The eligibility of Maori Davenport, a senior at Charles Henderson High School in Troy, Alabama, to play basketball has become a national sports controversy. As explained below, it could soon become a legal controversy as well.
Davenport’s situation is expertly explained by ESPN’s Jay Bilas, who has advocated for Davenport to return to the court. Davenport is one of the nation’s top high school basketball players. Last year she led her school to the state title. Next year Davenport is committed to playing for Rutgers. This year, however, has become cloudy. It’s all due to Davenport suffering the penalty of another’s mistake.
The eligibility rule and why Davenport—through no fault of her own—violated it
Last August, Davenport played for the gold medal-winning USA Basketball team in the FIBA Under-18 Women’s Americas Championship in Mexico City. USA Basketball planned to send each of its players, including Davenport, a check for $857.20. This amount reflected a stipend for travel and incidentals. It is compliant with NCAA rules, meaning it would not impact the eligibility of the players if they went on to play college basketball.
Before mailing the check, USA Basketball pledged to confirm with the state high school athletic association of each player that the payment would not endanger the player’s high school eligibility. As Bilas explains, USA Basketball forgot to contact the Alabama High School Athletic Association (AHSAA).
Had it done so, USA Basketball would have learned that any payment to Davenport would have caused her to violate Rule 1, Section 8 of the AHSAA Bylaws. This rule expressly states that a player who accepts payment or remuneration for playing on an athletic team is ineligible to play. Here is the specific language of the rule:
Only amateurs are eligible. An amateur is one who does not use his/her knowledge of athletics or athletic skill for gain. Amateur standing shall be further determined by the following
(a) A student is ineligible if he/she has received money as a prize, or has sold a prize received in a contest, or has bet on a contest in which he/she is a participant.
(b) Professionalism is defined as accepting remuneration, directly or indirectly, for playing on athletic teams and in sports activities or for playing under an assumed name.
(c) A student who accepts material or financial inducement from any source is ineligible.
In November, USA Basketball realized its error. It then alerted Davenport, Charles Henderson High School and the AHSAA. USA Basketball explained that the mistake was completely unintentional and reflected a clerical oversight by a staff member. USA Basketball has repeatedly apologized and taken full responsibility.
For her part, Davenport immediately returned the money. She hoped that doing so would remedy any compliance issues with the AHSAA.
Unfortunately, it did not.
By accepting payment, Davenport had violated the AHSAA eligibility rule. This is true even though she had no idea that accepting payment from USA Basketball—the governing body of basketball in the United States and a reputable and trustworthy organization—would cause her to run afoul of AHSAA rules. Davenport, like her teammates, also had reason to trust that accepting payment would not jeopardize her eligibility. After all, USA Basketball was charged with determining that very compliance issue. Yet, while commonsensically that may seem like an important point, it doesn’t matter under the terms of AHSAA’s eligibility rule. The fact that Davenport immediately returned the money upon learning of USA Basketball’s error also made no difference: once she accepted payment, she had violated the rule, which offers no means of curing the violation or claiming hardship (a point discussed below).
Worse yet for Davenport is the eligibility rule’s penalty provision. It dictates that a player in violation of the rule can only be reinstated after one high school season for the sport has passed. Given that Davenport is a senior, there is no next high school basketball season for her. Absent a reversal in policy by the AHSAA or a court injunction, Davenport’s exemplary basketball career on the Charles Henderson High School Trojans is over.
Pressure on AHSAA to reverse Davenport’s penalty has thus far failed
Bilas and others have argued that Davenport’s penalty is grotesquely unjust and “defies reasonableness.” For his story, Bilas interviewed Steve Savarese, the executive director of the AHSAA. Savarese explained to Bilas that he is “the absolute authority” on eligibility cases and has sole discretion in making a decision. Bilas implored Savarese to reconsider the punishment.
To that end, Bilas highlighted a number of points that blended basic decency and pragmatism. “There was no intent to violate any rule,” Bilas stressed, “[and] no intent to deceive and no resulting harm to any person or entity.” He also observed how “there was no intent on the part of USA Basketball to violate an AHSAA rule.” Bilas, who is an attorney as well as a broadcaster and journalist, placed emphasis on the intent of the rule. “When the rule was first enacted,” Bilas wrote, “it did not contemplate punishing a player over a clerical mistake by a sport's national governing body. When the rule was first enacted, nobody could have imagined that a simple mistake would lead to such a harsh result.”
Savarese is unpersuaded by these points. He stresses that the language of the rule offers no opportunity for an exception. To that end, Savarese argues that exempting Davenport from the rule’s requirements would be “arbitrary and capricious” since it would treat one player differently from others. He also warns that granting an exception in this one instance would open up a “Pandora’s Box” whereby other players could rely on the Davenport exception as precedent (at the same time, Savarese concedes that he has never seen before a situation like this in his 44 years as an educator, which suggests an exception might not prove consequential beyond Davenport).
Savarese also stresses that if Davenport has a grievance with others, it shouldn’t be with him or the AHSAA. Instead, Savarese asserts, Davenport should target USA Basketball for failing to place a phone call. Savarese also directs blame onto Davenport’s mother, Tara Davenport, who is an assistant coach on the Trojans. Savarese argues that, as a coach, Tara Davenport “should have known better” about the relationship between her daughter or any player accepting payment and AHSAA’s eligibility rule.
Davenport exhausts internal AHSAA remedies and why that matters legally
As of this writing, neither Davenport nor Charles Henderson High School has challenged Savarese’s ruling in court. The high school, however, has already challenged the ruling through the internal appellate procedure outlined in the AHSAA Constitution.
Under Article XI, an official ruling made by the executive director may be appealed to the applicable district board for the school. In turn, that district board’s ruling may be appealed to the AHSAA Central Board of Control, which has the final authority on any case appealed to it. The high school first appealed to the District 2 Board, which voted unanimously to uphold Savarese’s ruling. It then appealed to the AHSAA Central Board, which last month upheld the ruling. The two boards focused on the straightforward fact that Davenport clearly violated the rule.
While the administrative appeals failed, they were essential procedural steps before a viable lawsuit could be filed. In most cases, judges require plaintiffs to exhaust any internal remedies before a court will review a case. The underlying logic is that a case is not yet ripe for judicial review if all of the relevant facts are not yet developed or if the dispute could still be resolved through an internal process that governs the parties. Here, Davenport, through her high school and its principal, Brock Kelley, clearly exhausted their internal remedies.
If Davenport sues, here are the types of arguments she would raise
Although the AHSAA Central Board of Control has “final authority” on any eligibility case involving an AHSAA-governed athlete, that authority refers to the AHSAA’s system of justice, not the legal system. Davenport could sue the AHSAA. In a lawsuit, Davenport would demand that the court enjoin the AHSAA from enforcing Savarese’s ineligibility ruling. She could also seek monetary damages for the potential damage done to her basketball career by virtue of noting being able to play, but Davenport’s most likely goal with a lawsuit would be to get back on the (basketball) court.
Davenport would probably offer two basic types of legal arguments. First, Davenport would assert that AHSAA violated the law in the manner in which Savarese applied the eligibility rule. Second, Davenport would challenge the legality of the rule itself.
To that end, Davenport would claim that the AHSAA has violated the Due Process and Equal Protection clauses of the Fourteenth Amendment to the U.S. Constitution. She might also insist that her rights of free association under the First Amendment have been unlawfully compromised.
In building these points, Davenport could insist that a loss of one year of basketball harms her educational experience and thus deprives her of a legally-protected interest. She would also stress that the loss occurred with any accompanying opportunity for her circumstances to matter in the AHSAA’s administration of justice. Davenport would thus contend that the AHSAA failed to provide her due process of law.
The concept of a legally-protected interest would be crucial to any case brought by Davenport. She would argue that the loss of basketball is not merely a “sports” loss. A court would be much less likely to find in her favor if her loss is only about athletics rather than education. Indeed, Davenport would insist that the loss of basketball adversely impacts her scholastics. Along those lines, she might argue that membership on the basketball team has been vital to her academic success and social development. This point could perhaps be evidenced by colleges’ interest in her partly on account of her basketball success. By being removed from her team, teammates and coaches, Davenport is excluded from the experience that has been most central to her growth as a person and student. It could thus stunt her development as a person.
Further, although courts have generally rejected the claim that participation in extracurricular activities is a constitutionally-protected interest, Davenport’s involvement on her school’s basketball team is uniquely pervasive. She is the star of the team—and it was the best team in the state last year. To the extent participation in a sport ought to be protected, Davenport’s would seem like the right example.
Davenport would also highlight how she was not accorded a procedural right to meaningfully argue that her circumstances ought to matter. Many state athletic associations, including the Arkansas Activities Association and the Arizona Interscholastic Association, permit student athletes to seek a “hardship waiver.” Under such a waiver, a state athletic board can waive or at least modify an eligibility rule as it applies to a particular student athlete. “Hardship” is typically found when, because of circumstances beyond the control of the student athlete, enforcement of the eligibility rule would cause an undue hardship. If Alabama allowed for hardship, Davenport would have a persuasive argument for claiming it. She would stress that she is poised to lose a year of basketball because of USA Basketball’s mistake.
Along those lines, while Davenport was given the opportunity to appeal Savarese’s ruling, it does not appear that USA Basketball’s responsibility for the error made any difference. Instead, Savarese and the appeals boards seemed to focus exclusively on the technical breaking of a rule.
Davenport could also raise an equal protection argument under the Fourteenth Amendment. It would likely claim that the AHSAA impinged on a fundamental right protected by the Constitution. Davenport would probably not argue that she had a fundamental right to play sports. Courts have usually rejected such a theory on account that the Constitution neither explicitly nor implicitly protects a “right” to play sports. Instead, she’d be inclined to insist that her experience on the basketball team is so inextricably intertwined with her academic experience that a loss of basketball eligibility violates her fundamental right to education.
Alternatively, if Davenport finds that the AHSAA has treated her differently than male and/or white student athletes—such as if the AHSAA previously granted exceptions to the eligibility rule that it now contends is absolute—she could assert a different type of equal protection argument. Specifically, she could argue that she has been treated differently on account of her gender or race. To be clear, Savarese and the AHSAA contend that no exceptions have been made, so Davenport would need to find evidence to the contrary.
In addition, Davenport could maintain that her exclusion from the Trojans violates her right to free association as implied by the First Amendment. In certain instances (most notably in NAACP v. Alabama), courts have found a governmental entity cannot prevent groups from assembling to offer social and political viewpoints. Although it is not part of the government, the AHSAA is taxpayer-funded and has been found subject to constitutional claims. If Davenport could argue that membership on the basketball team allows her and teammates a forum for expression of ideas, perhaps Davenport may have traction with a First Amendment claim.
AHSAA’s likely defenses to a lawsuit brought by Davenport
While Davenport and her attorneys could craft a lawsuit that logically focuses on questions of equity and fairness, chances are AHSAA would defeat it. There are at least five reasons why.
First, Alabama courts have reviewed AHSAA’s decisions with substantial deference. This was made clear in the 1970 case Scott v. Kilpatrick. In it, the Supreme Court of Alabama suggested that courts should not second guess AHSAA rulings unless there is clear and convincing evidence that such rulings result from “fraud”, “collusion” or “arbitrariness.” Similarly, the Supreme Court of Alabama stressed that the AHSAA and its members “are in better position to promulgate rules governing participation in high school athletics than anyone else and are fully cognizant of the reasons underlying such rules.” At the outset, then, Davenport would need to overcome a built-in advantage for the AHSAA in terms of standard of review.
Second, as noted above, courts seldom recognize a fundamental right to play sports. It has occurred, but far more often courts simply reject the idea that a student athlete has a constitutionally protected interest in playing a sport. Playing sports is usually regarded as a privilege rather than a right. In the aforementioned Scott decision, the Supreme Court of Alabama enunciated this viewpoint: “Participation in high school athletics is an extracurricular activity subject to regulations as to eligibility … engaging in these activities is a privilege.” While Davenport might try to offset this hurdle by portraying her participation on the basketball team as a scholastic experience and thus as necessarily linked to her education, a court would likely reject this view. Instead, a court would probably see her participation as mainly about athletics.
Then again, and more favorably for Davenport, the Supreme Court of Alabama has on at least one occasion found in favor of a high school athlete’s due process claims. This is despite the fact that playing sports is a privilege in Alabama. In the 1984 case AHSAA v. Rose, the Supreme Court of Alabama ruled that a high school athlete was denied a fair and impartial hearing and was thus denied due process. The Rose case involved a high school football player whom the AHSAA had ruled ineligible. The ineligibility finding arose because of a discrepancy involving the residency of the player’s parents in the relevant school district. The player, nonetheless, prevailed in his case because of inappropriate conduct by the AHSAA. Namely, AHSAA’s executive director had attempted to influence the athletic board in its deliberations of the player’s appeal and thus prevented the player from receiving a fair and impartial hearing. While Rose serves as encouraging ruling for Davenport, no evidence has (yet) surfaced suggesting such undue influence occurred in Davenport’s appeals.
Third, AHSAA would emphasize that Davenport was treated just like everyone else. Through her high school, Davenport received two levels of appeals and accompanying hearings. From that vantage point, AHSAA would insist that Davenport was not denied process or equal protection.
Fourth, AHSAA would aver that a court reading an exception into the eligibility rule as it relates to Davenport would betray the language of the rule. Stated differently, Davenport needs an exception from the rule that the language of the rule does not contemplate. For a court to invent a new provision would be tantamount to “legislating from the bench.” It would also make the rule itself less reliable, since players in future eligibility challenges could similarly argue for court-invented exceptions.
Fifth, while some states allow student athletes to seek hardship waivers, Alabama is under no obligation to do the same. Going forward, the state could pass legislation that essentially forces the AHSAA to change its rules. One member of the state house, Rep. Kyle South, has announced plans to introduce a bill that would effectively alter the composition of AHSAA’s governing members and treat the AHSAA as a state agency for purposes of auditing. While such legislation may lead to new AHSAA rules that prevent the kind of situation that befell Davenport, it would not help her out.
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.