Brentwood Academy v. TSSAA: The Unnerving Recruitment of Middle School Athletes?

On this blog, we often discuss age eligibility rules in the NBA and NFL, and how they relate to the recruitment of high school athletes by colleges and universities. It is no secret that colleges and universities with top sports programs tend to favor higher age eligibility rules for pro leagues. These rules enable schools to enroll athletes who would otherwise turn pro, and who generate tremendous revenue for those schools. Mark Alesia's recent study and Bob and Amy McCormick's recent law review article seal that point. And as many of us have seen in-person, these and other rules enable colleges to engage in a supplemental admissions process with top high school athletes.

Yet obviously, the recruitment and profiting off of young athletes doesn't begin in the 12th grade. In fact, it doesn't even begin in high school. Star athletes are often targeted before they become teenagers. If you haven't seen it yet, check out the extraordinary documentary Hoop Dreams and watch amateur coaches grotesquely recruit William Gates and Arthur Agee, two inner-city Chicago teenagers who would have been shunned by society if not for their ability to play basketball, and who later were shunned by society after they lost that ability. A similar theme of "hangers-on" is said to apparent in the film Through the Fire, which chronicles the amateur basketball life of Sebastian Telfair, who now plays for the Portland Trailblazers (I haven't seen Through the Fire yet, but hear it is excellent).

A recent decision by the U.S. Court of Appeals for the Sixth Circuit tackles the issue of youth athletic recruitment in a different context: high schools recruiting middle school football players. In Brentwood Academy v. the Tennessee Secondary Schools Athletic Association ("TSSAA"), the plaintiff, a private secondary school in Nashville renowned for its football program, engaged in arguably inappropriate contact with 8th-graders who were set to attend the school. Specifically, Brentwood's football coach, Carlton Flatt, sent letters to twelve 8th graders who had accepted their admissions offers to attend Brentwood, and who were expected to play football there. Here is an excerpt from the letter:

Having officially enrolled at Brentwood Academy, the TSSAA allows you to participate in spring football practice. If you are not currently involved in a sport at your school, we would like to invite you to practice with your new team.... Due to the inconvenience to your parents, please do not feel that you must attend every practice. However, I do feel that getting involved as soon as possible would definitely be to your advantage.... We are certainly glad that you decided to become an Eagle.

Your Coach, Carlton Flatt

After the letters were mailed, Flatt received phone calls from parents about the necessity of their boys attending practice, particularly since they were still in middle school. Flatt said the practices were "not mandatory" and were not intended to interfere with academic work. Not surprisingly, all twelve of the boys who received the letter showed up (sort of like how almost every single New England Patriot player shows up for Bill Belichick's "voluntary" off-season workouts, except here these boys weren't even on the team yet). In addition, Flatt shared high school game tickets with middle school football coaches in hopes that they would be used by middle school players.

The TSSAA, which is an association of public and private schools in Tennessee, sanctioned Brentwood for violating the association's undue influence rule. The rule states:

The use of undue influence on a student (with or without an athletic record), his or her parents or guardians of a student by any person connected, or not connected, with the school to secure or to retain a student for athletic purposes shall be a violation of the recruiting rule.

But Brentwood Academy prevailed before the Sixth Circuit, in part because of First Amendment free speech protection. The Sixth Circuit held that "the TSSAA’s use of the regulation to punish Brentwood seems to burden substantially more speech than is necessary to further the government’s legitimate interest in keeping athletics subordinate to academics." Moreover, and based on trial court testimony, the Sixth Circuit did not find sufficient evidence of undue influence:

The district court obviously found the testimony of the parents of the boys in question to be more significant and persuasive than evidence from experts indicating that the letters and calls might– in theory – signal an emphasis on athletics over academics. The parents indicated they were glad to get the letter, and they did not at all think the implication of the letter was that Brentwood subordinated athletics to academics . . . the harm the TSSAA sought to prevent was conjectural, not real, or at least not based on the evidence in the record.

The 37-page decision supplies other rationales, and I encourage you to read it in full (and check out Antitrust Review for its take). But should we agree with the court that the letters sent by the coach did not seriously influence the decision of 14-year old middle school boys to show up for high school football practice? And is it revealing that all of the boys who received the letter--signed by "Your Coach, Carlton Flatt"--showed up, or is that mere happenstance? We'll never know, but what do you think might have happened if one of the boys didn't show up--might his playing time or treatment by teammates have been affected when he matriculated to Brentwood? And are letters like the one above matters of public concern, or do they simply reflect the old adage "that's just the way it is"?

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