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Wednesday, January 31, 2007
Sports and Due Process (Or More Looking Over Game Officials' Shoulders)

O.J. Mayo of Huntington (W. VA) High School, purportedly the best high-school player in the country and bound for U.S.C. next fall, played in a high-profile basketball game Tuesday night against Lakewood (CA) Artesia High School. This was one of those increasingly common made-for-TV games; this one was played at Duke's Cameron Indoor Stadium between top-ranked high school teams, neither of which is particularly close to Durham, NC. Mayo scored 19 points before fouling out in Huntington's win.

This is worth mentioning on Sports Law Blog because Mayo needed a court order to play in the game.

Mayo (along with five teammates) was ejected from a game last Friday night. Mayo received two technical fouls, the second for taunting opponents after a second-half dunk. That technical lead to an on-court scuffle between players on both teams. Video is here. After the second technical, Mayo followed the official to the scorer's table; he and the official made some body contact (how much is in dispute) and the official fell to the floor. Under West Virginia Secondary School Activities Commission (SSAC) rules, a player ejected from a game is suspended for the next two games. And a player who in protest makes contact with an official can be suspended for up to one year.

But hours before Tuesday's game, Mayo won a Temporary Restraining Order from Cabel County Circuit Judge Dan O'Hanlon, allowing him to play in the game and prohibiting SSAC from enforcing its suspension rules until a hearing on February 9 to determine what process SSAC must give Mayo before suspending him. Stories here and here.

I have not read the court's order and am working off sports media reports, which often do not accurately capture legal detail. The stories contain pithy comments from one of Mayo's lawyers about how the players "deserve an opportunity to be heard before they are denied the chance of a lifetime because of an arbitrary enforcement of a rule they did not intend to violate." And another lawyer (who also is an assistant coach) insists Mayo did not intend to make contact with the official and, if anything, it was the ref who initiated the contact. You get the idea. I am opining off less-than-complete legal information.

That said, I cannot understand how the court could issue this TRO. I do not see what process Mayo should be entitled to that would allow him to avoid at least a two game suspension.

Take the ejection and put the bumping to one side for a moment. The SSAC rule is clear and (I believe) unequivocal: If you receive two technical fouls and/or are ejected, you sit two games. The only question is whether Mayo was, in fact, ejected because he received two technicals. That fact seems undisputed and indisputable. A hearing or other process from SSAC does nothing to change that. The rule is not being arbitrarily enforced--it kicks in whenever a player is ejected, as Mayo assuredly was. And whether Mayo or the other players intended to violate this rule (the point the attorney/coach made) is an utter non-sequitur; I assume no player ever intends to get two T's or intends to get ejected from a game. Intent is irrelevant to the rule.

So if a hearing will change nothing about the two-game/ejection suspension, the TRO should not have issued. One thing a plaintiff must show in order to get a TRO is that he is "likely to succeed on the merits"--that the claims he is bringing has merit. Mayo is making a due process argument, which means he has to show that he is entitled to some process and that it would make a difference. I do not see how it makes a difference as to this rule.

Unless, of course, Mayo wants a hearing so he can argue to SSAC that it should reverse the referee's decision to give him the second technical. If so, that is an extremely dangerous and bad idea, for reasons similar to what I discuss in an earlier post. Game officials have a difficult enough job without fear that their immediate in-game decisions, such as whether to call a violation, are going to be subject to reversal from above when they call something on the wrong player (a top-5 national star) at the wrong time (on the eve of a mythical national championship game). This is an example of the type of discretionary decision that must be largely immune from review if we want refs to be able to do their jobs. The notion that Mayo has a constitutional due process right to a hearing to ask SSAC to reverse the official's in-game determination would make sports contests ungovernable. This would set a bad precedent.

Now, the potential suspension for bumping the ref is a different story. Whether a bump occurred, whether it was intentional, and whether it was "in protest" all are in dispute and all are necessary for application of the rule. Plus, whether a suspension should occur and its length are within SSAC discretion, probably depending on the severity and intent behind the contact. A hearing is necessary to resolve those factual issues, so Mayo is entitled to some process before a bumping suspension is imposed.

But that alone does not justify the TRO that allowed Mayo to play on Tuesday. It seems that Mayo should have to sit, at a minimum, two games--the Cameron game and one more--as punishment for the ejection. Anything beyond that would be punishment for the bump and he is entitled to a hearing before such additional games are added.

But there was no reason for the court to interfere now. At least no reason beyond everyone wanting to see O.J. Mayo play in that particular game.


The decision is probably correct. The sports association is a state actor and thus must provide constitutional due process before depriving people of benefits. See TSSAA v. Brentwood Academy (note cert. again granted here on January 5, 2007). What process is due to a high school basketball player suspended for disciplinary should be similar to the protections afforded to students when they are suspended for disciplinary reasons. At a minimum, students have a right to be heard on their side of the story. See Goss v. Lopez, 419 U.S. 565 (1975). Because Mayo was not given an opportunity to be heard before his suspension, the association was properly enjoined from suspending him.

Perhaps you could argue that, because attending school is a more important right than playing high school sports, more process is due regarding school suspensions than sports suspensions. I do not find this argument compelling.

Anonymous PK -- 2/01/2007 9:07 AM  

Constitutional due process analysis looks, in part, to what process is due--that is, what level of hearing or process a person is entitled to, whether before or after the deprivation (he need not be pre-deprivation). The entitlement to process is grounded in the need to avoid erroneous deprivations. So, in part, we look to whether a hearing could have any practical effect on the outcome in the sense of helping to avoid an error under the applicable rules.

The opportunity to "be heard on their side of the story" applies only if there is a story to tell that might affect the decision. That is not likely here. The rule says if a player is ejected, he is suspended. So what could Mayo's "side of the story" be? That he was not suspended? There no dispute about that. That he should not have been ejected and the game official was wrong to do so? That is precisely the inquiry that I am suggesting governing bodies should not make and should not be allowed to make.

Suppose a school had a rule that if you are absent more than 5 days in a semester (regardless of the reason for the absence) you are suspended for two days. There is no question that Student A was absent more than five times. Under the rule, he should be suspended. There is no story he could tell and nothing he could say to change the application of the rule.

Blogger Howard Wasserman -- 2/01/2007 11:04 AM  

Well done. I agree with your analysis. The rule being applied, the suspension was automatic, there was no discretion. There was no valid grounds for a TRO, except for the bright lights of a basketball game. Sad commentary on life at this point.

Blogger qtlaw24 -- 2/01/2007 2:46 PM  


It is a question of fact whether he received two technicals. It is a question of fact whether he bumped the referee. The fact that IN THIS CASE the technicals were observed by everyone, even a "busload of twenty passing bishops" does not change that fact those are questions of fact which Mayo could in theory dispute at a hearing. Procedural due process ensures that he gets that opportunity, even if observers are sure what the result of that hearing will be.

Essentially, you're argument is that when the evidence is overwhelming a hearing is unnecessary. That is not the law.

Anonymous PK -- 2/01/2007 3:19 PM  

"Under the temporary restraining order, O'Hanlon also barred the WVSSAC from imposing a rule that says if a student plays under the terms of a court restraining order that is subsequently reversed, the WVSSAC could force the team to forfeit victories in which the student played." Bryan Chambers, The Herald-Dispatch, 1.31.07

Not only did Judge O'Hanlon allow Mr. Mayo to play, but also put the results of the game beyond the reach of the WVSSAC should his decision be reversed by a higher court.

A judge has taken the consequences out of a rule designed to protect equity and safety in play. I agree with Mr. Wasserman that this will set a bad precedent. Coupled with some of the conclusions from "Flagrant Foul: Racism in the Ron Artest Fight" by Jeffrey A. Williams(which you can find in the archives of SLB), this has wider implications for the health of the game.

Glenn Blakney

Blogger gblakney -- 2/01/2007 3:23 PM  

According to the talking heads here in West Virginia, the main reason for allowing Mayo to play was that in the contract to play at Cameron Indoor it was written that barring injury Mayo MUST play in the game.

Basically, allowing him to play was more important money wise than enforcing the rules.

Anonymous Shawn -- 2/01/2007 11:43 PM  

A few quick points:

>>> In almost every league at every level--high school, college, international, Olympic, NBA/professional--two technical fouls is AUTOMATIC ejection from the game for players. (There are exceptions at some levels for coaches; for example, it takes three bench tecnicals to eject a coach in college.)

>>> Suspensions for actions after ejection usually can be appealed; automatic suspensions for ejections can't be appealed.

>>> Why wasn't the player on the other team, who threw a forearm/elbow into Mayo's chest after Mayo was "T" 'd up, also given a "T" (and possibly ejected)?

>>> The other question is whether Mayo bumped the official sending the ref to the floor. That suspension CAN be appealed (would love to see a view from another angle), but even the "supporters" of Mayo's "rights" should have know that bumping a ref is one of the absolute "no-no's" in sports!!!

Melvin H.

Anonymous Anonymous -- 2/02/2007 11:31 AM  

The question is not whether Mayo's side of the story is worth hearing, it is
whether a high school basketball player who has been suspended from a
government sponsored activity's story is worth hearing. It is, and so is
Mayo's, regardless whether anyone believes he has much of one. A right to
be heard for a class of folks (high school athletes) does not depend on the
substance of an individual case. One can't even know whether there is
substance to his argument unless you allow him to be heard.

TRO's also look at the interests and harms involved. Anyway this case
shakes out, there is absolutely no harm to the athletic association. A two
game suspension is a two game suspension, tomorrow, next week, a month from
now; unless of course we are trying to harm Mayo in a special way.

My good friend Howard's point depends on his assertion that sports is
ungovernable if referees decisions can be reviewed by athletic associations,
and those decisions by athletic associations being required to follow a
consistent and regularized process, as contemplated by the Constitution. I
disagree. The interest of referees to be free from scrutiny cannot
supersede a citizens right to Constitutional protections. Too often in our
history, justice is to individuals denied for too flimsy a reason. That
Constitutional protections encroach on the freedoms of others is simply a
fact and a cost to be lived with.

Plus, its not much of an encroachment. In fact, its not an encroachment at
all. To seriously put on quality sports contest, one needs quality
referees. That requires review and supervision. Sports associations review
referee decisions all the time. They are even penalized by their leagues.
Musn't they, even if just from a quality control standpoint? That hasn't
destroyed the game. Or made it unrefereeable.

It is doubtful that the referee said to Mayo, "I am going to get you out of
this game, and your next one two." But if he had, my dear colleague's rule
would prevent Mayo or any other high school athlete from doing anything
about it.

Also remember, it is not the courts that will review the referee's
decisions, the question is what process does the high school association
have in place for the association to review those decisions when they
penalize a participant (who has neither millions of dollars nor a union),
and whether that process ventilates the issues and protects from erroneous
deprivations. If they have no process at all, this is another in what will
be a long history of slam dunks for Mayo.

Blogger SmittyBanton -- 2/02/2007 2:33 PM  

SmittyBanton's initial point is a good one--from the SSAC's standpoint, it does not matter which two games Mayo sits out. And that perhaps played a role in the "balancing of the equities" that the trial judge performed in deciding whether to issue the TRO. Although what do we do if Mayo gets two technicals in the state semi-finals during his senior year, when he only has one game left in his career . . .

But as to the other point: I am not suggesting that game officials should be free from scrutiny. Their decisions and their performance should be scrutinized and evaluated. And, if necessary, they should be sanctioned, reprimanded, or even dismissed for poor performance. But that is not the same as saying their in-game discretionary decisions should be subject to review and reversal by what is essentially a legislative/executive body.

To take it out of sports for one second: One core principle in the discussion over judicial accountability/judicial independence is that we should not interfere with decisions already made and finalized. We should not re-open a final judgment, decide that some discretionary decision was incorrect, and therefore undo that final judgment.

Back to sports: SSAC could say "this ref was wrong in giving Mayo those technical fouls and the fact that he did so suggests that he is not a good official and we should not hire him back next year." That is subjecting his decision to scrutiny and holding him accountable.

But SSAC should not say "he was wrong to give Mayo those technical fouls and therefore we will re-open that decision and retroactively revoke the T's, treating them as if they never were assessed, thus taking away the basis for suspending Mayo."

This is what I think would make games ungovernable. Not accountability and scrutiny, but this type of scrutiny.

Blogger Howard Wasserman -- 2/02/2007 9:55 PM  

Halk Bilimi
Türk Sanati

Anonymous Halk Bilimi -- 1/31/2009 4:21 PM  

Interesting post. Sportsmanship is important, but overly penalizing someone like this might not promote sportsmanship like the goal would be to.

Anonymous Players Inddor Naperville -- 10/09/2013 4:30 PM  

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