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Monday, July 30, 2007
Disparate Treatment at the Soccer Field?

I first want to thank those at Sports Law Blog for giving me the opportunity to host for the next week or so. Hopefully, the topics, views and analyses expressed will contribute to the discussions in the fast-changing and fascinating field.

Last week, Newsweek published a special issue titled "Islam in America." devoted to the many facets and issues involving Moslems living in the United States. One of the articles, "Moslems and Soccer" caught my eye as it dealt with disciplinary actions late last year involving a high school soccer team of Yemeni-Americans, many of them second or third generation, in Lackawana, N.Y., an industrial town, outside of Buffalo. In 2002, six Yemeni-American men, were arrested, pleaded guilty and jailed for training in Al Qaeda terrorist camps.

The article states: "A flare up last October involving the Lackawanna High School varsity soccer team illustrates how the terror case still vexes the entire community. After losing a playoff match against Akron (a whiter, wealthier nearby town), Lackawanna players spit and swore at the other team, according to reports filed with the Lackawanna School District. Some of the players even turned on their own coach and athletic director, directing abuse at both. One team captain was arrested on harassment charges for allegedly shoving an official, but the charges were eventually dismissed. In November, the Lackawanna School Board voted unanimously to suspend both the varsity and junior varsity programs for a year, tacking on 3 years of probation after that.

On one level, this determination is based on egregious unsportsmanlike conduct. But things become cloudier. Questions arose because the school board decided to punish a junior varsity team that had nothing to do with the event. No reason was given and unless there were some other facts we do not know, it does seem arbitrary to impose a one-year ban and a three-year probationary period for actions that the younger team did not commit. And, one cannot escape the political realities of a team composed of Moslems at a time of underlying tensions caused by the convictions of the “Lackawana Six.”The team’s coach (and uncle to one of the Lackawana Six), was quoted as saying the punishment was more severe because of the terror case. But the superintendent for the school district said the incident was merely the “last straw” in a long history of bad behavior by the soccer teams. The superintended added that the school board's punishment was a pre-emptive action to avoid an even more severe sanction by the regional high school league.

The Newsweek article notes that these players have been the subject of anti-Moslem taunts during games, but referees noted that team has accumulated more red and yellow cards than any other program in its league over the past six years. Clearly, these boys play soccer with (take or your choice) more passion/aggression than other teams. As the team's coach stated, "Soccer is the only sport in Yemen,” he says. “Yemenite youth take it seriously because nobody wants to lose. We start them at age 5. We go hard to the ball.”

I checked the New York State Public High School Athletic Association's men's soccer handbook for Region Six (which encompasses Lackawana) to read about the disciplinary procedures for its member schools. The document only gives general discussion on the importance of sportsmanship, and, interestingly, about respecting the cultural and ethnic diversity of one's opponents. It does not give any guidelines about discipline. Therefore, the procedures rest with the local school district.

However, the school cleverly avoided what would have been a constitutional claim because the actions were extra-curricular and not part of the school day. In such cases, schools have greater discretion in punishing because it is a privilege, not a right to be a member of a sports team. Because the students were not suspended from their right to come to class, the school dodged the due process bullet. With a contrary result, a due process hearing would be required and in such an environment, any discrimination claims, such as the alleged disproportionality of the sanction would come up.

Although state sports associations encompassing public schools are generally state actors under the 2001 Supreme Court opinion in Brentwood Academy v. TSSAA, I don’t that the case pertains to disciplinary actions involving student-athletes. Even if state action would apply here, I do not see how a court would overturn a determination based on the facts such as those presented. The teams’ suspensions were a direct effect from of the on-field conduct, rather than the religion or ethnicity of the students.

But even as I write this, the suspension of the junior varsity team is troubling. I wonder if the decision was a disparate treatment or whether there were circumstances that we do not know that justified this action.


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