Legal Issues in College Athletics
Volume 5, Issue 3
January, 2004

Legal Issues in College Athletics (LICA) is a narrowly focused newsletter that monitors case law and legal developments at the intersection of sports and the higher education industry. Each month, LICA provides summaries and analysis of court opinions as well as stories about issues that have an impact on the typical college athletic department.

Table of Contents

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Case Summaries

Judge Orders University to Reinstate Women's Team

A federal judge in Pennsylvania has ruled that West Chester University violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. when it shuttered its women's gymnastics program, and ordered the university to immediately reinstate the program.

The decision solidifies the boundaries for colleges that operate under severe budgetary constraints that must also maintain or achieve compliance with Title IX.

In this case, the court took special interest in the fact that the university had formed a committee to look specifically at Title IX compliance and then seemingly disregarded the committee's conclusions.

Leslie Brueckner, who represented Trial Lawyers for Public Justice in the case, told LICA that she believes one of the messages for athletic directors is that the conclusions of a gender equity committee should be taken very seriously. "West Chester ignored the school's gender equity committee, which had warned that the school that it was already in violation of Title IX and that cutting gymnastics would make the situation worse," said Brueckner.

The impetus for the complaint was the university's decision last spring announcing that it would eliminate both its women's gymnastics and men's lacrosse programs. In a press release announcing the decision, WCU also announced that it was adding a women's golf program, merging the program with the existing men's golf program.

In a press release announcing the decision, Athletic Director Edward Matejkovic,  Ph.D. noted that the university embarked on a 12-month review in the spring of 2001 to determine how best the university could respond to an imminent budget crisis, while satisfying Title IX. He said that the committee assigned the task created a roadmap to allow the university to continue to maintain all its programs. However, the budget crisis worsened, creating a "dire" situation.

In the release, Dr. Matejkovic explained the rationale behind adding a women's golf program. First, the team would travel with the men's team and would share the men's team coaches, dramatically cutting expenses. Second, he suggested that women's golf was rapidly eclipsing women's gymnastics in both popularity and opportunity, influencing the university's decision.

"While there are only seven NCAA Division II women's gymnastics teams in the country, there are nearly 100 women's golf teams across the nation," the AD said.

At the time, he also proactively sought to address any concerns about Title IX compliance. "Even though the current budget climate has caused us to make these difficult decisions," Matejkovic said, "we must still be cognizant of the opportunities for women in our athletics program. By adding a growing sport like women's golf, we will replace the opportunities for competition formerly held by our gymnastics team."

Immediately upon hearing the announcement, the plaintiffs -- eight members of the former West Chester University Women's Gymnastics Team -- began their attempts to have the gymnastics program reinstated. Among other things, they contacted the Department of Education's Office for Civil Rights (OCR), filing a complaint with that office on May 3, 2003. A little more than two weeks later, the plaintiffs contacted the Trial Lawyers for Public Justice. By late June, the plaintiffs retained the Washington-based TLPJ, which sent a demand letter to WCU, explaining the plaintiffs' position that the university had violated Title IX and suggesting that settlement talks would be in order.

On August 26, 2003, TLPJ attorney Brueckner, and Plaintiffs' local counsel, Sharon McKee, represented the Plaintiffs in a meeting with WCU's Matejkovic, Vice President for Student Affairs Matthew Brickett and at least two other WCU administrators. The Plaintiffs' attorneys presented their case and the defendants sought time to consider the situation. After the university's representatives failed to respond by an agreed upon deadline, the plaintiffs sued, naming the university, Matejkovic; Madeleine Wing Adler, President of WCU; and Barbara Cleghorn, Assistant Director of Athletics for Eligibility and Compliance as defendants. The plaintiffs sought a preliminary injunction, directing the defendants to reinstate the gymnastics program.

In its analysis, the court noted that the first notice of a possible problem arose when Deborah Anekstein, an administrative assistant and "pseudo athletic administrator" in the athletic department, drafted a memo to Matejkovic explaining what she described as WCU's shortcomings in the area of Title IX. Anekstein wrote that she believed that WCU had "failed to meet the first two prongs of the accommodation test and that, at that time, it was impossible to determine whether WCU was fully and effectively meeting the interests of its female students under prong three."

Three years later, the Athletic Department created the Sports Equity Committee "to obtain a basic and working knowledge of Title IX in order to begin the task of ensuring that the athletics program is in compliance with the law." On April 6, 2000, the committee wrote that at WCU "(1) student athletic participation is not proportional to the rates of enrollment, and (2) WCU does not have continuing program expansion for women (the underrepresented sex)," mirroring the conclusions of Anekstein.

However, the committee undertook an effort to determine whether WCU was in violation of prong three. Conducting a student survey, the committee determined that WCU was "meeting the 'interests' of its students." Of course, the plaintiffs questioned the reliability of the survey.

The Committee continued to monitor Title IX compliance at the university and in May of 2001, it sent a letter to the AD about certain coaching inequities, stating that:

"WCU continues to fall short regarding compliance. The Sports Equity Committee had been hopeful that the University would take a pro-active stand and address the coaching inequities that place the institution in violation of Title IX. We see the inaction of the University as placing West Chester University in jeopardy of civil litigation and/or investigation by the Office of Civil-Rights ... We have presented a plan that will help eliminate the possibility of legal action and have been ignored. This work would be used effectively against us in a legal action. We will not be a part of setting up our institution for greater difficulties regarding a Title IX investigation or litigation."

As the budget pressure on the university mounted, WCU and its athletic department continued to look for solutions. Women's gymnastics was clearly vulnerable, owing to the fact that in 1999 it had been relegated to Tier C status with men's tennis, men's golf, and men's lacrosse, meaning it would receive a bare minimum of financial support. When the pressure intensified, the program was cut. WCU clearly hoped that the creation of a women's golf program would offset some of the negative reaction to its decision.

The plaintiffs in the instant case made two distinct Title IX claims related to equal treatment and equal accommodation.

In the area of equal treatment, the plaintiffs argued that they have been denied equal treatment in terms of coaching support and recruiting money.

"The Department of Education's regulations list coaching opportunities and coaches' compensation as two of the ten factors in determining equal opportunity. 34 C.F.R. § 106.41(c)(5-6)," noted the federal judge. "In the area of coaching, it is apparent that WCU fails to not only provide equal coaching services to its male and female athletes, but WCU also pays the coaches of its women's teams less than the coaches of its men's teams. Prior to April 2003, WCU offered one more team for women than for men. Despite that fact, Plaintiffs present evidence that women's teams receive 'just 44 percent of the coaches and these coaches earn only about 40 percent of the dollars West Chester University spends on coaching salaries.' In the area of assistant coaches, the disparity is even greater. Men's teams benefit from 21 assistant coaches, while women's teams have only 14. In addition, assistant coaches of men's teams earn nearly three times that of their counterparts on women's teams."

Similarly, the court noted that there "is even greater inequity in the number of dollars spent on recruiting for women's teams as compared to men's teams."

The court concluded that the plaintiffs' "assertion that WCU has failed to comply with Title IX's equal treatment requirement in the areas of coaching and recruiting appears to be correct."

Turning to the equal accommodation argument, the court wrote that it was "satisfied that the defendants have failed to meet all three prongs of the accommodation test." Specifically, it found that(1) women students at WCU comprise almost 61 percent of the student body but are offered less than 45 percent of the athletic opportunities; (2) the school has not demonstrated a "history and continuing practice" of expanding its women's sports program over time because it has not added a women's team for over a decade and then, adding insult to injury, decided to cut an existing women's team; and (3) the school cannot claim that it has fully satisfied all existing female interest in sports because it cut a viable women's team that was ready, willing, and able to compete.

The federal judge found fault with WCU's 1999 student survey, which was supposed to support the argument that female students were satisfied with the existing offering of women's sports programs. It noted specifically that the response rate (39 percent) was below 60 percent, which meant, according to NCAA guidelines, that the survey was unreliable.

The court expressed sympathy for the university's predicament, but found the plaintiffs' argument for an injunction to be on solid legal ground.

"We understand that WCU finds itself in a difficult economic situation," it wrote. "However, we observe that WCU could have heeded the warning of its internal committees and avoided this problem. WCU intentionally made the decisions that brought them to this courtroom, knowing full well the potential implications." Barrett, et al., v. West Chester University, et al., Civil Action No. 03-CV-4978

E.D. Pa., 11/12/03

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Waiver Saves Cornell in Negligence Case

The appellate division for the Supreme Court of New York has sided with Cornell University, affirming a lower court ruling that dismissed a case brought by a plaintiff, who was injured while scaling a "climbing wall" on university grounds.

Central to the court's ruling was the fact that the plaintiff was participating in an instructional class, that she had signed a waiver prior to her participation and that she could not demonstrate "gross negligence" on the part of the university.

Nadine Lemoine was injured on January 30, 2000, when she fell from the Lindseth Climbing Wall on the grounds of Cornell University. She was participating in the first session of a seven-week basic rock climbing course offered by the university's outdoor education program. The plaintiff had taken the same course eight years earlier, but had not taken any more classes since then.

This time, she registered, paid the tuition for the class, watched the orientation video describing safety procedures and the signed a release "holding defendant harmless from liability for, inter alia, any injuries caused by use of the climbing wall, including those caused by defendant's own negligence." The plaintiff also signed a "Contract to Follow Lindseth Climbing Wall Safety Policies," which included a promise that she would not climb above the yellow "bouldering" line without the required safety equipment. However, the plaintiff, who was not wearing safety equipment, was climbing above the line. Ultimately,  she lost her footing and fell to the floor, injuring herself.

Lemoine sued the university,  alleging "negligence and gross negligence." The university moved to dismiss, citing the signed release and a the plaintiff's failure to set forth a cause of action. The Supreme Court granted the university's motion, prompting the present appeal.

Central to the plaintiff's appeal was her claim that the release and safety contract were void because of the state's General Obligation Law § 5-326, which states in pertinent part:

"Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of [*4]  such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable."

But the court noted that the legislative intent of the statute is "to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect."

However, the appeals court noted extensive state case law, which establishes that "facilities that are places of instruction and training have been found to be outside the scope of the statute." Even though the "climbing wall" could be deemed to be a "mixed-use" facility, there are factors that enforce the idea that its use was mostly tied to educational purposes. "(G)iven that defendant (Cornell) is unquestionably an educational institution, along with the fact that the brochure and course materials in the record indicate that the purpose of the climbing wall facility was 'for education and training in the sport of rock-climbing,' it is apparent that any recreational use of the wall by non-students would be ancillary to its primary educational purpose."

The appeals court next turned to the plaintiff's second argument that even if the release was not voided by the statute, the university's actions could be construed as gross negligence, or "reckless conduct that borders on intentional wrongdoing and is 'different in kind and degree' from ordinary negligence (Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, 297 A.D.2d 430, 431, 745 N.Y.S.2d 622 [2002]; see e.g. Green v Holmes Protection of N.Y., 216 A.D.2d 178, 178-179, 629 N.Y.S.2d 13 [1995])."

The university's actions, however, did not rise to gross negligence, held the appeals court in affirming the Supreme Court's finding. Lemoine v. Cornell University, 93723

S.Ct. N.Y., App. Div., 3rd Dept., 12/13/03

COUNSEL: Lo Pinto, Schlather, Solomon & Salk, Ithaca, (Raymond M. Schlather of counsel), for appellant. Nelson E. Roth, Cornell University, Ithaca, for respondent.

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Court Rules for University in Diving Board Case

A Texas State Appeals Court has affirmed a lower court's ruling, awarding summary judgment to a university that had been sued by a plaintiff, who injured herself in the diving board at the university's pool.

The court also affirmed the lower court's denial of the plaintiff's motion for continuance, which was made just prior to the court's scheduled date to rule on the summary judgment motion.

Michelle Howard injured herself using the diving board at an outdoor swimming pool, which was owned and operated by East Texas Baptist University (ETBU). Howard sued ETBU for premises liability, negligence, and gross negligence on June 1, 2001. She claimed specifically that the injury was caused by a "double bounce," created because the diving board's fulcrum was improperly positioned. According to the plaintiff, one side of the board was unsupported, causing her to be "propelled upward in an unstable manner and in an unexpected direction." Howard further alleged that her automatic attempt to correct herself in midair resulted in injuries to her back.

Howard initially withdrew the suit, approximately a month before the court was scheduled to rule on thee defendant's summary judgment motion. She refilled her suit on July 5, 2002. ETBU answered on August 6, 2002, and filed a motion for summary judgment two days later. On September 5, 2002, the day before the setting for submission on the motion for summary judgment, Howard filed an opposed motion for continuance, which was subsequently denied. On November 25, 2002, the trial court granted ETBU's motion for summary judgment, spawning the present appeal.

The appeals court looked specifically at the applicability of the Texas recreational use statute. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.001-.004 (Vernon Supp. 2003). In part, it provides:

"If an owner . . . of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner . . ., by giving the permission, does not: (1) assure that the premises are safe for that purpose; (2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises; or (3) assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted."

If applicable in this case, ETBU would be liable only "for injuries incurred through its willful, wanton, or grossly negligent conduct. Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193, 40 Tex. Sup. Ct. J. 721 (Tex. 1997)."

One of the key factors in determining whether the statute applies is the amount of ad valorem taxes paid on the "premises. The statute, by its terms, applies to ETBU only if it is an owner who charges for entry to the premises, but whose total charges collected in the previous calendar year for all recreational use of the entire premises of the owner . . . are not more than . . . twice the total amount of ad valorem taxes imposed on the premises for the previous calendar year."

After determining that the university did meet the threshold making the statute applicable, the standard of care that ETBU owed Howard was "limited." The court continued that "as long as ETBU did not act willfully, wantonly, or in a grossly negligent manner, it will not be held liable for Howard's alleged injuries. Timmons, 947 S.W.2d at 193."

The court next examined whether ETBU was grossly negligent, as the plaintiff argued. It wrote that gross negligence includes two elements:

"(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others." Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23, 37 Tex. Sup. Ct. J. 883 (Tex. 1994).

"Howard's expert, without personally inspecting the diving board, based his report and affidavit on the original petition, photographs of the diving board, and, in large part, on the affidavits of two ETBU employees," wrote the court. The expert opined that there had been "an inexcusable lack of normal maintenance and an equally inexcusable lack of concern for safety" and that "the board was not kept safe in a manner consistent with the American National Standard . . . for public swimming pools."

The court wrote that "the evidence simply does not suggest that, considering the probability and magnitude of the potential harm to others, there was an extreme degree of risk involving the diving board's use or that ETBU was aware of, or acted with conscious indifference to,  any risk involving the rights, safety, or welfare of its patrons."

As for the motion for continuance, the court noted that that the previous suit and "nonsuit" had effectively given the plaintiff extended time for discovery.

"The real question is whether it is permissible for a trial court to consider the amount of time available to the parties for discovery, even if the bulk of that time preceded the nonsuit and refilling of the plaintiff's claims," wrote the court. "On this point, it is instructive that both parties seemingly treated the second lawsuit as a continuation of the first, using discovery gathered during the first suit.

"We hold it was within the trial court's sound discretion, when considering the motion for continuance, to consider the time lapsed, and the actions taken and not taken, during pendency of the first suit. Howard v. East Texas Baptist University, No. 06-03-00004-CV

Tex. Ct. App, Texarkana, 12/4/03

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Court Decides Connecticut Agent Law Doesn't Apply

A lawsuit brought by a wannabe sports agent against NBA basketball player Marcus Camby and the sports agency ProServ, Inc. has survived in tact a summary judgment motion brought by ProServ.

John Lounsbury alleged that he had an oral contract with Marcus Camby, while Camby was a student-athlete at the University of Massachusetts, to allow Lounsbury to represent Camby in his professional contract negotiations. In exchange for that agreement, Lounsbury "provided Camby, his friends and family with money, gifts, gratuities and services," according to the court. Instead, however, Camby signed an exclusive agency contract with the Connecticut-based ProServ.

Lounsbury sued alleging that Camby breached his oral contract with him by signing with ProServ and that ProServ tortuously interfered with his agreement with Camby.

Lounsbury fended off an early motion to dismiss when Camby argued that the litigation was subject to mandatory arbitration, pursuant to the National Basketball Players Association Regulations and the Federal Arbitration Act. The court, however, concluded that neither Lounsbury nor Camby were subject to those regulations, denying the motion.

In the instant scenario, the court considered a second summary judgment motion, this one brought by ProServ, which addressed parts of Lounsbury's complaint. Specifically, ProServ argued that the contract with Lounsbury was illegal and violated public policy, making the claim of tortuous interference with the contract invalid.

In the court's examination of whether there were genuine issues of material fact, the court first reviewed the defendant's argument that the contract violates Connecticut civil and criminal law with respect to prohibited acts of athlete agents. The plaintiff argued that since Camby was a student at the University of Massachusetts during the period at issue, Massachusetts law applied. Lounsbury also noted that there is no comparable Massachusetts statute.

The court agreed with the plaintiff, determining that there remains a genuine issue of material fact, denying the defendant's motion for summary judgment. John Lounsbury v. Marcus Camby et al., CV990150580S

S.Ct. Connecticut, Waterbury, 11/13/03

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Media Denied Access to Disciplinary Records

The Supreme Court of Vermont has affirmed a lower court decision to affirm the validity of the Public Records Act in a case where the media was seeking access to student disciplinary records and proceedings at Vermont State College (VSC) and Lyndon State College (LSC).

However, the high court also noted that Family Educational Rights and Privacy Act (FERPA} does allow for the "disclosure of the 'final results' of any disciplinary proceeding against a student alleged to have committed a 'crime of violence' or 'nonforcible sex offense' where the college determines that the student violated the college's rules by committing the offense. 20 U.S.C. § 1232g (b)(6)(B)." FERPA states that federal funds will be withheld from any educational institution that has a "policy or practice of permitting the release of education records" to anyone other than certain enumerated persons and entities. 20 U.S.C. § 1232g (b)(1).

The case centered on the request of the Caledonian-Record Publishing Company, Inc. to gain access to daily logs maintained by LSC's Department of Campus Security, and student disciplinary records and disciplinary hearings relating to allegations of student misconduct in violation of the criminal law and the student code of ethics. While LSC provided the requested security logs, it claimed that the records and hearings in question were exempt from public access under the Vermont Open Meeting Law, 1 V.S.A. §§ 310-314, and Public Records Act, 1 V.S.A. §§ 315-320, and FERPA.

When the information was not provided, the Plaintiff filed a complaint for declaratory and injunctive relief against VSC and LSC as well as Robert Clark and Carol Moore, the respective presidents of the two institutions. In that complaint, the plaintiff argued that the court erred in concluding that the disciplinary records and hearings are generally exempt from public access under the Vermont Open Meeting Law and Public Records Act and FERPA.

The plaintiff appealed the trial court's denial of its request based on statutory exception. While the high court affirmed the ruling, it used different reasoning that the trial court.

"The state and federal courts are sharply divided on this 'statutory exception' rationale," wrote the high court. "Some have questioned whether the federal law, merely by withholding funds from educational institutions that release education records to anyone other than certain enumerated persons, affirmatively prohibits disclosure of student records. See, e.g., Red & Black Publ'g Co. v. Bd. of Regents, 262 Ga. 848, 427 S.E.2d 257, 261 (Ga. 1993) ('We have serious questions whether the Buckley Amendment even applies to the [open meeting] exemptions argued by the defendants since the Buckley Amendment does not prohibit disclosure of records. Rather, . . . the Buckley Amendment provides for the withholding of federal funds for institutions that have a policy or practice of permitting the release of educational records.'); Bauer v. Kincaid, 759 F. Supp. 575, 589 (W.D. Mo. 1991) ('FERPA is not a law which prohibits disclosure of educational records. It is a provision which imposes a penalty for the disclosure of educational records.'). But cf. DTH Publ'g Corp. v. Univ. of N.C at Chapel Hill, 128 N.C. App. 534, 496 S.E.2d 8, 12 (N.C. Ct. App. 1998) ('Although FERPA does not require UNC to do anything, but instead operates by withholding funds, we hold FERPA does make student education records 'privileged or confidential' for [open meeting law] purposes.').

The trial court's conclusion that student disciplinary proceedings are "education records" as defined by FERPA has also been the subject of "sharp dispute," noted the high court, again citing case law in support of this conclusion.

However, the Supreme Court noted that it didn't even need to consider the above two arguments. Instead, it wrote "the express Public Records Act exception for 'student records' is directly on point and plainly exempts the student disciplinary records from disclosure. See 1 V.S.A. § 317(c)(11) (exempting from disclosure 'student records at educational institutions funded wholly or in part by state revenue' except where disclosure is required upon request under FERPA); Animal Legal Defense Fund, 159 Vt. at 139-40, 616 A.2d at 227 (noting that student records exception demonstrates that University of Vermont is generally subject to Act). Although the Public Records Act does not define 'student records,' the language of the exception is broad and unqualified."

"It is clear that minutes and other records generated by such proceedings fall within the broad 'student records' exemption under the Public Records Act, discussed above, and therefore are exempt from disclosure." Caledonian-Record Publishing Company, Inc. v. Vermont State College, et al., No. 02-412

S. Ct. Vt., 9/5/03

COUNSEL: Philip H. White of Wilson & White, P.C., Montpelier, for Plaintiff-Appellant. Mary Alice MacKenzie, Waterbury, and Joseph P. McConnell and Maura D. McLaughlin of Morgan, Brown & Joy, LLP, Boston, Massachusetts, for Defendants-Appellees.

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Legal News

Taped Conversations Implicate Missouri Assistants

Ricky Clemons may not be playing basketball for the University of Missouri, but his name will continue to dominate the headlines in Colombia this season – for all the wrong reasons.

Clemons, who was kicked off the team this summer after he violated parole, is at the center of an NCAA investigation. The investigation was initiated after Clemons's ex-girlfriend Jessica Bunge went public with allegations that Clemons received money under the table from the Tigers' coaching staff.

The revelation was fueled last month by the unearthing of taped phone conversations that Clemons had from jail, where he implicated the coaching staff and others. The tapes allegedly included Clemons saying assistant coaches Tony Harvey and Lane Odom gave money to him and to current Tiger players Arthur Johnson and Rickey Paulding.

The crisis has resulted in a recent trip by Athletic Director Mike Alden and UM system President Elson Floyd, Associate Athletic Director Sarah Reesman and General Counsel Bunky Wright to meet with NCAA officials in Indianapolis.

Alden said in a university release that the NCAA is still in its preliminary fact-gathering stage. "We hope to bring closure to this as soon as possible, but the length of the current stage of the review is not unusual," Alden said.

He added that the Missouri basketball program "has fully cooperated with the investigation and respects the due diligence that has taken place. I am confident in Coach (Quin) Snyder's management of the Mizzou basketball program and I believe that he will address any problem areas that have been identified through this review process."

Snyder issued his own statement, saying that he and his assistants couldn't discuss the allegations because NCAA and internal university investigations are ongoing.

"As tough as it is for me personally not to respond, and for my coaches not to respond, I cannot discuss these allegations," Snyder said. "As I have said all along, I respect the process of the investigation, and until the university and the NCAA reach the conclusion of this process, I will not comment on individual allegations or stories."

President Pulled Into Clemons Controversy

Alden and Snyder aren't the only two negotiating rough waters.

Floyd, who came to Colombia with much fanfare as the first African-American president of the system, has endured rumors of his resignation after his spouse reached out to the fallen Clemons as something of a project.

Floyd's wife, Carmento Floyd, had conversation with Clemons that were taped in which she suggested Clemons stop dating white women. In a meeting with the state's Board of Curators, Floyd apologized for his wife: "I regret wholeheartedly that this entire situation has occurred involving Ricky Clemons." He added that he and his wife have a reputation for being very hands-on with the needs of students and that that practice will likely continue.

Amy Stewart, the wife of Associate Athletic Director Ed Stewart, also had conversation with Clemons. The Columbia Daily Tribune reported that Clemons told her in one of those conversations that if the players  "needed money, they'd go to Harvey (assistant coach). He'd get it for 'em. But it was him first, and I stopped messing with him. I stopped talking to him and shit and then went to Lane (assistant coach)."

Clemons also said he gave the money to his then-girlfriend, Bunge, to deposit in the bank, according to the paper. Clemons' downward spiral started when he was arrested and subsequently convicted of second-degree assault and false imprisonment for choking Bunge a year ago. Initially, he was given probation, which he violated, leading him to prison.

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Judge: NCAA Can Shield Documents from Disclosure

Two separate legal cases touching on college athletics – Price v. Time and Cottrell v. NCAA -- explored somewhat common ground last month as the court in each case addressed the permissibility of disclosing sensitive information.

The first case centered of former University of Alabama Coach Mike Price and his $20 million lawsuit against Time, Inc. (Sport Illustrated) and a journalist for libel and slander. Price alleged that his alleged actions in Florida at a strip club and later that night at a hotel were based on information from an anonymous source and wildly exaggerated.

Price and his attorneys have sought disclosure of the sources that the Sport Illustrated journalist relied upon in writing the story. U.S. District Judge Lynwood Smith granted that request last month, noting that the Alabama law at issue only protects newspaper, television and radio reporters from being forced to disclose the identity of their sources.

"If the Legislature had intended for the scope of the statutory privilege to include magazines or other media, it could have done so clearly and unequivocally," the judge wrote.

Two weeks after the ruling, SI filed an appeal, arguing that the judge gave "a narrow reading of the Alabama Shield Law."

The magazine, in a statement, argued unsuccessfully that "the reporter's privilege is vital to all journalistic enterprises, including magazines. This decision jeopardizes SI's, and all magazines' ability to engage in investigative journalism."

In an unrelated, but equally important, ruling, a Tuscaloosa County Circuit Judge ruled that the NCAA will have the right to stamp as confidential certain materials that arise in discovery as it defends itself in a lawsuit brought by two former Alabama assistant coaches.

Ronnie Cottrell and Ivy Williams sued the NCAA and six other defendants for defamation after they were fired in the wake of the recruiting scandal on former Alabama Coach Mike Dubose's watch.

The plaintiffs, who are seeking $15 million in compensatory damages and $45 million in punitive damages, claim that they have been unable to find comparable employment, since they were identified in an NCAA investigation.

Initially, defendant Tom Culpepper, a recruiting analyst, moved for a protective order with his attorneys that various disclosures could violate confidentiality agreements that Culpepper has with his sources. Culpepper's request was followed by a motion from the NCAA and enforcement representative Richard A. Johanningmeier that papers, documents, disks, transcripts of depositions and other records be sealed.

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Richardson Fights Foundation over Contract Terms

Embattled former Arkansas Razorback basketball coach Nolan Richardson, who has sued his former employer and the Razorback Foundation for discrimination, has petitioned a federal judge to dismiss the Foundation's counterclaim.

Earlier this winter, the Foundation charged that Richardson's lawsuit violated the terms of an agreement, which was created in the aftermath of his March 1, 2002 termination. The agreement called for Richardson not to sue the Foundation, in exchange for $3.1 million to be paid over a number of years.

Arguing that Richardson violated the terms of the contract, it asked the court to either require Richardson to return $874,000 he has been paid thus far or dismiss the complaint. The Foundation also asked the court to require Richardson to pay its attorneys' fees.

In his motion, Richardson argued that the agreement had a limited scope and did not prevent him from exercising his rights under the U.S. Constitution or civil rights laws.

The Foundation already lost one battle last fall when it asked the court to dismiss Richardson's complaint because of his failure to state a claim. Central to that ruling was whether Richardson was an independent contractor or employee of the Foundation. While cautioning that he wasn't addressing the merits of the case, he did write that he was "unable to make a factual determination on the record before me of whether or not Nolan Richardson was an independent contractor or an employee."

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NCAA News

NCAA Shows Mercy on CSU, Citing Coach's Past

"Any system designed to provide institutional control, no matter how well-conceived, organized and implemented, can be undermined for a period of time by an individual determined to violate NCAA rules."

That conclusion, reached by the NCAA Division I Committee on Infractions, proved to be the saving grace for Chicago State University, which could have easily been tagged with a "lack of institutional control" designation after a series of NCAA violations were uncovered within its women's basketball program. Instead, the committee meted out penalties that included two years of probation and various recruiting restrictions.

The sanctions were issued in response to violations of bylaws involving out-of-season practice activities, practice-time limitations, recruiting violations and ethical conduct.  The committee also placed the former head coach, Cheryl Littlejohn, under a show-cause order until July 2009.

Specifically, the committee found that members of the women's basketball coaching staff arranged mandatory individual skill instruction workouts and impermissible pick-up games during the 2001-02 and 2002-03 academic years. During the 2002-03 academic year, the team exceeded the time limits for athletically related activities and the head coach encouraged, permitted and on occasion, directed student-athletes to miss class time for practice activities.

In addition, the committee found that, during the 2001-02 and 2002-03 academic years, members of the women's basketball coaching staff directed student-athletes to place impermissible telephone calls to prospective student-athletes, publicized a prospect's visit to the institution, provided an inducement to a prospective student-athlete and engaged in impermissible contact with a prospective student-athlete. The committee also found that the head coach directed a student-athlete and two assistant coaches to deliver and retrieve a National Letter of Intent to a prospective student-athlete.

The committee considered the recruiting violations to be major because they "were not isolated but rather committed over the course of two academic years." It noted specifically that "the head coach's disregard for NCAA legislation created a pattern of recruiting g violations, which resulted in a major violation."

The committee further took exception to the fact Littlejohn violated the principles of ethical conduct by her "deliberate failure" to adhere to the show-cause restrictions on her athletics as previously imposed by the committee in its 2002 report concerning violations at the University of Minnesota, Twin Cities. At that time, the committee ordered the head coach to refrain from engaging in any coaching activity during the first seven days of practice of the 2002-03 season. It was noted that the head coach did not comply with that order, instead observing the practices, receiving accounts of the practices, attending one practice and staying in the athletics building during other practices - all actions contrary to the committee's instructions.

In deciding on appropriate penalties, the committee noted, in addition to the aforementioned difficulty that institutions face with rouge coaches, other factors that favored leniency, such as the university's cooperation in the investigation and its self-imposed penalties and corrective actions.

The following penalties, in addition to the probation, were imposed by the committee or were self-imposed by the university and adopted by the committee.

Public reprimand and censure.

The number of official visits in the women's basketball program shall be limited to no more than eight for the 2003-04 academic year, and no more than nine for the 2004-05 academic year. (This penalty was self-imposed by the university.)

At the beginning of the current academic year (2003-04), the institution's women's basketball team delayed the start of preseason basketball practice by seven days. (This penalty was self-imposed by the university.)

The number of evaluation days in the women's basketball program was reduced from 40 to 38 for the 2003-04 and 2004-05 academic years. (This penalty was self-imposed by the university.)

The head coach will be informed in writing by the NCAA that, due to her involvement in certain violations of NCAA legislation found in this case, if she seeks employment of affiliation in an athletically related position at an NCAA member institution, she and the involved institution must appear before the Division I Committee on Infractions to show-cause as to why her duties should not be limited. This show-cause period begins December 18, 2003, and concludes July 1, 2009. (This period represents an extension of five years beyond the expiration date of the coach's previous show-cause provision.)

Required that, during the probationary period, the university shall continue to develop and implement a comprehensive educational program on NCAA legislation and submit periodic reports to the NCAA.

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Division III Membership Approves Reform Measures

The NCAA Division III membership adopted eight proposals as part of a "reform package" at its annual legislative session at the NCAA convention last month.

Among the proposals adopted were an end to the practice of "red-shirting," an annual financial-aid reporting process, a reduction in the length of playing and practice seasons, and the creation of limitations on practice and competition in the nontraditional season. The membership also adopted a proposal that permits eight Division III institutions currently offering a Division I sport and athletics scholarships to continue doing so.

"When you look at the substantial proposals that the membership adopted today, from the financial-aid review process, the elimination of red-shirting, and the reduction of the overall length of the playing season to limitations on practice and contests in the nontraditional segment, it adds up to a pretty significant collective accomplishment," said John McCardell, president of Middlebury College and chair of the Division III Presidents Council. "The cumulative effect of these proposals that have been adopted is really an affirmation that athletics is not something one does apart from the rest of the collegiate enterprise."

The membership approved a financial-aid review process that will require institutions to report to the NCAA, on an annual basis electronically, a comparison of financial-aid packaging for freshmen and first-year transfer student-athletes with the aid packages awarded to other freshmen and transfer students. The membership also approved legislation permitting student-athletes to issue a "self-release" to contact other institutions about a potential transfer. In addition, the membership approved legislation to shorten the playing season from 21 weeks to 18 weeks in fall sports and 19 weeks in winter and spring sports.

"I would call today's votes on academic reform in Division III a significant success," said NCAA President Myles Brand. "The Presidents Council did not get all it had wanted - a reduction in the number of contests is the most notable exception - but the core of the reform package was approved. With regard to the scholarship waiver for the eight multi-divisional institutions, the large majority of the membership saw no harm being done to the Division III philosophy. This proposal was not central to the reform package, either. All in all, Division III made an important statement about intercollegiate athletics today."

Those Division III institutions that will be permitted to continue offering athletics scholarships in their Division I sport programs are: Clarkson University; Colorado College; Hartwick College; Johns Hopkins University; State University College at Oneonta; Rensselaer Polytechnic Institute; Rutgers, The State University of New Jersey, Newark; and St. Lawrence University.

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Briefs

UMass Says It Will Remain I-AA

The University of Massachusetts announced last month that it would postpone a move to Division I-A, which continuing to lay the necessary foundation for such a move. The university based its decision on the results of a feasibility study conducted by Chicago-based Grenzenbach Glier and Associates.

James J. Karam, co-chairman of the University of Massachusetts Board of Trustees Ad Hoc Committee on Athletics, told the Daily Collegian that the school's decision relates to timing as much as anything else. "As with any major initiative requiring a significant capital investment, we need to make preparations and to be ready to strike when we see an opportunity that will bring us a high degree of success," he told the student newspaper.

As a Division I-AA program,  UMass has won the national championship in 1998 and Atlantic 10 titles in 1999 and 2003.

The paper further reported that the chancellor of the Amherst campus will develop a five-year plan for intercollegiate athletics that includes the continued development of the current football program at the Division I-AA level, without reducing or eliminating scholarships.

This plan will include the following elements:

  • Development of 501c3 athletic association to encompass the entire intercollegiate athletic department's revenue and expenses.
  • Development of a fund-raising plan capable of sustaining the intercollegiate athletic program at competitive levels for football and the other sports the university sponsors.
  • Development of a capital plan to address facilities issues for football at the Division I-AA level and other sponsored sports at the Division I level.
  • Development of a budget plan that ensures fiscal solvency of the intercollegiate athletic program within three to five years.
  • Development of a promotional plan that will build the audiences for Minuteman intercollegiate sports in football, basketball (men's and women's), hockey and other programs as appropriate.
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Rutgers' Anti-Athletics Group Loses Way

Several years ago, the Rutgers 1000 set out on a high-brow course to eliminate the university's focus on big-time athletics. Represented by alumni, staff and students, its mission was to restore the university's reputation as an elite academic institution.

That effort, however, seems to have left the track.

Both the student and staff components have disbanded, mostly influenced by the belief that the appointment last year of Richard L. McCormick as president would lead to the continued withdrawal from an emphasis on athletics. Instead, lamented Rutgers 1000 founder William Dowling, McCormick had no such intention. He claimed in the student newspaper that McCormick was "spending all his time on the phone pleading abjectly with Donna Shalala, the president of the University of Miami, not to leave the (Big East) conference."

Further, Rutgers Alumni Richard Seclow, spokesman for Rutgers 1000, painted a picture of an institution that has not only lost its academic way, but has an athletic program with an inherent "marketing problem with New Jersey. There are too powerful of pulls in the north and south with the Giants, Jets and Eagles. It's a foolish mission," Seclow said in the same article.

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Big East Seeks Stay

The legal skirmish between the Big East Conference and the University of Miami took another turn last month when the conference requested a stay of UM's lawsuit, until after its own suit against Miami, filed in Connecticut, can be heard. The conference has already had some success in controlling the Miami suit, successfully driving the suit from the state to the federal courts, where it is being heard by U.S. District Judge Ursala Ungaro-Benages of Miami. She has scheduled an initial hearing on the civil action for Feb. 27. Big East lawyers noted in their request that "this litigation is merely an opportunistic bid by Miami to seek refuge in what it perceives to be a more favorable venue."

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Classes Take Precedence at TCU

It was all or nothing for TCU, which had positioned itself for a major bowl game, before being upset by Southern Miss University in the next to the last game of its season. Shortly thereafter, the school announced that it would not play in GMAC Bowl game, citing a conflict between the timing of the game and final exams. Instead, it said it would play in its own creation, the Fort Worth Bowl, against an undetermined opponent. The school's provost and vice chancellor for academic affairs, William Koehler, was behind the decision, informing TCU athletic director Eric Hyman weeks before the Southern Miss game that he would not allow the school to participate in a bowl game. that conflicted with finals. "It was probably the toughest five days in my professional career," Hyman told the Associated Press. "Our athletes were in harm's way and caught in the politics that were going on."

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Controversial Tennis Coach Dies

The Syracuse University tennis coach, whose otherwise successful coaching career was tarnished by accusations of sexual harassment, died on November 24. Jesse Dwire, who was 56, coached the women's tennis team from 1978 to 1999 and guided the team to three Big East Conference titles. However, his career was also marked by a multi-million dollar sexual harassment lawsuit initiated by two of his tennis players. The players claimed that Dwire fondled and propositioned them. Dwire was suspended for three and a half months in 1997 following the incident. Ultimately, Syracuse settled the suit out of court in 1999 and Dwire resigned soon thereafter.

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NCAA Denies Player's Final Appeal

The NCAA has turned down the final appeal of Bradley University to have the initial eligibility requirement waived for its freshman guard Daniel Ruffin. The decision means Ruffin will be ineligible to participate in team activities and will not be given an athletic scholarship this season. "It's disappointing for Daniel, but I can see where the Cabinet's coming from," said BU athletic director Ken Kavanagh told the Peoria Journal Star. "By overruling the (Initial Eligibility Waiver) committee's decision, they thought they might open a Pandora's Box down the road." Ruffin will be allowed to participate in academic-oriented meetings with his teammates.

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School President: NCAA May Punish Coach

St. Bonaventure interim school president Rev. Dominic Monti told The Associated Press last month that he believes the NCAA is pursuing a charge of unethical conduct against Jan van Breda Kolff for his role in a player eligibility scandal, which led to his dismissal. The sanctions against the coach would be made in addition to the sanctions against the university, which included being stripped of 12 wins last season and barred from participating in the post-season. van Breda Kolff is now an assistant coach with the New Orleans Hornets. Sanctions against him could include a show-cause penalty whereby a college or university that wanted to hire him would have to obtain permission from the NCAA.

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Wrongful Death Plaintiffs Must Pay Legal Fees

A Minnesota state court judge has ordered the plaintiffs associated with Minnesota Viking football player Korey Stringer, who died two years ago of a heat stroke, to pay the legal fees of the Vikings and other defendants. District Judge Gary Larson wrote in his order that the defendants should be reimbursed $47,588.03, which was spent on expert witnesses, depositions, medical records, court fees and other lawsuit-related expenses. Last spring, when the trial initially ruled for the Vikings, team attorney Jim O'Neal had offered to waive the legal costs if the plaintiffs would waive their appeal. The plaintiffs chose not to accept the offer, paving the way for the appeal's court to affirm the ruling and the district judge to identify the costs.

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More Sanctions on the Way for Baylor

Members of the internal review committee examining alleged NCAA violations at Baylor University revealed last month that there will likely be more sanctions levied against the Baylor basketball program. Those violations center on Dave Bliss and his coaching staff paying for plane tickets and meals in violation of NCAA rules, according to Kirk Watson, outside legal counsel to the committee. Watson told the Associated Press that the committee had identified "major violations" involving more than one player. Already, the university has sanctioned itself by banning the program from post-season play this season. The university is anticipating a letter of inquiry from the NCAA.

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New Mexico Schools Brace for Revised Academic Standards

The University of Mexico and News Mexico State University are anticipating only modest, if any, increases in their budget to comply with the NCAA's new academic standards, which do into effect next fall. NMSU Athletic Director Brian Faison told the New Mexico Business Weekly that he was unsure whether the school would have to spend additional monies to ensure compliance. Currently, the school plans to provide between 25 and 35 tutors for student-athletes. UNM Athletic Director Rudy Davalos told the paper that he expected there would be no additional costs. The school currently employs approximately 35 tutors at an average cost of $10 an hour.

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Alan Page Receives 2004 Theodore Roosevelt Award

NFL Hall of Famer Alan Page, a trail-blazer on the field and off of it,  has been named the recipient of the 2004 Theodore Roosevelt Award, the highest honor the NCAA bestows on an individual. Page was a student-athlete at the University of Notre Dame, before embarking on a successful professional career with the Minnesota Vikings. Among his honors in the NFL was becoming the first defensive player to win the Most Valuable Player award. Even more impressive was Page pursuit, while playing in the NFL, of his law degree at Notre Dame. That dedication to academics ultimately resulted in Page becoming the first African-American elected to the Minnesota Supreme Court.

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University Closes Golf Course

The University of Alabama closed one of the golf courses it owns and operates last month, citing declining business. Officials at the school said the Harry Pritchett golf course, which employed six full-time workers, two part-time workers and eight students, began experiencing a decline in course usage and memberships after the Sept. 11, 2001, terrorist attacks. In addition, students began canceling their memberships when the university started offering special promotions at the course, such as "free play" days

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ASU Football Player Arrested

Arizona State University wide receiver Derek Hagan was arrested last month after he allegedly kicked and dented his ex-girlfriend's car. The sophomore was arrested on the criminal damage charge, a class-one misdemeanor that carries a penalty of up to a six-month jail sentence and/or a monetary fine. Being a first-time offender, officials suggested Hagan will probably only receive probation and mandatory anger management counseling. He could also be punished by ASU football head coach Dirk Koetter, but that decision will likely be governed by the Student-Athlete Code of Conduct. Hagan was ASU leading receiver last season and was an honorable mention All-Pac 10 selection.

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Illini Players To Attend Counseling

The University of Illinois announced last month that three of its student-athletes, who had previously been suspended after being linked to a burglary, will also be required to attend counseling and perform community service. Luther Head, Aaron Spears and Richard McBride had already served their multi-game suspensions when the announcement was made.

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Police Charge Players with Murder

Police charged three Fort Hays State University football players last month with murder for the beating death of a fellow student. Luis Anthony Llamas, 23, Christopher Ryan Ross, 19, and Bradley Darnell Deary, 21, and another student, Jaime Lopez III, 23, have each been charged with second-degree murder and are being held on $500,000 bond. If convicted, they face between nine and 41 years in prison. The men, allegedly, beat 18-year-old Clint Johnson during a Nov. 13 fight at an off-campus apartment complex.

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Legal Issues in College Athletics is a bi-monthly publication of Hackney Publications. Copyright 2004. All Rights Reserved.