Liberty Christian versus The VHSL
style="font-size: 9pt; font-family: "Verdana","sans-serif";">Liberty
Christian Academy filed a
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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."
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">Before
I get into the specifics of this
case, let's take a quick, historical detour.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style=""> 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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">
style="">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.
style=""> 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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style=""> But it wasn't the only one.
style="">
style="font-size: 9pt; font-family: "Verdana","sans-serif";">In
addition to the racial element, other
factors made a discussion of public / private merger a non-starter.
style=""> 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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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."
style="font-size: 9pt; font-family: "Verdana","sans-serif";">In
href="http://www.lcabulldogs.com/media/9910/vhslpressrelease/Complaint_-_LCA_v_VHSL_%28file_stamped%29.pdf">
style="color: blue;">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.
style=""> But there are some
problems.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style=""> 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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style=""> 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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style=""> 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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">If
this case is decided on the merits, I
honestly believe the VHSL would have a real shot at winning.
style=""> 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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style=""> 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 . . .
style="font-size: 9pt; font-family: "Verdana","sans-serif";">If
the VHSL decides not to fight, I would
href="http://madmax.lmtonline.com/textarchives/011403/p5.htm">
style="color: blue;">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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">I
could see the VHSL doing something
similar here if it doesn't want to endure costly litigation.
style=""> 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?
style=""> 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?
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">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.
style="font-size: 9pt; font-family: "Verdana","sans-serif";">I
was
a full-time writer and editor at VirginiaPreps for over 15 years.
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