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June 12, 2014

Liberty Christian versus The VHSL

Liberty Christian Academy filed a lawsuit against the Virginia High School League last week in a bid to join the VHSL.  The suit claims that preventing Liberty Christian from participating as a VHSL member is a violation of federal antitrust law.  LCA alleges that the exclusion from the VHSL is unfair on a number of grounds, including, but not limited to, the idea that the LCA should have a right to compete against VHSL schools in the same economic "marketplace." 

The theory is that LCA is being harmed economically by not being a VHSL member, both because the VHSL schools won't schedule them (thus reducing revenue for potential marquee match-ups against local teams) and because the exclusion increases the amount of traveling that LCA teams must endure.

Before I get into the specifics of this case, let's take a quick, historical detour.

Liberty Christian opened in 1967 as Lynchburg Christian Academy.  It was one of many private schools that popped up around Virginia in the 1950s and 1960s in an effort to maintain all-white student bodies as public schools began to integrate.  

The VHSL existed since the early part of the century, but many of the competitive aspects of public-school sports were more informal and less organized than what we've seen in modern times.  A glance at the VHSL record book shows that, prior to the late 1960s, many state championships were determined differently, held intermittently, or didn't exist at all.

That began to change around the time that the VIA merged with the VHSL.  The VIA was the analogous organization for black-only public schools.  By the time the VIA and VHSL agreed to merge in 1969, each had member schools that were integrated.  It no longer made any sense to have two separate organizations for public schools.  A massive reorganization effort accompanied the merger, and, by 1970, the "modern" system of Virginia high school athletics was in place. 

The fact that a healthy percentage of private schools remained white-only after public-school integration was one barrier to any discussion of merging public and private athletics.  But it wasn't the only one.  

In addition to the racial element, other factors made a discussion of public / private merger a non-starter.  There was a concern on both sides about the different educational and academic "missions" of private schools versus public schools.  However, the biggest concern, particularly once the integration issue became moot, has been over eligibility and fairness. 

That brings us back to the LCA situation.  Liberty Christian claims that the VHSL points system that applies only to public schools creates a disincentive for VHSL members to play LCA.  They argue that this amounts to what is called a "group boycott."  This, they say, is illegal, adding that 47 of the 50 states "already permit non-public high schools to regularly [sic] participate in commercial athletic contests with public high schools." 

In reading the complaint, I think LCA has a case, albeit not nearly as strong of one as it contends.  That's not unexpected, of course, as it's plaintiff's counsel's responsibility to paint the rosiest picture possible for their side.  But there are some problems. 

For starters, LCA overstates the point when it says that the VHSL excludes them from competition.  As everyone reading this knows, there's no rule preventing VHSL schools from scheduling LCA.  In fact, LCA's teams compete against VHSL schools currently, although certainly not nearly as much as they play against private schools.  The football team played Brunswick.  The baseball team played E. C. Glass.  The girls' volleyball team played Jefferson Forest.  And so on. 

Yes, those contests are the exception, but the existence of such match-ups still helps to undermine LCA's contention.  If it's truly a "boycott," the VHSL is doing a horrible job of enforcing it. 

But the primary reason that teams won't play LCA isn't due to VHSL non-membership.  I'll get to that in a second, but consider for now another weakness to the LCA argument: Even if LCA were granted admission into the VHSL, the new alignment plan-the one that LCA contends has made things even worse-would still permit public schools to decline to play LCA during the regular season.  That's an important facet of this, because a big piece of LCA's argument is that they're missing out on lucrative "rivalry"-type games. 

Instead, the conference setup means that the other teams in LCA's conference wouldn't even have to play them until the playoffs.  That happens routinely now among public schools that have been VHSL members for their entire existence.  Yes, most schools try to schedule such games where possible.  However, especially for schools that are geographically isolated from their conference-mates (which LCA would be, by the way), playing those contests doesn't always make sense. 

In order for LCA to argue that they would be playing a lot more "big" games against public competition, they would have to concede that the travel issue really isn't that much of a problem.  That's because, like many VHSL schools under the new alignment, LCA would be traveling quite a bit if it were to play the top schools in its hypothetical VHSL conference. 

To be honest, though, all of that is a collateral issue.  We know it, and LCA knows it.  The crux of the problem is eligibility. 

LCA maintains that it is willing to abide by VHSL rules.  That would mean, among other things, no recruiting.  Counsel for LCA has been quoted as saying that LCA doesn't currently recruit, which is dubious-and a problematic position to take if the goal is to force a settlement. 

Let's say for the sake of argument that LCA doesn't "recruit" in a literal sense.  There are still major hurdles to them coming into compliance with VHSL regulations.  For one thing, they would need to limit their student body to a reasonable, finite geographic range comparable to that from which VHSL member schools typically draw.  Secondly, the tuition advantages that they give to all students vis a vis Liberty University would have to disappear.  No VHSL school can compete with that kind of arrangement. 

If this case is decided on the merits, I honestly believe the VHSL would have a real shot at winning.  One easy step the VHSL could take to undercut Liberty Christian would be to call LCA's bluff by changing its rules so that teams get points for playing LCA (while still keeping LCA out of the VHSL).  That would remove one of the major components of LCA's argument.  I think LCA would find that it would have just as much trouble scheduling VHSL opponents then as it does now. 

But I wonder if the VHSL has the will or the finances to fight this battle.  It won't be cheap.  The representation that LCA has retained is an elite, outstanding New York firm.  Sidebar: I'm guessing that whatever economic opportunity LCA is being "denied" is smaller than the legal bill LCA would run up if this suit ran its course to conclusion.  But I digress . . . 

If the VHSL decides not to fight, I would guess that they'll take action similar to what their Texas counterparts did: There, a couple of private school powerhouses tried to sue to gain entry to the Texas public school athletic organization.  The organization eventually relented, but crafted its new regulations so tightly that-SURPRISE!-the only private schools that fit the requisite eligibility criteria just happened to be the two that sued. 

I could see the VHSL doing something similar here if it doesn't want to endure costly litigation.  The question would be: Will LCA be able to comply with all necessary VHSL rules without totally destroying the advantages that have made it a powerhouse?  Or, faced with the prospect of doing so, will LCA simply amend its pleadings slightly to demand entry into the VHSL without giving up drawing from outside a traditional "zone" or helping with Liberty University tuition? 

If that does happen, I'm not sure all will be lost, but a lot will.  Even being forced to play "up," as LCA undoubtedly would be, the advantage that LCA would have would be tremendous.  

Allowing schools like LCA into the VHSL without vigorously requiring them to comply with all VHSL rules would be a more fundamental (and far more unwelcome) shift than the 2013 realignment. 

I was a full-time writer and editor at VirginiaPreps for over 15 years.  I may be found at The Axis of Ego.  Also, please "like" The Axis of Ego on Facebook HERE.  You can follow me on Twitter @TheAxisOfEgo, but I still keep my @CRTomGarrett handle active for sports-only news, like passing along scores, etc.


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