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  • What's next for Maori Davenport's eligibility case amid a lawsuit and after a temporary restraining order allows her to suit up on Friday?
By Michael McCann
January 11, 2019

On Thursday, I wrote about the possibility of Maori Davenport, a basketball star at Charles Henderson High School in Troy, Alabama, suing the Alabama High School Athletic Association (AHSAA) over its decision to rule her ineligible to play in her senior year.

A lawsuit has now been filed and it’s already earned a “win”, albeit a temporary one: on Friday afternoon, Pike County (Alabama) Circuit Judge Henry “Sonny” Reagan granted an emergency motion for a temporary restraining order that will enable Davenport to play for her team, the Trojans, tonight against Carroll High School. The restraining order, which temporarily prevents the AHSAA from carrying out its punishment of Davenport, will only last until Judge Reagan holds a hearing. At that time, time both sides will have an opportunity to argue on the merits.

Judge Reagan’s order on Friday grants one of several remedies sought by Davenport and her parents, Mario and Tara Davenport, in their lawsuit against the Alabama High School Athletic Association (AHSAA) and its executive director, Steve Savarese, in the Circuit Court of Pike County. The lawsuit was drafted by Alabama attorneys Carl Cole and Grady Reeves. The Davenports demand a temporary and permanent injunction and an emergency motion for a temporary restraining order. These remedies would declare, among other things, that (1) Davenport is immediately eligible to play; (2) the AHSAA’s ruling against Davenport is invalid on its face; and (3) the AHSAA’s decision-making process that led to Davenport being ruled ineligible was arbitrary, based on collusion and the product of fraud.

As detailed in Thursday's column, Davenport—one of the best high school basketball players in the country—was the victim of a clerical mistake by USA Basketball. Last August, she played for the gold medal-winning USA Basketball team in the FIBA Under-18 Women’s Americas Championship in Mexico City. As a “broken-time” payment (stipend) for the players’ travel and incidental, USA Basketball planned to send each of its players a check for $857.20. Prior to doing so, USA Basketball pledged to verify with the relevant state athletic association for each player that such payment would not cause the player to become ineligible under state rules.

A USA Basketball administrative assistant who was responsible for verifying compliance with state athletic associations failed to conduct verifications for three players, Maori and players from Missouri and Illinois. Making matters worse for Davenport, she and her parents allegedly received false assurances from several authority figures about the relationship between the check and her eligibility to play basketball. According to the lawsuit, Davenport’s mother, Tara Davenport (who is also an assistant coach on her daughter’s high school team), “specifically asked the coach of Team USA, Louisville coach Jeff Walz” if the checks would be “permissible” for the players to deposit. Tara Davenport was rightfully concerned about the impact of any payment on her daughter’s basketball future. The lawsuit claims that Walz assured her, wrongly, that they would be permissible. The lawsuit also stresses that while USA Basketball normally attaches a letter to the check to explain the check’s purpose, it forgot to do so for Davenport.

USA Basketball has fully apologized for its mistakes, but the apology doesn’t carry legal importance.

Indeed, once Davenport deposited the check, she immediately violated Rule 1, Section 8 of the AHSAA Bylaws. The rule dictates that a player loses eligibility to play a sport for a season if he or she accepts payment or remuneration for playing on an athletic team. The rule is a “strict liability” offense: it doesn’t matter if the rule is broken because of one’s own fault or because of the fault of another—all that matters is once the rule is broken, it’s broken.

Along those lines, the fact that Davenport immediately returned the money upon learning that she had violated AHSAA rules made no difference. Unlike eligibility rules in many other states, the AHSAA’s rule does not offer the player an opportunity to pursue a hardship exception that would attempt to correct an injustice.

Savarese—AHSAA’s executive director—applied the eligibility rule as it is worded and declared that Davenport was ineligible for her senior season. Through her school, Davenport appealed Savarese’s ruling to the District 2 Board and then to the AHSAA Central Board of Control. Those appeals failed, as the boards stressed that Davenport had violated the rule as it is worded. Stated differently, neither Savarese nor the boards seemed to care that Davenport broke the rule through no fault of her own. They instead identified a rule violation and, almost mechanically, imposed or upheld the accompanying punishment.

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The temporary restraining order is temporary

While Moira Davenport and her family are undoubtedly thrilled that she’ll return to the Trojans’ lineup for Friday night’s game, it’s worth noting that Judge Reagan’s order is by no means the final word on the matter.

Along those lines, a temporary restraining order should not be confused with a decision on the merits. Under the Alabama Rules of Civil Procedure, a temporary restraining order may be granted without an opportunity for the adverse party (here, the AHSAA and Savarese) to have an opportunity to meaningfully respond. This can occur when the plaintiff’s motion makes a compelling argument that immediate and irreparable injury would occur without the court granting the order.

In the lawsuit, Davenport family attorneys Cole and Reeves adroitly detail how there is no way Davenport can be made whole again if she misses games due to a suspension that a court later rules to be unlawful. In other words, if Davenport misses the rest of the season and then, over the summer, a court rules in her favor, the victory won’t really matter by that point: the games she missed can never be played again.

By issuing a temporary restraining order, Judge Reagan is essentially hitting the pause button. Through her family’s lawsuit, Davenport has made her case. The AHSAA will soon file an answer to the lawsuit. Judge Reagan granting a temporary restraining order on Davenport’s behalf does not mean he will rule in her favor after the hearing.

It’s unclear when Judge Reagan will hold the hearing, but it will likely be very soon: a temporary restraining order normally cannot exceed 10 days. Depending on how Judge Reagan structures his order, the losing side could then petition an appellate court for review.

Breaking down the lawsuit

As I explained in my column yesterday, Davenport faces difficult odds in persuading a court to permanently reinstate her against the wishes of the AHSAA. In multiple cases, Alabama courts have reviewed AHSAA’s decisions with substantial deference and have consistently rejected players’ appeals. However, as the Supreme Court of Alabama made clear in the 1970 case Scott v. Kilpatrick, a player can thread the needle if he or she proves that the AHSAA acted with arbitrariness, collusion or fraud.

To that end, Davenport’s lawsuit argues that the AHSAA has treated Davenport much more harshly than it has treated other players, schools and coaches. The lawsuit asserts that the AHSAA appeals process has modified ineligibility punishments in other cases and done so for undisclosed and seemingly arbitrary reasons. To illustrate, the lawsuit discusses how in 2016 the AHSAA imposed a postseason ban on Muscle Shoals High School’s football team due to recruiting violations. The Central Board then reinstated this team’s eligibility and, according to the Davenports, did so without any meaningful explanation. The lawsuit also notes the AHSAA imposed one-year playoff bans on three other schools and yet they too were inexplicably “reversed, rescinded or otherwise invalidated.” At no time, the lawsuit charges, did the AHSAA share guidance as to which, if any, substantive factors explain the revised outcomes. This lack of explanation, the lawsuit contends, reveals arbitrariness on the part of the AHSAA. The Davenports contend the AHSAA is a selectively forgiving organization.

The Davenports also claim the AHSAA’s eligibility rule is arbitrary on its face. As the lawsuit stresses, the rule “allows for no distinction for an innocent mistake such as the case at bar and intentional payments with some intent to compensate players for play or performance.” The AHSAA will likely respond by arguing that the rule isn’t arbitrary but rather it treats every situation the same: if there is a violation, there is a punishment. Still, the lawsuit notes that other states’ athletic associations have treated Davenport’s situation differently. According to the Davenports, one of the other two USA Basketball players who mistakenly received a check remains eligible to play (albeit under the rules of a different state athletic association) for her high school team.

Alleged collusion is also described in the lawsuit. The Davenports contend that Savarese improperly influenced the appeals process by attempting to influence appeals board members. According to the lawsuit, “individuals present” at the appeals hearings indicate that Savarese “was asked to go back in the room in at least one of the hearings” and that Savarese shared information that was not relevant to the question of eligibility. Such hearings are supposed to be fair and impartial, with the boards reviewing the matter “de novo”—meaning as new and without deference to Savarese.

It remains to be seen if the Davenports’ possess the necessary evidence and witness testimony to support their accusations against Savarese. That said, the concept of improper influence could be a viable avenue for the Davenports. As I detail in my column Thursday, the 1984 case AHSAA v. Rose could prove its point. In it, the Supreme Court of Alabama ruled that a high school athlete deemed ineligible by the AHSAA was denied due process. The AHSAA’s executive director had attempted to influence the athletic board in its deliberations of this player’s appeal.

Lastly, the Davenports contend that the AHSAA engaged in fraud. The Davenports stress that the AHSAA is knowingly relying on an admitted mistake by USA Basketball as grounds to punish an innocent Davenport. As the Davenports see it, to punish Davenport, who immediately returned the money upon finding out about USA Basketball’s mistake, is to defy basic fairness.

Next steps and remaining hurdles for Davenport

As discussed above, Judge Reagan will soon hold a hearing where both sides will present. It’s worth noting that the lawsuit was filed in state court, rather than federal court. It’s possible the attorneys for the Davenports are more confident of success in state court, where the judge is an elected official, than in federal court, where the judge would have a lifetime appointment and perhaps be less influenced by public outrage over the AHSAA’s punishment of Davenport. To that end, the lawsuit avoids specific mention of federal constitutional claims. This is most likely to reduce the AHSAA’s odds of success should it seek to have the case removed (transferred) to the U.S. District Court for the Middle District of Alabama.

One thing is clear: the Davenports hope Judge Regan and any appellate judges who hear appeals let Maori Davenport play the rest of the season. The season doesn’t have much time left. In fact, the playoffs for the 9–0 Trojans begin on February 2. Should the Trojans advance, they would go on to play in the state championship tournament from February 25 to March 2.

As a final point, even if the Davenports continue to obtain court orders that permit Maori Davenport to play, Rule VI, Section 10 of the AHSAA Bylaws could later pose a problem. This rule is termed the “school restitution rule.” Among other things, it stipulates that if an AHSAA-disqualified student is allowed to play due to a temporary restraining order or a preliminary injunction issued by a judge against the AHSAA, and if the order/injunction is later vacated, reversed or otherwise ruled invalid, then a substantial penalty is imposed: “all contests in which such ineligible student participated shall be forfeited as well as any honors, points or awards received by the school or the ineligible student.” Also, per this rule, the school “may be fined or placed on probation [by the AHSAA] in the interest of restitution and fairness to other member schools.” Given that the Supreme Court of Alabama has consistently ruled in favor of the AHSAA, it stands to reason that the restitution rule could eventually become a problem for both Davenport and Charles Henderson High School. We’ll see.

SI will keep you updated on key legal developments in Davenport’s eligibility.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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