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Two recent cases revolve around the recruitment of student-athletes.

In 1992, Tyrone A. Davis, Jr. was a student at State Fair Junior College in Sedalia, Missouri. In the Summer of 1992, Baylor University began recruiting Davis via letter, telephone and personal visits. In November, 1992, Davis signed a National Letter of Intent to play basketball at Baylor.

After leaving State Fair Community College in 1993, Davis was thirteen credit hours short of being eligible to play at Baylor. Among the things that Baylor arranged for Davis to do to become eligible was to take four hours of correspondence courses from a school in Florida. One of the events that led to this lawsuit was that someone from Baylor altered a number of Davis' answers and submitted the tests as Davis' own. After a series of investigations, Davis was barred from playing the 1993-94 season while the Baylor basketball program underwent further investigation

Davis went on to play basketball for Kansas State University, and three members of the Baylor coaching staff were convicted on charges of conspiracy, wire fraud, and mail fraud related to Davis' situation. Davis subsequently sued Baylor University and a number of its employees on eleven separate counts, including breach of contract and tortious interference with his prospective business opportunities in college and professional basketball. Davis sued because he felt that the tortious conduct of the defendants reduced his opportunities for a lucrative career in professional basketball, forced him to relocate himself and his family, and caused him the stress of associating his name with a major scandal.

The Circuit Court of Jackson County, Missouri, dismissed the suit for lack of personal jurisdiction. Upon appeal, the Court of Appeals reversed the Circuit Court's decision, and remanded it with instructions to dismiss all counts which do not concern the alleged misrepresentations that occurred in Missouri.

The Circuit Court dismissed the suit due to Baylor's lack of sufficient minimum contacts with the State of Missouri. Davis argued that Baylor initiated contact by coming to Missouri to recruit him, while Baylor argued that the heart of the case involved the misconduct in Texas regarding the correspondence courses, which had no relation to its contact with Missouri. The Court of Appeals thus centered its analysis on the issue of sufficient minimum contacts.

The Court of Appeals examined a number of other recruiting cases and analyzed the various tests that courts have used to determine if personal jurisdiction should be asserted. The biggest factor is that from 1989-1996, Baylor representatives made thirty-two trips to Missouri for recruiting basketball players, including ten such trips to recruit Davis. The Court of Appeals found that Davis' claims for breach of contract and fraudulent misrepresentation were sufficiently related to the forum contacts in the case. However, these recruiting trips were instrumental in the formation of the National Letter of Intent agreement which Davis executed in Missouri.

As to Baylor University, the Court of Appeals reversed the trial court and remanded the case with instructions to dismiss the claims that did not concern the alleged misrepresentations in Missouri.

In the next case, Brentwood Academy sued the Tennessee State High School Athletic Association to prevent enforcement of a rule prohibiting the use of undue influence in recruitment of student-athletes. Brentwood alleged, among other things, a violation of its First Amendment right to free speech. Brentwood moved for summary judgment and a permanent injunction barring the TSSAA (Tennessee Secondary School Athletic Association) from enforcing its "Recruiting Rule."

Brentwood Academy is an independent college prep school in Brentwood, TN, and is a member of the TSSAA, an association of public, independent and parochial schools in Tennessee. By electing to be a member of the TSSAA, each member school agrees to abide by the Constitution and By-Laws of the TSSAA. Here, however, the TSSAA penalized Brentwood for not abiding by the recruiting rule.

The main question that the court addressed was whether the TSSAA's Recruiting Rule violated the First Amendment. The Recruiting Rule states that "[t]he 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."

The facts in dispute were as follows. In the spring of 1997, the father of an incoming ninth-grade student, who had been accepted for admission to Brentwood, had requested permission for his son to participate in Brentwood's spring football practice. To avoid the impression of favoritism, Brentwood sent a form letter to all new incoming male students ages nine and above informing them of the spring practice dates, and inviting them to participate if interested.

On July 29, 1997, Brentwood was notified that the TSSAA had found Brentwood Academy guilty of six violations of TSSAA rules, including sending out the spring practice letters. Brentwood appealed the sanctions, and the TSSAA altered the penalties. As a result of the penalties, Brentwood was placed on probation for four years, the football and boys' basketball teams were denied the chance to play in the playoffs for two years, Brentwood was fined $3,000.00, and off-season practice for the football and boys' basketball teams were prohibited for two years.

The first thing that the court had to decide was whether the TSSAA was acting under the color of state law. After examining a number of other cases, including the various NCAA cases involving Jerry Tarkanian, the court agreed with the various district courts in Tennessee that have consistently ruled that the TSSAA is a state actor.

The next item to decide was whether the Recruiting Rule actually violated Brentwood's right to free speech. While it is clear that the TSSAA had an interest in protecting student-athletes from such things as undue influence, the district court found that the Recruiting Rule was too intrusive for the goal of protecting the student-athletes with no corresponding evidence that any student-athlete had been harmed by these practices. Specifically, there was no evidence that any student was, or was likely to be, harmed by the spring football practice letter in question here.

The District Court granted Brentwood Academy's motion in part, as to its claim that TSSAA's Recruiting Rule violated its the First Amendment rights on its face and as applied to Brentwood Academy. Therefore, the TSSAA is enjoined from any use of the Recruiting Rule, and all of the penalties the TSSAA imposed on Brentwood were thrown out.

In considering these cases together, it is important to note the distinctions. Initially, Davis involved a school making contacts with a particular player and committing violations in trying to help that particular student-athlete become eligible to play basketball at Baylor University, while Brentwood involved a school making contacts with a number of student-athletes who were already committed to attending Brentwood Academy. Also, in Davis, the rules were not in question, the contacts with the State of Missouri were. In Brentwood, it was the Recruiting Rule that was in question, and whether it violated the First Amendment. The bottom line is that recruitment of student-athletes, whether for high school or for college, is serious business, and needs to thought out carefully.

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