is not a “substantial state interest,” so now it’s up to the Supreme Court.

Do they really want high school sports to deteriorate into a college sports-like scene, where schools hire compliance directors, employ recruiting coordinators and athletics becomes as, if not more, important than academics?

“This is a critical test,” said Jim Staunton, CIF Southern Section commissioner. “We’re opening the door for coaches up and down the state to have football open house night, basketball open house night. I worry about that being an outcome. I worry that individual coaches would be able to induce kids to come to their school for athletic reasons.”

In the end, will the Supreme Court support Brentwood’s 1st Amendment claims?

“It would make it very difficult for any state to regulate recruiting by any school, and it’s hard to imagine the court wants to go down that path,” said Erwin Chemerinsky, a Duke law professor.

The good news is that the chief justice of the Supreme Court, John G. Roberts, was captain of his high school football team in Indiana, and he should be able to apply first-hand common sense to this case.

Hopefully, Roberts will recall the fundamental reason anti-recruiting rules exist and why high school sports associations must be able to prevent schools and coaches from illegally contacting students: to protect the integrity of the game.