when it found that the university has tiers for all title nine purposes based only on how the compensation structure for athletic coaches was set up in a collective bargaining agreement and the set it was also piece of the injunction dealing with hearing and shit in the benefits has to be reversed so i'm this question of cheering just take a nd to talk about what how that fits into title nine and what the court did so title nine as you know requires equal participation opportunities for men and women in athletics and equal treatment and benefits for the men and women and their teams title nine doesn't require or her hit it but it's cause hearing the regs guidance don't even mention hearing at all and there's really basically very little to no case law on it and still this case here at the district court hearing is just a practice that some schools choose to use with a group their teams and a similar levels of support or it can be a useful tool for schools that have large athletic programs to keep track of where all the money's going and how they're dividing things up but it's athletic director and the university's expert testified that the university does not use here's the district court found that it has hears anyway and then went on to issue a part of the injunction based on that so how did this record find cheers and look to the collective bargaining agreement that covers the university covers all universities in the minnesota state system and saw that it is category three categories or that are tied then i'm going to just issue put that into my finding these are the tears that the university uses and then from within those two years sound went on to say analyzed getting the benefits based on those teachers here's now there no rule policy guidance or precedent saying that a collective bargaining agreement that exists for compensation purposes that sets the compensation structure is dispositive on hearing for say a district court made  up and this is a bad precedent that has to be reversed and here's why the collective bargaining agreement exists to set up structures for compensation and employment terms it's not an athletic policy it's not designed to title nine in mind so if you're looking at it looking how it's set up in some ways it can feel like a track that you're just saying these are your tears and there's not equity there that's not going to school wasn't trying to college athletics so for that reason could be at least right with that so yes your honor it is relevant to one factor and there's this laundry list of factors that you look at for two new benefits one factor includes coach's compensation so collective bargaining agreement could be relevant to coach's compensation however in this case in this case the district court found no evidence of any disparities between the salaries of men paragraph fifty of the legal conclusion so the one factor where a collective bargaining agreement could be relevant to it is doesn't apply in this case and that gets to about the problem you have this long as the factors you've gotta go through analyze the factors you get to say there's a collective bargaining agreement and it's relevant now your point is like maybe it could be it could be some causal connection but i don't fifty one percent of the student body as women forty eight percent of the participation opportunities were for women were not contesting that the university has fixed that we're worried about the nd part which is all about treatment and benefits and so the district court did two steps both of which are problematic the st is to find peers based on this collective bargaining agreement and again which is setting worrisome precedent here particularly for all the universities b that collective bargaining agreement and the minnesota state system is saying whoa wait a minute are we locked into that so that so well as the flooding director talking about in her deposition when she was referring to tears yes  referring to the categories that exist in the collective bargaining agreement as an academic institution governed by a collective bargaining agreement there is a lot of attention paid to the union in union issues so they do are very sensitive to the collective bargaining agreement and so she was referring to that and the testimony at trial is completely consistent consistent with that so the st piece then to go back to the question is finding tears basically the bargain agreement the nd piece is to then not do an analysis of the program as a whole if you read the court's opinion the court is cherry picking individual sports and saying ok baseball baseball has a nice field softball resources a lot and it's not mentioned at all at all in the district court's order so how can the district court find a problem saying oh there is unequal treatment of benefits when you're not even putting women's volleyball into the schools can use but it's not built into the title th at all in the regs the guidance the test is always looking at the program as a whole and when you're starting to say there has to be equity within the tears there's another there's a reason or it doesn't get to this program wide analysis at the end of the day when you're looking at equipment you've got to plug in the fact that here's a sport with a lot of money and equipment when you're looking at travel again the fact that there's a sport we don't spend a lot of travel and just plug it into a tear and saying we're going to do it here analysis complicates things so practically it doesn't make any sense and then legally to your question your honor it's not there in title nine at all the district court made it up and i want to emphasize this point if you do a west law search for cases talking about title nine and tearing it really two things that come up is a case from the ninety's that of the st circuit of cohen of the brown university that talks about the fact that brown had to two years and that's about it and then there's this poor case that comes up where the district court deals tearing is essential part of the district court's finding in analysis this is setting a precedent here that is not in title nine and it's worrying and certainly worrying to my client who has this collective bargaining agreement out there setting these two years but i also think there's a larger problem title nine to five the public schools not just universities but the public schools public high schools so any public high school out there with a collective bargaining agreement that said coaches compensation is boehner a goal to just someone's doing and saying there here's a look at the collective bargaining agreement and then they might just find a violation because of course that collective bargaining agreement isn't set up with title nine in mind the school might not even run that just as a quick example i did some googling before argument minneapolis public schools as a collective bargaining agreement if that's coaches c coaches compensation so this precedent isn't just about a university or minnesota state and so i want to flag that point this is really the case out there on tearing now and there are two problems with it one time it to a collective bargaining agreement that is only relevant really to compensation again and there is no finding of any problem compensation here so it should irrelevant and to as you say just there's nothing in title nine about doing a tiering analysis read the court's decision as requiring the university to have the two years that are in the collective bargaining agreement they could get rid of tears altogether or change his ears that's their position in their briefs the problem with that position really is it just highlights how badly the district court got it wrong if the collective bargaining agreement isn't setting the tiers then why didn't the  you go through the collective bargaining process i don't see how that is a good outcome and i think the other side recognizes that which is why they backed off the position and say the university is complete discretion to change the tears but again that just highlights the problem if we have that discretion then the court shouldn't found the two years based on the collective bargaining agreement begin with and out of that how did the finding of the two years affect  problem is that from that finding there didn't flow then a program wide analysis that you see the judge it's quite clear reading the order the judges just cherry picking sports and comparing one to one and the only only program wide evidence i do you do a program why why can't you do a program line analysis by going through individual sports one of the time or individual circumstances one of the time and then making collective conclusion i think the right way to do it is to look at the factors the laundry list of factors in the code of federal regulation and going through the factors and comparing them and you could do that and that's what our expert did there sixty pages o analysis as title nine requires you know i had to be honest with you here you know i agree with you that there was a hearing obviously i agree with you that there was jerry a volleyball is rarely if ever mentioned despite the fact that it was the  fred i'm ok if they're not related i've got an issue with this hearing because i think it's really bad precedent that's really troublesome for my client if you have the collective bargaining agreement still out there with those categories so any of the manual authored by you know meeting experts in title nine is not had online guidance from o c r it has weights extent that they are looking at the practices  university i don't think it's all that relevant at the end of the day because they're not nothing in that manuals talking about not doing a program wide analysis is required by title nine the district court me all decisions with respect to violations title nine based on only a collective bargaining other only that's not true if you look at paragraph thirteen which is where that statement comes from and the judge's memorandum he read it there is a citation after the fact that he finds tyranny and there's a  tation that says it refers to the collective bargaining agreement but there's nothing about that citation that would indicate that that's the sole source of his information for finding tearing because if you look at the entire record discussed in other places was it tied to the bargaining agreement or war or people defining tears based on other criteria it was not the collective bargaining agreement certainly there was reference to that is being one place it's mentioned but that was literally one place in the transcript except for questions that refer back to for instance there's reference to tearing in a gender equity meeting meeting minutes on that didn't reference the collective bargaining agreements there are e mails going back and forth from the current athletic director at the time that she was right before it mostly before the announcement of the elimination of the two sports that talked about about some of those things tearing was discussed by donald three which would suggest she wasn't using the clock in bargaining agreement correct she was using the definition basically it's a way to and they actually to maintain  lump and the treatment benefits all of the separate little things in the regulation locker rooms practice facilities everything and compare them basically line by line and then form an budgets go down and so what schools do and they do it all over the place especially in the mission to schools is they tear by financial support that's different than levels of competition  the legal conclusion or the way they just report used it which is to say he implied if not outright said that there needed to be accurate not everybody but that within the tiers there needed to be some balance between men's and women's sport matter is that would not violate title nine despite what the differ or sad about you know about the tears and maintaining balance within the peers and in my career aspect because i think that that hearing may have been used for an a very of purpose that isn't necessarily supported by title not the title line requires actually in treatment of benefits provided to people in tears and if you if you understand financial that's true and i think the point is that he did a program why the analysis he did both and he did exactly what the gender equity manual says schools if they're going to use tearing support to travel they have a good recruiting budget the whole thing the guys in the in the small levels have a quarter that if that and that's true with think about state that's fine because if you look at women that is the theory that's what he did and he also simply looked at all of the different sports and he did look at the ball there are multiple references to it and a writer's beginning it was stated that i tier so it's getting the high level of benefits and so there's not a lot of discussion about it because there was no need to the the softball or mention multiple times and i actually had to go back and you're right the district court didn't mention volleyball but not very much and that that to me was a pretty big omission given the fact that it you know that it's the premier l reason the reason time was spent on football the separately because it's such luck numerically large ninety seven dollars players and even if you're duff even looking at it here if you've got ninety seven dollars players in one sport it's difficult balance that's why football was talked about a lot it wasn't talked about a lot in terms of treatment benefits because there was no need to they had great sell it and that's all you needed to say about it volodos the same is just a smaller number of people so there was nothing that was standing out about that and there referenced a couple times in the program white section primarily basically because they shared the  best facilities they chair the best locker rooms they have all the best stuff there was no need to talk about them a lot softball two reasons number one the treatment of benefits particularly with the feel enormously different between softball and baseball and the nd is just practical reasons that we had a wide witness on august if you take the argument that was made in the briefing that you need to have somebody from every program talk about go through the whole list on every program we would still you know we were going to trial week and a half later and that's basically not ho generally work and this is not required so some of this sheer time was a function of having a light witness and in reality the large part of it was volleyball is treated very well and it has a yes but i believe it states in the in the paragraph that describes you know keeping those ports and the conditions under which to keep the sports that they are to be maintained in whatever tear there and unless there is that the injunction somehow locks the university and having tears forever it simply doesn't do that there is nothing in that order that says you have to maintain steers or you can't change  the majority of the of the authority types in general terms about coming into compliance with title nine on there is certainly if you go to management of injunction in the case law that is in that particular area where the where the authority is is that it's permissible to make an order with respect to a particular sport but only until such continuing management by the just record i don't know that the court manages the teams he's listening to see that everything's maintained until such time as it gets in compliance i mean in this particular case the overall order of the poor was you need to be making steps to come into compliance the time line and while you're in the process of doing that you need to keep these two teams i will admit that that's probably the least strong portion of the injunction the fact that he singled out these two teams but he also doesn't make the school keep that if there is if there is demonstration on their part that there is the interest is proposal that has fewer teams or something or person other reason they don't want to maintain those teams as part of a plan to comply with high line could they go back to the corp in yes they threaten the case love with indicate that they could go back and say come up with a plan and say this is what we'd like to do and if it is reasonable and rational and they can explain why it's going to get them where they need that's that's how it works the one part of this or that arguably does require hearing is that it says that they have to maintain the tennis and skeen teams have a level of support comparable to other teams within the same tier support that where you think about that i mean is that really a proper order because i thought even within cheers you could have differing levels of support as long as the overall treatment is a quibble i believe that that would be your your just description would be accurate and it just had been so far range of the tear that the school decides to put them in he's not telling them what year to put them and where is the record the teams within the tears as they were to find in the district court all received grou about the athletic director's deposition on tiering and he said she was just referring to the collective bargaining agreement i was thinking of the part where he's asked are there any other teams other than the hockey teams that are resourced at a higher level than the other sports and she says we have three tiers here one includes hockey but also football women's basketball men's basketball volleyball cheered to includes having talked about that bargaining agreement that pot at that time i think if you read the language at the deposition it's pretty clear she was sceptically answering a question you know she she does end up saying that's defined partly by the f all contract from a coaching perspective that's how they tear it down but you could read it to be saying something other than just  actually the rest of the court's injunctive order is right with reversible error briefly on the tearing where it came from there lifted from the collective bargaining agreement the best testimony on that  testimony and i don't want to go down that road but i will say the court listed sports we don't even offer because it listed him from the quite the bargain group he listed support because it's the collective bargaining agreement covers all seven university fees listing sports that think our state precedent if the collective bargaining agreement is dispositive for all of that and i'm but regardless of what the analysis was done by the district court the injunction itself requires the university to provide equity at provide immediate steps that every for equal athletic related treatment benefits at every tier of its athletic department so we're saying one we don't have these two years to where they asked are you talking about it again now three b at no is that what you heard about with the beginning that same club state university must take immediate steps to provide its female athletes with ethical athletic related treatment and benefits at every tier of its athletic department well if you decided to have no two years then you could come fly i mean we are ten years of a testimony that we don't have  idea that we need to have this equity is a program wide analysis and the only program wide evidence in the record is our unrebutted expert testimony and treatment of benefits that is the only program my analysis under but expert testimony their expert would argue on the injunction part you could get if you say the university wants to have no tears whether this language really requires you to have two years it's by saying that you have to have  equity every tier if you say we just have one tear there is no distinction everything's on the same level then could you comply by providing an equitable treatment at that level could write i am right now we're under ongoing district court jurisdiction to report every six months demonstrating that we have equity within the tears now what the tears may be you know i don't know but that is part of what we're obligated to do right now so we're taking the steps but it is you know we are concerned with it isn't enough say oh we could make up our own tears this is all a continuing jurisdiction all this include vastly that