Collegiate & Professional Sports Law Blog

Quinnipiac University has agreed to maintain its women’s volleyball team and expand athletic opportunities for its female students as part of a proposed settlement to end a lengthy court battle regarding the school’s lack of Title IX compliance.

The question of Quinnipiac’s Title IX compliance initially arose in 2009, when five members of the school’s women’s volleyball team and their coach sued the university and successfully enjoined a plan to eliminate the team. At the time, U.S. District Court Judge Stefan Underhill found a lack of Title IX compliance and ruled the university was “not providing genuine athletic participation opportunities in substantial proportionality to the gender composition of its full-time undergraduate enrollment.”

Following a trial, Judge Underhill confirmed his preliminary findings with regard to the injunction in a 95-page opinion. In the opinion, the judge announced the school violated Title IX by shortchanging female students of athletic opportunities. The school argued that members of the cheer team should be counted as athletes for purposes of Title IX compliance. Judge Underhill disagreed. He concluded, “Competitive cheer may, sometime in the future, qualify as a sport under Title IX. Today, however, the activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation.” In August 2012, the Second Circuit Court of Appeals unanimously rejected the University’s appellate argument that the 30-member competitive cheerleading squad should be included in the total number of student athletes.

Last month, Judge Underhill once again has rejected Quinnipiac’s arguments for lifting the injunction that had prevented the elimination of the women’s volleyball team. The judge ruled that Quinnipiac’s changes to its athletics program in response to his previous order were insufficient to bring the school into full compliance with the requirements of Title IX. He acknowledged the school had made substantial progress toward Title IX compliance, but found the mere addition of women’s varsity golf and rugby teams was inadequate to satisfy the school’s requirement for statistical compliance with Title IX. Judge Underhill concluded the university could renew its efforts to lift the injunction in the future.

The proposed settlement, which is subject to court approval, apparently will end Quinnipiac’s persistent effort to challenge Judge Underhill and lift the injunction. As part of the settlement, the school has agreed to maintain the women’s volleyball team and provide more scholarships and opportunities for Quinnipiac’s female athletes. In addition, the school has agreed to invest at least $5 million to upgrade facilities used by its varsity women’s teams, including locker rooms. 

The NCAA has admitted that certain investigative tactics used in portions of its inquiry into alleged violations of NCAA rules at the University of Miami failed its membership.

NCAA President Mark Emmert announced that the NCAA enforcement staff “acted contrary to internal protocols, legal counsel and the membership’s understanding about the limits of its investigative powers” when it hired the lawyer of former University booster Nevin Shapiro to obtain information while investigating the University’s athletic department.

While the 52-page report on the NCAA actions stated that no specific bylaw or law was broken, it concluded the NCAA’s enforcement unit had circumvented the NCAA’s legal staff’s advice when it used the services of attorney Maria Elena Perez to depose witnesses and gain information for its investigation of the University during Shapiro’s bankruptcy proceeding. The NCAA initiated the investigation of itself (conducted by Kenneth L. Wainstein, a former FBI general counsel and former assistant attorney general for national security) following the improper conduct it discovered regarding the Miami investigation.

 The report revealed:

• Perez sent the NCAA nine invoices requesting payment for the billable time she spent on the investigation between Oct. 11, 2011, and July 31, 2012. The invoices “requested a total payment of approximately $57,115,” reflecting an hourly rate of $350 for her legal work. The NCAA’s enforcement and legal staffs, however, “jointly agreed to pay a final amount of approximately $18,000.”

• The NCAA paid $8,200 to fund communications with Shapiro from jail, including the transfer of $4,500 to the prison commissary account from which Shapiro pays for the communications.

The NCAA has stated its case against the University will proceed, although information improperly obtained will not be used. University President Donna Shalala stated that the NCAA “has not lived up to their own core principles” and asserted her personal disappointment with the NCAA’s “unprofessional and unethical behavior.”

Shalala also declared the University takes full responsibility for the conduct of its employees and student-athletes. She acknowledged that where evidence of NCAA violations were substantiated, the University has acted and unilaterally eliminated opportunities for coaches and students, including playing in bowl games.

Shalala also criticized the NCAA and the status of its current investigation of the University:

Regardless of where blame lies internally with the NCAA, even one individual, one act, one instance of malfeasance both taints the entire process and breaches the public’s trust. There must be a strong sense of urgency to bring this to closure. Our dedicated staff and coaches, our outstanding student-athletes, and our supporters deserve nothing less.

The NCAA’s current vice-president of enforcement will leave by March 1 and its enforcement group would begin a review of the entire philosophy of the enforcement program.

Despite Shalala’s objections, the NCAA likely will issue its formal Notice of Allegations against the University and any individuals involved in the nearly two-year-old investigation shortly. “The intention is to move forward with this case…. There is still a lot of information that is available that has in no way been tainted by this incident,” Emmert said.

In a sudden turn of events, the NCAA has suspended its investigation into alleged improprieties of coaches and student-athletes tied to former University of Miami booster Nevin Shapiro, just days after announcing it was making significant progress. NCAA President Mark Emmert has also ordered an external investigation of the conduct of staff enforcement investigators following the discovery of their alleged improper conduct.

Emmert disclosed that members of the NCAA’s enforcement staff worked with the criminal defense attorney representing Shapiro to  obtain information improperly from depositions taken in Shapiro’s bankruptcy proceeding. This information would not have been otherwise accessible to  NCAA investigators as the bankruptcy proceeding did not involve the NCAA. Emmert described the actions of the NCAA’s investigators as “grossly inappropriate” and described the situation as a “shocking affair.”

According to the NCAA, the association with Shapiro’s attorney was not authorized. Acknowledging their lack of subpoena power and inability to use testimony from any proceeding occurring outside of its own enforcement mechanisms, the NCAA stated that its General Counsel had informed the enforcement staff that they could not use any information obtained from the Shapiro depositions on at least two prior occasions.

In light of this incident, Emmert has commissioned an external investigation and review of the NCAA’s enforcement program. He announced that the investigation and review will include a thorough examination of the overall enforcement environment to ensure that the operation of the program is consistent with the NCAA’s essential principles of integrity and accountability.

In  announcing that the NCAA will not move forward with the issuance of any Notice of Allegations in the Miami investigation at this time, Emmert said, “To say the least, I am angered and saddened by this situation. Trust and credibility are essential to our regulatory tasks.” He concluded, “My initial intent is to ensure our investigatory functions operate with integrity and are fair and consistent with our member schools, athletic staff and most importantly, our student athletes”.

Major League Baseball (MLB) has announced an unprecedented addition to its current drug testing program in an effort to eliminate player use of human growth hormone (HGH). Beginning with the  2013 season, MLB will conduct random, unannounced, in-season blood testing for HGH. All players will be tested at least once during the season. This marks a significant expansion of the testing program which had only allowed HGH testing during spring training in 2012.

Following the introduction of mandatory testing for steroid use in 2004, MLB toughened the penalties for players testing positive in 2005. First time offenders receive a 50-game suspension and a second positive test results in a 100-game suspension. A third positive test results in a lifetime ban from the MLB. These same penalties will be used for positive HGH test results.

“HGH can be used at any point during the year,” stated MLB Executive Vice President of Labor Relations Rob Manfred. “We think it is important from a deterrence perspective that players be subject to blood testing just like they’re subject to urine testing year-round,” Manfred continued as he explained the significance of these changes to the current MLB drug testing policy.

In addition to the HGH testing, MLB has incorporated stricter testing for testosterone in its changes to its drug testing program. MLB, in conjunction with the World Anti-Doping Agency, will create a “longitudinal profile program” which establishes a baseline Testosterone/Epitestosterone (T/E) ratio for each player. This ratio will be maintained under strict protections to ensure confidentiality. An automatic analysis will be performed on all urine specimens that vary materially and indicate a testosterone spike from a player’s baseline values.

“The players are determined to do all they can to continually improve the sports Joint Drug Agreement,” Major League Baseball Players Association Executive Director Michael Weiner stated. “Players want a program that is tough, scientifically accurate, backed by the latest proven scientific methods, and fair; I believe these changes fairly support the players’ desires while protecting their legal rights,” Weiner concluded.

The NCAA Division I Board of Directors has adopted a new rules enforcement structure that will hold coaches more accountable for violations within their programs.  The new rule also will impose longer postseason bans, of two to four years, and increased fines for schools that continue to violate NCAA rules and regulations. The new structure becomes effective August 1, 2013.

Under the new enforcement structure, the “I just didn’t know” defense will be unavailable to coaches.  They will be presumed responsible for the actions within their program, until it is proven otherwise.  Coaches could face suspensions of up to one year for violations committed by the actions of their staffs.

“We expect head coaches to provide practices and training and written materials that instruct their assistant coaches how to act,” NCAA executive committee chairman Ed Ray, the President of Oregon State University stated.

“If they’ve done that it can become mitigating evidence that they shouldn’t be held accountable for what the assistant coach did. But head coaches have to have these things in place or the presumption will be that he or she didn’t care enough to set standards,” Ray warned.

The new rules include the complete restructuring of the NCAA enforcement process. New measures include expansion of the NCAA’s penalty structure from two tiers to four, creation of new penalty guidelines and expediting the litigation process by expanding the Division I Committee on Infractions. The Committee will go from 10 voting members to as many as 24. The 24-person group can be divided into smaller panels to review infractions cases on a more expedited basis.

The Board’s action follows a year-long process during which a 13-member group of university presidents, athletic directors and commissioners considered the nationwide demand for a more effective enforcement structure to protect the integrity of college athletics. “We have sought all along to remove the ‘risk-reward’ analysis that has tempted people--often because of the financial pressures to win at all costs--to break the rules in the hopes that either they won’t be caught or that the consequences won’t be very harsh if they do get caught,” NCAA President Mark Emmert stated.

The new enforcement structure includes the following four-tier “violation hierarchy”:

Level I-Severe Breach of Conduct--Includes violations that seriously undermine the integrity of the NCAA college model (i.e., any violation that provides or is intended to provide a substantial or extensive recruiting, competitive or other advantage, or a substantial or extensive impermissible benefit).

Level II-Significant Breaches of Conduct-Includes violations that provide or are intended to provide more than a minimal but less than a substantial or extensive recruiting, competitive or other advantage, also includes more than a minimal but less than a substantial or extensive impermissible benefit.

Level III-Breaches of Conduct--Violations that are isolated or limited in nature, provide no more than a minimal recruiting, competitive or other advantage, and do not include more than a minimal impermissible benefit. Multiple Level IV violations collectively may be considered a breach of conduct.

Level IV-Incidental Issues --Minor infractions that are inadvertent and isolated, technical in nature and result in a negligible, if any, competitive advantage. Such infractions generally will not affect eligibility for intercollegiate athletics.

Under the old two-tier system, a violation was considered either minor or major.

Potential application of the new rules for the period up to August 1, 2013, will depend on the date of the alleged violation and the date when the case is processed.