MHRC split vote finds no discrimination by MPA in Faithfull eligibility case

By Ernie Clark, BDN Staff
Posted May 16, 2011, at 4:31 p.m.

AUGUSTA — The athletic eligibility issue pitting former Cheverus High School of Portland basketball star Indiana Faithfull against the Maine Principals’ Association has sparked a variety of opinions among fans of the sport in the state for more than a year.

The Maine Human Rights Commission on Monday proved to be just as divided.

The four-member panel voted 2-2 on questions of whether the MPA discriminated against the Australia-born Faithful on the basis of national origin or retaliated against Maine’s 2010 Mr. Basketball for exercising his rights under the Maine Human Rights Act by seeking court relief and returning to action after being ruled ineligible for the second semester of the 2009-10 basketball season.

The tie votes mean the MHRC did not find reasonable grounds against the MPA in either case.

“Obviously we would have preferred a unanimous vote,” said Dick Durost, executive director of the MPA, which governs interscholastic sports throughout the state. “But certainly the split vote ends up, I believe, as a finding in our favor because what that means is that they did not find discrimination and they did not find retaliation, and I think that certainly both of those decisions are helpful to us as we move forward.”

The case now reverts to Cumberland County Superior Court, where the case had been stayed pending results of  the MHRC hearing. Additional court hearings in the case have yet to be scheduled.

“We’re disappointed we don’t really have an answer [from the MHRC],” said Richard O’Meara, one of two attorneys representing Faithfull at the hearing. “Justice [Joyce] Wheeler of the Superior Court had said she was anxious to see what the commission’s ruling would be, and unfortunately we have a split decision so there’s really no recommendation coming from the commission.”

The case began in late January 2010 when Faithfull — then a Cheverus senior but now attending prep school in Connecticut — was deemed to have completed his high school basketball eligibility in accordance with MPA rules that limit student-athletes to eight consecutive semesters of athletic eligibility and four seasons of participation in any given sport.

Faithfull had transferred to Cheverus from Australia as a sophomore in the fall of 2007 after spending three semesters as a high school student and basketball player in his native country — which was located in the southern hemisphere and starts its school year in January as opposed to the September start in Maine.

According to MPA rules, Faithfull’s four-season count began when he started playing basketball as a ninth-grader in Australia in January 2006 and concluded with the start of Cheverus’ second semester of the 2009-10 school year beginning Jan. 25, 2010.

Faithfull subsequently sat out several games at the end of Cheverus’ 2009-10 basketball regular season that February, but he and his family sought relief in Cumberland County Superior Court and Justice Wheeler granted a temporary restraining order that allowed him to return to the team in time for the Western Maine Class A tournament later that month.

Cheverus subsequently won the Class A state championship.

An investigator’s report signed by MHRC executive director Patricia E. Ryan and chief investigator Barbara Lelli that was issued on March 14 recommended that there were no reasonable grounds that the MPA had retaliated against Faithfull but did recommend there were reasonable grounds that Faithfull had been discriminated against on the basis of national origin, largely because Faithfull had no control over the different school calendars in Australia and the  United States and the effects of those differences on his opportunity to play high school basketball.

O’Meara tesified on behalf of Faithfull — who attended the 45-minute hearing but did not speak — that not only was his client discriminated against, but that the MPA’s tactics in threatening to strip Cheverus of its state title amounted to retaliation against Faithfull and his team.

“The primary point is that there was a disparate impact in terms of the discrimination that occurred, and that the ruling that the Superior Court made on the same issue was correct,” O’Meara said. “And that also retaliation has occurred in this case and a that decision on retaliation in this case also should have come out in Indiana’s favor.”

MPA counsel Katy Rand testified that not only was Faithfull not discriminated against but he actually benefited from being able to play a total of 4½ seasons of high school basketball between Australia and Cheverus, more than other high school athletes in Maine are allowed.

“If he had stayed in Australia, in January of 2010 he would have graduated and he would not have competed into February and March as he did here,” said Durost. “So what happened was he actually gained an advantage over other students. He certainly wasn’t discriminated against from our perspective.”

Durost also denied O’Meara’s assertion that the MPA had retaliated against Faithfull, a 6-foot-4-inch point guard who is attending St. Thomas More School in Oakdale, Conn., as a postgraduate this year and has accepted an athletic scholarship to attend Division I Wofford College in Spartanburg, S.C., beginning next fall.

“The retaliation piece, to me anyway, is a bit of a moot point because all we’re really doing when asked is [saying] what would happen if the courts find the student to have been ineligible,” he said. “If that’s the case our policy says that they would have to forfeit the state championship so it’s not retaliation, it would simply be enforcing the rule that’s in place. So I’ve had some difficulty with the use of that term all through this.”

Monday’s two votes by the MHRC, with commission chair Paul K. Vestal Jr. and commissioner Sallie Chandler voting to find reasonable grounds of discrimination and retaliation by the MPA and commissioners A. Mavourneen Thompson and Joseph Perry voting against, marks the end of that panel’s involvement with the case.

“The commission’s decisions are non-binding, they are meant to be advisory opinions,” said MHRC counsel John P. Gause. “In cases where we do find reasonable grounds, the commission moves to the next step which is to try to conciliate or settle the case. In some cases when the commission finds reasonable grounds it will take a case on court, so from the commission’s perspective, since it did not find reasonable grounds it will dismiss the cases.”

http://bangordailynews.com/2011/05/16/sports/mhrc-split-vote-finds-no-discrimination-by-mpa-in-faithfull-eligibility-case/ printed on August 1, 2014