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Athletes’ Rights Part III
By Justin Gelzayd1
Continuing on from Parts I & II of the Athletes’ Rights article series above,
any discussion of “athletes” should clarify the category of athlete based on age,
competition level, and other distinguishing criteria such as amateur or professional
status. The extent to which categories of athletes are entitled to “rights” related to
their sport depends upon a number of factors. The reader must be clear that
“rights” in a sports competition context differ significantly from America’s
commonly referred to “Constitutional rights to life, liberty and the pursuit of
happiness.” In fact, so-called athletes’ rights may not be protected entitlements at
all.
Most of us assume that an athlete has a right to compete or participate in a
particular sport. This common misconception involves mistaking the assumed right
to compete, with various eligibility rights which are determined by governing
bodies of sports leagues and associations (high school athletic associations, Amateur
Athletic Association; National Collegiate Athletic Association, Olympic sport national
governing bodies; National Football League; National Basketball Association; Major
League Baseball, etc.). In fact, there is no absolute, independent right of an
individual to compete or participate in competitive sports at any level in the United
States.
High School Athletics
A high school student does not have a right to participate in interscholastic
athletic activities. Rather, a student must meet various requirements to become or
remain eligible to participate in high school athletics. In most states, a state high
school athletic association acts as the governing body in enacting eligibility rules,
such as age requirements, and grade point average minimums, etc. Individual
schools – whether public or private – and school districts may also impose
additional conditions to student after-school athletic eligibility. High school
students and their families should not confuse eligibility for interscholastic athletic
activities with a right to participate in those activities. A state athletic governing
body or a school can impose rules regarding the eligibility of an athlete to
participate in interscholastic athletics. A student may challenge a ruling of
ineligibility to participate in sports by either filing a lawsuit or initiating a formal
appeals process, depending on the governing body’s bylaws or other documents,
rules or laws.
Extensive case law exists throughout the country involving challenges to high
school sports eligibility rulings, which differ greatly in facts and holdings. In one
instance, a Mississippi court ruled that a student has standing to challenge the
1 Law Student at University of Miami School of Law. Expected graduation date of May 2016.

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denial of his eligibility to participate in high school athletics. MS High School
Activities Ass’n, Inc. v. R.T. ex rel. Trail, 163 So. 3d 274 (Miss. 2015). The Supreme
Court of Mississippi reasoned that a high school athlete is an intended beneficiary of
a contract between the high school institutions and the Mississippi High School
Activities Association (“MHSAA”). The Court ruled that the contract was the MHSAA
Handbook comprised of all bylaws and rules regarding athletic eligibility
requirements.
In another case, parents of a New York high school athlete removed their son
from after-school athletic competition for one year, in order for him to mature and
focus on academics. The parents later sought an extra year of athletics eligibility to
make up for their son’s lost year of sports participation. A New York court ruled
that the parents’ voluntary action to remove their child from athletic participation
was not a proper basis for extending athletic eligibility an additional year following
the expiration of the student’s normal eligibility. Pratt by Pratt v. New York State
Public High School Athletic Ass’n, Inc., 133 Misc. 2d 679 (1986). Customarily, high
school eligibility for interscholastic athletics is four years and the Pratt court ruled
against any extension of the individual’s eligibility.
Cases, such as Crane by Crane2, Alabama High School Athletic Association3, and
Johansen4 represent rulings involving a student athlete’s transfer and eligibility.
Crane by Crane v. Indiana High School Athletic Ass’n involved a student who
transferred to a different school when he moved from his father’s home to his
mother’s home as a result of his parents’ divorce. The eligibility rule for the athletic
association was that students who transfer schools are deemed ineligible for one
year, unless the Association determines them eligible. This particular student
transferred schools due to family circumstances, which was not the result of
recruiting. However, the Association ruled the student ineligible as a result of his
transfer of schools. The court held that the athletic association acted arbitrarily and
capriciously in determining the student was ineligible.
Alabama High School Athletic Ass’n v. Scaffidi By and Through Scaffidi
involved the rezoning of a student’s house into another school district as a result of
a school desegregation process. The student and his family opted to enroll in a
private school, rather than the pre-rezoning public school. After the rezoning, the
family decided to transfer their child from the private school to the new district’s
public school. The court overruled the athletic association’s decision determining
2 Crane by Crane v. Indiana High School Athletic Ass’n, 975 F.2d 1315 (7th Cir. 1992).
3 Alabama High School Athletic Ass’n v. Scaffidi By and Through Scaffidi, 564 So. 2d 910 (Ala. 1990).
4 Johansen v. Louisiana High School Athletic Ass’n, 916 So. 2d 1081 (La. 2005). Student transferred
schools as a result of her parents moving to a different school district to take care of their other child
who had special needs. As a result, the athletic association deemed the student ineligible from
participating in high school basketball for one year after the transfer, based on the finding that the
student’s transfer was voluntary and not the result of any external factors. The student argued that
the loss of eligibility status would damage his chances at obtaining an athletic scholarship to college.
The court held the student’s possibility of obtaining an athletic scholarship to college was not a
property interest protected by the state or federal due process clauses.

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that it had acted arbitrarily in ruling the student ineligible for one year after the
student had transferred schools. The Association cited a transfer eligibility rule that
prohibited students who transferred schools (in this case from a private school to
the newly-zoned public school) for one year of athletic competition. The court
reasoned that these transfer eligibility rules were enacted to prevent athletic
recruiting in high school5. If the situation had involved the student transferring
from one public school to another public school, it is likely that the outcome would
have favored the athletic association. The court reasoned that Transferring from a
private school to a public school, especially a newly rezoned public school,
presented a valid non-athletic reason. Without the private to public school reason,
the student would most likely not have a valid argument against the Association’s
ineligibility ruling.
These three cases represent three completely different rulings, where the
respective high school athletic association determined a student ineligible after
transferring schools. These non-recruiting rules are enforced to protect students
from exploitation by various coaches, players, and administrations of other schools.
The courts will generally uphold an ineligibility decision when a better athletic
program as opposed to academic or personal reasons primarily motivates a
student’s transfer. Despite these transfer rules, high school athletes and coaches are
finding ways to avoid any reprimands from recruiting, including claiming the sole
purpose of the transfer was better academics, paying the student’s family to move
into a new school district, and many additional strategies. The courts have tended
to distinguish the reasons for the transfer, differentiating between athletic
recruiting and personal circumstances.
If a high school athlete does not have a right to participate in interscholastic
athletics, what are the rights of a student-athlete? According to the Fifth
Amendment of the United States Constitution, an individual shall not be “deprived of
life, liberty or property without due process of law.” The Court of Appeal of
Louisiana held that “plaintiffs [students] must show the existence of some property
or liberty interest which has been adversely affected by state action.” Menard v.
Louisiana High School Athletic Ass’n, 30 So. 3d 790 (La. Ct. App. 2009). Regarding a
student’s claim of a denial of a right to participate in interscholastic athletics, the
Menard court stated that this right “amounts to a mere expectation rather than a
constitutionally protected claim of entitlement.” Id. The court highlighted two key
legal criteria for a favorable review as: (1) a student-athlete must identify a liberty
interest (eligibility, participation, etc.) that (2) has been affected by a state action.
Menard describes a property or liberty interest as having “more than an abstract
need or desire for it.” Id. The key distinction set out by Menard is between
entitlement and expectation. Id. Menard reaffirms the notion that there is no right
to compete or participate in high school athletics. Instead, high school athletes have
an expectation to play sports, but do not have a protected right to play sports.
5 High schools cannot recruit students to transfer schools for the purpose of playing on their
respective athletic teams. High school athletics recruiting is prohibited throughout the country to
protect the students/athletes from being taken advantage of by coaches or players.

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Furthermore, “the possibility of obtaining a college athletic scholarship based upon
participation in high school athletics simply does not constitute a property interest
or right protected by due process, but rather a speculative and uncertain
expectation or opportunity.” Id. The court went on to state, “participation in
interscholastic athletics does not rise to the level of fundamental rights and liberties
so essential that ‘neither liberty nor justice would exist if they were sacrificed.’” Id.
(quoting Washington v. Glucksberg, 521 U.S. 702 (1997).)
An interesting aspect of high school athletics eligibility is whether or not
homeschool students can participate in high school sports. Not surprisingly, the
courts, depending upon the state, treat this issue differently. Thus, a Michigan court
held that homeschooled students did not have a statutory right to participate in
extracurricular interscholastic athletic programs. Reid v. Kenowa Hills Public
Schools, 680 N.W. 2d 62 (Mich. Ct. App. 2004). Reid reiterates that regardless of
where a student attends school, high school students do not have a right to
participate in sports. Depending on the state, homeschooled students could
encounter issues with eligibility, such as in Reid, or, states could enact a statute, such
as in Florida, allowing eligible homeschooled students to participate in high school
sports.
Florida Statute 1006.15 sets forth conditions for eligible homeschooled
students “to participate at the public school to which the student would be
assigned.” In order to be eligible for high school athletics, a homeschool student
must: (1) meet the requirements of the home education program in Florida Statute
1002.41; (2) demonstrate educational progress in all homeschool subjects; (3) meet
the same residency requirements as other students in the school at which he or she
participates; (4) meet the same standards of acceptance, behavior, and performance
as required of other students in extracurricular activities; (5) register with the
school his or her intent to participate in interscholastic extracurricular activities
before the beginning date of the season, and, if required, participate in curricular
activities. In addition, a student who transfers from a home education program to a
public school, before or during the first grading period of the school year, is
academically eligible to participate in interscholastic extracurricular activities
during the first grading period provided the student has a successful evaluation
from the previous school year; and any public school or private school student who
has been unable to maintain academic eligibility for participation in interscholastic
extracurricular activities is ineligible to participate in such activities as a home
education student until the student has successfully completed one grading period
in home education to become eligible to participate as a home education student. It
is possible that if all of these conditions are met, and a homeschool student is still
deemed ineligible, a student’s liberty interest might be adversely affected by a state
actor (i.e. public school system or state athletic association). This theory revolves
around the idea that if a student satisfies all of the eligibility requirements, but is
still denied eligible status, the only valid reasons an athletic association could offer
would involve a violation of the student’s rights (i.e., discrimination based on race or
gender).

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A parent or student with questions or concerns regarding interscholastic
athletics eligibility should refer first to the school’s athletic participation
requirements and to the appropriate state athletic association rules, if available.
Thus, rather than having a right to participate, a student merely enjoys the
opportunity for participation in athletics to the extent that she or he meets all
applicable residency requirements, school rules and state athletic association
regulations, if any. [Click on the following link for more information: High School
Athletic Association Rules and Regulations]

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Student-Athletes’ Rights in Colleges and Universities
For the purposes of this article, we refer to the college/university athlete as a
student-athlete governed by the National Collegiate Athletic Association (“NCAA”).
The NCAA is a private membership organization consisting primarily of institutions
of higher education that compete against each other in sports competition. It is
“dedicated to safeguarding the well-being of student-athletes and equipping them
with the skills to succeed on the playing field, in the classroom and throughout life.”6
The NCAA, membership vote, institutes and enforces bylaws that impose
restrictions on the rights of student-athletes, which include, but are not limited to,
amateurism guidelines, impermissible benefits, and employment.
Eligibility Rulings
Similar to a high school athlete, college and university students do not have
independent rights to participate or compete in intercollegiate athletic competition.
Rather, college athletes must meet the eligibility requirements set by their
respective educational institutions and the NCAA. For example, NCAA Bylaw
14.01.2.1 mandates that student-athletes be in “Good Academic Standing” as defined
by their respective institutions. In order to be initially eligible7 for NCAA athletics,
an individual must: (1) adhere to the high school core course schedule, (2) present a
corresponding test score (ACT or SAT), and (3) maintain a core grade-point average
in accordance with the test score on the NCAA sliding scale. Once determined to be
eligible, and assuming she or he has sufficient athletic talent to be selected by the
team coaches, a student may choose to participate in sports. However, certain rights
otherwise available to other students are virtually or actually “signed away” upon
becoming an NCAA student-athlete.
Student-athletes must maintain their amateur status in order to be or remain
eligible for NCAA intercollegiate athletic competition. NCAA Bylaw 12.1.2 details the
prohibited forms of paid compensation that would jeopardize the amateur status of
student-athletes. NCAA Bylaw 15.01.2 prohibits student-athletes from receiving
financial aid that is not permitted by the NCAA. NCAA Bylaw 15.01.5 details the
approved institutional financial aid, such as scholarships or grant-in-aid. Some of
the prohibited forms of pay include salary, gratuity or compensation, division or
split of surplus, educational expenses not permitted by the NCAA, preferential
treatment, benefits or services, or any non-approved financial aid from the NCAA
and its institutions.
6 http://www.ncaa.org/about/who-we-are
7 NCAA Eligibility Center Quick Reference Guide

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Every American resident has a right to seek employment in a career of his or
her choosing in the United States. However, a student-athlete cannot pursue any job
he or she desires due to NCAA restrictions on compensation and types of job.
Furthermore, under NCAA Bylaws, a student-athlete may only pursue an
employment opportunity available to all students; otherwise the job could be
considered an impermissible benefit. Thus, an employer cannot create a job for a
star or any athlete that is not available to non-athlete students of the college or
university.
Oddly, NCAA student-athletes can receive services and merchandise worth
hundreds of thousands of dollars in the context of training and completion for their
NCAA-sanctioned sport; these types of benefits do not render them ineligible.
Likewise, the universities for which these student-athletes compete, sign lucrative
sponsorship deals, broadcast contracts, and receive ticket revenue worth millions of
dollars when combined. Due to this obvious contradiction and perceived unfairness
to student-athletes in high revenue collegiate sports, the NCAA is currently
discussing options to compensate some student-athletes above the levels of grant-
in-aid and scholarships currently permitted. It appears the filing of lawsuits by
current and former student-athletes inspired this new discussion and direction.
O’Bannon v. NCAA8 is a recent lawsuit involving a former college basketball
player who noticed his image and likeness displayed on a NCAA Basketball
videogame without his consent. O’Bannon claimed that the NCAA violated antitrust
laws by not allowing current and former student-athletes to share the revenue
derived from the use of their image and likeness. The U.S. District Court for the
Northern District of California ruled that the NCAA could not prevent student-
athletes from profiting from their image and likeness.
Another controversial ineligibility issue concerns the two-sport rule under
the NCAA Bylaw 12.1.2, which states that a student-athlete who is a professional
athlete in one sport can represent an institution in another sport, as long as other
conditions are met. One of these conditions is that the student-athlete not accepts a
commercial product or service endorsement income in his or her capacity as a
professional athlete. In Bloom v. NCAA9, the professional versus amateur athlete
debate arose from an ineligibility ruling by the NCAA on a football student-athlete,
Jeremy Bloom. Mr. Bloom was also a professional skier. The NCAA ruled him
ineligible to participate in college football competition primarily because he was
receiving endorsement income as a professional skier. Bloom argued that
professional skiers’ primary source of income is from endorsements, unlike other
professional sports, like football or basketball, where athletes are paid salaries. Mr.
Bloom also argued that the precise language of NCAA Bylaw 12.1.2, which states, “A
professional athlete in one sport may represent a member institution in a different
sport,” supports his position. However, the court addresses other NCAA Bylaws,
8 http://www.si.com/college-basketball/2015/07/14/ncaa-46-million-judgment-antitrust-lawsuit
9 Bloom v. NCAA, 93 P.3d 621 (Colo. Ct. App. 2004).

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such as 12.5.2.1 (prohibiting a student-athlete from receiving any endorsement
income), 12.5.1.3 (permitting endorsement income only if the student-athlete got
involved in the activity for reasons independent of athletics ability), and 12.4.1.1
(prohibiting student-athletes from receiving remuneration from any benefit to the
employer as a result of the student-athlete’s publicity or fame from his or her
athletics ability). Although the NCAA allows a two-sport athlete to receive
compensation derived from competing, the NCAA ultimately ruled that Bloom’s
endorsement income was an impermissible form of pay under Bylaw 12.1.2. The
court found that the NCAA Bylaw prohibiting Mr. Bloom from receiving
endorsement income from skiing reasonable and valid. Bloom is an example of a
strong limitation on student-athlete’s right to participate in sports based on two
apparently conflicting NCAA Bylaws. The irony of the NCAA Bylaws relevant to
Bloom is that a student-athlete like Mr. Bloom, could have received, for example,
$100,000 from placing first in a ski race, but cannot receive even $1.00 from an
endorsement. Despite the differences of various sports, the NCAA treats them all
the same or similarly when enforcing its bylaws, regardless of the disparate impact
on two-sport student-athletes, such as Mr. Bloom. However, at the end of the day, a
court will not generally overturn a rule where a group (NCAA and its institutions),
enacts rules, even when the court, and many others disagree with the logic of the
rules.
In Colorado Seminary (Univ. of Denver) v. NCAA10, the NCAA ruled several
student-athlete hockey players ineligible because they had accepted room and
board while playing for an amateur hockey team in Canada. Plaintiffs brought suit
against the NCAA claiming a violation of Equal Protection and Due Process clauses of
the U.S. Constitution. The court dismissed the Plaintiffs’ claim because, as in many
high school cases discussed above, there is no fundamental right or liberty to
participate or compete in sports.11
Another common NCAA Bylaw at issue is the “No-Agent” rule, which
prohibits student-athletes from hiring sports agents in a representative capacity
without forgoing their remaining intercollegiate athletics competition eligibility.
Oliver v. NCAA12 was based on Andy Oliver, a high school pitcher, who retained a
former attorney and sports advisor to attend a meeting with a professional baseball
team to negotiate a contract and forgo college in pursuit of playing professionally.
However, Oliver subsequently changed his mind, rejected the professional team’s
offer and decided to attend college on a full athletic scholarship. When the NCAA
learned of the meeting between Oliver, the former attorney, and the professional
team, it suspended Oliver resulting in an indefinite athletic ineligibility ruling.
Oliver claimed that he had the right to hire legal counsel and that NCAA Bylaw
12.3.2.1 (No Agent Rule) is void as against public policy prohibiting the hiring of
attorneys who also act as sports advisors or agents. The NCAA argued that the
10 417 F.Supp 885 (1976).
11 Washington v. Glucksberg, 521 U.S. 702 (1997).
12 920 N.E. 2d 203 (2009).

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hiring of the former attorney/sports agent violated its “No Agent” Bylaw and
rendered Oliver ineligible for college sports. The court ultimately ruled in favor of
Oliver, holding that the NCAA’s ineligibility ruling against Oliver due to his hiring of
an attorney and sports advisor would result in irreparable injury, loss, or damage
from his loss of eligibility.
Similar to Oliver, Banks v. NCAA13 involved a student-athlete’s attempt to
transition to professional sports prior to the expiration of his NCAA athletic
eligibility. Braxton Banks was a college football player who decided to forgo his
final year of NCAA eligibility and turn professional by meeting with an agent and
declaring for the NFL Draft. Not one NFL team drafted Banks; therefore, he
attempted to return to his college to play football. NCAA Bylaws stipulated that
Banks forfeited his remaining collegiate eligibility by declaring for the NFL Draft.
The court held that due to Banks’ remaining eligibility expiring based on his
decision to play professionally, this issue was moot, and he no longer had standing
to pursue this action to challenge his eligibility. Furthermore, the court held that
Banks failed to show that the NCAA’s “No Draft” and “No Agent” rules had any anti-
competitive effects on an identifiable market under a Sherman Antitrust claim. The
court solidified the NCAA Bylaws as valid and did not reinstate Banks’ remaining
eligibility. Oliver and Banks differed in that the Banks case involved an antitrust
violation suit (an illegal restraint on trade) and Oliver sought a declaratory judgment
and permanent injunction against the NCAA Bylaws based upon the Constitutional
right to hire an attorney.
These cases against the NCAA represent several different aspects of a loss of
student-athlete’s rights; whether a student-athlete has the right to hire an expert
representative to negotiate on his or her behalf; the right of a student-athlete to
receive certain types of compensation based upon athletic talent; or whether the
student-athlete has the right to change his or her mind about becoming a
professional athlete and returning to collegiate sports competition. As stated in
Colorado Seminary, an individual does NOT have a right to participate in
intercollegiate sports competition while attending university.14 Therefore, it is
entirely the responsibility of the NCAA and its member institutions that establish its
bylaws to set requirements regarding when, and under which circumstances,
college students are allowed the opportunity to participate or compete in
intercollegiate athletics.
Ultimately, college student-athletes are in the same or similar position as
high school athletes. They enjoy no independent right to participate or compete in
athletics. Rather, student-athletes must meet NCAA requirements in order to be
eligible to participate in intercollegiate athletic competition.
13 977 F.2d 1081 (1992).
14 See Menard v. Louisiana High School Athletic Ass’n, 30 So. 3d 790 (La. Ct. App. 2009).