Friday Night Rights: School Waivers May Not Be Enforceable

June 14, 2010

Legal Issues in High School Athletics has featured my recent article concerning a lawsuit arising from the injury of an East Lyme (Conn.) high school track athlete in its May-June 2010 issue.  The article fits in nicely with my blog series “Friday Night Rights”, which covers the legal and business issues that arise in high school sports. 

Connecticut Court Finds Waiver Unenforceable in Negligence Claim Against High School Arising from Track Practice Injury

During the winter, the scene is the same at high schools across New England.  The  basketball teams occupy the gymnasium from the moment the final bell rings.  Hockey teams schedule ice time at local arenas for practice and games.  With meets held at local colleges with large indoor facilities, the track team often has no official practice area.  As a matter of necessity, track coaches and athletes must be creative in finding practice space.  If I recall correctly from my days at Natick High School (Mass.), it was not unusual to see sprinters and hurdlers practicing their craft in the school hallways.

 In 2007, East Lyme High School (Conn.) had a similar practice.  Sprinters would practice in a straight hallway.  During one drill, sprinters would race in pairs for approximately 100 yards.  They had allegedly been coached to finish with their heads down and extended, to provide the best opportunity for victory.  Following the sprint, the momentum of the athletes would carry them into a concrete wall, which the athletes would use to brace themselves and stop.  Unfortunately, during one of these drills an East Lyme sprinter was unable to stop.  Nicholas Furlani’s feet became tangled with another sprinter’s feet at the finish line, causing him to crash head-first into the concrete wall and suffer injury.  Mr. Furlani subsequently brought a lawsuit, Furlani v. Town of East Lyme, Docket Number CV08-5005850-S, against town and school officials in East Lyme.

 The defendants moved for summary judgment, in part arguing that the plaintiff, through his parents, had released the defendants by signing a waiver.  The relevant language in the purported waiver stated as follows:

 I will not hold the East Lyme Public Schools or the East Lyme Board of Education or its employees responsible for any injury sustained while engaging in any practice or game or while traveling to or from practices or contests.

 The Court (Parker, J.T.R.), in Furlani v. Town of East Lyme, 2010 WL 744995 (Conn. Super. Jan. 22, 2010), found that the waiver did not in fact release the defendants from their alleged negligence.  First, the Court found that the release was not sufficiently specific.  Citing the Connecticut Supreme Court’s decision in Hyson v. White Mountain Resorts of Connecticut, 265 Conn. 636 (2003), the Court noted that the release did not unequivocally state that claims predicated on the releasee’s negligence were being released.  Second, the Court drew parallels to the Connecticut Supreme Court’s decisions in prior cases, which held that exculpatory agreements in connection with recreational activities were void against public policy.

In fact, the Connecticut Supreme Court has consistently held that there is an important public policy in promoting participation in recreational and athletic activities, which “constitute an important and healthy part of everyday life.”  Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314 (2005).  In so holding, the Court has voided exculpatory agreements in connection with snow tubing, horseback riding and health clubs.  See Hanks v. Powder Ridge Restaurant Corp.; Reardon v. Windswept Farm, LLC; and Schneeloch v. Glastonbury Fitness & Wellness, Inc., 2009 WL 416645 (Conn. Super. Feb. 2, 2009).

 The Court in Furlani recognized the distinction between exculpatory agreements in the private context of recreational facilities, such as ski resorts, equestrian centers and health clubs, and high school athletics.  Nevertheless, the Court saw no reason to deviate from its policy of voiding agreements that attempt to disclaim negligence in the context of recreational activity. 

 Considering the Connecticut Supreme Court’s stated public policy of promoting recreational activities, one could argue that those policy concerns are amplified when dealing with high school athletics.  The participants are often minors, and the relationship between coach and high school student athlete involves far different dynamics than the relationship between ski resort owner and participant, or health club owner and member.  High school student-athletes rely far more heavily on coaches for guidance and instruction.  Accordingly, it would appear that Connecticut courts would be unwilling to enforce any agreement disclaiming a school or coach’s negligence in connection with a student’s participation in high school athletics. 

 Legal Issues in High School Athletics is a bimonthly newsletter that features detailed case summaries, articles and news briefs that are relevant to high school athletics.  The newsletter is edited by veteran sports law journalist Holt Hackney of Hackney Publications.   Daniel B. Fitzgerald, publisher of the blog Connecticut Sports Law and attorney with Updike, Kelly & Spellacy, and Robert J. Romano, founder of the Romano Sports Agency, serve as contributing editors.  For subscription information, click here.


Natick Football Players Commit to UConn, Southern Connecticut

February 6, 2010

Congratulations to Scott McCummings and Kevin Duffy, who signed letters of intent to attend and play football at UConn and Southern Connecticut, respectively.  Both players attend Natick (MA) High School, my alma mater. 

Congratulations are also in order for Natick coach and Athletic Director Tom Lamb, who recently announced his retirement following Natick’s 12-1 season.  Lamb finishes his hall of fame coaching career with a record of 248-65-2.

Check out this video of McCummings in action, especially the plays at 1:40 and 2:00 (nice deep throws); and 3:05 (great run, stiff-arm).


The Final Word on the National Letter of Intent

February 5, 2010

National Signing Day became National Letter of Intent Week here at Connecticut Sports Law.  Adding to our prior coverage of the National Letters of Intent was the perspective of four Quinnipiac School of Law Students taking my Sports Law course, Davidson G. Lucas, Martine Trinka, Leo J. White and Dan Mokrycki.  Three of the four students came down on the side most commonly advocated by observers of collegiate athletics: the NLI, in its “take it or leave it” form, is a one-sided agreement that may violate basic tenants of contract law. 

One student opined that the system provided schools and student-athletes with mutual benefit and protection, and is acceptable in its present form.  During class, only one other student (of a class of about 17) agreed that the NLI is acceptable.

Although the NLI and recent rules against adding terms (such as an escape clause should the coach change schools) certainly strengthens the argument in favor of unconscionability, there is a practical side to this debate.  Accordingly, I asked the class the following question:

If you were representing a student-athlete would you advise that he or she sign a NLI?

The answer was generally yes – most would advise a student-athlete to sign this one-sided contract.  The reason?  Lack of leverage.  Only the absolute top student-athletes have the leverage to risk not signing the NLI.  The remaining players risk, by not signing, that schools will fill up scholarship slots with other student-athletes.  Although the NLI is at best flawed, and at worst unconscionable, it is still the only vehicle through which a student-athlete can secure, at least to some extent, a scholarship.

Considering that the academic debate and practical realities of the NLI occupy opposite sides of the spectrum, is the entire debate over the NLI a waste of time and energy?  I don’t think so.  Even though student-athletes will likely sign a NLI if it is offerred, they should be fully aware of the terms of the contract.  And, there is increasing evidence that student-athletes are taking a critical look at the NLI.  Consider Seantrel Henderson, the top offensive line recruit in the country.  Henderson made an oral committment to USC, but will not sign a NLI until USC appears before the NCAA Infractions Committee

Henderson, as the top offensive line and perhaps top overall recruit, clearly has the leverage to decline signing the NLI until he learns more about the possible sanctions faced by USC.  There will be a scholarship for Henderson, who stands 6’8″ and weighs over 300 pounds, whether he signs or not.  Others may not possess the same leverage, but the lesson is the same: know the terms of the agreement before signing your name on the dotted line of a NLI.

Thanks to Aaron Katzman for the information on the Seantrel Henderson commitment.


The National Letter of Intent Violates Doctrine of Unconscionability

February 4, 2010

By Leo J. White

It is my opinion that the National Letter of Intent (NLI) program, and specifically the executed National Letter of Intent itself, is in need of reform to place the universities and the athletes, along with their families, on more equitable terms. The NLI, which is a binding contract between the university and the athlete, in my opinion violates basic cannons of contract law, specifically the doctrine of unconscionability. Without reform, the NLI in its current form should be held void.

A contract may be found unconscionable if either the procedures by which the formation of the contract have followed, or the terms of the contract itself, are unfair. The NLI is a boilerplate contract that is not open to negotiation. Clause 15 of the NLI, for example, expressly prohibits additions or deletions to the NLI. The inability to negotiate terms puts the athlete at a significant disadvantage. For example, the NLI may be nullified if the athlete does not meet the admissions or eligibility requirements of the institution. The NLI does expressly include, or incorporate by reference, what the terms for admissions or eligibility are for the signing institution. Such ambiguity may provide a loop-hole through which the institution may back out of the contract. The athlete does not have such an option.

Also, the terms of the NLI do not indicate what recourse the athlete has should the institution be found in violation of NCAA rules. The athlete may be adversely affected if the institution is held ineligible for tournament participation, required to forfeit wins, put on probation, or suffers a host of other potential punishments. The athlete, however, by the terms of the contract may not enroll in another institution without suffering the basic penalty for breach.

In addition, the choice of an institution by an athlete may be significantly influenced by the coach and coaching staff of the particular sport in which the athlete intends to participate. The NLI, however, explicitly states that the NLI is executed between the institution and the athlete (Clause 19). The athlete remains bound to the institution if the coach remains or leaves. In today’s world of a seemingly coaching carousel at top athletic programs, the athlete should be entitled to some form of recourse without penalty if the coach decides to leave after the NLI is signed.

Furthermore, the NLI is a contract whose term is for one year (the athlete is to receive a one-year scholarship in return for enrolling in the institution for one academic year). The basic penalty upon the athlete for breach of the contract by not enrolling in the original institution for one academic year and enrolling in another institution that participate in the NLI program carries a duration of two years. The athlete that breaches must not participate in intercollegiate competition of any kind for one year. In addition, the athlete loses one year of athletic eligibility. Such a punishment is unfair to the athlete.

Finally, the contract is not negotiated at arm’s length by equally sophisticated parties. It is not likely that prospective college athletes deciding to sign an NLI, or their families, are receiving counsel of any kind. The university, the NLI Steering Committee, or the NCAA, on the other hand, I presume to have had significant legal guidance in drafting the boilerplate NLI. The disparity in representation is further evidence in support of an unconscionable contract.

The NLI may provide some level of predictability in the behavior expected between the signing institution and the athlete. However, the level of predictability afforded does not outweigh the contract law issues associated with the NLI. It is current form, it is my view that the NLI is an unconscionable contract due to: (1) the express inability to negotiate terms; (2) the terms of the contract heavily favor the institution; and (3) the contract is not negotiated at arm’s length by similarly sophisticated parties.

Leo J. White is a third-year evening law student at Quinnipiac School of Law concentrating in Intellectual Property Law.


Letters of Intent Should Reflect a Mutual Agreement

February 3, 2010

By Martine Trinka  

The Letters of Intent (LOI) that prospective collegiate athletes are enticed to sign seem unconscionable in their current form and therefore should be changed to more accurately reflect two parties contracting in an arms-length transaction. Although student athletes are not required to sign the LOI, signing it is the only mechanism available to bind the school to their scholarship commitment.  

The current form of the LOI is unconscionable because it is a one-sided agreement that favors the educational institution. Only the most skilled athletes have the bargaining power to make the LOI less of an adhesion contract by bargaining for more favorable terms. By signing the LOI, the student commits to one school, giving up the opportunity to be recruited by other programs. In consideration for this commitment, the school agrees to give the student a scholarship, which will not be revoked unless the athlete is not admitted to the school. The student is bound to this contract. If the student decides to transfer to another school after signing a LOI, they will be forced to sit out of athletics for one year.  

Facially, this contract seems reasonably fair. After all, schools spend a lot of money recruiting athletes and it makes sense for schools to seek contractual commitments from their athletes. The agreement seems to have consideration because students agree to play for a school, and in return, the school agrees to extend a scholarship. Furthermore, students are not required to sign a LOI, but signing one is a way for both parties to make legal commitments to each other.  

However, the problem with the LOI, and main reason that I find them unconscionable is that the school has an escape clause. If the admissions committee of a school “rejects” an athlete, then the school is off the hook on its contractual obligation to commit to the athlete and provide a scholarship. So, for example, if a coach recruits a more desirable player than the one he has already committed to with a LOI, he can potentially simply not support the athlete with the school’s admissions committee, and when the student is rejected, the school has a legal way of backing out of their commitment to the student. This loophole puts the school in a better position than the student – and makes the consideration that the school gives the student in the LOI illusory. While the student is promising to attend a certain school, the school hasn’t really promised the student anything.  

I think that it is beneficial for student athletes and schools to make contractual commitments to one another, however the LOI because it is unconscionable as it currently stands does not reflect a mutual commitment. The contractual commitment between the parties should have weight. The student should not be able to walk away from an institution as easily as coaches are able to walk away from their coaching contracts (see Richard Karcher’s article The Coaching Carousel in Big-Time Intercollegiate Athletics), on the other hand the agreement should not be so heavily weighted in favor of the institution. 

Martine Trinka is a second-year law student at Quinnipiac University School of Law, concentrating in tax law.  She can be contacted at martine.trinka@quinnipiac.edu. 

 
 

  

 


National Signing Day Brings Excitement, Issues for Minors

February 3, 2010

By Davidson G. Lucas

The television rating for the NFL draft increased 62% between 2002 and 2008[1].  Fans of professional teams are interested to see which college players will be selected by their team while college football fans tune in to see where the recently departed stars from their team will play professionally.  The NFL draft is organized to place each of the 32 teams on equal footing and to promote parity by ordering the draft as inverse to the team’s success from the previous year.  For the casual professional football fan the player’s career begins at this threshold between amateur and professional status when the player leaves college to enter the NFL draft.

For the college football fan, the equivalent of the draft is the recruiting process, and there has been a comparable boom in interest and coverage of this aspect of college football.  Unlike players leaving college for the professional ranks who sign lucrative contracts with professional teams, players entering college football sign a binding agreement, or a national letter of intent (NLI), with the college or university of their choice.  The Football Bowl Subdivision (FBS) includes 120 colleges or universities and each school is allowed 85 scholarships.  There is no formal draft, no rounds where universities takes turns picking players, and there is no universal method to ensure that less successful teams acquire the best players in order to provide parity.  In fact, successful teams are likely to sign the best players.  Blue chip high school football players are free to choose the university which they will attend; winning is always an attraction.  Additionally, winning games expands a fan-base, encourages greater donations from alumni, and leads to more revenue which can be spent on both athletic and academic facilities.  All of these factors play a role in the decisions of recruits for which school they will attend. 

There is no national limit to the number of players that a school may recruit and offer scholarships to in a single season.  Because the agreement between the school and player is a one year contract the school can choose not to renew the scholarship after the academic year is complete.  Schools can also refuse to honor a signed NLI if the athlete cannot qualify for admission to the school for academic reasons.  When schools are recruiting players who with potential problems regarding academic eligibility they often “over-sign” and accept NLIs from a larger number of players than they have scholarships available.  In 2009, the University of Mississippi accepted 37 NLIs with the expectation that some of these prospects would not qualify academically.  Part of the strategy included placing some of the non-qualifiers in preparatory or junior college institutions with the expectation that some may be able to improve their academics and enroll at Ole Miss in the future.  In response to Ole Miss’ actions the SEC limited the number of NLIs that a school may accept in one year to 28.[2]

Today, February 3, 2010 is national signing day.  Fax machines in university offices across the country will be laboring all day starting at 7am.  It is the first day that current high school seniors who graduate in May 2010 may legally submit their NLI.  Schools may recruit a player as early as they want but they may not give the player an official written offer until September 1 of their junior year in high school.  Players often decide to give a verbal commitment before national signing day, but because this verbal commitment is not legally binding, the player can de-commit or void his commitment at any time.  For this reason, schools other than the school to which the player is committed continue to recruit the player and the player often visits and pursues other schools.

Some of the athletes that sign NLIs are minors under the age of eighteen.  In the entertainment industry, another industry where minors often agree to significant contracts, some states have enacted specific legislation to protect the interests of minors.  For example, California has the Coogan Act which protects the interests of minors who sign contracts to be a “performer or entertainer.”  In August 2009 Kelsey Evans filed a suit against the athletic director at Western Carolina University in North Carolina state court.[3]  At the age of seventeen Evans signed a NLI to attend WKU to play basketball but the coach who recruited her left to coach for another university before she enrolled.  After the coaching change Evans wanted to matriculate at another school but WKU refused to release her from the obligations under the NLI.  Like California, North Carolina has a law meant to protect minors who sign contracts; the law allows the minor to disaffirm the contract unless the contract has been approved by a North Carolina Superior Court.  The law also specifically includes minors who “render services as a participant or player in a sport.”[4]  The case was settled and the University allowed Evans to matriculate elsewhere before trial proceedings, but it appears there was a strong case against the University under North Carolina law.

 The lesson that college coaching staffs and university officials across the country should remember today is to note when the recruit turns eighteen, and if it has not happened before the fax arrives… consult an attorney and figure out the applicable state law.  Otherwise, the school risks the possibility of not having any legal method from preventing a valuable recruit from going elsewhere.

Davidson G. Lucas is a third-year law student at Quinnipiac University School of Law in Hamden, Connecticut, with a concentration in Intellectual Property Law.


[1] http://tvbythenumbers.com/2009/04/24/nfl-draft-viewership-up-62-over-6-years/17351

[2] http://www.usatoday.com/sports/recruiting/football/2009-06-04-sec-oversigning_N.htm

[3] http://www.charlotteobserver.com/606/story/910630.html

[4] NC ST § 48A-11(3).


National Signing Day: The Law of Letters of Intent

February 3, 2010

Another National Signing Day in college football is upon us - an exciting and joyous occasion for high school student-athletes preparing to play ball at the next level.  But student-athletes and their families should enter into a Letter of Intent with eyes wide open, as this contract is fraught with legal issues.  Connecticut Sports Law has covered these issues in some detail:

Signing Day Brings National Letter of Intent (NLI) into Focus

Talk to My Lawyer: 3 Situations Requiring Counsel in Collegiate Athletics

CTSportsLaw Mailbox: Is the National Letter of Intent Legally Enforceable?

Should Memphis Recruits Be Allowed to Follow Calipari?

National Signing Day: Beware of the National Letter of Intent

Jagodzinski Controversy Overshadowed Plight of Recruits

Today, in recognition of National Signing Day, I’ll post a few articles from my Quinnipiac University Law School students on Letters of Intent.  Enjoy the insight and perspectives!


Signing Day Brings National Letter of Intent (NLI) into Focus

January 14, 2010

Watching the Under Armour and U.S. Army high school All-American football games over the past weekends served as a reminder that National Signing Day is upon us.  February 3 is the day that many high school athletes will sign the National Letter of Intent (NLI): a one-sided agreement that heavily favors schools over student-athletes.  The majority of these student-athletes will sign on the dotted line without assistance of counsel.

The inherent problems of the NLI have been covered in some detail by Connecticut Sports Law.  We looked at it in terms of coaches, such as Boston College’s former head Jeff Jagodzinzky (Jagodzinski Controversy Overshadowed Plight of Recruits) and Kentucky’s John Calipari (Should Memphis Recruits Be Allowed to Follow Calipari?); in terms of whether a student athlete should sign the NLI: (National Signing Day: Beware of the National Letter of Intent); and in terms of enforceability (CTSportsLaw Mailbox: Is the National Letter of Intent Legally Enforceable?) and assistance of counsel (Talk to My Lawyer: 3 Situations Requiring Counsel in Collegiate Athletics).

Nevertheless, the NLI continues to make legal news.  A North Carolina student-athlete has filed a lawsuit seeking to void the NLI on the grounds that she signed it, committing to Western Carolina, as a minor.  The student-athlete’s attorney, Richard Gusler, has struck a familiar chord:

“It would seem to me, looking at the letter of intent and the manner in which the NCAA works, it’s pretty clear the emphasis of the NCAA in the letter-of-intent system is to protect colleges and not the kids. That’s why we have laws in North Carolina to protect minors, and we intend to take full advantage of those laws.”

Luke DeCock of the Charlotte Observer correctly points out that these types of situations are seen frequently in the music and entertainment business.  DeCock also points out the inequities involved with coaches.  Coaches are free agents (See Lane Kiffin) and their contracts are not strictly enforced.  Players, recruited by those same coaches, are held to contracts that they signed, sometimes as minors, most times without assistance of counsel, with no opportunity for negotiation.

Speaking of negotiation, what about the escape clauses that Calipari inserted into some of the NLIs with players he recruited?  The NCAA has disallowed such provisions by forbidding the additional of any additional terms to the NLI. 

It appears that the NCAA wishes to maintain the NLI as a one-way street.

Thanks to Connecticut Sports Law reader Eric for sending me the links to the stories detailing new developments in the  NLI.


CT Sports Law’s Top 10 Story Lines of 2009: Part I

December 29, 2009

With 2009 coming to a close, I have compiled a list of the top story lines and accompanying blog posts from the past year.  Part I will list story lines 6 through 10; Part II will be posted tomorrow and will include 2 through 5; and the top story line will be posted on New Year’s Eve.  Thank you for your readership, comments, questions and support this year.  I look forward to another year covering the intersection of sports and the law.

6.  Legal issues in high school athletics.  From defamation suits against parents, to criminal actions against coaches, to national letters of intent, to selling advertising rights, the legal and business aspects of sports permeated high school athletics in 2009.

Is the National Letter of Intent Legally Enforceable?

National Signing Day: Beware of the National Letter of Intent

Corporate Advertising in High School Athletics

Title IX Applies to High School Athletics

Connecticut Coach Awarded $88k in Libel Lawsuit Against Parent

Advertising and Title IX in High School Athletics

Recruiting and Specialization in High School Athletics

Interview with Mary Anne Bojko

Part II of Mary Anne Bojko Interview

Trial of Coach in Player’s Death May Change High School Athletics

7.  Quinnipiac eliminates volleyball team and is hit with a Title IX lawsuit.

Quinnipiac Faces Title IX Lawsuit Over Elimination of Women’s Volleyball

Title IX Lawsuit Brings More Unwanted Attention for Quinnipiac

Quinnipiac Volleyball Players Testify in Title IX Lawsuit

Expert Analysis of Quinnipiac’s Compliance With Title IX

Quinnipiac Volleyball Team Reinstated After Injunction

8.  Phoenix Coyotes file for bankruptcy; NHL attempts to keep team in desert.  CT Sports Law contributing editor Dan Canavan provided the most comprehensive legal analysis of the Coyotes bankruptcy of anyone on the internet and did so with an eye towards Connecticut and the former Hartford Whalers.

Phoenix Coyotes Seek Bankruptcy Protection, Sale: Winners & Losers

Will The Attempted Relocation of The Phoenix Coyotes Help Bring The Whalers Back to Hartford?

Dan Canavan Interviewed on CBC Radio Regarding Phoenix Coyotes Sale

Part I: Bankruptcy Court Yet to Rule on Phoenix Coyotes Case

Part II: Bankruptcy Court Yet to Rule on Phoenix Coyotes Case

NHL Wins the Battle in the Desert, But Will it Win the War?

Phoenix Coyotes Auction to Favor Local Bidders

As Phoenix Coyotes Saga Continues, Hartford is Silent

Dan Canavan Interviewed on Phoenix Coyotes Bankruptcy

NHL Declares Victory Over Balsillie in Bankruptcy Case

NHL Finally Takes Ownership of Phoenix Coyotes

9.  UConn football makes presence known in NFL Draft; agents flock to Connecticut.

UConn’s Donald Brown Reverses Field, Headed to NFL

UConn Football Plays Major Role in NFL Draft

UConn Football’s Success Brings More Agents to Connecticut

10.  Colleges and Universities flex muscles asserting trademark rights in school colors.

Can Universities Trademark Their Colors?


Connecticut Sports Recruiting: One Mistake Can Affect Recruitment

October 15, 2009

East Haven High School was recently in the news after some football players and cheerleaders were ticketed for possession of alcohol and subsequently suspended.  All of the athletes ticketed denied drinking alcohol.  Ultimately the year-long suspensions were reduced following much debate and protest.

The story provides an excellent lesson for high school athletes.  Even being in the wrong place without taking part in any illicit activities can affect a student’s high school athletic career as well as his or her collegiate athletic career.

Check out this video from The National Collegiate Scouting Association’s Athletic Scholarship and College Recruiting Blog