A DuPage County judge has refused to order the Illinois High School Association to resume football and other fall sports, saying he believed the directors of the organization that oversees high school athletics in Illinois has the authority to make “adjustments,” including cancelling the fall sports seasons, if necessary, in response to the COVID-19 pandemic.
“These are temporary adjustments,” said DuPage County Judge Paul Fullerton. "We are in a pandemic."
“Bad things happen in the world, and people suffer,” Judge Fullerton added. “And students may, through no fault of their own, miss out on sports.”
On Oct. 1, in a hearing livestreamed on Zoom, Judge Fullerton rejected a request from a group of student athletes and their parents for a temporary restraining order that would have upended the IHSA’s Board of Directors decision earlier this summer to suspend the fall seasons for football and other high school sports.
The ruling comes two days after attorneys for the parents and students filed a class action lawsuit against the IHSA on behalf of thousands of student athletes and their families all across Illinois.
The lawsuit asserted the board of directors for the Bloomington-based IHSA lacked the authority to act on their own to institute the so-called “Return to Play” plan, under which many of the 2020 fall sports seasons were all but cancelled.
In adopting the plan, the IHSA essentially bound high schools statewide to observe the “non-binding guidelines” issued by Illinois Gov. JB Pritzker. Pritzker had ordered all high school sports shut down in the spring, in response to the outbreak of the novel coronavirus that causes COVID-19.
Pritzker has renewed most of his emergency orders related to COVID-19 each month since.
In filing suit, the plaintiffs also asked Judge Fullerton to issue a restraining order, blocking enforcement of the Return to Play plan.
The plaintiffs asserted the IHSA’s constitution and bylaws do not allow the organization’s 10-member board to decide to suspend or cancel sports seasons. Rather, they said, such changes amount to “amendments” of the bylaws, which should require a referendum vote from the IHSA’s member schools.
In response, the IHSA argued the board of directors has the authority under emergency situations, such as those presented by an infectious disease pandemic, to make “temporary adjustments” to the sports calendar, and, if necessary, cancel entire sports seasons in the name of health and safety.
The IHSA’s attorneys said the IHSA constitution and bylaws give the board of directors the authority to “interpret” the bylaws, as needed, in such emergencies.
Further, the IHSA asserted, even if the judge granted the restraining order, Illinois schools still could not stage football or other sports, as those have been prohibited by Pritzker.
Attorney Jeffrey Widman, of the firm of Fox Rotschild, of Chicago, representing the student athletes and their parents, said Pritzker’s orders may not be as valid as the IHSA lets on, and there are court cases still pending on that question.
But Widman said that argument is “irrelevant,” because the decision to suspend the fall sports season was not for the board to make on its own.
Rather, he said, the decision whether to “defy or comply” with Pritzker’s orders should fall to the member schools to decide.
“It wasn’t their call to make,” Widman said.
Judge Fullerton conceded the plaintiffs could have a strong case, and their arguments may yet have a chance to succeed in court. Further hearings may be scheduled on that point, should the plaintiffs decide to continue their case.
But for now, Fullerton said the “balancing factors” fall with the IHSA, and with maintaining the status quo, keeping fall sports shut down.
He said the COVID-19 pandemic presents an emergency situation, outside the control of the IHSA or their member schools.
“Drastic times, drastic remedies,” Fullerton said.
Widman said he would consult with the families he represents, to see if they wish to continue with the legal action in light of the judge’s ruling.
The IHSA is represented by attorney David Bressler, of the Dykema firm, of Chicago.