Dane Chisholm (19-3034) and Reid Linninger (19-3100), former student-athletes of St. Marys City Schools, Plaintiffs-Appellants,
St. Marys City School District Board of Education, Shawn Brown, James Hollman, and Paul Douglas Frye, Defendants-Appellees.
Argued: October 17, 2019
from the United States District Court for the Northern
District of Ohio at Toledo. Nos. 3:16-cv-02849;
3:16-cv-02853-James G. Carr, District Judge.
A. Weiker, ALBEIT WEIKER, LLP, Columbus, Ohio, for
Tabitha Justice, SUBASHI, WILDERMUTH & JUSTICE, Dayton,
Ohio, for Appellees St. Marys, Shawn Brown, and James
Hollman. William V. Beach, ROBISON, CURPHEY &
O'CONNELL, LLC, Toledo, Ohio, for Appellee Paul Douglas
A. Weiker, ALBEIT WEIKER, LLP, Columbus, Ohio, for
Tabitha Justice, Brian L. Wildermuth, SUBASHI, WILDERMUTH
& JUSTICE, Dayton, Ohio, for Appellees St. Marys, Shawn
Brown, and James Hollman. William V. Beach, Amy J. Luck,
ROBISON, CURPHEY & O'CONNELL, LLC, Toledo, Ohio, for
Appellee Paul Douglas Frye.
Before: ROGERS, WHITE, and READLER, Circuit Judges.
A. READLER, CIRCUIT JUDGE.
football is not for the fainthearted. During games, players
risk physical injury in the name of beating an opponent. Even
at practice, players put their physical wellbeing at risk to
compete for starting positions and to gain an edge for an
competitive desires are often spurred on by a team's
coach. As much as in any sport, football coaches push their
players to achieve, often in the face of adversity. Through
their words and actions, many coaches push quite hard.
Sometimes, their efforts can cross lines of decency. Can they
also cross legal lines drawn by Title IX of the Education
this sets the backdrop for today's contest, one fought
not on the field, but in the courtroom. We are asked to
decide whether federal or state law limits the types of
verbal motivational tactics a high school football coach may
employ. In separate suits below, two former players for the
St. Marys (Ohio) Memorial High School Football Team brought
claims for federal Title IX violations and state-law
intentional infliction of emotional distress against their
coach, Defendant Doug Frye. The players claim that Frye
harassed them by using numerous derogatory terms-most
notably, the term "pussy"-with the intent to insult
(and presumably to motivate) the two in front of their
teammates. Plaintiffs also sued the St. Marys school board,
superintendent, and athletic director for failing to address
Frye's conduct. In both suits, the district court entered
summary judgment in favor of Defendants. Plaintiffs now bring
separate appeals, which we have consolidated for review.
matter of decency, Frye's conduct was distasteful, and no
doubt offensive to many. But as a matter of law, his conduct
did not constitute sex-based discrimination, in violation of
Title IX, nor was it conduct intolerable in a civilized
society, in violation of Ohio tort law. Accordingly, we
AFFIRM the judgment of the district court.
may forever be considered "America's
pastime"-Levi Stahl, When and how baseball
became America's Pastime,
The Chicago Blog (Oct. 4, 2018),
by most every measure, football has become the nation's
most popular team sport. Of America's professional
sporting leagues, the National Football League enjoys the
highest viewer ratings, with its annual championship game,
the "Super Bowl," among any year's most viewed
television programs of any kind. By total attendance figures,
college football surpasses its professional counterpart, with
fans filling over 100 collegiate stadiums every fall
Saturday. High school football similarly captures the
interest of fans in communities across the nation, typically
on Friday nights, as a precursor to collegiate football
Saturdays and professional football Sundays.
widespread adulation informs at least two underlying features
of today's case. First, football's popularity can be
attributed in part to the sport's physical nature. Dating
back to the violent gladiator games of Ancient Rome, and
likely much earlier, spectators have long enjoyed tests of
strength, speed, and aggression, even when the participants
risk their health and wellbeing. More than any other modern
team sport, football highlights these same traits- strength,
speed, and aggression. It draws upon the combative nature of
its participants and their coaches, with the sport enjoying a
competitive, confrontational, and motivational foundation not
seen in other team activities.
football's popularity feeds a strong desire for team
success. At the professional and collegiate levels, on-field
success translates directly into notoriety for teams,
players, and coaches, and significant revenue for the
respective professional organization or university. Even in
the more localized high school setting, community pride and
year-long bragging rights are at stake when one's team
takes the field. Facing this pressure to succeed, football
teams are sometimes willing to take chances on troubled yet
talented players, decisions that may otherwise be difficult
to rationalize. And the same can be said of coaches, whose
sometimes crude or outlandish antics are tolerated in favor
of on-the-field success. Today's case reflects one such
Frye Has A Turbulent Background As A High School Football
Frye has been coaching high school football in northern Ohio
for a quarter-century. Allegations that Frye harassed players
under his watch are nearly as old. The first came in 1995.
While coaching at Bucyrus City Schools, Frye was given a
written reprimand for "using unacceptable obscene
language" and "becoming physical with one of the
conduct repeated itself when Frye took a coaching position at
St. Marys City Schools, starting in 1998. Just a year into
the job, Frye was rebuked in writing by members of his
coaching staff for subjecting his players to degrading
language and pushing them to play through injuries. One of
those coaching colleagues was James Hollman, then an
assistant football coach, now the athletic director of St.
Marys City Schools.
left his position at St. Marys in the spring of 2010. That
fall, he took a position as head high school football coach
in neighboring Wapakoneta. And once again, Frye's
behavior became the source of player grievances. In 2012,
Frye was accused of harassing Wapakoneta players. Several
students even went so far as to file a criminal complaint
against Frye. These allegations were supported by a recording
of Frye swearing repeatedly and calling his players
"pussies," among other derogatory names.
investigation by the Ohio Department of Education, or
"ODE," ensued. That investigation resulted in ODE
and Frye entering into a consent agreement. Under the
agreement, Frye retained his teaching license and coaching
permit. But Frye's employer, for two years, was required
to submit quarterly reports to ODE addressing Frye's
behavior and treatment of students. Wapakoneta then renewed
Frye's position as head coach for the 2013 season. But
following the season, Frye voluntarily resigned.
Frye Returns To St. Marys And Becomes Plaintiffs'
events unfolded in Wapakoneta, ten miles away at St. Marys
Memorial High School, Plaintiffs Dane Chisholm and Reid
Lininger began their high school football careers. Both
players were highly involved in the school football program.
Chisholm played on the offensive and defensive lines for the
varsity team while Lininger was the starting quarterback for
the junior varsity team.
Plaintiffs' early years, the team struggled. Over the
2012 and 2013 seasons, the team went winless, posting a
record of 0-20. And by and large, these games were not close.
During those two seasons, St. Marys was outscored by a
collective margin of nearly 3:1.
heels of that futility, the St. Marys School Board decided to
replace the head coach. To fill the position, the Board
turned to Frye, who was well known to St. Marys from his
prior coaching tenure at the school and reputation for
running a winning program. With full knowledge of Frye's
history of disciplinary incidents, superintendent Shawn Brown
signed off on Frye's rehiring due to ...