By Doug Fuglsang. Mr. Fuglsang is a licensed attorney in Illinois and Wisconsin with a Sports Law Certificate from the National Sports Law Institute. He can be reached at firstname.lastname@example.org.
Students of Fenwick High School in Oak Park, Illinois learned a tough lesson last week — sometimes the law isn’t fair.
That is exactly what Illinois High School Association (IHSA) attorney David Bressler explained after a Cook County judge refused to grant Fenwick a temporary restraining order and overturn the controversial outcome of a recent IHSA playoff game.
By all accounts the officials clearly botched the ending of the 7a Semi-final playoff game between Fenwick and Plainfield North high schools. Fenwick was up 10-7 late in the 4th quarter. Rather than punt on fourth down with mere seconds left and risk “the DeSean Jackson play,” Fenwick decided to run out the clock with one last play. The QB took the snap and launched an incomplete pass deep downfield as time expired while the ball hung in the air. The officials flagged Fenwick for intentional grounding because there wasn’t a receiver in the area and awarded Plainfield North an un-timed down. Plainfield tied up the game with a field goal sending the game to overtime where they eventually won on a gutsy two-point conversion 18-17.
After the game, however, the IHSA immediately acknowledged the game-official’s mistake explaining Plainfield should not have received the un-timed down and Fenwick should have won 10-7. Yet the IHSA also explained that they are unable to reverse the outcome on appeal because of by-law 6.033 which states that “the decisions of game officials shall be final; protests against the decision of a game official shall not be reviewed by the Board of Directors.”
Fenwick, obviously angered by this miscarriage of justice, sought the court’s help to remedy the situation, but to no avail.
Treatment of state athletic associations varies among the states, but in Illinois courts have determined that the IHSA is a private association and not a State actor, which requires stricter standard of scrutiny from the court. The law of private associations is based in the freedom of contract, member institutions are free to agree on their own by-laws and rules, thus courts will give a great deal of deference to their decisions except in circumstances of fraud or other illegality such as an abuse of civil or property rights.
This is known as the arbitrary and capricious standard. Under this test the court weighs several factors that include: (1) whether the Plaintiff would suffer irreparable harm, (2) was the Plaintiff denied due process and (3) are the by-laws in question arbitrary or outside the IHSA’s power to enforce.
In this case, there is no doubt Fenwick’s football players would suffer irreparable harm. The players were denied an opportunity to play in the State Championship game because of an official’s misunderstanding of the rules. They were denied a once in a lifetime opportunity, many of these students won’t play football beyond the high school level. Finally, the IHSA even admitted that Fenwick should have been declared the winner at the end of regulation. There is no doubt about they were irreparably harmed, however the court emphasized there are two other important factors to be considered. The members of the IHSA, through contract, give the rule making authority to the IHSA and agree to be bound by these by-laws. There is no lack of due process in this case, Fenwick, as a member of the IHSA, voluntary joined the IHSA and has notice of the protest procedures especially by-law 6.033. Lastly, the rule has been consistently applied to all member schools.
The rationale behind this rule, which has been adopted in some form across the states, is simple: litigating every on-field call made by an official would be logistical and economic nightmare for the judicial system. Think of all the crazy sports parents out there willing to litigate because they think little Johnny won’t get a scholarship due to an officiating mistake during the third game of his sophomore football season. Yes, I acknowledge this is an extreme example, but so is the case before us.
Most argue sports are a metaphor for life, and yes it sucks that these football players were denied the opportunity to play in the championship game through no fault of their own, but that is life and sometimes life and the law aren’t fair.