By Patsy R. Brumfield
Daily Journal
ABERDEEN – A federal judge must decide Friday if a group of high school soccer players can participate in both their school teams and independent club competition without losing eligibility.
High school soccer season begins Monday.
Today’s hearing aimed at whether U.S. District Judge Sharion Aycock will issue a preliminary injunction to stop implementation of a new rule blocking participation on both.
At issue is whether 16 high school soccer players – from Tupelo and Starkville – must decide whether to play for their high school teams or on independent or “select” teams, because of new participation rule by the Mississippi High School Activities Association.
MHSAA, a Jackson-based nonprofit, oversees the state’s secondary schools’ academic and athletic competitions.
Jeff Trotter, MHSAA’s attorney, told Aycock that the soccer players’ participation rights are not violated by an MHSAA rule because they have no “legally protected interest” to participate in athletics – it is a privilege, not a legal right.
The soccer players, through their parents and guardians, sued MHSAA and others in September, insisting the new rule violates their rights to equal treatment under the law. They say the MHSAA rule creates two classes of student athletes based on private activity outside of school activities.
Other players in high school sports generally are not affected by the rule because their regular seasons and “select” team seasons are at different times. Not so for soccer.
The players are represented by Tupelo attorney Mark Halbert. Jeff Trotter of Jackson firm Adams & Reese is lead attorney for MHSAA and Ben Griffith of Cleveland represented Tupelp Public School District.
The MHSAA rule at issue: Rule 6.2.1 – Called the “50% Rule.” Adopted in 1999.
“During the school’s sports seasons as independent team (i.e.: club team, recreational team, select team, elite team, all-star team) can be made up of no more than 50% of the number that make the starting number of players for that sport at any one school. (Ex.: 4 players from one school may participate on a baseball or fast pitch softball team, 2 basketball players, 5 soccer or slow pitch softball players.)
From 2006 through 2013 school years, an exception existed for soccer players, but it was removed for the 2013-14 school year.
• • •
(Below is a running account from the hearing. Please excuse the typos and other glitches likely as I type rapidly. Some elements are paraphrased.)
2:45 p.m. – Many or most of the soccer-player plaintiffs are in the courtroom, along with parents and/or guardians. (Judge Aycock takes a brief recess from various criminal guilty-plea hearings she’s presided over after noon.)
2:57 – Judge Aycock returns to bench. Motion for temporary restraining order.
Mark Halbert recognizes others at counsel table. Jeff Trotter represents MHSAA, whose director Don Hinton is with him at the table.
JUDGE – Motion for a temporary restraining order. REad most of their materials. What I’d like to do, Halbert, give you time to summarize for the record for TRO. Same for defense counsel. Honest with you, I’ve got some questions… deal with as much as understanding how the rule impacts as much as the legal issues behind it. Understanding of purpose of rule, how it affects soccer and other sports, practical implications.
HALBERT. 3 P.M. – Case is about what’s been called 50% Rule. Applies to all sports but doesn’t allow independent teams to compete during school year with more than a soccer team… based on number of players to take the team … rule means half those from independent teams. We contend it creates two classes of students. Some can play on hihg school teams, but other class – if there are more than half as independents, they cannot play. It’s private conduct but they don’t get the same benefits by MHSAA and districts that enforce the rule.
Until 2006, MHSAA began interpreting that rule applies to entire school year. Same issue with soccer community. Petitioned MHSAA and soccer players were excepted. Rule only pertained to “starters.” All players could be on the high school team but they could not start more than 5 of them. For this past year, we don’t know why, MHSAA decided to remove exception for soccer. Problems arose. WE have plaintiffs who made the high school team, but played on indy team, they were cut and couldn’t play. We think that’s unequal protection under the law.
Many cases across the nation, but many of them had prohibitions just for the seasons. These player play outside season on indy teams. When they get to school, they have this restriction. This is different – two different groups, same benefits, being treated differently. Rule hasn’t been litigated anywhere as far as I can tell. Treated unequally.
If we don’t have an injuneciton by Monday, beginning of season, these kids won’t be able to play. They will miss playing with team, miss games. Asking for TRO to allow them to play and go under old rule, with exception, until case is decided.
JUDGE – Under last rule … what effect it would have Monday?
HALBERT – We wouldn’t be here. All of them would be on teams they made. After rule came into effect in August, players who originally made the team but played indy had to try out again and some got cut. So far, we’ve heard that rule is designed to prevent all the starters from playing together. Like last year’s rule. This year, … we have 4 Tupelo players, 12 Starkville plaintiffs. STarkville all play on same indy team. Come Monday, they are at risk of being ineligible. Injunction necessary for them to play on school team.
TROTTER – Two fold argument: First, that plaintiffs have no standing. At issue, isn’t unequal treatment … in MS, students and parents have no standing. True, not cases about soccer or a rule that excepted them. But general rule, if no legal right to participate in high school sports, it’s a privilege. Second, even if we get to unequal treatment … rational standard applies … reason for this rule, why schools are involved and why they amended this rule. MHSAA made up of all the state’s high school members – over 500 schools. They delegate authority to regulate to MHSAA. They make the rules. They go through legislative process to make the rules.
Went back to soccer exception, and change passed through all parts of the process. Not a case that an officer interpreted… it’s been rule adopted by the association, includes Tupelo, Starkville and others. That means not arbitrary … adopted by the membership. Basis – to put soccer on same footing as other sports.
JUDGE – WHY?
TROTTER – Removed the exception. Now, all sports on the same footing. Purpose? To prevent schools from having select club teams from being on h.s. team all year long. Some places don’t have club teams. One reason. Other – participating at high school level. When we look at equal protection challenges, we see situations … they say ban on participation of select for high school teams. In ours, we have a more lenient rule – we will try to find middle ground. Part of reason is to allow them to play club soccer as much as is fair. Prevents a school with one club team from putting their hs team on the club and playing year around. We suggest that regardless .. it’s rational basis.
LAWYER – On behalf of Tupelo High School … asked to approach exec committee and look at problem areas. That was done, not out of unconstitutional defects but concern of wisdom of the application per students and parents. WE did our best. We are here, from school standpoint, our hands are tied as members of MHSAA. Bound to enforce those rules. If counsel… if this is unconstitutional … it will require showing of absence of rational basis … My concern, school is caught in the middle… doing all it can to work through legislative process … about rules. We are here, as defendants, in official capacities. This is an ongoing process. If exception is to be removed … part of the discussion. If that should be done, it’s part of the process to be left to the school officials and the association. As for a constitutional violation and legally protected interest … a right … that’s not this case. From TPSD, it should not remain involved as a party to this case.
HALBERT – Trotter said a few things to draw attention. Per motion to dismiss … about no legally protected interests … courts have decided that claim. What is happening in eligibility cases, there is no unequal treatment. Cites Chapman v MHSAA, dismiss was denied on standing. Made an argument, no constitutional right to play hs sports. In that case, Southern District denied it, because plaintiff alleged they were part of a separate class of race. Another case … Lorenzo v MHSAA … Senter dismissed claim based on motion and arguments that no right to participate, but 5th Circuit said sufficient facts to support federal jurisdiction. (This case was Oxford, about eligibility.) Court said claims to be decided by the court.
The point is – equal protection is a separate legally protected interest. Not about participation. But that we were not treated equally. Creates two classes of students. Equal protection claim. Trotter went beyond Hinton’s affidavit, who said purpose was to keep starters together. This rule bans all players… during sports season. Doesn’t say school year. (Handbook contradicts.) We think students can play on Monday. Restricts the coaches … says any team that resembles the hs team. Challenge arbitrary rule.
Rule is preferential to elite players. Must choose between hs and clubs. For summary judgment motion, we think this case should go forward. Highly unusual not to ahve a chance to challenge claims. We’re asking for preliminary injunciton. A key issue is whether we have right to succeed on the merits. If we can’t do that, we’re not entitled to an injunction. Court can hear this today.
JUDGE – Do you intend to call witnesses? Halbert – yes. Call first.
HALBERT – CALLS DON HINTON
HINTON – MHSAA executive director. (Halbert – parties will stipulate to a number of exhibits. MHSAA handbook, Section 6 on sports seasons, MHSAA sports calendar, letter from attorney to former MHSAA exec director, letter from exec dir to attorney, another letter from exec dir to attorney, another letter from exec dir to attorney, MHSAA 2012-13 handbook, affidavit of Hinton. Counsel, no objection for enter into record.)
JUDGE – MR. Halbert, I think my son played soccer when he was in the third grade. Don’t think you will insult my intelligence about the game. I need to understand how rules impact the game and other sports. (Halbert – we will call witnesses to help do that.)
HINTON (HALBERT TO QUESTION) – MHSAA director began July 2011. Formerly on its exec board. Before 2003, on exec committee… since 1997. Representing Gulf Coast area. Succeeded Dr. Enis Proctor as exec dir. MHSAA sets rules for eligibility. 264 high schools, 309 middle schools. (Reads its mission.) (Schools have delegated authority to MHSAA and agreed to apply and enforce the rules?) Yes. (Rule making through legislative council and exec council.) Have councils throughout the state, comes to district, then moves forward to exec committee.
(Process in place in 1999?) We’ve been association since 1922. (Rule … reads 50% rule …”starting members” of any particular sport …applies to during school’s sports season?) Yes. (You interpret season as entire sports calendar from August to May?) Yes. (Rule 6.2.1 – sports season … applies to entire year?) Yes, during those 16 sports seasons, they last the whole year. At end of year, the sport season is over. We have sports the entire year. (Purpose – to prevent unfair competition … to keep club members from playing year around?) Right.
(Let me be specific … Paragraph 8 … purpose to prevent specialization to prevent starters from playing year round on independent team?) Yes. (Next graph … if allowed, advantage to school that could keep its starters all year long?) That is what I said. (Basis of rule since 1999?) Section added 2006. Basis, to keep players from playing together on a team so would not have a competitive advantage against schools that did not. (In 2006, exception … soccer only?) Yes. (Applied only to actual starters?) What it says.
(Exception was put in after controversy arose over MHSAA interpretation of 50% rule?) I wasn’t there at time, but I know questions arose about rule. (After controversy, exception entered?) I’m not sure that’s why. I wasn’t there. No knowledge of that. (Show you exhibit … letter Oct. 5 .. Proctor letter is by Jeff Stewart from Hattiesburg. In letter, highlighted … says Stewart says … communication at Oak Grove HS pertaining to independyt teams…. Rule is ambiguous about school season… ) Yes. (In 2006, this issue came up about interpretation of season?) I see it. (Stewart goes on … would appreciate your response in writing regarding this point since soccer season is fast approaching… some students to play select… affects both programs. Ask expeditious response. Correct?) Yes.
(Now show you another exhibit … MHSAA letterhead, Dr. Proctor… response to Stewart Oct. 6, 2006?) Yes. (See highlighted part … rule voted on and approved by members … to prevent specialization … on all sports sponsored by the assocition. Right?) Yes. (Doesn’t say to prevent starters participation on independent team?) Right, his interpretation. (Proctor says applies to travel teams only, not recreational teams. Right?) Don’t agree with that interpretation of the rules. (Differ from Proctor?) Yes. Indy is considered recreational. (Church YMCA, anything?) Yes.
(Show another Proctor letter Oct. 4, 2006 … to Stewart. Says … let know in conference call … responding to letters. Right?) I’m just now reading this, yes. (As exec dir, current rule will be waived and association will go back to old rule … no more of team of 50% starters from any indy team?) Yes. (He says soccer rule is old one, related only to starters, not all players?) Seems to be what he’s saying. (Proctor says … will allow more to travel. He changed the rule, even though it had gone through legislative process?) Yes. (Yet, when an issue, association changed it without going through legislative process?) To change, it must have gone through executive branch. (He says he’s waiving it?) Yes. Don’t see “permanently.”
(He waives it?) Yes. (Next, Proctor says soccer season is different from other sports because some other teams can stay together through the summers.) Yes, I see that. (Soccer players don’t have opportunity to play in the summer?) That’s what the letter says. (Finally, he says MHSAA look to modify rules to benefit of all athletes. Is that still the position?) It is. (Another Proctor letter Oct. 17, 2006, to Stewart … he says, received letter about discussions on phone. States his understanding of request … applied agreement to all soccer teams, not just Hattiesburg. Agreements to go to MHSAA exec committee as form of clarification of 50% Rule to formalize. Right?) What letter says.
(Proctor continues …. we will interpret rule for soccer coach to designate no more than 5 starters from indy teams. Does not limit number of players on high school team from indy team or from several indy teams. Coach limited to no more than 5 starters from same indy team. Correct?) Yes. (Exception 2006, right?) Letter from Proctor to Stewart. Exec Committee meeting … 15 members … letter to Stewart. When meeting occurred in November, this definition was not a part of what was presented to the executive committee … in 2006. (In 2006, this letter … acknowledges agreement?) Yes. (Then exec committee adopted soccer exception?) Yes.
(Another exhibit … 2012-13 handbook … Page 17 … new rule 2006-2012?) Yes. (This rule became exception .. starters identified by coach. All others can play on hs team?) That’s correct. (Back to Letter P … “during school’s sports season?”) Yes. (Doesn’t say school year?) No. (Later in that rule … says personnel cannot coach indy teams during school year. Only time “school year” mentioned?) Correct. (Not sports season?) Yes. (Purpose this past year to remove exception, to make soccer same as other sports?) And for fair play and student participation purposes on all sports. (I understand … you say 1999 rule to promote fair play… now asking removal of soccer exception, to make soccer same as other sports?) Yes. (No other reason?) Yes, also for fair play and participation.
(Any studies done about impact of this exception on soccer versus other sports?) No. (Any issue came up about problem created by this exception?) Yes, our schools have issues with students that do not participate in other sports because they are specializing in one sport. And do not participate … in other sports. (Ever had any discussion as association about potential in over specializing in football?) Yes. (Rule … about football … allow students to have strength training time with coaches, have spring training, in summer they can participate all summer with team and players?) Yes. (To extent indy teams play … in summer, football is all year?) Yes. All of our sports can.
(I was looking at South Panola … it is a perennial football power?) Correct. (South Panola has 9 sports, including football cheerleaders. Know that?) No. (They don’t have soccer team?) Discretionary. (Tupelo HS has 18 sports?) Discretionary. (How many times THS has won all-sports awards? 18 years?) Not through association, that’s local newspaper. (THS has done it 18 out of 25 years. Problem at THS with specialization in one sports?) No, I haven’t had that problem. (Looked at website about championships… a lot by South Panola. Haven’t seenthem win anything else? Know of others?) No. (But you’re concerned about soccer that might keep kids from playing other sports?) As exec dir, I apply the rules set by our member school reps for our schools. That is the rule for 50%. Specialization is an issue, as other,s fair play. Reasons schools chose to do this.
(In 2006, MHSAA concerned about players playing together all year. Right?) Yes. (But adopted exception for soccer, why?) According to dr. Proctor. (Aware when indy soccer is played?) In the fall. (HS is winter?) Correct. (Exception for soccer .. prevented all starters from playing on same team all year round?) No, not summer. (During school year, prevented indy starters from being on same team?) Prevented more than 5 starters on indy team … from playing on same team. Five could play on another team. (Aware 11 players on soccer team? So, 5 starters on hs team …. so more prevented from playing from same indy team?) Yes.
(Exception for soccer is only part of the rule that pertains to starters?) Let me read it. Yes. No… let me read it again. (Halbert shows him rule. … Soccer exception only part of 50% rule that limits number of starters who can play together?) That’s correct. (So 5 players on same indy team can play on hs team?) Yes. (So rule as you interpret it, allows those same players … to continue year round as well as represent their hs.) Yes. (If indy team has more than 5 players … can’t play on hs if stay on indy team?) Correct.
(So, in case of Tupelo High… 10 players from same indy team. Trials took place, 5 would be picked and other 5 had to choose between hs and club soccer?) Yes. (Those 5 get to specialize in soccer all year round?) Yes. (Best 5 get to do everything?) OBJECTION – OVERRULED. (So those better players get to keep on specializing in soccer/) Yes. (The other 5 relegated to club or high school, but not both?) According to the rules.(Preventing those 5 from same opportunities as other 5 who get to do both?) According to the rules. (Know what those other 5 are … who don’t get to do both at the same time?) Only club soccer. (What is soccer is all they want to play at their school?) Can’t, according to the rule.
(Ask you about sports season… section 6 … looks like this section was completely new this year?) I’d have to see it again. (I’m talking about the whole rule … [shows him old and new handbooks] …completely changed?) Format, some wording to be better understood. Took two years to completely reformat it. (Season section is new?) Yes. (Season wasn’t definedin old one?) Right. (Had to see calendar for season?) Yes. (Rule defined it?) No old rule to do that. (Look at Section 6 … “designate season length to provide balance for the academic calendar and to afford students option to compete in a variety of sports through the school year.?) Yes. (To prevent sports from overlapping?) Yes, some do overlap but it designates seasons. (According to the rule, principals and AD required to carry this out for sports seasons?) Yes.
(Look at these seasons … diversification and variety of activities is good?) Yes. (Encourage athletes to participate in variety of activities?) Yes. (Agree that shouldn’t try to limit opportunities?) Yes. (Some unique situation … in MS … that makes it different from other states?) No. (What about Louisiana?) All states have different rule interpretations, activiites, way they conduct their seasons. (All states interested in fair play and variety of opportunities for students?) Yes. (Louisiana has no restrictions on indy participation?) Familiar with some policies, but no. (Shows him … exhibit P-8 … Louisiana handbook excerpt… Pg 46 … section “sports seasons.” See that?) I do. (Section 4.1.1 … etc. … compares with MS section. Similar?) Yes. (It looks like you copied Louisiana for sports seasons. Show it to you again. Look at yours, at theirs … I’ve highlighted the exact wording on your rule. See that?) I do. (Above … compare La and MS about diversification of activities. Goes to specialization?) Yes.
(Sections nearly identical, right?) Yes. Yes, it is. (Go to 4.1.2 …. down. It defines sport season… from opening game to last day of the season. Correct?) Yes. Sports season. (4.1.3 … identical to yours? or nearly?) Yes. (6.1.3 section limits coaches and others from going outside that sports season and have meetings, practices, gatherings of athletes in the school? Correct?) Yes. (6.1.4 almost identical to Louisiana … limits activities school can sponsor organized outside of actual sports season. Correct?) Yes, talks about use of school facilities etc. (Continues … showing him sections identical to MS rule… 4.1.2 – defines indy team… compares with MS. Louisiana rule says … when student on hs team, loyalty should be directed to the team. May not participate … in that sports on an indy or non-hs team. Correct?) Yes. (LA – no restriction on indy teams outside actual sport season?) No. (Your rule … however … section 4.2.2 Louisiana similar to your 6.2.2 rule?) Yes. Partially. (Defines team equipment … rule skips down to 4.2.5… about student is a member of hs team cannot participate in any unattached team in that sport. Right?) Says unattached individuals. (Once you’re a member of the team, you have this restriction?) Speaking of a student, yes.
(Skip down… other participation … have the 50% rule … this rule provides for certain legal participation. Right?) Yes. (So these exceptions allow for … state in what situations a person during the sports season can participate in a camp, a try out, a road run or be on any other team?) Not during the sports season. (Doesn’t refer to school year, it restricts activities of a sport during same season of a sport, right?) Yes. (Now, under your interpretation of the indy team rule during the sports season, if you comply with 50% you can do whatever you want during the school year? A student?) (You do not restrict indy participation during the actual season of their sport?) Right. (Student could go to hs team, practice, play, and also go to indy team so long as he’s within that 50% on his hs team?) Yes. (Can specialize in soccer during entire school year, is there?) No.
(So if students can continue on indy team during hs season, why do you have exceptions during hs season?) They can play on another team. WE don’t regulate during sports season. (Wait a minute …. you said can’t be in a camp … you allow kids to do what want on indy team under 50% rule, but then add exception if their participation is unlimited?) We do not regulate these activities … OBJECTION
(Under 50% rule, participation is unlimited so long as indy team doesn’t have more than 50 % of high school team?) Yes. (Indy player has no restrictions if indy team doesn’t have more than 5 soccer players who also are on hs team?) Restrictions outside school season for participation. (What restrictions?) You talking about 50%. (Those 5 players can do anything so long as school isn’t involve?) Right. (Why do you have exceptions related to season?) Rule applied by member schools. (Why have two sections … if can do whatever they want during entire year… for showcases?) They were affecting our teams and coaches . Players wanted to have showcases on weekends. We limited it to two. (Earlier you said they could do whatever they wanted?) We have exceptions for number of showcases. (So it’s not unlimited?) correct.
(Particiption on indy team in sport different from MHSAA team … why do you have that exception if under 50% if you can participate iin unlimited way?) We said they could participate in other activities during school year. (This exception doesn’t need to be there? As indy, can play as much as you want … but your example deals with the sports season?) Yes. (You copied these rules from State of Louisiana?) No, we looked at several different states. Looked at different handbooks, we have rule variations. (But this section … looks a lot like Louisiana?) Yes it does. (Louisiana has different purposes? Doesn’t restrict during off-season?) Yes. (Look at 4.2.9 … you copied same language?) It looks like it. (All these restrictions related to during sports season?) Looks like some do. (Most of them. Only one see that’s different is for showcase, in your rules, not in these rules. [reads about showcases] Reason from LA. is they don’t allow any indy play during actual season?) Yes.
(Louisiana … rule is concerned about what students can do during their sports season?) Correct. (Not during its sports season?) Yes. (What can do during your same sports season?) Yes. (You adopted these rules, but yours don’t restrict during the sports season?) No. (Only basis here is your interpretation of “during your sports season?”) OBJECTION – overruled.
(In your rules for indy teams… 6.2 section .. no where do you refer to school year, do you?) No, this is about attached individuals. (Only place is Section 6.3… out of season during the school year, see that?) Yes. (Same as Louisiana rule… reads it. Identical?) Yes. (Schools shall not require … this limitsin off season wht schools can do?) Yes. (Team which resembles school team cannot compete outside school year? Doesn’t that keep a school’s starters from competing all year round?) No. (Why not?) It’s talking about a school sponsored team resembling a school team. (Does it prevent school from having a team play all year around?) Yes.
(Next sentence in your rule … no indy team can have school personnel present. Correct?) What is says. (Says indy team or group resembling school team CAN compete as long as they aren’t in a school facility and school personnel aren’t there?) Yes. (Students may participate voluntarily as mebmer of non-school team on an individual basis. Correct?) Yes. (Out of season, during school year?) Correct. (Assumes all these plaintiffs are on indy team this fall … nothing in Rule 6.3 that prevents them from being on their hs team next week?) It is in our 50% rule. OBJECTION – OVERRULED.
(UNDER RULE 6.3…. NOTHING to prevent them from playing indy in fall and on hs team next week?) Yes, 50% rule.(Under rule 6.3… nothing that prevents them from playing on hs next week, even if they played on indy team with more than 5 players from the school team?) The 50% rule would. (6.3 governs out of season, during school year. Nothing that prevents next week?) No, not in that rule. (Only restrictions out of season are related to schools and school officials and their involvement with indy teams?) Correct. (So if you’re concerned about schools keeping teams together, Rule 6.3 prevents that doesn’t it?) Yes.
(Let me get this straight with Section 6, sports seasons rule. Defines it?) Yes. (Season per sport?) Yes. (Section 6.1 limits coaches from violating seasons with participation outside those seasons?) Correct. Limited to those seasons. (Purpose of defining … so coaches won’t violate and allows kids to participate in more sports?) Yes. (Section 6.2 … cover indy teams. Indy is not related to the school. No school personnel involved. Right?) Yes. (During hs season for a sport, there are rhings you’re saying people can do during that sports season … can be involve din clinics, camps, road run, some other sport that’s not their hs sport… during hs season?) Yes. (Rule 6.3 covers out of season during school eyar – no restrictions on indy participation?) Correct.
(Now reason we’re here… you are interpreting “during sports season” to mean entire school year?) Correct. (Doesn’t say that?) No. OBJECTION- OVERULED. (In all theyears that rule has been in place, have you ever considered using the word “school year”?) I haven’t. (Its interpretation led to the controversy?) Yes. (So instead, you inserted a section by another state ….) This is our rule. (You inserted it into language from antoehr state … about what can be done during actual sports season?) We use language from other states.
(Your interpretation … let’s look at Rule 6.2.4 … about other legal participation. Graph 2 … sports camps … participation during season.. under this rule, a soccer player can be involved with clinics during season so long as there isn’t any team play. Right?) Yes. (Look at 6.6.4 – student athletes … grdes 7-12 may attend as many clinics out of season as they want.) Yes. (But antoehr rule prohibits.) During sports season. (Rule says you shall not attend camp or clinic once season starts. Conflicts?) It does. (Look at Louisiana … identical to your rule … 6.6.4 … attend out of season clinics, at their own expense. Correct?) Yes. (Your association added SHALL NOT, Right?) Yes. (Which conflicnts?) Yes. (Which you copied from Louisiana?) Yes.
(What can we tell kids?) Can compete outside sports season. (So we can ignore 6.6.4?) My interpreation … can participate during sports season. (You say can attend camp, you ignore one rule in favor of another?) In this rule, yes. (Depends on what you decide as exec dir?) No, there’s an error there. Relying on rule as it’s always been. May participate outside sport sseason.
(So, what keeps school from applying 6.3 opposed to 50% rule? You say on one hand, do what want during off season. But with 50%, it’s entire school year. Why can’t school just go by 6.3?) Well, school needs to follow in handbook. (So can follow 6.3 and allow these kids to participate Monday?) Under our interpretation is within 50% rule. (But 6.3 doesn’t pertain to 50% rule? Does it?) Let me read it again. Says may particiapte voluntarily on non-school team. When go to hs team, then 50% rule applies. Basis is fair competition. (What is the basis of your interpretation … that 6.1 applies versus 6.3?) It’s always been our rule. (You adopted new rules this year, so old interpreation doesn’t apply?) Yes, it does. We still have 50% rule.
(But because you interpret sports season different?) No. (But under 6.3, these kids can apply to school team and be accepted under that rule?) No.
(Previously marked this P-8 Louisiana rule… ask to admit it into evidence. Said he used other state’s rules.) OBJECTION – HASN’T BEEN AUTHENTICATED, NOT EXPERT ON LOUISIANA RULES. (Tupelo atty – asks court to take it under consideration. Clearly an authentication issue.) JUDGE – Overruled, will allow it to be admitted.
(Marked P-9 … article from State Assn. of High Schools. Mark for identication?)
(NFSHSA – your assn and others are members?) Yes. (Show you its publication… ) TROTTER ASKS TO ALLOW HINTON TO REVIEW IT. (Highlighted areas …. federation opposes 10-month soccer season. Increase in boys’ participation in hs teams. Talks about US Soccer ruling. Says USS announced it would move to 10-month season. About 4,000 boys … will no longer be able to play on hs teams. HS usually played in fall and joined indy teams after. USS trying to adopt year-round … NFSHSa says disappointed with USS… members adopt rules to prevent changes. Complaining that elite athletes can over-participate.) Yes. (Last graph … boys number is small, it is unfair for them to have to make a choice… if want to play indy soccer, cannot play on hs team. That is wrong, NFSHSA says. Affects others on hs soccer teams. Will push to help prevent these changes. See it?) I do. (Agree with it?) You didn’t mark it. I’ve seen it. We would like to… would try to work with them as we do all activities. (Your rules, your interpretation of “sports season” creates a 10month season for hs soccer?) I believe it’s longer than that. (August to May? Correct?) Yes. (But 50% applies to 10 months?) Yes. (Restricts some players from playing hs sports during that season?) If they had played on indy team.
(We say most elite players can comply with 50% and play on hs team?) No, students can participate… 5 from one team. Another 5 on another team. (Assume every community has multiple teams?) I’m not assuming that, no. (Two HS teams here, Tupelo and Starkville… THS has one team with 10 players. They had a tryout. Five top will stay and others had to choose between club or hs team. Right?) You told me that. (Starkville same, they had 12. So, only 5 can play soccer 10 months. The others must choose club or hs?) If clubs could have more than one team, more could participate. (These schools that have complained that their kids can’t play on indy …. you said to create other teams?) It’s up to the locals. (That’s unfair. Can create other teams?) Again, depends on whether you want elite players on team or want to open it up for community players. Rule applies to all teams. (Don’t park and rec take all comers?) Yes.
(Trying for fair competition? But if town doesn’t have club or park and rec, you say they can just make up a team?) I’m not sure I understand that. (You said local teams could create a second team, split up their players and avoid the rule?) Yes. (May not, if don’t have enough players.) Yes. (In anyevent, kids asked ot choose between club and high school? Your rules?) If play on indy team with more than 50%. (All go to same high school, only 5 can play both. Others must choose?) Yes.
(Federation says asking kids to choose is unfair. Agree?) Read that. Agree. (5:09)
TROTTER WANTS TO CROSS-EXAMINE BUT AFTER BREAK. JUDGE CALLS ATTORNEYS TO BENCH. SETS 10-MINUTE BREAK.
5:20 – JUDGE BACK / TROTTER SAYS NO QUESTIONS. HINTON TO SIT DOWN.
HALBERT CALLS ANDREW MACKIN
MACKIN – Team manager of Starkville team, 17 boys. Also father of one player. Plaintiff with son, Ben. (How long?) Since Ben was 4, he’s now 16. Daughter before, so maybe about 15 years.
(Halbert – talk about how soccer works.) We’re a small town, one soccer club under parks and rec. No opportunity to play except that one. Sign up for “recreational” at a young age. I was a coach. Multiple little team. As they get older, the teams get bigger and numbers decrease. Most of the boys here start at that early age. In a big city, willhave a system to select really elite kids. We don’t have that many. But needs to be a system where they have more challenges. Later they have a “challenge” soccer. Anyone who wants to do it can, play combined teams from others towns and tournaments. Starts at age 10. Do this is fall and spring. Challenge team … plays tournaments too. These boys start at 10. By older age, smaller towns have bigger teams. Often, soccer dries up at that age. If you hold it together, you have enough. Still managed to have two recreational teams, and train together as a group for the challenge team.
At end of Youth-14, our guys played each other in state finals. Every kid who wanted to play got to play. At Youth-15, problems – small towns have run out of players. So, we merged all the kids and moved up to the highest level, called Division One, where elite city teams come from. They recruits from large areas. In small towns, like Starkville and Tupelo, it’s only way to find competition to play. We joined through Youth-17. We had tryouts and everybody made the team, 16 kids. Recruited frantically from our area. At select level, we have advantage because they’ve been playing together for very very long time. Parents coach for a long time, then finally have an ex-college player take over. Because played together so long, we start in August. Break for Xmas and go through spring. Tournaments are in May. They do it all year round. Enormous advantage.
In the old days, any kid who wanted to play competitively had to go to Booneville or Memphis… to practice. This past year, we are state champs and No. 1 team in Miss. At this level at Youth-17, if didn’t have hs season, you’d start in August, play through hs season, then go back and do tournaments. Finish season in May-June. Last year was first time any tried out for the hs team. They got to play soccer, shut down for hs season – October to February – we shut down for that, then with exception last year, they could come back to what we were doing. This year has been a surprise… our guys are becoming the team the hs depends on. These new rules hit us by surprise.
(This past season, started in August. When are state tournies?) End of last year, state championships were May 26. Then we were invited to join a “premier” team. We had to register with it May 30, then because we won state championship we played in regionals in June. If we didn’t have hs, we would play premier season up to hs season, then would play more premier after hs, then play state championships late May. We are the only boys team soccer at this age.
(So, talking about premier. Financially what’s involved?) Major commitment. Premier is in 5 states. Once you commit, you commit. We needed $2K bond. Local rec league put up the money. We did that. Paid $625 registration fee. Must have uniforms. WE try to do it on a shoestring. (When did you learn about new rule?) We were at regionals June 24. Turned up on MHSAA website, but none of us noticed earlier. That they were removing the soccer exception. We were completely committed with $2K bond. A month after we paid, discovered the soccer exception would be removed. If you read rules, we thought the sports season was what is says – Oct. 21 – Feb. 8 – we always shut down for that. We love hs soccer. We had no way of knowing it would be the entire school season, which kills any plan to play other competition. Maybe one game outside that 10-month period, maybe August.
(With respect to your team, what involvement does school have?) Nothing. Almost a point of pride that we got good without them. WE love to play for hs, but had no support until just last year. HS coach has nothing to do with the kids. We had nothing to do with hs until we all signed up for it this year. (Your kids committed to premier league. What is the impact of rule on Monday?) We are different from Tupelo … I can’t say which kids will be impacted. We are very very worried about the impact. Something we’ve been doing will suddenly impact our hs participation, we’re worried about.
(Hear his interpretation of 50% rule. Will impact 12 of your players?) Based on his interpretation, we will have 5 playing for hs team. In Starkville, that’s crazy for both teams because there’s not many soccer players in Starkville. Only about 6 kids who are actually … 5 of our 12 have played in youth development programs. We are a team. Would absolutely devastate the hs team. Other players … from other towns, 3 outside players. They have not teams at home. They have to come to us. We want to see them come and practice regularly. But we want to keep it local.
(You heard discussion of Rule 6.3 … out of season play during school year. If 6.3 applies, how many can you play?) OBJECTION – SUSTAINED
(IF RULE only restricted indy team play during hs season, your team can comply?) Absolutely. HS soccer is a very good thing. The kids want to do it. They want to do both. If they just say don’t play indy during hs season, that solves my problem.
(What other opps in HS is there for them to get training?) Good point. Let’s say football… they get to practice and play but also have advanced fitness football. Not one for cheer, baseball or soccer. It is nearly 2 hours a day full credit course that goes all year around, under coaches supervision. They can do the whole year. About 9 extra hours a week. But soccer can’t do it …. hs can’t because coaches must get certified. Our soccer has volunteer coaches. If our guys could just get out on the field, that would help,but that would make them an independent team and make them ineligible.
(Do your kids play other sports?) Yes. We have only 12 now because of other commitments – some football, track, tennis, swimming. Basically … they play other sports. These guys are athletes. (As team manager … has there been any influence by your coaches that has discouraged them from other scholastic activities?) Sort of, urge them to play other sports if it doesn’t interfere. But we are flexible. Our indy play hasn’t stopped them.
(How important is this club experience with interest to play at college level?) We’re unsual because we are very competitive. Usually by time they get to certain age, it dries up unless they travel. They don’t see college coaches at hs games. They don’t go there. Every good player at SHS has done indy team or don’t get noticed. College coaches scout club competitions. Because we made premier league,we played strong elite teams. At regionals in Oklahoma, we played two teams that were tops … college coaches were everywhere. Realize your kids are being noticed. Remarkably different when you’re talking club soccer for college than for hs soccer. Kids don’t play at SHS alone and get to Division I team.
TROTTER – CROSS EXAMINATION
(TROTTER – Mackin teaches at Vet School. Ever worked with any group part of MHSA?) No. (Heard you say, would solve your problem if MHSAA only banned club soccer during MHSAA soccer season?) If we could play outside hs season, that would be fine. (Essence of your problem … some of your kids couldn’t play hs soccer under current rules?) Yes. (But all your kids are free to play club soccer?) Yes. (Free any level of indy soccer?) Yes, if they make the team. (Nothing in MHSAA prevents?) As long as they are prepared to give up high school soccer. (Also heard you say, your players … play together very very long time?) Challenge from youth upwards, but play rec from 4 years old and up. (Together in indy for long time?) Yes. From Youth=12 they played together spring and fall, then fall and spring.
(Tell me, what org governs indy soccer they play in?) We are Starkville Soccer Assn. SSA part of MS Soccer Assn. Can’t remember which is above that. (What didn’t hear you say was MHSAA governs?) Right.
HALBERT – CALLS HARRIS FAUCETT, OF TUPELO
Faucett coaches THS soccer.
(When learned of new rule, what actions did you take about THS team?) We had tryouts. First in May, then came back to school and had second trials. Second – all players who made team in May. (Who cut at 2nd tryout?) Seven played indy teams. No role with Tupelo Futball club. (Got 7 impacted by this rule?) Yes. (Youth-17team, how many to consider?) 10 (How many could accept?) I picked 5. Others had to quit the club and not play any other soccer. (Other teams to play on?) Not that I know. (Of 10, how many were starters last year?) Three. (How many of 10 will be starters this year?) Five. (Other 5?) Would have been on the team but wouldn’t have started.
(Yesr in school were they?) Eight were juniors, two were seniors. (Other two who had to choose?) Are freshman. (If allowed?) They’ve be on the JV team. (All seven, not many starters?) Correct. (For same team last year, only 3 started last year?) Yes. (Do student soccer athletes play other sports?) Four football, cross country. baseball and some track. Not a problem. We like for them to play other sports.
TROTTER – CROSS EXAMINE
(Teacher and coach?) Yes. (When learned of rule change?) End of school year last year… about May of last year, 2013. Everything we had heard was they weren’t sure what they were going to do. Advised to go ahead and pick team. (Discuss with AD opposing change?) Not until we came back. I asked him what should we do…. in June or July, 2013. (Who is Tupelo rep on MHSAA district?) I don’t know. (Did THS object to adopting this rule?) They said they did not. … nobody knew about it. (Did anyone from ohter schools object to this rule?) I don’t now. (Passed unanimous?) I heard that.
TUPELO LAWYER – (When you heard about rule, knew had to comply?) Yes.
HALBERT – (Trotter asked about objection, what was it?) We didn’t know … I didn’t know about it. Nobody knew that when it was presented, that it would pass. OBJECTION – HEARSAY… JUDGE- HE MAY ANSWER
(When you were asksed about rule, is it clear how to comply?) No. (With new rules, is it clear to comply?) Now that I know. 6:04 p.m.
HALBERT – CALL DEANNA ALFORD (Alford is mother of one of Tupelo soccer players.)
Manager of one of the soccer teams. Son on team. (Son impacted by rule?) Yes. (Son chosen to be on a team?) On hs team in May, chosen for select and not chosen in second tryouts. (Why?) He is the smallest goalie. (Why not on now?) Two senior goalies and were chosen to be kept. (Why were they chosen?) Ben was not a starter, he had little playing time last year. Second tryout, because of 50% rule. He hasn’t played much. (Participated in other sports/) He played baseball young but loved soccer since first grade. Played on club team since 5th grade. Almost always goalie.
(Does he desire to play hs team?) He does. (Understand that some of his classmates on indy team will be on hs team?) Yes, 5 chosen to do both.
NO CROSS. 6:08
HALBERT – CALL TANNER SCOVILLE (TUPELO SOCCER PLAYER)
Scoville says he’s played soccer since he was 4 years old, park and rec. Now, plays on indy team Youth-16. Played club team since about 5th grade, age 12. Never coached by anybody with hs team. Current teammates are ages 9-10th grade. Tupelo Futbal Club has 2 teams. Last year played Youth 14. Not enough players for Youth 15 team. Tried out for hs team in May. Now freshman. (Make the team?) Yes. Junior Varsity. (Never started for hs?) No. Want to.
Called to second tryout, didn’t make it. (Why?) Because I had to pick because I wasn’t top 5. Had to try out against Youth=16 players. (After cut from hs team, what now?) Just play club team. (Play with others who mde the hs team?) Yes. (What are you asking for?) I’d like the rule to change so we all can play on hs team.
TROTTER/OTHER – NO QUESTIONS
JUDGE – Say you played JV? Made it? Scoville says yes.
HALBERT – CALLS KAY BOWLER (LIVE IN JACKSON, WORKS FOR MS SOCCER ASSN.)
She’s exec director. Served on MHSAA exec committee in 2006. (Aware of issue about soccer based on a rule interpretation?) Yes. (What?) We were told that the players … to limit number of hs team players during entire school year. (First time you heard?) Yes. (Were you … have you been aware of any prior interpretation of hs rules that applied to 50% rule that prevented indy team play during entire year, prior to that?) No, first time. (We’re here about removal of soccer exception. Explain to court about how MS soccer is organized?) MS Soccer is member of national organization, US Youth Soccer, under USSF, federation that governs soccer. Each state has organization – MS 20,000 soccer players. About 40 orgs members of MS Soccer, from rec, challenge, select, adult players throughout state.
(Are those orgs … governed by MS Soccer?) Some are, majority by national organization. (Majority of orgs, are they club or select?) Majority of our players are of recreational level. (Where are club teams located?) Majority of club teams are … I-20 Belt-line, Jackson metro area and Gulf Coast. One in Tupelo, Starkville, Meridian, Vicksburg, Hattiesburg. Select teams. (Different from park and rec?) Yes, through a league that qualifies them for state championship. Mostly tournament play. (Familiar with 50% rule change?() Yes. (How impact?) I a very negative way, I am sad to say. Last year, we reported … for hs age – 7,000players. This year 803 players. (If club player in Jackson area on a team with more than 5 hs classmates, what options do they have to play club and hs?) Their options … a lot. About 6-7 orgs in Jackson to offer a club team. Just try out, drive 30 minutes. (North of Hwy 82, clubs?) Tupelo and Starkville.
CROSS – TUPELO AND TROTTER, NO
HALBERT – THAT’S ALL I HAVE.
TROTTER AND OTHER ATY – NO WITNESSES 6:21 P.M.
TROTTER – RE-MAKE MOTION FOR DISMISSAL
JUDGE – A FEW QUESTIONS. To try to understand practical impact of the rule. All counselors feel free to address it.
Do I understand that the sports calendar for MHSAA indicates that first date of practice to begin Oct. 21? (Correct) End with state finals Feb. 8, 2014? (Yes) Season, that’s it? (Yes, Halbert says) National indy soccer runs August to May… 10 months referring to? (Halbert yes)
How does playing soccer differ with application of the rule? Is there another sport that does not have a summer season? (Halbert – I am not aware of major sports that don’t play in the summer. Other sports have opportunities with legion or special competitions.) (Trotter – can play soccer, can practice with their teams, whether they choose to or not. I’m a soccer dad. My daughter plays in the summer.) Rec leagues have summer program. (Halbert says no.) (Trotter says daughter had summer league and summer camp.) So this 10-month season doesn’t include summer? (Halbert – all state tournies in May, then if win invited to regionals in June. All play centered around fall and spring to prep for spring tournaments.)
In 2006, for exception for soccer, was it carved for August to May play? (Halbert – correspondence says that… soccer has a different season without same opportunities as other sports to play in the summer.) (Trotter – MHSAA isn’t bound from year to year. As times change, they have again. Exceptions changed. Went through district level, legislative process twice and approved. While it was excepted back then, the governing body found no reason now for exception.)
(Halbert – We contend that soccer exception was rational basis because soccer was different. That was approved by exec dir and exec committee. No rational basis for removal except to make soccer like everything else. No study that it was a problem. Same issues as other states.) (Trotter – times have changed.)
I have not heard any testimony. But what changed and why? I don’t understand what brought about the change in 2012-13? (Trotter – schools said no purpose behind exemption anymore. Schools that weren’t so competitive felt like they weren’t getting fair advantage. What would be fair for everybody? Took exception away and put soccer back on footing with every other sport. If 50% rule is unconstitutional, it is for all sports. MHSAA adopted rules to allow limited level of competition where can justify a balance.)
What is the basis of the 50% rule? (Hinton – allowing at least a half to play together, so whole team hasn’t played together for a competitive advantage before the season starts. Alabama has that rule. Seniors when season ends, they are able to play.) Is that not inconsistent with the rule? (Hinton – they are no longer part of the hs team after they finish their senior season?) Still a student for the entire year, are they not? (Yes.)
(Halbert – Ala. and Indiana have 50% rule that applies to school year. Ala. says it applies to school year, not about season. Tennessee has 50% rule but excludes soccer.) Similar to where MS was from 2006-12 seasons. (Halbert- Alabama restricts school athletes from indy team during season, but also 50% rule for next year’s team.)
How have Starkville students been injured because haven’t been kicked off team? (Halbert – coach hasn’t made a decision yet. He uses 6.2.1 – beginning Monday, 7 of them will be cut.) (Trotter – that’s not an injury. MS courts say that participation is not a legal right, it’s a mere expectation.)
Do you agree that rational basis is the rule that applies. (Lawyers- yes)
Halbert – what courts have said that participation is not a constitutionally protected right. Haven’t said you can’t attack a rule based on legally protected right of due process or equal protection. These eligibility cases don’t assert constitutional rights. Most are just asking courts to decide for them. Not us, we are attacking this rule based on equal protection.
JUDGE – Are there any other circuits that have address this issue? Equal protection?
HALBERT – Southern District, court denied motion to dismiss equal protection claim. It was about race. You have to have two classes. Here, we are not about merits. In our case, the 50% rule creates two classes of people treated unequally. That’s a different question for the court. (Trotter – every rule by MHSAA creates two classes. Grade eligibility… these rules create two classes all the time. Equal protection …)
Judge – That is the problem I a having. Assuming there are two different classes, if I take a MHSAA rule for gradepoint to play… I think anybody can go to rational basis. I am not sure I understand the rational basis of why the assn. feels that 5 players, as an artibraty number, that 5 get to play and others don’t. I hear what you’re saying … because you don’t want to have specialization in sports. I don’t think I’ve heard any testimony that rule aids not having specialization in sports. Having hard time with this.
HINTON – May I. As a former coach … when you have one team together from the day school starts … we saw basketball with leagues, they had a distinct advantage over others. We are high school. Our mission is about participation with our students. That was where the rule came from. In 1999, not quite as many sports, now our schools still believe that there are teams that have competitive advantage when season begins because they’ve been playing togetjher. We see soccer as advantage over others. We are asked why? Our basketball, baseball coaches would like to have that team all years long. We are high schools. National Federation talked about participation and value. Why our member reps support that rule.
HALBERT – This is about participation. That’s the point. One rule for some, not for another. Not rational to throw rule out because basketball coach wants to do the same thing. That’s not rational.
TROTTER – Soccer exception … now everybody is treated the same. Think 50% rule promotes fair competition. Point is there a rational basis for the decision.
JUDGE – I UNDERSTAND THAT’S THE TEST. I’m having a time and trouble understanding the rationale for removal of the exception, considering soccer is unique regarding its season.
HINTON – In 2006, the rules we had … was not a good rule to name 5 starters and rest of you can play. In every sports, we can’t do that. Rule said pick 5 starters on soccer team, and everybody else can play. That’s what that rule was in 2006.
JUDGE – HOW DO YOU tell schools you are considering a rule change? (Hinton – Any of our coaches, AD, administrators can come to 8 different district meetings. If it passes, goes to legislative counsel, then exec committee.) How would a school know? (Hinton – once it passes first time, it goes out to our schools. Reps are to let schools know and that will be coming back to look again.) Judge – who adopts it first time? (Hinton – legislative counsel from district reps.) Is proposed rule posted before counsel? (Hinton – it is sent to counsel members probably at least two weeks prior to meeting, maybe longer. It gets voted on two times. They go back to districts, it’s posted again. They are to speak to proper authorities.) In this case, when did legislatige counsel voted? (November 2012. Posted on website.) What happened next? (Feb 2013, legislative counsel and exec board – has to pass both of those.) Posted on website? (Yes.) Any member could monitor website for these rules? (Yes. Send out info to schools.) When did rule become final? (Feb. 7, 2013) Posted on website. How else could member schools get advised about new rules? (Our reps have that job to do. Also another district meeting ….)
Judge – Halbert, when did Tupelo learn about the new rule? Halbert – I don’t know. Judge – When did Hinton learn of new rule? Trotter – Faucett said he knew about it at end of May. But we say school rep knew before that. Hinton – Members have to have a password to get into handbook. Judge – When did Starkville first knew about rule? Mackin – We learned at end of June. Tupelo atty – Tupelo at end of May.
Judge – are you available Friday afternoon? Halbert – I am. Tupelo atty – I am available. Judge – What about conference call?
Halbert – Want to make sure you understand the other part of our claim . That rules in other areas support NO LIMITATION to off-season play. There is a problem ehre with arbitrary nature. TROTTER – We don’t believe it’s arbitrary.
Judge – 2 p.m. conference call. It’s important, sorry we are so late.
(HEARING ENDS)
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