Trial Begins in Quinnipiac Volleyball Title IX Case

June 21, 2010

Trial in the Title IX lawsuit brought by members of the Quinnipiac University volleyball program against the University is set to begin today in United States District Court in Bridgeport.

Doug Malan of the Connecticut Law Tribune has a nice piece on the case.  Malan writes that although Quinnipiac reinstated the volleyball program after the granting of a preliminary injunction, the plaintiffs allege that the University continued to discriminate against the program:

In an amended complaint filed after the volleyball season ended, the plaintiffs claim that the university discriminated against the program even after the preliminary injunction was issued last May. They argued that hindered the team’s ability to compete.

Sparks and her team allegedly had fewer resources to work with compared to other Quinnipiac athletic programs, according to the complaint. For example, Sparks’ husband served as assistant coach because there was no money for a full-time assistant, and the university “does not provide…other support personnel to help run the program, coach, tutor, counsel or otherwise monitor the athletes” in the volleyball program, the complaint states.

And while intercollegiate rules provide for 12 scholarships for women’s volleyball, plaintiffs’ attorney [Alex] Hernandez of Pullman & Comley said, “[Quinnipiac] is funding five volleyball scholarships.”

Last May, I wondered why Quinnipiac allowed this case to get to the point at which a preliminary injunction was issued:

Why did Quinnipiac let this case go this far?

This is a difficult question to answer.  The vast majority of all lawsuits come as no surprise to the parties involved.  One would assume that Quinnipiac knew that cutting the women’s volleyball team could result in a Title IX lawsuit and were likely put on notice of the suit before the ACLU went public.  However, the suit was allowed to proceed, and virtually all of the information made public to this point has portrayed Quinnipiac in a negative light.  Perhaps most damaging is the testimony that Quinnipiac teams manipulated rosters for reporting purposes.  This lawsuit has been, and may continue to be, a source of negative attention for Quinnipiac.  The university should use the injunction and reinstatement of the volleyball team as an opportunity to resolve this matter before more damaging facts come to light.

Now that trial is beginning, I still wonder what good this case can do for Quinnipiac, and why it went this far.  Of course, the plaintiffs believe that this case is important not only to the plaintiffs but to female athletes everywhere.  Once the preliminary injunction was issued, the plaintiffs likely lost any interest in a settlement and Quinnipiac may have had no choice but to defend itself at trial.

See Connecticut Sports Law’s coverage of this matter:

Quinnipiac Faces Title IX Lawsuit Over Elimination of Women’s Volleyball

Title IX Lawsuit Brings More Unwanted Attention for Quinnipiac

Quinnipiac Volleyball Players Testify in Title IX Lawsuit

Expert Analysis of Quinnipiac’s Compliance With Title IX

Quinnipiac Volleyball Team Reinstated After Injunction


Friday Night Rights: School Waivers May Not Be Enforceable

June 14, 2010

Legal Issues in High School Athletics has featured my recent article concerning a lawsuit arising from the injury of an East Lyme (Conn.) high school track athlete in its May-June 2010 issue.  The article fits in nicely with my blog series “Friday Night Rights”, which covers the legal and business issues that arise in high school sports. 

Connecticut Court Finds Waiver Unenforceable in Negligence Claim Against High School Arising from Track Practice Injury

During the winter, the scene is the same at high schools across New England.  The  basketball teams occupy the gymnasium from the moment the final bell rings.  Hockey teams schedule ice time at local arenas for practice and games.  With meets held at local colleges with large indoor facilities, the track team often has no official practice area.  As a matter of necessity, track coaches and athletes must be creative in finding practice space.  If I recall correctly from my days at Natick High School (Mass.), it was not unusual to see sprinters and hurdlers practicing their craft in the school hallways.

 In 2007, East Lyme High School (Conn.) had a similar practice.  Sprinters would practice in a straight hallway.  During one drill, sprinters would race in pairs for approximately 100 yards.  They had allegedly been coached to finish with their heads down and extended, to provide the best opportunity for victory.  Following the sprint, the momentum of the athletes would carry them into a concrete wall, which the athletes would use to brace themselves and stop.  Unfortunately, during one of these drills an East Lyme sprinter was unable to stop.  Nicholas Furlani’s feet became tangled with another sprinter’s feet at the finish line, causing him to crash head-first into the concrete wall and suffer injury.  Mr. Furlani subsequently brought a lawsuit, Furlani v. Town of East Lyme, Docket Number CV08-5005850-S, against town and school officials in East Lyme.

 The defendants moved for summary judgment, in part arguing that the plaintiff, through his parents, had released the defendants by signing a waiver.  The relevant language in the purported waiver stated as follows:

 I will not hold the East Lyme Public Schools or the East Lyme Board of Education or its employees responsible for any injury sustained while engaging in any practice or game or while traveling to or from practices or contests.

 The Court (Parker, J.T.R.), in Furlani v. Town of East Lyme, 2010 WL 744995 (Conn. Super. Jan. 22, 2010), found that the waiver did not in fact release the defendants from their alleged negligence.  First, the Court found that the release was not sufficiently specific.  Citing the Connecticut Supreme Court’s decision in Hyson v. White Mountain Resorts of Connecticut, 265 Conn. 636 (2003), the Court noted that the release did not unequivocally state that claims predicated on the releasee’s negligence were being released.  Second, the Court drew parallels to the Connecticut Supreme Court’s decisions in prior cases, which held that exculpatory agreements in connection with recreational activities were void against public policy.

In fact, the Connecticut Supreme Court has consistently held that there is an important public policy in promoting participation in recreational and athletic activities, which “constitute an important and healthy part of everyday life.”  Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314 (2005).  In so holding, the Court has voided exculpatory agreements in connection with snow tubing, horseback riding and health clubs.  See Hanks v. Powder Ridge Restaurant Corp.; Reardon v. Windswept Farm, LLC; and Schneeloch v. Glastonbury Fitness & Wellness, Inc., 2009 WL 416645 (Conn. Super. Feb. 2, 2009).

 The Court in Furlani recognized the distinction between exculpatory agreements in the private context of recreational facilities, such as ski resorts, equestrian centers and health clubs, and high school athletics.  Nevertheless, the Court saw no reason to deviate from its policy of voiding agreements that attempt to disclaim negligence in the context of recreational activity. 

 Considering the Connecticut Supreme Court’s stated public policy of promoting recreational activities, one could argue that those policy concerns are amplified when dealing with high school athletics.  The participants are often minors, and the relationship between coach and high school student athlete involves far different dynamics than the relationship between ski resort owner and participant, or health club owner and member.  High school student-athletes rely far more heavily on coaches for guidance and instruction.  Accordingly, it would appear that Connecticut courts would be unwilling to enforce any agreement disclaiming a school or coach’s negligence in connection with a student’s participation in high school athletics. 

 Legal Issues in High School Athletics is a bimonthly newsletter that features detailed case summaries, articles and news briefs that are relevant to high school athletics.  The newsletter is edited by veteran sports law journalist Holt Hackney of Hackney Publications.   Daniel B. Fitzgerald, publisher of the blog Connecticut Sports Law and attorney with Updike, Kelly & Spellacy, and Robert J. Romano, founder of the Romano Sports Agency, serve as contributing editors.  For subscription information, click here.


Friday Sports Briefs

April 16, 2010

Spygate Case Goes to Third Circuit Court of Appeals

Proof that some Jets fans just can’t let go of the “spygate” affair: two Jets fans, who also happen to be attorneys, brought suit against Bill Belichick and the New England Patriots in connection with the Patriots’ videotaping of the Jets; defensive signals.  Although the Jets fans lost at the trial court level, the U.S. Court of Appeals for the Third Circuit will hear an appeal of the issue.  Mark Conrad of The Sports Law Blog has the story, and the potential ramifications of the case:

Imagine the potential effect of a positive ruling by the court. Could it open the door for groups of fans to sue for their money back based on one team reading the catcher’s signals or surreptitiously seeing diagrams of basketball plays. A fascinating and (maybe horrifying) thought.

No word as to whether the Jets’s fans will wear jerseys and Fireman Ed hard hats during oral argument.  See the Complaint in the case, Mayer v. Belichick, here.

Roethlisberger Case Not Going Away Quietly

Fans and observers of the NFL await word on the punishment of Ben Roethlisberger in connection the recent investigation of sexual assault charges.  Despite District Attorney Fred Bright’s decision not to prosecute Roethlisberger, details of the investigation continue to leak out.  The details do not pain a rosy picture of Roethlisberger’s conduct, and will likely spur a suspension by NFL Commissioner Roger Goodell under the personal conduct policy.  ESPN.com has the story:

In a statement to police on March 5, the 20-year-old college student said Roethlisberger encouraged her, and her friends, to take numerous shots of alcohol. Then one of his bodyguards escorted her into a hallway at the Capital City nightclub, sat her on a stool and left. She said Roethlisberger walked down the hallway and exposed himself.

NFL experts agree that the Steelers are unlikely to trade Roethlisberger.  But as more details emerge, you have to wonder what will come of the QB’s future.  Some are even comparing Roethlisberger’s case to that of Michael Vick.


Friday Sports Briefs

April 9, 2010

Nickname Law

Dre Cummings over at the Sports Law Blog has a nice post on the legal battle over the University of North Dakota’s use of the “Fighting Sioux” nickname.  Here’s an excerpt:

The “Fighting Sioux” nickname/moniker has engendered deeply divided and passionate debate in North Dakota and amongst the two primary Sioux tribes in the area, the Spirit Lake Tribe and the Standing Rock Tribe. Under the NCAA’s policy that outlaws hostile and offensive mascots, University leadership can, despite the policy, still secure approval from local tribes and continue to use American Indian mascots. Florida State University has secured approval from the Florida Seminole Tribe and continues to use “Seminoles” and “Chief Osceola” as its mascot and nickname. The University of Utah has secured approval from the local Ute Tribe and continues to use “Runnin’ Utes” as its nickname.

Click here to read the post in its entirety.

On Field Injuries and Assumption of the Risk

Jason Wolf has an interesting post on a lawsuit arising from an injury on the baseball field.  A Canadian baseball player is suing the owner of the ballpark in which he was injured by a line drive.  The player alleges that owner failed to install a sun screen at the ballpark.

UConn’s Cullen Getting Some Looks from NFL

UConn’s personable punter, Desi Cullen, is getting some attention from NFL in advance of this month’s draft.  Desmond Conner has the story on his UConn Football blog.  Next week we’ll take a look at UConn and the NFL Draft.


Three Ways for Mid-Majors to Keep Coaching Talent

April 6, 2010

Before Butler coach Brad Stevens led the Bulldogs to within three points of completing their Cinderella season by winning the NCAA Championship game, the speculation over his future had already begun.  Despite a contract that runs through the year 2016, Stevens will undoubtedly be pursued by larger schools with vast financial resources.  The question for mid-majors and small schools like Butler, is how can they keep young coaching talent on campus?

A good place to start is with the coaching contracts.  Smaller schools may always have less bargaining power than their larger brethren, but they still have legal rights.  Here are three suggestions to enhance those rights:

1.  Get the Entire Agreement in Writing

Last year, Boston College fired football coach Jeff Jagodzinski after he interviewed for the New York Jets’  head coaching vacancy.  Although BC is not considered a mid-major, its football program has been considered a stepping stone for its head coaches to the NFL and other collegiate jobs.   Jagodzinski’s contract lacked a clause that prevented him from interviewing for other jobs.  But BC Athletic Director Gene DiFilippo maintained that Jagodzinski made an oral promise to him that his commitment was long-term and that he would not use BC as a stepping stone.  The interview with the Jets was perceived as contrary to that agreement.

The oral agreement would have been inadmissible in a court of law had BC filed suit against Jagodzinski.  It simply had no binding authority.  Ultimately BC reached a settlement with its former coach.  The lesson from the Jagodzinski situation is clear:  if there is in fact an agreement for a long-term relationship, it should be in writing, within the four corners of the contract.

2. Consider a Bonus Instead of a Buyout Clause

A buyout clause is less a deterrent than a price tag for voiding a contract.  And for a large, Division I school, paying the buyout clause for a new coach is not especially difficult.  If the school doesn’t want to pay the buyout, a booster club may be willing to do so.  But that isn’t the only issue with buyout clauses. 

Enforcement can also pose a challenge.  A buyout clause is essentially a liquidated damages clause.  A liquidated damages clause is only enforceable if the clause requires the coach to reimburse the school for the reasonable damages caused by the coach’s departure.  The clause cannot be punitive.  It is unlikely that a multi-million dollar buyout clause at a mid-major would be considered reasonable.  Accordingly, a school could attempt to negotiate a large buyout for a talented coach like Stevens, but the courts may not honor it.

A retention clause may be more useful.  Similar to a roster bonus in professional sports, a retention clause rewards a coach for remaining at the school on a given date (after the hiring season has come and gone).   Unlike buyout clauses, enforcement is not an issue.  Moreover, some schools prefer the concept of rewarding a coach for staying put rather than punishing the coach for leaving while under contract.

3. Set a Precedent

A school’s courtship of a coach under contract could give rise to a claim for inference with contractual relations.  Practically speaking, most schools are unwilling to get involved in these disputes.  Consider Notre Dame’s Brian Kelly, who was hired from Cincinnati while under contract.  It may have been disingenuous for Cincinnati to cry foul over Notre Dame’s hiring of Kelly, considering that Cincinnati hired Kelly under the same circumstances.  The virtual free agency in collegiate coaching is implicitly accepted, and most schools are unwilling to take legal action.

Marist University, a mid-major in Poughkeepsie, New York, is an exception.  When basketball coach Matt Brady left Marist for the head coaching job at James Madison, Marist sued both Brady and JMU.  While the lawsuit cannot force Brady to return to Marist, it draws a line in the sand.  Future Marist hires, and their agents, will be aware that Marist is willing to enforce its agreements.

Mid-majors and smaller schools will always be at a competitive disadvantage competing with larger schools for coaching talent.  However, a carefully crafted contract can provide a measure of protection for the school and set expectations for both parties.

For more of Connecticut Sports Law’s coverage coaching contracts, see the following posts:

BC-Jagodzinski Contract: Expectations Unfulfilled

A More Detailed Look at Marist v. Brady

Edsall to Notre Dame Talk Shows All Coaches are Free Agents

College Coaching Contracts Not Written on Stone Tablets


Friday Sports Briefs

April 2, 2010

Thanks to Ben Berger of FootieBusiness.com

As he mentioned on footiebusiness.com, Ben Berger was a guest lecturer in my Sports Law class at Quinnipiac School of Law this week.  Ben’s presentation was excellent and his knowledge of the business of soccer, especially MLS, was tremendous.  Although we tend to focus on the four major sports leagues (NFL, MLB, NBA & NHL), MLS arguably contains the most interesting legal and business issues.  From the single entity structure to free agency to transfer and loan issues, MLS has it all.  Tune in to footiebusiness.com and @footiebusiness to stay on top of these legal and business issues in MLS.

Thanks Ben!

Giuliani Golf Lawsuit

Jason Wolf over at the Sports Agent & Sports Lawyer blog has the story on the dismissal of Andrew Giuliani’s lawsuit against Duke over his removal from the university’s golf team.  Despite the dismissal, Wolf writes that lawsuits over broken promises may be actionable:

However, the Giuliani opinion held that certain statements made by the coach who allegedly recruited Giuliani were not clear enough to constitute a binding legal contract. This may be the key point in the opinion because if a player in a future lawsuit can prove that certain statements and promises were made to him, then he might have a stronger case than Giuliani.

Giuliani’s lawsuit isn’t the only such claim brought by a collegiate student-athlete against a university for broken promises.  In the early 1990′s Bryan Fortay, a University of Miami quarterback sued the school after it allegedly reneged on its promise that he would be named starting quarterback.

Conner on UConn Football

Desmond Conner has some great UConn football information posted on his blog, from UConn’s Pro Day results to the Huskies’ Spring Game.  It’s never too early to start thinking about football season.


From the Vault: Is Amateurism Dead in Collegiate Athletics?

March 29, 2010

The 2010 NCAA Final Four is set, with only one of the four No. 1 seeds advancing to play in Indianapolis.  While the tournament has been characterized by upsets and exciting finishes, the start of the tournament was characterized by the issue of money in collegiate athletics.  The proposal to expand the NCAA tournament from 64 to 96 teams is undeniably motivated by revenue.  The debate over potential expansion brings to mind the concept of amateurism, and for me, reminds of this article that I wrote in 2008.

Is Amateurism Dead in Collegiate Athletics?

“Am I nuts?”  Former sneaker pitchman and basketball promoter Sonny Vaccaro wants answers.  How can the NCAA, the networks, the coaches and the athletic conferences all profit from big-time college athletics, while the players get nothing?  How can the NCAA and NBA keep a talented basketball player from earning a living off of his unique talents until the player has attended college for at least one year?  How can coaches sign lucrative contracts with sneaker companies and agree that all of their players will exclusively wear that particular brand of sneakers, while the players get nothing?  How can the NCAA and its member institutions take advantage of players under the guise of amateurism, while running a multi-million dollar business?  “Am I nuts?”

Last week, I attended the Columbia University Sports Ethics Symposium, which discussed the topic of amateurism in modern day sports.  The keynote speaker was Sonny Vaccaro.  Vaccaro has been an outspoken critic of the NCAA and NBA, particularly with respect to whether players should be forced to attend college before playing in the NBA, and whether players should profit from the money that they generate for their school and the NCAA.  

 After 5 minutes listening to him speak, there is little wonder why he has been a successful pitchman for Nike, Reebok and Adidas.  Vaccaro has energy, passion and charisma to spare.  To attempt to summarize Mr. Vaccaro’s speech – which excitedly jumped from topic to topic, criticizing everyone from the NCAA, college coaches, athletic directors, athletic conferences, etc., littered with the rhetorical question “Am I nuts?” - would be impossible.  But there two points that were particularly interesting in this far-reaching debate.

“When did it become the right of the NCAA to sell me into perpetuity?”  Vaccaro was highly critical of the NCAA, schools and the athletic conferences for selling the rights to broadcast games and selling DVDs of games.  Vaccaro points out that the NCAA, schools and conferences are profiting from these games, long after game is over and the players’ careers have ended  The players, of course, receive nothing. 

While Vaccaro advocates mainly for basketball players, I prefer to use an example from college football – Boston College quarterback Doug Flutie.  Flutie’s game winning touchdown pass against Miami in 1984 is replayed every football season; it has been incorporated into ESPN’s SportsCenter opening montage and is replayed on ESPN Classic seemingly every year.  Pontiac has used the highlight in connection with a marketing campaign built around college football.  According to Vaccaro, players like as Flutie  who actually authored this historic play, get nothing, while everyone else profits from the constant reruns, replays and other merchandising opportunities.

Vaccaro’s argument has some merit.  Maybe players shouldn’t become millionaires off broadcasting rights and DVD sales, but some compensation might be in order, even if some portion of the money was allocated to an insurance fund for former players.   Considering the plight of former NFL players, who have engaged in a well-publicized fight for better health benefits from the NFL Players Association, there might be a place for a health care fund for former college athletes in need.  One panelist, Gary Charles, had a creative idea to compensate players – an escrow fund available once players graduate, to give them a head start as they joining the working force.  As I understood it, this fund would not go to the top players who leave school early for the riches of professional sports, but to those who stay in school and graduate.  An interesting idea, and one that might alleviate the general discomfort with a “pay for play” system in collegiate athletics.   

“Why Should the Top 1% of players bear the burden for all other collegiate athletes?”  Vaccaro believes that the star players that create revenue for the schools should be compensated in some fashion.  A myriad of arguments have been made for either side.  But the question raises an important point in the conversation about amateurism.  The players for whom Vaccaro advocates constitute a very small percentage of collegiate athletes.  As commercial as big-time athletics have become, the system does allow for a school to maintain many other athletic teams and programs that are clearly not profitable.  As Notre Dame football might support the field hockey team, the Fairfield Science department might help support the American studies program.  This model allows colleges and universities to provide diverse opportunities for learning and competition that might otherwise be unavailable.  As flawed as the system might be, it works for most student-athletes.   Moreover, most Division I schools will tell you that their athletic programs are not profitable.

Vaccaro covered many other topics, but the pervasive theme was whether amateurism was an outdated concept in today’s sports world.  The answer is likely yes – amateurism is dead – but only for a very small percentage of schools and very few athletes, who are passing through college to prepare for a career in professional football or basketball.  The large majority of student athletes still exemplify the ideals of the amateur athlete.


Fans, Keep Your Eye on the Hot Dog

March 11, 2010

An errant behind-the-back dog toss by Slugger, the Kansas City Royals mascot, during a game last fall has provided the fodder for a personal injury lawsuit.  Plaintiff John Coomer claims that he suffered injuries to his eye after being struck with a hot dog of course.  A few notes on the lawsuit, and perhaps this emerging area of tort law:

Thanks to James for the link!


Friday Sports Briefs

March 5, 2010

John Daly Loses Libel Suit, Tweets Reporter’s Phone Number

Over on the Sports Agent & Sports Lawyer Blog,  Jason Wolf covers John Daly’s libel suit against the Jacksonville Times-Union newspaper.  According to Wolf, the judge in that matter granted summary judgment in favor of newspaper, finding that there was no “actual malice” and that the offending column contained inactionable opinion statements.  Upon receiving news of the legal defeat, Daly posted a message on Twitter encouraging his followers to call the reporter and tell him how they felt.

MLB and Upper Deck Settle Lawsuit

By way of The Biz of Baseball and Sports Law Blog, Major League Baseball Properties has settled its trademark infringement lawsuit against Upper Deck Co.  The details of the settlement can be found here.  Major League Baseball Properties characterized the settlement as a “clear and decisive victory”. 


Connecticut Ski Resort Liability

March 1, 2010

The downhill skiing events in this year’s Olympic games produced some major crashes.  So a bit of skiing law seems appropriate. 

A recent Connecticut Superior Court decision discussed the state’s law concerning the liability of ski resort operators.  Although liability waivers can be difficult to enforce in Connecticut courts, the Connecticut General Assembly has enacted measures to protect ski resort operators.

Connecticut General Statutes Section 29-212(b) provides as follows:

Each skier shall assume the risk of and legal responsibility for any injury to his or her person or property caused by the hazards inherent in the sport of skiing. Such hazards include, but are not limited to:

(1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211 or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations;

(2) bare spots which do not require the closing of the trail or slope;

(3) conspicuously placed or, if not so placed, conspicuously marked lift towers;

(4) trees or other objects not within the confines of the trail or slope;

(5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and

(6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing.

Skiing is treated differently than other pursuits as it is inherently dangerous by nature - and in Connecticut, by statute.  Therefore, skiers assume virtually all of the risks “caused by the hazards inherent in the sport.”  Trail conditions, objects located off the trails, lift towers, collisions with other persons and other undefined conditions are considered inherent dangers. 

The statute provides an exception to the assumption of the risk rule for collisions with ”on-duty employees of the ski area operator.”  The case of Kearns v. Ski Sundown, Inc., 2009 WL 3739414 (Conn.Super. 2009), discussed that the wording of the statute - excluding “on duty employers” - does not necessarily protect resorts from acts of non-employee agents, such as volunteers.  (The court’s discussion came within the plaintiff’s Motion to Strike the defendant’s Special Defense.  The case has yet to be decided on the merits).

Of course this statute doesn’t preclude plaintiffs from attempting to make arguments that their clients’ injuries were caused by events not inherent to the sport.  But compared to the analysis under a standard liability waiver, a plaintiff suing a ski resort faces a much higher burden.