The purpose of this article is to explore people, cases, situations that have a relationship between the state of Oregon and the study and teaching of sports law. Housed in the Ninth Circuit, but with only one federal district, Oregon is the home to three major professional sports teams: the Portland Trail Blazers of the National Basketball Association (NBA), the Portland Thorns of the NWSL and the Portland Timbers of Major League Soccer (MLS).1
Oregon-related examples, however, cover a broad spectrum emanating from interscholastic, intercollegiate, Olympic, and professional sport. Some cases reached the U.S. Supreme Court which addressed significant sports law decisions related to the Constitution, privacy, and the Americans with Disabilities Act. The subjects and content of this article can be utilized in the classroom by the both the sports law and business law professor alike.
One of the most significant drug-testing cases in American jurisprudence originated in Oregon, in Vernonia Sch. Dist. 47J v. Acton.2 James Acton, a seventh-grade student who wanted to play football in 1991, was not allowed to participate in interscholastic athletics because he and his parents refused to sign a consent form for random, urinalysis drug testing and filed a lawsuit alleging it violated his rights under the Fourth and Fourteenth Amendments of the U.S. Constitution.3
The random drug testing policy4 was instituted by the northwest Oregon community because during the 1980’s, the school district noticed a sharp increase in the amount of drug use coupled with an increase in disciplinary issues as well.5 The district also noticed that student-athletes were often the leaders of the drug problem.6
The Honorable Malcolm F. Marsh, authoring for the federal District Court for the District of Oregon, had ruled in favor of the drug testing policy and the school district, 7 but the Ninth Circuit Court of Appeals reversed.8 The U.S. Supreme Court granted certiorari and subsequently vacated the Ninth Circuit’s decision and, instead, upheld the constitutionality of the district’s random drug testing program for student-athletes.9
The U.S. Supreme Court opined that although the drug tests constituted a Fourth Amendment search, they were reasonable. The Court stated, “Taking into account all the factors we have considered above-the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search-we conclude Vernonia’s Policy is reasonable and hence constitutional.”10 The Court also cited and quoted its own decision from the previous decade in New Jersey v. T. L. O., “students within the school environment have a lesser expectation of privacy than members of the population generally.”11 Thus, Vernonia’s drug testing policy withstood constitutional scrutiny in this 1995 decision.12
The 1990’s Acton case was significant, and it remains one of the three major Supreme Court decisions involving drug-related searches of interscholastic students. It falls in between the 1980’s decision of New Jersey v. T. L. O.,13 which had nothing to do with urine samples or drug testing of student-athletes though it address the constitutionality of a search of a public high school student for contraband after she was caught smoking in her school’s lavatory,14 and the 2002 decision in Bd. of Educ. v. Earls,15 a 5-4 decision,16 extending the rationale in Acton by upholding the constitutionality of such drug-testing programs for all students participating in any extracurricular activity, not just those involving student-athletes.17 The bottom line is that Oregon’s Acton case remains a vital part of the trilogy of cases from three consecutive decades in which the Supreme Court sided with the school districts over the reasonableness of searches and drug testing policies,18 though only the Oregon case was specific to a student who was also an athlete.
The most significant disability and sports law case to reach the Supreme Court, PGA Tour, Inc. v. Martin19 addressed the applicability of the Americans with Disabilities Act (ADA) of 1990 to professional golf tours. The PGA Tour, a private organization, required all golfers to walk between shots during the third stage of its qualifying tournament.20 Casey Martin, a Eugene, Oregon native whose circulatory condition impaired his ability to walk, sued the PGA Tour under the ADA, asserting that it must accommodate his disability by allowing him to use a golf cart.21 The Supreme Court ruled for Martin in this 7–2 decision in 2001 thereby affirming the Ninth Circuit Court of Appeals.22
The Supreme Court affirmed both the District Court and the Ninth Circuit’s decisions that the ADA requires that a reasonable accommodation23 be provided to an athlete with a disability unless the requested modification would fundamentally alter the nature of the competition.24 The Court noted that the PGA Tour’s stated reason for requiring golfers to walk the course was to “inject the element of fatigue into the skill of shot-making,”25 but that Martin’s leg condition was so severe that that the fatigue he suffers from coping with his disability is “undeniably greater” than the fatigue his able-bodied competitors endure from walking the course.26
In sum, to the Supreme court-just as the lower courts-using the cart in this instance would not fundamentally alter the nature of the sport of golf. Though Martin retired as a professional golfer, he has served as the head golf coach at the University of Oregon since 2006.27
Oregon has had an impressive share of Olympians. What follows are a few examples of the significant impact certain individuals have had on sports law.
Prior to the adoption of the Amateur Sports Act (ASA) in 1978, the Amateur Athletic Union (AAU) represented the U.S. for international competition and regulated amateur sports generally.28 The AAU had adopted rules which prohibited women from participating in running events.29 It also banned any runner who had raced in the same event as a runner with a shoe-company sponsorship.30 Obviously, the legitimacy of these rules is unfathomable by today’s standards.
As a result of such rules, a public battle was waged by University of Oregon student-athlete Steve Prefontaine, the U.S. middle and long-distance runner from Coos Bay, Oregon, who competed in the 1972 Olympics and a year later accepted sponsorship from Nike.31 Prefontaine represented the U.S. in the 1972 Munich Olympics finishing fourth overall in his first and only Games.32 Unfortunately, Prefontaine died on May 30, 1975 (age 24) in an auto accident.33
Still, Prefontaine’s public protest, along with others who were discontent with AAU’s strict amateurism rules in track and field were not held in vain.34 Just three years after his death, Congress passed the Amateur Sports Act of 1978 (ASA) giving a voice to amateur and Olympic athletes as never had been available before.35
Twenty years later, Congress modified the Act again and renamed it the Ted Stevens Olympic and Amateur Sports Act of 1998 (TSOASA).36 The TSOASA expanded USOC’s role in promoting the Paralympic Games as well as enhancing due process rights for athletes by creating an ombudsman position.37 The public battles that the Oregonian and his peers waged in the early 1970s brought attention to the plight of the amateur Olympic athlete’s relationship to the AAU which ultimately led to change for the better for all involved in the Olympic Movement.38
Portland-area figure skater Tonya Harding was implicated in an off-the-ice-arena attack on rival U.S. skater Nancy Kerrigan on January 6, 1994 at the United States Figure Skating Championships at Detroit’s Cobo Arena during a practice session.39 Harding won the U.S. Championships a few days later on January 8, and she and Kerrigan were selected to represent the U.S. at the upcoming Olympics despite Kerrigan being unable to participate in the event due to the knee injury she suffered from the attack.40
Turmoil ensued after the attack on Kerrigan, and Harding sought legal recourse to ensure that she would not be banned from the upcoming 1994 Lillehammer, Norway Olympic Games, just days away, and she succeeded as her lawyers and the USOC reached a deal to allow her to compete if gave up her $20 million lawsuit against the USOC.41 Also, recognizing that the United States Figure Skating Association (USFSA) was not following its own bylaws, and that such failure could cause irreparable harm to Harding, the U.S. District Court for the District of Oregon granted Harding an injunction.42 At the Olympics, the women’s singles were held February 23-25, 1994, and Harding finished eighth place while Kerrigan finished second, winning the silver medal.43
Harding later pled guilty to criminal conspiracy charges-a felony-and resigned from the USFSA.44 In her plea, Harding admitted only that she learned of the plot to assault Kerrigan after returning home and that she took part in covering it up.45 In the end, the USFSA voided Harding’s 1994 national championship title and banned her from the sport for life.46
Harding’s situation resulted in chaos and legal action. However, it is important to recognize that the legal challenge seeking an injunction would not have played out the way it did today, after enactment of the TSOASA in 1998.47 Part of the Act requires that disputes such as Olympic team selection must be addressed by binding arbitration rather than through the American legal system.48 Harding’s injunction against the USOC was one of several high-profile Olympic athletes who used the courts to seek redress, but the TSOASA was designed, in part, to prevent chaos and such challenges through the courts though it took a few years to get used to the fact that arbitration superseded litigation related to disputes related to the U.S. Olympic Movement.49
Neither Oregonians Steven Prefontaine nor Tonya Harding ever won a gold medal in the Olympics for the United States. Nonetheless, their overall athletic exploits coupled with their personal sagas are legendary. Indeed, both helped to shape the nature of the relationship between the overall authority of the USOC, its relationship to its national governing bodies (NGBs), athlete rights and the authority of the courts over such matters.
For decades, Oregon remained one of only four states that were grandfathered in under the Professional and Amateur Sports Protection Act (PASPA), the law that effectively banned sports betting in all but Oregon, Nevada, Delaware, and Montana.50 The federal law, passed in 1992, allowed all forms of sports betting that already existed in states to continue.51 However, Oregon eventually moved away from sports gambling anyway at that time.
For example, Sports Action was a parlay game introduced by the Oregon Lottery in 1989, at first only for NFL games, and then later for NBA games.52 The state of Oregon was sued by the NBA to discontinue the NBA part of Sports Action, and it stopped offering the NBA games after one year. 53 Additionally, the NCAA refused to hold basketball NCAA tournament games in the state while Sports Action was still allowed to operate even though it did not take wagers on college basketball.54 Eventually, the state of Oregon passed a bill in 2005 to end Sports Action by 2007.55 Accordingly, the NCAA then gave Oregon an NCAA tournament regional, as Portland hosted games in the 2009 NCAA men’s basketball tournament.56
The entire local, state, and federal landscape of sports gambling changed in the United States in 2018, however, due to the decision in Murphy v. Nat’l Collegiate Athletic Ass’n,57 a case emanating from New Jersey, as it sought to have PASPA overturned so it could engage in sports betting like Oregon and the other three states. On May 14, 2018, the U.S. Supreme Court in a 7-2 decision held that PASPA was unconstitutional as it violated the anti-commandeering principle of the Tenth Amendment which stands for the concept that it is unconstitutional to make federal laws yet place the responsibility of enforcement on the states.58 Oregon brought sports gambling back to the state soon thereafter, in 2019.59
Oregon has not statutorily adopted the limited duty rule (also known as the baseball rule) which was first recognized over a century ago in a Missouri case.60 This principle, adopted in at least twelve states, essentially immunizes teams, owners, operators and architects from flying objects-such as foul balls-that emanate from the field of play either under a statutory framework or an assumption of risk analysis, as long as certain conditions are met such as screening behind home plate.61
In Curtis v. Portland Baseball Club,62 a spectator was injured when a foul ball was hit around the screen and struck him in the nose. He sued for negligence alleging that the team failed to provide a safe place to watch the baseball game.63 The baseball club argued the affirmative defenses of contributory negligence and assumption of the risk.64
On appeal, the court found that the baseball club did not have a duty to protect the public that required more than the erection of the screen and that accident that resulted in harm to the injured party was both unusual and unexpected.65 The Supreme Court of Oregon stated, “The accident was one which could not reasonably have been anticipated.”66 As a result, the court reversed the judgment of the trial court.67
In Hunt v. Portland Baseball Club,68 which cited the Curtis decision twice, an injured spectator was hurt when he was struck by a foul ball while attending a home game at the same stadium.69 Though a jury awarded the spectator $2,450 in damages, the circuit court overruled the jury after a motion notwithstanding the verdict.70 The judgment of the circuit court was upheld on appeal under an assumption of risk analysis.71 The Oregon Supreme Court stated, “We are brought to the conclusion that plaintiff by his own act of knowingly placing himself in an area of appreciated risk, which was not created by any unreasonable conduct of the defendant, bars him from recovery for his injuries.”72
Though Oregon has not explicitly adopted the baseball rule, these numerous decades-old Oregon cases have determined that foul ball injuries suffered by spectators have not afforded them with legal remedies and recourse in the courts.
Oregon has had its legal challenges related to discrimination and sport though Oregon is considered a state that is transgender friendly for high school students who wish to compete based upon their gender identity.73 Indeed, Oregon has had claims related to gender and Title IX.74 One prominent example includes how Cynthia Pemberton, who joined Linfield College as assistant athletic director for women’s sports in 1989, claimed that women’s sports there were treated poorly to the point that some had to pay for their own uniforms. Her passion led Linfield College into compliance with Title IX.75
In an Equal Pay Act case, Dugan v. Oregon State Univ.,76 Vickie Dugan who coached softball at Oregon State University (OSU) from 1988 to 1994, sued the university after being replaced by a male. She offered evidence that OSU paid her less than men, provided poor facilities for her team, failed to hire assistant coaches, and provided limited scholarship money for players.77 However, OSU argued that she was fired for her performance in which her last season her team went 0-24.78 After a three-week trial the jury ruled in favor of Dugan awarding her $1.28M in the federal case in federal district court in Eugene.79
Oregon enacted its first sport concussion law for school districts beginning in 2010.80 Today, an interscholastic athlete suspected of sustaining a concussion must be removed from play or practice and must be cleared by a “qualified health care professional” such as a licensed physician before returning to activity.81
This Oregon statute is known as Max’s Law, named after Max Conradt, a high school quarterback who sustained a concussion in a football game in 2001.82 Without receiving medical clearance, he played in the next game only to collapse at halftime due to massive bleeding in his brain, and requiring multiple brain surgeries and was in a coma for three months.83
Oregon then passed Jenna’s Law, effective 2014 extending the intent of Max’s Law to Oregon youth sports and referee organizations.84 It is named after Jenna Sneva, a young woman who sustained at least eleven concussions while participating in club soccer and competitive skiing, suffering physical and cognitive defects because of her brain injuries.85 Jenna’s Law essentially extends Max’s Law to youth-sport athletes.86
Effective 2018, Oregon passed its Revised Uniform Athlete Agents Act,87 a comprehensive statutory framework which expanded the definition of sports agent to include runners for the agent as well.88 The statute does provide for criminal89 and civil90 penalties. Registration is required91 to “recruit or solicit”92 an eligible student-athlete within Oregon.93 However, the definition of “athlete agent” does not include anyone acting solely on behalf of a professional sports team or organization.94 This exclusion might, for example, include individuals who work for Oregon-based Nike or Adidas. Indeed, there has been concern over the years related to the degree of influence that certain individuals, such as Nike’s founder Phil Knight, has had over the University of Oregon, but this statute would not apply to him in his role as Chairman of Nike alone.95
Concerns regarding overzealous sports agents, the NCAA and its traditional no-agent rules, Oregon State University had to forfeit fifteen basketball games in 1976 after the Ninth Circuit Court of Appeals reversed a lower court’s injunction which had been in favor of OSU’s Lonnie Shelton in Shelton v. NCAA.96 Shelton admitted that he signed a professional contract with an American Basketball Association (ABA) team, but he asserted that he signed it by fraud and undue influence by a sports agent.97
The NCAA declared Shelton ineligible,98 but Shelton sued in response, alleging a violation of the Equal Protection Clause, and was granted a preliminary injunction. On February 20, 1976, the Ninth Circuit Court of Appeals announced from the bench that it was reversing the district court’s granting of a preliminary injunction.99 In sum, the Court of Appeals agreed with the NCAA’s decision as the no-agent rule was rationally related to promoting the NCAA’s goals of preserving amateurism in intercollegiate athletics, thereby not violating the Equal Protection Clause of the U.S. Constitution.100
Oregon provides a host of other sport-related legal issues worth exploring.101 This includes many incidents and examples that are noteworthy and could be utilized as part of class engagement and discussion, including antitrust,102 contract,103 employment,104 and intellectual property law-related issues to include name, image, and likeness legislation.105 For example, Oregon is the first (and only) state to adopt statutory requirement that in higher education that minority candidates must be considered in the hiring process,106 with the specific reference to “head coach or athletic director” in the state statute itself.107 Additionally, there are other statutory examples one can explore such as Oregon having a specific crime of sports bribery both for offering108 and accepting109 a bribe for which the state law classifies as a felony. The following sections represent additional examples related to Oregon and the study of sports law.
Though it took place outside the state, in 2009 University of Oregon running back LeGarrette Blount punched Boise State’s Byron Hout in the face after the first game of the season as the teams were leaving the field in Boise. Hout taunted Blount verbally, but Blount used physical violence in response. Blount then hit a teammate and had to be restrained from approaching a group of hostile fans in the stands, was escorted to the locker room, and was suspended for eight games.110
Similarly, a little over a decade earlier in 1995 and within Oregon’s borders, NBA player Vernon Maxwell of the Houston Rockets attacked a spectator in Portland during the game.111 He was suspended for ten games by the NBA and fined $20,000.112 In both instances, no charges were ever filed giving students of sports law pause as to what constitutes legitimate as opposed to illegitimate sports violence.113
Oregon has a statutory framework to protect sports officials both from a civil and criminal law perspective. For example, if a sports official is subject to offensive physical contact knowingly by a civil defendant, that official may also receive between $500 and $1,000 in “liquidated damages” as a result of the contact in addition to any other damages claimed by the sports official.114 The official also has under the law the authority to expel a person from a sports event where there is “inappropriate behavior.”115 In fact, in the even that person does not leave, then that is considered a criminal trespass under Oregon law, a misdemeanor.116
Oregon has a statutory framework that addresses school-related harassment, intimidation and bullying, including cyberbullying.117 Oregon also addresses hazing.118 However, the statutory law did not prevent an incident at Philomath High School in 2016 when the high school football season was cancelled due to hazing.119 Upperclassmen hazed at least eleven freshman football players at a conditioning camp initiation, necessitating the hiring of a private investigator.120 Apparently the hazing was part of the culture “instilled as part of the institution.”121 Six upperclassmen were charged with misdemeanors for harassment.122
OSU has been in the national discussion in recent years due to a sexual assault that occurred in 1998 on its campus.123 Brenda Tracy reported being gang-raped by football players while attending a party at OSU.124 The school punished the players with a one-game suspension and 25 hours of community service.125 Since 2014, Tracy has visited college campuses to speak to football players about sexual assault,126 and the momentum convinced the Pac-12 conference to adopt rules barring programs from offering scholarships to athletes who have been kicked off another team for assault and harassment.127
While not providing a definitive or clear-cut answer to religious accommodation in the interscholastic context, in Nakashima v. Or. State Bd. of Educ.,128 the Supreme Court of Oregon addressed the issue of whether the Oregon School Activities Association (OSAA)’s scheduling policy discriminated against Portland Adventist Academy’s (PAA) religious beliefs to not compete during their Sabbath of Friday through Saturday129 during the OSAA state basketball tournament.130 The OSAA did not schedule any athletic events on Sundays unless it was necessary due to such unforeseen circumstances as inclement weather.
PAA asked OSAA to alter the scheduling of the Class 2A Oregon State High School Boys’ Basketball Tournament so that it (might) not conflict with their religious observance, but the OSAA informed PAA that beginning with the 1997 state basketball tournament, PAA would have to commit to playing according to OSAA’s schedule even if that meant a conflict with their own religious beliefs, resulting in the first lawsuit.131 OSAA argued that its policy was religion-neutral132 and that complying with the Oregon statute would confer an additional “privilege” to the PAA.133 An appeal was made to the Oregon State Board of Education arguing religious discrimination under state law.134
After years of litigation, the Supreme Court of Oregon agreed to hear the case and ruled against the defendant Board which attempted to show that a rescheduling in favor of PAA would violate the U.S. Constitution’s Establishment Clause. The court stated,
[bq]The requirements of the federal Establishment Clause in this -- or perhaps any -- context cannot be reduced to a simple verbal formulation, such as a declaration that the clause is violated whenever an accommodation for persons with religious beliefs involves more than a de minimus burden on others. We therefore reject OSAA’s position that the federal Establishment Clause requires the board to apply a de minimus burden test. The analysis required by the Establishment Clause is qualitative, not quantitative. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971) (Establishment Clause analysis considers whether governmental action has a secular purpose, a neutral effect on religion, and avoids governmental entanglement in religious matters). In this case, the burdens that OSAA asserts may be imposed on other tournament participants and fans if OSAA alters the tournament schedule -- i.e., possible ticket price increases, inconvenience in securing the best seats for the tournament -- do not involve legally protected rights or interests of private parties. Nor does changing OSAA’s policies so that petitioners may play in the tournament without conflict with their religious beliefs entail any government sponsorship or entanglement with religion that violates federal Establishment Clause principles. OSAA’s arguments to the contrary are without merit. Id. at 524.
The Court noted that OSAA was indeed a state actor, subject to both state and federal constitutional law in accord with the 2001 U.S. Supreme Court decision in Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n.135 The bottom line is that “religious rights and freedoms may not be curtailed by sports scheduling unless any such accommodations would prove to be unreasonable.”136
Oregon is rich with examples of people, cases, and situations that have a relationship between the state and the study and teaching of sports law. The broad spectrum includes examples from interscholastic, intercollegiate, Olympic, and professional sport. Some cases reached the U.S. Supreme Court, such as the case involving golfer Casey Martin and the drug-testing challenge in the Acton case. Indeed, Oregon is only one of the few states that have had sports law decisions reach the U.S. Supreme Court, and it has two.
With Oregon comes examples of heroes and villains in the context of sports and the law. Oregon is one of the first states to adopt a return-to-play concussion statute in both Max’s Law and Jenna’s law. Ahead of the curve, Oregon instituted a mandatory “minority” consideration during the hiring process for head coaches and athletic directors in higher education. From a pedagogical perspective Oregon is rich with opportunity for professors and students and provides plenty of significant material for those interested in state-specific sports law research.
1. See Your City Beat, Oregon, https://www.yourcitybeat.com/oregon/ (last accessed May 21, 2021).
2. 515 U.S. 646 (1995) (hereinafter “Acton”). The majority opinion was authored by Scalia in a 6-3 decision (O’Connor, Stevens and Souter dissenting). At the time of this writing, according to the Lexis.com Shepard’s® report, the case has been cited 1,049 times, 667 appearing in the federal courts and 382 in state courts.
3. Id. at 651. The program was known as “The Student Athlete Drug Policy” and it was instituted in Fall 1989. Id. at 649-50.
4. “Athletes are tested at the beginning of the season for their sport. In addition, once each week of the season the names of the athletes are placed in a “pool” from which a student, with the supervision of two adults, blindly draws the names of 10% of the athletes for random testing. Those selected are notified and tested that same day, if possible.” Id. at 650.
5. Id. at 648-49. (“Petitioner Vernonia School District 47J (District) operates one high school and three grade schools in the logging community of Vernonia, Oregon. As elsewhere in small-town America, school sports play a prominent role in the town’s life, and student athletes are admired in their schools and in the community.”) Id. at 648.
6. Id. at 649.
7. Acton v. Vernonia Sch. Dist. 47J, 796 F. Supp. 1354 (D. Or. 1992) (Hon. Malcolm F. Marsh).
8. Acton v. Vernonia Sch. Dist. 47J, 23 F.3d 1514 (9th Cir. 1994) (stating, “Given the Fourth Amendment, given our traditions, given our law, we are constrained to hold that the Policy is invalid under the Fourth Amendment. That being so, Oregon would find it invalid under Article I, Section 9, of its Constitution. As we have already indicated, it would probably do so with less lucubration, and with less spilt ink.” Id. at 1527.).
9. Action at 666 (stating, “The Ninth Circuit held that Vernonia’s Policy not only violated the Fourth Amendment, but also, by reason of that violation, contravened Article I, § 9, of the Oregon Constitution. Our conclusion that the former holding was in error means that the latter holding rested on a flawed premise. We therefore vacate the judgment, and remand the case to the Court of Appeals for further proceedings consistent with this opinion.”).
10. Id. at 664-65.
11. Id. at 657 (citing New Jersey v. T. L. O., 469 U.S. 325, 348 (1985) (Powell, J., concurring).
12. It should be noted that the testing did not appear to be for performance-enhancing drugs (PEDs) such as anabolic steroids, but rather for illegal, street drugs. “The samples are sent to an independent laboratory, which routinely tests them for amphetamines, cocaine, and marijuana. Other drugs, such as LSD, may be screened at the request of the District…”. Id. at 651-52.
13. 469 U.S. 325 (1985).
14. Id. A search of her purse revealed drug paraphernalia, marijuana, and documentation of drug sales. In a 6-3 ruling, search was reasonable under the Fourth Amendment.
15. 536 U.S. 822 (2002). Authored by Justice Thomas, the Supreme Court ruled against the challenge brought by two students, Lindsay Earls and Daniel James (and their families) against the school board of Tecumseh, Oklahoma, “a rural community located approximately 40 miles southeast of Oklahoma City.” Id. at 826.
16. Ginsburg, Stevens, O’Connor, and Souter dissented. O’Connor authored, “I dissented in Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995), and continue to believe that case was wrongly decided. Because Vernonia is now this Court’s precedent, and because I agree that petitioners’ program fails even under the balancing approach adopted in that case, I join JUSTICE GINSBURG’s dissent.” Id. at 842.
17. “In the fall of 1998, the School District adopted the Student Activities Drug Testing Policy (Policy), which requires all middle and high school students to consent to drug testing in order to participate in any extracurricular activity. In practice, the Policy has been applied only to competitive extracurricular activities sanctioned by the Oklahoma Secondary Schools Activities Association, such as the Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, pom pon, cheerleading, and athletics. Under the Policy, students are required to take a drug test before participating in an extracurricular activity, must submit to random drug testing while participating in that activity, and must agree to be tested at any time upon reasonable suspicion. The urinalysis tests are designed to detect only the use of illegal drugs, including amphetamines, marijuana, cocaine, opiates, and barbituates (sic), not medical conditions or the presence of authorized prescription medications.” Id. at 826.
18. The Bd. of Educ. v. Earls decision included the majority decision, the syllabus, headnotes, dissenting opinions and footnotes reference the Acton case 91 times according to Lexis Advance® source. One might also explore whether there is a relationship between these Supreme Court decisions and First Lady Nancy Reagan’s contemporaneous “Just Say No” to drugs campaign of the 1980s-1990s.
19. PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (Stevens, J., joined by Rehnquist, Ch. J., and O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ.). The lawsuit began in the U.S. District Court of Oregon in Martin v. PGA TOUR, Inc., 994 F. Supp. 1242 (D. Or. 1998).
20. PGA Tour, Inc. v. Martin, supra, at 666.
21. Id. at 668 (“Martin is also an individual with a disability as defined in the Americans with Disabilities Act of 1990 (ADA or Act). Since birth he has been afflicted with Klippel-Trenaunay-Weber Syndrome, a degenerative circulatory disorder that obstructs the flow of blood from his right leg back to his heart. The disease is progressive; it causes severe pain and has atrophied his right leg. During the latter part of his college career, because of the progress of the disease, Martin could no longer walk an 18-hole golf course.”).
22. Id. at 691; For another federal case related to the ADA and sports law, see Indep. Living Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1159, 1169 (D. Or. 1998) (“Title III of the ADA outlaws not just intentional discrimination but also certain practices that have a disparate impact upon persons with disabilities even in the absence of any conscious intent to discriminate.”).
23. For similar discussion of the ADA in the context of sport addressing a “reasonable accommodation,”, see Bingham v. Oregon Sch. Activities Ass’n, 37 F. Supp. 2d 1189 (D. Or. 1999) (granting a student-athlete an injunction allowing him to participate in interscholastic athletics because though he had completed eight semesters of high school, he repeated his sophomore year due to academic and learning difficulties. Having transferred from Florida, Bingham did compete as a junior in Oregon. Still, the court ruled for Bingham, deciding that because Bingham had repeated his sophomore year due to his disability, he was covered under the ADA, and the waiving of the eight-semester rule by the association would be a reasonable accommodation for Bingham).
24. PGA Tour, Inc. v. Martin, at 672 (referencing the District Court decision and quoting, “…the judge concluded that it would “not fundamentally alter the nature of the PGA Tour’s game to accommodate him with a cart.” 994 F. Supp. at 1252. The judge accordingly entered a permanent injunction requiring petitioner to permit Martin to use a cart in tour and qualifying events.”).
25. Id. at 686 (quoting and referencing the District Court decision, 994 F. Supp. at 1250).
26. Id. at 672 (quoting and referencing 994 F. Supp at 1251).
27. Univ. of Oregon Athletics, Casey Martin, https://goducks.com/coaches.aspx?rc=761 (“His efforts in that landmark case earned him the 1998 Ben Hogan Award, given annually to a competitor who continues to be active in golf despite a physical handicap. In 2001, Nike began bestowing an annual Casey Martin Award to recognize a disabled athlete.”). In 2019, professional golfer John Daly could use a cart due to a knee injury. See Associated Press, Daly gets OK to use cart at PGA Championship, ESPN (May 7, 2019), http://www.espn.com/golf/story/_/id/26695009 (becoming the “first player to ride a cart in a major championship since Casey Martin in the U.S. Open at Olympic Club in 1998 and 2012.”).
28. Adam Epstein, Sports Law 322 (2013) (hereinafter Epstein).
29. Id.
30. Id.
31. See Nike, 40 Years of Prefontaine, https://news.nike.com/news/40-years-of-prefontaine (providing that Prefontaine won seven NCAA titles: three in cross country, four in track).
32. Id.; see also Steve Shields, Steve Roland Prefontaine: The Legend, Bleacher Report (July 14, 2009), https://bleacherreport.com/articles/217620-steve-roland-prefontaine-the-legend.
33. Id. (sharing that today Nike has a building named after him at their headquarters).
34. Id. (“It was during this year [1973] that Prefontaine began a protracted fight with the Amateur Athletic Union (AAU), which demanded that athletes who wanted to remain “amateur” for the Olympics not be paid for appearances in track meets.”); see also, Adam Epstein, The Ambush at Rio, 16 J. Marshall Rev. Intell. Prop. L. 350, 372-373 (offering that Steve Prefontaine and others turned to public protests and citing Mary Pilon, Steve Prefontaine’s Last Run, Grantland (May 29, 2015), http://grantland.com/features/steve-prefontaine-death/; see also Steve Bence, College Football Needs a Prefontaine, Says Ex-Oregon Runner Who Defied NCAA, OregonLive.com (May 2, 2011), http://www.oregonlive.com/ducks/index.ssf/2011/05/college_football_needs_its_own.html).
35. Epstein, supra note 28, at 322 (referencing the Amateur Sports Act (ASA) formerly at 36 U.S.C. § 380, now 36 U.S.C. § 220506 et seq.).
36. Epstein, supra note 28, at 322. Stevens was a U.S. Senator from Alaska.
37. Id.
38. Prefontaine was not the only activist runner emanating from Oregon who believed that Olympic athletes were subject to unfair rules. A more recent example includes former Willamette University-turned-U.S. Olympic runner Nick Symmonds, whose company Gold Medal LLC, doing business as Run Gum, sued USA Track & Field (USATF) and the USOC alleging that a rule restriction that forbade athletes from competing at the 2016 Olympic Trials in apparel bearing individual sponsorship was an illegal restraint on trade under section 1 of the Sherman Act, 15 U.S.C. § 1. The claim was dismissed with prejudice, however. The court stated “Because Congress charged Defendants with financing the United States’ participation in the Olympics, in part by preserving the value of the Olympic brand, Run Gum’s challenge fails under an implied grant of immunity. USATF and USOC may exercise control over the apparel worn by competitors on the field of competition at the Olympic Trials, particularly as it relates to individual advertisements and sponsorships that would undercut USOC’s fundraising mission. See Gold Medal LLC v. USA Track & Field, 187 F. Supp. 3d 1219 (D. Or. 2016). The case references the Amateur Sports Act of 1978 and TSOASA (“…it allows USOC and USATF to preclude athletes from becoming human billboards at the Trials-a ban which is necessary to finance Team USA.”) Id. at 1231. Symmonds was not a native Oregonian, but he attended college at Willamette University and was a four-time Division III national champion in the 800m, three-time national champion in the 1,500m. See Mark Bedics, Willamette’s Nick Symmonds Came Close to Giving Up His Sport Before His First Season, NCAA.org (July 22, 2019), https://www.ncaa.org/champion/willamette-s-nick-symmonds-came-close-giving-his-sport-his-first-season.
39. See Tanya Wildt, Attack on Nancy Kerrigan: A Timeline of Events, Detroit Free Press (Dec. 7, 2017), https://www.freep.com/story/news/local/michigan/detroit/2017/12/07/nancy-kerrigan-tonya-harding-timeline/866861001/.
40. Id.
41. See Christine Brennan, Deal Puts Harding in Olympics as Games Begin, Wash. Post (Feb. 13, 1994), https://www.washingtonpost.com/wp-srv/sports/longterm/olympics1998/history/timeline/articles/time_021394.htm.
42. See Harding v. United States Figure Skating Ass’n, 851 F. Supp. 1476 (D. Or. 1994) (referencing the injunction), vacated on other grounds, 879 F. Supp. 1053 (D. Or. 1995).
43. See Oregonian/OregonLive, 1994 Winter Olympics: Tonya Harding Finishes 8th in Women’s Figure Skating, (Feb. 25, 1994), https://www.oregonlive.com/tonya-harding/1994/02/1994_winter_olympics_tonya_har.html (updated Jan. 11, 2019).
44. See Oregonian/OregonLive, Tonya Harding’s Plea: Guilty Skater Admits She Hindered Investigation, Resigns from US Figure Skating Association, OregonLive (Mar. 16, 1994), https://www.oregonlive.com/tonya-harding/1994/03/tonya_hardings_plea_guilty_ska.html (offering that Harding pleaded guilty to conspiring to hinder prosecution and her sentence resulted in three years of probation and a fine of $100,000).
45. Id.
46. See Edward E. Hollis III, Note: The United States Olympic Committee and the Suspension of Athletes: Reforming Grievance Procedures Under the Amateur Sports Act of 1978, 71 Ind. L.J. 183 (1995) (discussing the Harding controversy along with similar circumstance involving sprinter Butch Reynolds, and calling for reforming grievance procedures under the Amateur Sports Act of 1978); see also Christine Brennan, Harding Stripped of Title; Banned for Life, Wash. Post (July 1, 1994), https://www.washingtonpost.com/wp-srv/sports/longterm/olympics1998/history/timeline/articles/time_070194.htm.
47. See Epstein, supra note 28, at 322.
48. Id. at 415-16 (“Arbitration is the method of choice for conflict resolution in the Olympic Movement and the USOC. In 1998, the Ted Stevens Olympic and Amateur Sports Act (TSOASA) re-emphasized the use of arbitration to resolve Olympic and amateur sports disputes. The TSOASA grants the USOC the authority “to provide swift resolution of conflicts and disputes involving amateur athletes.” The Act also recognizes the American Arbitration Association as the dispute-resolution administrator.”).
49. Id. at 416 (providing as an example, Lindland v. United States Wrestling Ass’n, 230 F.3d 1036 (7th Cir. 2000), involving the selection of who would represent the United States in the 167.5 (76 kilogram) weight class of Greco-Roman wrestling in a chaotic display of uncertainty over the authority of U.S. Olympic team selection process and whether courts or arbitrators actually had the power to decide Olympic team selection controversies); see also Susan Schwartz, Matt Lindland: The Fight For An Olympic Bid, 12 J. Legal Aspects of Sport 133 (2002) (referencing the Matt Lindland/Keith Sieracki debacle and other Olympic-related court cases as well including Jeffrey Michels, Anita DeFrantz et al., and Butch Reynolds); see also Adam Epstein, Alternative Dispute Resolution in Sport Management and the Sport Management Curriculum, 12(3) J. Legal Aspects of Sport 153, 164-65 (2002).
50. See Epstein, supra note 28, at 177. PASPA was also known as the “Bradley Act” and found at 28 U.S.C. §§3701-3704.
51. Id.; Note that Montana allowed sports gambling entirely in 2019. See Scott T. Miller, Montana Becomes Ninth State to Legalize Sports Betting, Action Network (May 3, 2019), https://www.actionnetwork.com/news/montana-legal-sports-betting-2019 (noting that at the time it joined Nevada, New Jersey, Rhode Island, West Virginia, Pennsylvania, Delaware, Mississippi and New Mexico to offer full-fledged sports gambling).
52. See Dustin Gouker, Could Sports Betting Return to Oregon If NCAA Tournament Heads to Vegas?, Legal Sports Report (Dec. 16, 2015), https://www.legalsportsreport.com/6865/oregon-sports-action-possible-return/.
53. See Nat’l Basketball Assoc. v. Oregon State Lottery Comm’n, No. 89-6470 (D. Or. filed December 21, 1989).
54. Gouker, supra note 52; see also Mark Anderson, NCAA Ends Ban, Paves Way for Las Vegas to Host Title Events, Las Vegas Rev.-J. (May 3, 2019), https://www.reviewjournal.com/sports/betting/ncaa-ends-ban-paves-way-for-las-vegas-to-host-title-events-1655310/ (offering that the NCAA changed its policy altogether and that states that have legal sports wagering may host championship events).
55. Id.
56. Id.
57. 138 S. Ct. 1461 (2018). The case was titled Christie v. Nat’l Collegiate Athletic Ass’n until Governor Chris Christie left office.
58. Id. (Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Kagan, and Gorsuch, JJ., joined, and in which Breyer, J., joined as to all but Part VI-B) (reversing the lower courts and favoring New Jersey by deciding that PASPA violated the Tenth Amendment’s protection against anti-commandeering of federal laws).
59. See Grant Lucas, Oregon Sports Betting Could Be Live by NFL Season, State Lottery Says, Legal Sports Report (Feb. 5, 2019), https://www.legalsportsreport.com/28501/oregon-targeting-sports-betting-launch-by-nfl/; see also Michael Molter, Oregon Launches Sports Betting at Chinook Winds, Mobile Not Far Behind, Legal Sports Betting (Aug. 27, 2019), https://www.legalsportsbetting.com/news/oregon-launches-sports-betting-at-chinook-winds-mobile-not-far-behind/; see also Eric Ramsey, There’s One Clear Winner in SBTech Monopoly of Oregon Sports Betting, Legal Sports Betting (Mar. 24, 2020), https://www.legalsportsreport.com/39376/sbtech-oregon-sports-betting-contract/.
60. See Crane v. Kan. City Baseball & Exhibition Co., 153 S.W. 1076, 1078 (Mo. Ct. App. 1913) (ruling that since Crane had chosen a seat in an unprotected section down the third base line, he “assumed the ordinary risks of such position.”); but see Edling v. Kan. City Baseball & Exhibition Co., 168 S.W. 908 (Mo. Ct. App. 1914) (affirming decision for plaintiff against ballpark owner whose netting was shown to be defective in that a foul ball passed through a large hole and struck plaintiff in the face, breaking his nose. The Court of Appeals of Missouri stated, “Defendant recognized this duty by screening that part of the grandstand most exposed to the battery of foul balls and impliedly assured spectators who paid for admission to the grandstand that seats behind the screen were reasonably protected.”). Id. at 909-10.
61. See Epstein, supra note 28, at 119-125.
62. Curtis v. Portland Baseball Club, 279 P. 277 (Or. 1929).
63. Id. at 277.
64. Id.
65. Id. at 278.
66. Id.
67. Id.
68. 296 P. 2d 495 (Or. 1956).
69. Id. at 497.
70. Id. at 495-96.
71. Id. at 503 (stating, “It is seen from the foregoing that the challenged judgment can be sustained upon two grounds: (a) the record discloses no negligence, and (b) the plaintiff-appellant had assumed the risk of injury.”).
72. Id. at 502-03.
73. See Chris Mosier, High School Policies, Oregon, https://www.transathlete.com/k-12 (last accessed May 21, 2021, providing a link to the OSAA Handbook and stating, “The Oregon School Athletic Association (OSAA) policy states that transgender students may participate in the category associated with their gender identity without restrictions. Gender fluid and non-binary youth may participate in the category they choose, but may not change that category during the season.”). For a unique and rare criminal case related to gender participation, see State v. Hunter, 300 P.2d 455 (Or. 1956), in which female wrestler Jerry Hunter was charged with the crime of “participating in wrestling competition and exhibition,” a violation of Or. Rev. Stat. § 463.130 which stated, “…No person other than a person of the male sex shall participate in or be licensed to participate in any wrestling competition or wrestling exhibition.” Though the court upheld the constitutionality of the statute, the statute itself was repealed in 1987.
74. See, e.g., Aiken v. Lieuallen, 593 P.2d 1243 (Or. App. 1979) (involving a violation of ORS 659.150, which prohibits discrimination on the basis of sex in state-financed educational programs modeled closely after the federal regulations implementing Title IX of the Educational Amendments of 1972, 20 USC § 1681); see also Austin v. Univ. of Or., Nos. 17-35559, 17-35560, 2019 U.S. App. LEXIS 16674 (9th Cir. June 4, 2019) (affirming the district court’s dismissal of a complaint brought by three male basketball players-the named plaintiff being Brandon Austin-from the University of Oregon who alleged that it discriminated against them on the basis of their sex in violation of Title IX and violated their due process rights in connection with the university’s sexual misconduct proceedings).
75. Cynthia Pemberton, More Than a Game: One Woman’s Fight for Gender Equity in Sport (2002).
76. See Andrea M. Giampetro-Meyer, Recognizing and Remedying Individual and Gender-Based Wage Discrimination in Sport, 37 Am. Bus. L.J. 343, 372-73 (2000) (citing Dugan v. Oregon State Univ., No. 95-6250-HO (D. Or. 1998) and discussing the case. Giampetro-Meyer also cites Brian A. Snow, Broadening the Demand for Gender-Equity in Athletics: Financial Aid and Coaches’ Compensation, 130 Educ. L. Rep. 965 (1999) for authority).
77. Id.; see also Jeffrey Selingo, Former Ore. State Coach Wins $1.28-Million, Chron. of Higher Educ. (Nov. 28, 1997), https://www.chronicle.com/article/Former-Ore-State-Coach-Wins/100195.
78. Id.
79. Id.
80. See CBIRT, Oregon Concussion Laws, https://cbirt.org/concussion/oregon-concussion-laws (offering that Max’s Law was enacted in 2010 and Jenna’s Law was enacted in 2014).
81. Or. Rev. Stat. Ann. § 336.485 (LexisNexis 2020). The statute states in (1)(b) “Qualified health care professional” means: (A) A physician licensed pursuant to ORS 677.100 to 677.228; or (B) A health care professional who meets the requirements described in section 3 of this 2018 Act to provide a medical release for a member of a school athletic team who is suspected of having a concussion.” The statute continues in (4) “(4) A coach may allow a member of a school athletic team to participate in any athletic event or training at any time after an athletic trainer registered by the Board of Athletic Trainers, or a physician licensed pursuant to ORS 677.100 to 677.228, determines that the member has not suffered a concussion. The athletic trainer or physician may, but is not required to, consult with a qualified health care professional in making the determination that the member of a school athletic team has not suffered a concussion.”
82. CBIRT, supra note 80.
83. Id.
84. Id.
85. Id.; see also Providence Health & Services, Oregon and Washington Concussion Laws, https://oregon.providence.org/our-services/p/providence-concussion-management/concussion-laws/ (offering that Washington was the first state to enact such concussion laws-known as the Zachery Lystedt Law, and Oregon followed suit soon thereafter).
86. Or. Rev. Stat. Ann. § 417.875 (LexisNexis 2020).
87. Or. Rev. Stat. Ann. § 702.001-702.995 (LexisNexis 2018) (much of the statutory framework represents the repeal of the previous statute).
88. The 2017 amendment by c. 113, § 3 (S.B. 5), effective January 01, 2018 added “or another person acting on behalf of the athlete” in § 702.005 (2)(a).
89. Or. Rev. Stat. Ann. § 702.991 (LexisNexis 2018).
90. Or. Rev. Stat. Ann. § 702.994 (LexisNexis 2018).
91. Or. Rev. Stat. Ann. § 702.012 (LexisNexis 2018).
92. Or. Rev. Stat. Ann. § 702.005 (14) (a) (LexisNexis 2018).
93. Or. Rev. Stat. Ann. § 702.005 (18) (LexisNexis 2018).
94. Or. Rev. Stat. Ann. § 702.005 (2) (b) (LexisNexis 2018).
95. See, e.g., Larry Getlen, Think Nike’s Woke? Phil Knight’s Castration of the University of Oregon Might Change Your Mind, N.Y. Post (Oct. 20, 2018), https://nypost.com/2018/10/20/how-nike-screwed-students-with-its-generous-college-donations/.
96. Shelton v. Nat’l Collegiate Athletic Ass’n, 539 F.2d 1197 (9th Cir. 1976).
97. Id. at 1197-98.
98. Id. at 1198.
99. Id. at 1197 (offering in note 1 that it would follow with the formal, written opinion which ended up three days later).
100. Id. at 1198. It is very important to note that this decision was decided over twenty years before the U.S. Supreme Court decision in Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179 (1988) which held that the NCAA is not a state actor; see also Matt Snyder, Ben Wetzler Suspended for 20 percent of Oregon State’s season, CBSSports.com (Feb. 21, 2014), https://www.cbssports.com/mlb/news/ben-wetzler-suspended-for-20-percent-of-oregon-states-season/ (providing that in 2014, senior pitcher Ben Wetzler was just suspended for eleven games (20% of the season) by the NCAA for violating its “no agent” rule. Though he did not sign with an agent, he “sought help” from one, thereby violating the NCAA “no-agent” rule at the time).
101. Consider, for example, that in 2020 OU and OSU decided to no longer reference their rivalry sport competitions between each other as “The Civil War” due to its obvious reference to the American war over racism and slavery. See Nick Daschel, Oregon State, Oregon Agree Not to Use the Term ‘Civil War’ for Sports Rivalry Games, Oregon Live (June 26, 2020), https://www.oregonlive.com/sports/2020/06/oregon-state-oregon-agree-not-to-use-the-term-civil-war-for-its-sports-rivalry-games.html.
102. See, e.g., James Crepea, Oregon Women’s Basketball’s Sedona Prince among 2 Pac-12 Athletes Suing NCAA, Power 5 Conferences for Share of TV, Social Media Earnings, Oregon Live (June 15, 2020), https://www.oregonlive.com/ducks/2020/06/oregon-womens-basketballs-sedona-prince-among-2-pac-12-athletes-suing-ncaa-power-5-conferences-for-share-of-tv-social-media-earnings.html
103. See Ken Goe, Oregon State University Sues Former Athletic Director Todd Stansbury for Breach of Contract, Oregon Live (Dec. 20, 2019), https://www.oregonlive.com/sports/2019/12/oregon-state-university-sues-former-athletic-director-todd-stansbury-for-breach-of-contract.html; Ken Sigiura, Oregon State Drops Lawsuit after Tech’s Todd Stansbury Pays Back Buyout, AJC.com (Feb. 14, 2020), https://www.ajc.com/sports/college/oregon-state-drops-lawsuit-after-todd-stansbury-pays-back-buyout/EU8xXdcGLr2TvCAgrHMNiP/; see also Andrew Greif, Oregon Ducks to Fire Football Assistant David Reaves after Arrest on DUII, Other Charges, Oregon Live (Jan. 22, 2017), https://www.oregonlive.com/ducks/index.ssf/2017/01/oregon_to_fire_david_reaves_co.html (discussing how five days after his hiring was officially announced by the Oregon Ducks, co-offensive coordinator David Reaves was in the process of being terminated (he resigned) after his arrest on charges of DUII, reckless driving and reckless endangerment); see also Lisa Horne, Oregon Ducks Football: Does Mark Helfrich’s Contract Raise Some Red Flags? Bleacher Report (Jan. 25, 2013), https://bleacherreport.com/articles/1501010 (noting how University of Oregon head football coach Mark Helfrich was required to “actively look for red flags of potential violations” as part of his contract).
104. See Heather Dinich, Lawsuit Seeks $11.5 Million from NCAA, Oregon, Ex-coach over Workout-caused Injuries, ESPN (Jan. 9, 2019), http://www.espn.com/college-football/story/_/id/25722383 (summarizing lawsuit against the NCAA, the University of Oregon and former Ducks football coach Willie Taggart on behalf of former Oregon offensive lineman Doug Brenner, seeking compensation for “serious, lifelong injuries sustained during a series of highly controversial workouts imposed on Duck players in January, 2017” resulting in rhabdomyolysis requiring hospitalization.).
105. See Leonard v. Nike Inc., No. 3:19-cv-01586-MO, 2020 U.S. Dist. LEXIS 86902 (D. Or. May 18, 2020) (holding that Nike, in fact, owned the “Claw Design” over NBA player Kawhi Leonard who claimed that it was his own in connection with his Nike basketball contract); see also James Crepea, Proposed Oregon College Athletes Name, Image, Likeness Bill No Longer Includes Royalty Payments from ‘Merchandising’ Deals, Oregon Live (May 20, 2021), https://www.oregonlive.com/sports/2021/05/proposed-oregon-college-athletes-name-image-likeness-bill-no-longer-includes-royalty-payments-from-merchandising-deals-after-ncaa-president-tells-sen-courtney-it-would-make-athletes-ineligible-as-employees.html.
106. Or. Rev. Stat. Ann. § 352.218 (LexisNexis 2020) (Affirmative action plan; interview of qualified minority applicants.) “Minority” is defined as, “(1) As used in this section, “minority” means: (a) A person having origins in any of the black racial groups of Africa but who is not Hispanic; (b) A person of Hispanic culture or origin; (c) A person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands; or (d) An American Indian or Alaskan Native having origins in any of the original peoples of North America.” As stated in the statute’s notes, this section was renumbered originally from ORS § 352.380 by the Oregon Legislative Counsel in 2015. For further discussion on affirmative action in the hiring process in Oregon’s athletic context in higher education, see Adam Rittenberg, Oregon Law on Hiring Minority College Coaches Works, So Why Isn’t It Used Elsewhere?, Undefeated (Jan. 9, 2020), https://theundefeated.com/features/oregon-law-on-hiring-minority-college-coaches-works-so-why-isnt-it-used-elsewhere/ (discussing how Oregon’s law reflects the National Football League’s “Rooney Rule” to increase opportunities for minority coaches).
107. Or. Rev. Stat. Ann. § 352.218 (3) (LexisNexis 2020), supra, stating “(2) Each public university listed in ORS 352.002 shall: (a) Consider and maintain affirmative action plans and goals when reductions in faculty and staff are required as a result of: (A) Reductions in revenue that necessitate discontinuance of its educational program at its anticipated level; (B) Elimination of classes due to decreased student enrollment; or (C) Reduction in courses due to administrative decisions. (b) Interview one or more qualified minority applicants when hiring a head coach or athletic director, unless the public university was unable to identify a qualified minority applicant who was willing to interview for the position. It is an affirmative defense to a claim of a violation of this paragraph that the public university, in good faith, was unable to identify a qualified minority applicant who was willing to interview for the position.”).
108. Or. Rev. Stat. Ann. § 165.085 (LexisNexis 2018) (Sports bribery).
109. Or. Rev. Stat. Ann. § 165.090 (LexisNexis 2018) (Sports bribe receiving).
110. See B.J. Rains, ‘Blount Punch’ Remembered Eight Years Later as Broncos, Ducks Renew Rivalry, Idaho Press (Dec. 12, 2017), https://www.idahopress.com/blueturfsports/football/blount-punch-remembered-eight-years-later-as-broncos-ducks-renew/article_fffea2c4-c3ff-5ec8-bd0e-f54267c9ed48.html.
111. See Associated Press, Maxwell Suspended and Is Fined $20,000, N.Y. Times (Feb. 9, 1995), https://www.nytimes.com/1995/02/09/sports/pro-basketball-maxwell-suspended-and-is-fined-20000.html.
112. However, he had many runs in with the law thereafter. See Kevin Brockway, For Vernon Maxwell, A Legacy Tarnished, Ledger (May 26, 2004), https://www.theledger.com/news/20040526/for-vernon-maxwell-a-legacy-tarnished.
113. Epstein, supra note 28, at 137, 165-69.
114. Or. Rev. Stat. Ann. § 30.882 (LexisNexis 2018) (“(4) As used in this section, “sports official” means a person who: (a) Serves as a referee, umpire, linesman or judge or performs similar functions under a different title; and (b) Is a member of, or registered by, a local, state, regional or national organization that engages in providing education and training in sports officiating.).
115. Or. Rev. Stat. Ann. § 164.276 (LexisNexis 2018).
116. Or. Rev. Stat. Ann. § 164.278 (LexisNexis 2018).
117. Or. Rev. Stat. Ann. §§ 339.351-339.368. (LexisNexis 2018); see also Joe Siess & Yadira Lopez, Ontario Cites ‘Bullying’ Behavior to Dismiss Former Football Coach, Malheur-Enter. (Oct. 15, 2019), https://www.malheurenterprise.com/posts/6236/ontario-cites-bullying-behavior-to-dismiss-former-football-coach; see also Chris Chavez, Inside the Toxic Culture of the Nike Oregon Project ‘Cult’, SI.com (Nov. 13, 2019), https://www.si.com/track-and-field/2019/11/13/mary-cain-nike-oregon-project-toxic-culture-alberto-salazar-abuse-investigation; see also Eddie Pells, Oregon State Sues AP to Stifle Request in Volleyball Case, Gazette Times (Mar. 28, 2021), https://www.gazettetimes.com/news/local/oregon-state-sues-ap-to-stifle-request-in-volleyball-case/article_b500272f-78dc-531b-a88a-82e477fe0e63.html.
118. Or. Rev. Stat. Ann. § 163.197 (LexisNexis 2018).
119. See Associated Press, How Hazing Ended a Football Season and Sent a Small Town Reeling, N.Y. Post (Sept. 22, 2016), https://nypost.com/2016/09/22/how-hazing-ended-a-football-season-and-sent-a-small-town-reeling/
120. Id.
121. Id.
122. Id.; see also Damien Sherwood, Ned Hickson, Nick Snyder & Joshua Leach, CGHS Locker Room Hazing Leads to Citation of Two Students, CGSentinel.com (Oct. 28, 2019), https://www.cgsentinel.com/article/cghs-locker-room-hazing-leads-to-citation-of-two-students (“An alleged hazing incident at Cottage Grove High School has resulted in the criminal citation of two 15-year-old boys and the discipline of at least seven others following a police and school district investigation. The allegations surfaced after a freshman junior varsity football player reported that he was harassed by two older varsity players in the school locker room.”).
123. See, e.g., Prachi Gupta, How a University is Addressing Campus Rape by Hiring a Rape Survivor, Cosmopolitan (Apr. 8, 2016), https://www.cosmopolitan.com/politics/news/a56545/osu-campus-rape-brenda-tracy/.
124. Id.
125. Id.
126. Id.
127. Id.
128. 185 P.3d 429 (Or. 2008) (hereinafter “Nakashima”). The case lasted for years and was styled and re-styled previously as Nakashima v. Bd. of Educ., 204 Or. App. 535 (2006) and Montgomery v. Bd. of Educ., 188 Or. App. 63 (2003), prior to that.
129. The petitioners were Seventh Day Adventists, the tenets of which is observance of a Sabbath that begins at sundown on Fridays and continues through sundown on Saturdays. Id. at 501.
130. For a more thorough summary of the case, see Patrick Sterk, To Pray or to Play: Religious Discrimination in the Scheduling of Interscholastic Athletic Events, 18 Sports Law. J. 235 (2011) (discussing Nakashima and summarizing that “…state courts have clearly and unanimously held that the state high school athletic association must reasonably accommodate religious practices when scheduling high school sports tournaments.”). Id. at 245.
131. Montgomery v. Bd. of Educ., 188 Or. App. 63 (2003) (hereinafter “Montgomery”). The first instance of a potential conflict occurred in 1996 as the PAA won the state championship but the game was fortunately played post-Sundown on Saturday night. See Sterk, supra, at 245-46.
132. Montgomery at 69. The Montgomery decision remanded the case back to the State Board of Education (the Board), and it found OSAA to correctly follow Oregon state law. Nakashima at 537.
133. Nakashima at 522 (holding that all citizens “are entitled to be free from enumerated types of discrimination in an educational setting.”).
134. “The students and parents of the Academy brought their suit alleging that the OSAA’s practices violated title 51, section 659.850 of the Oregon Revised Statutes, which states: (1) As used in this section, “discrimination” means any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on race, color, religion, sex, sexual orientation, national origin, marital status, age or disability … .(2) A person may not be subjected to discrimination in any public elementary, secondary or community college education program or service, school or interschool activity where the program, service, school or activity is financed in whole or in part by moneys appropriated by the Legislative Assembly. The Academy claimed that its athletes were being unreasonably discriminated against by the OSAA, intentionally or otherwise, based on their religion.” Sterk, supra, note 130, at 247 citing Montgomery, at 68.
135. Id. at 521 (n. 26) citing Brentwood, 531 U.S. 288 (2001) (concluding that the TSSAA was a state actor for purposes of federal analysis and stating in the note, “OSAA is a state actor for constitutional purposes…OSAA also qualifies as a state actor for purposes of the federal constitutional principles that we discuss later in this opinion.”).
136. Quoting Sterk, supra note 130, at 255. Sterk continues, “As the multiple iterations of the Oregon dispute have demonstrated, even a religious accommodation which imposes more than a de minimis cost on an association may be cheaper and easier to implement than years of litigation and bad publicity which can arise from taking the matter to court.” Id. at 257.