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Not Going Pro? Not School or Coach's Fault

According to the NCAA,1 about two percent of high school athletes are awarded athletic scholarships to compete in college.  Yet there are still parents and high school athletes in this country who pin their hopes on getting a scholarship, and, when they fail to get one, look for someone to blame, like the kid's school or coach, even to the point of taking them to court. Don Collins

The latest case in which a student-athlete unsuccessfully sued, claiming that his school was somehow liable in damages for his failure to become a pro athlete is Crisdon v. New Jersey Dep't of Educ., 10-291 (NLH)(D. N.J. 2011). 

Strange claim

Crisdon sued in federal court alleging that, by denying him a diploma, the New Jersey Department of Education was responsible for his failure to become a professional basketball player.  Right off the bat his claim was a strange one, considering the fact that  numerous basketball players (Kevin Garnett, Kobe Bryant et. al) go pro straight out of high school, with one recent pro basketball draftee even leaving high school after his junior year to play pro ball overseas for the very reason that he knew he didn't need high school in order to play pro ball  - indeed, that he didn't even need college! 

The strangeness of the claim notwithstanding, Crisdon's case had two fatal flaws: 

First, he didn't even sue under the right federal statute.  Because he brought suit under Section 1331 of Title 28 of the United States Code, his case was correctly dismissed before it got off the ground because the doctrine of sovereign immunity barred an action against the state (the sovereign) without its consent or a clear Congressional statement to the contrary, neither of which he could allege. 

The second error, interestingly enough, was made by the court.  The way to bring a claim of this nature in federal court is to bring a civil rights action under 42 U.S.C. §1983 against individuals and the local agency or municipality responsible for the alleged violation.  Crisdon should have, but failed, to sue the principal of his high school, the Superintendent of Schools, and local Board of Education. 

Yet the court, in its decision, referred to Section 1983 of Title 28 not Title 42 as the statute under which he should have brought his action.  Not a big deal, you say?  Well, not substantively; Crisdon was going to lose no matter what.  But for a federal district court to make such a glaring citation error is virtually unheard of.  It's not like the court wasn't familiar with the civil rights statute, as §1983 cases are among the most frequently filed cases in a federal court.  Worse, non-lawyers rely on courts to get it right.  I can assure you that there are non-lawyers who are mistakenly citing 28 U.S.C. §1983 right now (LRP Publications did), and this court did them a minor disservice. 

Blame the judge you say?  Well, maybe.  The citation was likely inserted by the judge's clerk (a recent law school graduate) or by the court's staff attorneys.  The  judge's failure was one of editing.  Somebody will undoubtedly catch this error prior to publication in the Federal Supplement and the decision will be amended. 

Speculative damages

Now, you'll note that I said that Crisdon would have lost this case even if he hadn't made a bunch of procedural errors.  The reason: assuming a future pro career is engaging in speculation about a future harm.  Crisdon was simply guessing that he'd have been a pro athlete.  Courts don't grant damages for speculative future harms.  There has to be real damage (if there's real damage, a court may speculate on things like future earnings, but that's a different story). 

In short, Crisdon would have lost no matter what the moment that he started guessing about his future pro career. Crisdon had no chance to win - and simply clogged up the courts and wasted the taxpayer's money. 

The only thing positive about the case is that it can serve as an object lesson for parents and students who somehow believe that they can pin the blame for their lack of sports success on their school and/or coach.

1. NCAA (accessed July 26, 2011)

Posted July 26, 2011