A year in review: US sports law - Title IX, Gender Equality & Civil Rights (Part 4)

Friday, 05 August 2016

This article provides a broad overview of Title IX, gender equity & civil rights in the United States of America between May 2015 to May 2016. The content of this article originates from the presentation by Professor Matt Mitten at the annual conference of the Sports Lawyers Association ("SLA") in Los Angeles in May 2016.

For the ease of our readers we have broken down each topic presented by Prof Mitten into a series of articles. The the full update covers the following topics:

Agent Regulation and Team Sports – Labor Matters; 
Team Sports - Non-Labor Matters;
Individual Sports College, High School and Youth Sports;
Title IX/Gender Equity & Civil Rights;
Intellectual Property & Broadcasting;
Personal Injury and Safety, Stadiums and Venues;
Sports Betting/Daily Fantasy Sports;
International & Olympic Sports Miscellaneous.

The SLA, a non-profit, international, professional organization whose common goal is the understanding, advancement and ethical practice of sports law. Each year in May the SLA hosts an Annual Conference at which the above topics are presented and debated.

Title IX/Gender Equality & Civil Rights

First Female Assistant in NFL

The Arizona Cardinals added Jen Welter, the first female assistant coach in the NFL, to their coaching staff to work with inside linebackers. Welter was one of seven summer 2015 coaching interns. (SBD 7.28.15)

Bills Hire First Full-Time Female Assistant Coach

The Buffalo Bills have hired Kathryn Smith as the first female assistant coach in NFL history. Smith has been hired to be a quality control assistant special teams coach. (ESPN 1.22.16).

University of North Florida Gender Discrimination Suit Settlement

The University of North Florida (UNF) settled with a former women’s basketball coach, Mary Tappmeyer, who claimed to have been discriminated against due to her gender. UNF settled with Tappmeyer for $1.25 million. Tappmeyer claims that she was discriminated against over a number of years, along with her players. Tappmeyer claims that when she complained about the treatment, she was fired. UNF claims that Tappmeyer was not discriminated against, and the only reason they settled was due to the copious amount of attorney fees ranging more than $1 million. Tappmeyer claims that she was graded more harshly than her male counterparts, smaller budgets and lesser facilities compared to the men’s teams, and did not offer academic exemptions to the women’s teams that were offered to the men’s teams.

Settlement between the Department of Education & Erie Community College Involving Unequal Access to Athletic Opportunities

The U.S. Department of Education found that Erie Community College (ECC) violated Title IX by not providing female students with the same athletic participation opportunities as male students (only 32 percent of its athletic opportunities were offered to women, who collectively comprised 49.5% of its undergraduates). The terms of the settlement agreement required ECC to survey its female student body’s.

University of North Florida Gender Discrimination Suit Settlement

Settlement between the Department of Education & Erie Community College Involving Unequal Access to Athletic Opportunities

Jane Doe I, II, III, IV v. The University of Tennessee, No. 3:16-cv-00199 (M.D. Tenn. Feb. 9, 2016)

A group of six women are suing the University of Tennessee and the university’s director of the office of student conduct and community standards, claiming they “violated Title IX regulations and created a ‘hostile sexual environment’ through a policy of indifference towards assaults by student-athletes,” including Peyton Manning. The lawsuit claims that the university’s policies have made women on campus more vulnerable to sexual assault. The plaintiffs claim that the university had a “clearly unreasonable response” following occurrences of sexual assault on campus which made the women reporting sustain even more harassment.

Austin v. Univ. of Oregon, No. 15CV29383

Plaintiff is suing the university for $7.5 million dollars in damages for his suspension and dismissal from its men’s basketball team after he was involved in an off campus altercation, which did not result in criminal charges against him. He claims the university did not conduct a proper investigation before taking this disciplinary action and is liable for negligence causing him to suffer personal and professional harm, including his inability to secure or build a prospective relationship with any NBA teams. Pierre v. Univ. of Dayton (S.D. Ohio) is a similar case.

Is Sexual Orientation Discrimination Sex Discrimination?

Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ., 2015 U.S. Dist. LEXIS 41823 (W.D. Pa.)The court held that the University's policy of requiring students to use sex-segregated bathroom and locker room facilities based on students' natal or birth sex, rather than their gender identity, does not violate Title IX's prohibition of sex discrimination.)

Videckis v. Pepperdine Univ., 2015 U.S. Dist. LEXIS 51140 (C.D. Cal.) (The court dismissed plaintiffs' Title IX claim with leave to amend. In doing so, however, the court noted that “the line between discrimination based on gender stereotyping and discrimination based on sexual orientation is blurry, at best, and thus a claim that Plaintiffs were discriminated against on the basis of their relationship and their sexual orientation may fall within the bounds of Title IX.”

Proposed South Dakota Legislation to Void South Dakota High School Activities Association policy permitting transgendered athletes to request ability to participate on sports team of their chosen gender interests and abilities in sports opportunities that it does not currently offer; review why any viable women's team has been suspended or eliminated in the last 10 years; and to examine local participation rates in high schools, amateur athletic associations and community sports leagues as well as athletic participation opportunities at other colleges in the region to determine possible additional sports to add.

Class v. Towson University, 806 F.3d 236, 251 (4^th Cir.2015)

The Fourth Circuit reversed the lower court’s ruling that a university violated the Americans With Disabilities Act and Rehabilitation Act by excluding from its football team a student-athlete who suffered exertional heat stroke during practice that caused liver failure necessitating a liver transplant. Its team physician medically disqualified the student-athlete, but physician specialists in liver disease and transplants cleared him to play football with padding to protect his abdominal wall. An expert on heat stroke and illness testified that Core Temp Monitoring would provide an effective way for the university’s athletic training staff to monitor his internal temperature during football activities in order to prevent another occurrence of heat stroke. The Fourth Circuit ruled that the district court erred by evaluating whether the team physician’s medical judgment or that of the student-athlete’s physicians is more persuasive: “the standard for assessing [the team physician’s] judgment not to clear Class for return to football under Towson University’s Return– to–Play Policy is not whether we share that judgment or whether she had a better judgment than some other doctor. Rather, the standard is whether her judgment was reasonable—i.e., whether it was individualized to Class, was reasonably made, and was based on competent medical evidence. When applying that standard, we conclude that [her] decision was supported by legitimate health and safety concerns, manifested by the medical records, which were not eliminated by the proposed monitoring system. Therefore, we conclude that her decision was not unreasonable.”

Hilburn v. Forty Niners Football Company, LLC, No. 5:16-cv-00078 (N.D. Cal. Jan 7, 2016)

The 49ers are being sued for an alleged Americans with Disabilities Act

("ADA") violation. The 49ers held and questioned a fan with a disability in attendance when he brought his service dog into a game. The 49ers employees told Hilburn that he and his service dog must leave. Hilburn claims that due to the stress from the situation, he suffered a seizure inside the stadium. Hilburn claims to have myoclonic dystonia, which causes seizures. Individuals who have this disease, typically have their service dog notify people around the individual of any potential issues involving a seizure, and even help prevent seizures. Hilburn is bringing a claim that the 49ers violated the ADA by rejecting the individual with the disability because of his use of a service dog. (Law 360 1.7.16)

Eligibility and Disqualification

Eligibility and Disqualification Recommendations for Competitive Athletes With Cardiovascular Abnormalities: A Scientific Statement From the American Heart Association and American College of Cardiology. 66 CIRCULATION 2448 (Dec. 2015)

May be relied upon by courts in resolving in ADA or Rehabilitation Act by athletes excluded from athletic competition.