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NAIA - Breakout
Legal Issues Involved in Staffing an Athletic Department
(Monday, June 16, 3:00 - 4:00 p.m.)



Lee Green:

Given the dramatic increase in recent years of losses being filed against athletics personnel, I am a little nervous being introduced to a group of athletics directors as an attorney. I don't want the lead story on "American Justice" next week to be, "Angry Mob of ADs Goes Berserk and Carries out Shakespeare's First Mandate Against Lawyers." I would like to emphasize that I am primarily a teacher and an attorney secondly.

I have a great deal of empathy for athletics personnel. In addition to teaching, coaching and all of your administrative duties, having to deal with so many legal issues takes up your time. I became very aware of this when I was still in law school. I worked part time for a Kansas state trial court judge.

One of the very first trials I sat in on when working for this judge was a sports law related issue. It involved a high school two-time, all-State football player in a very small town just outside of Kansas City who had been declared ineligible to play his senior year. Based on the fact that he was going to exceed the maximum age limit for athletic participation as set down by the State Athletic Association, he and his family had requested an exemption to this rule because he had been held back twice when in elementary school because of a learning disability.

The American With Disabilities Act had not been passed at this time, but they had filed a lawsuit based on the Rehabilitation Act of 1973, basically saying that a reasonable accommodation for his learning disability would be to grant him an exemption to the maximum age requirement.

The case came before the judge for whom I was working. The day of the actual trial, there wasn't going to be a jury involved and I was in the courtroom setting up some paperwork. The player, his parents and their attorney had arrived and were at their table. The attorneys for the State High School Association and some executives from the Kansas Association had arrived and were at the defendant's table. The courtroom was a large room with a dozen rows of pew type seating and it was filling up very quickly. They pretty much closed down this small town for the day so everybody could attend this proceeding because it was their star football player that had been declared ineligible to play his senior year. It was a very dramatic and emotional scene.

The coaches for the football team were there. A number of teachers from the school and most of the student body had showed up. About 10 minutes before the proceedings were to begin, all of the seating in the courtroom was filled up. More and more people were coming in. Finally, about five minutes before the proceeding had actually started, the doors of the courtroom opened as if this had almost been choreographed, the entire football team entered in a single file. They were all wearing their football jerseys. There was no place left for them to sit. The bailiff was trying to squeeze people in. The only place in the courtroom left was the jury box. There wasn't going to be a jury for this proceeding, but there were 15 chairs, or so, enough for a full jury and a few alternates, so they set part of the football team in the jury box. Now, the judge for whom I worked was nearing retirement, an old-timer, no nonsense in the courtroom type of guy. My eyes were glued on the door that led into his office because I couldn't wait to see the expression on his face. He expected this quiet little hearing. He entered the courtroom and saw all of these high school football players in his jury box. As the hearing went on, there was a high level of intensity and emotion.

The one common thread I've seen in studying a lot of court cases over the last dozen years that involve sports law, whether it's a Title IX situation or an American With Disabilities Act or the personal injury cases, is the passion that goes along with these cases. They are as great, if not greater, than any other area that you see in the courtroom. Working for this judge, I sat in on criminal cases, violent crimes, family disputes, some pretty intense stuff, but nothing ever came close to that day in the courtroom.

Today, I've tried to put together some materials that can help you deal with some of these issues and maybe take a little bit of the pressure off of you to some extent. This is in a handout also. Basically, I've broken this down into two broad areas. The first is your employment relationship with the athletics personnel that work for your school. The second area is the sports law area that you need to train your personnel regarding.

In terms of the employment relationship itself, I'm assuming most of you have substantial support from the Human Resource Department at your institutions in terms of all the little compliance ins and outs of questions you can and can't ask when you're interviewing and other issues relating to all of the anti-discrimination statutes relating to compensation and promotion and termination.

I have summarized pages two and three of the handouts. Let's talk about the Equal Pay Act of 1963 and you get a USC-type case with the women's basketball coach nowhere near in the same salary-base. I've highlighted the key points in each of these statutes and how they translate over into the athletic arena.

There are a couple of areas I feel are most important to talk about today. In terms of the sports law training and continuing education, on the next two pages, I have laid out some of the basics of your liability. When I say your liability, I'm talking about the liability of the school, of the athletics director, coaches, assistant coaches, athletics trainers, cheerleading sponsors, basically, all of your athletics personnel, to student-athletes who get injured. This is probably the most highly litigated area. In a recent article in the Wall Street Journal, they did a survey and the estimate was about 3,000 lawsuits filed against athletics personnel a year in this area. On legal expert comment, it would be rare for an athletics administrator or coach nowadays to be able to get through your career without, at some point, being involved in litigation. The law in this is fairly settled and I'll leave this for you to read the basics.

The area I'd like to focus on, the next two pages on the handout, are some of the very recent things, Title IX compliance and OCR audits and then the Americans With Disabilities Act. In terms of Title IX, I've tried to sort out all of the different requirements. There are so many of these areas. The original statute did not refer to athletics. It wasn't until 1979 that a policy interpretation was issued, what was then the Department of Health, Education and Welfare, and the OCR issued a policy interpretation to lay out all of the details in how Title IX applied to athletics.

In January of 1996, they issued a clarification to refine these different criteria. In late April of this year, the Cohen versus Brown University case, the U.S. Supreme Court refused to hear that appeal and by denying that case, has basically locked in the principles that the first circuit Court of Appeals decided in that case. I've got here essentially the rolling together the policy interpretations, the clarifications in the Cohen case and what the real law is right now in Title IX.

I want to talk about some of the details here. As I'm talking about anything, please feel free to interrupt any anytime with questions. What the OCR is going to look at, and I basically used the Office of Civil Rights Investigators Manual, which they use to train their investigators and has all of the details. This is essentially how they're going to break down a Title IX audit.

There are going to be three broad components they will look at. The first component is Effective Accommodations of Athletics Interests and Abilities. This is really the area that deals with what are the sports that you offer. A second broad component is scholarships, athletics financial assistance. The third broad component are some other catchall areas of other benefits that athletes get from athletic participation and do we have a quality in those areas. Now, you have to comply with component one, component two and component three. They will look at all three areas.

I want to focus on component number one. This is really the area that the Cohen versus Brown case refined and the most difficult to apply of all of these areas. Let's take a look at the details of component one. Essentially, with the sports offerings, the participation opportunities, you have three alternative ways that you can comply with Title IX. This is what is known as the three-prong test. Your three choices are, either you can have substantial proportionality, or you can show a history in continuing practice of program expansion, or you can show you are fully and effectively accommodating the interests of the under represented gender.

The first of those options is substantial proportionality. In the Cohen versus Brown case, Brown University was going to eliminate, for budget purposes, two women's sports and two men's sports. Some of the female athletes, Amy Cohen, being the main plaintiff in the class action suit, brought the suit to try to get injunctive relief to prevent Brown from dropping women's volleyball and gymnastics. At that time, the male/female enrollment percentages at Brown were 52 percent male and 48 percent female. In terms of all of the athletes, 63 percent of the athletes were male and only 37 percent were female. Essentially, you had an 11 percent differential. Those ratios were too far apart. Substantial proportionality says that those ratios have to be close.

The OCR doesn't require strict proportionality there. It would be impossible with shifting enrollments and shifting numbers of athletes and three or four people being declared ineligible would be a problem. Are you now not in compliance? All sorts of problems can come in. Substantial is the key word here. Now, the OCR doesn't have any strict statistical measures that it uses. Although, the red flag rule of thumb that their investigators look at is if you are in about five percent proportionality. Now, in the Brown case, they were 11 percent away. Forty-eight percent women enrollment would have been okay if they had 46 percent of the athletes women. There would have been substantial proportionality.

This, obviously, is the area where football if a real challenge to overcome. The numbers are going to be very hard for schools with 100 football players to meet the substantial proportionality test. A lot of schools are make strides there. The University of Kansas is an example. They have elevated women's rowing from a club sport to a varsity sport. Last year, they had 53 varsity participants in crew. They're actually within five percent. They are one of the few, other than the military academies, that actually meets the substantial proportionality test.

The key point is that you don't have to meet the substantial proportionality test in order to comply with Title IX because you have the two other options, history and continuing practice and a full and effective accommodation. The substantial proportionality you can think of as a safe harbor because it's very objective. If you're within three or four percent, you're going to be okay and that's your safe harbor. You won't have to worry about the very detailed and complicated analysis of these other two areas. Assuming, as Brown University didn't meet the substantial proportionality, then we get into the question of whether they meet either of the other two prongs of the test.

Now, the history and continuing practice of program expansion's key, is have you demonstrated a pattern of continually expanding participation opportunities for the under represented gender. What the OCR really looks at is recent. They'll only look at the last three to five years. This is sort of a catch 22 for a lot of schools because there are a lot of schools in the l980s who dramatically expanded their sports offerings for women, but they really hadn't done anything in the 1990s. They didn't meet the recent side of this. That's one of the problems. A lot of schools will argue that they've done their best, but when they hit that budgetary ceiling where there's just no more money in the pie to be split up among any programs, we haven't anything for men or women in the last six or seven years.

Some schools, unfortunately, have been taking the tack of, well, if we're going to add additional sports for the under represented gender, we're going to do it very slowly to make sure that we're adding a sport every couple of years so that we can show some recent history of continuing program expansion. This is a tough requirement to meet. Most schools cannot meet this requirement the way OCR interprets it. Brown University didn't meet the requirement.

Then, we stepped onto the third requirement here and that is, full and effective accommodation of athletic interests and abilities. Brown University's argument was, while we're not meeting the athletic interests of either men or women. We have a lot more men that would like to participate in sports than we can financially provide the competition for and a lot more women that would like to participate. Therefore, the key should be, are we failing to meet the needs of an equal proportion of student-athletes. They had done all of the surveys of students on campus and were showing that there was about the same number of men who were not accommodating their interests as there are women. But, the courts and the OCR have consistently rejected this approach. This is the bottom line point of the Cohen versus Brown University case and the Supreme Court's locking in the rule of law from that by refusing to hear the appeal. The courts have rejected that. The key words here are full and effective. You have to fully be meeting the needs of the under represented gender.

If you are in a situation where you were discontinuing teams and there were athletes who wanted to play those sports, another application of this might be if there were several women's sports that you didn't offer, but your primary recruiting area was an area where a particular sport was played to a large extent and you could easily recruit athletes for a particular sport, you had a club sport on your campus for women in that sport, you elevate the varsity status. If you have a lot of interest in a particular sport and you don't elevate that, you're going to fail to meet this requirement. This was the most emotional part of the case. Brown University was adamant about the fact that it felt it had met this requirement. By failing to meet the needs of an equal number of students inside out reasoning is what the court said. The bottom line is that you have to look at your programs and decide is there anything else that women are interested in that we can add sports for.

Very clearly now, those surveys that show they were failing to meet interests of the same proportion, forget about those. Those are of no use whatsoever.

To a large extent, this is no surprise. This is what the policy interpretation in 1979 said was the law. Again, the clarification, in 1996 in the Supreme Court. How many of you have seen the movie, "The American President?" There was one scene in that movie where the president, played by Michael Douglas, was in his office and one of his aides, played by Michael J. Fox, comes in. There was a big protest going on outside the White House. The president asked what was going on. Michael J. Fox told him there were a bunch of militants that think there ought to be gender equity in college athletics. The president asked him what was wrong with that. He said we have Title IX in place. It's been around for 25 years, hasn't it. Michael J. Fox looks back and tells the President that those militants think that we should actually enforce the law. That's what the Supreme Court said. The law is in place, obey it.

Shoot for a safe harbor of substantial proportionality. It's much easier for me to say than to actually do it in the actual world where you've got a fixed financial pie that you're trying to divide. What is the future of Title IX and trying to expand opportunities for women without having to drop opportunities for men is, creative approach to financing and trying to undo some of the locked in attitudes on the level of what needs to be provided for sports programs. Realize to some extent with budget, we're going to have to change some of our traditional approaches in order to meet those requirements. That's really where the rubber meets the road and that's why the Supreme Court has had take the hard line on this.

Let's go back to page six on your handout. All that deals with part of component one, the sports that you offer. Another aspect of effective accommodation of interest is the levels of competition that you are providing to both male and female athletes. There's actually a two-prong test to measure whether you're effectively providing equal levels of competition. There are two ways that you can provide equivalent. It doesn't have to be exactly equal, but it has to be equivalent competitive opportunities. First, is by equivalently advance competitive opportunities. If you had a women's program and it was basically almost all JV contests, or they weren't getting to compete in the same class, it was a NCAA Division II school and all of their competition was against junior colleges, that wouldn't be equivalently advanced competitive opportunities.

Even if there is a little bit of a differential there, as long as you can show a history in continuing practice of improving the competitive opportunities, you will meet this requirement. Again, they'll look at a three- to five-year type range. But, for whatever reason, very few schools have failed the levels of competition two-prong test. This usually isn't a big area of concern. It's that three-prong test that's really the challenging area. That's the first component. The OCR will come in and look at that.

They will also look at your scholarships, the athletics financial assistance. Here, they're looking for strict proportionality. If Brown University had 63 percent of their athletes as male and 37 percent women, they have to show that the scholarship pie is 63/37. Not that the women were receiving 35 percent of the scholarships, that might be close enough, but it's pretty much strict proportionality. They would want to see 37 percent of the scholarship money going to women. If you were in the 30 percent, you would clearly violate component two. This one is pretty objective.

Again, a little difficult to measure sometimes with who do you count. Do you count just the athletes who are eligible to participate, or if you have a team with 15 slots, but only 11 are filled, do you only count 11, or can you count 15? No. You can only count the people who are actually participating. You can't take the peak from two years ago, you actually have to look at currently what are the actual percentages.

The OCR will look at programs as a whole. They're not going to look at baseball and women's softball and just make a judgement on equivalence on just those two sports. As with many schools, they may provide many more benefits to men's football and men's basketball, but if that is 35 percent of your athletes on campus, are you providing equivalent benefits to 35 percent of your women athletes. It's an overall wing. You would probably have to do it to quite a few more sports to balance out football in this type of equivalence. My main point, is it's not just same sport comparison, its overall program comparison.

The next transparencies are 11 factors the OCR in their Investigators Manual actually detail and focus on. Protective athletic equipment and athletic supplies they'll look at, in general, equivalence between men's and women's programs. Locker rooms and practice competition facilities are other areas they will look at.

The actual audit itself by the OCR is a lot like an IRS audit. It's tough to deal with the bureaucratic side of some of this. This is one of the areas where it can be frustrating. When the OCR first came in, you know about the tape measures and size of locker rooms. The school responded by dramatically increasing the size of its locker rooms. When the OCR came back in for follow up, they counted the number of shower heads. While the showers were built for the under represented gender, they couldn't add any more shower heads. Their solution was to saw off and tape up some of the other showerheads in the other locker rooms.

The spirit behind this was absolutely correct. The facilities for women were vastly inferior before the OCR came in. They will look at these criteria with an excruciating detail. Locker rooms, practice and competition facilities are important.

Allocation of travel benefits, transportation benefits are important. If you are requiring women athletes to travel by van and most of your men's teams travel by Greyhound bus is an area they will look at. I saw one school hadn't provided any per diem for their women's basketball team. Their meals were all of the leftover popcorn from the concession stand. The men's programs got the per diem. Obvious things like that will be looked at.

Access to coaching expertise is another area. This involves years of service, experience, quality, assignment of coaches. Again, this is not particularly straight up comparing men's basketball to women basketball, but in an overall way, equivalence in quality of access to coaching.

Institutional housing and dining facilities and services are looked at. This applies to schools that have athletic dorms or training tables where access to women athletes are restricted. They were built primarily for male athletes.

The nature of publicity, marketing and media services is watched. The OCR finds that a lot of schools will put together the high glossy brochures for their men's sports while coaches of women's teams are trying to type out their own little media guides. So, they'll look at that whole publicity area.

Games and practices, times and schedules will be looked at. To what extent are you providing equal access to your facilities and games. Even down to issues of the double header scheduling. Some high schools have gone to flip-flopping the men's and women's varsity basketball games. There is a lot of resistance among college basketball coaches to doing this. To letting the men play at five and the women play at prime time. Yet, something that would pretty clearly go along way. Some of the schools that have done this have found that it has helped attendance at the women's games initially because of the carry over. Other schools have found resistance even from female players themselves because they'll say they get the carry over during the second half of our game for the men's game so, we have higher attendance if we play after the men. It's a tough issue, but games, practice times and scheduling is an area that the OCR will separately look at.

Facilities for an access to athletic training and medical is another area they'll look at. A lot of schools will assign their full-time trainers to the men's teams and a student trainer to the women's teams.

Academic tutoring services for student-athletes. My guess is that most NAIA schools are using the same facilities for tutoring for the entire student body, but a lot of schools have built their own separate facilities and have hired people. One school had a big problem because they had computer labs that they gave access to only the male athletes. The female athletes had to find other computers in the dorms, etc.

Institutional support services for the athletic programs are looked at. If every one of your men's programs have secretarial and other type of administrative support and the women's programs have to do their own clerical jobs is a problem in equity. This is again, an overall type fashion. Certain sports may clearly require more clerical support. No problem there is in an overall way things are balanced.

Finally, is the recruiting resources that are provided to your separate programs separate from the scholarships dollars? I'm talking about resources to go out and actually recruit.

You can use this set of 11 criteria to set up a little self-audit for yourself. Basically, go through it and look at what you are providing to your programs on each of these 11 different criteria. The most frustrating part of the OCR audit is that athletics directors are not really sure what they need to do to come into compliance in a detailed way. Hopefully, this can lay it out for you. There are three broad components that have to be complied with and then the sub-components which give you some alternatives, at least within the participation opportunities.

Thank you for being here today. I'll be happy to answer questions for you after this session.