Cases & Developments - National Association of College and University Attorneys

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Date:
3/22/2024
DOJ Letter to Univ. of Md. Balt. re: Title IX Investigation (Mar. 18, 2024)
Letter from the Department of Justice to the University of Maryland, Baltimore County re: Title IX Investigation. The Letter details the findings of the Department’s investigation into allegations that the University responded inadequately to notice that the head coach of its Swimming and Diving Team subjected student-athletes to a hostile environment, unwanted touching, and other sexual harassment. The Letter also notes the University’s commitment through a comprehensive Settlement Agreement, which is subject to a state-mandated approval process, to enhance its Title IX Office, provide targeted training and support to student-athletes, and provide financial relief to certain student-athletes.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination
Date:
3/1/2024
Tennessee v. Nat’l Collegiate Athletics Ass’n (E.D. Tenn. Feb. 23, 2024)
Memorandum Opinion and Order granting Plaintiffs’ Motion for a Preliminary Injunction. Plaintiffs, the State of Tennessee and the Commonwealth of Virginia, as parens patriae on behalf of their student-athletes, brought antitrust claims against the National Collegiate Athletics Association (NCAA), asserting that the NCAA’s classification of name, image, and likeness (NIL) collectives as “boosters” that are prohibited from engaging in recruiting activities on behalf of a school, including discussions of potential NIL deals with student-athletes before they commit to a particular school, is “an ‘illegal agreement to restrain and suppress competition’ within the labor market of Division I athletics.” In preliminarily enjoining enforcement of the NCAA rules regarding the “NIL-recruiting ban” and Rule of Restitution, the court ruled that plaintiffs were likely to succeed on the merits, finding that (1) the balance between academics and athletics and the distinction between collegiate and professional athletics could be achieved by less restrictive rules, (2) the ban is anticompetitive for student-athletes even if it spreads competition evenly among member institutions, and (3) the social justification of protecting vulnerable students was not relevant to whether the rules are lawful. In finding that plaintiffs had sufficiently alleged irreparable harm, the court noted that the alleged harms of stripping student-athletes of some of their negotiating leverage and keeping them from knowing their full NIL value are not strictly monetary.
Topics:
Antitrust | Athletics & Sports | Athletics Compliance & NCAA Rules | Taxes & Finances
Date:
2/9/2024
McGowan v. S. Methodist Univ. (N.D. Tex. Feb. 5, 2024)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Partial Summary Judgment. Plaintiffs, nine former members of the women-only rowing team at Southern Methodist University, brought Title IX and negligence claims against the University alleging that it provided inferior resources to female rowers and that due to inadequate coaching, training, and medical treatment they all suffered the same type of hip injury. The court granted summary judgment in favor of the University with respect to eight of the nine plaintiffs on the grounds that their tort and Title IX claims are time-barred. Turning to plaintiffs’ request for compensatory damages, the court granted the University’s motion with respect to pain and suffering, emotional and psychological harm, and loss of quality of life, finding those types of relief unavailable after Cummings v. Premier Rehab Keller, P.L.L.C. It permitted the sole remaining plaintiff to proceed, however, in her request for compensatory damages for medical expenses for personal injury as well as for loss of educational opportunities and benefits.
Topics:
Athletics & Sports | Gender Equity in Athletics | Litigation, Mediation & Arbitration | Tort Litigation
Date:
1/19/2024
Anders v. Cal. State Univ. (9th Cir. Jan. 17, 2024) (unpub.)
Opinion vacating denial of class certification and remanding. Plaintiffs, members of the women’s lacrosse team at Fresno State University, on behalf of themselves and a putative class, brought Title IX gender equity claims against the University after it discontinued its women’s lacrosse, men’s wrestling, and men’s tennis teams. The district court denied class certification, citing a conflict between the interests of the named plaintiffs and the interests of other female students participating in other sports whose interests might not be served by diverting resources to the restoration of the lacrosse team. In vacating and remanding, the Ninth Circuit held that the district court abused its discretion because plaintiffs’ effective accommodation claim did not necessarily require reinstatement of the lacrosse team. It also held that the district court abused its discretion in not independently considering plaintiffs’ equal treatment claim.
Topics:
Athletics & Sports | Gender Equity in Athletics
Date:
12/29/2023
Ohio, et al. v. Nat’l Collegiate Athletics Ass’n (D. W. Va. Dec. 18, 2023)
Order granting Joint Motion to Convert Temporary Restraining Order to a Preliminary Injunction. Plaintiff States of Ohio, Colorado, Illinois, New York, North Carolina, Tennessee, and West Virginia alleged that the National Collegiate Athletics Association’s (NCAA) enforcement of NCAA Bylaws 14.5.5.1 and 12.11.4.2, which govern transfer eligibility and restitution respectively, violate Federal anti-trust law, specifically Section 1 of the Sherman Act. Under the transfer eligibility rule, student athletes who transfer two or more times are ineligible to compete for one year after transfer. Plaintiffs claim that this prohibition “unjustifiability restrains the ability of [] college athletes to engage in the market for their labor as NCAA Division I college athletes.” After the Court entered a 14-day TRO prohibiting enforcement of the transfer eligibility rule, the parties jointly sought to convert the TRO to a Preliminary Injunction in lieu of a PI hearing, and to set the case for trial. The Court granted the joint motion and entered a PI that will remain in place until a final trial and decision on the merits. Pursuant to the PI student athletes who were ineligible to compete under the NCAA’s transfer eligibility rule may engage in competition.
Topics:
Athletics & Sports | Athletics Compliance & NCAA Rules
Date:
12/8/2023
U.S. Dep.’t of Education Regulatory Agenda for Spring 2023—Title IX (Dec. 6, 2023)
U.S. Department of Education Uniform Regulatory Agenda for Fall 2023. The filing indicates that the Department’s Office of Civil Rights plans to issue a final action on Title IX and nondiscrimination on the basis of sex in educational programs or activities receiving federal financial assistance in March 2024. In a related entry, the Department indicates that it also plans to issue a final rule on Sex-Related Eligibility Criteria for Male and Female Athletic Teams in March 2024.
Topics:
Athletics & Sports | Gender Equity in Athletics | Students | Title IX & Student Sexual Misconduct
Date:
11/17/2023
In re: College Athlete NIL Litigation (N.D. Cal. Nov. 3, 2023)
Order granting Class Certification. Plaintiffs, one former and two current Division I student-athletes, on behalf of themselves and putative classes, in consolidated cases, brought antitrust and unjust enrichment claims against the National Collegiate Athletic Association (NCAA) and its Power Five Conferences, alleging that they suffered damages as a result of (1) the NCAA’s rules prohibiting compensation for student-athletes on the basis of their name, image, and likeness (NIL) from 2016 to July 1, 2021, and (2) the NCAA’s new “interim” NIL policy which subsequently became effective. In certifying three damages classes, the court held the predominant questions in each class are capable of class-wide resolution, finding sufficiently reliable expert opinions that (1) ten percent of the value of the Conferences’ broadcast rights were attributable to student-athlete NIL and that the Conferences would have negotiated agreements to offer equal payments for that NIL but for rules prohibiting that compensation; (2) the number and value of agreements to use student-athlete NIL in video games is similarly ascertainable; and (3) the value of third-party NIL compensation student-athletes did not receive from 2016 to July 1, 2021 may be estimated based on NIL compensation received after the interim NIL policy became effective.
Topics:
Athletics & Sports | Athletics Compliance & NCAA Rules | Student Athlete Issues | Students
Date:
11/7/2023
Schweyen v. Univ. of Montana-Missoula (D. Mont. Oct. 31, 2023)
Order granting the University’s Motion for Summary Judgment. Plaintiff, a former head coach of the women’s basketball team at the University of Montana-Missoula, brought a discrimination claim against the University after it declined to renew her contract following multiple seasons of poor team performance and complaints about her purportedly intimidating coaching style, including from student-athletes who planned to transfer from the University. Plaintiff alleged that her performance was evaluated more harshly than male coaches. In granting summary judgment in favor of the University, the court found that plaintiff was unable to demonstrate that the University’s dissatisfaction with her performance was pretextual, noting that she was unable to identify male comparators who were the subject of similar complaints and that allegations of disparate treatment between men’s and women’s teams were insufficient to create an inference of discriminatory animus in the decision not to renew her contract.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment
Date:
11/7/2023
Thomas v. Auburn Univ. (M.D. Ala. Nov. 1, 2023)
Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former Director of Academic Support Services for student-athletes at Auburn University, brought discrimination and retaliation claims against the University after he was terminated for waiting more than a year, in violation of NCAA compliance rules, to report that he suspected a student-athlete’s grade was changed inappropriately. After plaintiff received a “marginal” rating in his annual performance evaluation, he complained to a Human Resources generalist that he had been treated unfairly and filed an EEOC charge alleging discrimination and hostile work environment. He explained that he only reported his concern regarding the grade change after he began to suspect that his knowledge of it was related to what he perceived as hostile treatment. The court granted summary judgment to the University on his discrimination claim finding that his supervisors who did not believe the grade change was inappropriate were not adequate comparators and that he failed to present a convincing mosaic of circumstantial evidence of discrimination. Plaintiff’s retaliation claim also failed because he offered nothing to connect his termination to his EEOC charge or complaints he filed months earlier with HR.
Topics:
Athletics & Sports | Athletics Compliance & NCAA Rules | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
10/20/2023
Lewis v. Bd. of Supervisors of La. State Univ. (M.D. La. Oct. 17, 2023)
Order denying Plaintiff’s motion to reconsider the scope of a protective order regarding attorney-client privileged redactions in external investigations. Plaintiff, a Louisiana State University (LSU) Athletic Department employee, brought Title VII, Title IX, §1981, §1983, and RICO claims against the LSU Board of Supervisors and individual defendants based on conduct related to the conduct of former head football coach, Les Miles (Miles). In denying Plaintiff’s motion, the court reasoned that absent evidence of a prima facie case that defendants committed one of the three crimes alleged by plaintiff, the crime-fraud exception remained unavailable to pierce the veil of attorney-client privilege attendant to the redacted sections of a student complaint memo (Memo) detailing LSU’s review of allegations made by a student-employee against Miles, and outside counsel’s billing records. Specifically, the court ruled that outsourcing LSU’s investigatory obligations under Title IX to external counsel, did not convert an internal inquiry into allegations of Miles’ alleged conduct to an “official proceeding” pursuant to 18 U.S.C. §1512 (witness tampering). The court also found that under Louisiana state law (1) settling a student’s related civil claim was not public bribery, and (2) communication between counsel for LSU and Miles about the breadth of details in the Memo did not add up to factually false statements in public records, nor did the legal conclusion that Miles did not violate Title IX.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | External Counsel | General Counsel | Litigation, Mediation & Arbitration | Retaliation | Sex Discrimination | Sex Discrimination in Employment

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