Full Disclosure: James G. Bordas, Jr. and Michelle Marinacci of Bordas & Bordas, PLLC represent Respondents Pamela F. and D.W. in this case.
A student-athlete, D.W., was flagged for allegedly committing a flagrant personal foul and ejected from a September 19, 2014 high school football game. The referee who ejected the player filed a report with the SSAC stating that the student-athlete, while lying on the ground on his back “drew back his right leg and delivered an upward kick sticking the helmet/face mask of the Defender.” Under SSAC rules, the student-athlete was suspended from playing in the next game, scheduled for September 26, 2014. During the intervening week, the student-athlete made multiple attempts to have the SSAC review the punishment it imposed against him by utilizing video evidence which he maintained demonstrated that neither the alleged kick nor any other misconduct occurred. Invoking its non-review of ejections rule, the SSAC refused to review the video-evidence to determine whether the punishment imposed on the student-athlete was proper.
As a last resort, the student-athlete, through his mother, sought a temporary restraining order and preliminary injunction from the Circuit Court of Marshall County, arguing that the SSAC’s non-review of ejections rule violated the statutory requirement of a proper review procedure. The SSAC ignored this argument and instead argued solely that the rule was not unconstitutional. Before ruling on the matter, the Circuit Court expressly stated that it was not addressing the constitutionality of the rule nor whether the game-official’s call was proper. Instead, the Circuit Court limited its analysis to whether the SSAC’s non-review of ejections rule complied with W.Va. Code § 18-2-25 and found that the rule was in violation of the statute. After the Circuit Court issued an injunction prohibiting the SSAC from enforcing its punishment of the student-athlete, the SSAC petitioned the West Virginia Supreme Court for a Writ of Prohibition.
Whether the SSAC’s non-review of ejections rule, W.Va. C.S.R. §127-3-15.3, violates W.Va. Code §18-2-25?
In a strongly worded opinion, the West Virginia Supreme Court held that “the SSAC’s non-review of ejections rule is a direct violation of West Virginia Code § 18-2-25’s requirement that the SSAC provide a proper review procedure.” Although the Supreme Court agreed with the SSAC’s argument that “circuit courts must stay out of its internal affairs and that its non-review of ejections rule is not unconstitutional”, the Supreme Court disagreed that these arguments translated into a finding that the Circuit Court’s order was error. Contrary to the SSAC’s argument, the Circuit Court’s Order centered upon whether the rule complied with the SSAC’s enabling statute, not whether the rule was constitutional.
The Supreme Court reiterated that it had previously “made clear if the SSAC does not exceed its constitutional or statutory authority, circuit courts must stay out of the SSAC’s internal affairs. However, the SSAC must comply with all applicable statutory and constitutional provisions.” (Emphasis in original) The Supreme Court recognized that the argument before it, i.e., whether the SSAC’s non-review of ejections rule was an unreasonable exercise of the SSAC’s legislative grant of authority under W. Va. Code § 18-2-25, had not previously been addressed by the Supreme Court. The Supreme Court recognized that circuit courts must stay out of the SSAC’s internal affairs when the SSAC is acting “in compliance with all applicable constitutional and statutory provisions”. However, “the SSAC does not have a blank check to ignore its statutory obligations [and] circuit courts have judicial review over the SSAC matters only to the extent that the SSAC exceeds either its statutory or constitutional authority.”
The Supreme Court noted that while the SSAC argued the Circuit Court’s ruling was directly contrary to the Supreme Court’s decision in Mayo v. W.Va. Secondary Sch. Activities Comm’n, 223 W.Va. 88, 672 S.E.2d 224 (2008), Mayo addressed only whether the SSAC’s non-review of ejections rule was constitutional. The Supreme Court in Mayo “did not rule on, or even mention whether the non-review of ejections rule exceeded the SSAC’s statutory authority.” Noting that the “SSAC is subject to both the Constitution and statutes,” the Supreme Court then addressed the statutory argument before it.
The statute granting the SSAC the authority to regulate interscholastic athletics in West Virginia, W.Va. Code § 18-2-25, expressly provides that the SSAC’s rules and regulations “shall contain a provision for a proper review procedure.” The Supreme Court also noted that “the SSAC’s own regulations properly recognize: ‘[a]ll cases involving disciplinary action against member schools, coaches, students, team attendants, or officials may be protested’ . . . [and] require investigation and adjudication of all reports of unsportsmanlike action.” (Emphasis in original) Despite these clear directives, the non-review of ejections rule prohibits all protests of an ejection and prohibits an ejection to be reconsidered. The Supreme Court noted that “[w]hen the student-athlete in this case sought to present video evidence to protest his ejection and suspension for alleged unsportsmanlike conduct, the SSAC responded that it provided no review procedure for the punishment imposed against the student-athlete.” The Supreme Court recognized that the argument presented by the student-athlete demonstrated the inherent unreasonableness of the SSAC’s position that an ejection can never be challenged. For example, where there is video evidence that the wrong player was ejected and an official refuses to reconsider the call, review of the video evidence could correct the mistake and prevent an innocent player from serving an unwarranted punishment.
The Supreme Court flatly rejected the SSAC’s construction of W.Va. Code § 18-2-25 as permitting it to refuse to provide a review procedure for ejections, finding the statute “is clear and unambiguous that the SSAC must provide a proper review procedure.” The Supreme Court noted that the “SSAC cannot adopt a regulation that is inconsistent with or alters its statutory authority” and that the “Legislature’s requirement that the SSAC provide a review procedure for ejections is so clear that it is embodied in the SSAC’s own regulations.” Thus, the Supreme Court found the “non-review of ejections rule is not only contrary to West Virginia Code § 18-2-25, but also to [the SSAC’s] own regulations, which recognize [the SSAC’s] obligation under state law to provide a review procedure for all disciplinary action.”
While the Supreme Court was sympathetic to the SSAC’s concerns that providing for review of ejections could lead to abuse and interference with SSAC operations, it noted that the SSAC provided no evidence that student-athletes abuse the review procedure in states where review of ejections is authorized. Additionally, the Supreme Court went out of its way to describe an informal review procedure which it stated would comply with West Virginia law and would minimize the concerns argued by the SSAC. The Supreme Court also noted that W.Va. Code § 18-2-25 mandates a review procedure but does not require a hearing, giving further guidance as to the type of procedure which would survive a future legal challenge.
The Supreme Court denied the Writ of Prohibition requested by the SSAC and found that the Circuit Court of Marshall County did not err in finding that the non-review of ejections rule violated W.Va. Code § 18-2-25’s requirement of a proper review procedure. The Supreme Court further held that “the SSAC must either include the review of ejections in its general review procedure or adopt an expedited, informal review procedure for ejections” in order to comply with W. Va. Code § 18-2-25. However, “exactly what the review procedure for ejections entails is within the SSAC’s exclusive discretion so long as it does not exceed its statutory authority.” The Supreme Court closed by emphasizing that “an ejectment decision by the SSAC made in accordance with a proper review procedure is not subject to judicial review.”
Justice Loughry issued a concurring opinion in which Justice Workman joined to emphasis that it is not the role of West Virginia courts to determine whether game calls are correct. However, the courts of West Virginia do have a role in insuring that the SSAC’s rules are consistent with the SSAC’s statutory authority. Justice Loughry found the SSAC’s contention that its non-review of ejections rule met its statutory mandate to be “nonsensical.” Justice Loughry also found that the non-review of ejection rule to be “unreasonable” from a practical standpoint. Like the majority, the concurring justices could envision a situation where video evidence either corroborates or refutes the factual basis of an official’s ejection of a player. If a mistake was made, such as ejecting the wrong player, Justice Loughry found it exceedingly reasonable to review the video evidence before suspending the student-athlete. Justice Loughry likewise emphasized that correcting a mistake is not the same as “challenging the official’s ‘judgment.’”
This case is significant to both student-athletes and the SSAC. The Supreme Court clearly found that the SSAC’s interpretation of its statutory authority is not immune to judicial review. The SSAC must adopt and implement rules which are consistent with its express statutory authority and cannot exempt a discrete category of actions from a statutorily required review process. Similarly, the Supreme Court clearly told the SSAC that the rules it adopts pursuant to the limited legislative authority granted to it must be consistent with both its enabling statute and with its own rules. Because the SSAC’s non-review of ejections rule contradicted both the express mandates of W.Va. Code §18-2-25 and the SSAC’s own rules requiring both an investigation into unsportsmanlike conduct allegations and a review procedure for disciplinary action imposed upon student athletes as a result of unsportsmanlike conduct, the Circuit Court of Marshall County acted within its authority and did not err when declaring the rule invalid and unenforceable.
This case is also significant to current and future student-athletes throughout West Virgina. The Supreme Court emphasized that West Virginia courts are to have an extremely limited role in high school athletics, that of ensuring that the SSAC’s rules are consistent with the West Virginia Constitution and West Virginia statutes. This case makes clear that any future court action involving SSAC matters should be limited to challenges to the validity of SSAC rules and not how the SSAC applied the rule in a given situation.