5 June 2014
LATEST INTELLIGENCE
Consumer, Food & Leisure
Liberty Christian Academy seeks level playing field for
school athletic teams PaRR
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Virginia High School League illegally boycotts non-public school
teams—plaintiffs
Public schools compete with whomever they choose—league
executive
Plaintiffs committed to take case “all the way to a decision”
Liberty Christian Academy claims that its antitrust action against the
Virginia High School League is a last resort to break an illegal boycott, but
a league executive said the schools are free to compete with whomever
they choose.
On 2 June, Liberty Christian Academy (LCA) filed an action alleging that a
Virginia High School League (VHSL) ban on athletic competition between
public and nonpublic schools constitutes an anticompetitive, horizontal
agreement among competitors to boycott LCA and other non-public high
schools, which violates Section 1 of the Sherman Act and Virginia antitrust
law, as PaRR reported.
Jeffrey Kessler, chair of the antitrust/competition practice at Winston &
Strawn which represents LCA, said that the main point of the suit is to
make VHSL comply with antitrust laws. “LCA is not looking for an
advantage or special treatment. All they want is a level playing field,”
Kessler said.
Ken Tilley, VHSL’s executive director, told PaRR that the organization had
not yet been served with the complaint. Tilley said he is aware that LCA
claims that VHSL prohibits its member schools from playing non-member
independent schools in Virginia.
“That’s totally false,” Tilley told PaRR. “We have no such restriction. It’s the
schools’ decision to compete with whomever they choose. We don’t
prohibit them from competing with non-public independent schools, and
many public schools in Virginia do compete with non-public schools,” he
said.
LCA claims that Virginia is one of only three US states in which public
schools are prohibited from competing with non-public schools. The other
two states are Maryland and Texas, Kessler said.
Kessler said there is a commercial aspect to this case “that is not
inconsiderable”— the complaint notes that the VHSL “generated over $9
million in revenue in each of the last three years, including through sales of
admissions and merchandise.”
High school basketball and football are extremely popular in Virginia,
Kessler added, pointing out that in many states, some of the biggest, most
closely watched and intensely followed rivalries are between public and
non-public schools that are close to each other.
The VHSL ban on its members playing non-public schools means that
LCA’s student athletes cannot compete against local public schools. They
often must travel long distances to find other non-public school opponents,
when they ought to be able to play a great rivalry within blocks, Kessler
said. LCA has made it clear that it will meet whatever standard the league
would set to be a member, he said.
“One would think there would be a way to work this out and not waste
resources litigating against us,” Kessler said. LCA filed the action as a “last
resort” to make VHSL drop its prohibiton on members competing against
non-public school teams, Kessler said, adding that it is committed to take
this case all the way to a decision if necessary.
John Kirkwood, who teaches law at Seattle University, said the first thing
that struck him about the complaint is that it is an antitrust case about
choice, not about price. Kirkwood said that in allegedly not allowing public
schools to compete with nonpublic schools, VHSL reduces schools’
choices to compete, as well as consumers’ choices to see contests.
Kirkwood said that in its defense, the league might cite a “quality problem”
competing with non-public high schools. “The defense might say this is not
a valid antitrust claim because we’re not at a level useful, valuable and
appealing to consumers,” he said.
However, “viewing the complaint through this quality lens, Liberty
concedes that their quality at the moment isn’t as good. But if you let us in
we will get better,” Kirkwood said—in terms of being able to attract better
students and more revenue, for instance.
“LCA’s strongest argument is that 47 other states allow this, so there ought
to be a way of making this work out,” Kirkwood said. “It would be better for
the schools and consumers, even if Texas doesn’t allow it.”
Liberty Christian Academy is represented by Winston & Strawn.
The case is Liberty Christian Academy v. Virginia High School League,
case no. 6:14cv18 in the US District Court for the Western District of
Virginia (Lynchburg).
by Peter Geier in Washington DC
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