Cases & Developments - National Association of College and University Attorneys

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Date:
10/6/2023
Powell v. Doane Univ. (D. Neb. Oct. 3, 2023)
Memorandum and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former women’s basketball head coach at Doane University, brought sex discrimination and retaliation claims against the University after it terminated her employment when both of her assistant coaches quit mid-season and multiple players complained of abusive and erratic behavior. In granting summary judgment to the University on her discrimination claim, the court found that one comment made by the Athletic Director referring to the disputes as a “female thing” was insufficient to raise a genuine issue of pretext. The court granted summary judgment to the University on plaintiff’s retaliation claim, finding her complaints to her student-athletes about their uniforms and other alleged disparities were insufficient to give the University actual notice of discrimination under Title IX or to constitute reports of discriminatory employment practices under Title VII.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Gender Equity in Athletics | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
9/29/2023
Thomas v. E. Carolina Univ. (E.D. N.C. Sep. 21, 2023)
Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former head coach of the women’s volleyball team at East Carolina University (ECU), brought discrimination and retaliation claims against ECU after she was terminated for creating a “toxic” culture within her program. Plaintiff alleged that her termination was the result of complaints she raised about Title IX compliance in ECU’s athletics programs. In permitting her discriminatory discharge claim to proceed, the court found that plaintiff had sufficiently alleged that she was a high-performing, experienced female coach who was replaced by a male coach with only one year of coaching experience at the collegiate level. It permitted her retaliation claim to proceed, finding that she plausibly alleged that (1) ECU departed from its usual practice and denied her team post-season play two weeks after she complained of gender bias against the volleyball program, and (2) an athletics official had solicited complaints about plaintiff from her players and promised an assistant coach would be promoted if plaintiff was fired.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Gender Equity in Athletics | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
9/22/2023
Fisk v. Bd. of Trs. of the Cal. State Univ. (S.D. Cal. Sep. 15, 2023)
Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss in Part. Plaintiffs, former and current varsity student-athletes at San Diego State University on the women’s track and field team and the women’s rowing team, which was eliminated in 2021, on behalf of themselves and a putative class, brought Title IX claims against the University, alleging it did not provide proportional financial aid to female student-athletes. The court dismissed for lack of standing (1) the claims of the students who graduated or transferred prior to filing the complaint, and (2) the claims of the former members of the rowing team for damages for dates after the elimination of the team because they could no longer be considered student-athletes and there was no longer any scholarship funding for which they might compete. It held, however, that plaintiffs had standing on (1) the claims of a former member of the rowing team who had alleged that she was denied the opportunity to compete for proportional financial aid while the team was still active, and (2) members of the track and field team who had alleged prior and ongoing lost opportunity to compete for financial aid. Applying the “inherently transitory” exception to mootness in class actions, the court further permitted plaintiffs to proceed on their claims for injunctive and declaratory relief even though the only two plaintiffs still at the University are no longer student-athletes.
Topics:
Athletics & Sports | Gender Equity in Athletics
Date:
8/11/2023
Doe 1, et al. v. The Univ. of S.F., et al. (N.D. Cal. Aug. 2, 2023)
Order granting-in-part Defendants’ Motion to Dismiss. Plaintiffs, 14 former baseball players at the University of San Francisco, on behalf of themselves and a putative class, brought discrimination, retaliation, and contract claims against the University and two former coaches, alleging that the coaches created a sexualized and abusive environment and that the University permitted the behavior to persist. Does 1-3 played on the team beginning in 2020, and Does 4-14 played between 1999 and 2018. The court permitted all plaintiffs to proceed in their Title IX and state-law discrimination claims. The court found that Does 4-14 had sufficiently alleged a University coverup that was a cause of their Title IX injury and held that whether the alleged coverup tolled the statute of limitations under the discovery rule is better addressed at the summary judgment phase. The court also permitted Does 1-3 to proceed on their retaliation claims, but it dismissed the retaliation claims of Does 4-14 as time barred, noting that the alleged retaliatory conduct was overt and experienced as abuse at the time. The court dismissed plaintiffs’ contract claims because they attached the wrong document to their complaint. It also dismissed plaintiffs’ claim based on the agreement between the University and the NCAA requiring the University to abide by the NCAA Division Manual, finding that even though student-athletes benefit from NCAA principles, the principles fall short of expressing a clear intent to establish the student-athletes as third-party beneficiaries.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination
Date:
8/4/2023
Smart v. Nat’l Collegiate Athletic Ass’n (E.D. Cal. July 27, 2023)
Memorandum and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiffs in two related cases, former “volunteer coaches” in multiple sports at Division I universities in California and Arizona, on behalf of themselves and putative classes, brought antitrust and unjust enrichment claims against the National Collegiate Athletic Association, alleging that, as a result of NCAA Bylaw 11.01.06 (repealed in January 2023) permitting schools to add one unpaid coach position, they worked at a rate of compensation below what they would have received in a competitive market. In permitting plaintiffs’ antitrust claims to proceed, the court found under a quick look analysis that plaintiffs had sufficiently alleged that the Bylaw had an anticompetitive effect, noting the large salaries of other coaches and recent increases in those salaries. The court dismissed their unjust enrichment claims, however, noting that the volunteer coaches had not alleged that they worked without contracts.
Topics:
Antitrust | Athletics & Sports | Athletics Compliance & NCAA Rules | Taxes & Finances
Date:
5/26/2023
Dep.’t of Education Timing Update on Title IX Rulemaking (May 26, 2023)
U.S. Department of Education Timing Update on Title IX Rulemaking. In a blog posting, ED announced that it is updating its Spring Unified Agenda to reflect an anticipated October 2023 publication date for both the final Title IX rule and the final Athletics regulation.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Gender Equity in Athletics | Sex Discrimination | Students | Title IX & Student Sexual Misconduct
Date:
5/12/2023
Loecker v. Bd. of Trustees for Colo. Mesa Univ. (D. Colo. May 1, 2023)
Order granting Defendant’s Motion to Strike and Exclude. Plaintiff, the former head coach of women’s lacrosse at Colorado Mesa University, brought sex discrimination claims against the University after she was terminated following complaints from players and parents that she “created a negative culture.” Plaintiff disclosed as an expert witness a professor of sports management whose report discussed gender bias, stereotypes, and leadership expectations in sports, and how these may affect evaluations of female coaches. The court first held that the testimony is admissible under Rule 702 on expert testimony, even though the expert’s report addressed only general principles, rather than the facts of the instant case. However, the court granted the University’s Motion to Strike and Exclude under Rule 403 on relevance, finding that this was a topic within a layperson’s common knowledge and that “its minimal probative value is substantially outweighed by its prejudicial effect.”
Topics:
Athletics & Sports | Athletics Operations | Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment | Tax Implication of Campus Political Activity | Taxes & Finances
Date:
4/28/2023
Ayoade v. Johnson Cnty. Cmty. Coll. (D. Kan. Apr. 21, 2023)
Memorandum and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a former men’s head soccer coach at Johnson County Community College who is a Nigerian-born citizen of the United States, brought discrimination claims against the College after he was terminated following repeated failures to comply with policies and procedures. Initially, he was placed on a performance improvement plan (PIP) after he disregarded his supervisor’s instruction and permitted an ineligible player to participate in a game in violation of NJCAA rules. He was then terminated after an investigation of anonymous ethics complaints revealed that he violated College procedures about management of team funds and encouraged players to keep concerns “within the team.” In granting summary judgment in favor of the College, the court held that although some of the allegations in the ethics complaints were not fully substantiated upon investigation, plaintiff was unable to demonstrate that his termination for inability to follow policies and procedures was pretextual.
Topics:
Age Discrimination | Athletics & Sports | Athletics Compliance & NCAA Rules | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination

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