NFL Play 60: Stay Off Our Bus!

 The National Football League's Gambit to Commercialize School Children 

Correspondence

It should come as no surprise that most, if not all of the issues we raise in our correspondence with the various government entities that follow in this section have already been covered. However, these communications do show how we proceeded and how the issues evolved over time. All of these communications are unedited except for the removal of our children's names, the removal of our home address, or the conversion of email addresses to proper names. I wouldn’t want somebody to freely share my contact information and I will extend that courtesy to everybody involved. Some of these files are available in their original format (addresses removed) as pdf files and may be found on the References page.


Corresponding With Snohomish School District Personnel

I did have a couple of conversations with the office personnel at Cathcart Elementary in the days prior to the NFL Play 60 celebration assembly. I do recall telling the office assistant in charge of collecting all of the NFL’s waivers that we would not be submitting the ones for our children and referred to the paper as “rotten.”


Email Exchange With Teachers Following the Announcement

Just to make sure our children’s teachers understood what was going on, I sent the following email the day before the Celebration Assembly:

From: McChesney, Mark
Sent: 2011 November 14, Monday 4:06 PM
To: Wagner, Barbara; Ask, Juli-Anne
Subject: NFL Waivers

Hello,

I just wanted to let you know that we did not forget to sign the waivers so - children’s names removed - could attend the assembly being promoted by the Seattle Seahawks and the NFL. In case our children inquire, I (speaking for myself only) refused to sign the wavier because it was bad paper. In a nutshell, the wavier requested us to surrender our rights in exchange for virtually nothing. While it may seem like a minor issue, I see this as a teaching opportunity regarding the importance of reading and understanding paperwork prior to signing. I just wish they were old enough to fully understand the impact. If they should inquire, I believe they are entitled to the best explanation possible under the circumstances. You can always deflect them back to me should they inquire as to why they are not attending the assembly along with the rest of their peers.

Thanks,

Mark McChesney

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I received one reply to this message:

From: Ask, Juli-Anne
Sent: 2011 November 14, Monday 15:22
To: McChesney, Mark
Subject: RE: NFL Waivers

I understand your concerns completely (especially as my father was an attorney). If - child’s name removed - has questions tomorrow, I will do my absolute best to respond in a way that communicates that this was a choice made for the best of reasons—with the intention to safeguard rights. Thanks for letting me know!

Juli-Anne ☺

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Email Exchange With School District Officials and NFL Representatives

After a couple of days, it was clear that our children were still upset and didn’t understand why they were not allowed to attend the celebration assembly. It was time to contact the Principal and explain what was going on and our perspective of the event.

From: McChesney, Mark
Sent: 2011 November 17, Thursday 1:57 AM
To: Bowers, Casey
Cc: Wagner, Barbara; Ask, Juli-Anne
Subject: NFL Play 60 Assembly

Hello Casey,

I am not sure of your level of involvement, so please forward this message to any party necessary.

As one of the few parents that did not sign the Waiver of Liability and Release provided by the Snohomish School District on behalf of the Seattle Seahawks and the National Football League, my children were not allowed to attend the NFL Play 60 assembly held at Cathcart Elementary this past Tuesday, November 15, 2011.

Prior to the assembly, I made more than one attempt to explain to my children why I refused to sign the waiver. However, I don’t feel they are old enough to understand my reasoning.

Knowing that my children would be segregated from the majority who would attend the assembly and that I was informed that they would be placed in a classroom with other children of similar circumstance, I was led to believe that the number of children that would not be in attendance to be greater than the actual count; much greater, in fact. Consequently, I subsequently discovered that only four children, including my own, were segregated from their peers of their age grouping. Upon inquiry, I found that my children were confused about the situation, felt isolated from their peers, and denied a privilege. But that’s not all… my wife was inclined to sign the waiver out of just these very concerns, which in how causing me some distress. So, let me share the distress…

As a parent, it is my duty to protect my children, which is why I could not sign the waiver. Quite frankly, I found the waiver to be, well, garbage; where we would be required to sign away all of our rights for virtually nothing in return. Oh sure, Cathcart Elementary would receive $10K and some exercise and playground equipment, and I am sure our children will receive some benefit from the grant by the Seattle Seahawks, but was this really a grant? After all, the Seattle Seahawks and the NFL both receive something of commercial use for their generosity - the video taping of the event for promotional purposes - which no longer makes it seem so generous. I mean, what is the value of this video as opposed to its cost?

No longer speaking for the group as a whole, this now leads me to wonder about the value of this event as opposed to what my children received or were denied in the process. Primarily, they were denied attending the event with their peers, who may be equally confused as to why my children did not attend the event with them. Also, while the Seattle Seahawks were producing something that I construe to be of commercial value, my children were denied classroom time. In the case of my child in kindergarten, this would be classroom time for which I share the cost.

I don’t think adequate thought and planning were in place prior to the event. If this was planned properly, parents would have been informed more thoroughly regarding expectations and contingencies, especially considering the commercial nature of the event. In my case, all I ever saw regarding this was a waiver that was suddenly sent home with my children about a week prior to the event.

So I now find myself in somewhat of a predicament, where I am unable to fully explain to my children the reasoning for not allowing them to attend. Quite frankly, since the Seattle Seahawks were able to obtain something of commercial use, which was allowed by the Snohomish School District, I am of the opinion that both of these parties become responsible for explaining my reasoning to my children. Also, since they were separated from their peers and that they may be equally confused regarding their absence, I believe the explanation should be made to my children in front of their peers.

I did not cause this problem. I blame both the Seattle Seahawks and the Snohomish School District equally and my expectation is that you both provide the corrective action. Call it a teaching opportunity.

I would appreciate it if you would forward this message to the Seattle Seahawks and provide me with the persons whom you contacted, with mailing or email address.

Regards,

Mark McChesney

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Casey Bowers responded:

From: Bowers, Casey
Sent: 2011 November 17, Thursday 8:24 AM
To: McChesney, Mark
Cc: Ask, Juli-Anne; Wagner, Barbara; Bowers, Casey
Subject: RE: NFL Play 60 Assembly

Dear Mark,

Thank you for sharing your story, and explaining the challenge to your family. I apologize for not sending out information about the assembly sooner than we did, however the timeline between the award and the scheduled assembly date were just that close together.

In the future, should you have questions or concerns, please don’t hesitate to contact me personally so I can work with you in the beginning. I certainly don’t want to leave you in a complicated situation after the fact.

Our NFL contact is a man in New York, who was very supportive and shared the “big picture” for planning with us. I can provide his information should you still feel it important to share your views with him.

Please let me know if you would like to meet to share what you feel would be “a corrective action.”

Very truly,
Casey Bowers ☺

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I respond:

From: McChesney, Mark
Sent: Thursday, November 17, 2011 8:50 AM
To: Bowers, Casey
Subject: RE: NFL Play 60 Assembly

Hello Casey,

Yes, please provide me with the information for your NFL contact.

I visited the Seattle Seahawks website this morning and see that the Cathcart kids are on the main page. I didn’t dig yet to see if there are more photos and video.

I will wait until I hear what the person from the NFL has to say before I propose any corrective action.

The bottom line is that I feel my children were not treated fairly regarding this event.

Regards,

Mark McChesney

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Casey replies:

From: Bowers, Casey
Sent: 2011 November 17, Thursday 9:17 AM
To: McChesney, Mark
Cc: Bowers, Casey
Subject: RE: NFL Play 60 Assembly

Mark,

I called Matt, our contact, and he is expecting to hear from you. He offered that I share both his e-mail and his phone.

Very truly,

Casey ☺

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Casey did provide Matthew Shapiro’s email address and phone number, but I have removed that information. I did contact Matthew Shapiro with this message along the first message I sent to Casey Bowers that day.

--------------------

From: McChesney, Mark
Sent: 2011 November 17, Thursday 9:57 AM
To: Shapiro, Matthew
Cc: Bowers, Casey; Wagner, Barbara; Ask, Juli-Anne
Subject: RE: NFL Play 60 Assembly

Hello Matthew,

I appreciate your assistance in the matter regarding my children and the NFL Play 60 event recently held at Cathcart Elementary School here in Snohomish, Washington.

As I explained in my message to Casey Bowers that follows, I don’t feel that my children were treated fairly with regards to this event. Casey did ask what I would propose as a corrective action, so here it is:

  1. For each child whose parent(s) refused to sign the waiver, a representative from both the Snohomish School District and the NFL (preferably from the Seattle Seahawks) go to the child’s class and explain why they were not allowed to attend the Play 60 assembly. Yes, I do mean in front of the entire class. I want these children to know why their peers were not allowed to attend.
  2. While showing the children a copy of the waiver (you don’t need to explain the contents), you need to explain that not all parents agreed to its content and refused to sign it as an act of protecting them from what was viewed as potentially exploitative behavior.
  3. They need to receive an apology and assurances that the school district and the NFL will make better efforts in the future to make sure children are not excluded from future events.

I can go further since the Seattle Seahawks and the NFL are already making commercial use of this event; something that I believe has entered the realm of exploitation as opposed to community service. However, in the spirit of cooperation, I will leave it at that.

Regards,

Mark McChesney

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Matthew Shapiro’s response:

From: Shapiro, Matthew
Sent: 2011 November 17, Thursday 2:43 PM
To: McChesney, Mark
Cc: Bowers, Casey; Wagner, Barbara; Ask, Juli-Anne; Margolies, Rachel
Subject: RE: NFL Play 60 Assembly

Hi Mark,

I’m sorry to hear that your children did not have a positive experience on Tuesday. I would be happy to speak to you on the phone regarding what happened, and our national Super School program overall.

I think it might be a good idea to have Principal Bowers on the line as well. Can you all please let me know some times that may work for you to talk for a few minutes tomorrow or early next week? I can then send out a conference line so we can all join.

Thanks,
Matt

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Matthew Shapiro’s response did include my message along with the original message I sent to Casey Bowers that morning. One thing that is noteworthy here is that Matthew added Rachel Margolies to the CC field. A quick Google search of that name revealed something of interest; that one of the top items returned by Google showed an entry from LinkedIn as “Counsel for the NFL.” Now I know that this is not one hundred percent conclusive, but you be the judge. To me it was clear that Matthew included NFL legal counsel into the loop. While my initial message did not come close to laying out all of the issues I will cover in the pages that follow, I would have thought that my initial message would have set off some red flags. However, the NFL did not change their program and they still continue to collect promotional materials from public schools.

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To continue, here is my response to Matthew et al:

From: McChesney, Mark
Sent: 2011 November 17, Thursday 2:54 PM
To: Shapiro, Matthew
Cc: Bowers, Casey; Wagner, Barbara; Ask, Juli-Anne; Margolies, Rachel
Subject: RE: NFL Play 60 Assembly

Hello Matt,

I can make myself available tomorrow from 8:30 AM until around noon. That’s PST.

I want to address this as soon as possible while the event is as fresh as possible in my children’s minds.

Regards,

Mark

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From yesterday’s communications between myself, Casey Bowers and Matthew Shapiro, we were getting set to talk this over. Although my last message was sent to Matthew at 5:54 PM Eastern time, this was only 11 minutes after Matthew sent me his previous message. While 11 minutes is not a lot of time, it is possible that Matthew had left the office for the day.

I checked in with email the following morning at about 8:15 AM PST, just after I saw our children climb upon the bus for school. Nothing. Now this would be about 11:15 AM in New York. Certainly Matthew is in the office by now, right? So I wait. I check email again at 8:30, then around 9:00, and yet again at about 9:30. Still nothing. Nothing from Matthew Shapiro or Casey Bowers. No email, yet their message thorough their inaction was loud and clear; I was not important to them! Come on, just how difficult is it to send a simple message to suggest a meeting time? I presented a window of opportunity and they were eating up that window because they couldn’t send a simple message? Do they think I have nothing better to do than wait by the computer for their message to arrive like I am at their beck and call? Didn’t my messages from the previous day paint the picture that they were already dealing with a rather disgruntled parent? Now I was feeling offended. No, offended is too gentle; I was getting down right angry! So, at this time I began composing a message of my own. However the recipient was not Casey or Matthew, but William Mester, the Superintendent for the Snohomish School District. It was about 9:55 AM when I completed this message and still nothing from Casey Bowers or Matthew Shapiro. At 9:59 AM I pressed the Send button (message to William Mester is in the section that follows below).

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Like things always seem to work, I received a meeting request from Casey Bowers just two minutes later. Now, was this coincidental or did Casey just read my message to William Mester and have an “Oh, damn!” moment? The email system works pretty fast and it would only take Casey a couple of minutes to read my message and send one of her own. Whether it was coincidental or not, I’m betting that my message lit the fire under Casey’s butt. It no longer mattered as I was beyond being reasonable with these people. What follows is my email exchange between myself, Casey Bowers and Matthew Shapiro, in the order in which they were written:

From: Bowers, Casey
Sent: Friday, November 18, 2011 10:01 AM
To: McChesney, Mark; Shapiro, Matthew
Subject: RE: NFL Play 60 Assembly

Good morning Mark and Matt –

Trying to coordinate…I’m available from about 10:30 to 11:45 this morning for a conference call. Maybe we can find a time in that window?

Very truly,
Casey ☺

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From: Shapiro, Matthew
Sent: 2011 November 18, Friday 10:12 AM
To: Bowers, Casey; McChesney, Mark
Subject: RE: NFL Play 60 Assembly

I would be free from 10:30-11 pst. Mark, let us know if you’re free and I can send a call-in number. Thanks.

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From: McChesney, Mark
Sent: 2011 November 18, Friday 10:23
To: Bowers, Casey; Shapiro, Matthew
Subject: RE: NFL Play 60 Assembly

Too late for that...

As you can see from my email this morning, I am now considering legal action. In short, I feel that my children suffered from an act of discrimination.

Regards,

Mark

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I can only assume that Matthew Shapiro forwarded my last message to Rachael Margolies. I would have if I were in his position.

I did not receive any further communications from Casey Bowers or Matthew Shapiro.

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Contacting William Mester, Superintendent of the Snohomish School District

From: McChesney, Mark
Sent: 2011 November 18, Friday 9:59 AM
To: Mester, Bill
Cc: Hagen, Jay; Bowers, Casey
Subject: Considering Legal Action

Dear Bill Mester,

I thought you should be informed that I am now considering taking legal action against the Snohomish School District. The issues pertain to the treatment of my children during the NFL Play 60 assembly held at Cathcart Elementary this past Tuesday, November 15, 2011. Because I refused to sign the Waiver of Liability and Release requested (required) by the National Football League, my children were segregated from their peers and denied their educational opportunity (their normal classroom setting). Quite simply, my children suffered from an act of discrimination, all so the NFL and Seattle Seahawks could obtain promotional materials and the school could obtain some money and playground equipment. From my point of view, both parties willingly exploited our (collective) children for selfish reasons. In the process, my children were treated as outcasts. And they weren’t the only ones, which will complicate matters.

While we may lack standing to pursue a lawsuit against the NFL, I would imagine this would bring negative publicity which that they would probably want to avoid. However, I feel the NFL shares equally in the culpability in this case. From my perspective, any settlement will involve the NFL. I would like to avoid a lawsuit, but given the ages of my children, any resolution from which they would benefit requires prompt attention.

I have attached copies of the pertinent emails between myself, Casey Bowers, and others, for you to review.

Regards,

Mark McChesney

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The messages I attached to this message included my first message to Matthew Shapiro (dated 2011 November 17, Thursday 9:57 AM), which also included my first message to Casey Bowers (dated 2011 November 17, Thursday 1:57 AM). I also sent a copy of this message to Casey Bowers and to Jay Hagen who is a School Board member for the Snohomish School District and is the Director for (sub) district #5 which includes Cathcart Elementary. Jay Hagen is also the President of the School Board.

Okay, in hindsight I must admit that I could have submitted a more carefully written communication. But like I said, I was in a state of anger and the subject line alone probably put everybody immediately on the defensive. While I can't say I expected a response from either Casey Bowers or Matthew Shapiro after our last email volley, I did expect a reply from William Mester and/or Jay Hagen. However, that response would never come. Not a peep.

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Corresponding With the Department of Justice

First Letter To the Department of Justice

2011 December 24

Mark and Jana McChesney

Jenny A Durkan
United States Attorney's Office
Suite 5220
700 Stewart Street
Seattle, WA 98101-1271

CC: Rob McKenna, Washington State Attorney General
       Randy Dorn, Washington State Superintendent of Public Instruction
       William A Mester, Superintendent, Snohomish School District

RE: Request for determination of potential discrimination in public schools

Summary

On November 15th, with the permission of Cathcart Elementary School (Snohomish School District), the Seattle Seahawks and the National Football League held an assembly at the school during regular school hours to celebrate Cathcart’s winning entry in a NFL Play 60 contest. During this assembly, our children were segregated from the primary group of children based solely on our unwillingness to sign a waiver by the NFL, which would allow unrestricted use of photographs, video, and biographical information of our children. The NFL is currently using these images and similarly collected materials to promote the NFL in a nation-wide advertising campaign. Please consider that this assembly was presented by a private enterprise for the purpose of promoting themselves; that the NFL collected their promotional materials while on school property and during regular school hours in place of normal curriculum. While we are unsure if this meets the precise legal definition of the discrimination of a protected class, this does meet the dictionary definition of discrimination, as a class distinction was made to exclude our children from the primary group of their peers. Since Cathcart Elementary was the winner in their local market, we assume this situation exists nation-wide, across all NFL markets. Additionally, we are questioning whether the conditions of the waiver constituted a contract between the NFL, the Snohomish School District and all of the parents and the legality of this situation.

Dear Jenny Durkan,

We have two children, ages five and seven, who attend Cathcart Elementary school in Snohomish, Washington. On November 15th, with the permission of the school, the Seattle Seahawks and the National Football League held an assembly at the school to celebrate Cathcart’s winning entry in a NFL Play 60 contest. As a grand prize winner in their local market, along with the celebration assembly, the school was awarded $10,000 by the NFL and some exercise and playground equipment.

We found out about this event no more than two weeks prior when our children brought home the announcement (copy enclosed). However, on the reverse of the announcement was a Waiver of Liability and Release from the NFL. According to this announcement, the entry into the contest was coordinated and submitted by the Cathcart Parent Organization (CPO), of which we had no prior knowledge. Also according to this announcement, the Seattle Seahawks and the NFL considered this assembly as a promotional event and they needed our permission so they could use photographic, video, and other personal information of our children.

As you may infer, we did not sign the waiver and our children were not allowed to attend this assembly. Instead, our children were sent to a classroom where they watched a video (one from the Magic School Bus series, as we were told by one of our children). Presently, we are unsure of any additional activities in which our children may have participated during this time. When questioned further, our children dismissed us rather than provide any other details. Regardless, by no means did watching a video meet our expectations of their purpose for attending school. In fact, given the reduced student-to-teacher ratio during this situation, we would have expected greater individual interaction between student and teacher. Instead, it appears to have been reduced. However, the worst part was attempting to find an acceptable explanation to our children’s inquiries as to why they were not allowed to attend the assembly with their classmates. They are far too young to understand the issues in this case; all they understood was that they were separated from their peers. We would even go as far to say that they felt that this was a form of discipline. Certainly, they were confused. Additionally, when we reminded one of our children of an upcoming field trip, our child’s first reply was, “Do I get to go to this one?” We feel this should not have been something that even entered their mind.

There are two primary legal questions we are raising here:
1. Did a valid contract exist between the NFL, the Snohomish School District, and all of the parents or legal guardians (on behalf of our children)?
2. Was a class distinction made resulting in the discrimination of our children?

We believe the answers to both questions are, yes. What follows are our arguments to support our opinions.

Certainly the NFL or any other private enterprise may present an award or provide a grant to public institutions. And we suppose it would be expected that they would desire some photo opportunities to show for their generosity. However, we argue that requiring parents to agree to have their children filmed and relinquishing the rights to photographic materials and biographical information as a condition of accepting this or any award exceeds expectations. Why would the NFL require students for their photo opportunity and not just adult representatives? We have some theories regarding that issue that we will address shortly. Clearly, as evidenced by the requirement of the waiver - especially the clauses pertaining to the relinquishing of our rights of the photographic materials and biographical information of our children - the NFL treated this event not just as an award, but as a business contract; that the NFL expected something of value in return for their award. In fact, the primary reason we refused to sign the waiver was that we valued the rights to the photographs, video and biographical information of our children so highly.

If you agree that this was indeed a form of business contract, then we would like to turn our attention to those who negotiated and authorized this contract on behalf of the school and our children. Again, according to the announcement, “Our entry was coordinated and submitted by our CPO.” If the school district was not involved in the contest entry, then who authorized the Cathcart Parent Organization to act on behalf of the school and especially our children? Certainly we did not. And if the school district was responsible for entering into this contract, then the same questions regarding proper authority applies to them as well. Again, the first communication we received regarding this event was when our children brought home the announcement of the winning entry. So who is claiming to have the authority to act on our behalf? Who entered this contest without any prior announcement to other parents or requesting any public input? Also, did either the CPO or school district have prior knowledge that there would be conditions attached if they were selected as a winner? If so, who determined the value of our children’s presence in promotional materials? If the NFL, CPO and Snohomish School District claim that this contest was entered into strictly on behalf of the school, then why involve the children at all? Why not present the award to adult representatives from the CPO and/or school? After all, the students did not and could not legally enter such a contest themselves.

Any claim by the NFL that the celebration assembly was strictly to promote physical fitness for children fails for two reasons: (1) the presentation did not provide any information that could not be or has not already been presented by school staff, and (2) the assembly would have been open to all students. There is physical education teacher on staff and I know our children attend a PE class on a regular basis. Stressing the importance of physical activity is the underlying principle for attending a PE class so what new information did the NFL bring to these students? We claim that the NFL presented nothing new in this regards. By restricting the celebration assembly to only students whose parents signed the waiver, the NFL cannot claim their purpose was to present the importance of physical fitness to all children. We did notice on the waiver a clause pertaining to property damage and injuries, etc., but do you really believe this was the real reason for restricting the attendance of audience members? This leaves only one reason - the real reason - why our children were not allowed to attend the assembly; that the NFL wanted children present in their promotional materials. Further it is our claim that by placing restrictions on the attendance of the celebration assembly, the NFL created a class distinction between two groups; those who were cooperative with their goal of creating promotional materials and those who were not. All approved by the Snohomish School District. We find it rather ironic that the NFL’s Play 60 slogan is, “Get on the bus.” The message our children received - through their actions - was, “Stay off our bus.”

Now allow us to address motives. From the school’s perspective, their motives seem purely financial. As we pointed out previously, any argument that the NFL Play 60 program was educational fails on the basis of the equal opportunity to teach. There were no concepts that the NFL presented that could not equally be presented by the physical education teachers already on the school staff.

The motives of the NFL are more speculative and would require some investigation. While we are sure the NFL will be quick to point out the $10,000 award and that the Play 60 event was to promote physical fitness and healthy lifestyle, we view this as a distraction away from the NFL’s primary motive; that of promoting themselves. We are hoping you will take the initiative to find out some of the answers regarding motives of the NFL. However, we would like to offer a couple of theories:
1. The NFL understands the power of children for promoting virtually anything.
2. The NFL found a method for reducing advertising costs.

Evidence of the promotional aspect of the Play 60 program is plentiful. Play 60 commercials are aired during nationally televised games and websites are dedicated to the Play 60 program. So why is the NFL so interested in promotional materials that include children? One possibility is that this is just a standard commercial campaign. Yet another is that the NFL may be attempting to address a negative public image brought on by the bad behaviors of several NFL players. After all, NFL players are supposed to be role models, right? However, it wouldn’t take much effort to compile a list of some of these role-model behaviors… physical assaults, weapons use and associated violations, alcohol and drug use and their associated behaviors, animal cruelty, etc. And what better way can be found to show the NFL in a more positive light than to film NFL players promoting something positive to children. But what the NFL is not showing the public is that not all children are included.

Another reason the NFL may be targeting schools is based entirely on the cost of engaging in business. When one looks closely at the financial aspects, perhaps the NFL has slyly discovered a method for lowering their commercial production costs. After all, how expensive would it be to produce such promotional materials if the NFL had to use a production studio and hire actual actors? While other overhead expenses may be similar, it would seem that the NFL would certainly lower some of these costs by shooting on location at a school. We must admit that without access to experts in advertising and marketing, the labor costs would be difficult to determine. However, we believe this would be worthy of some investigation. With an enrollment of approximately 320 students at Cathcart Elementary, each playing roles as participants and extras, the labor costs of hiring actual actors in this situation would be significant. Perhaps the $10,000 “donation” now seems rather frugal. Additionally, the NFL may to have found a way to skirt those pesky child labor laws. And while we are not accountants, maybe the NFL is gaining a more favorable tax write-off as well. While we acknowledge that the financial and surrounding legal issues are complex and difficult to determine, we have to wonder if the NFL is just doing what every business attempts to do… control costs and limit liability. We certainly know, as evidenced by the waiver, that the NFL desired to limit liability. Perhaps the NFL is not as benevolent as they would have us believe.

While school students do engage in a variety of fund raising activities to support school related and/or private extracurricular activities, those are all conducted on their own time and on a voluntary basis. There were other avenues available to both the NFL and the Snohomish School District for conducting the award assembly. The event could have been held after school hours on a voluntary basis, or the award could have been accepted by adult representatives of the school district and Cathcart Parent Organization. So why hold it during regular school hours while supplanting normal school programs? Perhaps the NFL feared that a low turnout would not look as favorably in their promotional materials? We feel that this assembly crossed the ethical boundary and converted the students into uncompensated fund raisers for the school. This is the type of situation where school administrators should have pushed back in order to maintain uniformity and fairness for all of the students. In this situation, what the NFL calls an “award” now seems much more like a payment for services rendered by children. If anyone refused to go along… well, then those children were segregated and effectively labeled as non-cooperators.

We are unsure of the application of law in this case. We are not lawyers. While this situation may not meet the exact standards of protected classes under civil rights legislation, the effect is the same. Rather than discrimination based on age, gender, or race, this case pertains to a class distinction made by the NFL and the Snohomish School District based solely upon the parents refusal to allow a private enterprise to use their children for commercial purposes; where the parents were expected to yield their rights - “universally and in perpetuity” - for virtually nothing in return (at least nothing directly). In the absence of applicable law, perhaps this is a situation where new law is derived. After all, the original Civil Rights Act did not include discrimination based on sexual preference.

If the NFL is allowed to lure in unsuspecting and cash-strapped school districts for their commercial desires, then we enter upon a slippery slope. Allowing NFL to promote themselves and their cause at the expense of school children would open the doors to all kinds of other private enterprises to follow suit. Who would be next? The National Basketball Association? Major League Baseball? How about Gold’s Gym? Each entity could present the exact same educational experience as the Play 60 program, but do you really think public schools would be as willing to accept Gold’s Gym as opposed to our modern-day gladiators? We suppose it would depend on the amount of the “award” they offered. Extrapolating further, what about Apple, Microsoft, Nike, and Wilson? What would then prevent Hostess filming children consuming Twinkies while they promote their health benefits? How about Johnson & Johnson promoting Band-Aids, Tylenol and other health care products? Absurd? Well, probably, but where do you draw the line? Traverse this slippery slope and schools will find themselves determining which private business activities become “school approved.” How long until advertising firms find a way to sell school approved logos; much like Underwriters Laboratories provides logos for tested products.

Even if we set aside the issue of motive, the NFL clearly regarded this event as promotional as evidenced by the language of the announcement, the requirement of a signed waiver, and the actual photographic and video materials presented on NFL websites and broadcast during NFL games. The NFL created an environment that resulted in a class distinction which was approved by the Snohomish School District. As for our children, they were treated as outcasts and attended by a glorified babysitter while being denied their expected education. And they are not alone. While we are unsure how many other children faced a similar situation, our children did say that there were two other children with them in their classroom during the assembly. It is possible that there may have been another classroom for children of the upper age ranges as well. Additionally, since the Play 60 program is being promoted across all NFL markets, we suspect you may find similar situations across the nation.

What the NFL and all involved school districts may classify as a reward or opportunity, we would classify as discrimination and the exploitation of some of our most vulnerable citizens. There should be zero tolerance for this type of activity; where private entities seek to use children in a public funded setting to promote their own interests. We feel that neither the NFL nor any school who participated in these events while restricting attendance should profit by this type of behavior.

Please consider our request to investigate this matter. Should you determine that this case has merit, we ask that injunctions be filed to suspend the NFL’s Play 60 program and all related promotional materials.

Regards,

Mark McChesney

Enclosures

With this letter I enclosed a copy of the announcement that was sent home with our children, along with the NFL’s Waiver of Liability and Release. I also provided some additional contact information in case the U S Attorney’s Office decided to look into this.

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First Response From the Department of Justice

On 2012 February 28, we received the following reply from Robert Westinghouse, Assistant United States Attorney:

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Dear Mr & Mrs McChesney

Your letter dated December 24, 2011, regarding possible discrimination in the Snohomish School District has been referred to me. Your letter raises intriguing questions about the mixing of commercial interests with public education, but does not present a matter of discrimination related to a Constitutionally protected group/interest, e.g., race, religion, etc. Therefore, our office is not in a position to be of assistance. Because no federally cognizable right has been violated, there is no applicable federal criminal offense.

I note that you copied the State Superintendent of Schools as well as the Superintendent of the Snohomish School District. These individuals and their staffs may be in a better position to address your concerns. Thank you for bringing this matter to our attention.

Sincerely,

Robert Westinghouse
Assistant United States Attorney
Criminal Chief

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While I was waiting for this reply I had conducted some additional research regarding discrimination and I was not surprised by Robert Westinghouse’s response. Still, I was curious as to why he did not address the issue we raised regarding the legality of the agreement between the NFL and the Snohomish School District. So I wrote back:

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Follow-up Letter To the Department of Justice

2012 March 24

Mark and Jana McChesney

Robert Westinghouse
Assistant United States Attorney
Suite 5220
700 Stewart Street
Seattle, WA 98101-1271

Re: NFL Play 60 Celebration Assembly at Cathcart Elementary

Dear Mr Robert Westinghouse:

Thank you for your review and response to the complaint we filed this past December regarding the possible discrimination of our children. While we were aware that it was unlikely that our children would qualify as a protected class in this incident, we did raise other issues in our complaint that you did not address in your response; primarily the issues surrounding the contractual validity of the event and a person’s right to choose. We hope you will take a second look at this situation.

The primary issues we would like to submit for further consideration are:

  1. The authority any individual or very small group of individuals has to negotiate a contract for a much larger collective of individuals, especially whether public officials have the authority to negotiate a contract with a private enterprise that affects a group of private individuals.
  2. Whether our rights to choose those private enterprises we wish to support or deny support were infringed.
  3. That the language of the NFL’s Play 60 contest rules may have knowingly placed an unreasonable burden upon the winning schools or resulted in a variation of the bait-and-switch tactic.

We have outlined those and some other issues in a separate document, which we have enclosed. We have also documented a list of questions which we have enclosed for the record.

Also, as you suggested, I am writing Rob McKenna to request a determination whether the NFL Play 60 celebration assembly violated any state laws. Should that avenue fail, we may engage a private practice attorney and/or seek legislative remedies.

Thank you again for your time and consideration.

Regards,

Mark McChesney

Enclosures

The enclosures included another copy of the announcement of the event and the NFL’s Waiver of Liability and Release, plus a couple of supplemental documents which further outlined our position and the questions we were raising. Those documents were titled, “Issues and Arguments” and “Open Issues and Questions” which follow below.

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Supplemental Document: Issues and Arguments

This document serves to address some of the issues we have pondered and to provide arguments regarding our rights and those of our children pertaining to the NFL Play 60 celebration assembly held at Cathcart Elementary School on 2011 November 15.

Conflict of interests on the part of the Snohomish School District:

Basically, we contend that Snohomish School District administrators attempted to serve two masters that day. We contend that the act of accepting a payment (regardless of how it is labeled) from a private enterprise with conditions attached that were favorable for that enterprise without serving any legitimate purpose for the school district was in direct conflict with the primary responsibilities of public school administrators. By catering to the promotional demands of the NFL, Snohomish School District administrators sacrificed the fundamental principles of fairness towards all of the students under their authority, damaged the self-esteem of those who were segregated from the mainstream student body, and compromised the quality of their education. Further discussions of these conflicts are listed below.

Regarding a person’s freedom to choose:

One of our primary concerns raised by the NFL’s Play 60 celebration assembly pertains to a person’s right to choose those private enterprises they wish to support, either by purchasing their products or services or by promoting that enterprise. The primary questions raised here are:

  1. Does any person have the right to choose for another person or group of persons, without their approval, a private enterprise that they are expected to patronize, support or promote?
  2. If a person chooses to refuse to support a private enterprise, should that person suffer any consequences or adverse affects from that decision?

We believe the answer to both questions should be, no.

Analogies:
If a salesperson comes to your home and you refuse their product or service offer, the salesperson leaves quietly. Although they are disappointed, the salesperson does not throw eggs at your home or string toilet paper throughout your yard. Another, perhaps more appropriate view is the case where a person approaches you seeking to purchase your automobile. If you refuse their purchase offer, you don’t expect that person to key your car when they leave. In other words, there are no expected consequences when you refuse to engage in business with a private party.

Arguments:
This was not the case with the NFL. By refusing to sign their Waiver of Liability and Release, thereby refusing to engage in business with the NFL (by refusing to relinquish our rights to something of tangible value - the images and biographical information of our children), our children suffered consequences by (1) being segregated from their peers (through no fault of their own and for reasons we feel are not legitimate), and (2) receiving a sub-standard education. In essence, our children were egged by the NFL and the Snohomish School District based upon our refusal to help promote the NFL. It is our claim that both the NFL and Snohomish School District infringed upon our freedom to choose those private enterprises we would support or deny support; that nobody has the right to speak on our behalf, without our prior permission, to obligate us to engage in business with any private enterprise. Furthermore, the NFL should not be absolved from the responsibility of knowing that just a few people cannot and did not represent everybody that would become involved, regardless of what their contest rules may specify.

We see this issue as somewhat of a variation of the insurance mandate that is about to be heard before the Supreme Court. The difference here is that instead of a law mandating that individuals purchase a particular product from a private enterprise; this case focuses on a private enterprise entering into a public institution to coerce them to provide resources for their own benefit. We feel that a person should have a fundamental right to choose those private enterprises they wish to support or deny support, without any consequences, especially when the product or service in question is unnecessary.

Regarding the NFL’s expectations that schools obtain all of the necessary waivers and legal approvals:

The short story here is that we contend that none of the contest entrants had collective bargaining authority and that the NFL had to have been aware of this. We challenge the NFL’s expectations placed upon the schools as unreasonable and seek to have these portions of the NFL Play 60 contest rules invalidated.

While we have not obtained a copy of the actual Play 60 contest rules in effect for the contest that was entered on behalf of Cathcart Elementary, a similar set of rules can be obtained on the NFL’s Play 60 website that seems to place most, if not all, of the legal and procedural burden of complying with the contest rules upon the award winning schools. Here is a section we pulled from one set of their contest rules: “Attendees (and, if minors, their parents or legal guardians) may be required to execute and return a liability and publicity release prior to the visit. Grand Prize award is dependent upon applicable school's or community center's full approval and cooperation.”

Regardless of the exact set of contest rules in place by the NFL pertaining to the publicity aspects of the Play 60 contests, we feel that the language of these rules needs to be addressed, with focus on the breadth and scope of the group to which the rules would apply. From this approach, we see two possible paths:

  1. The NFL’s contest rules were specific about the breadth and scope of the group of participants to which the publicity aspects would apply, or…
  2. The NFL’s contest rules were vague - even narrow - regarding the breadth and scope of the group of participants to which the publicity aspects would apply.

In the first case, we wrap right back into the argument pertaining to who had the authority to represent us and all of the collective participants in a business agreement with a private enterprise. No individual(s) were given collective bargaining authority and we cannot imagine that this contest met any competitive bidding process which would be customary with a public school district. So just who assumed to have this authority to speak for us and our children? What happened to our freedom to choose?

In the second case, if the NFL used vague language within the contest rules then we may be looking at a variation of the bait-and-switch tactic. Using language like we saw a few paragraphs ago, “Attendees may be required to execute and return a liability and publicity release…” would be so vague that no reasonable person could be expected to interpret as to eventually include a group consisting of several hundred members. If the NFL did not specify that the publicity aspects of the contest would include such a large group of individuals, then we feel that this is a very significant distinction and omission on the part of the NFL. While it may be customary for the contest entrant(s) to agree to be included in any publicity opportunities sought by the contest sponsor, this would be strictly limited to only those individuals who actually entered the contest. Unless the contest entrant(s) had prior knowledge to the breadth and scope of the publicity aspects of the contest (case 1 above), the NFL would have to have made their publicity demands after the award had been announced; effectively dangling the bait in front of the “winner” and pressuring them into complying with their exorbitant demands for publicity materials.

So now the argument converges down the same path. In either case, the NFL had to have acted with the knowledge that the contest entrants lacked the authority to represent such a large group of individuals. We believe this can be proven by observing the actual participation rates of the award winning schools, as we expect that no school achieved a 100 percent student participation rate. We also believe this can be reasonably demonstrated by the forethought the NFL devoted in developing multiple layers of waivers; that the NFL had the foresight to have the ability to preserve some legal protection by having additional layers of waivers should one layer - the one we are challenging (the broadest layer) - fail to stand against any legal challenges.

Since it can be argued that the NFL cannot reasonably expect any school to obtain signed waivers for all of their students, the question that follows is, what did the NFL expect would happen those students whose parents or guardians did not sign the waiver? We argue that it was not unreasonable for the NFL to have projected this scenario and, therefore, can and should be held liable for creating an illegitimate class distinction - between those who cooperated with their desires for promotional materials and those who did not cooperate - and the consequences these children suffered as a result.

Regarding the issue of discrimination:

Another concern we have is that Play 60 event may not be viewed as a case of discrimination because it does not conform to one of the protected classes as defined by the Civil Rights Act or other applicable law. We would like to argue that this case should be considered as a case of discrimination and a violation of civil rights for several reasons:

  1. The absence of applicable law does not mean a problem is nonexistent and should not be addressed. While legislative action has already defined several class distinctions (race, religion gender, etc.), who could foresee a time when a private enterprise would find a method for entering into public schools and create a class distinction based upon a person’s willingness or unwillingness to enter into a business contract with that enterprise? Much like the legal wrangling over the free speech and the right to bear arms, the courts are often called upon ahead of legislative action to refine the meaning of a person’s rights. Sometimes courts rule to strike down conflicting laws and sometimes they are asked to rule when applicable laws do not exist. In this case a class distinction exists, but has yet to be recognized because the circumstances were simply unforeseen.
  2. By requiring a signed Waiver of Liability and Release, the NFL created a class distinction based upon a person’s willingness to enter into a business relationship with them. We argue that since the NFL is a private enterprise and were in the act of conducting business from which they received something of tangible value while on public school property and during normal class hours, that this was not a legitimate reason to create a class distinction which resulted in a segregation of school children. As we pointed out previously, there should have been no consequences if a person refused to engage in business with a private enterprise.
  3. We argue that the NFL and the Snohomish School District engaged in discrimination based upon the definition in the standard dictionary as a class distinction was applied to our children for which there was no legitimate reason. This would provide the basis for an argument which is then supported by examples where class distinctions have already been defined (race, religion, gender, age, etc.). There was a time when sexual orientation was not defined as a distinct class and now we just have another case that needs a similar determination. Again, whoever foresaw a time when a private enterprise would enter a public school to use children for the purpose of collecting promotional materials?
  4. Now this may be a stretch, but… We would like to present an argument for discrimination based upon age (a protected class). First, we must establish that the NFL’s Waiver of Liability and Release constituted a contract between the NFL and the Snohomish School District, based on the facts that the NFL demanded something of tangible value in exchange for their award and that the celebration event occurred while on school property and during normal school hours (at a time when our children were under the care of the school district). The crux of this argument is that while we, as parents, may lack legal standing to challenge the contract because we refused to sign the waiver, that our children do have legal standing because the terms of the contract between the NFL and the Snohomish School District were still applied to them; that providing promotional materials for a private enterprise is not a legitimate reason for segregating school children from their peers. Therefore, any argument presented by the NFL or the school district regarding our (as parents only) legal standing is immaterial since the terms of the contract were not applied to us; rather, the terms of the contract were applied to our children.
Regarding the use of children to courier legal documents:

While we do not have legal standing on this particular issue, we think it would be worthwhile to see if students who were similarly situated were excluded from their celebration assemblies simply because a student forgot to turn in their waiver. We raise this issue because the Waiver of Liability and Release that we received was sent home with our children. Using children for delivering legal documents between parents and school administrators cannot be considered as a reliable delivery method. Considering the scope of the Play 60 program and all of the schools and students involved (34 schools received awards this past season alone), we think it would be likely that somewhere in the process that some student was excluded from their respective celebration assembly simply because they either lost or forgot to turn in their waiver, etc. From our experience, it is apparent that the NFL and school district did not maintain adequate control of their legal paperwork. We would think that by excluding any child from their respective celebration assembly because they relied on children to courier legal documents may constitute a form of age discrimination since no child could be held responsible for handling legal documents which would be used to enter into a contract.

Rebuttal of the school’s expected argument that our children’s education was not compromised:

While we would need to verify the facts, according to our children there were only four children (including themselves) in their classroom during the NFL Play 60 celebration assembly. While we assume these children were attended to by a certified teacher, this should be verified. If this person was not a certified teacher, the school’s argument that our children’s education was not compromised fails on this point alone. However, if the person attending to this classroom was a certified teacher, then this gives a teacher to student ratio of 1 to 4. What a wonderful teaching opportunity! What parent wouldn’t dream of a 1 to 4 teacher-student ratio? However, according to our children, this teaching opportunity consisted of watching a video, and perhaps some personal drawing activities if there was time remaining after the video had completed. What happened to individualized attention? Did this teacher offer to work with the students on math, reading, spelling, writing, or any other core educational component? Talk about squandering the teaching opportunity. In our opinion, this was not the quality of education we would have expected. Rather, it sounds like the teacher was converted into a glorified babysitter. We argue that minimal attention was devoted to our children while the school attended to their primary concern; that of catering to the provider of their award.

Regarding the favorable tax status of a charity:

According to a NFL website (https://www.nflcharities.org/grants/nfl_teams/play_60), the Play 60 program is a charity. True charity is anonymous. In our opinion, by demanding access to the entire student body for promotional purposes, the NFL goes beyond charity and enters into the realm of exploitation, especially when non-cooperative individuals are excluded. If one dismisses the NFL’s claim that Play 60 is a charity and views the program with an open mind, we believe one will discover that the “awards” are actually payments for access to children to conduct an advertising campaign. The evidence is the NFL’s exclusion of those who will not relinquish their rights to their images and biographical information; something of tangible value. We believe it can be argued that it is reasonable to assume the NFL is violating tax code by claiming their awards as after-tax charitable deductions rather than pre-tax business expenses.

Regarding the use of taxpayer resources to help promote a private enterprise:

While a cost analysis would need to be performed, it could be argued that the NFL benefited by using school resources for obtaining promotional materials, perhaps enough to go well above and beyond offsetting the $10,000 award presented to the school. In effect, it may be possible that Snohomish School District taxpayers actually subsidized the NFL in their quest to obtain promotional materials.

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Supplemental Document: Open Questions

Unknown details, unverified facts, or open issues pertaining to the NFL Play 60 contest and celebration assembly held at Cathcart Elementary School on 2011 November 15.

Regarding the scope of the NFL Play 60 contests:

  1. How many years has the NFL been conducting its Play 60 program?
    According to the NFL Charities website, since October 2007.
  2. How many schools or public institutions have won Play 60 contest awards over the lifespan of the program?
    According to another NFL website, 34 schools that won grand prize awards for this past NFL season.
  3. Have all of the institutions who won Play 60 contest awards been public schools? If not, please detail the different institutions and the awards.
  4. Are there different classes of Play 60 awards? If so, please specify all of the different types of awards and their distribution (award, school, date, etc.).
  5. How many waivers (Waiver of Liability and Release) have the NFL collected over the lifespan of the program?
  6. Are all of the individual names from the waivers stored in an electronic database? If so, what other information associated with these names is stored in the database?
  7. Did any of the winning individuals/schools/institutions turn down the award?
    1. If so, how many turned down the award?
    2. If so, why did they refuse the award?

Regarding the person(s) who entered the NFL Play 60 contest on behalf of Cathcart Elementary:

  1. Was the contest entered into by a single individual or by multiple individuals?
  2. Who signed the contest entry form?
  3. What was the capacity/title of the signers of the contest entry form (e.g., school administrator, parent organization member, etc)?
  4. Did these people have the authority to enter this contest on behalf of the school and all of its students (collective bargaining authority)?
    From our perspective, the answer is no.
  5. Did the NFL Play 60 contest entry conform to state and school district policies and procedures?
  6. Did these individuals read and understand the NFL’s Play 60 contest rules? If so, can they provide a copy of those rules?

Regarding the person(s) from the Snohomish School District who approved the Cathcart Elementary NFL Play 60 contest entry and celebration assembly:

  1. Who, from the Snohomish School District, approved the NFL’s Play 60 contest entry?
  2. Who, from the Snohomish School District, approved the NFL’s Play 60 celebration assembly?
  3. Did these individuals read and understand the NFL’s Play 60 contest rules?
  4. Did the NFL Play 60 contest entry for Cathcart Elementary undergo any legal or process review? If so, who performed this review?

Regarding the NFL’s Waiver of Liability and Release:

  1. Did the NFL’s Play 60 contest rules specify the necessity of the waiver?
    1. If not, at what point was the contest entrant informed about the necessity of the waiver?
    2. If so, were the contest rules specific regarding who would be required to sign a waiver?
    3. If so, were the contest rules specific in stating that all student’s parents or guardians would be required to sign a waiver?
  2. At what point were school administrators informed about the necessity of the waiver?
  3. Were any students’ parents required to sign any additional waivers (e.g., for fitness station participants)? If so, in what capacity?
    Please provide/obtain details and a copy of these waivers.
  4. How were the waivers delivered to parents?
  5. How were the waivers returned to the NFL?

Regarding some of the specific language of the waiver:

  1. What does the NFL envision for the future use of the images and biographical information collected for these school children?
  2. “… for any purpose whatsoever…” What does this mean?
    1. Would the NFL be allowed to alter the images?
    2. Would the NFL be allowed to cut/copy a portion of one image and paste it into another image?
    3. Would the NFL be allowed to update images and/or biographical information in the future?
      We assume the answer to each of these three questions is yes.
  3. “… throughout the universe in perpetuity…” What does this mean? What other purpose does the NFL intend for these collected materials besides historical value?
  4. “I understand that this document is intended to be as broad and as inclusive as permitted by the laws of the state in which the event is taking place…” How broad of a purpose does the NFL intend for these collected materials?

Regarding the reasonableness of the NFL Play 60 contest rules:

  1. According to a version of the NFL Play 60 contest rules (not necessarily the version in use for the contest in question), much/all of the burden for securing waivers, publicity releases, and associated approvals has been placed upon the schools receiving the award. However, is this expectation reasonable?
  2. Can the NFL reasonably expect that any school would be able to secure a waiver and/or publicity release for all of the students who attend that school?
  3. How many schools that won NFL Play 60 awards were able to achieve 100 percent participation in their celebration assemblies? In other words, how many schools were able to obtain signed waivers from all of their students parents/guardians?
  4. If schools were not able to obtain 100 percent participation, then what did the NFL think was going to happen to these students (whose parents did not sign the waiver)?
  5. If some students were barred from the celebration assemblies based on their parent’s refusal to sign the waivers, then did this crate a class distinction (between those who cooperated with the NFL’s promotional goals and those who did not cooperate)?

Regarding the statement made by Casey Bowers in the announcement that, “this is a publicity event for them” (the Seattle Seahawks and/or NFL):

  1. Who informed Casey Bowers that this was a publicity event for the NFL?
  2. Did the NFL Play 60 contest rules specify that the celebration assembly was a publicity event?
  3. At what point did the contest entrant(s) become aware that the award assembly was a publicity event for the NFL and Seattle Seahawks?

Regarding student attendance during the day of the NFL Play 60 celebration assembly at Cathcart Elementary:

  1. How many students were enrolled at Cathcart Elementary at the time of the NFL Play 60 celebration assembly?
  2. How many students were absent from school that day?
  3. How many students are absent from school on an average day (average daily student absenteeism)?
  4. How many children attended the Play 60 assembly in all?
  5. How many children attended the Play 60 assembly as audience members?
  6. According to the announcement, about 50 students actively participated in the assembly (e.g. at fitness stations and/or interacting with NFL personnel). What was the exact number of active student participants?

Regarding the number of students excluded from the NFL Play 60 celebration assembly at Cathcart Elementary:

  1. According to our children, two other students were in their classroom during the Play 60 assembly. Is this correct?
  2. Were there other classrooms during this time with other students who did not attend the celebration assembly?
  3. If so, how many total students were assigned to classrooms during the Play 60 celebration assembly?
  4. Were these classrooms tended by certified teachers?
  5. If not, who were tending to these children during this time?

Regarding the educational activities our children were engaged during the Play 60 celebration assembly:

  1. Who was tending to our children during the NFL Play 60 celebration assembly?
  2. According to our children, while they were in the classroom (during the assembly), they watched a video from the Magic School Bus series titled, “The Human Body.” Is this correct? If not, please specify the activities in which they were engaged.
  3. Did our children engage in any other activities during this time? If so, what were they?
  4. Did our children receive any individualized attention from a teacher during this time?
  5. If so, what activities did the teacher engage with our children?

Regarding the business decisions driving the NFL’s Play 60 program:

  1. What is the purpose of the NFL Play 60 program?
  2. How is the Play 60 program promoted?
    1. How are the contests advertised?
    2. How are the images, videos, and biographical materials collected from contest award winners used?
    3. Are these materials used to advertise for the NFL and/or their individual franchises? If so, how are they used?
    4. Are the contest award winners compensated? If so, is any of this compensation paid directly to individuals? If so, please specify (name, date, location, amount, etc.).
  3. Has the NFL performed any cost analysis for producing similar promotional materials using paid actors? If so, please specify.

Legal questions:

  1. Did the requirement of the waiver constitute a contract? If so, between whom?
  2. If a child’s parents/guardians failed/refused to sign the waiver, thereby refusing the contract, then were there consequences for refusing to engage in business with the NFL? If there were consequences, then what laws, if any, were violated?
  3. Were parents/guardians rights (to choose those private enterprises they wish to support or promote) violated because they refused to sign the waiver? Was a fundamental freedom or civil right infringed?
  4. Was an illegal class distinction made between students whose parents signed the waiver (cooperators with the NFL) and those who chose not to (non-cooperators)?
  5. If so, did any class distinction meet the legal standard of discrimination?
  6. If it is found that children’s rights were sacrificed in exchange for promotional materials, were child labor laws violated?
  7. Did the NFL and school districts err in using children as couriers of legal documents?
  8. If the NFL is illegally engaged in the collection of promotional materials, then is the NFL misclassifying the award as a charitable contribution rather than as a business expense when filing their taxes with the Internal Revenue Service?

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Second Response From the Department of Justice

April 5, 2012

Dear Mr & Mrs McChesney

Thank you for your follow-up letter. You are correct that my response only addressed the possible discrimination as a federal criminal offense issue. My response was so limited, because I am precluded from offering you legal advice on other issues. My duties as a federal prosecutor are narrowly shaped; I may only opine on questions involving the applicability of federal criminal statutes. Although you raise other issues, which you have carefully framed, I cannot comment on such matters.

Sincerely,

Robert Westinghouse
Assistant United States Attorney
Criminal Chief

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Corresponding With the Washington State Attorney General's Office

At the same time we wrote back to Robert Westinghouse we fired off a new letter to the Washington State Attorney General’s office. We didn’t think they would respond to the copy of the letter we sent to first letter we sent to the United States Attorney’s office; that they would wait to see what their response was first. So we sent them a new package of information, including my previous correspondence with the United States Attorney’s office. As with our second letter to Robert Westinghouse with the United States Attorney’s Office, this letter also included another copy of the agreement and the NFL’s waiver, along with the supplemental documents titled, “Issues and Arguments” and “Open Issues and Questions.”

Letter To the Washington State Attorney General

2012 March 24

Mark and Jana McChesney

Rob McKenna
Washington State Attorney General
1125 Washington Street SE
PO Box 40100
Olympia, WA 98504-0100

CC: Randy Dorn, Washington State Superintendent of Public Instruction

Re: NFL Play 60 Event at Cathcart Elementary

Dear Mr Rob McKenna,

This past December we copied you on a letter we sent to Jenny Durkan’s office requesting a determination whether National Football League’s Play 60 celebration assembly that was held at Cathcart Elementary this past November resulted in an act of discrimination against our children. We have received a reply from Robert Westinghouse with the United States Attorney’s Office stating that, “no federally cognizable right has been violated.” We have enclosed a copy of his letter along with another copy of our original complaint.

While we understand that our children did not meet the protected class distinctions necessary to support a determination of discrimination, where we really expect to gain traction pertains to issues surrounding the process of granting the NFL access to public schools for the purpose of obtaining promotional materials. This is where we turn to your office to see if any state laws were violated. The primary questions we now have are:

  1. Was the agreement between the NFL, Cathcart Elementary School and the parents of its students a valid contract?
  2. Who had the right to negotiate this agreement on behalf of the school and all of the students (or their parents or guardians)?
  3. Did the language of the NFL’s Play 60 contest rules knowingly place an unreasonable burden upon the winning schools or result in a variation of the bait-and-switch tactic.
  4. Were our rights to choose those private enterprises we wish to support or deny support infringed?

We are not lawyers, but it seems clear to us that the NFL’s Waiver of Liability and Release (“waiver”) constituted a contract, if not between us and the NFL, but between the Snohomish School District and the NFL. The evidence lies within the waiver; the NFL offered an award in exchange for access to school children for promotional purposes. Why else ask parents to relinquish their rights to the images and biographical information of their children if these materials did not have tangible value? In fact, we held the images and biographical information of our children so highly as to refuse to sign their waiver. We understand that we may not have entered into a contract with the NFL since we did not sign the waiver; that we may lack legal standing. However, as a third party, we (our children) still suffered consequences by refusing their contract, which we feel would give us legal standing. We find it difficult to believe that this waiver could be legal.

According to a NFL website (https://www.nflcharities.org/grants/nfl_teams/play_60), Play 60 is a charity that promotes health and fitness to school children. However, let’s look through their smokescreen and view it for what it really is; an advertising campaign within a feel-good wrapper. Additionally, it seems obvious to us that Snohomish School District administrators faced a conflict of interests and sacrificed their responsibilities to our children in order to cater to the promotional demands of the NFL and reap their award. We feel that neither the NFL nor Cathcart Elementary should benefit from their actions.

We did respond to Robert Westinghouse with the United States Attorney’s Office to request that he take another look at this situation. This request was made because his reply to our original letter seemed to only address the issue of discrimination and not the issues surrounding contractual validity. Rather that restate the issues we have raised with Robert Westinghouse here, we have included a copy of the document we submitted to him, including another copy of our original letter, the announcement, and the waiver. We have also documented a list of questions which we have enclosed for the record. Please excuse any duplication of ideas and arguments you may encounter.

Assuming that Robert Westinghouse will not change his opinion, we are requesting that you now proceed independently to determine if any state laws were violated.

Thank you for your time and consideration.

Regards,

Mark McChesney

Enclosures

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Response From the Washington State Attorney General’s Office

On 2012 April 20, we received the following response from Dierk Meierbachtol, Assistant Attorney General for the State of Washington:

RE: NFL Play 60 Event at Cathcart Elementary

Dear Mr. McChesney

Thank you very much for sending us your letter of March 24, 2012 and for bringing to our attention the situation involving your children and the NFL Play 60 Event at their elementary school. I am an Assistant Attorney General for the State of Washington, and I’ve been asked to respond to your inquiry. I appreciate your patience in waiting for our reply.

There are obviously a lot of issues to unpack from your letter. Because the law permits the Attorney General’s Office to only give legal advice or provide legal analysis to state agencies and certain elected officials, I’ll have to keep my response here relatively brief and general. But I do want to touch on most of the issues I’ve identified in your letter.

First, you raise several questions pertaining to the legal authority and propriety of your school district’s participation in the NFL Play 60 Event at Cathcart Elementary. Among other things, you suggest that the Snohomish School District may have had a conflict of interest in obtaining the $10,000 grant that NFL Play 60 awarded to your children’s school. You questioned whether the school district exceeded its authority in agreeing to have its students sign the Play 60 Super School Waiver of Liability and Release you enclosed with your letter. And you asked us if it’s lawful for the school district to use school facilities for private, promotional purposes.

While the Office of the Attorney General doesn’t have any legal power to look into these kinds of specific questions of legal compliance, the Washington State Auditor’s Office does. I would encourage you to learn more about the Auditor’s Office by contacting its Citizen Hotline toll-free at (866) 902-3900. The SAO’s website can be visited at http://www.sao.wa.gov.

Second, you asked us several questions, broadly speaking, regarding discrimination law, and whether you could claim that your children were unlawfully discriminated against for refusing to sign the Waiver of Liability and Release. I understand that the U.S. Attorney’s Office told you that this incident does not present a matter of discrimination related to a class protected under the federal Constitution. I think that sounds right. But it may not be the end of the question: Our own state constitution and civil rights statutes provide additional protections from discrimination that may not be covered under federal law. To learn more about that, you should consider contacting the Washington State Human Rights Commission at (800) 233-3247. Its website can be found at www.hum.wa.gov. In addition, the state Office of Superintendent of Public Instruction has its own Equity and Civil Rights Office. Its staff may be able to help you understand better the kinds of anti-discrimination laws that apply to school districts. They can be reached at (360) 725-6162.

Finally, you raised several questions regarding the tax status of NFL Play 60. I think that if you have concerns regarding whether NFL Play 60 is acting properly as a tax-exempt charitable institution, you may consider contacting the Internal Revenue Service to report your concerns. The IRS’s local office in Seattle can be reached at (206) 220-6015.

I wish I could more to help you work through these complicated questions. Although it’s not clear to me that there is any reason to believe that the school district or NFL Play 60 violated the law, it could be helpful for you to talk your questions over with a private attorney.

I hope this response was of some help to you. Thanks again for contacting the Office of the Attorney General, and for your patience in waiting for our response.

Sincerely,

Dierk J Meierbachtol

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Initial Thoughts Regarding Our Communications With the Attorney General’s Office

Okay, that wasn’t totally unexpected and I understand the limitations under which the Attorney General’s office operates. Quite frankly, Dierk’s response was more helpful that expected. So here we go… next up are the Washington State Auditor’s Office (“SAO”) and the Washington State Human Rights Commission (“WSHRC”). While I contacted the SAO a few days before contacting the WSHRC, I received a response from the WSHRC first, so I will continue to that office before continuing on to the SAO.

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Corresponding With the Washington State Auditor’s Office

After contact the citizen’s hotline as suggested by Dierk Meierbachtol, we were directed to Rick Bonner with the Washington State Auditor’s office:

Letter To the Washington State Auditor’s Office

2012 April 26

Mark and Jana McChesney

Rick Bonner
Audit Manager, School Programs
Washington State Auditor’s Office
Insurance Building
Capitol Campus
P O Box 40021
Olympia, Washington 98504-0021

Re: NFL Play 60 Event at Cathcart Elementary

Dear Mr Rick Bonner,

We have been in contact with the United States Attorney’s Office and the Washington State Attorney General’s office with several issues pertaining to a NFL Play 60 event that was held at Cathcart Elementary School earlier this school year. So far, neither of those offices have been able to assist us with the issues we have raised, primarily due to the limited scope of the duties of their respective offices. However, Dierk Meierbachtol, an Assistant Attorney General, suggested that the Auditor’s office may be able to help. We hope you are an appropriate contact to consider this matter.

To summarize, on November 15th, with the permission of Cathcart Elementary School administrators (Snohomish School District), the Seattle Seahawks and the National Football League held an assembly at the school during regular school hours to celebrate Cathcart’s winning entry in a NFL Play 60 contest. During this assembly, our children were segregated from the primary group of children based solely upon our unwillingness to sign a waiver by the NFL which would allow unrestricted use of photographs, video, and the biographical information of our children. The NFL has been using these images and similarly collected materials to promote the NFL in a nation-wide advertising campaign.

One of the issues we raised pertained to the potential discrimination of our children. Robert Westinghouse, an Assistant United States Attorney, determined that no federally cognizable right had been violated. Direk Meierbachtol agreed with this determination from a federal perspective, but mentioned that state laws may apply. However, he was unable to assist us due to limitations placed on the duties of the Attorney General’s office. Direk did suggest that we contact the Washington State Human Rights Commission regarding this issue - which we will in the next few days - but we thought we would mention this issue as well in case the Auditor’s office can address this issue as well.

The primary issue we are requesting that the Auditor’s office investigate pertains to the legality of the event itself. We have become aware that this event may have violated Article IX, Section 4 of the Washington State Constitution. This section simply states, “All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.” Since the NFL and Seattle Seahawks demanded access to the entire student body for promotional purposes during this event, the Snohomish School District and administrators at Cathcart Elementary essentially yielded control of the school to a private enterprise for their own benefit.

Additionally, some of the questions we asked the Attorney General’s office were:

  1. Was the agreement between the NFL, Cathcart Elementary School and the parents of its students a valid contract?
  2. Who had the right to negotiate this agreement on behalf of the school and all of the students (or their parents or guardians)?
  3. Did the language of the NFL’s Play 60 contest rules knowingly place an unreasonable burden upon the winning schools or result in a variation of the bait-and-switch tactic.
  4. Were our rights to choose those private enterprises we wish to support or deny support infringed?

We are not lawyers, but it seems clear to us that the NFL’s Waiver of Liability and Release (“waiver”) constituted a contract, if not between us and the NFL, but between the Snohomish School District and the NFL. The evidence lies within the waiver; the NFL offered an award in exchange for access to school children for promotional purposes. Why else ask parents to relinquish their rights to the images and biographical information of their children if these materials did not have tangible value? In fact, we held the images and biographical information of our children so highly as to refuse to sign their waiver. We understand that we may not have entered into a contract with the NFL since we did not sign the waiver; that we may lack legal standing. However, as a third party, we (our children) still suffered consequences by refusing their contract, which we feel would give us legal standing. We find it difficult to believe that this waiver could be legal.

According to a NFL website (https://www.nflcharities.org/grants/nfl_teams/play_60), Play 60 is a charity that promotes health and fitness to school children. However, let’s look through their smokescreen and view it for what it really is; an advertising campaign within a feel-good wrapper. Additionally, it seems obvious to us that Snohomish School District administrators faced a conflict of interests and sacrificed their responsibilities to our children in order to cater to the promotional demands of the NFL and reap their award. We feel that neither the NFL nor Cathcart Elementary should benefit from their actions.

We have attached the original announcement and waiver for you to review. We have additional materials we believe would help you understand all of the issues we have raised so far, including the responses we have received from the offices of the United States Attorney and the Washington State Attorney General. Also, we are currently drafting arguments for submission to the Washing State Human Rights Commission pertaining to how this event may have violated state anti-discrimination laws and are willing to share those as well.

Thank you for your time and consideration.

Regards,

Mark McChesney

Enclosures

Copies of the following documents were included with this letter:

  1. The event announcement, dated 2011 November 3.
  2. The NFL’s Waiver of Liability and Release.
  3. Our letter to the United States Attorney’s office, dated 2011 December 24.
  4. The reply from Robert Westinghouse, Assistant United States Attorney, dated 2012 February 28.
  5. Our letter to the Washington State Attorney General’s office, dated 2012 March 24.
  6. Our supplemental document titled, “Issues and Arguments,” dated 2012 March 24.
  7. Our supplemental document titled, “Open Issues and Questions,” dated 2012 March 24.
  8. The reply from Dierk Meierbachtol, Assistant Attorney General, dated 2012 April 20.

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Summary of My Conversations With Rick Bonner

I had a couple of conversations with Rick Bonner from which I took few notes. Our first conversation was primarily devoted to reviewing the materials I submitted and to clarify some points. Our second conversation was a discussion of his findings. While I appreciated the more personalized touch of actually talking to Rick about the issues we raised, I was informed that the Auditor’s office was not going to pursue this matter. Rick suggested that I take the matter up with the school board. I thanked Rick for his review and requested a written summary, which is copied below. However, there are a couple of things worth mentioning here:

  1. Although Rick did not come right out and say so, he seemed a bit dismayed when I informed him that Randy Dorn or representative(s) from the office of the State Superintendent of Public Instruction had never replied to either of the letters that I had delivered to them.
  2. That the agreement between the NFL and Snohomish School District could not be considered as a bribe since no individual benefited personally from this activity. I will offer an opinion about this later, but for now I will stick with the events as they unfolded.

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Response From the Washington State Auditor’s Office

On 2012 May 29 I received the summary from Rick Bonner:

Dear Mr. McChesney:

Thank you for your contacting the State Auditor’s Office Citizen Hotline regarding a contract between the Snohomish School District and a private organization.

You asked who had the right to negotiate this contract, whether the language in the contest rules place a burden on District schools, and if the contract violates the rights of the parents to choose what activities their children participate in at the District.

The School Board or their designee has the authority to obligate the District in a valid contract.

Our Office lacks authority to examine your remaining two concerns. You may wish to raise them with School Board Members, or consult with the Office of Superintendent of Public Instruction on its guidance on such contracts and student rights. Its Office of Education Ombudsman can be reached at 1-866-297-2597 or http://www.governor.wa.gov/oeo/

Thank you for taking the time to submit your concerns. If you have any questions, please contact me.

Sincerely,

Rick Bonner, CPA
Team School Programs

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Initial Thoughts Regarding Our Communications With the Washington State Auditor’s Office

The basic response from the Brian Sonntag’s office was, “The School Board or their designee has the authority to obligate the District in a valid contract.” Okay, perhaps they do not have the authority to determine if the school district entered into a valid contract, but in my conversation with Rick Bonner (CPA, Team School Programs), I questioned whether the school district entered into a valid contract or a contract at all. Rick’s statement never addresses the question. Remember, this was a contest that was entered into and coordinated by the Cathcart Parent Organization. Basically, the Auditor’s office refused to even look into the possibility that a contract existed or that this contest/contract/agreement did not conform to any administrative rules. While we may agree that the Auditor’s office can choose not to devote their resources to look into a relatively minor issue since only $10,000 is involved, we certainly believe they underestimated the political sensitivity of this issue. Or maybe not. Maybe it’s just that no mid-level civil servant wants to be the person who agrees with somebody who desires to call out a powerful interest such as the NFL. Still, we would like a better explanation as to why the Auditor’s office chose not to investigate this issue.

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Corresponding With the Washington State Human Rights Commission

Shortly after I delivered my correspondence to the Washington State Auditor’s office, I delivered a similar package to the Washington State Human Rights Commission (WSHRC), this time to lobby a position that this situation did qualify as an act of discrimination under state law.

Letter To the Washington State Human Rights Commission

2012 May 02

Mark and Jana McChesney

Washington State Human Rights Commission
711 S Capitol Way, #402
P O Box 42490
Olympia, WA 98504-2490

Re: NFL Play 60 Event at Cathcart Elementary

To Whom It May Concern,

We have been in contact with the United States Attorney’s office and the Washington State Attorney General’s office with several issues pertaining to a NFL Play 60 event that was held at Cathcart Elementary School (Snohomish School District) earlier this school year. So far, neither of those offices have been able to assist us with the issues we have raised, primarily due to the limited scope of the duties of their respective offices. However, Dierk Meierbachtol, an Assistant Attorney General, suggested that your office may be able to help address the issue pertaining to the potential discrimination of our children during this event. Additionally, as Dierk suggested, we have initiated contact with the Washington State Auditor’s office to see if other state laws were violated.

To summarize this issue, on November 15th, 2011, with the permission of Cathcart Elementary School administrators, the Seattle Seahawks and the National Football League held an assembly at the school during regular school hours to celebrate Cathcart’s winning entry in a NFL Play 60 contest. During this assembly, our children were segregated from the primary group of children based solely upon our unwillingness to sign a waiver by the NFL, which would allow the NFL unrestricted use of photographs, video, and the biographical information of our children. The NFL has been using the images and similarly collected materials from this event and others like it to promote the NFL in a nation-wide advertising campaign.

When we raised the issue of discrimination with the Department of Justice, Robert Westinghouse, an Assistant United States Attorney, determined that no federally cognizable right had been violated. Dierk Meierbachtol agreed with this determination from a federal perspective, but mentioned that state laws may apply. However, he was unable to assist us due to limitations placed on the duties of the Washington State Attorney General’s office.

We have reviewed the protected class definitions on your website and we admit that our situation may be difficult to classify. However, we feel we can make a valid argument when one considers a broad definition of creed. While creed typically pertains to religion, one may ask, how would creed apply to an atheist? If a person is an atheist, does their lack of religious conviction mean that they are devoid of any morals or guiding principles? Of course not. And as stated on your website, one of the more broad definitions of creed is, “The beliefs can include sincerely held moral and ethical beliefs as to what is right and wrong.” This is how we can approach this issue.

Our argument is that the Human Rights Commission should accept the broad definition of creed in that moral guidance comes from two fundamental principles of American culture: (1) adhering to the rule of law, and (2) that individuals have fundamental freedoms, including the right to choose those private enterprises they wish to deny support without any consequences.

From this perspective, the arguments we would like to present is that our children faced an act of discrimination for these reasons:

  1. Our children were segregated from their peers while the school district engaged in an unlawful act. While the legality of this event remains to be determined, we have submitted an investigation request with the Washing State Auditor’s office to see if this event violated Article IX, Section 4 of the Washington State Constitution. This section of the state constitution simply states, “All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.” Since the NFL and Seattle Seahawks demanded access to the entire student body for promotional purposes during this event, the Snohomish School District and administrators at Cathcart Elementary essentially yielded control of the school to a private enterprise for their own benefit. Additionally, we have asked the Auditor’s office to determine the legality of any contracts and if the NFL’s contest rules resulted in an illegal bait-and-switch tactic. If these acts are determined to have been illegal, we feel that our children should not have suffered due to the illegal activities of third parties.
  2. Our children were segregated from their peers simply because we chose not to support the promotional activities for the Seattle Seahawks and the NFL. Please bear in mind that this celebration assembly occurred on school property, during regular school hours, and in place of normal school curriculum. To use an analogy, if a salesperson comes to your door and you turn down their product or service offer, you don’t expect that person to throw eggs at your front door or string toilet paper throughout your yard when they leave. In other words, there should be no consequences for saying no to a private enterprise. However, this was not the case with the NFL. In essence, our children were egged by the NFL and school administrators simply because we choose not to promote the NFL and Seattle Seahawks. What happened to our freedom to choose? Freedom of choice is a fundamental part of American culture and should not be cast aside because it is not a pre-defined class. Freedom has a creed and one example may be found on the website for Freedom Force International.

It seems obvious to us that Snohomish School District administrators faced a conflict of interests and sacrificed their responsibilities to our children in order to cater to the promotional demands of the NFL and reap their award. While the legal definition of discrimination has restrictions in place, the broad definition of discrimination is that a class distinction is made between different groups for reasons that are not legitimate. We certainly do not feel that declining to help a private enterprise collect promotional materials is a legitimate reason to segregate children within a public school. We do not feel that the NFL had any right to demand access to every child within a public school for self-promotional materials; no matter how much they paid the school or however noble they believe in their cause.

Since the Auditor’s office has yet to investigate and/or make a determination of the merits of our complaint and that one of our arguments hinges on the outcome of their action, your office may choose to defer that particular issue until after the Auditor’s office has made their decision. We didn’t want to wait any longer to file our complaint with your office as the 180 day statute of limitations is approaching (even though we feel we could successfully argue for a waiver as we have already documented this complaint with other government agencies).

We have included most of the materials we have submitted to the United States Attorney’s office, the Washington State Attorney General’s office, and the Washington State Auditor’s office for you to review, including the responses we have received.

Thank you for your time and consideration.

Regards,

Mark McChesney

Enclosures

As with our correspondence package with the Washington State Auditor’s Office, copies of the following documents were included:

  1. The event announcement, dated 2011 November 3.
  2. The NFL’s Waiver of Liability and Release.
  3. Our letter to the United States Attorney’s office, dated 2011 December 24.
  4. The reply from Robert Westinghouse, Assistant United States Attorney, dated 2012 February 28.
  5. Our letter to the Washington State Attorney General’s office, dated 2012 March 24.
  6. Our supplemental document titled, “Issues and Arguments,” dated 2012 March 24.
  7. Our supplemental document titled, “Open Issues and Questions,” dated 2012 March 24.
  8. The reply from Dierk Meierbachtol, Assistant Attorney General, dated 2012 April 20.

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Response From the Washington State Human Rights Commission

On May 4, we received a reply from Becky Moore with the WSHRC:

Dear Mr. and Mrs. McChesney:

The Washington State Human Rights Commission (WSHRC) is in receipt of your information packet as of May 4, 2012. It has been assigned to me to review and respond. The Human Rights Commission is the state agency that administers and enforces the Revised Code of Washington (RCW) 49.60 - Washington Law Against Discrimination.

After a close review of the information you provided, it appears that you are alleging that Cathcart Elementary segregated your children from that NFL Play 60 contest assembly because of creed. The Cathcart Elementary actions as you describe them do not rise to the level of discriminatory harm. In your information you state that you did not sign the release form that specifically states that by signing the Waiver of Liability and Release form you are allowing your children to participate in and the attendance at the NFL Play 60 Super School Assembly. You chose for your children not to be a participant in or attend the Assembly, when you did not sign the Release. This choice was a Reasonable Accommodation for your religious beliefs in this situation. Based on the information you provided, the Cathcart Elementary’s actions as you describe them do not rise to any of these categories of discriminatory harm.

Please note that this means that the Human Rights Commission will not be taking any further action on your complaint. However, if you would like to further discuss the issue of the Commission’s lack of jurisdiction, or provide additional information about the alleged unfair situation, you may contact the Human Rights Commission by telephone at 1-800-233-3247.

Sincerely,

Becky Moore
Civil Rights Investigator

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Initial Thoughts Regarding Our Communications With the Human Rights Commission

In her response to our complaint, Becky Moore states, “After a close review of the information you provided…” We have to wonder how closely our documentation was reviewed considering that we mailed our information package on May 3 and Becky Moore's response is dated May 4. While we appreciate the one day delivery service of our letter by the U S Postal Service, we have wonder how much consideration was given to the materials we provided; whether Becky Moore consulted any other personnel within the Human Rights Commission, be it legal counsel or other civil rights investigators, or if she was just shooting-from-the-hip when she rendered her opinion. We also believe that Becky Moore’s response lacked sufficient detail and reasoning to support her opinion. Primarily, we are questioning Becky Moore’s opinion that we faced a reasonable choice when we declined to sign the NFL’s Waiver of Liability and Release.

In her response, Becky Moore stated, “You chose for your children not to be a participant in or attend the assembly when you did not sign the release. This choice was a reasonable accommodation for your religious beliefs in this situation.” We don’t believe Becky analyzed this situation properly, so let us explain further.

The choice we were presented with was a false choice. Either choose to be excluded from the NFL Play 60 celebration or choose to have our children removed from their regular classroom. Becky Moore is offering circular reasoning here or a Catch-22 scenario, basically saying that it was our choice that our children be placed in an environment of exclusion and provided with a sub-standard education. No, this was not our choice. Our choice is that we did not want to promote the Seattle Seahawks and the NFL.

Here’s an analogy (albeit a rather extreme one). Most people remember the events of 2001 September 11 (9-11) and watching the news footage as Flight 175 struck the South Tower of the World Trade Center. Then, news cameras focused on both of the twin towers as they burned and then collapsed. However, some of the most horrific film footage was captured as the buildings were burning and people began leaping from the upper floors of those buildings. Those people faced a choice: either be consumed by smoke and/or flames, or leap from the building. Neither option was desirable, but it was a choice just the same.

As Becky Moore points out, we faced a choice in this case: either sign the NFL’s waiver or be excluded from the event. However, Becky Moore’s opinion was that declining to sign the waiver and face exclusion was a reasonable option. We, however, disagree that either options were acceptable. Our choice was either sign away our rights to the NFL for our children’s education (something we already paid for via our property tax dollars) or have our children be segregated from their peers and face an environment of exclusion. Again, neither choice was acceptable and like those people who chose to leap from the burning buildings we just chose the least objectionable option.

At this point we are no longer confident that anyone from the school district or any other government agency will support our point of view. It is now time to take a different approach.

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Corresponding With The Seattle Times

On 2012 June 11, I called the Seattle Times news tip hotline and spoke to a woman on the phone who seemed genuinely concerned about what I was calling about. After hearing my brief story she routed me to Brian Rosenthal, one of the education reporters. Brian wasn’t at his desk so I left a message. A few hours went by and since I now had a contact name I decided to follow-up with an email.

Email To The Seattle Times

From: McChesney, Mark
Sent: Monday, June 11, 2012 12:06 PM
To: Rosenthal, Brian

Subject: Children for rent, courtesy of your local school

Hello Brian,

I just left you a voice mail regarding this story, but now that the person who answered news tip line routed me to your desk, I will provide you with a more detailed summary.

While the subject may sound sensational, I don’t think I’m too far out of bounds. A very profitable private enterprise enters into your children’s school under the cloak of providing a grant. But as it turns out, the grant has strings attached and they demand access to all of the children in the school for publicity materials. And what happens when you refuse to sign the waivers? Well, your children become segregated from their peers and treated like outcasts… not allowed to play in the reindeer games. Sound far-fetched? Well, this was our experience when the National Football League brought their Play 60 program to Cathcart Elementary this past November.

Normally I would have gone along with the crowd, but the language of the waiver was unacceptable. My children were upset from being excluded from the celebration assembly and rightfully so. After a couple of days of behaviors that reminded me of their displeasure, it was time to take some action.

I wrote the principal, and while some initial progress was made, I don’t think my complaint was taken seriously. After feeling snubbed, I wrote the Superintendent of the Snohomish School District. No reply. I then engaged the Department of Justice, but they wouldn’t get involved. I wrote the Attorney General, but they wouldn’t help either. The Auditor’s office? No, they wouldn’t look under that rock. Surely the State Superintendent’s office would respond, but alas, nobody’s home.

The basis of my complaint is this: While school district may engage in business with private enterprises to supply products and services to public schools, I don’t believe that they have the authority to engage in any business that obligates the students under their charge to provide publicity for any private enterprise. In essence, public schools do not have the authority to use their students to engage in commerce.

The NFL claims that their Play 60 program is a charity. But how many charities ask for publicity materials, let alone from an entire school full of children? And what educational purpose was served by having their cameras at the school? It is my contention that NFL Play 60 is a carefully disguised advertising program that exploits the NFL’s popularity and financial position for their own benefit. In the process, the NFL exploits children and discriminates against those who refuse to cooperate. But is this discrimination? Well, federal law says no and state laws may prove to be an uphill battle. And how about the state constitution’s prohibition on sectarian influence and control of public schools? Well, nobody from the state seems willing to fight for children while under the public watch.

In the letters I have written, I have raised many ethical and legal questions which have gone unanswered. I don’t want to have to sue my children’s school, but it appears that that may become my only option left. Except for you. I don’t see how going public will hurt my legal position and I think I have a very good story to tell. I’ll stop here as I can continue for several pages. Please contact me for further details.

Regards,

Mark McChesney

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Email Exchange With The Seattle Times

As the days drug on I was beginning to wonder why I hadn’t received a reply. While I don’t expect civil employees to respond immediately, this was a business and one where being the first to break a story returns greater rewards. After waiting week I finally received a reply. What follows is the email exchange between Brian Rosenthal and me.

From: Rosenthal, Brian
Sent: 2012 June 18, Monday 01:37
To: Mark McChesney
Subject: RE: Children for rent, courtesy of your local school

Thanks for the story idea, Mark. Sorry for the delay in getting back to you, as I’ve been on the East Coast for a conference.

I don’t think we have time to cover this right now given all that is going on, but please keep me posted.

Best,
Brian

--
Brian M. Rosenthal
Education reporter | The Seattle Times

--------------------

From: McChesney, Mark
Sent: 2012 June 18, Monday 02:21
To: Rosenthal, Brian

Subject: RE: Children for rent, courtesy of your local school

Good Morning Brian,

Thanks for getting back to me. Please allow me to explain a bit further...

I believe there are many political issues to consider as well as some legal issues, especially since this appears to concern the discrimination of children within public schools (may not meet the federal definition of a protected class, but it does meet the standard dictionary definition of discrimination) and that Michelle Obama’s “Let’s Move” campaign is partnered with NFL Play 60.

Also, Here is a question I have for Rob McKenna: “If you are arguing on behalf of consumers that the government cannot force an individual to purchase a particular product (health insurance, something that is arguably needed) from a private enterprise, then why will you not defend the rights of Washington citizens who are penalized when they refuse to promote a private enterprise, especially for something they don’t need?”

And let’s not forget Jay Inslee... where is my representative in Congress when I need him?

I would hate to have to bypass my local newspaper and contact somebody like Fox News. And given the Michelle Obama connection, I think you know they will take this story.

I hope these comments will help you to reconsider. I do have additional materials I can share.

Regards,

Mark

--------------------

From: Rosenthal, Brian
Sent: 2012 June 21, Thursday 19:31
To: Mark McChesney

Subject: RE: Children for rent, courtesy of your local school

Like I said, please keep me posted.

--
Brian M. Rosenthal
Education reporter | The Seattle Times

--------------------

From: McChesney, Mark
Sent: 2012 June 22, Friday 21:10
To: Rosenthal, Brian

Subject: RE: Children for rent, courtesy of your local school

No, thank you. You had your chance.

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Initial Thoughts Regarding Our Correspondence With The Seattle Times

Brain Rosenthal’s lack of interest was rather deflating, after which I entered a period where no real progress was made for months. It wasn’t so much that I didn’t think my story was not newsworthy, but that I didn’t want to leverage the political angle and especially the Michelle Obama connection because we were entering the final months of the presidential election campaign. While I wanted attention to the issue, I didn’t want to create a media circus either or to be a part of that circus. Although I thought the President and First Lady would have no real problem handling this issue, I have seen how quickly a media frenzy can be created and how relentless some people can be to attack a political opponents using whatever means necessary. I really didn’t want to become a part of those means. I mean, just look at the issue surrounding President Obama’s birth certificate. So I decided to wait until after the election to pursue potential legal remedies.

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Corresponding With Federal and State Political Leaders


Electronic Messages to United States Senators

Message to Seantor Patty Murray and Senator Maria Cantwell will be posted soon.

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Electronic Messages to United States Representatives

Message to Congresswoman Suzan DelBene and Congressman Dave Reichert will be posted soon.

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Electronic Message to Washington State Senator Rosemary McAuliffe

Message to Seantor Rosemary McAuliffe will be posted soon.

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Electronic Messages to Washington State Representatives

Message to Representatives Derek Stanford and Luis Moscoso will be posted soon.

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 Copyright 2014 Mark McChesney