Saturday, February 17, 2018
Opinion

Florida school athletics agency needs to be accountable

Our court system, administrative hearings and any other venues where testimony and other evidence is presented provides for due process, which includes an independent judge and the assumption that a person is innocent until proven guilty or liable. The Florida High School Athletic Association (FHSAA), a legislatively created monopoly that controls public high school athletics in this state, does not follow these fundamental concepts of due process. That needs to change.

The Legislature is considering two bills (HB 1403 and SB 1704) which, if enacted, would strengthen due process protections and increase the oversight and regulation of the FHSAA. Not surprisingly, FHSAA, a monopoly that has historically escaped meaningful state oversight and regulation, is desperately fighting legislative efforts to make its organization more accountable. For example, a recent opinion essay in the Tallahassee Democrat by Louis Stout, a former Kentucky high school athletic association executive director who is doing the bidding of the FHSAA, called the current legislative efforts "political bad sportsmanship, benefiting those with a predisposition to cheat." Such overblown rhetoric is akin to players trash talking during a game — shabby, ineffective and unnecessary.

I became familiar with the FHSAA and its operations while engaged in pro bono representation of two local parochial school students who were accused of violating a FHSAA bylaw. FHSAA has an ill-conceived bylaw that makes eighth-graders who play sports in a church, amateur athletic union or club league ineligible for one year if someone affiliated with the community team works at the high school attended by the students. Despite sworn testimony from five witnesses that no recruiting took place, and the FHSAA not presenting a single witness at the hearing, FHSAA decided that its "follow the coach" bylaw was violated.

After concluding that my clients failed to prove their innocence, FHSAA decided to punish two 15-year-old boys, who had no knowledge of this bylaw or its consequences, by denying these young men the opportunity to play any sport for a full school year. That is correct: The organization responsible for promoting participation in Florida high school athletics concluded that these two boys were ineligible for any sport participation because, not surprisingly in our relatively small town, there was coaching commonality between a nonschool league and the school ultimately attended.

Disheartened by the way the FHSAA treated my clients, I investigated further the "due process" FHSAA follows when making eligibility decisions. I was shocked to learn that if the FHSAA declares a student ineligible, the affected student must take his or her case, not to an independent judge, but to a panel of FHSAA members.

FHSAA does not have to present its case with witnesses or other evidence. At the hearing, the student then must prove his or her innocence to the panel. In our democratic society, if someone is accused of a crime or violating a rule or regulation, the accuser typically has the burden of proving its case. Under the FHSAA system, as key legislators have observed during committee hearings, a student is presumed guilty and must prove his or her innocence. Any "appeal" is heard by yet another FHSAA group.

Rightly concerned by the FHSAA's view that an accused student is guilty unless the student can prove his or her innocence, the Legislature is working hard to correct and regulate the FHSAA's flawed view of due process. Specifically, Rep. Kelli Stargel, R-Lakeland, the sponsor of HB 1403, is working hard to put the burden of proof where it belongs, on the FHSAA. She is also directing the FHSAA, after proving a case of recruiting, to punish an offending school and coach — not a young student who surely is not aware of FHSAA's obtuse book of bylaws — more strictly.

Contrary to the rhetoric offered by the FHSAA's public relations machine, the Legislature has a proper role to play in overseeing and regulating the FHSAA. Allowing any monopoly, including the FHSAA, to self-regulate, is a mistake. The legislative efforts to inject real due process into the FHSAA, and to better regulate this monopoly, are needed and should be supported.

Jon Moyle Jr. is a lawyer in Tallahassee. His three children have all played high school sports.

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