Oregon and Sports Law (original) (raw)

2022, Entertainment and Sports Lawyer

Abstract

The purpose of the article is to explore people, cases, and laws that have a relationship between the state of Oregon and the study of sports law, including pedagogical insights to incorporate Oregon-related examples into the classroom. Oregon has had an impact on American culture through the courts and elsewhere particularly regarding sport. This includes exploration of the Supreme Court decisions including high school drug-testing case of Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) and the case of Casey Martin in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001). Indeed, the life and impact of University of Oregon runner Steve Prefontaine had a direct impact on the enactment of the Amateur Sports Act of 1978. The article addresses the controversy surrounding Nike’s “Oregon Project,” and, of course, the Olympic case involving figure skater Tony Harding. Further, Oregon was one of four states exempt from the Professional and Amateur Sports Protection Act (PASPA), the law that effectively banned sports betting in all but those four states. The article then provides other Oregon-based cases and “controversies” related to a wide-variety of sports law subjects including Title IX issues sports tort examples including Oregon decisions related to foul ball cases. Pedagogically, Oregon provides nice examples for the instructor to use no matter where they teach. This includes several NCAA-related circumstances related to its “no-agent rule,” unique coaching clauses, certification standards for coaches, and whether competitive cheer should (or could someday) become an NCAA-sponsored sport. Oregon offers statutes related to sports bribery, sports officials and sports agents, among others. Several examples of high school sport cases are included as is the state’s sport-related concussion laws. Finally, it is worth noting that the Oregon-based band The Slants, whose legal challenge to obtain their federal trademark worked its way to the Supreme Court decision in 2017, had a direct impact on the contemporaneous legal challenge of the legitimacy of-albeit controversial-Washington Redskins’ team name at the federal level under the Lanham Act.

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References (94)

  1. 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.").
  2. ADAM EPSTEIN, SPORTS LAW 322 (2013) (hereinafter EPSTEIN).
  3. Id.
  4. Id.
  5. 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.
  6. Id. (sharing that today Nike has a building named after him at their headquarters).
  7. 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\_o wn.html).
  8. 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.).
  9. EPSTEIN, supra note 28, at 322. Stevens was a U.S. Senator from Alaska.
  10. Id.
  11. 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,
  12. 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.
  13. 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/.
  14. Id.
  15. 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.
  16. 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).
  17. 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).
  18. 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).
  19. Id.
  20. 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.
  21. 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.
  22. See EPSTEIN, supra note 28, at 322.
  23. 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.").
  24. 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).
  25. See EPSTEIN, supra note 28, at 177. PASPA was also known as the "Bradley Act" and found at 28 U.S.C. § §3701-3704.
  26. 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).
  27. 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/.
  28. See Nat'l Basketball Assoc. v. Oregon State Lottery Comm'n, No. 89-6470 (D. Or. filed December 21, 1989).
  29. 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).
  30. Id.
  31. Id.
  32. S. Ct. 1461 (2018). The case was titled Christie v. Nat'l Collegiate Athletic Ass'n until Governor Chris Christie left office.
  33. 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).
  34. 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/.
  35. 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.
  36. See EPSTEIN, supra note 28, at 119-125.
  37. Curtis v. Portland Baseball Club, 279 P. 277 (Or. 1929).
  38. Id. at 497.
  39. Id. at 495-96.
  40. 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.").
  41. Id. at 502-03.
  42. 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.
  43. 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).
  44. CYNTHIA PEMBERTON, MORE THAN A GAME: ONE WOMAN'S FIGHT FOR GENDER EQUITY IN SPORT (2002).
  45. 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).
  46. 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.
  47. 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).
  48. 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."
  49. CBIRT, supra note 80.
  50. 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).
  51. OR. REV. STAT. ANN. § 417.875 (LexisNexis 2020).
  52. 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).
  53. OR. REV. STAT. ANN. § 702.991 (LexisNexis 2018).
  54. OR. REV. STAT. ANN. § 702.994 (LexisNexis 2018).
  55. 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/.
  56. Shelton v. Nat'l Collegiate Athletic Ass'n, 539 F.2d 1197 (9th Cir. 1976).
  57. Id. at 1197-98.
  58. Id. at 1198.
  59. Id. at 1197 (offering in note 1 that it would follow with the formal, written opinion which ended up three days later).
  60. 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,
  61. 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).
  62. 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.
  63. See, e.g., James Crepea, Oregon Women's Basketball's Sedona Prince among 2 Pac-12
  64. 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
  65. 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\_reav es_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).
  66. 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.).
  67. 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.
  68. 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 108. OR. REV. STAT. ANN. § 165.085 (LexisNexis 2018) (Sports bribery).
  69. OR. REV. STAT. ANN. § 165.090 (LexisNexis 2018) (Sports bribe receiving).
  70. 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.
  71. 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.
  72. 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.
  73. EPSTEIN, supra note 28, at 137, 165-69.
  74. 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.).
  75. OR. REV. STAT. ANN. § 164.276 (LexisNexis 2018).
  76. OR. REV. STAT. ANN. § 164.278 (LexisNexis 2018).
  77. 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.
  78. OR. REV. STAT. ANN. § 163.197 (LexisNexis 2018).
  79. 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/
  80. Id.
  81. Id.
  82. 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.").
  83. 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/.
  84. Id.
  85. Id.
  86. Id.
  87. Id.
  88. 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.
  89. 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.
  90. 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.
  91. 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.
  92. 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.
  93. Nakashima at 522 (holding that all citizens "are entitled to be free from enumerated types of discrimination in an educational setting.").
  94. "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.