Case 3:09-cv-00621-SRU Document 1 Filed 04/16/09 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDEVEST, and KRISTEN

)

CORINALDESI, individually and on

)

behalf of all those similarly situated;

)

LESLEY RIKER on behalf of her minor

)

daughter, L

Rll• • individually

)

and on behalf of all those

)

similarly situated; and

)

ROBIN LAMOTT SPARKS, individually,

)

)

Plaintiffs,

)

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

)
____________D_e_fe_n_da_n_t._________ ))

CIVIL ACTION NO. APRIL 16, 2009

VERIFIED CLASS ACTION COMPLAINT Plaintiffs STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, and KRISTEN CORIN/I.LDESI are female students and varsity athletes at Defendant QUINNIPIAC UNIVERSITY ("QU" or "Defendant"). Plaintiff LESLEY RIKER is the mother of L_ RGI• • a 17-year-old high school senior who was recruited and admitted to QU for the purpose of playing on the women's varsity volleyball team starting next school year (2009-201 0). Lesley Riker files this action as next friend on behalf of her minor daughter. These Plaintiffs (the "Student Plaintiffs") file this action individually and on behalf of a class of all other similarly situated females. Plaintiff ROBIN LAMOTT SPARKS is the head volleyball coach at Quinnipiac University. She files this action individually, and is referred to herein as "Coach Sparks" or "Sparks."

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Plaintiffs allege as follows: STATEMENT OF THE CASE
i. The Student Plaintiffs file this case as a class action on behalf of themselves and on behalf of a class of current, prospective, and future female students at Quinnipiac University ("QU") who want to participate in varsity women's volleyball or who want to participate in other varsity sports not offered by QU. They similarly file this action on behalf of females who are deterred from enrolling at QU because it does not offer the sport in which they want to participate.
2. Defendant discriminates on the basis of sex by, among other things, providing male students with a greater opportunity to participate in varsity intercollegiate athletics than it provides to female students. This sex discrimination violates Title IX of the Education Amendments of 1972 (20 U.S.C. §1681 et seq.) and the regulations adopted pursuant thereto (34 C.F.R. Part 106) (collectively, "Title IX"). Instead of increasing athletic opportunities for females in order to meet its Title IX obligations, Defendant has announced that it will reduce women's opportunities by eliminating the vyomen's varsity volleyball program.
3. The Student Plaintiffs file this action to stop Defendant from discriminating against them and all others similarly situated. They seek to prevent Defendant from eliminating women's volleyball or any other women's sport, and to require Defendant to add women's varsity athletic opportunities until Defendant offers male and female students an equal opportunity to participate in varsity athletics.
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4. Defendant has discriminated and continues to discriminate against Coach Sparks in the terms and conditions of her employment because of the sex of the student athletes she coaches. Defendant has failed to provide Sparks with the personnel and resources necessary to properly run her program, preventing her from being as successful as she could be with the proper support, thus limiting her career prospects.
5. In connection with the elimination of the volleyball program, Defendant has informed Coach Sparks that she will be djsmissed from her position as head coach effective June 30, 2009. Pending her dismissal, Coach Sparks has been prevented from coaching or training the members of her team. These actions on the part of Defendant also constitute discrimination against Coach Sparks because of the sex of her athletes.
6. Coach Sparks files this action to stop Defendant's discrimination against her and against her program of female athletes.
JURISDICTION AND VENUE
7. The Student Plaintiffs' legal claim arises under 20 U.S.C. §1681, et seq
and its interpreting regulations. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1343(3), and 1343(4).
8. The Coach Plaintiff's legal claim arises under 20 U.S.C. §1681, et seq and its interpreting regulations. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1343(3). and 1343(4).
9. Jurisdiction for declaratory and other relief is invoked pursuant to 28 U.S.C. §§2201 and 2202.
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10. Venue is proper pursuant to 28 U.S.C. § 1391(b). These claims arose
in Hamden, Connecticut, which is within the jurisdiction of this court. THE PARTIES
11. Plaintiff Stephanie Biediger is a freshman female student at Defendant Quinnipiac University. Plaintiff is a member of the QU women's varsity volleyball team. QU recently announced that it will not sponsor a volleyball program next school year or thereafter. Plaintiff will be irreparably harmed if Defendant is not restrained from eliminating its varsity volleyball program. During the school year Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court.
12. Plaintiff Kayla Lawler is a freshman female student at Defendant Quinnipiac University. Plaintiff is a member of the QU women's varsity volleyball team. QU recently announced that it will not sponsor a volleyball program next school year or thereafter. Plaintiff will be irreparably harmed if Defendant is not restrained from eliminating its varsity volleyball program. During the school year Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court.
13. Plaintiff Erin Overdevest is a senior female student at Defendant Quinnipiac University. Plaintiff is a member of the QU women's varsity volleyball team. QU recently announced that it will not sponsor a volleyball program next school year or thereafter. Plaintiff will be irreparably harmed if Defendant is not restrained from eliminating its varsity volleyball program. During the school year Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court.
14. Plaintiff Kristen Corinaldesi is a junior female student at Defendant Quinnipiac Universil';. Plaintiff is a member of the QU women's varsity volleyball
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team. QU recently announced that it will not sponsor a volleyball program next school year or thereafter. Plaintiff will be irreparably harmed if Defendant is not restrained from eliminating its varsity volleyball program. During the school year Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court.
15. Plaintiff L11J11111. R• • represented in this action by her mother as next friend, is a high school senior who was recruited to attend Quinnipiac University starting next Fall in order to participate on the women's varsity volleyball team. L_.R.applied to and was accepted for admission at QU. She will be irreparably harmed if Defendant is not restrained from eliminating its varsity volleyball
program. In particular, Ms. Ra relied on Defendant's offer of a volleyball
scholarship when she turned down admissions offers and/or athletic scholarship offers from other schools. It is very likely too late in the school year for her to obtain
admission or an athletic scholarship from any other college. Plaintiff 1=-a is a
resident of Bowling Green, Ohio, but submits to the jurisdiction of this court for purposes of this legal action.
16. Plaintiff Robin Lamott Sparks is the head volleyball coach at Quinnipiac University. Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court.
17. Defendant Quinnipiac University is a private university of higher education. It is located in Hamden, Connecticut, which is within the jurisdiction of this court.
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18. Quinnipiac University receives federal financial assistance and the benefits therefrom. Therefore, all programs at QU, including intercollegiate athletics, are subject to the requirements of Title IX.
CLASS ALLEGATIONS 19. The named Student Plaintiffs bring this action on behalf of themselves and, pursuant to Rule 23(A) and B(2) of the Federal Rules of Civil Procedure, on behalf of all those similarly situated. In particular, the Student Plaintiffs seek to represent a class of all present, prospective, and future female students at Quinnipiac University who want to participate in the recently eliminated varsity sport of women's volleyball or who want to participate in other varsity sports not offered by QU. They also seek to represent those females who are deterred from enrolling at QU because it does not offer the sport in which they want to participate. 20. Each of the named Student Plaintiffs is a member of the proposed class and has been or will be injured by Defendant's sex discrimination and failure to provide female students with an equal opportunity to participate in varsity intercollegiate athletics at QU. Defendant's announced elimination of the women's varsity volleyball program will exacerbate this discrimination and denial of equal opportunity by eliminating female athletic participation opportunities. 21. The Student Plaintiffs seek to represent the proposed class because joinder of all class members and all persons harmed by Defendant's failure to provide equal opportunity to participate in varsity intercollegiate athletics is not just impracticable, but impossible.
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22. The proposed class is known to exist but the identity of its members is and will continue to be fluid and unidentifiable during the course of this litigation because of the nature of college enrollment and athletic participation. In particular, QU is a university with a student body whose members graduate after approximately four years from matriculation. Its varsity student athletes are allowed only four years of athletic eligibility under the rules of the National Collegiate Athletic Association ("NCAA"). Accordingly, the members of the class harmed by Defendant's discriminatory actions constantly change as each class of students graduates and as another class of graduating high school students enrolls as freshmen at QU.
23. Not all members of the plaintiff class are currently identifiable, because the class includes prospective and future students who will enroll at QU during the course of this litigation or who will be deterred from enrolling at QU because of Defendant's failure to provide equal athletic participation opportunities for female students, including the sports in which they want to participate.
24. Not all members of the plaintiff class are currently identifiable because it includes not just volleyball players, but also all present, prospective, and future female students who want to participate in a varsity intercollegiate sport not offered at QU, such as crew, bowling, golf, and other sports.
25. On information and belief, QU has never surveyed its present or prospective student body to assess their athletic interests and abilities. Moreover, because QU recruits high school students to apply to and enroll at Defendant for the purpose of participating in varsity intercollegiate athletics, QU could increase and thus equalize athletic participation opportunities for female students by starting
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virtually any new varsity sports team and then recruiting athletes to enroll and participate.
26. It is unknown how many present, prospective, or future female students would enroll at QU or would participate in athletics at QU if QU stopped discriminating against women and if QU added more sports opportunities for women. The hundreds of additional class members who would apply to QU, who would be recruited by QU coaches to attend QU, and who would participate in athletics at QU if QUadded the more than 100 athletic spots necessary to reach equal opportunity, are too numerous to make joinder practicable.
27. The Student Plaintiffs satisfy the "commonality" requirement of Fed.R.Civ.P. 23(a)(2), because they share questions of law and fact in common with the proposed class, particularly whether QU violates Title IX by failing to provide female students with an equal opportunity to participate in varsity intercollegiate athletics. Because Title IX athletics claims require comparison of the sex-segregated men's and women's athletic opportunities as a whole, the issues are inherently classbased.
28. The Student Plaintiffs satisfy the "typicality" requirement of Fed.R.Civ.P. 23(a)(3), because their claims are typical of those of the proposed class. They all are denied or imminently will be denied an equal opportunity to participate in varsity athletics at QU because of Defendant's ongoing sex discrimination. All want the Court to restrain QU from eliminating any women's varsity sports opportunities- particularly volleyball- and to require QU to add more women's varsity sports.
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29. The Student Plaintiffs are members of the proposed class and will fairly and adequately represent the interests of the class pursuant to Fed.R.Civ.P. 23(a)(4). They intend to prosecute this action vigorously in order to secure fair and adequate injunctive relief for the entire class.
30. The undersigned class counsel are experienced in federal civil rights litigation and class actions, especially under Title IX, and will adequately represent the interests of the class in this action.
31. The Student Plaintiffs satisfy the class certification requirements of Feci.R.Civ.P. 23(b)(2), because Defendant has acted or refused to act on grounds generally applicable to the class - denying female students an equal opportunity to participate in varsity intercollegiate athletics - thereby making appropriate final declaratory and injunctive relief with respect to the class as a whole.
GENERAL ALLEGATIONS THE REQUIREMENTS OF TITLE IX 32. Title IX, enacted in 1972, provides in relevant part: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance .
20 U.S.C. § 1681 (a). The Civil Rights Restoration Act of 1987 made plain Congress' intent that the terms "program or activity," as used in Title IX, mean any program or activity so long as any part of the public institution receives federal financial assistance. 20 U.S.C. §1687. Thus, Defendant is subject to Title IX even if none of
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the funding for either its men's or women's athletic program comes from federal sources.
33. In 1975, the Department of Health, Education and Welfare ("HEW"the predecessor of the United States Department of Education ("DOE")) adopted regulations interpreting Title IX. These regulations (the "Regulations") are codified at 34 C.F.R. Part 106. (The DOE regulations adopting the HEW regulations are at45 C.F.R. Part 86.) The Regulations are enforced by the Office for Civil Rights ("OCR") within DOE.
34. With regard to athletic programs, 34 C.F.R. § 106.41(a) provides that interscholastic athletics are included within the "program or activity" requirements of Title IX:
No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. 35. 34 C.F.R. § 106.41(c) specifies ten (10) factors that may be considered in the determination of equal athletic opportunity: 1. Whether the selection of sports and levels of
competition effectively accommodate the interests and abilities of members of both sexes; 2. The provision of equipment and supplies; 3. Scheduling of games and practice time; 4. Travel and per diem allowance; 5. Opportunity to receive coaching and academic tutoring; 6. Assignment and compensation of coaches and tutors;
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7. Provision of locker rooms, practice and competitive facilities; 8. Provision of medical and training services; 9. Provision of housing and dining facilities and services; and 10. Publicity. Another factor to be considered is a school's "failure to provide necessary funds for teams for one sex." !d. 36. In 1979, the OCR issued a policy interpretation of Title IX and the Regulations as applied to intercollegiate athletics. This policy interpretation is found at 44 Federal Register 71,413 (1979) (the "Policy Interpretation"). 37. The Policy Interpretation provides that, in order to comply with Title IX and 34 C.F.R. § 106.41(c), schools must provide equal athletic opportunities in three general areas: (1) equal athletic participation opportunities (34 C.F.R. §106.41 (c)(1)), (2) equal treatment and benefits to those with participation opportunities (34 C.F.R. §106.41(c)(2)-(9)), and (3)equal athletic financial assistance (34 C.F.R. §106.37). At the present time, only equal athletic participation opportunities are at issue in this case. These fall under 34 C.F.R. §106.41(c)(1). 38. According to the Policy Interpretation, compliance in the area of equal athletic participation opportunities is determined under the following three-part test: (1) whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; (2) where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or
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(3) Where the members of one sex are under-represented among intercollegiate athletes and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. See 44 Fed. Reg. 71,418. 39. This three-part test was further clarified after notice and comment in OCR's 1996 Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (the "1996 OCR Clarification"). 40. Every federal court of appeals that has considered the three-part test has upheld it as valid and has given it substantial deference in applying Title IX or in assessing Title IX compliance. 41. The Regulations require that sponsors of intercollegiate athletics (such as Defendant) take such remedial actions as are necessary to overcome the effects of sex discrimination in violation of Title IX. See 34 C.F.R. §106.3(a). On information and belief, Defendant has not taken any recent remedial actions to satisfy its obligations under Title IX. Nor has Defendant ever provided females with an equal opportunity to participate in varsity athletics. 42. The Regulations also require that federal fund recipients like Defendant adopt nondiscrimination policies and grievance procedures, appoint and train Title IX officers to receive and investigate sex discrimination complaints, and disseminate this information to all students, faculty, and employees. 34 C.F.R. §§1 06.8 & 106.9. The Regulations fU!ther require that recipients promise and confirm compliance by
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filing an Assurance of Compliance with DOE each time they apply for or receive federal financial assistance. 34 C.F.R. §1 06.4.
43. The Regulations further require that sponsors of interscholastic athletics comply with the athletics regulations within three years of their effective date (which was July 21, 1975). On information and belief, Defendant did not comply with the athletic regulations by the 1978 compliance deadline or at any time thereafter. Now, more than 30 years later, Defendant still does not fully comply with Title IX.
44. The Title IX Regulations expressly prohibit employment discrimination in educational programs. 34 C.F.R. §1 06.51 et seq (Subpart E). Section 106.51 (a)(1) states that,
No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in employment ... under any education program or activity operated by a recipient which receives or benefits from Federal financial assistance. 45. Section 106.51 (a)(3) states: "A recipient shall not enter into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination." 46. Title IX's prohibition of discrimination on the basis of sex covers, among other things: compensation, job assignments, fringe benefits, and any other term, condition, or privilege of employment. 34 C.F.R. §106.52(b). Title IX prohibits sex discrimination in employment based upon the sex of the employee and based upon the sex of the students taught or athletes coached.
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FACTUAL ALLEGATIONS 47. Quinnipiac University sponsors a broad varsity intercollegiate athletic program. It sponsors sports and teams for both men and women, including men's ice hockey, women's ice hockey, men's basketball, women's basketball, men's cross country, women's cross country, men's track, women's track, men's lacrosse, women's lacrosse, men's soccer, women's soccer, men's tennis, women's tennis, men's baseball, women's softball, men's golf, women's field hockey, and women's volleyball. In choosing which sports to offer to which sex of students, QU chooses how many varsity athletic participation opportunities to provide to male students and how many athletic participation opportunities to provide to female students. 48. Quinnipiac University is a member of the NCAA and the Northeast Conference, and participates in Division I, the highest level of intercollegiate competition. As such, QU offers athletic scholarships to members of its varsity athletic teams. 49. Like other Division I schools, Quinnipiac University recruits high school students to apply to and to enroll at QU for the purpose of participating in QU's varsity athletic teams. On infomnation and belief, few if any QU varsity athletes are walk-ons (i.e., students who try out for and earn a spot on the team without being recruited by the coaches). 50. On information and belief, QU has always provided its male students with proportionally more opportunities to participate in varsity intercollegiate athletics than it has offered its female students, thus denying female students an equal opportunity to participate in this educational program.
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51. Defendant's discrimination against females is so great that it cannot legally eliminate any female athletic participation opportunities unless and until it eliminates a substantial number of male athletic participation opportunities (bringing the men down to the level at which QU has stunted the women). On information and belief, Defendant cannot eliminate such a large number of male athletic participation opportunities without reducing the number of spots it offers below what is required for NCAA Division I membership. Thus, Defendant cannot legally eliminate any women's teams, but instead must add women's teams until QU offers equal athletic oppo1tunity to both male and female students.
52. The Student Plaintiffs were recruited to attend QU in order to participate on its women's varsity volleyball team. Some are currently on the team,
while L!IIII1Rfi11Pwas recruited to enroll as a freshman and to start play during the
2009-2010 academic year. All Student Plaintiffs expected to participate in volleyball during each of their years at QU and planned their academic, personal, and financial lives accordingly. They would not have enrolled at QU but for the opportunity to participate in women's varsity volleyball and, in many cases, the receipt of an athletic and/or academic scholarship.
53. Defendant recently announced that it will no longer sponsor women's varsity volleyball starting next academic year (2009-201 0). Because the volleyball team averages 12-·15 female athletes each year, the elimination of the volleyball program will eliminate 12-15 athletic participation opportunities for female students. QU already discriminates against its female students by offering too few athletic
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opportunities. By eliminating volleyball, QU will make this discrimination worseeven if it also eliminates some men's opportunities.
54. After QU's announcement, the student Plaintiffs, their parents, and Coach Sparks complained to QU athletic director Jack McDonald and other QU personnel about the planned elimination of the women's varsity volleyball program. They complained that the elimination of the program would make QU's discrimination against its female students worse by offering females even fewer athletic participation opportunities. They demanded that QU not eliminate the program, but QU affirmed its intent to do so and informed the head coach that her job will end June 30, 2009.
55. Since its announcement, QU has denied the volleyball team, including the Student Plaintiffs, access to the gym for practice and/or spring competition, and has prohibited Coach Sparks from conducting practices with the team.
56. On March 27, 2009, Plaintiffs' counsel sent Defendant a letter complaining about the elimination of the women's varsity volleyball program, explaining why the elimination of the program constitutes sex discrimination in violation of Title IX, and requesting a dialog about continuation of the volleyball program. Defendant failed to respond by the requested response date of April 1, 2009. By letter dated April15, 2009, after receiving notice of this action, counsel for transmitted a letter responding to Plaintiffs' demand letter.
INJUNCTIVE RELIEF 57. Plaintiffs are entitled to injunctive relief that restrains Defendant from continuing to discriminate on the basis of sex, restrains Defendant from eliminating
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the women's varsity volleyball program, and requires Defendant to provide its female students with an equal opportunity to participate in varsity intercollegiate athletics by sponsoring additional women's varsity athletic opportunities based upon the interests and abilities of Defendant's present, prospective, and future students.
58. Failure to grant the requested injunctive relief will cause irreparable harm to the Plaintiffs by continuing Defendant's discrimination against them and QU's present, prospective, and future female students, and by forever denying them an equal opportunity to participate in varsity intercollegiate athletics. If Defendant is not restrained from eliminating women's varsity volleyball, Plaintiffs will never again have the opportunity to participate in this valuable educational experience- one that provides academic, physical, psychological, social, and even economic benefits for the rest of the participants' lives. There is no adequate remedy at law for this harm.
59. The continuing, irreparable harm caused by Defendant's discriminatory actions far outweighs any possible harm that granting the injunctive relief might cause Defendant. Preliminarily enjoining Defendant's elimination of the varsity women's volleyball program in particular merely ensures retention of the status quo during the course of this litigation, because these athletes have limited (if any) opportunities to pursue their interests and abilities elsewhere -especially at this late date. Defendant will suffer no harm by reinstating the women's varsity volleyball program, other than the monetary cost of the program that it has already borne for more than 25 years.
60. The lifelong harm caused to Plaintiffs by Defendant's discrimination is irreparable and can never be adequately compensated with money. This harm far
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outweighs any moneta1y cost incurred by Defendant to continue the volleyball program or to add athletic opportunities for women. Importantly, Defendant could choose to allocate its budget and athletic opportunities more equitably merely by shifting its longstanding favoritism toward men to a more equal allocation between men and women. Meanwhile, Defendant will gain public relations and enrollment advantages by coming into compliance with Title IX and by offering more opportunities for its female students.
61. The injunctive relief that Plaintiffs request will promote the public interest in that it will increase educational opportunities for female students, will end sex discrimination at QU, and will promote compliance with federal law. Congress decided that such nondiscrimination is in the public interest when it enacted Title IX. It has reaffirmed that public interest over the past 37 years by defeating each and every attempt that has been made to weaken Title IX. Equal opportunity for all students- male and female- is at the core of this case, is at the core of American identity, and is clearly in the public interest.
62. Coach Sparks is entitled to the injunctive relief she requests- enjoining Defendant from eliminating the volleyball program and her job as volleyball coachfor the same reasons that the Student Plaintiffs are entitled to such relief.
ATTORNEYS' FEES 63. Plaintiffs have been required to retain attorneys to prosecute this action. Plaintiffs are entitled to recover reasonable attorneys' fees and expenses pursuant to 42 U.S.C. §1988.
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FIRST CLAIM FOR RELIEF: TITLE IX (Unequal Athletic Participation Opportunities) (on behalf of Student Plaintiffs and the proposed class) 64. Plaintiffs reallege and incorporate herein by this reference paragraphs 1 through 63 of this complaint. 65. The Student Plaintiffs bring .this claim as a class action as set forth in the Class Allegations. 66. By offering certain opportunities to male students to participate in intercollegiate athletics, Defendant has demonstrated its belief that athletic opportunities provide educational benefits that should be supported by the University. Plaintiffs agree that athletic opportunities provide valuable educational benefits. For this very reason, the Student Plaintiffs- and the class they representshould have equal access and opportunity to receive the benefits that the male students at QU receive from intercollegiate athletics. QU historically has not provided and currently does not provide its female students with such equal access and opportunity. 67. Defendant determines the number of athletic participation opportunities that it will provide to male and female students by choosing which sports it will offer to each sex and by deciding how many athletes it will allow to participate on each sports team. 68. Defendant fails to provide female students an equal opportunity to participate in varsity intercollegiate athletics in violation of Title IX and 34 C.F.R. §106.41(c)(1).
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69. Defendant fails to comply with each prong of the three-part test

described above. In particular:

(1)

The ratio of female to male athletes at Defendant

is not substantially proportionate to the overall

ratio of female to male undergraduate students at

Defendant.

(2)

Defendant does not have a history or continuing

practice of athletics program expansion for

women.

(3)

Defendant has failed to fully and effectively

accommodate the athletic interests and abilities of

its female students by, among other things,

eliminating their opportunity to participate in

varsity volleyball.

70. According to information provided by Defendant to the federal

government in its annual Equity in Athletics Disclosure Act reports, Defendant's

female undergraduate enrollment rate is approximately 62% while its female athletic

participation rate is only about 50%. Furthermore, on information and belief,

Defendant underreports male participation in varsity athletics and overreports female

participation. Defendant does not provide female students with varsity athletic

participation opportunities in a number substantially proportionate to female

undergraduate enrollment.

71. Defendant failed to meet the 1978 regulatory deadline for compliance

with Title IX's requirement for equity in athletic participation opportunities. Defendant

has never met its compliance obligations and has not added any new female varsity

sports in over 10 years. Defendant cannot show a history or continuing progress of

program expansion for women. Instead, by eliminating women's varsity volleyball,

the Defendant has gone backwards. 20

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72. Plaintiffs have the interest and ability to participate in women's varsity volleyball. High school students (the source of Defendant's incoming, prospective, and future students) also have the interest and ability to participate in volleyball. Competition exists in volleyball, because it is a major NCAA sport and QU has offered the sport for many years- as have other schools in the Northeast Conference.
73. Defendant will exacerbate its existing pattern and practice of sex discrimination in its allocation of athletic participation opportunities if it is not restrained from eliminating female athletic participation opportunities in varsity volleyball.
74. Plaintiffs seek a declaration that Defendant discriminates on the basis of sex by failing to offer female students an equal opportunity to participate in intercollegiate athletics.
75. Plaintiffs seek expedited preliminary and permanent injunctive relief requiring Defendant to stop discriminating in the operation of its athletic department and ordering Defendant not to eliminate volleyball or any women's varsity athletic team or opportunity.
76. As a result of Defendant's discriminatory actions, the Student Plaintiffs have been denied and/or imminently will be denied their civil right to pursue an equal opportunity to participate in varsity intercollegiate athletics. They have been denied the educational, economic, physical, psychological, and social benefits of athletic participation. They have incurred or imminently will incur economic and compensatory damages associated with, among other things, lost opportunities,
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applying/transferring to other schools, moving to other schools, transferring/losing graduation credits, emotional distress, lost self-esteem, humiliation, and the denial of equal opportunity because of sex.
77. If Defendant is not restrained from eliminating the women's varsity volleyball program, all of these female athletes will forever lose the opportunity to participate in intercollegiate sports- an opportunity that lasts only four years in a lifetime but has lifelong educational, economic, physical, psychological, and social benefits.
SECOND CLAIM FOR RELIEF: TITLE IX (Discrimination in Employment & Termination)
(on behalf of Coach Sparks) 78. Plaintiffs reallege and incorporate herein by this reference paragraphs 1 through 77 inclusive of this complaint. 79. On information and belief, QU considered eliminating certain sports in 2006, including volleyball. However, after conducting the self-evaluation required to maintain its NCAA Division I status, QU realized that it was not in compliance with Title IX and that it could not eliminate a women's sport without violating Title IX and without jeopardizing its NCAA certification. 80. In August 2007, QU hired Coach Sparks to be the head volleyball coach. Knowing that QU had considered elimination of volleyball in 2006, Coach Sparks inquired about QU's commitment to the team. QU assured Coach Sparks that it intended to maintain and fully support the women's volleyball program into the future.
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81. Based upon these promises, Coach Sparks accepted the job and moved her family from Troy, New York, to Hamden, Connecticut. Coach Sparks, as the primary income earner in her family, would not have uprooted herself, her husband, and her daughter, or accepted a reduction in her earnings, but for the promises made to her about QU's long-term commitment to the volleyball program.
82. Coach Sparks began recruiting athletes for the volleyball team soon after her hiring. She began training and coaching the existing athletes in August 2007, and coached them throughout the fall 2007 competition season. Although college volleyball teams play their regular season games during the fall, they practice, condition, and scrimmage nearly year-round. Thus, coaches must train, coach, counsel, recruit, and operate the program year-round.
83. In March 2009, QU announced that it will eliminate the women's varsity volleyball team, and her job as its coach, effective June 30, 2009. This constitutes discrimination against Coach Sparks on the basis of sex.
84. As a result of Defendant's actions, Coach Sparks has been and will be damaged in the form of lost employment, lost compensation and benefits, lost professional status and reputation, and lost resources for her to do her job. Such discrimination has caused and will cause Coach Sparks pain, humiliation, emotional distress, and other damages to be proven at trial. Coach Sparks' damages are heightened by the fact that Defendant announced its intention to eliminate volleyball and Coach Sparks' job several months after the end of the volleyball competition season and thus long after the "hiring season" for college volleyball coaches. Nearly all jobs are now filled for the 2009-2010 school year, so that Coach Sparks
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will very likely be unable to find a job or coach a team until 2010-2011 at the earliest.
85. Coach Sparks seeks an injunction to prevent elimination of the volleyball program and her job. She seeks continued employment as head coach of the QU women's volleyball program, but without discrimination in the terms and conditions of her employment, including pay and benefits and the financial and personnel resources necessary to fully and properly perform her job, develop her skills and career, and operate her team at the Division I level.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: A. Certify the first claim as a class action on behalf of all present, prospective, and future female students at QU who seek to participate in varsity intercollegiate volleyball or any other sport not currently offered by QU; B. Enter an order declaring that Defendant has engaged in a past and continuing pattern and practice of discrimination against female students on the basis of sex in the operation of its athletic program, in violation of Title IX and the regulations promulgated thereunder; C. Issue a preliminary and a permanent injunction restraining Defendant from continuing to discriminate against female students on the basis of sex, restraining Defendant from eliminating the women's varsity volleyball program (or any women's athletic opportunities), and requiring Defendant to provide females with an equal opportunity to participate in varsity intercollegiate athletics by sponsoring
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additional women's varsity athletic opportunities based upon the interests and abilities of Defendant's present, prospective, and future students;
D. Issue an injunction that restrains Defendant from eliminating Coach Sparks' employment and requires Defendant to continue her employment as head volleyball coach but without discrimination in the terms, conditions, and resources of that employment;
E. Maintain jurisdiction over this action to monitor Defendant's compliance with the Court's orders;
F. Award the Student Plaintiffs compensatory damages and other monetary relief as permitted by law, and award Coach Sparks back pay and benefits, compensatory damages, and other monetary relief as permitted by law;
G. Award Plaintiffs their reasonable attorneys' fees and expenses; and H. Order such other and further relief as the Court deems appropriate.
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PLAINTIFFS DEMAND A TRIAL BY JURY AS TO ALL ISSUES TRIABLE BY A JURY.

Dated: April 16, 2009

Respectfully submitted by:

~ athan B. Orleans (ct05440)
AI x V. Hernandez (ct08345) 8 llman & Comley
50 Main Street Bridgeport, CT 06601 (203) 330-2129 (phone) (203) 576-8888 (fax) jorleans@pullcom.com ahernandez@pullcom.com
David McGuire (ct27523) ACLU Foundation of Connecticut 2074 Park Street, Suite L Hartford, CT 06106 (860) 523-9146 (phone) (860) 586-8900 (fax) jmatthews@aclu-ct.org

Co-counsel to be admitted pro hac vice:
Kristen Galles Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 (703) 683-4491 (703) 683-4636 kgalles@comcast.net

ATTORNEYS FOR PLAINTIFFS 26

Case 3:09-cv-00621-SRU Document 1 Filed 04/16/09 Page 27 of 28
VERIFICATION I, Robin Lamott Sparks, am a plaintiff in the above-captioned action. I have read the foregoing complaint and know the contents thereof. The factual statements therein relating to my claim are true based upon my own knowledge, except as to those matters which are alleged on information and belief, and as to those matters, I believe them to be true. I swear under penalty of perjury that the foregoing is true and correct. Executed this 15th day of April, 2009 at Bridgeport, Connecticut.
/C-6
Bridgeport/73061.1/ JORLEJUlS/7 54765vl

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CERTIFICATION A copy of this Verified Class Action Complaint has been emailed to Defendant on this date, and shall be served on the named Defendant in accordance with the Plaintiff's service obligations under Federal Rule of Civil Procedure 4. Dated: Aprif 16, 2009

 
 Case 3:09-cv-00621-SRU Document 101 Filed 12/09/09 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

)

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDEVEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER

)

individually and on behalf of all

)

those similarly situated;

)

and

)

ROBIN LAMOTT SPARKS, individually,

)

)

Plaintiffs,

)

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

)

Defendant.

)

__________________________________________)

Case No. 3:09-CV-621(SRU) CLASS ACTION December 9, 2009

FIRST AMENDED CLASS ACTION COMPLAINT Plaintiffs STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER are female students and varsity athletes at Defendant QUINNIPIAC UNIVERSITY (“QU” or “Defendant”). These Plaintiffs file this action individually and on behalf of a class of all other similarly situated females (the “Student Plaintiffs”). Plaintiff ROBIN LAMOTT SPARKS is the head volleyball coach at Quinnipiac University. She files this action individually and not on behalf of a class (“Coach Sparks”). Plaintiffs respectfully file this complaint and allege as follows:
STATEMENT OF THE CASE 1. The Student Plaintiffs file this case as a class action on behalf of themselves and on behalf of a class of current, prospective, and future female students at Quinnipiac University (“QU”) who are harmed by and want to end QU’s sex discrimination in: (1) the allocation of
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athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes. They similarly file this action on behalf of females who are deterred from enrolling at QU because of the sex discrimination in QU’s athletic program, including its failure to offer the varsity sports in which they want to participate (despite QU’s failure to provide equal athletic participation opportunities to females).
2. The Student Plaintiffs allege that Defendant’s ongoing sex discrimination in the operation of its varsity athletic program violates Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) and the regulations adopted pursuant thereto (34 C.F.R. Part 106) (collectively, “Title IX”).
3. Coach Sparks alleges that Defendant has discriminated against her and continues to discriminate against her in the terms and conditions of her employment because of the sex of the student athletes she coaches. She further alleges that Defendant’s planned elimination of the women’s volleyball program, and with it her job as head volleyball coach, constitutes further discrimination against her because of the sex of the student athletes she coaches.
4. Coach Sparks alleges that Defendant’s ongoing sex discrimination against her because of the sex of her student athletes violates Title IX.
5. All Plaintiffs allege that Defendant has engaged in and continues to engage in retaliation against them because Plaintiffs opposed and/or complained about Defendant’s sex discrimination and Title IX violations. Plaintiffs allege that this retaliation violates Title IX.
JURISDICTION AND VENUE 6. The first, second, and third legal claims on behalf of the Student Plaintiffs arise under 20 U.S.C. § 1681, et seq. and its interpreting regulations. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1343(3), and 1343(4).
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7. The fourth legal claim on behalf of the Coach Plaintiff arises under 20 U.S.C. § 1681, et seq. and its interpreting regulations. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1343(3), and 1343(4).
8. The fifth legal claim on behalf of all Plaintiffs arises under 20 U.S.C. § 1681, et seq. and its interpreting regulations. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1343(3), and 1343(4).
9. This court has jurisdiction and authority to enter declaratory and other relief pursuant to 28 U.S.C. §§ 2201 and 2202.
10. Venue is proper pursuant to 28 U.S.C. § 1391(b). These claims arose in and Defendant is located in Hamden, Connecticut, which is within the jurisdiction of this court.
THE PARTIES 11. Plaintiff Stephanie Biediger is a female student and varsity athlete at Defendant Quinnipiac University. During the school year Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court. 12. Plaintiff Kayla Lawler is a female student and varsity athlete at Defendant Quinnipiac University. During the school year Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court. 13. Plaintiff Erin Overdevest is a female student and varsity athlete at Defendant Quinnipiac University. During the school year Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court.
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14. Plaintiff Kristen Corinaldesi is a female student and varsity at Defendant Quinnipiac University. During the school year Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court.
15. Plaintiff Logan Riker is a female student and varsity athlete at Defendant Quinnipiac University. During the school year Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court.
16. Plaintiff Robin Lamott Sparks is the head volleyball coach at Quinnipiac University. Plaintiff resides in Hamden, Connecticut, which is within the jurisdiction of this court.
17. Defendant Quinnipiac University is a private university of higher education. It is located in Hamden, Connecticut, which is within the jurisdiction of this court.
18. Quinnipiac University receives federal financial assistance and the benefits therefrom. Therefore, all programs at QU, including intercollegiate athletics, are subject to the requirements of Title IX.
CLASS ALLEGATIONS 19. The Student Plaintiffs bring this action on behalf of themselves and, pursuant to Rule 23(A) and B(2) of the Federal Rules of Civil Procedure, on behalf of all those similarly situated. In particular, the Student Plaintiffs seek to represent a class of all present, prospective, and future female students who are harmed by and want to end QU’s sex discrimination in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes. They also file this action on behalf of females who are deterred from enrolling at QU because of the sex discrimination in its athletic program, including its failure to offer the varsity sports in which they want to participate (despite QU’s failure to provide equal athletic participation opportunities to females).
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20. Each of the named Student Plaintiffs is a member of the proposed class and is now or will be injured by the ongoing sex discrimination in Defendant’s varsity athletic program. Defendant’s intended elimination of the women’s varsity volleyball program will exacerbate this discrimination by eliminating female varsity athletic participation opportunities.
21. The Student Plaintiffs seek to represent the proposed class because joinder of all class members and all persons harmed by the ongoing sex discrimination in Defendant’s varsity athletic program is not just impracticable, but impossible.
22. Joinder is impracticable because the class includes members whose identities are not currently known. On information and belief, there are present female students at QU whose names are currently unknown but who would participate in varsity athletics at QU if Defendant did not discriminate in the operation of its athletic program or if Defendant offered the sports or events in which they want to participate. There are also present female student athletes at QU who do not receive an equitable allocation of athletic financial assistance or the benefits provided to varsity athletes.
23. Joinder is impracticable because the class includes unknown and unidentifiable prospective and future students who will enroll at QU during the course of this litigation or who will be deterred from enrolling at QU because of the sex discrimination in Defendant’s varsity athletic program.
24. Joinder is also impracticable because of the inherently fluid nature of the proposed class. Even though the proposed class is known to exist, the identities of its members will change during the course of this litigation due to the nature of college enrollment and athletic participation. In particular, QU is a university with an ever-changing student body whose members graduate after approximately four years of enrollment. Its varsity student athletes are
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allowed only four years of athletic eligibility under the rules of the National Collegiate Athletic Association (“NCAA”). Accordingly, the membership of the class harmed by Defendant’s sex discrimination constantly changes as students graduate from QU and as new classes/groups of graduating high school students enroll as freshmen at QU.
25. It is unknown how many present, prospective, or future female students are enrolled or will enroll at QU during the course of this litigation. Nor is it known how many females would enroll as students at QU or would participate in athletics at QU if QU stopped the ongoing sex discrimination in its athletic program. The hundreds of additional class members who would apply to QU, who would be recruited by QU coaches to attend QU, and who would participate in athletics at QU if Defendant added the athletic opportunities and scholarships necessary to reach equal opportunity are too numerous to make joinder practicable.
26. The Student Plaintiffs satisfy the “commonality” requirement of Fed.R.Civ.P. 23(a)(2), because they share questions of law and fact in common with the proposed class, particularly whether QU engages in sex discrimination and violates Title IX in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of treatment and benefits to varsity athletes. Because Title IX athletics claims require comparison of the sex-segregated men’s and women’s athletic opportunities as a whole (rather than individually), the issues are inherently class-based.
27. The Student Plaintiffs satisfy the “typicality” requirement of Fed.R.Civ.P. 23(a)(3), because their claims are typical of those of the proposed class: (1) they are denied or imminently will be denied an equal opportunity to participate in varsity athletics at QU because of Defendant’s ongoing sex discrimination; (2) they are or imminently will be denied an equal allocation of athletic financial assistance; and/or (3) they are denied or imminently will be denied
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an equal allocation of the treatment and benefits provided to varsity athletes at QU. 28. All members of the proposed class are harmed by or imminently will be harmed by
the ongoing sex discrimination in QU’s varsity athletic program. 29. The Student Plaintiffs are members of the proposed class and will fairly and
adequately represent the interests of the class pursuant to Fed.R.Civ.P. 23(a)(4). They intend to prosecute this action vigorously in order to secure remedies for the entire class. Moreover, the Court will be responsible for entering fair and adequate injunctive relief if and when Plaintiffs prevail.
30. The undersigned class counsel include attorneys experienced in federal civil rights litigation and class actions, particularly under Title IX, and will adequately represent the interests of the class in this action.
31. The Student Plaintiffs satisfy the class certification requirements of Fed.R.Civ.P. 23(b)(2), because Defendant has acted or refused to act on grounds generally applicable to the class thereby making appropriate final declaratory and injunctive relief with respect to the class as a whole.
32. In particular, all class members are entitled to a declaration that QU engages in sex discrimination and violates Title IX because Defendant either violates Title IX as to all female students or it does not. Moreover, all class members are entitled to injunctive relief (1) to restrain QU from eliminating any women’s varsity sports and/or to require QU to add more women’s varsity sports; (2) to require QU to allocate more athletic financial assistance to female athletes; and (3) to provide female athletes with the same treatment and benefits provided to male athletes.
THE REQUIREMENTS OF TITLE IX 7

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33. Title IX, enacted in 1972, provides in relevant part: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...
20 U.S.C. § 1681(a). 34. The Civil Rights Restoration Act of 1987 made plain Congress' intent that
“program or activity,” as used in Title IX, applies to any program or activity offered by an educational institution that receives federal financial assistance – whether or not the program itself receives such assistance. 20 U.S.C. § 1687. Because QU receives federal financial assistance, its athletic program is subject to Title IX and QU must comply with its requirements.
35. In the statute, Congress expressly delegated authority to the United States Department of Health, Education and Welfare (“HEW” ) to promulgate regulations interpreting Title IX. 20 U.S.C. §1682. In 1975, HEW promulgated these regulations at 45 C.F.R. Part 86. The United States Department of Education (“DOE”) later adopted these regulations and codified them at 34 C.F.R. Part 106 (collectively, the “Regulations”). These regulations are enforced by the Office for Civil Rights (“OCR”) within DOE. The Regulations are attached hereto as Exhibit 1.
36. The Regulations require that federal fund recipients like QU undertake remedial and affirmative efforts to eliminate sex discrimination. 34 C.F.R. '106.3(a) & (b). They further direct schools to evaluate their own policies and actions; to modify any policies and actions that are discriminatory; and to take remedial steps to eliminate the effects of discriminatory actions. 34 C.F.R. '106.3(c). These mandates apply whether or not anyone has complained about discrimination.
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37. On information and belief, Defendant has not undertaken sufficient remedial or affirmative action to remedy the historical and ongoing sex discrimination in its athletic program.
38. The Regulations require that recipients like Defendant adopt nondiscrimination policies and grievance procedures, appoint and train a Title IX officer to receive and investigate sex discrimination complaints, and disseminate this information to all students, faculty, and employees. 34 C.F.R. §§ 106.8 & 106.9.
39. The Regulations further require that recipients confirm and promise compliance by filing an Assurance of Compliance with DOE each time they apply for or receive federal financial assistance. 34 C.F.R. § 106.4. The Assurance is a condition precedent to the receipt of federal funds. In the Assurance, schools must assure DOE that they comply with Title IX and that they will continue to do so. The Assurance also commits applicants/recipients “to take whatever remedial action is necessary in accordance with § 106.3(a) to eliminate existing discrimination on the basis of sex or to eliminate the effects of past discrimination.” 34 C.F.R. § 106.4. A blank copy of DOE’s Assurance of Compliance Form is attached hereto as Exhibit 2.
40. On information and belief, QU has completed and submitted many Assurance of Compliance forms to DOE and has received federal funds from DOE even though QU’s athletic program has never complied with Title IX.
41. The Regulations include specific prohibitions that state: in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex (1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service; (2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner; 9

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(3) Deny any person any such benefit or service; …. (6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit, or service to students or employees.
42. The Regulations also prohibit sex discrimination in the recruitment of students.
Schools may be required to undertake additional recruitment efforts for one sex as remedial action
pursuant to § 106.3(a), and may choose to undertake such efforts as affirmative action pursuant
to § 106.3(b).
43. On information and belief, Defendant has not undertaken sufficient remedial or
affirmative recruiting efforts to ensure that it offers female students an equal opportunity to
participate in varsity athletics; nor has it provided its women’s teams with the resources necessary
to adequately recruit female athletes with NCAA Division I athletic skills.
44. The Regulations prohibit sex discrimination in the allocation of athletic
scholarships. In particular, 34 C.F.R. § 106.37(c) provides:
To the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.
45. Regulation 34 C.F.R § 106.41(a) requires that recipients provide athletic equity at
each separate level of competition. In particular, it states:
No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and the recipient shall provide any such athletics separately on such basis.
46. The Regulations identify ten (10) non-exclusive areas in which recipients must
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provide equal athletic opportunity. These include: 1. Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; 2. The provision of equipment and supplies; 3. Scheduling of games and practice time; 4. Travel and per diem allowance; 5. Opportunity to receive coaching and academic tutoring; 6. Assignment and compensation of coaches and tutors; 7. Provision of locker rooms, practice and competitive facilities; 8. Provision of medical and training services; 9. Provision of housing and dining facilities and services; and 10. Publicity.
34 C.F.R. § 106.41(c). A school’s “failure to provide necessary funds for teams for one sex” also may be indicative of sex discrimination. Id.
47. In 1979, OCR issued a policy interpretation of Title IX and the Regulations in order to provide recipients with more specific guidance about the statute’s application to intercollegiate athletics. This policy interpretation is found at 44 Federal Register 71,413 (1979) (the “Policy Interpretation”). A copy of the Policy Interpretation is attached hereto as Exhibit 3.
48. The Policy Interpretation notes that the Regulations address club and varsity sports separately and states that “club teams will not be considered to be intercollegiate teams except in those instances where they regularly participate in varsity competition.” 44 F.R. at 71413-71414 n.1. Recipients must provide equal opportunity at each level of competition.
49. The Policy Interpretation provides that, in order to comply with Title IX and 34 11

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C.F.R. § 106.41(c), schools must provide equal athletic opportunities in three general areas: (1) athletic participation (34 C.F.R. § 106.41 (c)(1), (2) athletic benefits to those who already have athletic participation opportunities (34 C.F.R. § 106.41(c)(2)-(9)), and (3) athletic financial assistance (34 C.F.R. § 106.37). See Policy Interpretation, 44 F.R. at 71,414.
50. According to the Policy Interpretation, compliance in the area of athletic participation opportunities is determined by the following Three-Part Test:
(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; (2) where the members of one sex have been and are under-represented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or (3) where the members of one sex are under-represented among intercollegiate athletes and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. See 44 Fed.Reg. 71,418 51. This Three-Part Test was further clarified after notice and comment in OCR’s 1996 Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (the “1996 OCR Clarification”). A copy of the 1996 OCR Clarification is attached hereto as Exhibit 4. 52. Compliance in the area of equal athletic benefits is assessed under the factors set forth in 34 C.F.R. 106.41(c) plus recruitment and support services. The specific requirements are detailed in the Policy Interpretation. See 44 F.R. at 17,415-71,417. 53. Compliance in the area of equal athletic financial assistance is assessed pursuant to 34 C.F.R. §106.37 and the Policy Interpretation. See 44 F.R. at 71,415. OCR’s application of
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these requirements is detailed in a “Dear Colleague” letter dated July 23, 1998, which incorporated OCR’s July 23, 1998, guidance to Bowling Green University. A copy of the “Dear Colleague” letter is attached hereto as Exhibit 5.
54. Title IX delegates to OCR the authority to investigate and enforce the statute. 20 U.S.C. §1682. OCR uses the guidelines described above when it investigates and enforces the Title IX statute. OCR also provides its guidance materials to all recipients and makes them available on its website (www.ed.gov/ocr).
55. All twelve federal courts of appeal that have considered OCR’s regulations and policy guidelines, including the Three-Part Test, have held that they are valid interpretations of the statute and have accorded them substantial deference in applying Title IX and/or in assessing Title IX compliance.
56. The Regulations require that sponsors of intercollegiate athletics (such as Defendant) take such remedial actions as are necessary to overcome the effects of sex discrimination in violation of Title IX. See 34 C.F.R. § 106.3(a). On information and belief, Defendant has never provided females with an equal opportunity to participate in varsity athletics and has not taken sufficient remedial actions to satisfy its obligations under Title IX.
57. The Regulations gave recipients only one year to come into full compliance with all Title IX requirements -- except athletics. 34 C.F.R. § 106.41(d) gave colleges three years -until July 1978 -- to come into full compliance with Title IX’s athletic provisions. The regulation expressly sets the three-year deadline as an outer limit for compliance and obligates schools to comply “as expeditiously as possible but in no event later than three years from the effective date of this regulation.” On information and belief, Defendant did not comply with the athletic regulations by the 1978 compliance deadline or at any time thereafter. Today, more than 30 years
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later, Defendant still does not fully comply with Title IX. 58. The Regulations expressly prohibit employment discrimination in educational
programs. 34 C.F.R. § 106.51 et seq. (Subpart E). In particular, Section 106.51(a)(1) states: No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in employment... under any education program or activity operated by a recipient which receives or benefits from Federal financial assistance. 59. Section 106.51(a)(3) states: “A recipient shall not enter into any contractual or
other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination.”
60. Title IX’s prohibition of discrimination on the basis of sex covers, among other things: compensation, job assignments, fringe benefits, termination, and any other term, condition, or privilege of employment. 34 C.F.R. § 106.52(b). Title IX prohibits sex discrimination in employment based upon the sex of the employee and based upon the sex of the students taught or athletes coached by the employee.
GENERAL FACTUAL ALLEGATIONS 61. Quinnipiac University sponsors a broad varsity, intercollegiate athletic program. It sponsors separate sports and separate teams for both men and women, including: men’s ice hockey, women’s ice hockey, men’s basketball, women’s basketball, men’s cross country, women’s cross country, men’s lacrosse, women’s lacrosse, men’s soccer, women’s soccer, men’s tennis, women’s tennis, men’s baseball, women’s softball, women’s field hockey, and women’s volleyball. Until this year, QU also sponsored men’s golf (but not women’s golf). 62. QU also purports to offer women’s indoor track and women’s outdoor track. Until this academic year, QU also purported to offer men’s indoor track and men’s outdoor track.
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On information and belief, QU does not now and did not previously sponsor genuine women’s or men’s track teams of any kind, does not offer women genuine athletic participation opportunities in track, and thus cannot count any students as “track” athletes for purposes of Title IX.
63. On information and belief, QU does not offer genuine athletic participation opportunities in track sprints, hurdles, throwing, jumping, or pole vaulting. QU does not recruit athletes to participate in these events and does not offer athletic scholarships to anyone to participate in these events.
64. On information and belief, QU’s purported track program consists only of cross country runners who can already participate in spring track events as cross country runners under NCAA rules. Thus, calling and counting female cross country runners as “track” athletes does not provide them – let alone any other students - with any additional athletic participation opportunities.
65. Even if QU did or does sponsor a genuine women’s track program, it cannot, for purposes of Title IX, count twice athletes who run both indoor and outdoor track, because they are the same sport -- just as it cannot (and does not) count twice athletes who participate in baseball, softball, lacrosse, tennis, golf (before its elimination this year), or any other sport even though they participate in the same sport in different venues, in different seasons, or in different academic terms.
66. In choosing which sports it will offer to the students of each sex, QU chooses how many varsity athletic participation opportunities it provides to male students and how many athletic participation opportunities it provides to female students. This fact makes athletics unlike other educational programs in which male and female students participate together or compete against each other for the same opportunities or class slots on an equal basis.
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67. On information and belief, QU chooses and has chosen which sports it provides to

each sex in a manner that provides and has provided its male students with proportionally more

opportunities to participate in varsity intercollegiate athletics than it has provided its female

students, thus denying female students an equal opportunity to participate in this educational

program. 68.

Quinnipiac University is a member of the NCAA and participates at the highest

level of intercollegiate competition -- Division I. As such, QU offers athletic financial assistance

(i.e., athletic scholarships) to members of its varsity athletic teams.

69. Like other Division I schools, QU recruits high school students to apply to and to

enroll at QU for the purpose of participating on its varsity athletic teams. QU also offers athletic financial assistance to these high school recruits in order to entice them to apply to and to enroll

at QU.

70. Most of the named Student Plaintiffs were recruited to attend QU in order to

participate on its women’s varsity volleyball team. They expected to participate in volleyball

during each of their years at QU and planned their academic, personal, and financial lives accordingly. They would not have enrolled at QU but for the opportunity to participate in women’s varsity volleyball and to receive athletic financial assistance.

71. In March, 2009, QU announced its intention to eliminate women’s volleyball,

men’s golf, and men’s outdoor track.

72. After QU’s announcement, the named Student Plaintiffs and/or Coach Sparks opposed and complained about the planned elimination of the women’s varsity volleyball program. They demanded that QU not eliminate the program, but QU instead affirmed its intent

to do so and informed Coach Sparks that her job would end as of July 1, 2009.

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73. On March 27, 2009, Plaintiff counsel sent Defendant a letter objecting to the planned elimination of the women’s varsity volleyball program, explaining why the elimination of the program would constitute sex discrimination in violation of Title IX, and requesting an opportunity to discuss continuation of the volleyball program. QU failed to respond to the letter until it was notified of the pendency of this lawsuit, and then rejected Plaintiffs’ demand.
74. In April, 2009, Plaintiffs filed their original complaint in this action, along with a motion for preliminary injunction to enjoin QU from eliminating the volleyball program or any other women’s team at QU.
75. The Court held a hearing on the motion for preliminary injunction in May, 2009. On May 22, 2009, the Court entered a preliminary injunction, barring QU from eliminating any women’s team, from reducing its support for the women’s volleyball team, and from terminating Coach Sparks pending trial or further order of the Court.
INJUNCTIVE RELIEF 76. Plaintiffs are entitled to injunctive relief that restrains Defendant from continuing to discriminate on the basis of sex in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of the benefits provided to varsity athletes. 77. In particular, Plaintiffs are entitled to injunctive relief that restrains Defendant from eliminating any women’s varsity athletic team and that requires Defendant to add new women’s varsity athletic teams in new sports in order to expand the number of women’s athletic participation opportunities until QU complies with Title IX. 78. Plaintiffs are further entitled to injunctive relief that requires QU either to allocate more athletic financial assistance to women’s teams or to allocate its existing athletic financial
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assistance in a nondiscriminatory manner. 79. Plaintiffs are also entitled to injunctive relief that requires QU to provide its female
athletes with the same benefits it already provides its male athletes. 80. Failure to grant the requested injunctive relief will cause irreparable harm by
continuing Defendant’s sex discrimination against its present, prospective, and future female students (including Plaintiffs). Such discrimination will forever deny them an equal opportunity to participate in the valuable educational program of varsity intercollegiate athletics B one that provides academic, physical, psychological, social, and even economic benefits for the rest of the participants’ lives. There is no adequate remedy at law for this harm.
81. The continuing, irreparable harm caused by Defendant’s discriminatory actions far outweighs any possible harm that granting the injunctive relief might cause Defendant, because the requested injunctive relief is already mandated by federal law and because QU was already required to comply with that law more than 30 years ago.
82. Restraining Defendant’s elimination of the varsity women’s volleyball program in particular merely maintains the status quo. Defendant will suffer no harm by keeping the women’s varsity volleyball program except the monetary cost of the program that it has already borne for more than 25 years.
83. The lifelong harm caused to Plaintiffs by Defendant’s sex discrimination is irreparable and can never be compensated with money. This harm far outweighs any monetary cost incurred by Defendant. Importantly, Defendant need not incur additional costs to comply with the law. It could choose to allocate its athletic opportunities, athletic financial assistance, and athletic benefits more equitably by merely shifting its longstanding favoritism toward men to a more equal allocation among men and women. Meanwhile, Defendant will gain public relations
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and enrollment advantages – and avoid future OCR enforcement investigations - by coming into compliance with Title IX and by offering more opportunities for its female students.
84. Congress decided that ending sex discrimination in education is in the public interest when it enacted Title IX. It has reaffirmed that public interest over the past 37 years by defeating each and every attempt that has been made to weaken Title IX. The injunctive relief that Plaintiffs request will promote the public interest in that it will increase equal opportunities for female students in educational athletics, will end sex discrimination, will promote compliance with federal law, and will stop the use of federal funds for discriminatory purposes.
85. Coach Sparks is entitled to the injunctive relief she requests (restraining Defendant from eliminating the volleyball program and her job as volleyball coach and requiring Defendant to provide her nondiscriminatory employment terms and conditions) for the same reasons that the Student Plaintiffs are entitled to such relief.
ATTORNEYS' FEES 86. Plaintiffs have been required to retain the undersigned attorneys to prosecute this action. Plaintiffs are entitled to recover reasonable attorneys' fees and expenses pursuant to 42 U.S.C. § 1988.
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FIRST CLAIM FOR RELIEF: TITLE IX (Unequal Allocation of Athletic Participation Opportunities)
(on behalf of Student Plaintiffs and the proposed class) 87. Plaintiffs reallege and incorporate herein by this reference all of the foregoing paragraphs of this complaint. 88. The Student Plaintiffs bring this claim as a class action as set forth in the class allegations. 89. Defendant determines the number of athletic participation opportunities that it will provide to male and female students by choosing which sports it will offer to students of each sex and by choosing how many athletes it will reasonably allow to participate on each sports team. 90 On information and belief, Defendant fails to provide female students an equal opportunity to participate in varsity intercollegiate athletics. This failure constitutes intentional sex discrimination in violation of Title IX and 34 C.F.R. § 106.41(c)(1). 91 On information and belief, Defendant fails to comply with each prong of the ThreePart Test outlined above. In particular, Plaintiffs allege that: (1) The ratio of female to male athletes at Defendant is not
substantially proportionate to the overall ratio of female to male full time undergraduate students at Defendant; (2) Defendant does not have a history or continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of its female students; and (3) Defendant has failed to fully and effectively accommodate the athletic interests and abilities of its female students. 92 Under the 1996 OCR Clarification, enrollment and athletic participation opportunities are “substantially proportionate” if the number of additional athletic participation opportunities required to increase the athletic participation percentage to the enrollment
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percentage is too small to sustain a viable varsity team. See OCR Clarification at p. 5, examples A&B.
93 For purposes of prong one of the Three Part Test, athletic participation opportunities are measured by counting the actual number of athletes who receive a genuine athletic participation opportunity. See Policy Interpretation at 71,415; 1996 OCR Clarification at 3.
94 The Equity in Athletics Disclosure Act (“EADA”)(20 U.S.C. §1092(g)) requires that Defendant provide DOE with certain information about its athletic program, including its enrollment and athletic participation numbers. According to the Defendant’s EADA reports that Plaintiffs have reviewed, Defendant does not provide female students with varsity athletic participation opportunities in a ratio that is substantially proportionate to female enrollment. Accordingly, in order to comply with prong one, QU cannot eliminate existing women’s teams but instead must add more women’s teams.
95 On information and belief, QU already requires its existing women’s teams to carry more female athletes on their rosters than are reasonable or necessary, so that these excess athletes do not actually exist, do not actually compete, or do not actually receive a genuine NCAA Division I athletic experience. Accordingly, QU cannot merely add more women to its existing teams but instead must add more women’s teams.
96. On information and belief Defendant misrepresents the number of athletes on its existing teams in order to falsely appear to comply with prong one of the Three-Part Test when it does not in fact.
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97. On information and belief, QU has made such misrepresentations to Plaintiffs, DOE,
the NCAA, and in this action. Indeed, Plaintiffs already proved some of this misrepresentation at
the hearing on their motion for preliminary injunction. QU has furthered such misrepresentations
by claiming Title IX compliance on the Assurance of Compliance forms it submits to DOE in
order to obtain federal funding.
98. On information and belief, Defendant currently misrepresents or in the recent past has
misrepresented its athletic participation numbers in some or all of the following ways:
a. Over-reporting the number of women athletes on teams
b. Under-reporting the number of male athletes on teams
c. Manipulating the team squad sizes around the first competition date
d. Counting some team squad sizes based upon their preseason or nontraditional season rosters rather than based upon their competition season rosters
e. Padding the size of women’s teams until after the first date of competition and then cutting or forcing the extra women to quit
f. Padding the size of women’s teams so that they are too large to provide some members a genuine NCAA Division I varsity opportunity, include some members who do not have the skills to participate at the Division I level, and distract resources and coaching from the athletes who have the Division I skills and actually will compete
g. Claiming it sponsors a genuine women’s track team when it does not have sprinters, hurdlers, throwers, or jumpers and when it thus can never win any track meet in which athletes purportedly compete
h. Claiming it has women’s indoor and outdoor track teams and then counting athletes who purportedly compete on such teams as if they competed in two separate sports
i. Counting participants in competitive cheer as athletes for purposes of Title IX even though QU knows or should know that OCR has never accepted any cheer program as a sport, QU itself has never treated cheer as a sport, no female ever asked that cheer be treated as a sport, and insufficient competition exists for such a sport (even if it existed) at this point in time
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Some or all of these counting schemes lead to misreporting of the number and gender ratio of QU’s athletic participation opportunities, thus contributing to inaccurate representations about whether QU complies with prong one of the Three-Part Test.
99. On information and belief, QU has made such misrepresentations and continues to make such misrepresentations even though it knows they do not accurately reflect the genuine athletic participation opportunities provided to female students..
100. On information and belief, Defendant failed to meet the July, 1978, deadline for compliance with Title IX’s requirement for equity in athletic participation opportunities. On further information and belief, Defendant has never met this Title IX requirement and has not added any new female varsity sports in over 10 years. Thus, Defendant cannot show a history or continuing progress of program expansion for women. Instead, Defendant is threatening to shrink, rather than expand, its women’s athletic program, by eliminating women’s varsity volleyball.
101. Defendant does not fully and effectively accommodate the athletic interests and abilities of its present, prospective, or future students. On information and belief, there are present, prospective, and future students at QU (including Plaintiffs ) who have the interest or ability to participate in sports that Defendant either plans to eliminate or does not sponsor (e.g., volleyball, track, bowling, fencing, golf, gymnastics, rowing, swimming). If QU added female participation opportunities in these sports, there are many females in the geographic area with the interest and ability to participate in them.
102. On information and belief, there are many other prospective and future students who are deterred or will be deterred from enrolling at QU because it does not offer additional sports. If QU added female participation opportunities in these sports, there are many females in
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the geographic area from which QU draws most of its students with the interest and ability to participate in them.
103. On information and belief there are prospective and future students who participate in these sports in Connecticut and neighboring states and who have the interest and ability to participate in these sports in college. For example, high schools and high school athletic associations in Connecticut and throughout the geographic region sponsor many women’s sports not offered by QU.
104. On information and belief, Connecticut high schools and the Connecticut Interscholastic Athletic Conference (“CIAC”), offer sports and championships in women’s volleyball, bowling, golf, gymnastics, swimming, and track.
105. On information and belief, high schools and high school athletic associations in neighboring states provide athletic participation opportunities for females in volleyball, bowling, golf, gymnastics, swimming, track, rowing, rifle, fencing, and ski.
106. On information and belief, the Council of New England Secondary Schools Principals’ Associations hosts region-wide high school championships for female athletes in golf, gymnastics, and swimming. Thus, there are many prospective and future QU female students in Connecticut and New England alone that play and want to play sports that QU does not offer for its female students.
107. On information and belief, if QU hired a coach to recruit female students to participate in sports that QU either wants to eliminate or does not sponsor, if QU offered athletic scholarships in these sports, and if QU provided equitable athletic benefits to athletes who participate in these sports, then QU could offer several more varsity athletic participation opportunities for female students and thus could more fully and effectively accommodate their
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athletic interests and abilities. 108. QU must continue to add new women’s sports to meet this large, unmet interest
among present, prospective, and future students until QU can meet another prong of the ThreePart Test.
109. Competition exists for QU to participate in intercollegiate volleyball and in the sports that QU should add to accommodate the large unmet interest of its present, prospective, and future female students.
110. Competition clearly exists in volleyball because QU has offered the sport for many years, as have other schools in QU’s athletic conferences.
111. NCAA member schools sponsor teams in and the NCAA itself sponsors women’s national championships in basketball, bowling, crew/rowing, cross country, equestrian, fencing, field hockey, golf, gymnastics, ice hockey, lacrosse, rifle, ski, soccer, softball, swimming & diving, tennis, track, volleyball, and water polo. Thus, there is competition available for QU in these sports. Moreover, the fact that numerous NCAA member schools recruit females to participate in these sports shows that there are present, prospective, and future students who have the interest and ability to participate in them.
112. QU is a member of the Northeast Conference (“NEC”). NEC women’s sports include basketball, bowling, cross country, field hockey, golf, lacrosse, soccer, softball, swimming & diving, tennis, track, and volleyball. Thus, there is competition available for QU in these sports. Moreover, the fact that other schools in QU’s own athletic conference recruit females to participate in these sports shows that there are present, prospective, and future students who have the interest and ability to participate in them.
113. On information and belief, QU sponsors ice hockey even though the NEC does not 25

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sponsor this sport. Accordingly, QU joined a separate athletic conference, the Eastern Collegiate Athletic Conference (“ECAC”), to give its ice hockey teams intercollegiate competition. On information and belief, the ECAC sponsors the following women’s sports: volleyball, basketball, softball, field hockey, soccer, lacrosse, tennis, cross country, track, bowling, golf, gymnastics, rowing, swimming, and water polo. Thus, there is competition available for QU in these sports. Moreover, the fact that other schools in QU’s own athletic conference recruit females to participate in these sports shows that there are present, prospective, and future students who have the interest and ability to participate in them.
114. On information and belief, QU has never surveyed its past, present, or prospective students to assess their athletic interests or abilities or to determine if they would enroll at QU if it offered opportunities in more sports for them.
115. Because QU has never provided enough athletic participation opportunities for its female students, it has a continuing remedial and affirmative obligation to expand opportunities until it reaches equality. Defendant has failed and continues to fail to meet this obligation.
116. Defendant will exacerbate its existing pattern and practice of sex discrimination in its allocation of athletic participation opportunities if it is not restrained from eliminating women’s sports teams such as varsity volleyball.
117. All QU students would benefit if QU stopped discriminating in the operation of its athletic program and if QU offered its female students more sports participation opportunities.
118. On information and belief, in order to obtain or retain its NCAA Division I status, QU was required to engage in a self-study of its athletic program. The 2006 report of that study indicates that QU knows that it does not offer female students an equal opportunity to participate in varsity athletics and that it does not comply with Title IX. Nonetheless, Defendant plans
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imminently to decrease rather than increase competitive opportunities for its female students in this education program.
119. On information and belief, QU cannot eliminate any more men’s varsity intercollegiate sports without jeopardizing its membership in NCAA Division I. Thus, QU must add more women’s opportunities rather than cut men’s opportunities in order to comply with the equal athletic participation opportunity requirements of Title IX.
120. Plaintiffs are harmed by Defendant’s failure to provide its female students with an equal opportunity to participate in varsity athletics because they want to participate in sports that QU either does not offer or that QU intends to eliminate. Such harm includes lost educational opportunities, lost athletic financial assistance, emotional distress, pain, anxiety, and other damages to be proven at trial. Accordingly, they are entitled to the relief requested herein.
SECOND CLAIM FOR RELIEF: TITLE IX (Unequal Allocation of Athletic Financial Assistance) (on behalf of Student Plaintiffs and the proposed class) 121. Plaintiffs reallege and incorporate herein by this reference all of the foregoing paragraphs of this complaint. 122. The Student Plaintiffs bring this claim as a class action as set forth under the class allegations. 123. QU provides athletic financial assistance to some of its varsity athletes. 124. Under Title IX, QU must provide its female students with an equal allocation of any athletic financial assistance that it provides. Under 34 C.F.R. §106.37, an equal allocation means that QU must provide its female athletes with athletic financial assistance in the same proportion that it allocates athletic participation opportunities.
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125. On information and belief, Defendant fails to provide female student athletes with an equal allocation of athletic financial assistance. This failure constitutes intentional sex discrimination in violation of Title IX and 34 C.F.R. § 106.37.
126. On information and belief, QU has not sufficiently increased the amount of athletic financial assistance it provides to female athletes to match any purported increase in female athletic participation opportunities. QU has failed to increase the athletic financial assistance available to its women’s teams even though it has significantly increased the number of women athletes on those teams. As a result, it is not only more difficult to recruit athletes, but also to recruit athletes with sufficient skill to participate at the Division I level.
127. Plaintiffs are harmed by Defendant’s failure to provide its female students with an equal allocation of athletic financial assistance. Such harm includes lost educational opportunities and financial assistance and lost quality in participation opportunities. It also includes emotional distress, pain, anxiety, and other damages to be proven at trial. Accordingly, they are entitled to the relief requested herein.
THIRD CLAIM FOR RELIEF: TITLE IX (Unequal Allocation of Athletic Treatment & Benefits) (on behalf of Student Plaintiffs and the proposed class) 128. Plaintiffs reallege and incorporate herein by this reference all of the foregoing paragraphs of this complaint. 129. The Student Plaintiffs bring this claim as a class action as set forth under the class allegations. 130. QU provides its varsity student athletes with certain benefits, including but not limited to, equipment, supplies, uniforms, locker rooms, scheduling for competitions,
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transportation and accommodations for travel, per diem for travel, coaching, tutoring and academic support services, practice and competition facilities, medical and training services, weight training and conditioning services, housing and dining services, sports information and publicity services, recruiting, video support, and other services.
131. Under Title IX and 34 C.F.R. §106.41(c), QU must allocate these benefits equally between male athletes and female athletes. On a program-wide basis, it must provide female athletes with benefits that are comparable to those that it provides to male athletes.
132. On information and belief, Defendant fails to provide female student athletes with an equal allocation of these benefits. This failure constitutes intentional sex discrimination in violation of Title IX.
133. On information and belief, QU has not sufficiently increased the amount of benefits (or the resources and budgets necessary to purchase the benefits) it provides to female athletes to match its purported increase in female athletic participation opportunities.
134. On information and belief, QU has failed to increase or provide sufficient benefits (or the resources and budgets necessary to purchase the benefits) to its women’s varsity athletic teams despite requiring that they carry significantly more athletes. Meanwhile, QU has not decreased the benefits that it provides to men’s varsity athletic teams even though they now carry significantly fewer athletes. As a result, while each male athlete now receives more or better benefits, each female athlete now receives fewer or worse benefits than in prior years.
135. On information and belief, Defendant fails to provide equal athletic benefits in some or all of the categories set forth in the Regulations and the Policy Interpretation, including but not limited to:
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2. Scheduling of games and practice time; 3. Travel, transportation, and per diem allowance; 4. Opportunity to receive coaching and academic tutoring; 5. Assignment and compensation of coaches and tutors; 6. Provision of locker rooms, practice and competitive facilities; 7. Provision of medical and training services; 8. Provision of housing and dining facilities and services; 9. Publicity & sports information services; 10. Administrative support; 11. Recruiting resources and support; and 12. Resources necessary to provide any of the foregoing benefits or to provide
the female athletes with a genuine Division I athletic experience. 136. Plaintiffs are harmed by Defendant’s failure to provide its female student athletes with an equal allocation of benefits and resources. Such harm includes lost educational opportunities and lost competitive advantage and less quality in participation opportunities. It also includes emotional distress, pain, anxiety, and other damages to be proven at trial. Accordingly, they are entitled to the relief requested herein.
FOURTH CLAIM FOR RELIEF: TITLE IX (Discrimination in Terms and Conditions of Employment, & Termination)
(on behalf of Coach Sparks) 147. Plaintiffs reallege and incorporate herein by this reference the foregoing paragraphs of this complaint. 138. On information and belief, in 2006 QU considered eliminating certain women’s
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sports, including volleyball. However, after conducting the self-evaluation required to maintain its NCAA Division I status, QU determined that it was not in compliance with Title IX and that it could not eliminate a women’s sport without violating Title IX or jeopardizing its NCAA certification.
139. In August, 2007, QU hired Coach Sparks to be the head volleyball coach. Knowing that QU considered eliminating volleyball in 2006, Coach Sparks asked about QU’s commitment to the volleyball program. QU assured Coach Sparks that it intended to keep and fully support the women’s volleyball program into the future.
140. Based upon these promises, Coach Sparks accepted the job and moved her family from Troy, New York, to Hamden Connecticut. Coach Sparks, as the primary income earner in her family, would not have uprooted herself, her husband, and her daughter and would not have accepted a reduction in hear earnings but for the promises made to her about QU’s long-term commitment to the volleyball program.
141. Coach Sparks began recruiting athletes for the volleyball team soon after her hiring. She began training and coaching the existing athletes in August, 2007, and coached them throughout the fall 2007 competition season. Although college volleyball teams play their regular season games during the fall, they practice, condition, and scrimmage nearly year-round. Thus, coaches must train, coach, counsel, recruit, and operate the program year-round. They also must monitor the academic performance of their athletes year-round.
142. Despite Defendant’s assurances to Coach Sparks, in March 2009, QU announced its intention to eliminate women’s varsity volleyball and Coach Sparks’ job effective July 2009.
143. Defendant’s elimination of Coach Sparks’ job and her volleyball program constitutes discrimination against her based upon the sex of the athletes she coaches. This
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intentional discrimination violates Title IX. 144. Despite QU’s promises to fully support Coach Sparks and the women’s volleyball
team, it has not done so. Instead, QU has discriminated against and continues to discriminate against Coach Sparks in the compensation, terms, and conditions of her employment because of the sex of the athletes she coaches. This intentional discrimination also violates Title IX. This discrimination has included, among other things:
a. Coach Sparks must perform more work than men’s coaches because she has less institutional support. She must prepare and maintain her own court and clean it up afterwards. She must put more time into coaching, counseling, and monitoring the academic progress of her athletes because she does not have any full time assistant coaches or any adequately paid part-time coaches. She also does not have the support of an equipment manager or a director of volleyball operations. Sometimes Coach Sparks even must launder her team’s uniforms.
b. QU does not provide Coach Sparks enough athletic scholarships to recruit a full, competitive Division I team, thus making it more difficult for her to do her job and to develop a successful program.
c. QU does not provide Coach Sparks with adequate administrative or secretarial support to run the daily operations of the volleyball program.
d. QU does not provide Coach Sparks with the resources necessary to recruit enough athletes with the skill to compete at the Division I level, which has adversely affected her competitive success, recruiting, and professional reputation.
e. QU does not provide Coach Sparks with any full time assistant coaches or other support personnel to help run the program, coach, tutor, counsel, and otherwise monitor the athletes on her team,
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f. QU does not provide Coach Sparks with sufficient assistance in the promotion, marketing, and publicity of her program.
g. Coach Sparks does not have access to a locker facility. h. QU denied Coach Sparks access to QU facilities to run team practices in the offseason. She was also prevented from starting volleyball practices at the same time as other volleyball teams, thus putting her and her team at a significant, competitive and recruiting disadvantage. i. QU does not provide Coach Sparks with the resources necessary to run the volleyball program at the Division I level, which has adversely affected her competitive success, recruiting, and professional reputation. j. Coach Sparks does not have access to the video and media equipment necessary to analyze her team’s performance. k. Because the women’s volleyball team does not have adequate support from an athletic trainer, strength & conditioning coach, assistant coaches, graduate assistant coaches, academic advisors, sports information support, or secretarial support, Coach Sparks must work much harder and longer to provide these missing needs herself – without receiving additional pay. 145. As a result of Defendant’s discrimination, Coach Sparks was forced to work significantly more for less money, benefits, and personal time and was forced to do so with significantly fewer resources, thereby making her job more difficult and reducing her chances for competitive success, which in turn, has adversely affected her professional reputation. 146. As a result of Defendant’s actions, Coach Sparks has been and will be harmed. Such harm includes significantly more work, lost employment, lost compensation and benefits, lost leisure and family time, and lost professional status and reputation. It also includes emotional
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distress, pain, humiliation, anxiety, and other damages to be proven at trial. 147. Coach Sparks seeks an injunction to prevent elimination of the volleyball program
and her job. She seeks continued employment as head coach of the volleyball program, but without discrimination in the terms and conditions of that employment, including pay and benefits and the financial and administrative resources necessary to fully and properly perform her job, develop her skills and career, and operate her team at the Division I level.
FIFTH CLAIM FOR RELIEF: TITLE IX RETALIATION (on behalf of the named Plaintiffs)
148. Plaintiffs reallege and incorporate herein by this reference the foregoing paragraphs of this complaint.
149. The named Plaintiffs complained about sex discrimination in QU’s athletic program, including its attempt to eliminate the women’s volleyball program and Coach Sparks’ job. Plaintiffs, through counsel, also sent QU a demand letter and filed this legal action.
150. In response to these complaints, QU has taken adverse actions against the named Plaintiffs. On information and belief, these adverse actions include some or all of the following, among other things
a. Stating that Plaintiffs and/or their law suit are the reason for QU’s termination of men’s teams.
b. Stating that Plaintiffs and/or their law suit are taking resources away from academic programs.
c. Threatening to cut men’s teams after Plaintiffs filed this action, and doing so after the Court granted Plaintiffs’ motion for preliminary injunction.
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d. Stating that Plaintiffs and/or their lawsuit are the reason for any purported changes in QU’s operation of its cross country program, thus fostering animosity toward Plaintiffs among both male and female runners.
e. Pressuring the coaches of women’s teams to increase their squad sizes more than necessary and blaming Plaintiffs and/or their law suit for it.
f. Pressuring the coaches of men’s teams to decrease their squad sizes more than necessary and blaming Plaintiffs and/or their law suit for it.
g. Creating a hostile environment toward Plaintiffs. h. Creating a climate of fear within the athletic department to deter others from complaining about discrimination or from testifying for Plaintiffs. i. Reducing the support previously provided to the volleyball program. j. Denying the volleyball team access to facilities during the nontraditional portion of their season. k. Failing to provide the volleyball team with adequate sports information, medical, training, and administrative support and resources, and failing to publicize or promote the academic, community, or athletic achievements of the volleyball team this season. l. Ordering Coach Sparks to vacate her office after she requested copies of QU’s EADA reports (even though the men’s coaches whose teams were eliminated were not ejected). 151. QU took these adverse actions in response to and because Plaintiffs opposed QU’s sex discrimination and filed this action. QU took these adverse actions against Plaintiffs with the intent to harm, retaliate, and intentionally discriminate against them. Such actions constitute retaliation and intentional discrimination in violation of Title IX. 152. On information and belief, QU’s retaliatory animosity towards Plaintiffs is so great
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that QU has derided Plaintiffs’ complaints in the press and within QU and its athletic department, making their employment and education environment more hostile.
153. On information and belief, QU’s retaliatory animosity towards Plaintiffs is so great that QU has blamed them for QU’s purported elimination of men’s sports teams, knowingly creating a hostile environment among their peers.
154. On information and belief, QU’s retaliatory animosity towards Plaintiffs is so great that QU is willing to spend significant amounts of money to prevent reinstatement of the volleyball program. For example, QU is spending significantly larger amounts of money to start a purported competitive cheer team than it provided to women’s volleyball --- even though QU purported to eliminate volleyball because of financial hardship. This new cheer team now uses the Burt Kahn court – even though QU also purported to eliminate volleyball because it wanted to turn the Burt Kahn court into an alumni facility.
155. On information and belief, QU did not start a cheer program in order to provide genuine athletic participation opportunities for female students but instead to make sure that it could eliminate the women’s volleyball program in retaliation for their exposure of QU’s ongoing sex discrimination.
156. On information and belief, QU’s large infusion of resources into its competitive cheer program did not take place until after Plaintiffs filed this action. QU’s animosity is so intense and illogical that QU apparently is willing to spend more money to eliminate the women’s volleyball team than it would cost to keep it.
157. On information and belief, Defendant is willing to look for a more difficult or more costly way to comply with Title IX now just to spite the volleyball team and to keep it from being reinstated. There is no logical explanation for this behavior other than retaliatory animosity,
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especially when no one asked QU to start calling its cheer program a “sport” and no female is being offered a new athletic opportunity.
158. Plaintiffs have been harmed and will continue to be harmed by Defendant’s retaliatory actions. Such harm includes reduced benefits, a less quality program, a compromised future for the program, and a hostile work and education environment. The harm also includes the potential loss of athletic participation opportunities and athletic financial assistance. It also includes emotional distress, pain, humiliation anxiety, and other damages to be proven at trial. Accordingly, they are entitled to the relief requested herein.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully pray that this Court: A. Certify the first, second, and third claims as a class action on behalf of all present, prospective, and future female students at Defendant who are harmed by and want to end QU’s sex discrimination in (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes. Plaintiffs further request that these claims be certified on behalf of females who are deterred from enrolling at QU because of the sex discrimination in QU’s athletic program, including its failure to offer the varsity sports in which they want to participate. B. Enter an order declaring that Defendant has engaged in a past and continuing pattern and practice of discrimination against female students on the basis of sex in (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes in violation of Title IX and the regulations promulgated thereunder.
37

Case 3:09-cv-00621-SRU Document 101 Filed 12/09/09 Page 38 of 40
C. Issue an injunction that restrains Defendant from continuing to discriminate against female students on the basis of sex; restrains Defendant from eliminating the women’s varsity volleyball program (or any women’s athletic opportunities); requires Defendant to provide females with an equal opportunity to participate in varsity intercollegiate athletics by sponsoring additional women’s sports based upon the interests and abilities of Defendant’s present, prospective, and future students; requires Defendant to provide female athletes with equal access to athletic financial assistance; and requires Defendant to provide female athletes with equal athletic benefits and resources.
D. Issue an injunction that restrains Defendant from eliminating Coach Sparks’ employment and requires Defendant to continue her employment as head volleyball coach at QU but without the discrimination in the terms, conditions, and resources of that employment.
E. Award the Student Plaintiffs compensatory damages and other monetary relief as permitted by law.
F. Award Coach Sparks back pay and benefits, compensatory damages, and other monetary relief as permitted by law.
G. Award Plaintiffs their reasonable attorneys' fees and expenses. H. Order such other and further relief as the Court deems appropriate.
PLAINTIFFS DEMAND A TRIAL BY JURY OF ALL ISSUES TRIABLE TO A JURY.
38

Case 3:09-cv-00621-SRU Document 101 Filed 12/09/09 Page 39 of 40

Dated: December 9, 2009

Respectfully submitted by:

/s/ Jonathan B. Orleans
Jonathan B. Orleans (ct05440) Alex V. Hernandez (ct08345) Pullman & Comley, LLC 850 Main Street Bridgeport, CT 06601 (203) 330-2129 (phone) (203) 576-8888 (fax) jborleans@pullcom.com
David McGuire ACLU Foundation of Connecticut 2074 Park Street, Suite L Hartford, CT 06106 (860) 523-9146 (phone) (860) 586-8900 (fax) jmatthews@aclu-ct.org
Kristen Galles (pro hac vice) Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 (703) 683-4491 kgalles@comcast.net

Case 3:09-cv-00621-SRU Document 101 Filed 12/09/09 Page 40 of 40
CERTIFICATE OF SERVICE I hereby certify that on December 9, 2009, a copy of the foregoing First Amended Class Action Complaint (with Exhibits 1-5) was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.
_________/s/_____________ Jonathan B. Orleans (ct05440)
Bridgeport/73061.1/JORLEANS/804316v1

Case 3:09-cv-00621-SRU Document 101-2 Filed 12/09/09 Page 1 of 2
EXHIBIT 2

Case 3:09-cv-00621-SRU Document 101-2 Filed 12/09/09 Page O2MoBfA2pproval No. 1870-0503
United States Department of Education, Office for Civil Rights
ASSURANCE OF COMPLIANCE – CIVIL RIGHTS CERTIFICATE
TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, TITLE IX OF THE EDUCATION AMENDMENTS OF 1972, SECTION 504 OF THE REHABILITATION ACT OF 1973, THE AGE DISCRIMINATION ACT OF 1975, AND
THE BOY SCOUTS OF AMERICA EQUAL ACCESS ACT OF 2001
The applicant or recipient (hereinafter applicant) provides this assurance in consideration of and for the purpose of obtaining Federal grants, loans and contracts (except contracts of insurance or guaranty), property, discounts, other Federal financial assistance from the United States Department of Education (Department), or funds made available through the Department. This assurance applies to all Federal financial assistance from or funds made available through the Department, including any that an applicant may seek in the future.
The applicant assures that it will comply with:
1. Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d et seq., which prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving Federal financial assistance.
2. Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. 1681 et seq., which prohibits discrimination on the basis of sex in any education program or activity receiving Federal financial assistance.
3. Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, which prohibits discrimination on the basis of handicap in any program or activity receiving Federal financial assistance.
4. The Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 et seq., which prohibits discrimination on the basis of age in any program or activity receiving Federal financial assistance.
5. If applicable, the Boy Scouts of America Equal Access Act of 2001, 20 U.S.C. 7905, which requires equal access for the Boy Scouts of America and other designated youth groups to meet at public schools. This law applies to any public elementary school, public secondary school, local educational agency, or State educational agency that has a designated open forum or limited public forum and that receives funds made available through the Department.
6. All regulations, guidelines, and standards lawfully adopted under the above statutes by the Department.
The applicant agrees that compliance with this Assurance constitutes a condition of continued receipt of Federal financial assistance from or funds made available through the Department, and that it is binding upon the applicant, its successors, transferees, and assignees for the period during which this assistance or these funds are provided. The applicant further assures that all contractors, subcontractors, subgrantees, or others with whom it arranges to provide services or benefits are not discriminating in violation of the above statutes, regulations, guidelines, and standards. In the event of failure to comply, the applicant understands that this assistance or these funds can be terminated and the applicant denied the right to receive further assistance or funds. The applicant also understands that the Department may, at its discretion, seek a court order requiring compliance with the terms of the Assurance or seek other appropriate judicial relief.
The person or persons whose signature(s) appear(s) below is/are authorized to commit the applicant to the above provisions.

Date
PLEASE RETURN TO:
U.S. Department of Education Office for Civil Rights 400 Maryland Avenue, SW Washington, DC 20202-1100

Authorized Official(s) Title of Authorized Official(s) Name of Institution or Agency Street City, State, Zip Code

Paperwork Burden Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless such collection displays a valid OMB control number. The valid OMB control number for this information collection is 1870-0503. The time required to complete this information collection is estimated to average 20 minutes per response, including the time to review instructions and complete the information collection. If you have any comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of Education, Washington, D.C. 20202-4651. If you have comments or concerns regarding the status of your individual submission of this form, write directly to: U.S. Department of Education, Office for Civil Rights, 400 Maryland Avenue, SW, Washington, DC 20202-1100.

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 1 of 18
EXHIBIT4

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 2 of 18

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE FOR CrviL RIGHTS

.Jt.N I 6 !29S

THE ASSISTi\NT SECRETARY

Dear Colleague:
It is my pleasure to send you the enclosed "Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test" (the Clarification).·
As you know, the Office for Civil Rights (OCR). enforces Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs and activities. The regulation implementing Title IX and the Department's Intercollegiate Athletics Policy Interpretation published in 1979-both of which followed publication for notice and the receipt, review· and consideratio~--of extensive comments--specifically address intercollegiate athletics. Since becoming Assistant Secretary, I have recognized the need to provide additional clarification regarding what is commonly referred to as the "threepart test, " a test used to determine whether students of both sexe··s are provided nondiscriminatory opportunities to participate in athler.~cs. The three-part test is described in the Dep~rtment's 1979 Policy Interpretation.
Accordingly, on September 20, 1995, OCR circulated to over 4500 interested parties a draft of the proposed Clarification, soliciting comments about whether the document provided sufficient clarity to assist institutions in their efforts to comply with Title IX. ·As indicated when circulating the draft of the Clarification, the objective of the Clarification is to respond to requests for specific guidance about the existing standards that have guided the enforcement of Title IX in the area of intercollegiate athletics. Further, the Clarification is limited to an elaboration of the "three-part test." This test, which has generated the majority of the questions that have been raised about Title IX compliance, is a portion of a larger analytical framework reflected in the 1979 Policy Interpretation.
OCR appreciates the efforts of the more than 200 individuals who commented on the draft of the Clarification. In addition to providing specific comments regarding clarity, some parties suggested that the Clarification did not · go far enough in protecting women's sports. Others, by contrast, suggested that the Clarification, or the Policy Interpretation itself, provided more orotection for women's snorts than intended by Title IX. However, lt would not be appropriate to revise the 1979 Policy Interpretation, and adherence to its provisions shaped OCR's consideration of these comments. The Policy Interpretation has

400 !Y!ARYLANO AVE•• S.W. WASHINGTON. D.C. 20202·1100

Attachment F

~.

1 of 17

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 3 of 18
Page 2 - Dear Colleague
guided OCR's enforcement in the area of athletics for over fifteen years, enjoying the bipartisan support of Congress. The Policy Interpreeation has also enjoyed the support of every court that has addressed issues of Title IX athletics. As one recent court decision recognized, the 11 three-part test 11 draws its 11 essence" from the Title IX statute.
The draft has been revised to incorporate suggestions that dcR
received regarding how to make the document more useful and clearer. For instance, the Clarification now has additional examples to illustrate how to meet part one of the three-part test and makes clear that the term "developing interests" under part two of the test includes interests that already exist at the institution. The document also clarifies that an institution can choose which part of the test it plans to meet. In addition, it further clarifies how Title IX requires OCR to count participation opportunities and why Title IX does not require an institution, under part three of the test, to accommodate the interests and abilities of potential students.
OCR also received requests for clarification that relate primarily to fact- or institution-specific situations that only apply to a small number of athletes or institutions. These comments are more appropriately handled on an·individual basis and, accordingly, OCR will follow-up on these comments and questions in the context of OCR's ongoing technical assi~tance efforts.
It is important to outline several points about the final document.
The Clarification confirms that institutions need to comply only with any one part of the three-part test in order to provide nondiscriminatory participation opportunities for individuals of both sexes. The first part of the test--substantial proportionality--focuses on the participation rates of men and women at an institution and affords an institution a "safe harborQ for establishing that it provides nondiscriminatory participation opportunities. An institution that does not provide substantially proportional participation opportunities for men and women may comply with Title IX by satisfying either part two or part_ three of the test. The second part--history and continuing practice--is an examination of an institution's good faith expansion of athletic opportunities through its response to developing interests of the underreoresented sex at that institution: The third part--fully and effectively accommodating interests and abilities of the underrepresented sex--centers on the inquiry of whether there are concrete and viable interests among the-- underrepresented -s-ex that· should be accommodated by an institution.
In addition, the Clarification does not provide strict numerical formulas or 11 cookie cutter 11 answers to the issues that are inherently case- and fact-specific. Such an effort not only wo~ld belie the meaning of Title IX, but would at the same time deprlve
Attachment F 2 of 17

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 4 of 18

Page 3 Dear Colleague

institutions of the flexibility to which they are entitled when deciding how best to comply with the law.

Several parties who provided comments expressed opposition to the
three-part test. The crux of the arguments made on behalf of those oop_osed to the three-cart test is that the test does not reallv pr;vide three different ways to comply. Opponents of the test assert, therefore, that the test improperly establishes arbitr~ry quotas. Similarly, they also argue that the three-part test runs counter to the intent of Title IX because it measures gender discrimination by underrepresentation and requires the full accommodation of only one sex. However, this understanding of Title IX and the three-part test is wrong.

First, it is clear from the Clarification that there are three

different avenues of compliance. Institutions have flexibility in

providing nondiscriminatory participation opportunities to their

students, and OCR does not require quotas. For example, l~ an

institution chooses to and does comply with part three of the test,

OCR will not require it to provide· substantially proportionate

participation opportunities to, or demonstrate a history and

contin'uing practice of program expansion that is responsive to the

developing interests of, the underrepresented sex. In fact, if an

institution believes that its female students are less interested

and able to play intercollegiate sports, that institution may

continue tJ provide more athletic opportunities to men than to

v;omen, or even to acid opportuniti•:s for men, as long as the

recipient can show th~t its female students are not being denied

opportunities, i.e., that women's interests and abilities are fully

and effectively accommodated. The fact that each part of the

three-part test considers· participation rates does not mean, as

some opponents of the test have suggested, that the three parts do

not provide different ways to comply with Title IX.

·

Second, it is appropriate for parts two and three of the test to focus only on the underrepresented sex. Indeed, such a focus is required because Title IX, by definition, addresses discrimination. Notably, Title IX's athletic provisions are unique in permitting institutions--notwithstanding the long history of discrimination based on sex in athletics programs--to establish separate athletic programs on the basis of sex, thus allowing institutions to determine the number of athletic opportunities that are available to students of each sex. (By contrast,· Title VI of the Civil Rights Act of 1964 forbids institutions from providing separate athletic programs on the basis of race or national origin.)

OCR focuses on the interests and abilities of the underrepresented sex only if the institution provides proportionately fewer athletic oooortunities to members of one sex and has failed to make a good f~lth effort to expand its program for the underrepresented sex. Thus, the Policy Interpretation requires the full accommodation.of the underrepresented sex only to the extent necessary to provlde

Attachment F 3 of 17

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 5 of 18

Page 4 - Dear Colleague

equal athletic opport:unity, i.e. , or:ly where an institution has failed to respond to the interests and abilities of the underrepresented sex when it allocated a disproportionately large number of opportunities for athletes of the other sex.

What is clear then- -because, for example, part three of the three-part test permits evidence that underrepresentation is caused not by discrimination but by lack of interest-- is bhat: underrepresentation alone is not the measure of discrimination. Substantial proportionality merely provides institutions with a safe harbor. Even if this were not the case and proportional opportunities were the only test, the "quota" criticism would be misplaced. Quotas are impermissible where opportunities are required to be created without regard to sex. However, schools are permitted to create athletic participation opportunities based on sex. Where they do so unequally, that is a legitimate measure of unequal opportunity under Title IX. OCR has chosen to make substantial proportionality only one of three alternative measures.

Several parties also suggested that, in determining the number of participation opportunities offered by an institution, OCR count unfilled slots, i.e., those positions on a team that an institution ~laims the team can support but which are not filled by actual athletes. OCR must, however, count actual athletes because participation opportunities must be real, not illusory. Moreover, this makes sense because, under other parts of the Policy Interpretation, OCR considers the quality and kind of other benefits and opportuuities offered to mal<:! and female athletes in determining overall whether an institution provides equal athletic opportunity. In this context, OCR must consider actual benefits provided to real students.

OCR also received comments that indicate that there is still

confusion about the elimination and capping of men's teams in the

context of Title IX compliance.

The rules here are

straightforward. An institution can choose to eliminate or cap

teams as a way of complying with part one of the three-part test.

However, nothing in the Clarification requires that an institution

cap or eliminate participation opportunities for men. In fact,

cutting or capping men's teams will not help an institution comply

with part two or part three of the test because these tests measure

an institution's positive, ongoing response to the interests and

abilities of the underrepresented sex.· Ultimately, Title IX

provides institutions with flexibility and .choice regarding how

they will provide nondiscriminatory participation opportunities.

Finally, several parties suggested that OCR provide more

information regarding the specific elements of an aoorooriate

assessment of student_ interest and ability.

The Policy

Interpretation is intended to give institutions flexibility to

determine interests and abilities consistent with the unique

circumstances and needs of an institution. We recognize, however,

Attachment F 4 of 17

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 6 of 18

Page 5 - Dear Colleague

that it might be useful to share ldeas on good assessment strategies. Accordingly, OCR will work to identify, and encourage institutions to share, good strategies that institutions have developed, as well as to facilitate discussions among institutions regarding potential assessment tecb~iques.

OCR recognizes that the question of how to comply with Title IX and

to provide equal athletic opportunities for all students is' a

significant challenge that many institutions face today, especially

in the face of increasing budget constraints. It .has been OCR's

experience, however, that institutions committed to maintaining

their men's program have been able to do so--and comply with Title

,I

IX--notwithstanding limited athletic budgets. In many cases, OCR

and these institutions have worked together to find creative

solutions that ensured equal opportunities in intercollegiate

athletics.

OCR is similarly prepared to join with other

institutions in assisting them to address their own situations.

OCR is committed to continuing to work in partnership with colleges and universities-to ensure that the promise of Title IX becomes a reality for all students. Thank you for your continuing interest in this subject.

Enclosure

Sincerely,
v~ 1/.C~
Norma V. Cantu Assistant Secretary
for Civil Rights

Attachment F 5 of 17

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 7 of 18

CLARIFICATION OF INTERCOLLEGIATE ATHLETICS POLICY GUIDANCE: TEE THREE-PART TEST

The Office for Civil Rights (OCR) .enforces Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et secr. (Title IX), which prohibits discrit!lination on the basis of sex in education
programs and activities by recipients of federal funds. The
regulation implementing Title IX, at 34 C.F.R. Part 106, effective July 2l, 1975, contains specific provisions governing athle'tic programs, at 34: C.F_R. § 106.41, and the awarding of athletic scholarships, at 34 C-F-R. § 106.37(c). Further clarification of the Title IX regulatory requirements is provided by the Intercollegiate Athletics Policy Interpretation, issued December 11, ~979 (44 Fed. Rea. 71413 et seq. (1979)) . 1

The Title IX regulation provides that if an institution sponsors an athletic program it must provide equal athletic opportunities for members of both sexes. Among other factors, the -regulation requires that an institution must effectively accommodate the athletic interests and abilities of students of both sexes to the extent necessary to provide equal athletic opportunity.

The 1979 Policy Interpretation provides that as part of this determination OC.."R. will apply the following three-part test to assess whether an institution is providing nondiscriminatory participation opportunities for individuals of both sexes:

.... •

-<- ~.

1. Whether intercollegiate level participation opportunities for

male and female students are provided in numbers substantially

proportionate to their respective enrollmentsi or

2. Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a hi~tory and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or

3. Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

44 Fed. Reg. at 71418.

1 The Policy Interpretation is designed for intercollegiate athletics. However, its _general principles, and those of this Clarification, often will apply to elementary and secondary interscholastic athletic programs, which are also covered by the
regulation. See 44 Fed. Rea. 71413.

Attachment F 6 of 17

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 8 of 18

Thus, the three-part test furnishes an institution with three · individual avenues to choose from when determining how it will provide individuals of each sex with nondiscriminatory opportunities to participate in intercollegiate athletics. If-an institution has met any part of the three-part test, OCR r,.;ill determine that the insti~ution is meeting this requirement.

It is important to note that under the Policy Interpretation the

requirement

to

provide

nondiscriminatory

participati~n

opportunities is only one of many factors that OCR examines to

determine if an institution is in compliance with the athletics

provision of Title IX. 0~~ also considers the quality of

comnetition offered··to members of both sexes in order to determine

whether an institution effectively accommodates the interests and

abilities of its students.

In addition, when an "overall determination of compliance" is made

by OCR, 44 Fed. Reg. 71417, 71.418, OCR examines the institution's

program as a whole.

Thus, OCR considers the effective

accommodation of interests and abilities in conjunction with

equivalence in the availability, quality and kinds of other

athletic benefits and opportunities provided male and female

athlete$ to determine whether an institution provides equal

athletic opportunity as required by Title IX. These other benefits

include coaching, equipment~. practice and competitive facilities,=

recruitment, scheduling of games, and publicity, among others. An

institution's failure to provide nondiscriminatory participation

opportunities usually· amounts to a denial of equal athletic

opportunity because these opportunities provide access to all other

athletic benefits, treatment, and services.

This Clarification provides specific factors that guide an analysis of each part of the three-part test. In addition, it provides examples to demonstrate/ in concrete terms, how these factors will be considered. These examples are intended to be illustrative, and the conclusions drawn in each example are based solely on the facts. included in the example.

THREE-PART TEST.

Part One: Are Participation Opportunities

Substantially Proportionate to Enrol~ent?

Under part one of. the three-part test (part one) I where an institution provides intercollegiate l.evel athletic participation opportunities for male and female students -in numbers substantially proportionate to their respective full-time undergraduate enrollments, OCR will find that the institution is providing nondiscriminatory participation opportunities for ·individuals of
both sexes.

OCR 1 s analysis begins with a determination... of the number of participation opportunities afforded to male and female athletes in

2

Attachment F 7 of 17

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 9 of 18
the intercollegiate athletic program. The Policy Interpretation defines participants as those athletes:
a. Who are receiving the institutionally-sponsored support normally provided to athletes competing at. the L~stitution involved, e.g., coaching, equipment, medical and training.Toom services, on a regular basis during a sport's season; and
b. Who are participating in organized practice sessions•and other team meetings and activities on a regular basis during a sport's seasoni and
c. Who are listed on the eligibility or squad lists maintained for each sport, or
d. Who, because of injury, cannot meet a, b, or c above but continue to receive financial aid on the basis of athletic ability.
44 Fed. Reg. at 71415.
OCR uses this definition of participant to determine the number df participation opportunities provided by an institution for purposes of the three-part test.
Under this definition, OCR considers a sport's season to commence on the date of a team's first intercollegiate competiti7e event and to conclude on· t.he cate: of the team's fin<J.l intercollegiate cornpeti tive event. I.=. a general rule, all athletes who are listed on a team's squad or eligibility list and are on the team as of the ·team's first competitive event are counted as participants by OCR. In determining the number of participation opportunities for the purposes of the interests and abilities analysis, an athlete who participates in more than one sport will be counted as a participant in each sport in which he or she participates.
In determining participation opportunities, OCR includes, among others, those athletes who do not receive scholarships (e.g., walkons), those athletes who compete on teams sponsored by the institution even though the team may be required to raise some or all of its,...operating funds, and those athletes who practice but may not compete:'·· OCR's investigations reveal that these athletes receive numerous benefits and services, such as training and practice time. coaching, tutoring services·, locker room facilities, and equipment, as well as impo"rtant non-tangible benefits derived from being a member of an intercollegiate athletic team. Because these are significant benefits, and because receipt·· of these benefits does not depend on their cost to the institution or whether the athlete competes, it is necessary to count all athlet7s who receive such benefits when determining the number of athle.t~c opportunities provided to men and women.
3
Attachment F 8 of 17

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 10 of 18

O~~'s analysis next determines whether athletic opportunities are substantially proportionate. The Title IX regulation allows institutions to operate separate· athletic programs for men and women. Accordingly, the regulation allows an institution to control the respective number of participation opportunities offered to men and women. Thus, it could be argued that to satisfy part one there should be no difference between the participation rate in an institution's intercollegiate athletic program and its full-time undergraduate student enrollment.

However, because i~ some circumstances it may be unreasonable to

expect an institution to achieve exact proportionality--for

instance, because of natural fluctuations in enrollment and

'

participation-rates or because it would be unreasonable to expect

it

an institution to add athletic opportunities in light of the small

number of students that would have to be accommodated to achieve

exact proportionality--the Policy Interpretation examines whether

participation opportunities are "substantially11 proportionate to

enrollment rates. Because this determination depends on the

institution's specific circumstances and the size of its athletic

program, OCR makes this determination· on a case-by-case basis,

rather than through use of a statistical test.

As an: example of a determination under part_ one:

If an

·institution/s enrollment is 52 percent male and 48 percent female

and 52 percent of the participants in the athletic program are mal~

and 48 percent female, then the institution would clearly satisfy

part one. However, OCR rec_ognizes that natural fluctuations in an

institution's enrollment and/or participation rates may affect the

percentages in a subse~lent year.

Far instance, if the

institution's admissions the fallowing year resulted in an

enrollment rate of 51 percent males and 49 percent females, while

the participation rates of males and females in the athletic

program remained constant, the institution would continue to

satisfy part one because it would be unreasonable to expect the

institution to fine tune its program in response to this change in

enrollment.

As another example, over the past five years an institution has had a consistent enrollment rate for women of 50 percent. During this time period, it has been expanding its program for women in order to reach proportionality. In the year that t.he institution reaches its- goal-::-.:,j:,.e., 50 percent of the participants in its athletic program are female--its enrollment rate for women increases to 52 percent. Under these circumstances, the institution would satisfy part one.

OCR would ·also consider· opportunities · to ·be substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team, i.e., a team for_which there is a sufficient number of interested and able students and enough available

4

Attachment F
9 of 17

~

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 11 of 18

.''

competition to sustain an intercollegiate team. As a frame of refe=ence in assessing this situation, OCR may consider the average size of teams offered for the underrepresented sex, a number which
wou_1 d vary b y l.nstl.tUtl.on.

For instance, Institution A is a university with a total of 600

athletes____ While women' make up 52 percent. of the university's

enrollment, they only represent 47 percent of its athletes. If the

university provided women with 52 percent of athletic

opportunities, approximately 62 additional women would be able'to

participate.

Because this is a significant number of

unaccomrnodated women, it is likely that a viable sport could be

added. If so, Institution A has not met part une.

(I

As another example, at Institution B women also make up 52 percent

of the university's enrollment. and represent 47 percent of

Institution B's athletes. Institution B's athletic program

consists of only 60 participants. If the University provided women

with 52 percent of athletic opportunities, ·approximately 6

additional women would be able to participate.

Since 6

participants are unlikely to support a viable team, Institution B

would meet part one.

THREE-PART TEST -- Part Two: Is there a History and Continuing Practice of Program Expansion for the Underrepresented Sex?
Under part two of the three-part test (part two)-·, an institution can show tllac it ha.s a history a.nd cont:inuing practice of program expansion •,.;hich is demonstrably l·esponsive to the developing interests and abilities of the underrepresented sex. In effect, part two looks at an institution's past and continuing remedial efforts to provide nondiscriminatory participation opportunities through program expansion. 2
;._
OCR will review the entire history of the athletic program, focusing on the participation opportunities provided for the underrepresented sex. First, OCR will assess whether past actions of the institution have expanded participation opportunities for the underrepresented sex in a manner that was demonstrably responsive to their developing interests and abilities. Developing

2 Part two focuses on whether an institution has expanded the

number of intercollegiate participation opportunities provided to

the underrepresented sex.

Improvements in the quality of

competition,· and of other athl·etic benef±ts·,··-provided- t·o -women

athletes, while not considered under the three-part test, ·can be

considered by OCR in making an overall determination of compliance

with the athletics provision of Title IX.

5

Attachment F 10 of 17
'·

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 12 of 18

·~

~

' '

interests include interests that already exis~ ac the institution. 3 There are no fixed interJals of time within which an institution must have added participation opportunities. Neither is a particular number of sports dispositive. Rather, the focus is on whether the program expansion was responsive to developing interests and abilities of the underrepresented sex. In addition, the institution must demonstrate a continuing (i.e., present) practice of program expansion as warranted by developing interests and abilities.

OCR will consider the following factors, among others, as evidence that may indicate a historv of orooram exoansion that is demonstrabli responsive to the developing·interests and abilities of the underrepresented sex:

•

an institution's record of adding intercollegiate teams, or

upgrading teams to intercollegiate status, for the

underrepresented sex;

•

an institution's record of increasing the numbers of

participants in intercollegiate athletics who are members of

-. · the underrepresented sex; and~-.-~-

·:4

.•.

•

an institution's affirmative responses to requests by studen~s

or others for addition or elevation of sports.

OCR will consider the following factors, among others, as evidence that may indicate a -sontinuina. ~ractice of program exoansion that is demonstrably responsi'.ie to the .developing interests and abilities of the underrepresented sex:

•

an institution's current implementation of a nondiscriminatory

policy or procedure far requesting the addition of sports

(including the elevation of club or intramural teams) and the

effective communication of the policy or procedure to

students; and

•

an institution's current implementation of a plan of program

expansion that is responsive to developing interests and

abilities.

OCR would also find persuasive an institution's efforts to monitor developing interests and abilities of the underrepresented sex, for

3 However, under this part of the test an institution is not required, as it is under part three, to accommodate all interests and abilities of the underrepresented-sex. Moreover,--under part two an institution has flexibility in choosing which teams it adds for the underrepresented sex, as long as it can show overall a history and continuing pr.a.c.tice .of program expansion for members of that sex.
6

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Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 13 of 18

example, by conducting periodic nondiscriminatory assessments of developing ·interests and abilities and taking timely actions in response to the results.

In the event that an institution eliminated any team for the

underrepresented sex, , OCR would evaluate the circumstances

surrounding this action~n assessing whether the institution could

satisfy part two of the test. However, OCR will not find a history

and continuing practice of program expansion where an instituGion

increases the proportional participation opportunities for the

underrepresented sex by reducing opportunities for the

overrepresented sex alone or by reducing participation

opportunities for the overrepresented sex to a proportionately

;/

greater degree than for the underrepresented sex. This is because

part two considers an institution's good faith remedial efforts

through actual program expansion. It is only necessary to examine

part two if one sex is overrepresented in the athletic program.

Cuts in the program for the underrepresented sex, even wh_en coupled

with cuts in the program for the overrepresented sex, cannot be

considered remedial because they burden members of the sex already

disadvantaged by th~ present program. However, an institution that

has eliminated some part'icipation opportunities for the-

underrepresented sex can still meet part two if, overall, it c~n

show a history and continuing practice of program expansion for

that sex.

.,

In addition, OCR will not find that an institution satisfies part twa· where it established teams for the underrepresented sex only at· the initiation of its program for the underrepresented sex or where it merely promises to expand its program for the underrepresented sex at some time in the future.

The following examples are intended to illustrate the principles discussed above.

At the inception of its women's program in the mid-l970s, Institution C established seven teams for women. In l984 it added
a women's varsity team at the request of students and coaches. In
l990 it upgraded a women's club sport to varsity team status based on a request by the club members and w~ NCAA survey that showed a
significant increase in girls high school participation in that
sport. Institution C is currently implementing a plan to add a varsity women's team in the spring of 1996 that has been identified
by a regional study as an emerging women's sport in the region. The addition of these teams resulted in an increased percentage of women participating in varsity athletics at the institution. Based on these facts, OCR would find Institution C in compliance with part two because it has a· ·history o_f program ·-expansion·· and: is
continuing to expand its program for women in response to their
developing interests and abilities.

By l980 I Institution D established seven teams for women.

7

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Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 14 of 18

Institution D added a women's varsity team in 1983 based on the

requests of students and coaches. In 1991 it added a women's

varsity team after an NCAA surv·ey showed a significant increase in

girls' high school participation in that sport.

In 1993

Institution D eliminated a viable women's team and a viable men's

team in an effort to reduce its athletic budget. It has taken no

action relating to the underrepresented sex since 1993. Based on

these facts, OCR would not find Institution D in compliance with

part two. Institution D can..Tl.ot show a co:rtinuing practice of

program expansion that is responsive to the developing interests

and abilities of the underrepresented sex where its only action

since 1.991 with reg.ard to the underrepresented sex was to eliminate

a team for which there was interest, ability and available

competition.

In the mid-1970s, Institution E established five teams for women. In 1979 it added a women's varsity team. In 1984 it upgraded a women's club sport with ·cwenty-five participants to varsity team status. At that time it eliminated a women's varsity team that had eight members. In 1987 and 1989 Institution E added women's varsity teams that were identified by a significant number of its enLoll·ed·-a:nd-·incoming female students when· surveyed regarding their athletic interests and abilities. During this time it also increas·ed the size .of an existing women's team to provide opportunities for women who expressed interest in playing that sport. Within the past year, it added a women's varsity team based on a nationwide survey of the most popular girls high school teams. Based on the addition of these team~, the percentage of women participating in varsity athletics at the institution has increased. Based on these facts, OCR would find Institution E in compliance with part two because ·it has a history of program expansion and the elimination of the team in 1984 took place within the context of continuing program expansion for the underrepresented sex that is responsive to their developing interests.

Institution F started its women's program in the early 1970s with four teams. It did not add to its women's program until 1987 when, based on requests of students and coaches, it upgraded a women's club sport to varsity team status and expanded the size of several existing women's teams to accommodate significant expressed
interest py, students. In 1.990 it surveyed its enrolled and
incoming female students; based on that survey and a survey of the most popular sports played by women in the region, Institution F agreed to add three new women's teams by ::1:997. It added a women's
team in 1991. and 1994. Institution F is implementing a plan to add a women's team by the spring of 1997. Based on these facts, OCR would find Institution F in compliance with part two.-· ·Institution F' s program history since 1987 shows that it is committed to program expansion for the underrepresented sex and it is continuing to expand its women's program in light of women's developing
interests and abilities.

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Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 15 of 18

THREE-PART TEST

Part Three: Is the Institution Fully and

Effectively Accommodating the Interests and Abilities of the

Underrepresented Sex?

Under part three of the three-part test (part three) OCR determines whether an institution is fully and effectively accorrrrnodating the
interests and abilities of its students who are members of the underrepresented sex--including students who are admitted to the insticution though not yet e.nrolled. Title IX provides that a recipient must provide equal athletic opportunity to its students. Accordingly, the Policy Interpretation does not require an institution to accorrrrnodate the interests and abilities of potential students. 4

While disproportionately high athletic participation rates by an

institution's students of the overrepresented sex (as compared to

their enrollment rates) may indicate that an institution is not

providing equal athletic opportunities to its students of the

underrepresented sex, an institution can satisfy part three where

there is evidence that the imbalance does not reflect

discrimination·, i.e., where it·. can be demonstrated that,

notwithstanding disproportionately low participation rates by t~e

institution's students of the underrepresented sex, the interests

and abilities of these students are, in fact, being fully and

'effectively accommodated.

~

In making-this determination, OCR will consider whether the'e is (a) unmet interest in a particular sport; (b) sufficient ability to sustain a team in the sport; and (c~ a.reasonable expectation of competition for the team. If all three conditions are present OCR will find that an institution has not fully and effectively accommodated the interests and abilities of the underrepresented sex.

If an institution has recently eliminated a viable team from the intercollegiate program, OCR will find that there is sufficient
interest, ability, and available competition to sustain an
intercollegiate team in that sport unless an institution can provide strong evidence that interest, ability, or available
competition no longer exists.
-~~~ .·. . . a) · Is i_.tl::{ere sufficient unmet interest to support an
·. interco1~egiate team? '-J.·=:~•-.;

" However, OCR does examine an institution's recruitment · pra:ctices under another part of the Policy i:nterpretation. ·Bee 44
Fed. Reg. 71417. Accordingly, where an institution recruits potential student athletes for its men's teams, it must ensure that women's teams are provided with substantially equal opportunities
to recruit potential student athletes.

9

Attachment F 14 of 17
~.

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 16 of 18

OCR will determine whether there is sufficient unmet interest among the institution's students who are members of the underrepresented sex to sustain an intercollegiate team. OCR will look for.interest by the underrepresented sex as expressed through the following indicators, among others:

•

requests by students and admit.ted students that a particular

sport be added;

•

requests that an existing club sport be elevated "to intercollegiate team status;

...

i

•

participation in particular club or intramural sports;

1
J
ll

!J

•

interviews with students, admitted students, coaches, administrators and others regarding interest in particular

·1
,''

sports;

•

results of questionnaires of students and admitted-students

regarding interests in particular sports; and

•

participation in particular interscholastic sports by admitte,d

st.udents.

·'

In addition, OCR will look at participation rates in sports in high

schools, amateur athletic· associations, and community sports leagues that operate in areas from which the institution draws its

·.

students in order to ascertain likely interest and ability of its

students and· admitted students in particular sport (s). 5 For

example, where OCR' S· imrestigation finds that a substantial number

of high schools from the relevant region offer a particular sport

which the institution does nat offer for the underrepresented sex, OCR will ask- the institution to provide a basis far any assertion that its students and admitted students are not interested in

i•I.

playing that sport. OCR may also interv-iew students, admitted

students, coaches, and others regarding interest in that sport.

·An institution may evaluate its athletic program to assess the

athletic interest of its students of the underrepresented sex using

nondiscriminatory methods of its choosing.

Accordingly,

institutions . have .flexibility in choosing a nondiscriminatory

method af0determining athletic interests and abilities provided

they meet :certain. requirements. See 44 Fed. Reg. at 71417. These assessmen~ may use straightforward and inexpensive techniques,

such as a- student questionnaire or an open forum, to identify

.

l

s- While these indications· of interest· may be·he~pfui ·to OCR in ascertaining likely interest on campus, ·particularly in the absence of mare direct indicia, an institution is expected to meet the actual -interests and abilities of its students and admitted students.

10

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Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 17 of 18

students' interests and abilities. Thus, while OCR expects that an institution's assessment should reach a wide audience of students and should be open-ended regarding the sports students ca~ express interest in, OCR does not require elaborate scientific validation of assessments.

An institution's evaluation of interest should be done periodically so that the institution can identify in a timely and resoonsive rnan.~er any developing interests and abilities of the
underrepresented sex- Tne evaluation should also take into account sports played in the high schools and communities from which the
institution draws its students both as an indication of possible
interest on campus and to permit the institution to plan to meet the interests-of admitted students of the underrepresented sex.

b) Is there sufficient ability to sustain an intercollegiate team?

Second, OC.~ will determine whether there is sufficient ability among interested students of the underrepresented sex to sustain an intercollegiate team. OCR will examine indications of ability such as:

•

the athletic experience and accomplishments--in

interscholastic, club or intramural competition--of students

and admitted students interested in playing the sport;

~

•

opinions of coaches, administrators, and athletes at the

institution regarding whether interested students and admitted

students·-have the potential to sLLStain a varsity team; and

•

if the team has previously competed at the club or intramural level, whether the competitive experience of the team

indicates that it has the potential to sustain an

intercollegiate team.

Neither a poor competitive record nor the inability of interested students or admitted students to play at the same level of competition engaged in by the institution's other athletes is conclusive evidence of lack of ability. It is ·sufficient that
interested students and admitted students have the potential to sustain an intercollegiate team.

c).- Is there a reasonable expectation of competition for the team?
·;....:··
Finally, dCR~determines whether there is a reasonable expectation
of intercollegiate competition for a particular sport in the institution's normal competitive region. In evaluating available competition, OCR will look at available competitive opportunities in the geographic area in which the institution's athletes
primarily compete, including:

•

competitive opportunities offered by other schools against

11

Attachment F 16 of 17

Case 3:09-cv-00621-SRU Document 101-3 Filed 12/09/09 Page 18 of 18

which the institution competes; and

•

competitive opportunities offered by other schools in the

institution's geograpn~c area, including those offered by

schools against which the institution does not now compete.

Under the Policy Interpretation, the institution may also be

required to actively en'courage the development of intercollegiate

competition for a sport for memb~rs of the underrepresented sex

when overall athletic opportunities within its competitive region

have been historically limited for members of that sex.

. '·l

J·

CONCLUSION

This discussion clarifies that institutions have three distinct

ways to provide individuals of each sex with nondiscriminatory

participation · opportunities.

The three-part test gives

institutions flexibility and control over their athletics programs.

For instance, the test allows institutions to respond to.different

levels of interest by its male and female students. Moreover,

I:: nothing in the three-part test requires an institution to eliminate
participation opportunities for men.:

At the same time, this flexibility must be used by instituti~s . consistent with Title IX's requirement that they not discrirnin~e
on the basis of sex. OCR recognizes that institutions fa,.Ge challenges in providing nondiscriminatory participation opportunities for their students and will · continue to assist institutions in finding ways to meet chese challenges.

' '~-

: . . ··}·.-: ;•~···
,;~;~W···· ."."":.
-~t-:~/·.:; . . . ~·-

12
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Case 3:09-cv-00621-SRU Document 101-4 Filed 12/09/09 Page 1 of 4
EXHIBIT 5

Dear Colleague Letter: Bowling Green State University -- Printable

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Dear Colleague Letter: Bowling Green State University

OFFICE FOR CIVIL RIGHTS THE ASSISTANT SECRETARY
July 23, 1998
Dear Colleague:
The Office for Civil Rights (OCR) of the U.S. Department of Education is currently investigating twenty-five complaints which allege discrimination in the awarding of athletic scholarships in intercollegiate athletics programs. Your institution is among these complaints.
OCR is investigating these complaints under the jurisdiction of Title IX of the Education Amendments of 1972 (Title IX) which prohibits discrimination on the basis of sex in any education program or activity, including the athletic program, which receives Federal funds. Regarding the award of intercollegiate athletics scholarships, Title IX requires that such scholarships be made available to the separate men's and women's athletic programs in a manner which is "substantially proportionate" to the participation rates of male and female athletes.
In response to a specific request for guidance on this matter, our office recently issued a written response to the General Counsel of Bowling Green State University. I am forwarding a copy of this letter for your reference. This letter clarifies the coverage of Title IX and its regulations as they apply to both academic and athletic programs and discusses specifically the 1979 Intercollegiate Athletics Policy Interpretation of the "substantially proportionate" provision of Title IX as it relates to the funding of athletic scholarships for men's and women's intercollegiate athletics programs.
If OCR staff may be of further assistance, please do not hesitate to contact Dr. Mary Frances O'Shea, national Coordinator for Title IX Athletics, at (312)886-8434, or your local OCR office. We look forward to working cooperatively with you. Sincerely, /s/ Norma V. Cantú Assistant Secretary Office for Civil Rights Enclosure
UNITED STATES DEPARTMENT OF EDUCATION WASHINGTON, D.C. 20202July 23, 1998
Ms. Nancy S. Footer General Counsel Bowling Green State University 308 McFall Center Bowling Green, Ohio 43403-0010
Dear Ms. Footer:
This is in response to your letter requesting guidance in meeting the requirements of Title IX, specifically as it relates to the equitable apportionment of athletic financial aid. Please accept my apology for the delay in responding. As you know, the Office for Civil Rights (OCR) enforces Title IX of the Education Amendments of 1972, 20 U.S.C. ? 1682, which prohibits discrimination on the basis of sex in education programs and activities.
The regulation implementing Title IX and the Department's Intercollegiate Athletics Policy Interpretation published in 1979 -- both of which followed publication for notice and the receipt, review, and consideration of extensive comments -- specifically address intercollegiate athletics. You have asked us to provide clarification regarding how educational institutions can provide intercollegiate athletes with nondiscriminatory opportunities to receive athletic financial aid. Under the Policy Interpretation, the equitable apportioning of a college's intercollegiate athletics scholarship fund for the separate budgets of its men's and women's programs -- which Title IX permits to be segregated -- requires that the total amounts of scholarship aid made available to the two budgets are "substantially proportionate" to the participation rates of male and female athletes. 44 Fed. Reg. 71413, 71415 (1979)).
In responding, I wish (1) to clarify the coverage of Title IX and its regulations as they apply to both academic and athletic programs, and (2) to provide specific guidance about the existing standards that have guided the enforcement of Title IX in the area of athletic financial aid, particularly the Policy Interpretation's "substantially proportionate" provision as it relates to a college's funding of the athletic scholarships budgets for its men's and women's teams. At the outset, I want to clarify that, wholly apart from any obligation with respect to scholarships, an institution with an intercollegiate athletics program has an independent Title IX obligation to provide its students with nondiscriminatory athletic participation opportunities. The scope of that separate obligation is not addressed in this letter, but was addressed in a Clarification issued on January 16, 1996.
Title IX Coverage: Athletics versus Academic Programs
Title IX is an anti-discrimination statute that prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance, including athletic programs. Thus, in both academics and athletics, Title IX guarantees that all students, regardless of gender, have equitable opportunities to participate in the education program. This guarantee does not impose quotas based on gender, either in classrooms or in athletic programs. Indeed, the imposition of any such strict numerical requirement concerning students would be inconsistent with Title IX itself, which is designed to protect the rights of all students and to provide equitable opportunities for all students.
Additionally, Title IX recognizes the uniqueness of intercollegiate athletics by permitting a college or university to have separate athletic programs, and teams, for men and women. This allows colleges and universities to allocate athletic opportunities and benefits on the basis of sex. Because of this unique circumstance, arguments that OCR's athletics compliance standards create quotas are misplaced. In contrast to other antidiscrimination statutes, Title IX compliance cannot be determined simply on the basis of whether an institution makes sex-specific decisions, because invariably they do. Accordingly, the statute instead requires institutions to provide equitable opportunities to both male and female athletes in all aspects of its two separate athletic programs. As the court in the Brown University case stated, "[i]n this unique context, Title IX operates to ensure that the gendersegregated allocation of athletic opportunities does not disadvantage either gender. Rather than create a quota or preference, this unavoidable genderconscious comparison merely provides for the allocation of athletic resources and participation opportunities between the sexes in a non-discriminatory manner." Cohen v. Brown University, 101 F.3d 155, 177 (1st Cir. 1996), cert. denied, 117 S. Ct. 1469 (1997). The remainder of this letter addresses the application of Title IX only to athletic scholarships.

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Athletics: Scholarship Requirements
With regard to athletic financial assistance, the regulations promulgated under Title IX provide that, when a college or university awards athletic scholarships, these scholarship awards must be granted to "members of each sex in proportion to the number of students of each sex participating in... intercollegiate athletics." 34 C.F.R. 106.37(c). Since 1979, OCR has interpreted this regulation in conformity with its published "Policy Interpretation: Title IX and Intercollegiate Athletics," 44 Fed. Reg. 71413 (December 11, 1979). The Policy Interpretation does not require colleges to grant the same number of scholarships to men and women, nor does it require that individual scholarships be of equal value. What it does require is that, at a particular college or university, "the total amount of scholarship aid made available to men and women must be substantially proportionate to their [overall] participation rates" at that institution. Id. at 71415. It is important to note that the Policy Interpretation only applies to teams that regularly compete in varsity competition. Id. at 71413 and n. 1.
Under the Policy Interpretation, OCR conducts a "financial comparison to determine whether proportionately equal amounts of financial assistance (scholarship aid) are available to men's and women's athletic programs." Id. The Policy Interpretation goes on to state that "[i]nstitutions may be found in compliance if this comparison results in substantially equal amounts or if a disparity can be explained by adjustments to take into account legitimate nondiscriminatory factors." Id.
A "disparity" in awarding athletic financial assistance refers to the difference between the aggregate amount of money athletes of one sex received in one year, and the amount they would have received if their share of the entire annual budget for athletic scholarships had been awarded in proportion to their participation rates. Thus, for example, if men account for 60% of a school's intercollegiate athletes, the Policy Interpretation presumes that -absent legitimate nondiscriminatory factors that may cause a disparity -- the men's athletic program will receive approximately 60% of the entire annual scholarship budget and the women's athletic program will receive approximately 40% of those funds. This presumption reflects the fact that colleges typically allocate scholarship funds among their athletic teams, and that such teams are expressly segregated by sex. Colleges' allocation of the scholarship budget among teams, therefore, is invariably sex-based, in the sense that an allocation to a particular team necessarily benefits one sex to the exclusion of the other. See Brown, 101 F.3d at 177. Where, as here, disparate treatment is inevitable and a college's allocation of scholarship funds is "at the discretion of the institution," Brown, 101 F.3d at 177, the statute's nondiscrimination requirement obliges colleges to ensure that men's and women's separate activities receive equitable treatment. Cf. United States v. Virginia, 518 U.S. 515, 554 (1996).
Nevertheless, in keeping with the Policy Interpretation's allowance for disparities from "substantially proportionate" awards to the men's and women's programs based on legitimate nondiscriminatory factors, OCR judges each matter on a case-by-case basis with due regard for the unique factual situation presented by each case. For example, OCR recognizes that disparities may be explained by actions taken to promote athletic program development, and by differences between in-state and out-of-state tuition at public colleges. 44 Fed. Reg. at 71415. Disparities might also be explained, for example, by legitimate efforts undertaken to comply with Title IX requirements, such as participation requirements. See, e.g., Gonyo v. Drake Univ., 879 F. Supp. 1000, 1005-06 (S.D. Iowa 1995). Similarly, disparities may be explained by unexpected fluctuations in the participation rates of males and females. For example, a disparity may be explained if an athlete who had accepted an athletic scholarship decided at the last minute to enroll at another school. It is important to note that it is not enough for a college or university merely to assert a nondiscriminatory justification. Instead, it will be required to demonstrate that its asserted rationale is in fact reasonable and does not reflect underlying discrimination. For instance, if a college consistently awards a greater number of out-of-state scholarships to men, it may be required to demonstrate that this does not reflect discriminatory recruitment practices. Similarly, if a university asserts the phase-in of scholarships for a new team as a justification for a disparity, the university may be required to demonstrate that the time frame for phasing-in of scholarships is reasonable in light of college sports practices to aggressively recruit athletes to build start-up teams quickly.
In order to ensure equity for athletes of both sexes, the test for determining whether the two scholarship budgets are "substantially proportionate" to the respective participation rates of athletes of each sex necessarily has a high threshold. The Policy Interpretation does not, however, require colleges to achieve exact proportionality down to the last dollar. The "substantially proportionate" test permits a small variance from exact proportionality. OCR recognizes that, in practice, some leeway is necessary to avoid requiring colleges to unreasonably fine-tune their scholarship budgets.
When evaluating each scholarship program on a case-by-case basis, OCR's first step will be to adjust any disparity to take into account all the legitimate nondiscriminatory reasons provided by the college, such as the extra costs for out-of-state tuition discussed earlier. If any unexplained disparity in the scholarship budget for athletes of either gender is 1% or less for the entire budget for athletic scholarships, there will be a strong presumption that such a disparity is reasonable and based on legitimate and nondiscriminatory factors. Conversely, there will be a strong presumption that an unexplained disparity of more than 1% is in violation of the "substantially proportionate" requirement.
Thus, for example, if men are 60% of the athletes, OCR would expect that the men's athletic scholarship budget would be within 59%-61% of the total budget for athletic scholarships for all athletes, after accounting for legitimate nondiscriminatory reasons for any larger disparity. Of course, OCR will continue to judge each case in terms of its particular facts. For example, at those colleges where 1% of the entire athletic scholarship budget is less than the value of one full scholarship, OCR will presume that a disparity of up to the value of one full scholarship is equitable and nondiscriminatory. On the other hand, even if an institution consistently has less than a 1% disparity, the presumption of compliance with Title IX might still be rebutted if, for example, there is direct evidence of discriminatory intent.
OCR recognizes that there has been some confusion in the past with respect to the Title IX compliance standards for scholarships. OCR's 1990 Title IX Investigator's Manual correctly stated that one would expect proportionality in the awarding of scholarships, absent a legitimate, nondiscriminatory justification. But that Manual also indicated that compliance with the "substantially proportionate" test could depend, in part, upon certain statistical tests. In some cases, application of such a statistical test would result in a determination of compliance despite the existence of a disparity as large as 3-5%.
We would like to clarify that use of such statistical tests is not appropriate in these circumstances. Those tests, which are used in some other discrimination contexts to determine whether the disparities in the allocation of benefits to different groups are the result of chance, are inapposite in the athletic scholarship context because a college has direct control over its allocation of financial aid to men's and women's teams, and because such decisions necessarily are sex-based in the sense that an allocation to a particular team will affect only one sex. See Brown, 101 F.3d at 176-78 (explaining why college athletics "presents a distinctly different situation from admissions and employment," and why athletics requires a different analysis than that used in such other contexts "in order to determine the existence vel non of discrimination"). In the typical case where aid is expressly allocated among sex-segregated teams, chance simply is not a possible explanation for disproportionate aid to one sex. Where a college does not make a substantially proportionate allocation to sex-segregated teams, the burden should be on the college to provide legitimate, nondiscriminatory reasons for the disproportionate allocation. Therefore, the use of statistical tests will not be helpful in determining whether a disparity in the allocations for the two separate athletic scholarship budgets is nondiscriminatory.
While a statistical test is not relevant in determining discrimination, the confusion caused by the manual's inclusion of a statistical test resulted in misunderstandings. Therefore, OCR is providing this clarification regarding the substantial proportionality provision found in the 1979 Policy Interpretation to confirm the substance of a longstanding standard. In order to ensure full understanding, OCR will apply the presumptions and case-by-case analysis described in this letter for the 1998-99 academic year. OCR strongly encourages recipients to award athletic financial assistance to women athletes in the 1997-98 academic year consistent with this policy clarification, both as a matter of fairness and in order to ensure that they are moving towards the policy clarification stated in this letter.
I trust that this letter responds to the questions the University has regarding the "substantially proportionate" provision of the Policy Interpretation in the context of the funding for an institution's two separate athletic scholarship budgets for male and female athletes. I am sending a copy of this letter as technical assistance to the complainants and the other 24 recipients also currently involved with OCR on the issue of awarding athletic financial

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assistance. We will be in contact with you shortly to continue to work with the University regarding this matter and to discuss other points raised in your letter. If you have any questions regarding this letter, please contact me at (312) 886-8387.
Sincerely yours, /s/ Dr. Mary Frances O'Shea National Coordinator for Title IX Athletics
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 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated, and ROBIN LAMOTT SPARKS, individually,
Plaintiffs,
v.
QUINNIPIAC UNIVERSITY, Defendant.

No. 3:09cv621 (SRU)

MEMORANDUM OF DECISION In March 2009, the defendant, Quinnipiac University (“Quinnipiac” or the “University”), announced plans to cut three of its sports teams: the women’s volleyball team, the men’s golf team, and the men’s outdoor track team. Contemporaneously, the University pledged to create a new varsity sport, competitive cheerleading, for the 2009-10 season. Those decisions form the basis of this lawsuit. Plaintiffs Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, and Logan Riker are five current Quinnipiac women’s varsity volleyball players, and plaintiff Robin Lamott Sparks is their coach. Together, they allege that Quinnipiac’s decision to eliminate its volleyball team violates Title IX of the Education Amendments of 1972 (20 U.S.C. § 162, et seq.) and the regulations adopted pursuant thereto (34 C.F.R. Part 106) (“Title IX”). On May 22, 2009, I granted the plaintiffs’ motion for a preliminary injunction, holding that the manner in which Quinnipiac managed its varsity rosters – essentially, by setting artificial ceilings for men’s varsity teams and floors for women’s varsity teams – deprived female athletes of equal athletic participation opportunities. See Biediger v. Quinnipiac Univ., 616 F. Supp. 2d 277 (D. Conn. 2009). On May 20, 2010, I certified the following class of plaintiffs seeking

injunctive relief, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure: All present, prospective, and future female students at Quinnipiac University who are harmed by and want to end Quinnipiac University's sex discrimination in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes.
Biediger v. Quinnipiac Univ., No. 09cv621 (SRU), 2010 WL 2017773 (D. Conn. May 20, 2010). Although the plaintiffs allege several theories for relief under Title IX, the parties agreed
to sever and try independently the plaintiffs’ first claim: that Quinnipiac discriminates on the basis of sex in its allocation of athletic participation opportunities. The parties tried that claim in a bench trial held from June 21 to June 25, 2010. My findings of fact and conclusions of law are set forth herein.
I conclude, as a matter of law, that Quinnipiac discriminated on the basis of sex during the 2009-10 academic year by failing to provide equal athletic participation opportunities for women. Specifically, I hold that the University’s competitive cheerleading team does not qualify as a varsity sport for the purposes of Title IX and, therefore, its members may not be counted as athletic participants under the statute. Competitive cheer may, some time 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 opportunities for students.
Second, I hold that, although cross-country, indoor track, and outdoor track are usually considered different sports, Quinnipiac may not count some runners who participate in each sport three times. Quinnipiac’s practice of requiring women cross-country runners to participate on the indoor and outdoor track teams, and its treatment of the indoor and outdoor track teams as, in essence, an adjunct of the cross-country team, are sufficient to show that some cross-country
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runners who participate on the indoor and outdoor track teams should not be counted under Title IX. Specifically, cross-country runners who were injured or red-shirted during the 2009-10 indoor and outdoor track seasons cannot be counted because their activity does not amount to genuine athletic participation opportunities.
Finally, although I find, as a matter of fact, that Quinnipiac is no longer engaged in the same roster manipulation that was the basis for my preliminary injunction order, the University is still continuing to deflate the size of its men’s rosters and inflate the size of its women’s rosters. Although that roster management is insufficient to conclude that Quinnipiac violated Title IX as a matter of law, it supports the ultimate conclusion that the University is not offering equal participation opportunities for its female students. I. Findings of Fact
Quinnipiac University is a private, coeducational institution located in Hamden, Connecticut. Quinnipiac is a member of the National Collegiate Athletic Association (“NCAA”), and is a Division I school, which means that it belongs to the NCAA’s most competitive athletic division. The University competes in the Northeastern Conference (“NEC”), to which ten other Division I programs belong. Historically, men’s and women’s basketball and ice hockey have been the school’s premier sports. Quinnipiac, however, sponsors seven varsity men’s athletic teams and 12 varsity women’s athletic teams, including, inter alia, women’s volleyball, women’s cross-country, women’s indoor track and field, women’s outdoor track and field, and women’s competitive cheer.
During the 2009-10 academic year, 5,686 students were enrolled in the University’s undergraduate program. That year, 2,168 students, or 38.13 percent of the student body, were
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male, and 3,518 students, or 61.87 percent of the student body, were female. Based on the varsity rosters for the first day of teams’ competitions, 166 male athletes and 274 female athletes participated during the academic year. Using those first day of competition figures, in 2009-10 male athletes made up 37.73 percent, and female athletes 62.27 percent, of the University’s varsity athletes. If Quinnipiac’s numbers were accepted, the University would not be liable under Title IX because the school would be offering athletic opportunities for women in numbers proportional to the percentage of women in the school’s undergraduate population.
To succeed, the plaintiffs must undermine the way Quinnipiac counts its varsity athletes. Plaintiffs seek to do so by raising three areas of factual disagreement. First, the plaintiffs claim that Quinnipiac’s roster numbers are inaccurate and the University’s policy of setting varsity roster targets leads to artificially undersized men’s teams and oversized women’s teams. Second, the plaintiffs claim that Quinnipiac’s female cross-country runners should not be counted multiple times for their participation on the indoor and outdoor track teams because the indoor and outdoor track teams are not true independent sports teams but serve, instead, as a more structured nontraditional season for the University’s female cross-country runners. Third and finally, the plaintiffs claim that the Quinnipiac competitive cheerleaders should not be counted because competitive cheer is not yet a legitimate intercollegiate varsity sport. I take up each of those factual questions independently. I then conclude my findings of fact by discussing Quinnipiac’s plans for the 2010-11 academic year.
A. Roster management Following the 2008-09 academic year, Quinnipiac changed its practice with respect to setting roster targets for its teams – the practice that formed the basis of my preliminary
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injunction order. Rather than establish ceilings for men’s teams and floors for women’s teams, and implicitly encourage coaches to manipulate their rosters before and after the first dates of competition – the dates on which the University collected its roster data to prove its Title IX compliance – Quinnipiac established a new policy of setting roster targets. That policy required coaches to meet roster numbers prescribed by the University after consultation with its coaches.
The roster target system was overseen by Dr. Mark Thompson, the senior vice president for student and academic affairs, and Jack McDonald, Quinnipiac’s athletic director. Thompson inaugurated the new roster management system in the summer of 2009. After reviewing the relevant Title IX and NCAA regulations, Thompson developed a set of preliminary roster targets based on Quinnipiac’s roster sizes in 2008-09, NCAA average squad sizes, and the teams’ operating and scholarship budgets. Thompson testified that the purpose of setting the roster targets was to ensure that all athletes were given genuine participation opportunities. Those preliminary numbers were revealed to Quinnipiac’s head coaches in a meeting held in July 2009, and were finalized on September 1, 2009, just before the beginning of the fall season. Issuing the initial roster target numbers in July 2009 meant that coaches were given their numbers after the recruiting season had ended and incoming Quinnipiac students had made their enrollment deposits. In other words, teams that had to find new players to meet their roster targets were likely forced to find those players on campus or among the small pool of graduating high school seniors and junior college players who had not already decided where to enroll for the 2009-10 academic year.
At the July 2009 head coaches meeting, some of the coaches audibly expressed frustration with their preliminary roster targets. In between the issuance and finalization of the preliminary
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numbers, however, every coach met with Thompson to discuss whether the preliminary numbers were appropriate. For example, the women’s basketball coach requested increases in the team’s roster, Def. Exs. BZ & CA; the women’s ice hockey coach requested a reduction of the team’s roster, Def. Ex. CB; the women’s softball coach requested an increase of one player to the team’s roster; Def. Ex. CF; the men’s basketball coach requested an increase of two players to the team’s roster, Def. Ex. CK; and the men’s ice hockey coach requested an increase of two players to the team’s roster, Def. Ex. CN. Thompson agreed to all of those requests. Indeed, the only roster target change that Thompson appears to have denied was a requested increase of one women’s volleyball player by Robin Sparks, for whom, Thompson testified, Sparks never proved the need. Ultimately, Thompson received the input of each Quinnipiac coach before finalizing the teams’ roster target numbers. Every Quinnipiac coach, except for Germaine Fairchild, the women’s softball coach, and Sparks, signed letters confirming their acceptance and approval of their roster targets. See Def. Ex. BO. During the academic year, Quinnipiac’s coaches were permitted to make changes to their rosters. Any addition or deletion of a player, however, had to be approved in advance by Thompson.
The plaintiffs allege two potential ways in which Quinnipiac’s practice of setting roster targets could result in a Title IX violation. First, the University may have manipulated its roster sizes by misidentifying student athletes, specifically, by erroneously discounting individual athletes from men’s teams and adding individual athletes to women’s teams. In other words, the plaintiffs claim that Quinnipiac’s varsity teams were not actually complying with the roster targets the University assigned, and the actual number of athletes was not captured by the roster target totals. And, second, the University may have set artificially low roster numbers for its
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men’s teams and high numbers for its women’s teams, thus creating de facto ceilings and floors
for squads on the basis of sex, which had the effect of denying genuine athletic participation
opportunities to some women athletes.
1. The total number of athletes competing at Quinnipiac
The plaintiffs and Quinnipiac offered two competing theories for how the University’s
2009-10 athletes should be counted. Relying on a clarification letter issued in 1996 by the
Department of Education’s Office of Civil Rights (“OCR”), Quinnipiac offered its squad lists for
teams’ opening days of competition as evidence of the total number of athletes participating in
the 2009-10 academic year. It did nothing more than put forward those opening day roster
numbers for the purpose of demonstrating its compliance with Title IX.
By contrast, the plaintiffs’ expert witness, Dr. Donna Lopiano, scrutinized Quinnipiac’s
2009-10 squad lists for which athletes were on teams’ rosters on the opening days of competition
and/or were added to, or dropped from, rosters later in the season. Lopiano analyzed those squad
lists to determine which students counted as athletic “participants” according to OCR’s definition
of the term. She accounted for all potential participants according to the following eight criteria:
(1) Athletes who competed during the academic year, regardless whether such competition took place during the sport’s traditional or nontraditional1
1 A sport’s “nontraditional” season is the season in which a sports team practices and plays, but does not seek a championship. See 2009-10 NCAA Division I Manual (Def. Ex. EP) Figures 17-1 & 17-2, at 218-19 (showing dates for sports’ traditional and nontraditional seasons). For example, the Quinnipiac women’s volleyball team’s traditional season is the fall; the conference and national championships take place at the end of that season. Nonetheless, that team may also participate in a nontraditional spring season. During that nontraditional season, the team continues to practice, albeit for fewer hours than during the traditional season, and may play scrimmages and games against other schools’ varsity teams. Those competitions, however, do not count towards the maximum and minimum number of contests set by the NCAA for the team’s championship season.
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season;
(2) athletes who did not compete because of injury but received athletic financial aid, such as partial or full scholarships;
(3) athletes who were red-shirted2 during the 2009-10 year;
(4) athletes who were listed on their team’s squad list for the first day of competition in the traditional season and practiced with their teams, even if they never competed in a game;
(5) athletes who were on their team’s squad list for the first day of competition in the nontraditional season and practiced with the team, even if they were not on their team’s squad lists for the traditional season and did not compete;
(6) athletes who did not appear on a squad list for the first day of competition in the traditional or nontraditional season, but who practiced with their team for a majority of the season and received at least one semester’s worth of athletic benefits;
(7) athletes who, in Lopiano’s view, raised a “red flag” and either should not have been counted or, if not already included in the first six criteria, should have been added to the list of athletes; and
(8) athletes who exhausted their four years of NCAA eligibility but who, in a fifth year, continued to practice with their team and receive the same athletic benefits as any other varsity athlete.
Pl. Ex. 149 at 2-3.
In producing her figures for Quinnipiac’s total number of athletic participants, Lopiano
made several additional categorical choices about which women should be included. Lopiano
did not include the women’s competitive cheer team in her count of female athletes, on the
2 A “red-shirt” refers to an athlete taking advantage of the NCAA regulation permitting an athlete to remain on a team but not compete for a year without losing a year of athletic eligibility. See 2009-10 NCAA Division I Manual (Def. Ex. EP) § 14.2.1 (requiring Division I athletes to complete four years of eligibility within five years). An athlete may red-shirt a year because of injury or in order to conserve a year’s eligibility while practicing and improving his or her skills.
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assumption that women’s competitive cheer did not constitute a valid sport for Title IX purposes and, therefore, the team’s members were not “participants” to be tallied under the statute. In addition, Lopiano offered four alternative totals for female athletes participating on the crosscountry and track teams. As I explain in more detail in the next section concerning Quinnipiac’s cross-country and track programs, there is substantial overlap between the women’s crosscountry, indoor track, and outdoor track teams; indeed, every female cross-country runner was on the indoor and outdoor track teams’ 2009-10 rosters. Thus, those runners potentially may be counted as three distinct athletic participants under Title IX. In order to account for the various ways female runners can be counted, Lopiano made four calculations of the number of Quinnipiac women athletes: (1) the total number of participants on each women’s team, regardless whether runners are counted three times for participating on the cross-country, indoor track, and outdoor track teams; (2) the total number of participants on each women’s team, but counting participants competing on both the indoor and outdoor track teams only once for track and field; (3) the total number of participants on each women’s team, but counting cross-country runners and exclusive track runners once, regardless whether they participated on multiple teams; and (4) the total number of participants on all women’s teams, but subtracting the indoor and outdoor rosters completely. Id. at 4.
Although each of those methods produces different totals for the number of female varsity athletes during the 2009-2010 year, in none of those calculations did Lopiano detect evidence of roster manipulation. Rather, she agreed that the athletes on the women’s crosscountry, indoor track, and outdoor track squad lists were properly included as participants, insofar as a single athlete competing on all three teams participates in separate sports.
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Ultimately, Lopiano disagreed that individual runners who competed on more than one of those teams should be counted as more than one participant for the purpose of Quinnipiac’s Title IX compliance because, in her view, it was a ruse for Quinnipiac to increase the statistical representation of its female athletes. But because Lopiano’s disagreement centered on whether, categorically, female runners could be counted multiple times, and not on whether the runners actually participated on those teams, the distinctions between Lopiano’s various tabulations of the University’s female runners do not bear on Quinnipiac’s purported roster manipulations. Rather, Lopiano observed potential evidence of Quinnipiac’s inaccurate participant counting on other teams – namely, the men’s basketball, ice hockey, lacrosse, soccer, and cross-country teams, as well as the women’s field hockey, ice hockey, lacrosse, soccer, and softball teams.
For all of those teams, Lopiano performed three calculations based on her eight criteria for defining athletic “participants,” as described above. First, in what she dubbed “Count A,” she added each team’s participants who met criteria (1) through (4). Next, in “Count B,” she took the totals from Count A and included any other participants who met criteria (5) through (8). Finally, in “Count C,” she subtracted any athletes whom she designated a “red flag” under criterion (7) and who, as far as she could tell, did not actually participate on their teams for Title IX purposes. She then compared those counts to Quinnipiac’s opening day squad lists, the University’s chosen method for establishing its numbers of male and female athletes. In relevant part, Lopiano calculated the following numbers of athletic participants on Quinnipiac’s men’s teams:
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MEN’S TEAM

COUNT A COUNT B COUNT C QU COUNT

Basketball

17

18

18

17

Ice Hockey

31

31

31

30

Lacrosse Soccer3

43

43

43

41

24

27

27

24

X-Country

13

16

16

13

. . . Total4

170

176

176

166

Pl. Ex. 151. When one takes all of the potential participants included in Count B, none of which

are excluded in Count C, and compares them to Quinnipiac’s count, the difference is ten male

athletes. Thus, according to the plaintiffs, Quinnipiac undercounts its male athletic participants

by up to ten students by relying on squad lists for the opening days of competition.

For the women’s teams, on the other hand, the plaintiffs contend that Quinnipiac

overstates the number of its female athletic participants. Lopiano calculated the following

numbers of athletic participants on Quinnipiac’s women’s teams:

3 Plaintiffs’ Exhibit 151, Lopiano’s summary of her counting and the basis for this excerpted chart, lists Count A for men’s soccer as 27 players. Exhibit 150, however, shows that Count A should be 24, while Counts B and C should be 27. I have changed the chart to the correct Count A total of 24.
4 The total numbers listed in this chart reflect all of Quinnipiac’s male athletes for the 2009-10 academic year, including teams not specifically shown here. The excerpted chart does not include data for the men’s baseball and tennis teams because the plaintiffs’ and Quinnipiac’s totals for those squads are consistent. The difference between the parties’ counting is attributable to the five teams listed above.
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WOMEN’S TEAM COUNT A COUNT B COUNT C QU COUNT

Field Hockey

26

26

25

24

Ice Hockey

26

26

20

26

Lacrosse

28

30

30

29

Soccer

29

29

28

27

Softball

21

21

21

20

. . . Total5

170

172

164

166

Id. According to the plaintiffs, then, Quinnipiac overstates its female participants (excluding the

cross-country, outdoor track, and indoor track runners) by two.

During trial, however, Quinnipiac demonstrated that the University engaged in minimal

undercounting of male athletes and no overcounting of female athletes, and that the discrepancies

between the plaintiffs’ and defendant’s calculations were attributable to facts about individual

athletes of which Lopiano was unaware. Take, for instance, the six women’s ice hockey players

whom Lopiano discounted and who are responsible for the net overstatement of Quinnipiac’s female athletic participants.6 Lopiano identified those six players as “red flags” and subtracted

5 As in the previous chart, the total number reflects the totals for all female athletic participants during the 2009-10 academic year. The excerpted chart excludes the women’s basketball, tennis, and volleyball teams because the parties’ totals for them were consistent. The chart also does not account for the women’s cross-country, indoor track, and outdoor track teams because the plaintiffs are not challenging the numbers on those teams as inaccurate. Rather, they allege that participants on more than one of those teams should not be counted as multiple participants under Title IX.
6 If the six women’s ice hockey players identified by Lopiano are not removed from the team’s squad list, then, by the plaintiffs’ calculation, Quinnipiac will have actually undercounted its female athletic participants by four students, assuming that the plaintiffs’ tallying of the
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them from her “Count C” because she believed they were not legitimate players and were cut after their season ended due to a Quinnipiac policy prohibiting women’s coaches from cutting players mid-season in order to maintain the appearance of Title IX compliance. See Pl. Ex. 147 (email to Jack McDonald explaining why six cuts were made after end of women’s ice hockey season). Rick Seeley, the Quinnipiac women’s ice hockey coach, gave uncontradicted testimony that Lopiano’s belief was false. Seeley was never informed by Quinnipiac’s administration that he could not cut players during the season; at most, he was instructed to contact Mark Thompson before cutting any of his players. Furthermore, the 2009-10 women’s ice hockey team roster shows that five of the six players Lopiano identified as “red flags” competed in games during the season, Def. Ex. EW, at D 0859, and Seeley confirmed that the remaining “red flag” was the last player on the bench and the only team member, other than a red-shirted player, not to play in a game that season. Nonetheless, Seeley gave undisputed testimony that even the last player on the bench, like all of the women ice hockey players Lopiano identified as “red flags,” was on the team’s squad list on the first day of competition, practiced with the team, and received athletic benefits like any other varsity athlete. Moreover, Seeley said that all of the six players at issue quit on their own accord, or were cut for disciplinary and/or other legitimate, team-based reasons.
Quinnipiac’s and Lopiano’s counts were further reconciled by the testimony of Tracey Flynn, the University’s Title IX compliance officer. The one-player difference between Quinnipiac’s and Lopiano’s counts for the men’s basketball team was explained by a student who transferred to the University mid-year; under NCAA regulations, he was not allowed to join
women’s field hockey, lacrosse, soccer, and softball teams is accurate. That runs contrary to their theory that Quinnipiac was inflating its women’s rosters.
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the team immediately and, therefore, was not counted by Quinnipiac on the basketball team’s roster. The one-player difference between Quinnipiac’s and Lopiano’s counts for the men’s ice hockey team stems from a player who was cut before the first day of competition, but rejoined the team in January 2010; although, according to the team’s season statistics, that player did not play in any games, he did practice with the team and arguably should have been included in Quinnipiac’s tally. Quinnipiac’s counting should therefore be increased by one male athlete.
The men’s lacrosse team’s two-player difference appears to represent a genuine disagreement between the plaintiffs and defendant about how to count the athletes. Records of Quinnipiac’s internal change-in-status log show that two additional players joined the team in January 2010, before the first day of official competition; those same records also indicate that two different lacrosse players quit at approximately the same time, before the first game of the traditional season. Def. Ex. EN. As email correspondence shows, the two players added to the men’s lacrosse team were substitutes for the two players cut. Def. Exs. CR-CS, CU-CV. Quinnipiac’s opening date of competition data is therefore accurate insofar as it includes the correct number of players on the men’s lacrosse roster. Unlike Lopiano, however, Quinnipiac does not account for the players swapped; instead, the University counts only the roster spots filled on, and not before, the first day of competition.
A similar player swap explains the three-player difference between Quinnipiac’s and Lopiano’s counts of the men’s soccer and cross-country squads. Three players were added to the men’s soccer team roster in spring 2010, after the traditional season had closed, which is why they appear in Lopiano’s Counts B and C. Lopiano did not note, however, that three players left the team between January and March 2010, and it appears that the three who were added were
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supposed to fill the places of those who left during the nontraditional season. The same exchange appears to have occurred on the men’s cross-country team: three players were added to the team’s spring, nontraditional roster to make up for three outgoing seniors. Because all of those player swaps happened before the commencement, or after the conclusion, of the teams’ championship seasons, I will accept Quinnipiac’s count of its male athletes, with the exception of the one men’s hockey player who must be added to the University’s tally.
In sum, the facts show that Quinnipiac’s count of female athletes – without considering the participants on the University’s women’s cross-country, indoor track, and outdoor track squads, or the members of the competitive cheer team – is not overstated. Rather, the evidence shows that the women’s ice hockey team, the only team that the plaintiffs put forward as artificially keeping more players on its team than was necessary or desirable, provided participation opportunities to all of the players on its roster. The women’s ice hockey players who left the team did so after the season and for legitimate reasons; indeed, the plaintiffs put on no evidence that any women ice hockey players were forced off because of the University’s roster management. The facts suggest that the men’s teams were arguably slightly undercounted. But eight of the ten identified players who were purportedly undercounted were athletes who joined teams to replace players who were cut or quit. Thus, there is no evidence, other than the one player added to the men’s ice hockey team mid-season, that Quinnipiac men’s coaches felt pressure to add more players to their teams following the first date of official competition. Rather, the evidence shows that the men’s coaches, like the women’s coaches, followed the direction of the University’s athletics department and maintained their rosters at the prescribed sizes. That conclusion was confirmed by Flynn, who testified that the suspicious trend of men’s
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teams adding players, and women’s teams dropping players, after the first date of competition –

the trend that she had observed and testified about at the preliminary injunction hearing – did not

take place during the 2009-10 academic year. Indeed, when pressed by opposing counsel on

cross-examination, Lopiano could not identify any examples of the University adding or cutting

players after the first date of competition in order to manipulate the school’s roster numbers.

2. The sizes of Quinnipiac’s men’s and women’s teams relative to national and conference averages

Even if Quinnipiac’s men’s and women’s teams complied with the University’s revised

roster management program, and ceased their former respective practices of adding and cutting

players after the first date of official competition, the question still remains whether Quinnipiac’s

mandatory roster numbers are appropriately set and afford athletes genuine varsity participation

opportunities. At trial, the plaintiffs introduced data showing that the Quinnipiac men’s rosters

were slightly smaller than national and conference averages, while women’s rosters were slightly

larger than those averages. The plaintiffs introduced the following chart representing the

difference between the size of Quinnipiac’s men’s teams and the size of average NCAA Division

I and NEC teams:

MEN’S TEAM

QU COUNT

NCAA AVG.

NEC AVG.

Baseball

31

33.3

35.88

Basketball

17

15.4

14.09

Ice Hockey

30

27.7

28

Lacrosse

41

45.6

51.4

Soccer

24

28.5

25.6

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Tennis

10

10.2

11.22

X-Country

13

15.4

16.45

Pl. Ex. 151.7 Those data reveal that four of the seven men’s teams – the baseball, lacrosse,

soccer, and cross-country teams – had rosters that were smaller by approximately two to four

players than the national average, and that five men’s teams were smaller than the average

Northeastern Conference squad. By contrast, only the men’s basketball and ice hockey teams –

the University’s premier programs – had teams larger than the national and conference averages.

The plaintiffs also introduced evidence showing that Quinnipiac’s women’s teams were

larger than the national and conference averages. They introduced the following chart showing the disparity between women’s teams and the national and conference averages:8

WOMEN’S TEAM QU COUNT

NCCA AVG.

NEC AVG.

Basketball

18

14.5

13.82

Field Hockey

24

22.7

22.2

Ice Hockey

26

23.3

27.5

Lacrosse

29

27.2

23.44

Soccer

27

26.2

24.8

Softball

20

19.6

19.2

Tennis

10

9.4

8.8

7 The Quinnipiac team roster numbers reflect the athletes participating in 2009-10. The NCAA Division I and NEC averages were taken from the 2008-09 academic year.
8 The chart does not include a comparison of the competitive cheer team because neither the NCAA nor the NEC recognizes competitive cheer as a varsity sport and, therefore, NCAA and NEC data do not exist for that activity.
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Volleyball

12

14.8

12.56

X-Country

18

16.9

13

Indoor Track

30

37.9

29.91

Outdoor Track

30

37.2

30.55

Id. Those figures show that, with the exception of women’s volleyball, indoor track, and outdoor

track, every Quinnipiac varsity women’s team was larger than the national average Division I

women’s team. Quinnipiac’s teams were larger than the national average by approximately one

to four players. The chart also shows that the University’s indoor and outdoor track squads were

comparatively much smaller than the typical women’s track and field team; both had seven to eight fewer players than the average Division I team.9 The Quinnipiac track rosters were

consistent in size with the NEC averages for those sports, however. But other Quinnipiac

women’s teams, such as basketball, cross-country, and lacrosse, were bigger than the average

NEC squad by four to five players, a larger disparity than between those squads and average

NCAA Division I rosters. Indeed, except for the track teams, volleyball, and ice hockey, every

University women’s team was bigger than the average conference team.

Quinnipiac challenged the evidence that its men’s teams were smaller than average, and

its women’s teams larger than average, by introducing data of the variation between the size of

NEC teams. For example, NEC women’s indoor and outdoor track teams ranged from 18 to 56

athletes, and the conference’s roster numbers reveal that the Quinnipiac women’s indoor and

outdoor track teams were not only consistent with the mean size of their rivals, but that the

9 As I explain in the following section, Quinnipiac’s relative shortage in players is likely attributable to its lack of athletes competing in “field” competitions, such as jumps and throws.
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University’s teams were near the median of the conference’s indoor and outdoor track team sizes. See Pl. Ex. 103 (setting forth 2008-09 roster sizes of NEC teams, and showing that, of the twelve teams in the conference, Quinnipiac had the sixth-largest women’s indoor track team and the fifth-largest women’s outdoor track team).
But other Quinnipiac women’s teams are demonstrably bigger than their conference competition when the 2009-10 Quinnipiac rosters are compared to the conference’s 2008-09 rosters, as set forth in Plaintiffs’ Exhibit 103. The University’s 2009-10 women’s basketball team had 18 members; that was three more members than the next biggest NEC team in the preceding season. Id. Similarly, the Quinnipiac women’s cross-country, lacrosse, and soccer teams would all have been the third-largest NEC team for their respective sports. Id. That stands in contrast to the men’s teams, which, with the exception of the cross-country and basketball teams, all had relatively small rosters when the University’s 2009-10 roster numbers are compared to the NEC’s 2008-09 tallies.10 That comparison shows that, of ten competing schools, the men’s tennis team would have been smaller than five other NEC teams; that, of eleven competing schools, the men’s soccer team would have been smaller than six other NEC teams; that, of nine competing schools, the men’s baseball team would have been the second-smallest team in the NEC; and that, of six competing schools, the men’s lacrosse team would have been
10 Although the men’s cross-country team was smaller than the NEC average, see Pl. Ex. 151, the team was actually only smaller than four, or one-third of, the NEC’s teams, see Pl. Ex. 103. That is explained by the fact that several of the larger teams were enormous in comparison to the Quinnipiac men’s cross-country team and drove up the conference’s overall average. See id. (showing that the four largest men’s cross-country teams had rosters of 17, 24, 31, and 39 runners).
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the smallest team in the conference.11 Id. Altogether, the evidence indicates that Quinnipiac’s men’s rosters tended to be smaller
than the national and conference averages and its women’s rosters tended to be larger. That general finding does not hold true for all sports. If the University’s 2009-10 roster count is compared to the NEC’s data for the 2008-09 season, the men’s cross-country team would have been bigger than seven other competing teams, and the men’s basketball team would have been the biggest in the conference; meanwhile, the women’s volleyball, indoor track, and outdoor track teams would have been near the NEC’s median size. But, aside from those exceptions, the plaintiffs are correct that the University appears to set its men’s rosters at relatively small numbers and its women’s rosters at relatively high numbers. The disparity between the University’s rosters and the national and conference averages may not be great – with the exception of women’s indoor and outdoor track, no Quinnipiac team is more than four players above or below the national average. Nonetheless, the plaintiffs have proven that some disparity exists.
B. Indoor and outdoor women’s track and field In the 2009-10 season, Quinnipiac fielded four running teams: a men’s cross-country team, a women’s cross-country team, a women’s indoor track team, and a women’s outdoor track team. All four of those teams are coached by Carolyn Martin, who was promoted to the head coaching position at the end of the 2008-09 academic year; previously, Martin had served as an
11 I am omitting the men’s and women’s ice hockey teams from this part of the discussion. Only three teams in the NEC have men’s and/or women’s hockey teams; because of the small pool of competing schools, I do not find the size of Quinnipiac’s ice hockey squads relative to the rest of the conference to be especially meaningful.
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assistant coach to the women’s cross-country, indoor track, and outdoor track teams, and was a former student and varsity athlete at Quinnipiac.12 As head coach, Martin has two paid assistant coaches and two unpaid, volunteer coaches. Martin is the only Quinnipiac coach responsible for overseeing four separate teams. In fact, only one other University coach – Mike Quitko, who coaches the men’s and women’s tennis teams – coaches multiple teams, and he only oversees two squads. As head coach for the men’s cross-country, women’s cross-country, indoor track, and outdoor track teams, Martin is responsible for, among other duties, training her athletes, preparing them for meets, managing the teams’ budgets and operations, and recruiting players. McDonald testified that it was common for schools to appoint one coach for all of their running teams, and then have those coaches delegate responsibilities for specific teams to assistant coaches. In other words, the coaching and management of Quinnipiac’s varsity running teams was a standard practice among NCAA schools.
The NCAA recognizes cross-country, indoor track and field, and outdoor track and field as different sports for purposes of athletic eligibility. 2009-10 NCAA Division I Manual (Def. Ex. EP) § 14.2.3.3, at 138. Furthermore, those sports have different rules of competition and their own championships. Women’s cross-country races are five or six kilometers long. Races can be run on all kinds of surfaces and can be either flat or hilly; in a single race, a course is likely to take runners across a variety of terrains. Track and field, by contrast, offers races of various lengths, ranging from short sprints, to middle-distance contests, to long-distance races of
12 Martin did not testify at trial. In place of her live testimony, the parties stipulated to using her deposition of May 18, 2010. The parties also agreed to submit the deposition testimony of Samuel Seemes, the defendant’s expert on cross-country and track and field, in lieu of live testimony.
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a mile or more. And, although it is true that tracks can differ in some ways, such as in their lengths, their surface material, whether they are indoors or outdoors, and the degree to which they are banked, most tracks are similarly constructed as an unbroken oblong loop.13 In addition to the track races are the field events, which can be distilled into two types: jumping events, such as horizontal contests like the long jump or vertical contests like the high jump; and throwing events, such as the shot-put, discus, and javelin. Cross-country offers no field events; a crosscountry meet, rather, is a single race that all of the competitors run at the same time.
In a cross-country race, a team generally may enter as many runners as it wishes, although only its top five finishers will score. A team’s final score is the sum of those five runners’ places, and the winning team is the squad with the lowest total score. Teams may, as a matter of strategy, enter more than five runners in a single meet. Entering more runners hedges against the risk that an individual entrant might have a bad race or injure herself on the course and finish in a slower time. A team may also enter a large number of runners with the hope of “displacing” their opponents’ runners. Because a team’s score is determined by adding the places of its topfive finishers, having a sixth runner finish before an opponent’s fifth runner will increase, or “displace,” the opponent’s final score by one more point. That will result in a higher opponent’s total score, and a greater likelihood that the team will beat that opponent.
The cross-country scoring system is markedly different than the scoring system used at a track meet. At a track meet, a school enters athletes in a variety of events, and a team’s total score reflects the cumulative scores of its individual members. Many track meets are not scored
13 An exception to this is the course for the steeple chase, an outdoor track event that involves obstacles such as water troughs and barriers that runners must overcome.
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at the team level, but only provide individual competitors the chance to excel in their respective events. At those meets, there is less incentive to enter many entrants in the same competition. Martin did testify, however, that a track team may include more distance runners than sprinters for events in which a team score is compiled. A sprinter, according to Martin, is able to compete in multiple races at a track meet because a short race is less physically taxing than a distance competition; for instance, a sprinter could compete in both the 100 and 200 meter dashes, but a distance runner is unlikely to run both the 5,000 and 10,000 meter races. Therefore, a track team may elect to carry fewer sprinters than distance runners in order to be as efficiently competitive as possible.
Quinnipiac cross-country meets and practices are run on campus, but the University has neither an indoor nor an outdoor track for competition. Instead, indoor and outdoor track athletes must compete off campus at a local high school. The University’s indoor track team practices on a track in the school’s recreation center, but the outdoor track team practices off campus. According to Samuel Seemes, Quinnipiac’s track and field expert witness, it is not rare for a university to have a track team without also having a track on campus, and several other college and university track teams practice off campus and are unable to host home meets. Quinnipiac also does not enter any athletes in field events because it lacks the coaching and facilities for athletes to train for those events.14 According to Martin and Seemes, it is not uncommon for schools to enter athletes only in track events; both witnesses recalled other universities that enter their track-and-field participants in races only, to the exclusion of field events. Neither Martin
14 Quinnipiac did enter one woman in the triple jump at three outdoor track events in the 2009-10 season. Martin said, however, that the athlete was a triple-jumper in high school, and it does not appear that the athlete ever trained to triple-jump during the team’s practices.
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nor Seemes, however, was able to state whether the sizes of Quinnipiac’s track-only track and field teams were similar to the rosters of other universities whose track and field teams only competed in races.
In 2009-10, the Quinnipiac women’s cross-country team had 18 members, and its indoor and outdoor track teams had 30 members; the men’s cross-country team had 13 members. All of the women’s cross-country runners participated on the indoor and outdoor track teams. In other words, 60 percent of the indoor and outdoor track teams consisted of athletes who ran crosscountry in the preceding fall season. The remaining 12 members on the women’s indoor track team also participated on the outdoor track team. Thus, every participant on the women’s crosscountry, indoor track, and outdoor track team competed on at least one other squad. It is not unusual for cross-country runners to participate on track teams, and for track participants to run in the indoor and outdoor seasons, however. Both Martin and Seemes testified that runners often participate in more than one season. In fact, Martin said that many runners expect to compete across seasons. She testified that she was having difficulty recruiting male cross-country participants because the University did not offer them track opportunities in the winter and spring seasons and would not sponsor those runners to compete individually in any winter or spring track meets.
Under NCAA regulations, a Division I cross-country team must compete in at least six contests over the course of a year, with at least five athletes in each contest. NCAA Division I Manual (Def. Ex. EP) § 20.9.4.3, at 311. Indoor and outdoor track teams must compete in at least six meets in each season with a minimum of 14 participants, id., and may not compete in more than 18 meets combined, id. § 17.24.5.1, at 271. The women’s cross-country team ran
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eight races in the 2009-10 season, including the NEC championship and the NCAA regional finals; the women’s indoor track team entered runners in eight meets, but only met the minimum 14 participants to compete as a team in six contests; and the women’s outdoor track team entered runners in seven meets, but only met the minimum 14 participants in six of them.
Martin testified that, during the indoor and outdoor track season, all of the athletes listed on team rosters practiced, even if they were not competing in an upcoming meet. Injured players were responsible for participating during practice, too, although their practice time consisted of physical therapy, strength training, conditioning, and other rehabilitative exercises. All of the athletes were expected to attend team meetings and each roster member received coaching, equipment, warmup gear, and shoes; only athletes who were competing, however, received racing uniforms. Track team participants were also entitled to athletic benefits, such as travel and per diem costs for away meets, as well as scholarship aid. There are four full-tuition scholarships available for all of the women’s cross-country, indoor track, and outdoor track runners. Those scholarships may be divided among participants on the teams. In 2009-10, the four scholarships were distributed among women who participated on all three of the women’s running teams. Martin did not extend any scholarship funds to athletes who ran only on the indoor and outdoor track squads.
Historically, Quinnipiac’s running program has prioritized distance running over sprinting. Thus, the women’s cross-country team has been the predominant squad relative to the indoor and outdoor track teams, and the distance track events have been emphasized more than sprinting contests. Spreadsheets prepared by Martin illustrating the races Quinnipiac track runners entered during the 2009-10 seasons reveal the dominant role that distance running played
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in the University’s women’s running program. See Def. Exs. AJ & AR. The following chart was compiled using those exhibits. It shows the number of track events that participants entered in the women’s indoor and outdoor track seasons, and identifies those events as sprint, middledistance, or distance competitions. A sprint is defined as any race equal to or shorter than 400 meters; a middle-distance race is defined as any race greater than 400 meters but shorter than 1,500 meters; a distance race is defined as any race greater than or equal to 1,500 meters.15 If an athlete ran an event more than once at a meet – e.g., if an athlete ran in a qualifying heat and then ran in the finals for the event – participation in that event for that meet is counted only once.

TEAM

SPRINT EVENTS

Indoor track

26

Outdoor track 24

Combined track 50

MIDDLEDISTANCE EVENTS
48
31
79

DISTANCE EVENTS
62 81 143

TOTAL EVENTS
136 136 272

The chart shows the teams’ heavy emphasis on distance running. In the indoor track season, 45.6 percent of all races entered by Quinnipiac runners were distance events. At the

15 That delineation of events in terms of sprint, middle-distance, and distance races is consistent with the categorization suggested by Seemes at his deposition. Martin also identified distance events as races of 1,500 meters and up. I note, too, that I counted each entrant’s participation in a relay as a separate race. Likely, however, that will not account for the actual total number of sprint and middle-distance events entered. (Most of the relays were either sprint or middle-distance lengths, although in the indoor season Quinnipiac competed in the distance medley relay race, too.) Martin only marked relay participation for those athletes who did not compete in any other races at a given meet. Thus, if a runner ran the 800-meter and the 4x800meter races, Martin’s spreadsheets would only account for the individual 800-meter performance, and the relay participation would not be noted. Even with this caveat, however, it is plain that distance events make up a substantial portion – indeed a majority as counted by Martin – of the races Quinnipiac entered during the indoor and outdoor track seasons.
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typical indoor meet, however, only about one-third of track races – not including field contests – are distance events.16 In the outdoor track season, distance events ballooned to 59.6 percent of
races entered by Quinnipiac runners, even though distance competitions continued to constitute only about one-third of outdoor track events.17 When the two seasons are taken together, 52.6
percent, or slightly more than half, of all the track events Quinnipiac’s women runners entered
qualified as distance contests, in comparison to 18.4 percent sprint events and 29.0 percent
middle-distance events. In addition to the number of distance races entered, it is also clear that
the cross-country runners are major contributors to the indoor and outdoor track teams. Using
Martin’s spreadsheets, Def. Exs. AJ & AR, and isolating the runners who participated on the
cross-country team, see Def. Ex. AB (women’s cross country squad list), reveals that cross-
country participants ran in 74 races in the indoor season, which constituted 54.4 percent of all of
Quinnipiac’s events, and in 68 total races in the outdoor season, which constituted 50 percent of
the school’s events. When the seasons are combined, the cross-country runners accounted for
52.2 percent of the teams’ total races entered.
The statistical evidence of the teams’ emphasis on distance running is consistent with
Martin’s description of the operation of the indoor and outdoor track programs. Martin testified
16 Based on the records of Quinnipiac’s 2009-10 indoor meets, see Def. Ex. AI, there are 13 running events usually offered at indoor track meets. Five are sprints (55 or 60 meter dash, 55 or 50 meter hurdles, 200 meter dash, 400 meter dash, 4x400 meter relay), four are middledistance (500 meter run, 800 meter run, 4x800 meter relay, 1,000 meter run), and four are distance (1 mile run, 3,000 meter run, 5,000 meter run, distance medley).
17 Based on the records of Quinnipiac’s 2009-10 outdoor meets, see Def. Ex. AP, there are 13 running events usually offered at outdoor track meets. Seven are sprints (100 meter dash, 100 meter hurdles, 4 x 100 relay, 200 meter dash, 400 meter dash, 400 meter hurdles, 4x400 relay), two are middle-distance (800 meter run, 4x800 relay), and four are distance (1,500 meter run, 3,000 meter steeplechase, 5,00 meter run, 10,000 meter run).
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that there is a self-reinforcing effect to focusing on distance running. Quinnipiac has traditionally been a strong school for distance running; the University has won the last five NEC women’s cross-country titles. But Martin said that, even with improved distance runners, her indoor and outdoor women’s teams would be unlikely to finish better than third in their current makeup; moreover, she admitted that the teams would be unlikely to ever win a conference title without competitors in field events. According to Martin, it therefore makes sense for her to continue emphasizing cross-country in order to maintain the University’s success, rather than commit to competing in field events for which she currently lacks infrastructure, coaching, and funding.
Female runners at Quinnipiac are unique in their competition for different teams across seasons. McDonald confirmed that, except for women’s runners, very few, if any, University athletes participate in multiple varsity sports. Lopiano agreed that such competition across sports was rare in college athletics except for runners; she said, however, that at most schools women’s participation in cross-country, indoor track and field, and outdoor track and field presents no Title IX problem because schools offer the same opportunities for male distance runners. But that is not the case at Quinnipiac, where neither indoor nor outdoor track is offered for men, and where male cross-country runners are not permitted to represent Quinnipiac as individual entrants at indoor and outdoor track meets.
Finally, at her deposition, Martin described the track teams as adjuncts of the crosscountry team, and further noted that cross-country runners were required to participate in the indoor and outdoor seasons. In other words, as a condition of competing on the cross-country team, runners also had to participate on the indoor and outdoor track teams. That was true even
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for cross-country athletes who were injured or red-shirting a season; they, too, had to join the indoor and outdoor track teams, even though they had little to no hope of competing during the season. During the 2009-10 indoor track season, three cross-country runners did not compete at all because of injury; one runner only competed in one meet because of injury; and one runner did not compete because she was red-shirted. See Def. Ex. AB (2009-10 cross-country squad list); Def. Ex. AJ (indoor track competition spreadsheet prepared by Martin). And during the 2009-10 outdoor track season, five cross-country runners did not compete at all because of injury, and one runner did not compete because she was red-shirted. See Def. Ex. AB (2009-10 cross-country squad list); Def. Ex. AR (outdoor track competition spreadsheet prepared by Martin). The evidence showed that such a requirement was unique to cross-country runners, and no other Quinnipiac varsity athlete was expected to participate on a second team in order to compete in his or her favored sport. Furthermore, no evidence was introduced showing that such a requirement was common among other Division I cross-country programs.
C. Competitive cheer Following the 2008-09 academic year, Quinnipiac decided to create a new women’s varsity sport: competitive cheer. Competitive cheer is an outgrowth of traditional sideline cheerleading. Competitive cheer teams use many of the moves and techniques that sideline cheer squads have developed over the decades, and their routines look like more athletic and aerobatic sideline cheer orchestrations. But whereas sideline cheerleaders primarily work to entertain audiences or solicit crowd reaction at other teams’ games or school functions, competitive cheer teams strictly engage in sport. Participants do not perform for a crowd’s approval or involvement – they compete to win. In order to distinguish their activity from their sideline roots, cheer teams
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do not attempt to elicit crowd response; generally do not use pom-poms, megaphones, signs, or other props associated with traditional cheerleading teams; do not wear skirts and sleeveless or cropped tops, but wear uniforms consisting of shorts and jerseys, much like what women’s volleyball players don; and emphasize the more gymnastic elements of sideline cheerleading, such as aerial maneuvers, floor tumbling, and balancing exercises, to the exclusion of those activities intended to rally the watching audience. As I noted in my preliminary injunction ruling, competitive cheer is an athletic endeavor that “could be easily described as ‘group floor gymnastics.’” Biediger, 616 F. Supp. 2d at 295.
Despite its athletic elements, however, competitive cheer is not recognized as a sport by the NCAA. Nor does the NCAA recognize competitive cheer as an “emerging sport,” a provisional designation that allows a university to count the activity toward NCAA revenue distribution and minimum sports sponsorship requirements. 2009-10 NCAA Division I Manual (Def. Ex. EP) § 20.02.25.1, at 298. Furthermore, the Department of Education has not recognized competitive cheerleading to be a sport. Indeed, schools reporting their athletic participation data to the Department of Education under the Equity in Athletics Disclosure Act (“EADA”) are instructed to report their cheerleading team rosters only if they have received a letter from OCR determining that their cheerleading squads are legitimately engaged in sport.18 U.S. Dep’t of Educ., Office of Postsecondary Educ., The User’s Guide for the Equity in Athletics Act Web-Based Data Collection (2009) (Pl. Ex. 110), at 19, 21.
Jeff Webb, who testified at trial, is at the center of competitive cheer’s history and
18 The EADA is a law separate from Title IX that requires an educational institution receiving federal funding and participating in intercollegiate athletics to report its athletic participation data for men and women to the Department of Education. 20 U.S.C. § 1092(g).
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maturation. Webb is the president of Varsity Brands, Inc., an athletic equipment manufacturer that caters to cheerleading teams. Through its subsidiary organizations the National Cheerleading Association (“NCA”), Universal Cheerleaders Association (“UCA”), and the United Spirit Association, Varsity Brands also holds competitions among scholastic cheerleading teams and private, “all-star” cheerleading teams.19 Webb’s involvement with the sport of cheerleading began in the early 1970s, when he was a student cheerleader at the University of Oklahoma. Shortly after graduating, he started UCA, which would eventually turn into Varsity Brands, with the intent of creating a business that would sell cheerleading equipment and offer training camps for cheerleaders. To help promote his business, Webb began holding competitions for cheerleaders, the first of which took place in 1980. Soon, those competitions began to be televised, and cheerleading began to be recognized as a form of competition. Webb testified, however, that he never imagined that his competitions would establish a new sport; rather, he understood his competitions as a publicity vehicle for his startup business.
After forming UCA, Webb formed the NCA as a new competition format for colleges and universities; the NCA held its first competition in 1990, and holds a national championship in Daytona Beach, Florida, every year. That Daytona Beach championship is, today, the marquee competitive event for cheerleaders. Webb said that, although technically different than the UCA, the NCA competition rules were essentially identical to those of the UCA. Today, the two organizations mainly differ in terms of the teams that compete in their competitions: UCA events are reserved for sideline cheerleading teams, while both sideline and competitive cheerleading
19 All-star teams are private, non-scholastic teams similar to privately organized travel baseball teams or Amateur Athletic Union squads. All-star teams vary in terms of the age and skill-level of their participants.
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teams may compete in the NCA format. In the NCA college competition, teams compete in two
segments: a minute-long “spirit” exercise judged by the enthusiasm the team generates in the
crowd, followed by a two- to two-and-a-half-minute team performance to showcase the team’s
athleticism and gymnastic skill. The NCA welcomes all college and university teams to
participate in its competitions, and has divisions to distinguish schools based on their size and
ability; the organization, however, does not have a progressive or playoff system to winnow a
final champion. Besides hosting competitions among cheerleading teams, NCA events also
feature competitions among school dance teams and mascots.
As was true with the UCA’s competitive events, Webb did not believe that his NCA
competitions would eventually establish a sport that would, some day, be recognized by athletics
organizations such as the NCAA. Instead, he envisioned NCA competitions as a further promotion of his cheerleading supply business.20 Indeed, testimony at trial revealed that the
NCA’s scoring system was intertwined with the promotion of Varsity Brands. During the
“spirit” portion of the competition, cheerleading teams are awarded points for using props, such
as pom poms, sold by Varsity Brands; the more props a team uses, the more points that team
receives. Webb testified that he was not averse to competitive cheerleading eventually becoming
20 Although Webb did not think that he was establishing a sport, his involvement in the creation of the USA Federation for Sport and Cheer (“USA Cheer”), a putative governing body for American sideline cheer, shows that he is open to the possibility of sideline cheerleading being recognized as a sport at some point. See Def. Ex. FN (bylaws of USA Cheer). Webb testified that USA Cheer was designed to give him flexibility to have a hand in sideline cheerleading should it, in the future, become recognized as a sport. Despite his involvement in USA Cheer, his testimony was consistent that he did not believe cheerleading was a competitive sport yet. Furthermore, in his testimony he distinguished competitive cheer, which is more likely to be recognized as a sport, from the traditional sideline cheer he supports through the NCA and UCA competitions and which USA Cheer is intended to regulate.
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an independent sport. Still, as a sideline cheerleading purist, Webb wants competitive cheer to be distinguished from traditional sideline cheer out of concern that competitive cheer will threaten his competitions – for instance, competitive cheer might annex certain moves and routines from sideline cheer – and lead to confusion about the difference between the two forms of cheerleading. Webb did not think that the rise of competitive cheer would hurt his business, however. On the contrary, he welcomed its emergence, believing that the creation of new competitive cheer teams at high schools, colleges, and universities would increase demand for Varsity Brands’ products and services.
Previously, Quinnipiac had a women’s sideline cheerleading unit that performed at men’s basketball games and, once or twice a year, entered competitions against other schools. Those competitions included participating in the NCA championship in Daytona Beach. For the 200910 academic year, however, a new cheerleading team was created for the exclusive purpose of competition. Mary Ann Powers, the coach of Quinnipiac’s sideline cheer unit, was asked by the athletics department to head the new competitive cheer program in March 2009. She accepted the offer and assumed her coaching role in the summer of 2009. In addition to Powers, two paid assistant coaches and one unpaid volunteer coach help manage the team. Before Powers was hired, Quinnipiac released an advertisement for the position of competitive cheer coach. Among other prerequisites, applicants were supposed to have experience recruiting athletes and familiarity with NCAA and NEC rules and regulations. When Powers accepted Quinnipiac’s offer, she was not qualified to recruit and was not familiar with the NCAA or NEC rules. Indeed, she was not cleared to recruit any athletes off-campus until the spring of 2010, when she passed the NCAA’s recruitment examination for coaches.
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The competitive cheer team was assigned an initial roster target of 30 players, a number that initially disappointed Powers, who had hoped to have 32 or 36 athletes. At the very least, she hoped to have a roster number that was a multiple of four, which represents the number of competitive cheer positions and the number of players necessary to perform certain cheer routines. Thompson told her that she would have to make do with 30 athletes for the 2009-10 season, but said that he would consider requests for more players in the future.
Although Powers was unable to recruit players off campus for the 2009-10 season, she said that her on-campus recruiting was sufficient to field a competitive team. Powers testified that there was very strong interest in the competitive cheer team among undergraduates, and that incoming and prospective Quinnipiac students contacted her to express their desire to participate. New students who were interested in joining the competitive cheer team were sent a questionnaire about their cheerleading and/or gymnastics experience. Powers also requested that interested students submit videos demonstrating their cheerleading skills. For the first season of the competitive cheer team, Powers elevated 16 students from her former sideline cheer unit. According to Powers, those students had participated on the sideline cheer team with an eye towards eventually competing exclusively; she testified that those members relished the opportunity to travel to the NCA championship in the spring and wanted to compete like other varsity athletes. After adding the veteran sideline cheer participants, there were 14 spots to be filled. Thirteen were freshmen, and the remaining player was a graduate student and former gymnast who still had a year of NCAA eligibility.
Quinnipiac allotted six full-time scholarships, worth $47,500 each, to the competitive cheer team. In the team’s first year, Powers only extended one and one-half scholarships, and
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distributed them among ten members in amounts ranging from $3,000 to $9,000 a year. Powers testified that she was cautious in how she assigned her initial scholarships because she wanted funds to be available for players in future classes. The competitive cheer team had an initial budget of $50,000, which covered the costs of travel, lodging, equipment, and other operational expenses. Ultimately, however, the team spent $130,000 during its inaugural season. That increase in costs is attributable, in part, to team trips to compete in Georgia and Florida.
Although the NCAA does not recognize competitive cheer as a varsity sport, the Quinnipiac competitive cheer team still followed applicable NCAA rules, such as requiring all participants to be cleared by Quinnipiac’s medical staff before competing and following practice time restrictions. Team practice, which focused on strength conditioning, skill development, and improving the team’s coordination and timing, was limited to eight hours in the off-season and 20 hours during the season, competitions included. Per NCAA rules, team members were also allowed to engage in individual practices not mandated by the team. Powers testified that her athletes received benefits on par with those received by other varsity teams, such as equipment; access to facilities, trainers, and strength and conditioning coaches; the opportunities to participate in “power hour” study halls and in the University’s “positive play” community service program; and publicity about the team’s news and successes. The competitive cheer team also acknowledged its own best athletes with team awards, and one participant won a university-wide scholar-athlete recognition. The competitive cheer team, however, did not receive locker room space, which the University extended to other varsity teams. The Quinnipiac competitive cheer team also had to buy separate catastrophic insurance coverage because, as a non-recognized sport, it was not covered by the NCAA’s insurance program.
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In addition to forming a new competitive cheer team, Quinnipiac joined and helped establish a nascent intercollegiate competitive cheer organization, the National Competitive Stunt and Tumbling Association (“NCSTA”), with seven other schools: the University of Maryland, Fairmont State University, the University of Oregon, Azusa Pacific University, Baylor University, Fort Valley State University, and Ohio State University. Five of the NCSTA schools – Quinnipiac, Maryland, Fairmont State, Oregon, and Azusa Pacific – fielded varsity competitive cheer squads for the 2009-10 academic year; the other three schools either were planning to sponsor a varsity competitive cheer team soon or had club teams that, eventually, could be elevated to varsity status. The NCSTA was independent of the NEC or any other athletic conference. McDonald testified, however, that there was a precedent for Quinnipiac and other college teams to compete outside the NEC: when the men’s lacrosse and women’s ice hockey teams began there were not enough NEC teams for them to compete in conference. Like those sports, competitive cheer could not be expected to play in the conference when other NEC schools did not field rival teams to compete against.
The NCSTA held its first organizational meeting, dubbed the “Cheer Summit,” in September 2009 at the University of Maryland. McDonald and Powers attended that meeting on Quinnipiac’s behalf. At the Cheer Summit, the member NCSTA schools discussed a number of foundational issues for organizing the sport of competitve cheer, including what to call the sport itself: Quinnipiac referred to the sport as “competitive cheer,” while the University of Oregon christened its squad a “competitive stunt and tumbling” team.21 Mainly, the NCSTA members
21 Because Quinnipiac refers to its team as “competitive cheer,” so too do I in this memorandum of decision. I note, however, that the chosen nomenclature – specifically, its incorporation of the word “cheer” – has no bearing on my decision whether competitive cheer is
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conferred about the rules of competition for the sport and developing a set of governing bylaws. Although the schools held some basic common beliefs about the sport – for example, the members were unanimous that competitive cheer teams should only engage in competition, and not support other varsity teams in a sideline capacity – there was no consensus on finer questions, such as how many players should compete, how the sport should be scored, and how the regular and post-seasons should be structured. Indeed, even the organization of the NCSTA still had to be determined; at the time of the meeting, and to this day, the NCSTA is a loosely defined, unincorporated association with no board of directors, subcommittees, voting or petition systems for its members, or other hallmarks of a governing national athletics organization.
By the end of the Cheer Summit, the NCSTA agreed to the following rules for the 200910 season: (1) the competitive cheer season would last 132 days, counting back from the final championship event, which, in 2009-10, would be the April 2010 NCA Daytona Beach national championship; (2) each competitive cheer team could have up to three paid coaches, and could have one additional volunteer coach; (3) each team must compete in at least eight contests, including the championship, over the course of the season; (4) no team could have more than 12 scholarship spots; (5) teams could have approximately 35 players, although the number was never decided definitively; (6) competitions must be played on cushioned mats; and (7) a certified trainer must be present at all practices and competitions. See Def. Ex. FT, at D13367 (McDonald’s notes from the Cheer Summit). The NCSTA defined the sport’s four positions: flyers, who are thrown in the air and perform various spins and flips while in flight; back spots, who provide support and are responsible for directing groups on a team; and main and support
a sport that offers genuine athletic participation opportunities for women under Title IX. -37-

bases, who are responsible for supporting and lifting flyers. Finally, the NCSTA developed an initial set of rules for its competitions during the 2009-10 season. A team’s score is a composite of six discrete events: the stunt, tumble, pyramid, basket toss, partner stunt, and team events. The scoring system is akin to gymnastics and figure skating. Teams select the routine that their players will perform in each event, and each routine has a predetermined score value; whether the teams meet that score depends on the quality and accuracy of their execution. Scores are determined by panels of five judges.
Despite the establishment of the NCSTA and a single, uniform set of rules to govern intercollegiate competitive cheer, the 2009-10 Quinnipiac competitive cheer season was marked by inconsistency in terms of whom the University competed against and what scoring system was applied. The first date of competition for the Quinnipiac competitive cheer team was December 5, 2009; that meet was against sideline cheerleading teams from SUNY Stony Brook and Babson College at the Hartford Civic Center. Before that, the team held an exhibition on campus to showcase the new competitive cheer program; that exhibition, however, was not a competition against another team. On February 5, 2010, the competitive cheer team competed at Kennesaw State University, in Georgia, against Fairmont State, Maryland, Oregon, and the University of Georgia, according to the NCSTA competition format. All of those teams were exclusively competitive and did not provide sideline entertainment for other sports teams. The next day, Quinnipiac competed in Atlanta at an event sponsored by Cheer Sport, an independent cheerleading organization. That event was scored according to Cheer Sport’s rules, and Quinnipiac competed against two sideline cheer teams from the University of Louisville and Coastal Carolina University, and three competitive cheer teams from North Carolina State
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University, Georgia, and Ohio State. On February 28, 2010, Quinnipiac held a home meet at its campus in Hamden, Connecticut. That event featured competitions among middle school, high school, all-star, and college sideline cheer teams, in addition to contests among college competitive teams; Quinnipiac, however, competed only against the University of Maryland, another varsity competitive cheer squad, Babson College’s sideline team, and the University of Connecticut club team. That meet was scored according to the NCSTA’s rules.
On March 6, 2010, at a meet in East Haven, Connecticut, the Quinnipiac competitive cheer team competed against collegiate sideline and high school teams according to the NCA scoring system. Later in the season, on March 20, 2010, Quinnipiac competed against “all-star teams” that featured high school-aged players. On March 27, 2010, Quinnipiac participated in an event hosted by the New England Cheering Association (“NECA”), in which the University competed against four collegiate sideline cheer teams. At the final event of the season, the NCA championship held in April 2010, Quinnipiac competed against other collegiate competitive cheer teams. But, as part of its competition, Quinnipiac was awarded points for using pom poms and other props associated with sideline cheer and produced by Varsity Brands, NCA’s corporate parent. Furthermore, the team was judged on its ability to solicit a crowd response, which is an element of sideline cheerleading, and not competitive cheer. Powers testified, however, that the crowd response segment of the NCA championship lasted no more than 45 seconds, and that her team’s efforts at Daytona Beach were the only time that the Quinnipiac competitive cheer squad engaged in such “spirit” activity during the 2009-10 season.
The following chart summarizes the Quinnipiac competitive cheer season. It shows the dates on which Quinnipiac’s competitive cheer team played, the site of each competition, the
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type of opponent, and the scoring system employed. The types of opponents are divided into four groups: (1) “competitive” college teams dedicated specifically to competitive cheer, regardless of whether the team is sponsored as a varsity or club sport; (2) “sideline” college teams whose primary purpose is to perform at other teams’ games and events; (3) “high school” cheer teams sponsored by their schools, regardless of whether they are primarily competitive or sideline squads; and (4) “all-star” teams from private gyms or organizations that are unaffiliated with any school. The scoring systems are designated by their governing bodies. The chart notes when no scoring system was used or if the scoring system was not described at trial.

DATE 12/03/2009 12/05/2009 01/16/2010
02/05/2010 02/06/2010, 02/07/2010 02/13/2010 02/28/2010 03/06/2010
03/20/2010
03/27/2010 04/08/2010, 04/09/2010

LOCATION Hamden, CT Hartford, CT Fairfield, CT
Kennesaw, GA Atlanta, GA

OPPONENT TYPE SCORING SYSTEM

None: no opponents None

Sideline

Spirit Unlimited

None: both

None

opponents scratched

Competitive

NCSTA

Competitive, Sideline Cheersport

Woodbury, CT Hamden, CT East Haven, CT
New Haven, CT
Kingstown, RI Daytona Beach, FL

Sideline

NCA

Competitive, Sideline NCSTA

Sideline, High School

NCA

Competitive, Sideline, All-star

Unknown – but not NCSTA

Sideline

NECA

Competitive

NCA

As the chart shows, over the course of its season, the competitive cheer team competed -40-

against a variety of opponents and according to scoring systems promulgated by a host of organizations. Quinnipiac competed against other collegiate competitive cheer teams, including varsity and club teams; collegiate sideline cheer teams that competed occasionally; private allstar teams with players of varying ages; and even, at one event, high school teams. Only two of its meets were scored according to the NCSTA scoring rules. The rest of the events were subject to different scoring systems, although Powers testified that every form of competitive cheer scoring emphasized the same skill sets as those graded by the NCSTA scoring conventions.
Representatives of the NCSTA schools met again to refine the association’s rules following the 2009-10 season. After conferring, the NCSTA instituted the following changes for the 2010-11 season: (1) the NCSTA would hold its own championship independent of the NCA, although every NCSTA team would qualify to compete, assuming that each team met the organization’s scheduling and roster requirements for the season; (2) NCSTA schools must compete in six competitions exclusive of the NCSTA championship, (3) at least half of the competitions scheduled must follow the NCSTA’s rules and format, and each competition must be against at least one other collegiate team; (4) competitive cheer teams can practice no more than eight hours a week during the off-season and 20 hours a week while in season; (5) there is no maximum squad size, although only 28 athletes can travel to competitions; and (6) NCSTA membership would be available to all competitive cheer teams sponsored as varsity teams by their schools’ department of athletics, as well as any club teams, provided that they are formally sponsored as club teams and their schools are committed to sponsoring them as varsity programs eventually. See Def. Ex. FT. Although the NCSTA instituted those changes for the 2010-11 season, the organization did not, and to this day has not, created a permanent set of bylaws to
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govern competitive cheer. Instead, as one might expect of a still-developing sport, the NCSTA rules remain somewhat in flux.
At the April 2010 meeting, the NCSTA also discussed developing a website, logo, and a single marketing plan for the sport of competitive cheer. In particular, the NCSTA members discussed creating a more athletic branding image to counter the stereotype that cheerleading is necessarily sideline entertainment, and not a sport in its own right. The NCSTA also agreed that the association would apply to the NCAA for competitive cheer to be recognized as an emerging sport. McDonald testified, however, that qualifying as an NCAA emerging sport would not be feasible until the end of the 2010-11 season because there were not enough teams to support competitive cheer as an emerging sport. To qualify, a putative emerging sport must have ten schools that either are already sponsoring varsity teams or will commit to sponsoring a team in the near future.
Besides seeking recognition from the NCAA, NCSTA representatives discussed whether and how to obtain approval from OCR for competitive cheer to count as a sport under Title IX. For the 2009-10 season, Quinnipiac never sought a letter from OCR determining that its competitive cheer members were athletic participants for the purpose of Title IX. The University did not seek the letter despite a requirement set forth on the EADA reporting forms, which states that a school may not count cheerleading as a varsity sport without an OCR determination letter; instead of requesting the letter, Quinnipiac chose not to include its competitive cheer data on its EADA disclosure. According to McDonald, Quinnipiac did not seek a letter from OCR because the University of Maryland had tried previously and unsuccessfully to get OCR approval for its varsity competitive cheer team; as McDonald understood Maryland’s experience, OCR told
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Maryland that it would not render a ruling and, instead, Maryland should use its own discretion to decide whether a varsity competitive cheer team met Title IX’s mandate. Quinnpiac has no plans to seek a determination letter from OCR in advance of the 2010-11 season.
Currently, the Quinnipiac competitive cheer team has committed to participating in five NCSTA-sanctioned competitions in 2010-11. It is planning to add a sixth NCSTA event. In either case, it will have enough NCSTA events to qualify for the organization’s championship. Quinnipiac is not planning on participating in next year’s NCA Daytona Beach championship.
D. Changes for 2010-11 Thompson released the new roster targets to Quinnipiac’s head coaches in June 2010, again after the recruiting season had ended and incoming students had paid their enrollment deposits, but in time for the University to calculate the percentages of men and women enrolling as undergraduates for the coming academic year. Thompson met with all coaches in May 2010, however, to discuss the 2009-10 experience and what size roster they anticipated needing for the following year. According to Thompson, during those meetings no head coach complained about the size of his or her 2009-10 roster target. Quinnipiac’s new roster targets differed from the targets for the 2009-10 year. Of note, the women’s cross-country team was expanded from 18 to 24 runners, while the men’s crosscountry team continued to have 13 roster slots. That increase was in response to a request made by Martin for more female runners. The additional six cross-country runners translated to a near parallel increase in the number of indoor and outdoor track participants. Those teams’ rosters are set to expand from 30 to 35 runners. With those roster increases, the Quinnipiac women’s crosscountry team would have seven more runners than the average NCAA team and 11 more runners
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than the average NEC team; and the University women’s indoor and outdoor track teams would have three fewer participants than the NCAA average but five more participants than the average conference squad, despite having no field participants.
The women’s competitive cheer roster was also increased by six athletes, bringing the total roster size to 36 participants for the 2010-11 season. Powers testified that she has 24 students who intend to return for the coming season, but only 18 were guaranteed spots. There are 10 incoming freshmen who have already been guaranteed scholarship money, and another three incoming students who will participate without financial aid. Powers reported that interest to compete on the 2010-11 team was strong among prospective students; because Quinnipiac is one of a handful of schools nationally to offer competitive cheer as a varsity sport, there was great demand among graduating high school seniors who wanted to continue their cheerleading or gymnastics careers in college. That leaves five roster spots for walk-ons. Powers anticipates the competition for those remaining spots to be intense: she expects 30 to 35 students to try out for those positions.
The University plans to cancel the women’s volleyball program, thus eliminating the team’s 12 roster spots. Those positions will be made up for – and, in fact, exceeded, should the new indoor and outdoor track positions count under Title IX – by the new roster spots on the women’s cross-country and competitive cheer teams. If, however, the University does not cut the women’s volleyball program, it has set a roster target of 14 players for the team.22 But, as
22 Besides the changes to the women’s cross-country, indoor track, outdoor track, and volleyball teams, the University also plans on increasing the men’s basketball team by two spots, decreasing the women’s soccer team by two spots, increasing the women’s lacrosse team by one spot, and decreasing the women’s softball team by one spot. Def. Ex. BQ.
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Thompson testified, because of the relatively small size of the women’s volleyball team, maintaining or eliminating the women’s volleyball team will have little effect on Quinnipiac’s compliance with Title IX. With or without women’s volleyball, the University believes it will offer athletic participation opportunities for women that are substantially proportional to Quinnipiac’s female undergraduate enrollment.
Quinnipiac anticipates that, in 2010-11, women will make up 61.9 percent of the undergraduate population and fill 63.79 percent of the school’s athletic participation opportunities. Those figures assume that the 14 women will play volleyball. In the event that the volleyball program is cancelled, Quinnipiac anticipates there will be 282 female athletes and 450 athletes overall. That results in 62.67 percent of the school’s athletic participation opportunities being assigned to women, which, as Thompson predicted, is proportional to the percentage of women in Quinnipiac’s undergraduate program. II. Standard of Review
Title IX prohibits discrimination on the basis of sex in education programs and activities. The statute provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The words “program or activity” are defined as “all of the operations of . . . a college, university or other postsecondary institution.” 20 U.S.C. § 1687(2)(A). It is undisputed that Quinnipiac is such a “program or activity” that receives federal funding and, therefore, is subject to Title IX’s prohibition of sex discrimination.
The statutory language of Title IX is silent with respect to universities’ athletics
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departments, and the scope and mechanics of its application have been defined by subsequent agency regulations and interpretations. In 1975, what was then the Department of Health, Education, and Welfare (HEW) – which was later separated into the Department of Health and Human Services (HHS) and the Department of Education (ED) – promulgated regulations pursuant to Title IX that required universities to provide equal opportunity for men and women in their athletics programs. See generally Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir. 1993) (describing history of federal regulation of post-secondary athletics programs under Title IX ). Those regulations, which survive today, list ten factors to be considered when determining whether a school has provided such equal athletic opportunity. The first factor, and the one relevant to the decision of this case, is “[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” 34 C.F.R. § 106.41(c)(1).
In 1979, HEW published a policy interpretation in the Federal Register defining the phrase “effectively accommodate the interests and abilities of members of both sexes” in 34 C.F.R. § 106.41(c)(1). That policy interpretation states that whether a university meets its obligation to “effectively accommodate the interests and abilities of members of both sexes” will be determined in one of the following three ways:
(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest[s] and abilities of the members of that sex; or
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(3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. Policy Interpretation; Title IX and Intercollegiate Athletics (“1979 Policy Interpretation”), 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979). Those three means of assessing Title IX compliance establish safe harbors for universities; a school has complied with its requirement to accommodate the interests and abilities of male and female students if its succeeds in meeting any of the prongs set forth in the 1979 Policy Interpretation. Cohen, 991 F.2d at 897. In this case, Quinnipiac defends against the plaintiffs’ allegations of sex discrimination by relying on the first prong, contending that, because it provides athletic participation opportunities for women in numbers substantially proportionate to its undergraduate female enrollment, the University is in compliance with Title IX. The University does not argue that it meets Title IX’s mandate by satisfying the second or third prongs of the 1979 Policy Interpretation. On December 16, 1996, OCR, the body responsible for enforcing Title IX, published a letter that clarified, inter alia, the meaning of the first prong: “[w]hether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.” OCR stated that, in determining whether a university provides substantially proportionate participation opportunities for its male and female students, its “analysis begins with a determination of the number of participation opportunities afforded to male and female athletes in the intercollegiate athletic program.” Jan. 16, 1996 Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (“1996 Clarification”) at 2-3. The 1979 Policy Interpretation defines “athletes” as students:
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a. Who are receiving the institutionally-sponsored support normally provided to athletes competing at the institution involved, e.g., coaching, equipment, medical and training room services, on a regular basis during a sport’s season; and
b. Who are participating in organized practice sessions and other team meetings and activities on a regular basis during a sport’s season; and
c. Who are listed on the eligibility or squad lists maintained for each sport; and
d. Who, because of injury, cannot meet a, b, or c above but continue to receive financial aid on the basis of athletic ability.
Id. at 3 (quoting 44 Fed. Reg. at 71,415). OCR stated that “[a]s a general rule, all athletes who
are listed on a team’s squad or eligibility list and are on the team as of the team’s first
competitive event are counted as participants” and “an athlete who participates in more than one
sport will be counted as a participant in each sport in which he or she participates.” Id. Finally,
OCR clarified that a participant on a team need not meet minimum criteria of playing time or
athletic ability to count for Title IX purposes.
OCR includes, among others, those athletes who do not receive scholarships (e.g., walk-ons), those athletes who compete on teams sponsored by the institution even though the team may be required to raise some or all of its operating funds, and those athletes who practice but may not compete. OCR’s investigations reveal that these athletes receive numerous benefits and services, such as training and practice time, coaching, tutoring services, locker room facilities, and equipment, as well as important non-tangible benefits derived from being a member of an intercollegiate athletic team. Because these are significant benefits, and because receipt of these benefits does not depend on their cost to the institution or whether the athlete competes, it is necessary to count all athletes who receive such benefits when determining the number of athletic opportunities provided to men and women.
Id. Although the scope of who counts as an athlete is broader than scholarship athletes who
receive playing time, OCR was careful to emphasize, in a letter accompanying the 1996
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Clarification, that for an athlete to be counted, he or she must be afforded a participation opportunity that is “real, not illusory,” and offers the same benefits as would be provided to other bona fide athletes. Letter from Norma V. Cantú, Assistant Secretary for Civil Rights of the Department of Education (Jan. 16, 1996) (“1996 OCR Letter”) at 4.
Once all athletes – or, stated differently, all genuine participation opportunities – are counted, the second and final part of analyzing a university’s compliance under the first prong is deciding whether the numbers of genuine participation opportunities are substantially proportionate for men and women. 1996 Clarification at 4. OCR was clear that substantial proportionality does not require exact proportionality. Rather, whether a school meets the first prong is determined on a case-by-case basis, and involves assessing the percentage of female athletes relative to female enrollment and taking into account “the institution’s specific circumstances and the size of its athletic program.” Id. To provide a baseline, OCR said that a university would fail to satisfy the substantial proportionality test if, assuming the school lacked perfect proportionality, the number of additional women to achieve such proportionality would be insufficient to constitute a varsity team. Id. So, for example, if a school has five fewer female athletes than needed to reach exact proportionality, OCR would find the athletic program to be substantially proportional because no varsity team can be sustained with so few participants.
Finally, in the letter that accompanied the 1996 Clarification, OCR stated that, although universities will be subject to the agency’s counting methodology, schools retained “flexibility and choice regarding how they will provide nondiscriminatory participation opportunities.” 1996 OCR Letter at 4. That flexibility includes eliminating teams or placing caps on their rosters in order to achieve substantial proportionality. Id. Nonetheless, regardless of the means it chooses
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to comply with the 1979 Policy Interpretation’s first prong, a university will not meet the substantial proportionality threshold if the participation opportunities it provides to women are not genuine.
In a letter published on September 17, 2008, OCR went further in describing what it considers to be a genuine athletic participation opportunity. In that letter, the agency clarified a basic point: for an athletic participation opportunity to be counted in the substantial proportionality analysis, that participation opportunity must take place in the context of an intercollegiate varsity “sport.” To ascertain whether a team is engaging in a varsity “sport,” OCR “considers several factors related to an activity’s structure, administration, team preparation, and competition.” Letter from Stephanie Monroe, Assistant Secretary for Civil Rights of the Department of Education (Sept. 17, 2008) (“2008 OCR Letter”) 1. First, OCR considers whether the university is a member of a recognized intercollegiate athletic organization, such as the NCAA or National Association of Intercollegiate Athletics, and whether the sport in question is subject to the “organizational requirements” promulgated by that organization. If the school belongs to such an organization and its varsity sports are governed by the organization’s rules, then “OCR will presume that such an institution’s established sports can be counted under Title IX.” Id. at 2. If that presumption does not apply, or if the presumption has been effectively rebutted, OCR will then consider a bevy of factors that bear on whether an activity amounts to a varsity “sport.” Those factors include the following:
I. Program Structure and Administration: . . . . (A) Whether the operating budget, support services (including academic, sports medicine and strength and conditioning support) and coaching staff are administered by the athletics department or another entity, and are provided
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in a manner consistent with established varsity sports; and
(B) Whether the participants in the activity are eligible to receive athletic scholarships and athletic awards (e.g., varsity awards) if available to athletes in established varsity sports; to the extent that an institution recruits participants in its athletics program, whether participants in the activity are recruited in a manner consistent with established varsity sports.
II. Team Preparation and Competition: . . . .
(A) Whether the practice opportunities (e.g., number, length and quality) are available in a manner consistent with established varsity sports in the institution’s athletics program; and
(B) Whether the regular season competitive opportunities differ quantitatively and/or qualitatively from established varsity sports; whether the team competes against intercollegiate or interscholastic varsity opponents in a manner consistent with established varsity sports;
When analyzing this factor, the following may be taken into consideration:
1. Whether the number of competitions and length of play are predetermined by a governing athletics organization, an athletic conference, or a consortium of institutions;
2. Whether the competitive schedule reflects the abilities of the team; and
3. Whether the activity has a defined season; whether the season is determined by a governing athletics organization, an athletic conference, or a consortium.
(C) If pre-season and/or post-season competition exists for the activity, whether the activity provides an opportunity for student athletes to engage in the pre-season and/or post-season competition in a manner consistent with established varsity sports; for example, whether state, national and/or conference championships exist for the activity; and
(D) Whether the primary purpose of the activity is to provide athletic competition at the intercollegiate or interscholastic varsity levels rather than to support or promote other athletic activities.
When analyzing this factor, the following may be taken into consideration:
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1. Whether the activity is governed by a specific set of rules of play adopted by a state, national, or conference organization and/or consistent with established varsity sports, which include objective, standardized criteria by which competition must be judged;
2. Whether resources for the activity (e.g., practice and competition schedules, coaching staff) are based on the competitive needs of the team;
3. If post-season competition opportunities are available, whether participation in post-season competition is dependent on or related to regular season results in a manner consistent with established varsity sports; and
4. Whether the selection of teams/participants is based on factors related primarily to athletic ability.
Id. at 2-4 (footnote omitted).
Whether an activity is a sport will depend on the facts specific to the institution and will
be decided based on the totality of those factors. Id. at 2, 4. In the 2008 OCR Letter, however,
OCR reiterated its position that institutions must be permitted to retain flexibility in meeting the
requirements of Title IX.
It is OCR’s policy to encourage compliance with the Title IX athletics regulations in a flexible manner that expands, rather than limits, student athletic opportunities. . . . Expanding interscholastic and intercollegiate competitive athletic opportunities through new sports can benefit students by creating and stimulating student interest in athletics, taking advantage of athletic opportunities specific to a particular competitive region, and providing the opportunity for access to a wide array of competitive athletic activities.
Id. at 4. Still, permitting universities space to cultivate new athletic opportunities for women
does not do away with the fundamental requirement that, for an athletic opportunity to count
under Title IX, it must be genuine, meaning that it must take place in the course of playing an
actual “sport” and it must allow an athlete to receive the same benefits and experience that she
would receive if she played on another established varsity squad.
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Finally, in 2000, eight years before its 2008 Dear Colleague Letter, OCR issued two
letters to the Minnesota State High School League (“MSHSL”) concerning the agency’s then-
existing standards for what constituted a “sport” under Title IX. In the first letter, dated April 11,
2000, OCR informed the MSHSL of the factors that it considered with respect to whether an
activity is a sport. That letter closed with following passage:
Certain school activities in which students are engaged may be activities that require a considerable amount of athleticism, but not every athletic activity qualifies as a sport. Consistent with earlier policy statements, there is a presumption by OCR that drill teams, cheerleading and other like activities are extracurricular activities and are not considered sports or part of an institution’s athletic program within the meaning of the Title IX regulation.
Letter from Mary Frances O’Shea, National Coordinator for Title IX Athletics, Office of Civil
Rights, United States Department of Education, to David V. Stead, Executive Director, Minnesota State High School League (Apr. 11, 2000) (“April 2000 OCR Letter”) at 3.23 OCR
added that, although cheerleading is presumed not to be a sport, any decision about a particular
school or program’s cheerleading team would be made on a case-by-case basis. Id.
In a second later dated May 24, 2000, OCR told MSHSL that, with respect to its April 11,
2000 letter, “the term cheerleading . . . includes both competitive and sideline cheer; other like
activities would include all extracurricular activities similar to drill teams and cheerleading, such
as danceline, skateline, and pep squads.” Letter from Mary Frances O’Shea, National
23 OCR’s position in 2000 that cheerleading is presumptively not a sport is consistent with a policy first announced by HEW in 1975, in which HEW ruled cheerleading to be an extracurricular activity, and not a varsity sport, for purposes of Title IX. See Letter from Peter E. Holmes, OCR, to Chief State School Officers, Superintendents of Local Educational Agencies and College and University Presidents (Nov. 11, 1975) at 3 (“However, drill teams, cheerleaders and the like, which are covered more generally as extracurricular activities . . . , are not a part of the institution’s ‘athletic program’ within the meaning of the regulation.”).
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Coordinator for Title IX Athletics, Office of Civil Rights, United States Department of Education, to David V. Stead, Executive Director, Minnesota State High School League (May 24, 2000) (“May 2000 OCR Letter”). It added that in every case where OCR has evaluated whether a cheerleading or drill team constitutes participation in a sport, the agency concluded that the team was not a sport and that team members could not be counted as athletes under Title IX. The parties to this lawsuit have stipulated that, since 2000, OCR has never held an intercollegiate varsity cheerleading program to be a sport for Title IX purposes. The United States, in its amicus brief, has confirmed that as well. Br. of the United States as Amicus Curiae at 13.
Both sides in this case agree that OCR’s regulations, policy interpretation and clarification, and letters should be followed in deciding whether Quinnipiac has violated Title IX. Furthermore, I am bound to defer to OCR’s interpretation of Title IX. First, the regulation set forth at 34 C.F.R. § 106.41(c)(1), which makes the question whether the “selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes” a factor to consider when determining whether a university provides equal, nondiscriminatory athletic opportunities to both sexes, is a reasonable interpretation of Title IX promulgated by HEW (and, today, enforced by OCR) according to specific congressional delegation. McCormick ex rel. McCormick v. School Dist. of Mamaroneck, 370 F.3d 275, 288 (2d Cir. 2004); Cohen, 991 F.2d at 895 (citing Education Amendments of 1974, Pub. L. No. 93380, § 844, 88 Stat. 612 (1974)). For that reason, the regulation is owed “‘particularly high deference’” under the doctrine of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). McCormick, 370 F.3d at 288 (quoting Cohen, 991 F.2d at 895).
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The remaining administrative interpretations of that regulation – the 1979 Policy Interpretation, the 1996 Clarification and accompanying letter, the April and May 2000 OCR Letters, and the 2008 OCR Letter – are also owed deference. The Second Circuit has previously held that courts owe the 1979 Policy Interpretation deference because “it is both persuasive and not unreasonable,” and would therefore receive deference under either the standards of Chevron or Skidmore v. Swift & Co., 323 U.S. 134 (1944). McCormick, 370 F.3d at 290; see also id. at 300 (applying three-part test of 1979 Policy Interpretation for determining whether high school districts effectively accommodated female students by providing equal athletic participation opportunities). The Second Circuit has not ruled on the deference due the 1996 Clarification, but its sister courts have held that the OCR 1996 Clarification, like the 1979 Policy Interpretation, is deserving of deference. E.g., Mansourian v. Regents of the Univ. of Cal., 602 F.3d 957, 965 n.9 (9th Cir. 2010) (noting that the Ninth Circuit and other circuits “have held that both the [1979] Policy Interpretation and the [1996] Clarification are entitled to deference,” and citing cases in support); see also McCormick, 370 F.3d at 300 (citing, without relying upon, the 1996 Clarification).
Lastly, although no federal court appears to have been presented with the question whether the 2000 and 2008 OCR letters also deserve deference, there seems to be little question that this court should defer to them insofar as they represent OCR’s interpretation of its own regulations. As a general proposition, courts are to defer to an agency’s interpretation of its own regulations. “It is well established that an agency’s construction of its own regulations is entitled to substantial deference. . . . Because applying an agency’s regulation to complex or changing circumstances calls upon the agency’s unique expertise and policymaking prerogatives, we
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presume that the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” Martin v. Occupational Safety & Health Review Comm’n, 449 U.S. 144, 150-51 (1991) (internal quotations omitted); see also Kelly v. Bd. of Trs., 35 F.3d 265, 271 (7th Cir. 1994) (holding that OCR’s Title IX policy interpretation is owed deference provided that the interpretation is reasonable). Neither party has challenged the reasonableness or persuasiveness of OCR’s interpretations of the Title IX regulations in its 2000 and 2008 letters. That is true despite the letters containing presumptions that are likely detrimental to each party: in the April and May 2000 OCR Letters, Quinnipiac is subject to a presumption against treating competitive cheerleading as a sport, while in the 2008 OCR Letter, the plaintiffs are subject to a presumption in favor of treating NCAA-governed activities, such as Quinnipiac’s indoor and outdoor track and field teams, as sports.
Those letters are ultimately entitled to deference because they create a reasonable and persuasive method – best captured by the 2008 OCR Letter, which builds upon the list of factors first proposed in the April 2000 OCR Letter – for determining which activities count as sports for Title IX purposes. The 2008 OCR Letter correctly recognizes that an intercollegiate sport is defined not only by the activity’s athletic elements, but also by its structure, administration, and the competition it fosters. Put differently, the OCR factors appropriately weigh not only the physical nature of the activity itself, but also how the experience of participating in that activity compares to the experience of participating on other varsity sports teams. That inquiry is reasonable, persuasive, and entirely consistent with OCR’s goal of ensuring not only that female students are offered equal athletic participation opportunities, but that those participation opportunities are real, and not illusory. For those reasons, I will defer to the 2000 and 2008 OCR
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Letters interpreting OCR’s regulations and will use the method they prescribe for determining whether an activity may be treated as a sport under Title IX.
Having concluded that I must defer to the various sources of OCR Title IX regulations, I now synthesize the agency’s Title IX analysis to provide the standard of review that I will apply in this case. Whether Quinnipiac has complied with Title IX by providing substantially proportionate athletic participation opportunities for its female students is determined by a twopart test. The first step involves determining which of the University’s putative varsity athletic participation opportunities should be counted for Title IX purposes. Whether an athletic participation opportunity will be counted depends on whether it affords an athlete a genuine opportunity to participate in a varsity sport. To be a genuine participation opportunity, an athlete must participate in a legitimate “sport,” which is assessed by considering the set of factors set forth in the 2008 OCR Letter. That includes the presumption in favor of NCAA sports being recognized as sports, as well as the presumption against cheerleading being considered a sport, for the purpose of determining whether Quinnipiac provides equal athletic participation opportunities to its female students. And even if an athlete participates on a varsity team in a bona fide “sport,” that athlete’s participation will be counted under Title IX only if the quality of his or her experience is on par with the experience of other varsity athletes. Thus, whether an athlete counts will hinge not only on whether he or she is on a roster list, practiced with a team, or competed in games over the course of the academic year; it will also be decided by examining the totality of the circumstances surrounding his or her participation.
Once all of the genuine athletic participation opportunities are counted, the second step of the test is to compare the percentage of athletic participation opportunities provided to women to
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the percentage of women enrolled as undergraduates. Whether there is a substantial proportionality between Quinnipiacs’s female athletes and female students will depend not just on a statistical figure but also on other facts specific to Quinnipiac, such as whether any shortage in female athletes is large enough to sustain an independent women’s varsity team that the University is not presently sponsoring.
Before applying that standard of review to the facts of Quinnipiac’s athletics program, I note two additional points. First, the central issues presented in this case lack much prior case law. It appears that no federal court has yet applied OCR’s test for whether a sponsored varsity activity can be treated as a sport for purposes of Title IX. Similarly, there is little precedent on judging whether an athlete’s experience on a varsity team qualifies as a genuine participation opportunity – i.e., whether his or her participation opportunity is real, and not illusory. In its amicus brief, the government urges the court to “‘look behind [the] numbers’ and examine the quality of opportunities being offered” by Quinnipiac in determining which of University’s proffered participation opportunities are genuine, just as I did in the preliminary injunction ruling. Br. of the United States as Amicus Curiae (doc. # 154) at 11 (quoting Biediger, 616 F. Supp. 2d at 297). I will apply that same standard here in determining which athletic participation opportunities may be counted in the first part of OCR’s test for substantial proportionality.
The second point is briefer. When discussing athletic participation opportunities in this decision, I mean varsity athletic participation opportunities. Quinnipiac provides its students opportunities to participate on club and intramural teams that, no doubt, are meaningful and genuine. The issue in this case, however, is only whether the University’s varsity program offers equal opportunity to its male and female students.
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III. Conclusions of Law A. Competitive cheer Competitive cheerleading is not a sport recognized by the NCAA, and the members of the
NCSTA have yet to apply to the NCAA for designation of competitive cheer as an emerging sport. Thus, competitive cheer is not entitled to any presumption in favor of it being considered a sport under Title IX. On the contrary, in its 2000 letters to the MSHSL, OCR explicitly stated that cheerleading is presumptively not a Title IX sport, although the agency reserved the possibility that, in certain cases, a school’s cheerleading program could be counted. Consistent with OCR’s policy, I turn to the set of factors that the agency uses to determine whether an activity is a sport – specifically, the factors listed in the 2008 OCR Letter – and examine whether, on the facts of the 2009-10 season, Quinnipiac’s competitive cheerleading team was a team whose members may be counted as athletes for purposes of Title IX.
1. Program structure and administration The competitive cheer team’s operating budget, benefits and services, and coaching staff are administered by the athletics department in a manner consistent with the administration of Quinnipiac’s other varsity teams. The team receives its operating budget and scholarship funding through the athletics department’s normal channels. In 2009-10, the cheerleading team was assigned an initial budget of $50,000 that was increased over the course of the year with approval of the athletics department; the team was also given six full-time scholarships to distribute among team members. Furthermore, team members are eligible to receive awards and recognition for their participation: competitive cheer has its own team awards, such as the year’s most valuable player award, and members are eligible for, and have received, University-wide
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recognitions, such as scholar-athlete honors. The competitive cheer team received benefits and services – such as equipment, medical treatment, strength and conditioning coaching, study halls, community service opportunities, and publicity – that were on par with other varsity teams. Finally, the competitive cheer coaching staff was administered like the coaching staff of other Quinnipiac varsity squads. Coach Powers answers to Jack McDonald, the athletic director, and Mark Thompson, the senior vice president for athletics and recreation, and is responsible for coaching and training her players, recruiting new athletes, distributing scholarships, and overseeing her team’s budget. Those responsibilities are the same duties for which other Quinnipiac varsity coaches are responsible.
But some factors relating to the team members’ participation do diverge from the typical varsity program. For instance, the competitive cheer team does not receive locker space, although the evidence at trial was not clear whether other varsity teams also lacked that benefit. In addition, unlike other varsity teams, the competitive cheer team did not receive NCAA catastrophic insurance, but had to obtain insurance from a separate provider. The most important difference in the team’s structure and administration, however, is its recruitment system. In 2009-10, no member of the Quinnipiac competitive cheer team was recruited off campus. Instead, all members of the competitive cheer team were selected from the pool of current Quinnipiac students, including women who were formerly members of the University’s sideline cheerleading team and incoming students who individually contacted Powers. According to Lopiano, the plaintiffs’ expert, off-campus recruiting is essential for Division I athletics programs. Although not every player on a team need be recruited by a coach – Title IX regulations recognize that a walk-on receives a genuine participation opportunity even though he
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or she was not recruited – a serious Division I team usually must engage in some off-campus recruiting in order to field a competitive squad.
Powers was unable to recruit off campus for at least two reasons. First, she was ineligible to conduct off-campus recruiting because, unlike the other Quinnipiac head coaches, she had not passed the NCAA’s recruiting examination for the 2009-10 season. In addition, Powers was unable to recruit off campus because Quinnipiac established the competitive cheer team in March 2009, which is relatively late in the college recruiting cycle. Lopiano testified that a Division I team usually must begin planning its recruitment at least one year in advance, and that the typical Division I head coach knows who the vast majority of her incoming players will be well before the beginning of the school year. Indeed, in some sports it is not uncommon for elite athletes to be recruited as early as tenth grade, more than two years before they will matriculate at a college or university. By inaugurating the competitive cheer team less than six months before the beginning of the 2009-10 academic year, Quinnipiac did not give Powers much lead time to find participants off campus, even if Powers had been permitted to engage in that kind of recruiting.
Powers testified that her inability to recruit team members off campus did not significantly hamper her team’s performance or ability to attract talented athletes. According to her, there was great interest among the undergraduate student body and incoming class in participating on the competitive cheer team, and the pool from which Powers was able to select was strong enough to field a solid squad. But the fact that the cheer team was, in fact, talented does not alter the conclusion that the team’s process of recruiting players was different than the process used by Quinnipiac’s other varsity teams and, for that matter, the process used by the typical NCAA Division I program. Although Powers is now eligible to recruit off campus – she
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passed the NCAA recruiting examination in June 2010, in time to recruit players for the 2011-12 season – the team’s recruitment for 2009-10 (and 2010-11) was nonetheless inconsistent with the manner in which the University’s other teams filled their rosters. That is a significant difference in program structure and administration, as compared to other varsity teams.
2. Team preparation and competition The 2008 OCR Letter puts forward four criteria in which a team’s preparation and competition can be examined: (1) the quality of the team’s practice opportunities; (2) whether the regular season differs quantitatively or qualitatively from the regular seasons of other varsity sports; (3) whether the pre- and post-seasons are consistent with other varsity sports; and (4) whether the team is organized primarily for the purpose of engaging in athletic competition. I take up each criterion one at a time. Most of the evidence submitted at trial concerning the 2009-10 Quinnipiac competitive cheer season dealt with the team’s regular and post-season schedules; little was introduced concerning the team’s practice regimen. Based on the evidence that was submitted, however, the team’s practices appear to be similar to the practice regimen for other varsity squads. First, the competitive cheer team submitted to NCAA restrictions on practice time, which limited the team to eight hours of practice in the off-season and 20 hours of practice, including competitions, during the regular season. Therefore, the number of hours in which the competitive cheer team practiced is consistent with the time other varsity athletes practiced during the 2009-10 school year. Powers also described her practices as being structured and focused on developing team members’ skill sets, strength and conditioning, and the team’s overall performance. That, too, is consistent with practices for other varsity teams. Finally, competitive cheer practices took place
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on campus, just like other varsity teams. Although there is little to no difference between the practice schedule and regimen of the
competitive cheer team and other Quinnipiac varsity teams, there are major and, ultimately, dispositive distinctions between the competitive cheer regular and post-season schedules and the schedules for other varsity squads. The 2008 OCR Letter instructs that, in deciding whether a team’s season and competition is quantitatively or qualitatively different from established varsity sports, the following factors should be considered: whether the number of competitions and length of play are predetermined by a governing athletics organization, conference, or consortium of institutions; whether the competitive schedule reflects the team’s abilities; and whether the activity’s season is defined by a governing athletics organization, conference, or consortium. Quinnipiac partially satisfies the first and third factors. Before the 2009-10 season began, the member schools of the NCSTA conferred and agreed that each school would participate in no fewer than eight competitive cheer competitions, and that the competitive cheer season would last 132 days, counting backwards from the NCA championship in Daytona Beach. The NCSTA, however, did not establish a maximum number of competitive cheer competitions; rules for what kind of teams its member schools could play against; or what kinds of scoring systems would be permissible at non-NCSTA competitive cheer competitions. It also does not appear that the NCSTA’s rules for the minimum number of meets or the length of a season were enforceable: nothing in evidence shows that the NCSTA could penalize member teams for violating the organization’s agreement. Indeed, the NCSTA could not even threaten to exclude violators from participating in the post-season – a stick that the NCAA uses to deter and punish its member schools for violating its rules – because the 2009-10 post-season was administered by
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NCA, a third-party organization over which the NCSTA had no authority. When comparing the competitive cheer 2009-10 season with the seasons of the
University’s other varsity teams, the competitive cheer team’s shortcomings come into even greater clarity. During the Quinnipiac competitive cheer regular season, the team participated in ten competitions.24 Those events were conducted according to at least five different scoring rules – specifically, the NCSTA, NCA, NECA, Spirit Unlimited, and Cheer Sport scoring systems. Although Powers may have been correct when she stated that all of the formats focused on the same skill sets and employed similar methods for judging teams’ performances, the competitive cheer season was still not governed by a single overseeing body, such as the NEC or the NCAA, and, as a result, the rules of competition shifted from competition to competition. No other varsity sport was subject to multiple sets of governing bodies, and every other Quinnipiac varsity team could prepare for games knowing that the rules of competition would remain constant.
Furthermore, and perhaps most damaging to Quinnipiac’s position, the Quinnipiac competitive cheer team fails to meet the OCR’s benchmark that a sports team should play a schedule that reflects its participants’ abilities. The competitive cheer team competed against a variety of different opponents over the course of its season, including other collegiate varsity competitive cheer squads, collegiate club competitive cheer squads, collegiate sideline cheer teams, all-star squads, and even high school cheerleaders. In reviewing the other Quinnipiac teams’ schedules, no other University varsity team played against non-varsity competition – and,
24 The competitive cheer team also held one exhibition before the beginning of the season in which the team put on a demonstration for the Quinnipiac community. Because there was no competition at that event, I am not counting it as part of the team’s season for purposes of this analysis.
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certainly, no other University varsity team played against non-collegiate competition, such as private all-star or high school teams. The Quinnipiac competitive cheer team plays collegiate club opponents who do not receive varsity benefits, such as scholarships, equipment, and training, and are not held to the same rules and regulations as a varsity program; collegiate sideline opponents who play their “sport” not primarily to compete but to entertain audiences at other sporting and campus events; all-star opponents who have no scholastic affiliations; and high school opponents who are younger, less experienced, and less physically mature than college athletes. No other Quinnipiac varsity team is forced to play such a motley assortment of competitors, and it cannot be doubted that the quality of competition is more variant across the competitive cheer season than across the seasons of the University’s other varsity teams. If Quinnipiac is serious that its competitive cheer team is a legitimate varsity sport, then it should not tolerate its team playing against non-varsity collegiate teams, non-scholastic all-star teams, and, especially, athletes who are still in high school.
That leads to the competitive cheer post-season. In 2009-10, the Quinnipiac competitive cheer post-season consisted of competing in the NCA national championship. That championship was open to all schools’ cheerleading teams; there was no progressive playoff system or entrance qualification, such as a ranking system or minimum win tally over the course of the season. In fact, being a competitive cheerleading team was not a prerequisite to participating in the NCA event. Teams that engaged exclusively in sideline cheer not only participated, but, according to the NCA’s records, formed the overwhelming majority of teams that competed in the NCA championship. Although Quinnipiac competed solely against other collegiate competitive cheerleading teams at the NCA championship, Quinnipiac and its
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opponents were not ranked, seeded, or winnowed in any way. Instead, they were pitted against
each other in a single championship round in which the team with the highest score won.25 How
those schools fared in their regular seasons was irrelevant to their success.
Besides not offering a progressive championship, the NCA championship failed to
provide a form of competition in keeping with Quinnipiac’s season. Powers testified that at the
NCA event, her team was forced to participate in a 45-second to one-minute “spirit” segment in
which her team’s success was judged by the intensity of the elicited crowd response and the
number of Varsity Brands props it used. According to Powers, at no point in the 2009-10 season
– even during the events that were judged using NCA’s scoring system – was her team’s score
ever determined by the ability to coax a reaction from the audience; furthermore, she testified
that raising the crowd’s spirit is a hallmark of sideline, not competitive, cheer, and was an
activity that the NCSTA explicitly rejected from its format. And at no point during the regular
season did her team members use pom poms or other props. No other varsity sport at Quinnipiac
introduces a new scoring system or element of competition in its championship that was not
present during the regular season. Nor would a varsity sport introduce such a novelty: the whole
25 Even if the NCA had wanted to create a progressive playoff, it is hard to imagine how the organization would have been able to rank or seed Quinnipiac, given the inconsistency of the competitive cheer team’s regular season. Because Quinnipiac cheerleading competitions were conducted according to different rules and against teams of varying ages, ability, and institutional support, there was no easy way to compare the University’s entire season against another’s. That is one more way that Quinnipiac’s regular season distinguishes it from other varsity sports. When sports teams compete under the same governing rules and against the same types of opponents, athletics organizations can distinguish among teams based on their overall records. But when a sports team competes under a diversity of rules and against a diversity of types of opponents – in other words, when there is not a common system for measuring a team’s success across an entire season – an athletics organization such as the NCA cannot sensibly distinguish the top teams from the bottom. That makes creating a progressive playoff system difficult, if not impossible.
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point of a championship is to prove who is the best under the rules that each team has had to follow, and learn to excel within, over the course of the preceding year. Yet the Quinnipiac competitive cheer team was subject to precisely that kind of abrupt switch in the rules – a switch for which the squad had not prepared, that was at odds with the skills its members honed over the season, and that clashed with the athletic image the team sought to project. That experience is inconsistent with the post-season of any other varsity team.
Despite its regular and post-seasons being qualitatively different than other established varsity sports, Quinnipiac is correct that it satisfies OCR’s fourth criterion for team preparation and competition: that a team’s primary purpose be to compete athletically at the intercollegiate varsity level. There is no doubt that the purpose of the competitive cheer team is to compete, and not to cheer others. That conclusion is bolstered by the fact that the competitive cheer team engages in no sideline cheer activity (with the exception of the “spirit” segment in the NCA championship); the competitive cheer team holds tryouts to determine who may participate on the team and Powers selects players based on their athletic abilities; the team engages in regular workouts, practices, and team meetings in order to polish their routines in advance of competition; and the University provides resources to the team for the sole purpose of facilitating competition. Finally, I credit Powers’ description of her athletes as being driven to compete; moreover, I take seriously that the competitive cheer members consider themselves to be athletes, and not entertainers.
The plaintiffs do not challenge the competitiveness of the Quinnipiac cheer squad, and neither will I. In the end, however, other factors relating to the structure, administration, team preparation, and competition lead me to conclude that, at this point in time, the University’s
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competitive cheer team cannot count as a sport under Title IX. 3. Summary and conclusion
There are several factors concerning the Quinnipiac competitive cheer team compelling the decision that, for the 2009-10 season, it cannot be counted as a varsity sport for purposes of Title IX. First, the fact that the team did not – and could not – engage in any off-campus recruitment during the season marks a significant departure from what would be expected of any other competitive Division I varsity team. Although the women on the Quinnipiac competitive cheer team were athletically able, they would have been all the more talented had Powers been able to seek out the best competitive cheerleaders around the country, as any other varsity coach would have been able to do.
Second, the Quinnipiac regular season was inconsistent in terms of the rules governing the team’s competitions and the types and quality of its opponents. Two basic features of any other collegiate varsity program are the application of a uniform set of rules for competition and the restriction of competition to contests against other varsity opponents. Those features ensure that play is fair in each game, that teams’ performances can be compared across a season, and that teams can be distinguished in terms of quality. Those touchstones of a varsity program are absent from the University’s competitive cheer 2009-10 regular season.
Third, the Quinnipiac post-season fell short of what would be expected of any other varsity team. Quinnipiac participated in an open invitational that made no distinctions among the relative strengths of the entrants and required the teams to engage in forms of competition associated with sideline, and not competitive, cheerleading. Most other varsity sports would have used some system to separate teams and competitors in terms of quality, and would have
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ranked, seeded, or excluded teams on the basis of their performances during the regular season. Moreover, any other varsity sport would not have imposed new rules of competition in the postseason that teams did not follow during the regular season.
Finally, I note that, although the competitive cheer team received many benefits and services associated with a typical varsity sport, there were some items that Quinnipiac did not offer, such as locker space, and the NCAA refused to insure the team members. These are relatively minor differences between the competitive cheer and other Quinnipiac varsity teams, however, and they do not weigh heavily in my analysis.
The 2008 OCR Letter does not say how it would balance its factors for determining whether an activity is a sport. Nor does it appear that OCR intended for there to be a mechanical or mathematical process for weighing those factors. Instead, OCR was clear that how those factors are balanced will depend on the circumstances of each case, and that balancing should always be performed with an eye towards whether the participants in a putative sport are receiving genuine athletic participation opportunities equivalent to the opportunities provided to athletes in other established varsity sports. On the facts of the 2009-10 season, I find the Quinnipiac competitive cheer team’s inability to recruit off campus, its inconsistent regular season, and its aberrant post-season sufficient to conclude that the women’s competitive cheer team was not a varsity sport under Title IX. Although I have only identified three areas where the University falls short, those areas are highly important, if not essential, to the experience of participating on an intercollegiate varsity team. Without proper recruiting, team participants can never feel secure that they are surrounded by the best available talent, or at least the quality of talent that would be typical of other Division I varsity teams. Without a consistent schedule,
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athletes can never know just how good their team is and whether they have distinguished themselves from their opponents over the course of the season. And without a legitimate postseason, it can never be confirmed who deserves to be crowned a champion.
In its amicus brief, OCR asks the court to pay particular attention and give weight to the factors concerning the 2009-10 competitive cheer regular season and post-season scheduling, which I have done. See Br. of the United States as Amicus Curiae (doc. # 154) at 19-20. An agency’s amicus brief is entitled to deference to the extent that it is persuasive. N.Y. State Restaurant Ass’n v. N.Y. City Bd. of Health, 556 F.3d 114, 130 (2d Cir. 2009). Quinnipiac argues that OCR’s emphasis on those factors is owed no deference because it is inconsistent with the agency’s previous policy statements and is not otherwise justified, both of which sap the brief’s persuasive value. The University’s argument is not compelling. First, I do not find any conflict between OCR’s suggested approach and the agency’s previous interpretations of its regulations. OCR has never announced how its factors must be balanced, but has only said that the factors for whether a sponsored activity is a Title IX sport will be assessed on a case-by-case basis. The agency has certainly never proposed the interpretation that Quinnipiac advocates, that each factor be given equal weight such that an activity meeting a majority of the OCR factors will be considered a Title IX sport.
Next, to the extent that the OCR factors are supposed to inform whether the participation opportunities in a putative sport are real, and not illusory, I find the government’s position to be persuasive. Whom a team plays against, how often the team plays, under what conditions competitions are held, and how a champion is eventually selected are all essential to the varsity experience; a team’s regular and post-season scheduling defines the quantitative and qualitative
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scope of competition and creates the reason for which team members practice and train during the year. In other words, scheduling strongly affects the terms of an athlete’s varsity participation. It is therefore reasonable to place significant weight on those factors. Finally, I do not think that OCR’s emphasis on regular and post-season scheduling robs educational institutions of the flexibility that Title IX and its regulations are intended to provide. Schools still retain flexibility in accommodating the athletic interests of their students under OCR’s current position. All that the government’s brief clarifies is that a university’s flexibility under Title IX does not permit it to treat an activity as a sport when, in fact, that activity offers participation opportunities quantitatively and qualitatively different than other varsity teams.
In deciding that competitive cheer is not presently a Title IX sport, I do not mean to minimize the experience shared by the Quinnipiac competitive cheer team. It is unquestionable that the Quinnipiac competitive cheer members engaged in meaningful efforts and activities during the 2009-10 season – efforts and activities that this decision cannot diminish or take away. But what those students experienced was not the genuine opportunity to participate on a varsity team, which is the standard for counting athletes under Title IX. In reaching my conclusion, I also do not mean to belittle competitive cheer as an athletic endeavor. Competitive cheerleading is a difficult, physical task that requires strength, agility, and grace. I have little doubt that at some point in the near future – once competitive cheer is better organized and defined, and surely in the event that the NCAA recognizes the activity as an emerging sport – competitive cheer will be acknowledged as a bona fide sporting activity by academic institutions, the public, and the law. As the evidence in this case demonstrates, however, that time has not yet arrived. For that reason, Quinnipiac may not yet count the members of its competitive cheer team in order to
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prove its compliance with Title IX. B. Indoor and outdoor track and field Unlike competitive cheer, which is not recognized as a sport by the NCAA and which
OCR presumes not to be a sport under Title IX, cross-country, indoor track and field, and outdoor track and field are presumptively sports under the statute. Each is recognized as a distinct sport by the NCAA, each team plays for separate conference and national championships, and, as I noted in my preliminary injunction ruling, the activities “are, at their heart, different sports.” Biediger, 616 F. Supp. 2d at 295. The plaintiffs do not challenge that cross-country, indoor track, and outdoor track are separate sports, however, and do not assert that the analysis that I applied with respect to competitive cheer should be applied here, too. Rather, the plaintiffs make a different contention: according to them, it is wrong for Quinnipiac to “triple-count” athletes who compete in cross-country, indoor track, and outdoor track as three separate athletes – that is, once for each season that she competes in – because the indoor and outdoor track seasons do not provide cross-country runners with genuine athletic participation opportunities.
The plaintiffs characterize the indoor and outdoor track seasons as, essentially, the crosscountry team’s nontraditional season. Every other Quinnipiac fall sport continues to practice and play in the spring, and the NCAA regulates those off-season practices and games. Yet, as the plaintiffs note, athletes who compete in fall sports are counted only once under Title IX – specifically, only for their participation during their traditional fall championship seasons. Their participation in the spring, nontraditional season is not tallied for Title IX purposes.
Of course, there are reasons why nontraditional seasons are not counted under the statute. If the test for counting an athlete is whether he or she is provided a genuine varsity athletic
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opportunity, then the nontraditional season will necessarily fall short. As a matter of NCAA regulation, athletes practice for fewer hours with their teams during the nontraditional season. They also do not prepare for or compete in sanctioned games. Rather, they play in scrimmages and other friendly matches that do not bear on their overall win/loss records and do not build towards a final conference or national championship. Thus, quantitatively, in terms of the number of hours and games played, and qualitatively, in terms of the experience of preparing for and competing in games, a player’s involvement during the nontraditional season does not rise to the genuine varsity athletic participation opportunity that would be provided during the traditional season.
The women’s cross-country runners all participate in the indoor and outdoor track seasons. Because they are team members during the indoor and outdoor track championship seasons, their experience on those teams exceeds that of other fall athletes participating in their teams’ nontraditional seasons. Quinnipiac’s female cross-country runners practice with their track teams to the full extent permissible under NCAA rules during their competition seasons; compete in NCAA sanctioned contests over the course of each season; and participate in conference and national championship rounds at each season’s conclusion. In other words, they appear to engage in athletic participation opportunities similar to other varsity athletes during their competition seasons. Thus, it does not appear that the University’s three-sport female runners can be analogized to other single-sport athletes who also participate in nontraditional seasons.
The plaintiffs next challenge the triple-counting of female cross-country runners by undermining the experiences of being members of the indoor and outdoor track teams. It is true
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that the indoor and outdoor track teams offer an experience that is arguably quantitatively and qualitatively deficient relative to the experience of other Quinnipiac varsity athletes. First, the indoor and outdoor track teams participated in the bare minimum number of meets – six apiece – during their respective seasons, while all other Quinnipiac varsity teams’ schedules approached the NCAA maximum for contests during a season.
Second, although cross-country runners are eligible for athletic financial aid, Martin does not extend scholarships to runners who only compete during the track seasons; therefore, unlike any other team where any member is theoretically eligible for financial aid, on the indoor and outdoor track teams only certain teammates – namely, distance runners also on the cross-country team – may receive it.
Third, the indoor and outdoor track teams are unable to host home meets and the outdoor track team cannot practice on campus, but every other Quinnipiac varsity team (including the competitive cheer team) was able to host at least one home competition.
Fourth, Coach Martin and her two assistant coaches are spread among four teams, which, in the context of Quinnipiac’s athletics department, is a setup unique to the University’s running teams. But although the coaching structure for the Quinnipiac women’s running reams is exceptional, it is important to highlight that Martin and her assistants are not responsible for four rosters of completely different players. Rather, they coach 43 runners total: 13 male crosscountry runners, 18 female cross-country runners who also participate in the track seasons, and 12 runners who only participate in track. A single head coach and two assistants may be a lean coaching staff, but it is not that much smaller than the coaching staff available for other large Quinnipiac varsity teams. The men’s varsity lacrosse team, for instance, had 41 players in 2009-
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10 and a coaching staff similar in size to the University’s running program. Nonetheless, the coaching structure for women’s running is different than other Quinnipiac varsity teams.
Finally, the indoor and outdoor track teams are arguably not as competitive as other varsity teams because they do not recruit for, or enter competitors in, field events. Thus, unlike other varsity squads, the Quinnipiac indoor and outdoor track teams are structured in a way that prevents them from winning as a team. At most, individual participants can work to win individual events and improve their times over the course of the season.
For all of those reasons, the plaintiffs argue, runners on the women’s indoor and outdoor track teams do not receive athletic participation opportunities equivalent to the participation opportunities enjoyed by Quinnipiac’s other varsity athletes. Even assuming that the plaintiffs are correct that the experience of female runners is different than the experience of the University’s other varsity athletes, however, it is not clear that Quinnipiac’s runners receive participation opportunities that are different in quantity or quality than the members of other college and university varsity indoor and outdoor track teams. The OCR regulations are ambiguous with respect to whether the genuineness of an athletic participation opportunity is judged by comparing the experiences of one team’s members to: (1) athletes competing on different teams at the same institution, and/or (2) athletes competing on the same team at different institutions. Likely, both comparisons are valid. The former analyzes whether a school is providing equal athletic opportunity to its male and female athletes, which is the touchstone of Title IX. See 34 C.F.R. § 106.41(c) (“A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.”). The latter comparison helps clarify whether apparent differences between
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athletes’ experiences on two different teams at the same school amount to a deprivation of genuine participation opportunities. In other words, comparing the same teams at different schools demonstrates whether disparities between different teams at the same school matter.
To illustrate, consider a hypothetical example of a school whose men’s tennis team has one coach for ten players and whose women’s lacrosse team that has two coaches for 30 players. Whether that disparity in coaching resources – the men’s team has one coach for ten athletes, while the women’s team has one coach for 15 – results in disparate participation opportunities may depend on whether it is abnormal for lacrosse teams to have that kind of coach-to-athlete ratio. Because a school may allocate resources differently to its teams based on legitimate reasons relating to the nature of the sports – i.e., in the hypothetical, features unique to tennis training or tennis competition may require hiring more coaches than would be necessary for other squads – and not to the players’ sexes. Whether such legitimate differences exist can be determined, in part, by looking at similar teams at other schools and how their programs are administered. In this case, whether there are legitimate reasons for the differences between the Quinnipiac track programs and the University’s other varsity teams may be determined by comparing the University’s indoor and outdoor track teams to indoor and outdoor track teams at other Division I schools.
Some features of Quinnipiac’s track teams that seem exceptional are, in fact, ordinary for Division I track and field programs. Martin and Seemes both testified that it is not uncommon for other Division I programs to sponsor varsity track teams even though they lack facilities to host home meets or even on-campus practices. They also said that assigning one head coach and several assistants for all of a school’s running teams was a common management structure
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among Division I varsity programs. Furthermore, Martin and Seemes claimed that other schools also elect to focus on certain types of events – such as, in Quinnipiac’s case, distance running – to the exclusion of others, and that other schools besides Quinnipiac choose to enter track events only, even though that puts their teams at a significant disadvantage to other squads that enter players in both track and field events.
But some features of Quinnipiac’s indoor and outdoor track teams do appear to be unusual. The University introduced no evidence about whether other schools reserve scholarships specifically for athletes who compete in certain events or who compete across three seasons. It also remains unclear whether teams that only enter track events, and only emphasize certain races, tend to have rosters as large as Quinnipiac’s. And there was no showing made that other Division I track programs compete in the minimum, as opposed to the maximum, number of meets allowed by the NCAA. That said, however, Quinnipiac has succeeded, at least somewhat, in rebutting the plaintiffs’ claim that the indoor and outdoor track participants are not provided genuine athletic opportunities, insofar as the University has shown its teams to be similar to other Division I varsity track and field programs.
The most convincing reason for not “triple-counting” the women who run on the crosscountry, indoor track, and outdoor track teams concerns not the quantitative and qualitative experience of indoor and outdoor track members, but, instead, the intertwined relationship between the cross-country and track programs. Martin testified that her cross-country runners are required to participate on the indoor and outdoor track teams. Thus, those runners do not participate in the indoor and outdoor track seasons only because they want to; rather, as a condition of their membership on the cross-country team, they are bound to continue running in
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the winter and spring on the Quinnipiac track teams. Conditioning participation in one sport on participation in another is unique to the women’s cross-country team. On no other Quinnipiac squad are players ordered to compete in additional seasons in order to maintain their team membership or scholarship support. Not even the men’s cross-country team, which is fundamentally identical in structure and administration to the women’s cross-country team, is mandated to compete in the off-season for different teams. Nor could the men’s cross-country team condition participation that way: there is no varsity men’s indoor or outdoor track team for them to join, and the University has barred male cross-country runners from individually representing the school in winter and spring intercollegiate track meets.
Requiring students to participate on the indoor and outdoor track teams in order to run in the fall cross-country season bears significantly on the quality of an athlete’s experience as a track team member. Indeed, it goes to the heart of student amateur athletics: by requiring female cross-country runners to run on teams in the winter and spring, Quinnipiac deprives those students of the discretion to choose which teams they want to join. No other team includes members who participate for the purpose of maintaining their membership with another squad. For sure, some varsity athletes may join or stay on a team for reasons other than the desire to compete: scholarship athletes, for example, may continue playing with a team in order to continue receiving financial aid needed to fund their education. But there is no squad other than women’s cross-country where a Quinnipiac athlete must join a second team in order to achieve the goal of competing in his or her favored varsity sport and receiving scholarship aid. Participation on the indoor and outdoor track teams is an additional chore, an added sacrifice of time and energy, for Quinnipiac’s female cross-country runners that no other University athletes
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are asked to make for the right to continue playing on their primary teams. Cross-country is not a sport that inherently requires its players to participate in multiple seasons. If that were true, then the men’s cross-country team would also require its players to compete on indoor and outdoor track teams, either on a sponsored varsity team or, at the very least, in their own individual capacities representing Quinnipiac. The University, however, does not permit its male crosscountry runners to represent Quinnipiac at winter and spring track meets.
It is because indoor and outdoor track participation is mandatory for the University’s cross-country runners that Martin testified that the women’s track teams were mere adjuncts to the school’s cross-country program – a description whose truth is borne out by the fact that more than half of all the races the indoor and outdoor teams entered were distance events. The women’s indoor and outdoor cross-country teams are the only squads that can fairly be described as appendages of another principal varsity team. That sense of inferiority is heightened by the fact that the women’s indoor and outdoor track teams can never win a team championship. Unlike the cross-country team, which has won repeated conference championships, the women’s track teams can expect to come in no better than third place, according to their coach. Winning a championship is not a prerequisite to providing genuine athletic participation opportunities. But structuring a team to make that goal impossible – here, by minimizing sprint and middle-distance participation, and avoiding field events entirely – does suggest that the participation opportunity is deficient when compared to the experience of other varsity athletes, especially when the track teams’ structure is coupled with the requirement that runners participate in track in order to maintain their membership on the cross-country team and receive scholarship aid.
There was no evidence introduced showing that it was common for other cross-country
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teams to require their athletes to participate in the indoor and outdoor seasons. Although Martin testified that it was common for cross-country athletes to run in all three seasons, she was speaking in terms of what cross-country athletes chose to do on their own volition, and not what they were forced to do by their coaches. I therefore cannot say that Quinnipiac’s treatment of its indoor and outdoor track teams as adjuncts to its women’s cross-country team – i.e., by forcing cross-country runners to run indoor and outdoor track and structuring those sqauds so they cannot possibly win as a team – is an accepted method for administering Division I varsity track and field teams.
The Quinnipiac women’s cross-country team’s requirement that its members participate in the indoor and outdoor track seasons recalls roster manipulations similar to those I identified as depriving athletes of participation opportunities in my preliminary injunction ruling. In granting the preliminary injunction, I held that Quinnipiac’s practice of setting floors for women’s teams rosters artificially inflated the University’s number of female athletes and led to an over-counting of Title IX participation opportunities. Biediger, 616 F. Supp. 2d at 296-97. Specifically, the University’s requirement that women’s team rosters be bigger than necessary led women’s teams to keep players on their rosters who would never have genuine participation opportunities over the course of the season, as evidenced by their quitting or being cut shortly after the first day of competition, when the school’s EADA reporting data was collected. Id. at 297. In the case of the University’s women’s indoor and outdoor track and field teams, there is an analogous artificial increase in its rosters: there are more athletes participating on the team than there would have been but for the requirement that cross-country athletes run indoor and outdoor track.
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For example, the indoor track team had four cross-country runners who ran no races – three because of injury and one who was red-shirted – and another cross-country runner who ran in only one meet, while the outdoor track team had six runners who did not compete at all because of injury and red-shirting. Had those runners competed only on the cross-country team, their winter and spring would have been an off-season in which, as varsity athletes, they would have had access to trainers and coaches in order to rehabilitate and practice individually. As cross-country runners, their membership on the indoor and outdoor track teams should not have been necessary for them to be recognized as varsity athletes and receive attendant benefits, such as financial aid, training, and physical therapy. Rather, it appears that those injured players remained on the indoor and outdoor track teams because of a rule imposed by their coach and in order for the indoor and outdoor track teams to meet the roster target numbers imposed by the athletics department. That suggests the same kind of roster inflation I previously held to violate Title IX. It may not be as insidious – no female athletes are being booted from their teams after the first day of competition – but it raises the same problem of Quinnipiac counting female athletes who, in effect, are not partaking in genuine athletic participation opportunities but whose “principal role is to provide a gender statistic.” Id. at 296.
Unfortunately, the plaintiffs did not establish how many cross-country runners would likely not join either the indoor or outdoor track team if they had the choice. At most, it is certain that the 11 roster spots detailed above – the five non-competitors during the indoor season, and the six non-competitors during the outdoor season – should not have been tallied under Title IX because they did not compete and did not receive any benefits in addition to what
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they were already obtaining through their cross-country participation.26 Although the other cross-
country runners were obliged to run indoor and outdoor track, it appears that they all were
genuine members of the team. In the indoor season, 12 cross-country runners ran between five
and seven meets, while another cross-country runner ran four meets; and in the outdoor season,
nine cross-country runners ran between five and seven meets, while another three cross-country
runners ran three or four meets. The cross-country members accounted for 54.4 percent of the
indoor team’s races, and 50 percent of the outdoor team’s races. When both teams are
considered together, the cross-country runners ran 52.2 percent of Quinnipiac’s total track events.
That is a substantial contribution, and Quinnipiac’s Title IX calculation should account for it.
In sum, there are reasons to doubt that all cross-country runners who participate in the
winter indoor track season and in the spring outdoor track season receive genuine participation
26 To demonstrate how the participation opportunities of those injured and red-shirted cross-country runners are truly illusory, consider the following hypothetical situation: Imagine that Quinnipiac required every injured or red-shirt female athlete who competes in the fall season to join the women’s indoor and outdoor track teams. Those athletes would not be expected to compete in any track meets – rather, they would remain on the injured or red-shirt lists – but, at least nominally, they would be members of the team on the first day of competition. By Quinnipiac’s logic in defending its “triple counting” of female cross-country runners, the University should also count my hypothetical injured and red-shirted participants as athletes for Title IX purposes.
Surely, though, it would be unacceptable for Quinnipiac to pump up its women’s track team rosters with injured field hockey, soccer, and volleyball players who would never actually compete in the indoor and outdoor track seasons and, for that matter, would never want to enter a race. But that is essentially what Quinnipiac is doing with its injured cross-country runners. The University is requiring women who will not race and who are already receiving varsity benefits to join second and third teams unnecessarily. The only differences between my hypothetical example and what Quinnipiac is actually doing is that cross-country is a running sport somewhat like track, it is not uncommon for varsity running team rosters to overlap at other Division I programs, and the Quinnipiac cross-country and track teams share a coaching staff. Those differences, however, warrant no distinction in the outcome; they do not overcome the central problem of the University padding its rosters with athletes who have no hope of competing or otherwise participating meaningfully during the indoor and outdoor track seasons.
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opportunities. The principal reason is the requirement that cross-country runners compete on the indoor and outdoor track teams. That requirement is unlike any condition of participation for other Quinnipiac varsity teams, and, in the case of injured and red-shirted cross-country athletes, it causes the indoor and outdoor rosters to bulge with players who are already receiving varsity resources and benefits, who will not compete or otherwise practice with the indoor and outdoor teams, and who may have no interest in being on those teams’ rosters. Although most crosscountry athletes may expect to continue running in the winter and spring, it is not necessarily the case that every cross-country runner wants to participate in each competitive season. Lastly, other factors relating to the experience of running indoor and outdoor track – such as the reservation of scholarship funds for certain kinds of athletes, the relatively large rosters sizes for teams that specialize in a small number of events, the minimal number of meets entered in both seasons, and the teams’ structural inability to place better than third in the NEC – indicate that the indoor and outdoor track teams are anomalous, and the experience of participating on those squads is different than other Quinnipiac varsity participation opportunities. Those factors, by themselves, are not enough to justify discounting all of the cross-country runners’ participation on the indoor and outdoor track teams. But they do further militate in favor of discounting some of the cross-country runners’ participation.
Despite raising all of those issues, however, the plaintiffs only succeeded in proving that the injured and red-shirted cross-country runners, who amount to 11 of the 60 roster spots for the combined indoor and outdoor track seasons, should not be counted under Title IX. That number probably should be bigger to reflect the cross-country runners who would not choose to run indoor and outdoor track but who must do so in order to maintain membership on the cross-
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country team. But the plaintiffs have not demonstrated how much bigger that number should be. Similarly, the plaintiffs have not succeeded in proving that their identified deficiencies in
the indoor and outdoor track programs warrant not counting any cross-country runner for her participation in those seasons. Some triple-counting is warranted because the evidence shows that Quinnipiac’s cross-country runners do, in fact, compete in the indoor and outdoor track seasons and appear to be enjoying genuine athletic participation opportunities. Because the plaintiffs have not proven which others athletes who ran in all three seasons should not be triplecounted, I will only subtract the 11 identified non-participants from the roster. In other words, I will count 49 of Quinnipiac’s proffered 60 indoor and outdoor track roster spots as genuine participation opportunities.
C. Roster Management The plaintiffs allege that Quinnipiac is still engaged in the kind of roster manipulation that I held to violate Title IX in my preliminary injunction ruling. They marshal two claims: that the University’s roster target numbers do not represent the number of actual participation opportunities, and that the University’s system of setting roster targets for its varsity teams creates artificial ceilings for men’s squads and floor’s for women’s squads that deprives women of genuine participation opportunities. The plaintiffs’ evidence on the first claim does not establish a Title IX violation. Quinnipiac had no policy in place requiring coaches to hit their roster targets only on the first day of competition. On the contrary, coaches were expected to maintain their roster sizes for the duration of the season and could only deviate from their roster targets with the approval of Thompson, the chief administrator for the University’s athletics department. For almost all of the examples that the plaintiffs introduced of alleged roster
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manipulation, Quinnipiac provided legitimate justifications unconnected to coaches hitting their roster targets. For example, Seeley, the women’s hockey coach, gave valid reasons why six players on his roster quit or were cut following the 2009-10 season, and Flynn, the athletics department compliance officer, was able to explain why certain men’s teams dropped players following the traditional season and brought on new athletes to take their places in the nontraditional season. Altogether, I find that the evidence does not sustain the plaintiffs’ contention that Quinnipiac was engaging in roster manipulation whereby the University’s teams cut and added players inappropriately in order to create the appearance of Title IX compliance.
On the other hand, the evidence does support the plaintiffs’ argument that Quinnipiac set roster targets that, relative to NCAA and NEC averages, were small for men’s teams and large for women’s teams. In 2009-10, four of the University’s seven men’s teams were smaller than the national average by two to four players, and five teams were smaller than the conference average. The only men’s teams that were bigger than both averages were the basketball and hockey squads, which are Quinnipiac’s premier programs and, therefore, are likely to receive more funding and support from the University. By contrast, eight of the 11 women’s teams – that is, every team except the volleyball, indoor track, and outdoor track squads – were bigger than the national average by one to four athletes. The indoor and outdoor track teams’ relative paucity in size can be attributed to the teams’ failure to carry any athletes participating in field events. Relative to the NEC, seven of Quinnipiac’s women’s teams – every team except volleyball, ice hockey, and the track squads – were bigger than the conference average.
Those statistics reveal a trend in Quinnipiac’s athletics department to field relatively smaller men’s teams and relatively larger women’s teams. It is true that the differences between
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the University’s rosters and the national averages are, for each team, marginal: no team diverges

from the NCAA average by more than four players. Those marginal differences for each team,

however, amount to arguably more substantial differences in the aggregate. The following chart,

culled from the data in Plaintiff’s Exhibit 151, shows the differences between the total roster

numbers for Quinnipiac’s men’s and women’s teams (without counting the competitive cheer

squad) and the NCAA and NEC averages. In addition, the chart shows the difference between

the total roster targets for Quinnipiac’s women’s teams and the NCAA and NEC averages when

indoor and outdoor track and field are not counted.

QU TOTAL NCAA AVG TOTAL

NEC AVG TOTAL

All male athletes 166

176.1 (+10.1)

182.64 (+16.64)

All female athletes 244

249.7 (+5.7)

225.78 (-18.22)

W/out women’s track 184

174.6 (-9.4)

165.78 (-18.22)

That chart reveals that the average NCAA Division I school offering the same varsity

teams as Quinnipiac would have approximately ten more male athletes, or slightly more than one

athlete per team. If the track and field teams are counted, then Quinnipiac would have an above-

average number of female athletes, but if the indoor and outdoor track squads are excluded, then

Quinnipiac has approximately nine fewer female athletes than the national average, or about one

fewer athlete per team. The comparison to the NEC makes the same point more dramatically.

An average NEC school offering the same teams as Quinnipiac would have approximately 17

more male athletes, or two more participants per team, and 18 fewer female athletes, which is

approximately two fewer participants per team.

Quinnipiac is correct that a policy of imposing roster targets does not, by itself, violate

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Title IX. See 1996 OCR Letter (“An institution can choose to eliminate or cap teams as a way of complying with part one of the three-part test.”). And the plaintiffs have also not proven how the discrepancies between the sizes of Quinnipiac’s teams and average national and conference teams – discrepancies that result in approximately one to two fewer male athletes, and one to two more female athletes, per team – result in the deprivation of genuine participation opportunities for women. At most, the plaintiffs have demonstrated that Quinnipiac has deliberately set its roster targets to achieve Title IX compliance, which OCR permits the University to do.
Even if the Quinnipiac policy of setting roster targets does not provide the plaintiffs a basis for relief, however, it does suggest that any lack of proportionality between the University’s athletics program and its undergraduate population is not due to “natural fluctuations in [the] institution’s enrollment and/or participation rates.” 1996 Clarification at 4. Quinnipiac, rather, has deliberately structured its athletics department to increase women’s participation relative to men’s, and if the University does not succeed in achieving proportionality, it will not be because of factors external to the administration of its varsity program. In addition, the University’s habit of stacking its women’s teams lends credence to the plaintiffs’ contention that certain members of the indoor and outdoor track teams – namely, the cross-country runners compelled to participate – are not being provided genuine athletic participation opportunities but are counted as team members in order to prop up Quinnipiac’s statistics for Title IX purposes.
I conclude, therefore, that the plaintiffs’ proof with respect to the University’s system of roster management does not entitle them to relief. There is no indication that Quinnipiac is continuing to engage in the manipulation that was the basis for my preliminary injunction ruling. But there is evidence that the University sets below-average roster targets for men’s teams and
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above-average roster targets for women’s teams. That roster management technique has not been shown to deprive students of genuine athletic participation opportunities, but only demonstrates that men’s teams are marginally smaller, and women’s teams are marginally bigger, than national and conference averages. It also shows, however, the purposefulness of Quinnipiac’s roster targets. The University set its roster targets with the intent of producing statistics showing that it provides substantially proportional athletic participation opportunities for women. Although that is not necessarily wrong, it does corroborate the plaintiffs’ other argument that Quinnipiac was inflating its women’s indoor and outdoor track teams with cross-country runners in order to comply with Title IX. More significantly, it supports the plaintiffs’ theory that any disparity between Quinnipiac’s athletics department and its undergraduate enrollment cannot be attributed to causes such as natural fluctuations in the yearly makeup of the undergraduate population. Rather, the evidence shows that the University’s roster targets were carefully chosen and managed, and any shortfall in the number of Quinnipiac’s female athletes is attributable to University decision-making and not other external factors.
D. Conclusion Having analyzed the plaintiffs’ three general arguments for why Quinnipiac is not in compliance, I now apply the formal, two-part test that the OCR has promulgated for whether a school provides substantially proportional athletic participation opportunities. First, I will count the total number of athletes; and, second, I will then determine whether that total is substantially proportional to the University’s undergraduate female population. Based on the analysis above, I conclude that at least 41 women must be removed from Quinnipiac’s tally of female athletes during 2009-10. Those 41 represent the 30 competitive
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cheerleaders and the 11 cross-country runners who were injured and/or red-shirted during the indoor and outdoor track seasons. I say that “at least” 41 women must be subtracted because that number likely should be greater in light of Quinnipiac’s practice of requiring its female crosscountry runners to run indoor and outdoor track. Had that practice not been in place, it is probable that one or more other cross-country runners would have sat out the winter and/or spring track seasons. Because the plaintiffs have not proven who those other runners are, however, I only eliminate 41 female athletes in applying the OCR test. Nevertheless, it is important to note that 41 is likely a conservative estimate of the female athletes who should not be counted.
Quinnipiac’s roster count shows that 274 female athletes and 166 male athletes were on their teams on the first day of competition. Forty-one female athletes must be removed from Quinnipiac’s count, which leaves 233 female athletes; the total male athletes must be increased by one, to 167, due to the men’s ice hockey addition identified by Flynn. That completes the first step of the OCR analysis.
The second and final step is to compare the proportion of women in Quinnipiac’s varsity athletics program to the proportion of women in the University’s undergraduate population. The University’s enrollment data show that in 2009-10, 61.87 percent of Quinnipiac’s undergraduates were women. Under the Title IX count, however, 58.25 percent – 233 female athletes out of 400 total athletes – of Quinnipiac’s varsity athletes were female. That results in a 3.62 percent disparity.
A 3.62 percent difference represents, in strictly numerical terms, a borderline case of disproportionate athletic opportunities for women. OCR has not established a threshold
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statistical figure for determining whether a school offers participation opportunities substantially proportional to its enrollment, but instead examines each school on a case-by-case basis. 1996 Clarification at 4. Courts, however, have held that a disparity within two percentage points is proof that an educational institution falls within the substantial proportionality safe harbor. See Equity in Athletics, Inc. v. Dep’t of Educ., 675 F. Supp.2d 660, 682-83 (W.D. Va. 2009) (finding no case in which a disparity of two percentage points was held to constitute a lack of substantial proportionality). In light of those holdings, a 3.62 percent difference is, by itself, a relatively thin basis for finding that Quinnipiac was out of compliance during the 2009-10 academic year.
OCR was clear in its 1996 Clarification, however, that raw numbers are only part of the analysis for whether the participation of women in a school’s varsity program is proportional to enrollment. In addition to calculating the disparity, OCR considers other factors designed to give context and meaning to a school’s shortfall of athletic opportunities for students of a specific sex. Specifically, OCR considers whether natural fluctuations in enrollment contributed to the lack of proportionality, and whether the absolute number of athletic participation opportunities that need to be created to achieve exact proportionality would be sufficient to sustain a viable athletic team. 1996 Clarification at 4.
When those two factors are considered, the 3.62 percent difference indicates that Quinnipiac was not in compliance with Title IX. First, there is no indication that the disparity is attributable to a surge of women enrolling at Quinnipiac. Rather, the 2009-10 undergraduate enrollment was consistent with the University’s expectations. Furthermore, the disparity cannot be attributed to any unanticipated drop in female athletic participation or spike in male athletic participation. Quinnipiac carefully selected its teams’ roster targets, and the evidence showed
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that the University took meticulous steps to ensure that its roster targets were met over the course of the year. There were, therefore, no natural fluctuations in Quinnipiac’s enrollment or varsity program that would explain the disparity.
Next, the 3.62 percent disparity represents a shortfall of approximately 38 female athletes.27 Thirty-eight additional athletes would almost certainly be enough to sustain a new, independent varsity team. There are at least three bases for reaching that conclusion. First, in 2009-10, the biggest Quinnipiac women’s teams were the indoor and outdoor track teams, which each listed 30 runners on their rosters – a total that, as explained above, is inflated, but which I will treat as valid for the purpose of conducting this part of the analysis. Based on Quinnipiac’s 2009-10 roster targets, the mean size for Quinnipiac’s women’s teams was 22 members, and the median team size was 24 members. Therefore, it would appear that the additional 38 athletes would certainly be enough to support an additional varsity team, especially when one considers that Quinnipiac’s women’s rosters tended to be bigger than the national and conference averages.
The second reason it can be assured that the 3.62 percent disparity represents enough players to sustain an independent team can be found in the (unsuccessful) actions Quinnipiac took to comply with Title IX. Quinnipiac attempted to meet its Title IX obligations by creating a new sports team, competitive cheer, with 30 participants (which will be increased to 36 participants for the 2010-11 season). Thus, the University’s own conduct shows that another viable sports team could be created with the 38 potential athletes who are currently not being
27 That number was reached as follows. In order for the 167 male athletes to represent 38.13 percent of the University’s varsity athletes, there would have to be 438 total athletes, or 271 female athletes. The difference between the exactly proportional 271 female athletes and the 233 female athletes currently countable under Title IX is 38.
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offered athletic participation opportunities. Finally, the University’s plans for the 2010-11 year show that 38 female athletes would be
sufficient to sustain an independent varsity squad. For this coming year, Quinnipiac plans to eliminate the women’s volleyball team and thus subtract its 12 players from 2009-10; add six players to its competitive cheer team; add six cross-country runners; and add five runners to its indoor and outdoor track teams. Assuming that the six competitive cheer players will not be counted because competitive cheer is not a Title IX sport and that, at a minimum, the 16 newly added roster spots for female runners will produce 12 athletes countable under Title IX – in other words, assuming that there remains a disparity of 38 female athletes in 2010-11 – it is certain that an independent sports team could be created from the shortfall of participation opportunities. That independent sports team would be the eliminated women’s volleyball squad, a team that, based on Quinnipiac’s 2010-11 roster target, requires a mere 14 players to compete.
Application of OCR’s 1996 Clarification shows that the 3.62 percent disparity is enough to prove that Quinnipiac has not achieved substantial proportionality and does not fall within the 1979 Policy Interpretation’s first safe harbor for Title IX compliance. Although a 3.62 percent is not an overwhelming disparity, it is sufficient to show an absence of substantial proportionality on the facts of this case. The disparity reflects Quinnipiac’s deliberate planning and not other external events beyond the University’s control, and the number of potential female athletes reflected by that disparity would be more than enough to sustain an additional varsity athletic team. I therefore conclude that, during the 2009-10 school year, Quinnipiac did not offer athletic participation opportunities for women that were substantially proportional to the University’s female enrollment. The University was close to achieving that degree of proportionality. Its
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decision to gamble on its competitive cheer team being found to be a Title IX sport, and on all of its indoor and outdoor track runners countable under Title IX, however, deprived Quinnipiac of just enough female athletes to meet OCR’s first prong for Title IX compliance. I therefore hold, as a matter of law, that Quinnipiac violated Title IX during the 2009-10 academic year by failing to offer equal athletic participation opportunities to its female students.
My ruling would not change to the extent the University argues that, even if it was out of compliance last year, it will be in compliance in 2010-11. I am not convinced that the proffered facts of the upcoming competitive cheer season – namely, an increase in the number and proportion of competitions played according to NCSTA rules, and the creation of an NCSTA championship – are adequate to conclude that, next season, competitive cheerleading will count as a sport under Title IX. Nor am I convinced that all of the additional cross-country, indoor track, and outdoor track runners should be counted as genuine athletic participation opportunities. Those determinations can only be made with a factual record documenting what actually occurred during those teams’ seasons. In other words, Quinnipiac’s Title IX compliance can only be judged after the completion of the 2010-11 academic year, and not at present, more than six weeks before the year’s commencement. Thus, the facts introduced about what Quinnipiac will do in the future do not change my ruling that Quinnipiac violated Title IX and, currently, is not in compliance with the law and its regulations. IV. Remedy
The plaintiffs have proved that Quinnipiac failed to provide equal athletic participation opportunities to its female students. I now turn to the remedy to which they are entitled. Both parties are in agreement that if I conclude that Quinnipiac violated Title IX then injunctive relief
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is appropriate. The parties disagree, however, what kind of injunctive relief should be entered. The plaintiffs have requested an injunction that the women’s volleyball team continue during the 2010-11 season. But Quinnipiac has requested the right to develop its own compliance plan to be submitted to the court for approval.
Both parties can and should be accommodated. Quinnipiac shall submit a compliance plan describing how it will bring itself into Title IX compliance for 2010-11 and thereafter. Cf. McCormick, 370 F.3d at 301-02 (holding that district court properly entered injunctive relief and ordered the defendants to submit compliance plans for court review). The University is entitled to determine its own method for achieving statutory compliance; the OCR regulations are clear that, although educational institutions must offer equal athletic participation opportunities to both sexes, Title IX gives schools flexibility in deciding for themselves how to best meet that legal obligation. See, e.g., 1996 OCR Letter at 4 (“Ultimately, Title IX provides institutions with flexibility and choice regarding how they will provide nondiscriminatory participation opportunities.”). On the other hand, the plaintiffs have proved that the University is currently violating Title IX; cutting the women’s volleyball team would only exacerbate that violation. Therefore, any compliance plan that Quinnipiac submits must commit to sponsoring the women’s volleyball team during the 2010-11 season. Quinnipiac is not obligated to continue sponsoring the team beyond that point, however, so long as any decision to eliminate women’s volleyball is accompanied by other changes that will bring the University into compliance with Title IX.
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V. Conclusion I find in favor of the plaintiffs on their first claim for relief in their first amended
complaint (doc. # 101). A declaratory judgment shall issue that the defendant, Quinnipiac University, has violated Title IX and the regulations promulgated pursuant thereto by failing to provide equal athletic participation opportunities to its female students.
Furthermore, Quinnipiac is hereby enjoined from continuing to discriminate against its female students on the basis of sex by failing to provide equal athletic participation opportunities. Therefore:
IT IS HEREBY ORDERED that, within 60 days, Quinnipiac University shall submit to the court a compliance plan detailing how it will achieve compliance with Title IX and its regulations. That compliance plan shall provide for the continuation of the women’s volleyball team during the 2010-11 season.
It is so ordered. Dated at Bridgeport, Connecticut, this 21st day of July 2010.
/s/ Stefan R. Underhill Stefan R. Underhill United States District Judge
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 Case 3:09-cv-00621-SRU Document 180 Filed 07/22/10 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated, and ROBIN LAMOTT SPARKS, individually,
Plaintiffs,
v.
QUINNIPIAC UNIVERSITY, Defendant.

No. 3:09cv621 (SRU)

INJUNCTION ORDER The defendant, Quinnipiac University, has violated Title IX of the Education Amendments of 1972 (20 U.S.C. § 162, et seq.), and the regulations adopted pursuant thereto (34 C.F.R. Part 106). See Mem. of Decision (July 21, 2010) (doc. # 171). Accordingly, pursuant to Rule 65 of the Federal Rules of Civil Procedure, it is hereby ordered that: (1) Quinnipiac University and its officers, agents, servants, and employees are permanently enjoined from discriminating against female students on the basis of sex by failing to provide equal athletic participation opportunities; (2) Quinnipiac University shall not eliminate its women’s volleyball team; and (3) By September 21, 2010, the defendant shall submit to the court a compliance plan detailing how it will achieve compliance with Title IX and its regulations. This injunction shall remain in force pending further court order. It is so ordered.

Case 3:09-cv-00621-SRU Document 180 Filed 07/22/10 Page 2 of 2 Dated at Bridgeport, Connecticut, this 22d day of July 2010.
/s/ Stefan R. Underhill Stefan R. Underhill United States District Judge
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 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLOR, ERIN OVERDEVEST, KRISTEN CORINALDESI, individually and on behalf of all those similarly situated, LESLEY RIKER, on behalf of her minor daughter L.R., L.R., on behalf of all those similarly situated, and ROBIN LAMOTT SPARKS,
Plaintiffs,
v.
QUINNIPIAC UNIVERSITY, Defendant.

CIVIL ACTION NO. 3:09cv621 (SRU)

RULING AND ORDER GRANTING PRELIMINARY INJUNCTION Plaintiffs Stephanie Biediger, Kayla Lawlor, Erin Overdevest, Kristen Corinaldesi, and L.R.,1 each a current or incoming member of the Quinnipiac University varsity women’s volleyball team, and Robin Sparks,2 their coach, seek a preliminary injunction to prevent the school from eliminating women’s volleyball as a varsity sport. Defendant Quinnipiac University (“Quinnipiac” or the “University”) announced in March 2009 that, due to budgetary constraints, it would be cutting two men’s teams – men’s golf and men’s outdoor track – and the women’s volleyball team. It also announced a plan to add a varsity women’s competitive cheer team in order to maintain compliance with its obligations under Title IX of the Education Amendments

1 Because L.R. is a minor, L.R.’s mother, Leslie Riker, has brought suit on her daughter’s behalf.
2 Quinnipiac has challenged Sparks’ standing to pursue the claims raised by this suit. It concedes, however, that the issue of her standing has no impact on the issues raised by the motion for preliminary injunction. Nothing in this decision is intended to address the issue of Sparks’ standing on the merits.

of 1972, as amended, 20 U.S.C. § 1681, et seq., and the regulations adopted pursuant thereto, 34 C.F.R. § 106 (collectively, “Title IX”). The plaintiffs allege that Quinnipiac’s plan is not sufficient to put it into compliance with the requirements of Title IX and that a preliminary injunction to prevent elimination of the volleyball team is necessary to preserve the status quo pending a ruling on the merits of this case.
A hearing on the plaintiffs’ motion for a preliminary injunction was held May 11-14, 2009. The following are my findings of fact and conclusions of law concerning issues raised by the motion for preliminary injunction. Because the plaintiffs have successfully demonstrated irreparable harm and have demonstrated a likelihood of success on the issue whether Quinnipiac is actually providing genuine athletic participation opportunities for women in substantial proportion to the undergraduate enrollment of women at Quinnipiac, the motion for a preliminary injunction is granted. I. Factual Background
A. The Parties 1. The Plaintiffs a. Stephanie Biediger
Biediger was a freshman member of the volleyball team in 2008-2009 and was recruited to play for Quinnipiac from her hometown in Texas. Biediger attends Quinnipiac on a partial academic scholarship and is pursuing a major in psychobiology; she plans to become a neurosurgeon. During the fall season she suffered an injury to her anterior cruciate ligament (“ACL”), but played through the end of the season, receiving the team’s Most Valuable Player award. Biediger had surgery on her ACL on January 7, 2009, and is scheduled to undergo
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another surgery over the summer; she therefore had anticipated “red-shirting” her sophomore year.3 Biediger had planned to pick up an additional major so that she could stay at Quinnipiac for a fifth year and complete her fourth year of athletic eligibility.
b. Kayla Lawler Lawler was a freshman member of the Quinnipiac volleyball team in 2008-2009 and was recruited by Sparks from her hometown in Indiana, where she participated in high school and club volleyball. Lawler attends Quinnipiac on a full athletic scholarship and is majoring in psychology. Her professional ambition is to obtain a Ph.D. in psychology, coach Division I volleyball, and/or play professional volleyball overseas.
c. L.R. L.R. is a high school senior from Ohio who was recruited by Sparks to play on the Quinnipiac volleyball team beginning in the fall of 2009. She had expected to receive a partial athletic scholarship and partial academic scholarship, equal to the total cost of attending Quinnipiac. After visiting Quinnipiac in the fall of 2008, L.R. decided to apply only to Quinnipiac and by November 2008 had committed herself to attend, thereby taking herself out of the pool of potential volleyball recruits for the remainder of the fall recruiting season.
d. Erin Overdevest Overdevest was a senior on the volleyball team during the 2008-2009 season, but she redshirted the season due to shoulder surgery in June 2008. Although Overdevest graduated this past May, because she is enrolled in a five-and-half-year bachelors/masters occupational therapy
3 Red-shirting is a common practice that allows injured athletes to defer a season of eligibility by sitting out a competitive season.
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program at Quinnipiac, she had expected to play her final year of eligibility during the 2009-2010 season. She attends Quinnipiac on a partial academic scholarship and a partial athletic scholarship.
e. Kristen Corinaldesi Corinaldesi did not testify at the hearing, but she alleged in the Verified Complaint that she was a junior at Quinnipiac and a member of the varsity volleyball team during the 2008-2009 season. She alleged that she had planned to play volleyball during her senior year.
f. Robin Lamott Sparks Sparks is the head coach of the women’s volleyball team at Quinnipiac. She was recruited to coach the team in the spring of 2007 by Quinnipiac’s Athletic Director Jack McDonald. She is also an adjunct professor in communications at the University. Her current employment contract expires June 30, 2009, but Sparks expected her contract to be renewed until the announcement that the volleyball team would be eliminated.
2. Defendant Quinnipiac University a. Athletic Department Representatives
Jack McDonald is Quinnipiac’s Athletic Director, a position he has held since 1995. Before coming to Quinnipiac, McDonald was the athletic director at the University of Denver from 1990 to 1995. As Quinnipiac’s Athletic Director, McDonald is responsible for managing the athletic department’s budget, personnel (including coaches), Quinnipiac’s recreational and intramural sports programs, and is “partially” involved with the University’s physical education program. In addition, he is responsible for overseeing Quinnipiac’s compliance with National Collegiate Athletic Association (“NCAA”) rules and regulations and the requirements of Title
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IX. Tracy Flynn is Quinnipiac’s Senior Women’s Administrator and Assistant Athletic
Director for Compliance. Flynn’s job is to ensure that Quinnipiac adheres to NCAA rules and regulations. In addition, she oversees the University’s athletic scholarship budget and the add/delete list, known officially as the Change of Status List. Both McDonald and Flynn share responsibility for compiling Quinnipiac’s annual Equity in Athletics Disclosure Act (“EADA”) report.
b. Overview of Quinnipiac University and its Athletic Department Quinnipiac University is a private, coeducational institution located in Hamden, Connecticut. For the 2008-2009 academic year, it had an undergraduate enrollment of 5,455 students. Broken down by gender, there were 2,089 male students and 3,366 female students, for a male-to-female percentage distribution of 38.3% to 61.7%. McDonald testified that, based on the deposits the University had received as of May 1, 2009, the undergraduate enrollment for the 2009-2010 academic year is expected to be 37% men and 63% women, with the caveat that those numbers could vary slightly up or down by the time the school year actually begins on August 31, 2009. In the 2008-2009 academic year, Quinnipiac fielded 21 NCAA Division I varsity athletic teams: men’s and women’s basketball, men’s and women’s ice hockey, men’s and women’s lacrosse, men’s and women’s soccer, men’s baseball, women’s softball, women’s field hockey, women’s volleyball, men’s golf, men’s and women’s tennis, men’s and women’s cross-country, men’s and women’s indoor track, and men’s and women’s outdoor track. Division I is the highest level of intercollegiate athletic competition within the NCAA. With the exception of the
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ice hockey teams and the men’s lacrosse team, Quinnipiac’s varsity teams compete in the Northeast Conference (“NEC”).4 According to Quinnipiac’s EADA report for 2007-2008, its athletic participation opportunities were apportioned 45% for men and 54% for women. According to its preliminary EADA data for 2008-2009, its athletic participation opportunities were apportioned 47.43% for men and 52.57% for women. Quinnipiac concedes that those percentages were not in proportion to the undergraduate enrollment for those years.
On March 4, 2009, Quinnipiac informed the women’s volleyball, men’s golf, and men’s outdoor track teams that they would be eliminated at the end of the current academic year due to budgetary constraints. Sparks and the men’s part-time golf coach were told their employment contracts would expire on June 30, 2009 and would not be renewed. The track teams at Quinnipiac have a single head coach, but a part-time track coach is also expected to lose his or her position as a result of the cuts. In 2009-2010, Quinnipiac expects to field 19 varsity teams, including a new women’s competitive cheer team. With the loss of men’s golf and men’s outdoor track, and the addition of women’s competitive cheer, Quinnipiac anticipates that its athletic participation opportunities will be split 37.08% for men and 62.92% for women in 20092010, which it maintains is in substantial proportion to its anticipated undergraduate enrollment for the coming academic year.
B. Quinnipiac Volleyball Volleyball is a “fall” sport, meaning that the fall is its “championship season,” when teams play their official matches and when the sport’s conference and NCAA championships are
4 The ice hockey teams compete in the Eastern College Athletic Conference (“ECAC”) and the men’s lacrosse team competes in the Great Western Lacrosse League (“GWLL”).
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held. Like most Division I sports, however, volleyball is actually played year-round. Specifically, the spring season provides players the opportunity to hone their technique and skills through scrimmages with other teams. Team practices are focused on sharpening technical skills, such as foot-work and hand placement, and on strength-training. The team’s budget for the 2008-2009, not including coaches’ salaries and athletic scholarships, was $70,384.
Prior to 2007, the Quinnipiac volleyball team was not a priority sport within the athletic department; it had been slated for elimination in 2006 and, by 2007, had had four different coaches in four years. Beginning in 2007, McDonald undertook an effort to rebuild the volleyball team to a competitive level within the conference. In the spring of 2007, McDonald recruited Sparks to come to Quinnipiac from Troy, New York, where she had been coaching a club volleyball team. Although Sparks had no collegiate coaching experience, she came highly recommended by Quinnipiac’s interim volleyball coach, and had been successfully coaching club level volleyball for several years.
Knowing that Quinnipiac had almost cut the team the previous year, one of Sparks’ primary concerns with the position was Quinnipiac’s commitment to the volleyball team. According to Sparks, McDonald assured her that the discussions about cutting the team “had been put to rest” and that the athletic department was seriously committed to building the competitiveness of the team. McDonald testified that he had been genuinely excited about the volleyball program at the time Sparks was hired and that he had assured her of his long-term hopes for the program. Weighing the pay cut she would take and the difficulties associated with uprooting her husband and children against McDonald’s assurances of support for the team, Sparks decided that the chance to build a competitive Division I volleyball team was not an
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opportunity she could pass up. Sparks understood that her goal, as set forth by McDonald, was to reach the top four of
the NEC within four years. To that end, armed with a budget for recruiting and five athletic scholarships to offer, Sparks undertook a serious recruiting effort in the 2007-2008 academic year for the incoming class of 2008-2009, contacting players and traveling to club volleyball tournaments. As a result of those efforts, Sparks was able to attract several highly accomplished and skilled recruits to Quinnipiac, including plaintiffs Biediger and Lawler, for 2008-2009, and plaintiff L.R., for the incoming class of 2009-2010. Overdevest, a graduating senior who had been on the team prior to Sparks’ arrival, testified that the team’s enthusiasm was high when Sparks was hired and began recruiting nationally.
The recruiting process for Division I volleyball can begin as early as a player’s sophomore year in high school. Although sophomores are not permitted to speak with college coaches directly, high school players interested in playing at the Division I level in college will seek out information about the schools and their summer volleyball camps during that period. By junior year, prospective recruits are writing to coaches, speaking with coaches on the phone, and compiling video clips of themselves playing volleyball for a “game tape” they can present to interested coaches. By senior year, coaches will begin extending formal offers of admission, along with any offers of scholarship money, and having prospective recruits come to visit campus. Recruits may begin making formal commitments to schools in November of their senior year; a college’s recruiting class is typically filled by December or January.
Several plaintiffs testified about the role that volleyball plays in their lives. The plaintiffs, and Leslie Riker on behalf of L.R., all testified that they began playing volleyball in
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elementary school. The players recruited by Sparks – Lawler, Biediger, and L.R. (collectively, the “recruited plaintiffs”) – testified that playing Division I volleyball had been a paramount goal for each of them since they began playing volleyball on a competitive basis in fourth or fifth grade. In addition to playing volleyball for their high school teams, those recruited plaintiffs played for club teams during the off-season, traveling to interstate competitions on the weekends and thereby maintaining a year-round commitment to volleyball.
The recruited plaintiffs testified that they chose Quinnipiac not only for its academic offerings in the majors of their choice, but because they felt that they had formed a real connection and bond with the team and Sparks during their campus visits. Lawler testified that the coach-athlete relationship was particularly important at the college level because playing Division I volleyball is a time-intensive activity, akin to a “full-time job.” Given the number of hours spent practicing, playing, and traveling with the team, all plaintiffs testified that the Quinnipiac volleyball team’s cohesiveness and their good relationship with Sparks was significant to their decision to attend Quinnipiac and, subsequently, to seek a preliminary injunction to save their team. Lawler also testified that she had spoken at length with McDonald during her campus visit, querying him about the school’s commitment to the team, and receiving assurances that Quinnipiac was committed to the team, with McDonald pointing to Quinnipiac’s decision to hire Sparks as evidence of its intent.
C. Introduction of Roster Management at Quinnipiac McDonald and Flynn testified about the athletic department’s decision to implement “roster management” at Quinnipiac in order to achieve greater proportionality between the athletic participation opportunities available to women and the percentage of women
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undergraduates. Under Quinnipiac’s roster management policy, the athletic department sets the size of men’s and women’s teams’ rosters to create a more proportional balance of athletic opportunities between the genders. According to McDonald, the benefit of roster management is that it permitted the University to increase its participation opportunities for the underrepresented gender – here, women – without having to add more sports. The decision to implement roster management arose out of the athletic department’s 2006 gender equity self-study, which revealed that the school was not achieving gender equity in its athletic participation opportunities.
McDonald testified that there was little input from coaches on the issue of roster size, except in the case of “like” sports, such as men’s and women’s soccer, whose coaches were asked to agree on similar roster sizes. In setting roster sizes, McDonald did not consider NEC average roster sizes, testifying he believed the NCAA average roster sizes were a more reliable indicator for how many players an average team could be expected to carry on its roster.
Under the roster management policy system in place at Quinnipiac, McDonald and his senior administrative athletic department staff members set the final roster numbers for each varsity team. The coaches are then expected to carry that number of athletes on their team on the first day of competition. The first day of competition is significant because that is the day when roster sizes are computed for purposes of the EADA report. The EADA report is an annual report that all coeducation universities receiving federal funding and participating in intercollegiate athletics must submit to the U.S. Department of Education pursuant to 20 U.S.C. § 1092. The EADA report contains information about the University’s undergraduate enrollment, broken down by gender; the number and type of men’s and women’s varsity teams; the number of participants on each team; the number, distribution, and average salaries of head and assistant
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coaches; the amount of athletic scholarship money available to each gender; the total revenues, operating expenses, and total expenses for each team; and the amount of money distributed for recruiting purposes. In October, each school must submit its EADA report for the previous academic year; for example, Quinnipiac has not yet submitted its EADA report for the 20082009 academic year, but plans to submit that report by October 2009. Significantly, the EADA numbers are not updated over the course of the season to reflect additions to or cuts from the varsity rosters compiled as of the first day of competition.
Quinnipiac introduced the concept of roster management to its coaches in 2006-2007, but it was first implemented “with teeth” in the 2007-2008 season. The roster management policy and roster numbers were discussed at the annual post-Labor Day athletic department staff meeting, and the policy was contained in the athletic department’s staff manual. McDonald described the reactions among the coaches as “fair to poor.” According to Flynn, the policy caused great distress among the coaches – some of the men’s teams’ coaches felt their roster numbers were too low and that some of the women’s teams’ coaches felt they were being required to carry too many people. Flynn specifically recalled receiving complaints that their set roster numbers were too low from the coaches of men’s lacrosse, men’s baseball, men’s cross country, and possibly men’s soccer, and conversely, complaints that their set roster numbers were too high from the coaches of women’s lacrosse, women’s field hockey, women’s softball, women’s ice hockey, and women’s cross country. She recalled that coaches of both men’s and women’s teams reported to her that the roster numbers were not what they were accustomed to, that the roster targets were too low and too high, respectively, for their teams. Although the women’s field hockey and women’s lacrosse coaches testified at the hearing that they were not
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bothered by the increases in their rosters under Quinnipiac’s roster management policy, Flynn’s testimony contradicts those assertions.
The following chart sets forth the number of players on each Quinnipiac varsity team, as of the first day of competition in 2007-2008, as reported to the EADA:

Men’s Team 2007-2008

Roster Size

Women’s Team 2007-2008

Roster Size

Baseball

27

Basketball

14

Basketball

15

Cross Country/Track

13

Cross Country/Track

22

Golf

8

Ice Hockey

29

Ice Hockey

29

Lacrosse

35

Lacrosse

30

Soccer

25

Soccer

27

Tennis

9

Tennis

11

Field Hockey

23

Softball

26

Volleyball

12

Total: 160/355

Total: 195/355

%

45.07

%

54.93

As Flynn, Sparks, and Germaine Fairchild, head coach of Quinnipiac’s softball team,

testified, and as demonstrated by the add/delete lists for 2007-2008, however, those numbers did

not remain static over the course of the season. For example, the men’s baseball coach reported

27 athletes as of the first day of competition, September 27, 2007. The corresponding add/delete

list for 2007-2008 shows that on September 17, 2007, the baseball coach “deleted” six players to

reach that 27 roster number. That same add/delete list further reveals, however, that on October

1, 2007, the baseball coach “added” those same six players back to the team, bringing his roster

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back up to 33 athletes. Because the EADA report does not account for add/deletes over the course of a season, that increase was never officially reported on any official Quinnipiac roster count.
The same phenomenon occurred with the men’s lacrosse roster. Before reporting the squad list for the first day of competition, the men’s lacrosse coach “deleted” six players.5 Approximately one week later, the men’s lacrosse coach added those same six players back to the roster, bringing his roster back up to 41 athletes. The add/delete lists reveal that the men’s ice hockey coach deleted and added one player in the same manner before and after the first day of competition for the 2007-2008 academic year.
Flynn testified that those changes to the add/delete lists caught her eye and that she was not pleased with what the lacrosse and baseball coaches had done. Flynn said that she reported the roster manipulations to McDonald and expressed her concern that those roster add/deletes were not within the “spirit” of Title IX. According to McDonald, such practices were “not acceptable” to him and that he relayed his feelings to the coaches during their weekly meetings and on other occasions. McDonald testified that he never told the coaches that this was an acceptable practice and that such practices did not stem from any official athletic department policy or guidance on how to “make the numbers.” Flynn’s testified she felt “disappointed” and “helpless” about the roster changes because she felt that there was no guidance from OCR on how to manage roster numbers.
5 The official squad list for 2007-2008 shows those six players were deleted by October 4, 2007, the first day of official competition, although the add/delete list shows an official delete date of October 12, 2007. According to the add/delete list, those same players were officially added back on October 15, 2007. McDonald agreed that those six players were not counted for EADA reporting purposes.
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The roster management numbers had the opposite effect on the women’s side; in 20072008, several women’s teams added players before the first day of competition, only to have those same players quit or get cut shortly thereafter. The following women’s teams had duplicate adds and deletes, according to Quinnipiac’s 2007-2008 add/delete list: the women’s softball team added four players who were deleted shortly thereafter; the women’s ice hockey team added four players prior to the first day of competition who subsequently quit; and the women’s lacrosse team added two players before the first day of competition, who were also subsequently deleted.
Fairchild, the head coach of the softball team, offered credible testimony that indicates that even those numbers on the add/delete list do not provide the full story for women’s team rosters under Quinnipiac’s roster management policy. Fairchild, a former collegiate and professional softball player and coach, came to Quinnipiac in 2000 as an assistant coach and was promoted to her current position as head coach in 2001. At the hearing, when asked about her experience with the roster management policy, Fairchild testified that she felt pressured to add more players than were necessary under normal circumstances. Prior to the institution of roster management, Fairchild testified that she typically carried 16-18 players on her team. Before the 2007-2008 season’s start, she was notified that she would be required to take at least 25 players on her team. Fairchild raised her concerns about her roster management targets to both McDonald and Flynn, explaining that her budget and coaching resources were only enough to support a team of 16-18 athletes and she could not provide a “legitimate Division I experience” to so many people. Nevertheless, Fairchild’s budget remained static and Fairchild testified that she did not receive any guidance from the athletic department on how she was expected to accommodate so many extra players. Indeed, the Quinnipiac Athletics & Recreation Staff
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Handbook is devoid of any explanation of roster management, merely noting that it is one of the coaches’ responsibilities and outlining the target roster numbers for each team in chart form. Flynn also testified that the issue of roster management manipulation was never raised at weekly staff meetings. Fairchild testified that no one had consulted her about whether 25 was a realistic number of athletes for the softball team.
Fairchild explained precisely why 25 players represented a budget challenge and a strain on coaching resources. For example, during the off-season, under NCAA regulations, softball players are permitted to practice for 8 hours a week, with two hours devoted to skills training and six hours to strength and conditioning. At Quinnipiac, those two skills-training hours are spent one-on-one with Fairchild. Fairchild testified that 50 hours a week of individual time with her student-athletes, combined with office work and all the other tasks required to run a Division I program, would have strained her coaching resources beyond her capabilities. Fairchild did not receive any increase in budget, extra equipment, additional assistant coaches, or a raise in salary to account for and/or accommodate the extra players.
To balance the athletic department’s expectation that she “make” her roster target of 25 players with the realities of providing a legitimate Division I experience for her team, Fairchild resolved to take all the players that tried out in the fall of 2007, but not to keep that many players on her travel team. As of the first day of competition on September 21, 2007, she reported 26 athletes on her roster, the same number reported on Quinnipiac’s 2007-2008 EADA report. On the Tuesday following the softball team’s first day of competition, Fairchild called several of the walk-ons and informed them that, although they were welcome to stay on the team’s “practice squad,” she did not have any money in her budget to provide them with uniforms or equipment,
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nor could they travel with the team to away games. Fairchild testified that over the next several months nine players quit the team; Fairchild began the championship season that spring with 17 student-athletes on her roster.
The same scenario repeated itself in 2008-2009. Fairchild testified that she had 13 veterans and 10 newcomers in the fall of 2003, for a total roster number of 23 players. Fairchild testified that, once again, she accepted every walk-on player until after the first day of competition, when she informed several players that they would only have a spot on the team’s practice squad. Between the first day of competition in the fall and the beginning of the championship season that spring, Fairchild testified that 6 players quit the team, leaving 17 players who actually competed on the softball team during the spring 2009 season. Because the roster number was 23 on the first day of competition, however, Quinnipiac’s estimated EADA report figures state there were 23 participation opportunities on the softball team. Fairchild testified that she did not renew her concerns with McDonald prior to the 2008-2009 season because she believed that the athletic department administrators were set on maintaining the “status quo” of roster management reporting and that nothing had changed in their attitude towards the policy from the previous year. Flynn corroborated Fairchild’s testimony that the athletic department did not take any steps following the 2007-2008 season to educate their coaches on the roster management policy.
The following is a chart of roster sizes in 2008-2009 as stated in the Quinnipiac athletic department staff manual and Quinnipiac’s EADA reported numbers:

Men’s Team

QU’s 20082009 Roster M anagement
Target

EADA 20082009 Report (estimated)

Women’s Team

QU’s 20082009 Roster M anagement
Target

EADA 20082009 Report (estimated)

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Basketball

15

Baseball

27

Soccer

25

Golf

8

Tennis

9

Lacrosse

40

Cross Country

15

Ice Hockey

28

Indoor Track

20

Outdoor Track

20

Total: %

207/424 48.82

15 27 25 8 11 39 13 32 22 20
212/447 47.43

Basketball

15

Soccer

25

Tennis Lacrosse Cross Country Ice Hockey Indoor Track Outdoor Track Field Hockey Softball Volleyball
Total: %

9 30 20 28 25 25 25 25 15 217/424 51.18

15
25
11 29 19 25 28 25 24 23 11 235/447 52.57

The athletic department’s overall experience with roster management in 2008-2009, according to Flynn and McDonald, was more positive because they received fewer complaints from the coaches. According to Flynn, the coaches were less shocked with the roster management targets than they had been the previous year, and they had grown more accustomed to the concept and had more time to figure out how to make their roster targets. Flynn testified that in overseeing the add/delete list for the teams, she did not see the same type of roster manipulation as in 2007-2008. McDonald characterized the coaches’ commitment to roster management in 2008-2009 as “better.”
Although Flynn testified that she saw less roster manipulation through the add/delete lists than the previous year, it had not disappeared. For example, McDonald testified that there were
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actually six more players on the men’s lacrosse team in 2008-2009 than were reported on the first day of competition due to a disciplinary incident, which resulted in those players being suspended prior to the first day of competition in the fall. McDonald conceded that those six players indeed re-joined the team for the championship season in the spring. Furthermore, as Fairchild testified, although the women’s softball team reported having 23 players as of the first day of competition in the fall, only 17 athletes were on the roster by the time the championship season began in spring 2009.
Although the squad lists, add/delete lists, and the 2008-2009 “Season of Competition Used” list are useful guides to each team’s roster numbers, they do not provide the full picture. Indeed, McDonald conceded that, although the add/delete lists show the six men’s lacrosse players were “deleted” in fall 2008, the list does not indicate that they were added back to the team at any point, even though McDonald testified they did play for the team and despite the fact that the Season of Competition Used list for 2008-2009 includes those six players’ names. Furthermore, as demonstrated by Fairchild, in 2007-2008 and 2008-2009, more players actually quit her team than were reflected on the add/delete lists. In addition, the 2008-2009 add/delete list indicates that one player, Michael Bartlett, was deleted from the men’s baseball team on September 19, 2008, before the first day of competition. The list does not indicate that Bartlett was added back to the team at any point, but a comparison with the Season of Competition Used list indicates he was added back to the baseball team on October 13, 2008, after the first day of competition. Thus, if anything, the add/delete lists under-report the number of duplicate adds and deletes being made to Quinnipiac varsity teams.
Another practice that appears to have gained momentum in 2008-2009, at least among the
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men’s teams, was adding new freshmen or sophomore athletes after the first day of competition. For instance, the men’s basketball team added three freshmen on November 12, 2008, after the October 28, 2008 EADA report date. Two athletes were added to the men’s cross country team on September 2, 2008, after the team’s reported first competition – the Stony Brook Invitational – on August 29, 2008.6 Finally, men’s golf added one athlete approximately one week after the first date of competition. Only a complete audit of the teams’ rosters and game day reports can conclusively determine the true number of athletes competing on each team. Still, it appears that there were at least 13 participating male athletes who went unreported in 2008-2009.
D. Quinnipiac’s Decision to Cut Teams In early February 2008, under budgetary pressures, Quinnipiac University Vice President Val Belmonte directed McDonald to make a 5-10% cut in the athletic department’s budget for 2009-2010. McDonald testified that his first budget proposal eliminated 5% from the athletic department budget without cutting any teams. Belmonte rejected McDonald’s proposal and told him, specifically, to cut the volleyball team. Because there was a space crunch on campus – the University undergraduate population has nearly doubled in the last 20 years – it seems that the University administration was interested in using the facility where the volleyball team practiced and held competitions, the Burt Kahn Court, as another available space for meetings, activities, offices, and additional intramural sports courts. Before the budget crunch, there had been
6 Plaintiffs’ Exhibit 12 does not include the men’s cross country squad list for 2008-2009, nor has the defendant included that squad list in its track squad list exhibits. Because the 20082009 men’s cross country schedule in Plaintiffs’ Exhibit 29 lists August 29, 2008 as the first competition date, I am confident that the cross country runners added on September 2, 2008 were not included on that squad list for EADA reporting purposes. Although the EADA estimate says there were 13 athletes on the men’s cross country team, the Seasons of Competition Used indicates that 15 athletes competed on the men’s cross country team in 2008-2009.
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discussions about building the volleyball team its own gymnasium or court at the athletic and rec center.
As amended, the current proposed 2009-2010 athletic department budget would cut men’s golf, men’s outdoor track, and women’s volleyball, in addition to making additional cuts to the budgets of other varsity teams, for an overall savings of 7%, or $132,000, from last year’s budget.
E. Elevation of Competitive Cheer to Varsity Status Recognizing that cutting both men’s and women’s varsity sports could push Quinnipiac further out of Title IX compliance, Quinnipiac made the strategic decision to elevate women’s competitive cheerleading to varsity status. Already a very popular club team activity at Quinnipiac, McDonald and the Quinnipiac administration determined that there would be enough interest to field a varsity cheer team that would be focused solely on competing at local, regional, and national cheerleading competitions. McDonald concedes that Quinnipiac has not sought advance clearance of that decision from the Department of Education’s Office of Civil Rights (“OCR”), which oversees Title IX compliance. McDonald testified he believed it was unnecessary after studying materials and OCR correspondence obtained from the University of Maryland, which also fields a varsity competitive cheer team, and the fact that Quinnipiac has never sought advance clearance from OCR when it added other women’s sports, including field hockey, ice hockey, and lacrosse. McDonald testified that OCR has never done an audit of Quinnipiac’s athletic program to determine its compliance with Title IX. In 2008-2009, the 31-member Quinnipiac cheer squad had a dual-focus: cheering at the men’s and women’s basketball games, an activity referred to as “sideline cheer,” and also
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entering cheer competitions in its spare time. The new competitive cheer squad would have an increased budget of $50,000, up from $12,000, and the current head cheer coach, Mary Ann Powers, would be promoted to a full-time position and given a raise of approximately $20,000 to $25,000 for a total salary of $40,000 to $45,000. In addition, McDonald anticipates the new varsity cheer squad will be supported by two athletic scholarships.
In addition to the new competitive cheer team, McDonald anticipates fielding a separate non-varsity sideline cheer squad to continue cheering at the men’s and women’s basketball games, which will be coached by the current part-time cheerleading assistant coach. Those two squads would share the present cheerleading practice space on Court Four of the school’s “rec center.”
Powers, Quinnipiac’s cheer coach since 1998, testified about the current cheer squad, its record at competitive cheer events, and her plans for the future varsity competitive cheer team at Quinnipiac. A typical cheer team practice regimen includes gymnastics skills training, practicing partner stunts and tumbling exercises, as well as conditioning and strength-training. The current team’s primary focus is to cheer at the men’s and women’s basketball games, although it has managed to compete in, on average, between three and six cheer competitions, including nationals, each year. Routines for these competitions typically last two-and-a-half minutes and include a variety of elements, including standing tumbling, jumps, pyramids, basket tosses, running tumbling, partner stunts, and dance.
Being elevated to varsity status means that the Quinnipiac competitive cheer squad members will have all the benefits and obligations of other varsity athletes on campus, including having access to the varsity athletic trainers and submitting to the academic requirements for
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varsity athletes, including “power hour” requirements.7 Powers testified that she expects the team to enter more competitions. The team will devote three practices per week to practicing their cheer routines and elements and two practices per week to strength-training and conditioning. Powers anticipates the team’s competitive schedule will run from September to April, including one or two competitions in the fall and six to eight in the spring, culminating in the National Cheer Association (“NCA”) national championship, where the Quinnipiac cheer squad finished in sixth place in their division this past April.
The athletic department’s roster management target for the new team is 40. Powers testified that she has 62 women interested in trying out this fall, including 18 returning cheer squad members. Powers has not undertaken any formal recruiting efforts for the upcoming season. Although Powers has no doubt she will be able to fill those spots, the cheer squad this year only had 31 members and that 40-person roster target does not include the separate sideline cheer team. Last year Powers had 58 students try-out for the 2008-2009 season and she took 34. Local and regional competitions typically allow 36 cheerleaders on the floor, although the NCA championships only permit squads of 20 cheerleaders to compete.
Powers acknowledged that there is no national, non-profit competitive cheer federation to set standardized competition rules or to organize and oversee competitions. There are no other competitive cheer teams within the NEC. There are two national cheer championships put on by the Universal Cheer Association and the NCA, entities which are owned and operated by the for-
7 According to Quinnipiac athletic department staff manual, varsity student-athletes must complete a certain number of monitored, on-campus study hall hours, known as “power hours.” The number of weekly hours a student-athlete must log is determined by that student’s grade point average.
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profit corporation, Varsity, Inc. According to Powers, Varsity, Inc. promotes private cheer training at cheer camps, sponsors cheer competitions, and sells apparel.
Eligibility to compete in those championships is not governed by conference or league records, indeed the type of competition where one’s record is the basis for advancing to higher levels of competition does not exist in the competitive cheer world. Each team chooses which competitions to enter. Entry to the national championships is determined by submitting an application that includes video footage of the team performing. The Quinnipiac varsity cheer squad’s eligibility to compete at nationals is not affected by its elevation to varsity status; it will compete and be eligible for the same competitions in which the cheer squad competed as a nonvarsity team, although it will compete in more cheer competitions. Quinnipiac has not yet sought to have competitive cheer recognized as an emerging sport by the NCAA.
F. Anticipated 2009-2010 Roster Management Targets Shown below are the Quinnipiac athletic department roster management targets for the 2009-2010 season, compared to the NCAA average squad sizes:

Men’s Teams

2009-2010 Roster M anagement Target

Basketball

15

Baseball

25

Soccer

23

Tennis

10

Lacrosse

36

Cross Country

14

NCAA Average Squad Size

Women’s Teams

15.5

Basketball

35.3

Field Hockey

27.4

Soccer

Softball

10.1

Tennis

44.5

Lacrosse

14.8

Cross Country

2009-2010 Roster M anagement Target
15

NCAA Average Squad Size
14.6

24

22.2

26

25.7

22

19.4

12

9.3

30

27.2

25

16.2

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Ice Hockey

28

28.4

Ice Hockey

26

25.1

Indoor Track

14

37.3

Indoor Track

30

36.6

Outdoor Track

30

35.8

Cheerleading

40

N/A

Total:

165

Total:

280

%

37.08

%

62.92

Looking forward to the 2009-2010 season, McDonald testified that he sees it as his

obligation to make sure the coaches understand the need to “hit their number.” McDonald

acknowledged, however, that no one is going to get a bonus for hitting their number, nor will

anyone get fired if they fail to adhere to those targets. McDonald explained the roster

management goals as something that the department will work together to achieve as a team. He

anticipated adding more to the staff manual to describe the process and to explain why roster

management is important. McDonald noted that perhaps more closely monitoring the add/delete

changes to rosters will be necessary.

II. Discussion

A. Standard of Review

“A party seeking a preliminary injunction must demonstrate: (1) either (a) a likelihood of

success on the merits or (b) sufficiently serious questions going to the merits to make them a fair

ground for litigation and a balance of hardships tipping decidedly in the movant's favor, and (2)

irreparable harm in the absence of the injunction.” Faiveley Transport Malmo AB v. Wabtec

Corp., 559 F.3d 110, 116 (2d Cir. 2009) (internal quotation and citation omitted). “Such relief,

however, is an extraordinary and drastic remedy, one that should not be granted unless the

movant, by a clear showing, carries the burden of persuasion.” Grand River Enter. Six Nations,

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Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (internal quotation omitted). Quinnipiac argues, in addition, that the plaintiffs should be held to the higher standard
required to prove a mandatory injunction. The injunction sought here is more fairly characterized as a prohibitory injunction, and not a mandatory injunction, because, by its terms, it would restrain the University from carrying out its decision to eliminate the volleyball team in the upcoming academic year. The injunction, therefore, would preserve the status quo rather than requiring the University to undertake an affirmative act. See Phillip v. Fairfield Univ., 118 F.3d 131, 133-34 (2d Cir. 1997) (characterizing the injunction sought as prohibitory, not mandatory, because it would restrain the NCAA from interfering with the university’s decision to offer the student an athletic scholarship and an opportunity to participate on the basketball team, thus preserving the status quo rather than commanding some positive action).
B. Irreparable Harm The student plaintiffs contend that they will be irreparably harmed by the University’s decision to disband the volleyball team because they have a limited amount of time to compete in college athletics and specifically chose to attend Quinnipiac to play volleyball. I agree. The decision to eliminate the team at the end of the year limits their chances of transferring to another school for the 2009-2010 academic year, requires them to sit out a season of competitive volleyball, and negatively affects their skills and marketability in the Division I volleyball recruiting market. The fact that the student plaintiffs have the ability to transfer to other Division I schools after next year and that Quinnipiac has agreed to honor their scholarships despite the volleyball team’s elimination does not protect the plaintiffs from irreparable harm. Courts have consistently held that, given the fleeting nature of college athletics, plaintiffs
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will suffer irreparable harm by losing the opportunity to participate in their sport of choice on a continuous and uninterrupted basis. For example, in Ganden v. National Collegiate Athletic Association, 1996 WL 680000, at * 6 (N.D. Ill. 1996), the Court noted that, because elite collegiate athletes have only a limited span of competitiveness, losing a year of competition to transfer schools would irreparably inhibit their development as athletes. Because the plaintiff would have lost an entire year of competition, described as “a significant proportion of his swimming career,” the Ganden Court held that in the absence of an injunction, the plaintiff was likely to suffer “irreparable harm for which he ha[d] no adequate remedy at law.” Id. Noting that “women athletes who compete interscholastically . . . develop skill, self-confidence, learn team cohesion and a sense of accomplishment, increase their physical and mental well-being, and develop a lifelong healthy attitude,” the Court in Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578, 583 (W.D. Pa. 1993), concluded that, because “[t]he opportunity to compete in undergraduate interscholastic athletics vanishes quickly, but the benefits do not,” the elimination of their collegiate gymnastics and field hockey teams would cause the plaintiffs to suffer irreparable harm.
Quinnipiac cites to cases where the courts have held that plaintiffs did not suffer irreparable harm where they had the opportunity to transfer to another school and where they did not lose their scholarship money after having their team eliminated. See Equity in Athletics, Inc. v. U.S. Dep’t of Ed., 291 Fed. Appx. 517, 521 (4th Cir. 2008); Miller v. Univ. of Cincinnati, 2007 WL 2783674, at *11 (S.D. Ohio 2007); Butler v. Nat’l Collegiate Athletic Ass’n, 2006 WL 2398683, at *4 (D. Kan. 2006). I believe that those cases give insufficient consideration to the unique circumstances college athletes face, making short shrift of the brief time-span in which
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they are permitted to compete and failing to consider the loss that even a year of competition would have on the skills and competitiveness of elite Division I athletes such as the student plaintiffs in this case.
The plaintiffs in this case have devoted a significant portion of their lives to training for the opportunity to compete on a Division I volleyball team in college, spending countless hours competing on high school and club teams and participating in the rigorous and time-consuming recruiting process, all the while maintaining a college preparatory high school course load. The interruption in competition and the need to break into new programs with new coaches and established rosters will necessarily stunt the plaintiffs’ development as volleyball players at the highest level of amateur competition. The harm the plaintiffs will suffer is not primarily monetary, so the continuation of their scholarships cannot cure or prevent it.
A quick review of the plaintiffs’ personal circumstances demonstrates further why the loss of their volleyball team would cause irreparable harm. Biediger is expected to undergo ACL surgery this summer and red-shirt the coming season. Red-shirting is distinguishable from simply sitting out a season as she would be forced to do in the absence of an injunction. Even though she will be unable to compete, by remaining a member of a viable and competitive team Biediger will be able to remain focused on the game, will benefit from continuity in coaching, and will be in the best position to earn playing time when she is physically able to return. Furthermore, as an injured player, Biediger will have a difficult, if not impossible, time finding another Division I program to take her on. Overdevest must remain at Quinnipiac for the completion of her unique occupational therapy program. The elimination of the Quinnipiac team will eliminate her last year of eligibility to play volleyball. Finally, Quinnipiac makes much of
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the fact that Lawler and L.R. were offered fleeting opportunities to transfer to other schools in March. There is no evidence in the record, however, that opportunities at those schools remain on the table or that they represent comparable athletic and academic opportunities to Quinnipiac. Therefore, the plaintiffs will likely be forced to sit out the next season and hope to transfer to another school for the 2010-2011 season. As explained above, losing a year of competition would cause unquantifiable harm to their elite volleyball training and skill development.
For the foregoing reasons, I find that the plaintiffs have successfully demonstrated that they will suffer irreparable harm in the absence of an injunction saving their team from elimination for the coming season.
Although not necessary to this decision, it is worth noting that the harm to Quinnipiac from issuance of an injunction will not be substantial.8 When Quinnipiac’s stipulation to provide the plaintiffs with their full academic and athletic scholarships for the duration of their education at Quinnipiac is taken into account, combined with the increase in the budgets and coaches’ salaries for the cheerleading squads, it is clear that Quinnipiac did not stand to save a significant sum of money over the short term through the elimination of the volleyball team. Maintaining the team for the duration of this lawsuit will not cause it to spend a substantially greater sum of money than it had already committed to spend. As for the issue of space, I am unconvinced that the “space crunch” at Quinnipiac is so severe that the University would be unable to accommodate the volleyball team’s practice and competition schedule on the Burt Kahn Court where they currently play, or to make other arrangements for the team.
8 Thus, requiring the plaintiffs to post a bond to protect against harm to Quinnipiac from issuance of an injunction later vacated is unnecessary.
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C. Likelihood of Success on the Merits 1. Title IX
Every university that receives federal funding and offers varsity interscholastic athletics to its students is subject to Title IX. Title IX states, in pertinent part:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . . 20 U.S.C. § 1681(a). “[P]rogram or activity” includes “all of the operations of . . . a college, university, or other postsecondary institution, or a public system of higher education.” 20 U.S.C. § 1687(2)(A). With respect to athletic programs, the Code of Federal Regulations provides that interscholastic athletics are included within the meaning of “program or activity” covered by Title IX: No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. 34 C.F.R. § 106.41(a). The regulations further state that a covered university offering varsity athletics to its students must “provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c). The regulations set forth ten non-exhaustive factors that should be considered when determining whether a university is providing “equal opportunity:” (1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of games and practice time;
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(4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity. Id. In addition, another relevant consideration “in assessing equality of opportunity for members of each sex” is whether there is a “failure to provide necessary funds for teams for one sex.” Id. A Policy Interpretation, issued by OCR in 1979 (the “OCR Policy Interpretation”), delineates three areas of regulatory compliance: (1) equal athletic financial assistance; (2) equal treatment and benefits for athletic teams; and (3) effective accommodation of student interests and abilities. See Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993) (citing the OCR Policy Interpretation, 44 Fed. Reg. 71413). The plaintiffs’ Title IX claims arise under the third area, effective accommodation. The OCR Policy Interpretation provides three ways – commonly referred to as prongs one, two, and three – for a university to comply with the requirement to provide effective accommodation of students’ interests and abilities: (1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive
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to the developing interest and abilities of the members of that sex; or (3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. Id. (quoting the OCR Policy Interpretation, 44 Fed. Reg. at 71418). Prong one provides a “safe harbor” for universities. Id. “[A] university . . . may stay on the sunny side of Title IX simply by maintaining gender parity between its student body and its athletic lineup.” Id. at 897-98. Prongs two and three allow a university lacking “substantially proportionate” athletic participation opportunities to remain in compliance by demonstrating “an ongoing effort to meet the needs of the underrepresented gender” or where the university can demonstrate it has fully and effectively accommodated the interests and abilities of the underrepresented sex. Id. at 898. D. Prong One of Title IX Compliance: Gender Equity Quinnipiac has explicitly relied on prong one for Title IX compliance for the upcoming 2009-2010 academic year. It argues that with its combination of roster management, elimination of the men’s golf, men’s outdoor track, and women’s volleyball teams, and the elevation of women’s competitive cheer to varsity status, it will be providing athletic participation opportunities for its male and female students in substantial proportion to the expected gender composition of the full-time undergraduate population at Quinnipiac, that is, 63% women and 37% men. There is no question that, if Quinnipiac fails to meet prong one of Title IX compliance, it will be out of compliance with Title IX. That is because, by eliminating a women’s team while
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there is sufficient interest to field one, the University will have failed to demonstrate that it is committed to expanding opportunities for the underrepresented gender – women – or that it has fully and effectively accommodated the interests and abilities of that underrepresented gender.
Plaintiffs ask me to make a legal determination that Quinnipiac’s method of counting track athletes is improper and that the elevation of the women’s cheer squad to varsity status does not create real inter-collegiate athletic participation opportunities for women. It is not necessary to discuss those issues in any great detail. As explained further below, the record demonstrates that Quinnipiac will not likely satisfy prong one of Title IX compliance due to problems with its roster management policy and its reliance on setting roster floors for women’s teams.
It is worth noting, however, that the plaintiffs do not appear likely to prevail in their arguments that Quinnipiac cannot “triple count” its women track athletes or that competitive cheer is not a “sport” for purposes of Title IX. Cross country, indoor track, and outdoor track have separate NCAA championships and are, at their heart, different sports. Cross country is fundamentally separate from either indoor and outdoor track – it is run in all weather, outdoors, through mud, gravel, or grass, on trails, up and down hills and through woods and open fields, and no two courses are the same. All runners in a cross country meet run the same course, with the team score determined by the finishing place of the fastest runners on each team. Indoor and outdoor track are quite similar, but the size, composition, and surface of the tracks are different. Furthermore, not all outdoor track events are available during the indoor track season. Unlike cross country, not all team members compete in the same event, and scoring is the sum of the results of individual and relay events. In short, there is nothing suspect about the way Quinnipiac counts its cross country and track athletes.
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Competitive cheer, although not presently an NCAA-recognized sport or emerging sport,
has all the necessary characteristics of a potentially valid competitive “sport.” The elements and
routines performed by competitive cheer teams require rigorous training and a high level of
athletic and gymnastic ability, and could be easily described as “group floor gymnastics.”
Notwithstanding the facts that competitive cheer does not presently have a non-profit governing
body and that its schedule lacks the hallmarks of progressive-style competition where a team’s
season record determines its eligibility to compete in culminating conference and national
championships, the gymnastic nature of competitive cheer, its broad popularity, and the high
level of national competition, provide a legitimate basis from which competitive leagues can be
built.9
9 Although I am not deciding the issue whether competitive cheer constitutes a “sport” for purposes of Title IX compliance, I note that the OCR issued a letter in 2000, stating that it would consider the following factors relevant when determining, on a case-by-case basis, whether cheerleading would be considered a sport:
• whether selection for the team is based upon objective factors related primarily to athletic ability;
• whether the activity is limited to a defined season; • whether the team prepares for and engages in competition in the same way as
other teams in the athletic program with respect to coaching, recruitment, budget, try-outs and eligibility, length and number of practice sessions and competitive opportunities; • whether the activity is administered by the athletic department; • whether the primary purpose of the activity is athletic competition and not the support or promotion of other athletes; • whether organizations knowledgeable about the activity agree that it should be recognized as an athletic sport; • whether the activity is recognized as part of the interscholastic or intercollegiate athletic program by the athletic conference to which the institution belongs and by organized state and national interscholastic or intercollegiate athletic associations; • whether state, national, or conference championships exist for the activity; • whether a state, national, or conference rule book or manual has been adopted for the activity;
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Although they are likely to lose the two issues just discussed, the principal reason that plaintiffs are likely to succeed on of the merits of their claims is that Quinnipiac’s practice of setting floors for women’s rosters under its roster management policy does not produce sufficient genuine participation opportunities for women. In defending its practice of setting roster targets, Quinnipiac relies on a 1996 ORC Clarification (the “OCR Clarification”) of the three-prong Title IX compliance test. Pl. Ex. 7. That clarification does accept roster management practices, including capping participation opportunities and cutting teams, as acceptable measures to achieve substantial proportionality. Id. at 4. The clarification further states that “[a]s a general rule,” those athletes listed on a squad list on the first day of competition will count as participants by the OCR and that participants who do not compete, but only practice with a team, will also count as participants. Id. at 8. The 1996 Clarification and accompanying “dear colleague” letter cautions, however, that “participation opportunities must be real, not illusory.” Id. at 4. It does not suggest that setting a floor for rosters is an acceptable practice for achieving substantial proportionality, particularly where there is evidence that those teams with padded roster numbers are not actually providing genuine participation opportunities for all roster members counted when determining proportionality.
There is a significantly different impact on athletic participation opportunities resulting
• whether there is state, national, or conference regulation of competition officials along with standardized criteria upon which the competition may be judged; and
• whether participants in the activity/sport are eligible to receive scholarships and athletic awards (e.g., varsity awards).
Pl. Ex. 19, Letter from Dr. Mary Frances O’Shea, National Coordinator for Title IX Athletics, Office for Civil Rights, U.S. Department of Education, to David V. Stead, Executive Director, Minnesota State High School League (April 11, 2000).
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from the use of roster floors than from the use of roster caps. A roster cap implies the need to cut players who would otherwise qualify for a team based upon interest and ability – players who can meaningfully benefit from and contribute to team play. In contrast, a roster floor implies the need to add players who otherwise would not qualify for a team based upon interest and ability – players whose principal role is to provide a gender statistic, rather than a meaningful contribution to the team. Floors impose an obligation on coaches to pump up roster numbers and to “carry” players otherwise unsuited to further team goals. Not surprisingly, I have found no caselaw or other authority that sanctions the use of floors – in contrast to the use of caps – as a means of satisfying prong one of Title IX compliance.
At least one court has addressed the feasibility of a roster management policy akin to the one presented by Quinnipiac in this case. In Choike v. Slippery Rock University, 2006 WL 2060576, at *7 (W.D. Pa. 2006), the Court rejected the defendant university’s attempt to rely on its roster management policy as proof of its compliance with prong one of Title IX because university officials admitted that “attempts to achieve substantial proportionality through roster limits in the past have failed,” noting that men’s team coaches had been permitted to increase roster size despite the established roster limits set by the administration. The Court further noted that “the increase in roster size for the majority of women’s teams appears to be purely artificial,” noting that the numbers were not driven by any research into the needs or wants of the female students. Id. The university provided no evidence that the teams would be able to fill the extra spots or that the budgets for those sports had been increased accordingly. Id. at *8. Therefore, the attempt to use roster management to achieve substantial proportionality was “simply too speculative at this juncture to satisfy Title IX.” Id.
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In arguing that it has satisfied prong one of Title IX compliance, Quinnipiac relies heavily on its EADA roster number reports. Title IX, however, requires more than merely showing gender equity on the EADA report. Although an EADA report can be used to make a prima facie showing of substantial proportionately, plaintiffs are permitted to look behind those numbers, as they have done here, to determine whether those EADA numbers actually represent genuine, not illusory, athletic participation opportunities.
The plaintiffs in this case offered credible testimony that the athletic department’s roster management numbers did not accurately reflect the actual number of genuine participation opportunities available to both genders at Quinnipiac. Where the focus of prong one of the Title IX compliance test is genuine participation opportunities, it is simply unacceptable for a university to set roster numbers at unsustainably high levels, well above average NCAA squad sizes and the individual coaches’ need, in order to “make the numbers” for purposes of claiming to have achieved substantial proportionality. As effectively demonstrated by Fairchild’s testimony about the players on her team, those students filling the extra roster spots are not receiving genuine opportunities to participate and the roster count on the EADA report fails to capture the numerical reality.
Certainly further evidence and analysis of Quinnipiac’s roster management policy as it affects the individual teams is necessary before reaching an ultimate conclusion on the merits of Quinnipiac’s claim that it provides genuine participation opportunities to its male and female students in substantial proportionality to the gender composition of the undergraduate population. For the time-being, however, one need only look to the testimony of McDonald and Fairchild to determine that, during the 2008-2009 academic year, there was a participation gap of at least 12
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roster slots that went unreported in the EADA numbers – there were six unreported players on the men’s lacrosse team and there were six fewer genuine participation opportunities on the women’s softball team than were reported. The actual participation gap – if repeated during the upcoming year – would throw off the gender proportionality to a degree that retaining the women’s volleyball team would only just restore proportionality.
Furthermore, I have no confidence that the EADA numbers Quinnipiac is relying on upon to prove substantial proportionality are accurate indicators of genuine athletic participation opportunities. There is no evidence to suggest that Quinnipiac coaches are likely to stop engaging in the types of roster manipulations made during the past two seasons, so it is reasonable to expect that the reported roster numbers in 2009-2010 will not be significantly more accurate than those reported in 2007-2008 and 2008-2009. Moreover, without reaching the issue whether the women’s cheer team is a Title IX-eligible sport, it is at least clear that Quinnipiac is relying on a very optimistic estimate of the number of cheerleaders to whom it will be able to offer genuine participation opportunities. Considering that there were only 31 cheerleaders in the past year, counting both sideline and competitive cheer, and only 18 of those are returning to the team next year, 40 roster slots is highly ambitious. Quinnipiac, therefore, cannot rely on those projected figures to boost itself into the territory of substantial compliance for the upcoming academic year.10
Even if Quinnipiac’s roster numbers are accurate, it still has a problem complying with
10 This is especially true because Quinnipiac has no actual experience maintaining both competitive and sideline cheer on which to make a realistic projection of the numbers it can sustain. The estimate of 40 participants, therefore, lacks a foundation in past practice that would instill it with credibility.
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Title IX because it relies on a roster management policy of setting roster floors. The plaintiffs have successfully demonstrated that the practice of setting roster floors does not correspond to an equal number of genuine athletic participation opportunities, which is what matters for purposes of complying with Title IX in spirit and in fact. Either one of those problems – inaccurate roster numbers or setting false roster floors – is sufficient to knock Quinnipiac out of compliance with Title IX. III. Conclusion
Plaintiffs have met their burden of proving irreparable harm and a likelihood of success on the merits that Quinnipiac is not providing genuine athletic participation opportunities in substantial proportionality to the gender composition of its full-time undergraduate enrollment. Therefore, a preliminary injunction to prevent the elimination the women’s volleyball team is necessary pending determination of the merits of plaintiffs’ claims.
Therefore: IT IS ORDERED that the defendant, Quinnipiac University and its agents, officers, directors, trustees, employees, and anyone acting in concert with them who receives actual notice of this order, are hereby enjoined from: a. eliminating Quinnipiac’s women’s varsity intercollegiate volleyball team or any
other women’s teams or athletic participation opportunities; b. involuntarily terminating the employment of the coaches of Quinnipiac’s
women’s varsity intercollegiate volleyball team; c. reducing its financial, material, or other support for the Quinnipiac women’s
varsity intercollegiate volleyball team or any other women’s intercollegiate team;
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and d. restricting or denying Quinnipiac’s women’s varsity intercollegiate volleyball
team access to facilities, coaching, training, or competitive opportunities. This preliminary injunction shall remain in full force and effect until the final judgment in this action or until further order of the Court, whichever occurs first. This injunction shall issue without bond. Accordingly, the motion for preliminary injunction (doc. #2) is GRANTED. It is so ordered. Dated at Bridgeport, Connecticut, this 22nd day of May 2009.
/s/ Stefan R. Underhill Stefan R. Underhill United States District Judge
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 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated; and ROBIN LAMOTT SPARKS, individually,
Plaintiffs,
v.
QUINNIPIAC UNIVERSITY, Defendant.

No. 3:09cv621 (SRU)

RULING AND ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Plaintiffs Stephanie Biediger, Kayla Lawlor, Erin Overdevest, Kristen Corinaldesi, and
Logan Riker move to certify a class of similarly situated present and future female athletes whose rights, protected under Title IX of the Educational Amendments of 1972 (20 U.S.C. § 1681 et seq.) and the regulations adopted pursuant thereto (34 C.F.R. Part 106) (collectively, “Title IX”), have been and will continue to be violated by defendant Qunnipiac University (“Quinnipiac” or the “University”).1 For the reasons that follow, that motion is granted in part and denied in part. I. Background
The background of this case is detailed in my May 22, 2009 ruling granting a preliminary injunction. See Bieidger v. Quinnipiac Univ., 616 F. Supp. 2d 277 (D. Conn. 2009). I restate only those facts that are relevant to deciding plaintiffs’ class certification motion.
The named plaintiffs are current students at Quinnipiac University and members of the

1 Robin Lamott Sparks, the Quinnipiac University women’s volleyball coach, is also a named plaintiff in this case. She, however, is suing only on her own behalf and is not claiming to represent the putative class at issue here. Therefore, when I refer to the individual or named plaintiffs in this ruling, I refer only to the five students listed above, and not to Sparks.

University’s women’s volleyball team. On March 4, 2009, Quinnipiac informed the women’s volleyball team that the program would be eliminated at the end of the 2008-2009 academic year.2 At the time Quinnipiac informed the women’s volleyball team of its termination, there was a disparity between the percentage of women enrolled as undergraduates at the University and the number of varsity athletic participation opportunities available to female students. See id. at 280-81 (noting that 61.7% of Quinnipiac’s undergraduate enrollees in the 2008-2009 academic year were female, but, based on preliminary data, that 52.57% of the university’s athletic opportunities were for women’s sports). To fill the void left by women’s volleyball and improve the extant gender disparity in the University’s athletic program, Quinnipiac planned to elevate competitive cheer, then a club sport, to varsity status and to create new women’s teams for indoor and outdoor track.
On May 22, 2009, I granted the plaintiffs’ motion for a preliminary injunction that barred Quinnipiac from cancelling its women’s volleyball program for the 2009-2010 academic year. I found that eliminating the women’s volleyball 2009 season would cause the plaintiffs irreparable harm, and that the plaintiffs had demonstrated a likelihood of succeeding on the merits because Quinnipiac had failed to offer athletic participation opportunities in substantially proportional number to the gender composition of its enrollees. My ruling was based on evidence that Quinnipiac engaged in “roster management,” that is, Quinnipiac set floors for women’s rosters and, likewise, ceilings for men’s rosters in order to create the appearance of gender equity in the University’s athletic program. Under roster management, women’s teams would cut excess
2 The men’s golf and outdoor track teams were likewise informed that they would be eliminated after the 2008-2009 academic year.
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players, and men’s teams would add needed players, after a team’s first day of competition, the date on which Quinnipiac collected roster data for its annual Equity in Athletics Disclosure Act (“EADA”) report. The apparent increased gender parity in Quinnipiac’s EADA report was exactly that: an apparition of substantially proportional athletic participation opportunities for women.
A bench trial on the plaintiffs’ action for a full injunction and damages is set for June 21, 2010. In advance of that trial, the plaintiffs have moved under Rule 23(b)(2) of the Federal Rules of Civil Procedure to certify a class defined in the following terms:
[T]he Student Plaintiffs seek to represent a class of all present, prospective, and future female students who are harmed by and want to end [Quinnipiac University’s] sex discrimination in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes. They also file this action on behalf of females who are deterred from enrolling at [Quinnipiac] because of the sex discrimination in its athletic program, including its failure to offer the varsity sports in which they want to participate (despite [Quinnipiac’s] failure to provide equal athletic participation opportunities to females). Pls.’ First Amended Class Action Compl. ¶ 19. Quinnipiac challenges that motion on three grounds: (1) the class is not ascertainable; (2) the class is not sufficiently numerous; and (3) the named plaintiffs are inadequate class representatives.
II. Standard of Review In order to succeed on their motion for class certification, the plaintiffs must prove that
their proposed class meets all of the requirements set forth in Rule 23. In re Initial Public Offering Secs. Litig., 471 F.3d 23, 41 (2d Cir. 2006). Rule 23(a) sets forth four conditions for class certification: numerosity, commonality, typicality, and adequacy. Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 201-02 (2d Cir. 2008). In addition
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to those conditions, the plaintiffs must also demonstrate that the class they seek to certify is ascertainable; although that requirement is not inscribed in Rule 23(a), the need for a class to be ascertainable – i.e., the need for the class to “be readily identifiable so that the court can determine who is in the class, and thus, who is bound by the ruling” – is implicit in, and fundamental to, Rule 23’s operation. McBean v. City of New York, 228 F.R.D. 487, 492 (S.D.N.Y. 2005).
Once the conditions of Rule 23(a) have been met, the plaintiffs must demonstrate that their class satisfies Rule 23(b)(2), which requires them to show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The burden remains on the plaintiffs to show that its proffered class satisfies all of the requirements of Rule 23. McBean, 228 F.R.D. at 492 (citing Caridad v. Metro-N. Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999)). Furthermore, the plaintiffs must prove that the proposed class meets those requirements by a preponderance of the evidence, regardless of whether those requirements coincide with the merits of their claims. Teamsters, 546 F.3d at 202. III. Discussion
Although the defendants challenge only three aspects of the plaintiffs’ motion to certify a class – the class’s numerosity, ascertainability, and the adequacy of its representation – this court “may certify a class only after making determinations that each of the Rule 23 requirements has been met.” IPO, 471 F.3d at 41. I therefore address of the requirements seriatim, beginning with Rule 23(a).
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A. Rule 23(a) requirements 1. Ascertainabiliy
Quinnipiac argues that the plaintiffs’ proposed class is not ascertainable because it includes women whose membership hinges on their future, unknowable decisions to enroll at the Univeristy. Quinnipiac also complains that the class depends on determinations of the class participants’ subjective mental states, which renders the class unascertainable.
“A class is ascertainable if its members can be identified by reference to objective criteria and if such identifications can be made in an administratively feasible manner.” Taylor v. Housing Auth. of New Haven, 257 F.R.D. 23, 28 (D. Conn. 2009), vacated on other grounds, No. 3:09cv557 (JBA), 2010 WL 1278869 (D. Conn. Mar. 29, 2010). The purpose of the ascertainability requirement is to ensure that the class is “sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.” Mike v. Safeco Ins. Co. Of Am., 223 F.R.D. 50, 52-53 (D. Conn. 2004) (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1760, at 120-21 (2d ed. 1986)). The mere inclusion of future members does not cause a class to be unascertainable, as other Title IX cases reveal. See, e.g., Cohen v. Brown Univ., 991 F.2d 888, 893 (1st Cir. 1993) (describing district court’s certification of “a class of ‘all present and future Brown University women students and potential students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics funded by Brown’”). Indeed, a class that includes future members is permissible so long as the future members are “under imminent threat of injury.” In re Currency Conversion Fee Antitrust Litig., 229 F.R.D. 57, 63 (S.D.N.Y. 2005); see also Messier v. Southbury Training Sch., 183 F.R.D. 350, 356 (D. Conn.
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1998) (noting, in dictum, that “a (b)(2) class may include future members who stand to benefit from a favorable outcome in the case”); Robertson v. Nat’l Basketball Ass’n, 389 F. Supp. 867, 897 (S.D.N.Y. 1975) (referencing other cases in which certified classes have included future members). As the plaintiffs have defined their class, any future members would be subject to such an imminent threat of injury: if future members eventually enroll at Quinnipiac, they will be harmed by the University’s alleged sex discrimination in its athletics program.
Quinnipiac stands on stronger ground when it argues that the class is not ascertainable because it calls for the court to make judgments about putative members’ subjective mental states. The plaintiffs’ proposed class includes two potential groups, or subclasses, whose definitions include subjective components: (1) current, prospective, and future students who are harmed by and want Quinnipiac to cease its alleged sex discrimination; and (2) women who have not and will not enroll at Quinnipiac because of Quinnipiac’s allegedly discriminatory athletic programming. Each subclass must be assessed separately to determine its ascertainability.
There is no ascertainability problem with respect to the first group. Although the language of the proposed subclass contains a subjective element – namely, the members’ desire that Quinnipiac comply with Title IX’s mandate – that element is superfluous to the class’s definition. The subclass’s key constitutive feature is the objective harm caused by Quinnipiac’s failure to provide substantially proportional athletic participation opportunities, financial assistance, and benefits. The plaintiffs already proved by a preponderance of the evidence at the preliminary injunction hearing that Quinnipiac will likely be found liable for sex discrimination. See Biediger, 616 F. Supp. 2d at 296 (holding that Quinnipiac likely violates Title IX because its “practice of setting floors for women’s rosters under its roster management policy does not
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produce sufficient genuine participation opportunities for women”). That evidence is enough to prove at the class certification stage that there is a class of female students harmed by Quinnipiac’s lack of equitable athletic participation opportunities, financial assistance, and benefits. See Teamsters, 546 F.3d at 202 (holding that courts must find facts relevant to the requirements of Rule 23 by a preponderance of the evidence, even if such facts overlap with the merits of the case). Presumably, current, prospective, or future female students who are injured by the gender disparity in Quinnipiac’s athletics offerings would want the University to remedy that imbalance. The class definition’s language about its members “want[ing] to end” the University’s alleged discrimination is therefore prolix; if the words were struck from the class definition, the plaintiffs’ proposed class would still include the same people adversely affected by the gender disparity in Quinnipiac’s athletics program, all of whom could be ascertained by objective, administratively feasible criteria. Furthermore, even if that were not true, and there were class members who did not favor the plaintiffs’ suit to end Quinnipiac’s alleged discrimination, that would not necessarily upset the class’s ascertainability. See Messier, 183 F.R.D. at 356 (listing cases holding that “diversity of opinion within a class does not automatically defeat class certification”). Thus, I find that the subjective component for this first group presents no ascertainability problem.3
3 The first subclass essentially presents the same class that was certified in Cohen, 991 F.2d 888, which included all present and future female students who participated in, sought to participate in, or were otherwise deterred from participating in Brown University’s varsity athletics program. The plaintiffs’ rewriting of the class definition in terms of female students who are “harmed by and want to end” Quinnipiac’s alleged discrimination appears to have been intended to cleave from the plaintiff class all female athletes who stand to benefit from Quinnipiac’s plans for its athletic department. Those students likely include the current and future members of the women’s competitive cheer, indoor track, and outdoor track teams.
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The plaintiffs’ second group is more problematic. That subclass contains women who did not, or will not, enroll at Quinnipiac because of the University’s gender disparity in athletic opportunity and benefits. Quinnipiac claims that this group should not constitute part of the plaintiffs’ proposed class because it would require individual inquiries of potential class members to determine whether they ever seriously considered attending Quinnipiac and whether they decided not to enroll because of the University’s failure to provide equal athletics participation opportunities and benefits for its female students. I agree that this subclass is not ascertainable. The second group within the plaintiffs’ proposed class is sufficiently amorphous and unwieldy to upset the efficiency that a class action is supposed to achieve. Unlike the first subclass, which is composed of a definite and identifiable pool of possible members (at its broadest, all current, prospective, and future female athletes at Quinnipiac), the second subclass could conceivably be every person who decided, or who will decide, not to attend Quinnipiac. That pool would then have to be narrowed by determining the members’ motivations for their decision not to enroll in the University. The plaintiffs do not offer any solution for how the class could be ascertained in an administratively feasible fashion, and I cannot imagine how the class’s membership could be identified objectively and without inordinate time and expense.
The second proposed group also suffers from at least two other deficiencies. First, the plaintiffs have introduced no evidence to establish that there is, in fact, a group of aggrieved nonstudents that would constitute this part of the class. The preliminary injunction hearing focused entirely on the discrimination that Quinnipiac’s female students face; the plaintiffs submitted no evidence about how current or future non-students were affected by the University’s athletic programming, other than, perhaps, testimony from volleyball players about the challenges of
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leaving Quinnipiac and enrolling in another institution to continue their collegiate volleyball careers. See Biediger, 616 F. Supp. 2d at 292. Therefore, the plaintiffs have not met their burden in establishing that such a subclass exists. Second, I am concerned whether people who have not enrolled and have no plans of enrolling at Quinnipiac have standing to bring this Title IX claim. The question of standing was not briefed by either side in their submissions relating to the plaintiffs’ class certification motion, and it is not necessary to my ruling; hence, a thorough analysis is not needed. Still, it seems questionable that a person who has been merely deterred from enrolling in a school has suffered an injury that Title IX can redress. See Preyer v. Dartmouth Coll., 968 F. Supp. 20, 25-26 (D.N.H. 1997) (holding that plaintiff lacked standing to sue under Title IX because she was not a student, and citing supporting cases). At the very least, it is clear that none of the named plaintiffs are members of this subclass: they are all students at Quinnipiac who were not deterred from enrolling. Even if one assumes that being dissuaded from matriculating at Quinnipiac constitutes a remediable injury and that non-students have standing to sue under Title IX, the named plaintiffs have not suffered the same alleged injury as the proposed subclass of non-students. They claim to have been denied equitable athletic participation and benefits; by contrast, non-students could only claim to have been denied the ability to attend their preferred school. Thus, the named plaintiffs do not appear to have the requisite standing to serve as class representatives for the proposed group of non-students deterred from enrolling at Quinnipiac. See Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 99 (2d Cir. 2007) (“‘To have standing to sue as a class representative it is essential that a plaintiff . . . be a part of that class, that is, he must possess the same interest and suffer the same injury shared by all members of the class he represents.’” (quoting Schlesinger v.
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Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974)). For those reasons, I conclude that the class of current, prospective, and future female
students who are harmed by and want to end Quinnipiac’s alleged sex discrimination in its athletics program is an ascertainable class. Non-students who were deterred from enrolling at Quinnipiac may not be included in the class, however, because they, as a separate group or subclass, are not ascertainable and the plaintiffs have not met their burden to prove that they meet the Rule 23 requirements with respect to that subclass.
2. Numerosity Rule 23(a) limits certification to those classes that are “so numerous that joinder of all members is impracticable.” The plaintiffs need not establish the precise number of class members in order to meet the numerosity requirement; but a class that is shown to include 40 or more people is presumptively large enough to satisfy Rule 23(a). Robidoux v. Celani, 987 F.2d 931, 935-36 (2d Cir. 1993). In addition to sheer numbers, a court may consider other factors that would cause joinder of all members to be impracticable, such as judicial economy, the members’ geographic distribution and financial resources, and “requests for prospective injunctive relief which would involve future class members.” Id. at 936. Quinnipiac argues that the plaintiffs have not demonstrated numerosity because they have not shown that a significantly large number of female students are harmed, and will continue to be harmed, by the University’s purported sex discrimination. At the preliminary injunction hearing, however, the plaintiffs more than met their present burden to prove that the number of their putative class members will be large enough to render joinder impracticable. First, consider the group of current students who are denied equitable athletic participation opportunities – i.e.,
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the students who are unable to participate in varsity athletics because of Quinnipiac’s relatively
few roster spots and sports teams for women. At the preliminary injunction hearing, the
plaintiffs proved that this group, by itself, meets Rule 23(a)’s numerosity requirement. If the
2008-09 academic year is taken as a baseline, 61.7% of Quinnipiac’s undergraduate population
were women, while women made up only 52.57% of the University’s athletes; reciprocally, that
year 38.3% of Quinnipiac’s undergraduate population and 47.34% of its athletes were men.
Biediger, 661 F. Supp. 2d at 280-81. Assuming that the University kept constant the number of
men’s roster spots at 212, the number reported in the 2008-2009 EADA report, id. at 286,
Quinnipiac would have to add 107 additional roster spots for female students in order to create a perfectly proportional athletics department.4 If the University cut its men’s golf and outdoor
track teams, thus eliminating 28 men’s roster spots (as it planned to do in conjunction with
cutting its women’s volleyball team), id., and kept constant the remainder of its men’s sports
teams, Quinnipiac would have to add 61 additional women’s roster spots to achieve perfect proportionality.5 Finally, even if the University cut its men’s golf and outdoor track teams and
4 There were 235 women’s roster spots in the 2008-09 academic year. If the 212 male athletes were to constitute 38.3% of the University’s total roster positions, there would have be approximately 554 total athletes competing at Quinnipiac. That results in 342 total women, an increase of 107 positions from Quinnipiac’s 2008-2009 EADA numbers.
Admittedly, perfect proportionality exceeds the “substantially proportionate” Title IX safe harbor for universities. See Biediger, 616 F. Supp. 2d at 294 (quoting Cohen, 991 F.2d at 897). Nonetheless, it is helpful for the purpose of gauging the approximate size of the plaintiff class.
5 With the 28 roster spots eliminated – 8 golfers and 20 track participants – there would be 184 male athletes. In order for them to constitute 38.3% of the University’s total roster positions, there would have to be approximately 480 total athletes competing at Quinnipiac. That results in 299 total women, an increase of 61 roster spots from Quinnipiac’s 2008-2009 EADA numbers.
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trimmed the rosters of its other men’s sports as it planned to do for the 2009-2010 season, thus bringing the total number of male athletes to 165, id. at 290, Quinnipiac would still have to add 31 women’s roster spots.6
Each of those calculations, when the 12 volleyball players who would lose their positions are included, establishes a class that is presumptively large enough for the purposes of Rule 23’s numerosity requirement; in each hypothetical, there are 40 or more positions that female students are not being offered – or, in the case of the volleyball team, soon will not be offered – and could be filled.7 And that is to say nothing about the entire population of Quinnipiac’s current female athletes (excepting the volleyball players, who were already counted as athletes denied athletic participation opportunities) who are purportedly being harmed by the University’s unequal provision of financial assistance and benefits. That population, based on the 2008-2009 EADA data, amounts to 223 players, which is surely large enough for the purposes of Rule 23(a)’s numerosity requirement. Supplementing the numbers of class members are the prospective and future female students who will be denied equal athletic participation opportunities, financial assistance, and benefits. The fact that the plaintiffs are suing for prospective injunctive relief to benefit future class members also bolsters the conclusion that the plaintiffs’ proposed class is amply numerous to be certified; seeking injunctive relief on behalf of future members is a
6 For 165 male athletes to constitute 38.3% of the University’s total roster positions, there would have to be approximately 431 total athletes competing at Quinnipiac. That results in 266 total women, an increase of 31 roster spots from Quinnipiac’s 2008-2009 EADA numbers.
7 Of course, that statement assumes that there are students presently at Quinnipiac who would want to and could fill those added positions. Although I recognize that there may not, in fact, be students who could fill all of those roster spots at this moment, any partial shortage of current class members is compensated by other potential class members, such as prospective and future female students who would want to and could play in newly created varsity positions.
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separate, additional factor militating in favor of a class’s numerosity. Robidoux, 987 F.2d at 936. See, e.g., Boyd v. Interstate Brands Corp., 256 F.R.D. 340, 358 (E.D.N.Y. 2009) (holding that class was sufficiently numerous, in part, because the plaintiffs sought injunctive relief on behalf of future class members); Shariff v. Goord, 235 F.R.D. 563, 570 (W.D.N.Y. 2006) (holding that effect of judgment on future class members contributed to decision that class was sufficiently numerous for certification).
Altogether, then, the plaintiffs’ proposed class is large enough to meet the numerosity requirement of Rule 23(a). Quinnipiac’s challenge on this point is unpersuasive and fails.
3. Commonality and typicality In order to certify a class, there must be “questions of law or fact common to the class” and “the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(2)-(3). The commonality and typicality requirements “‘tend to merge’ because ‘both serve as guideposts for determining whether the named plaintiffs’ claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’” Taylor, 257 F.R.D. at 30 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 n.13 (1982)). Quinnipiac does not dispute that the commonality and typicality requirements are met. Indeed, the two requirements are essentially built into the class definition: in order to be a class member, a person must be a female student who has been or will be harmed by Quinnipiac’s alleged sex discrimination. In other words, the class definition presupposes that its members have been subjected to, and seek redress for, an identical legal wrong. The proposed class satisfies Rule 23(a)’s commonality and typicality requirements.
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4. Adequacy Rule 23(a)’s final requirement is that the class representatives “will fairly and adequately protect the interests of the class.” The class representatives’ adequacy generally involves a twopart demonstration: “first, that the lead plaintiffs’ interests are not ‘antagonistic’ to the other members' interests, and second, that the plaintiffs’ attorneys are ‘qualified, experienced and able to conduct the litigation.’” Haddock v. Nationwide Fin. Servs., Inc., 262 F.R.D. 97, 117 (D. Conn. 2009) (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000)). Quinnipiac challenges only the first part of that standard and argues that the class as currently defined creates a conflict of interest between segments of the University’s population of female athletes. In particular, Quinnipiac contends that the class representatives’ interests are antagonistic to the interests of female students who participate on the University’s competitive cheer, outdoor track, and indoor track teams. There is no question that there could be an adequacy problem if the plaintiffs’ proposed class included those students. The class definition, however, is limited to “all present, prospective, and future female students who are harmed by and want to end [Quinnipiac University’s] sex discrimination” (emphasis supplied). To be a class member, a person must be injured by Quinnipiac’s current and planned athletic programming. By its own terms, then, the plaintiffs’ proposed class presumptively excludes the competitive cheer and track participants who, the University maintains, present a conflict of interest; any students who are not “harmed” by Quinnipiac and would not “want to end” its practices, e.g., because they are likely to benefit from the University’s future athletics programming, are not class members. Therefore, there is no conflict. In the event that the “harmed by and want to end” language too vaguely stakes the
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class’s membership, the definition may be modified later to clarify this point. See Fed. R. Civ. P. 23(c)(1) (“An order that grants or denies class certification may be altered or amended before final judgment.”); In re Holocaust Victim Assets Litig., 225 F.3d 191, 201 (2d Cir. 2000) (“Rule 23 gives the District Court broad discretion to modify the definition of the class even after certification . . . .”). In addition, any members who do not want to be represented in the class, or who believe they are erroneously included in the class, may opt out if they so choose. See McReynolds v. Richards-Cantave, 588 F.3d 790, 800 (2d Cir. 2009) (“The right of a class member to opt-out in Rule 23(b)(1) and (b)(2) actions is not obvious on the face of the rule; however, ‘the language of Rule 23 is sufficiently flexible to afford district courts discretion to grant opt-out rights in (b)(1) and (b)(2) class actions.’” (quoting Eubanks v. Billington, 110 F.3d 87, 94 (D.C. Cir. 1997))).
Quinnipiac does not attack the quality of the plaintiffs’ attorneys, and I have no reason to doubt their ability to represent the proposed class effectively. The named plaintiffs are therefore adequate representatives and their proposed class satisfies all of the requirements of Rule 23(a).
B. Rule 23(b) requirements The plaintiffs seek to certify a class only for the purpose of obtaining declaratory and injunctive relief. See Pls.’ First Amended Class Action Compl. ¶ 32 (describing class’s entitlement to declaratory and injunctive relief). The only parties seeking damages in this case are the named student plaintiffs and Robin Lamott Sparks. Thus, the plaintiffs seek to certify their proposed class pursuant to Rule 23(b)(2), which permits certification of a class if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
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whole.” See Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 162 (2d Cir. 2001) (“The (b)(2) class action is intended for cases where broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury.”). Quinnipiac does not claim that the proposed class would be unfit for Rule 23(b)(2) classification. Nor could it. As explained above, the class definition presupposes that Quinnipiac has uniformly discriminated against the class members by failing to allocate equal athletic participation opportunities, financial assistance, and benefits to them. Injunctive and declaratory relief against Quinnipiac would remedy the class’s alleged collective harm. Hence, Rule 23(b)(2) certification is appropriate. IV. Conclusion
The plaintiffs’ motion for class certification (doc. # 107) is GRANTED in part and DENIED in part. It is hereby ORDERED that the following class shall be certified pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure:
All present, prospective, and future female students at Quinnipiac University who are harmed by and want to end Quinnipiac University’s sex discrimination in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes. That class is certified with respect to all factual and legal issues relating to the plaintiffs’ first, second, and third claims for relief against Quinnipiac in their First Amended Class Action Complaint. Those claims seek declaratory and injunctive relief for, respectively, Quinnipiac’s unequal allocation of athletic participation opportunities, unequal allocation of athletic financial assistance, and unequal allocation of athletic treatment and benefits. The plaintiffs’ proposed group of non-students who have been or will be deterred from enrolling at Quinnipiac because of the University’s alleged sex discrimination shall not be
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certified as a part of this class. That group is not ascertainable and the plaintiffs have failed to prove that such a subclass of people exists.
Pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, the court hereby designates the following as class counsel: Alex V. Hernandez and Jonathan B. Orleans of Pullman & Comley, LLC; Kirsten Galles of Equity Legal; and David McGuire of the ACLU Foundation of Connecticut. The class representatives shall be the named student plaintiffs: Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, and Logan Riker.
The plaintiffs shall submit a proposed class notice for the Court’s approval within seven (7) days of this ruling and order.
It is so ordered. Dated at Bridgeport, Connecticut, this 20th day of May 2010.
/s/ Stefan R. Underhill United States District Judge
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 Case 3:09-cv-00621-SRU Document 193 Filed 09/16/10 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

)

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDEVEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER,

)

individually and on behalf of all

)

those similarly situated;

)

and

)

ROBIN LAMOTT SPARKS, individually,

)

)

Plaintiffs,

)

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

Defendant.

)

CIVIL ACTION NO. 3:09-cv-00621-SRU
September 16, 2010

PLAINTIFFS’ RESPONSE TO DEFENDANT’S PROPOSED COMPLIANCE PLAN

Plaintiffs submit this document as their preliminary response to Defendant Quinnipiac University’s Proposed Compliance Plan (“Proposed Plan”) (Doc. 182). Plaintiffs state herein their preliminary objections to and concerns about certain aspects of the Proposed Plan. Plaintiffs anticipate that the Court will conduct further proceedings before entering any order with respect to the Proposed Plan. Plaintiffs request an opportunity to conduct discovery regarding the basis for and development of the Proposed Plan and a more detailed explanation of its terms before any hearing on the Proposed Plan takes place.

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Objections and Concerns Enrollment Assumptions
The Proposed Plan does not explain the basis for its enrollment assumptions. In order to comply with Prong One, the number of varsity athletic participation opportunities that QU offers to female students must be substantially proportionate to full time undergraduate enrollment, with any “gap” smaller than the number of students required to field a varsity team. QU, like all institutions of higher education, must have engaged in long-term strategic planning regarding its projected enrollment. Yet the Proposed Plan includes no such information. QU has put increasing emphasis on educating for the health professions in recent years. Because those majors tend to attract more female students, it is plausible to expect that QU’s enrollment will trend toward a higher percentage of female undergraduates. If this is the case, then QU’s athletic department must plan accordingly. The Proposed Plan does not account for any projected change in the composition of the student body; indeed, it includes no projection at all for academic year 2011-2012, much less any future year. QU must plan for Title IX compliance not just now or next year, but for the foreseeable future. Thus, Plaintiffs believe that any plan approved by the Court must include enrollment projections and account for them in the athletic program. Squad Sizes
The Proposed Plan fails to explain or justify the suspiciously large squad sizes listed for some of the women’s teams. QU proposes to field teams with more women than the average NEC squad sizes in basketball, field hockey, golf, ice hockey, lacrosse, soccer, softball, tennis, cross country, and volleyball. It’s women’s basketball,
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field hockey, golf, ice hockey, lacrosse, and cross country teams are all projected to be larger than average NCAA Division I squads. In cross country, QU plans to carry 7 more athletes than the NCAA Division I average – enough to field an entire race team.
As the United States’ trial brief explained, it is not enough for QU to merely claim to carry certain numbers of students on its teams. The University must actually provide all of those women with genuine Division I varsity athletic participation opportunities. Abundant preliminary injunction and trial testimony indicated that QU fails to provide such opportunities for its “extra” athletes. As Plaintiffs showed at trial – a showing they expect to buttress when their discriminatory treatment claim is tried – QU does not provide its bloated women’s teams with the resources necessary to give each member genuine varsity benefits. The Proposed Plan does not address this issue at all. For example, has QU hired (or will it hire) more coaches to support the extra athletes? Has it purchased more uniforms and equipment? Has it increased travel and transportation budgets so that large squads can travel to away games? Has it hired more training and conditioning personnel for the extra women? Has it increased the teams’ recruiting budgets so that the coaches can recruit Division I athletes, and not trawl the dining halls for unqualified walk-ons to meet their mandatory roster floors? Has the University increased scholarship budgets to entice more qualified women to join its teams despite their unwieldy rosters?
Several of the women’s squads set forth in the Proposed Plan are, as in past years, simply too large for Division I. The women on these teams cannot receive the same benefits received by QU’s male athletes, or that are expected at the Division I level. By its very nature, Division I is the top, most elite level of college competition. It
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is not the level where “everyone plays.” Legitimate Division I programs do not pad teams with people who lack Division I skills, or who are not likely to contribute to the team. If that is what QU wants to do in its women’s program, then it should do the same for its men’s teams, and it should reclassify its athletic program to Division III. But as long as QU retains NCAA Division I status, it cannot be permitted to pad women’s teams in order to improve the “optics” of its Title IX participation statistics.
Accordingly, the Court should either reject QU’s bloated proposed women’s rosters or require QU to justify its different treatment of women and men in the floors and limits it imposes on their teams. QU should be required to provide legitimate reasons for its unusually large women’s squads and to demonstrate that it has substantially increased the resources provided to those teams – especially by adding coaching, scholarship, and recruiting dollars – in order to offer those extra women genuine Division I varsity opportunities without detracting from the experiences of the women who actually compete. Cross Country
Plaintiffs especially object to QU’s proposal to carry 24 women but only 13 men in its cross country program. Cross country coach Carolyn Martin’s emails stated that 14 male cross country runners were enough to fill complete varsity and junior varsity squads – with room to account for injuries. If 14 male runners are sufficient for varsity and junior varsity, and if only 7 runners can participate in a race (and only 5 of those can score), what can be the legitimate basis for expanding the women’s cross country team to 24 runners – nearly double the size of the men’s team? Ten to fourteen of those women will never run a single varsity race – or any race at all. They clearly will
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not be treated as or receive the opportunities expected by Division I varsity cross country athletes.
If 24 runners were a reasonable squad size, then QU would want 24 runners on its men’s team. The fact that the women’s roster is so much larger than the men’s roster shows that QU is again merely playing with numbers. That is not what Title IX is intended to achieve. QU instead should be offering those 11 extra slots as genuine varsity opportunities in new sports – sports in which the participants can actually participate and receive varsity benefits. Counting Runners
Plaintiffs continue to maintain that for purposes of Title IX, running is one sport with different seasonal segments – just like baseball, softball, lacrosse, crew, tennis, and golf. Running 400 meters indoors is not substantively different from running 400 outdoors, just as playing tennis indoors is not substantively different from playing tennis outdoors. Thus runners should not be counted more than once. Counting them twice is a premeditated scheme to avoid Title IX compliance – especially when a school offers only women’s running and not men’s running and when a school offers only running, not track & field.
The Proposed Plan projects rosters of 35 women for indoor track and 35 women for outdoor track – almost certainly the exact same women, and almost certainly including the cross country runners, despite the University’s promise that runners will not be required to participate in more than one season. There is no other pair of different sports that has any significant degree of such overlap – and certainly not 100% overlap.
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Even if QU is allowed to count its runners twice for competing in the same events in February and in March, who are these 35 expected women? In 2009-2010, QU claimed 30 track runners – but 18 of those were cross country runners who were required to participate in track. If the 12 “track only” athletes return (which is not assured given that none of them was recruited, none received a scholarship, and few of them were even remotely competitive in the NEC), who are the additional 23 track athletes? QU did not have time after the trial to recruit 23 Division I track athletes – long after the national letter of intent deadline, long after the admissions deadline, and long after the acceptance deadline. Plaintiffs do not believe that it is plausible that QU will have 35 legitimate track athletes during the 2010-2011 academic year.
Plaintiffs strongly support the creation, expansion, and full funding of a women’s track & field team at QU. The Proposed Plan does not indicate that QU has any intent to improve the quality of the track program. Plaintiffs submit that any plan approved by the Court should require QU to end its practice of double or triple counting cross country runners. Varsity Benefits for Track Athletes
Plaintiffs continue to support the position of the United States that QU cannot count any athletes on a team as varsity athletes for purposes of Title IX unless and until QU provides those athletes with all of the benefits of varsity status. If QU proposes to count track athletes for Title IX purposes, it should be required to demonstrate that it will actually treat its track athletes as Division I varsity athletes. QU must provide its female track athletes with the same varsity benefits it provides its male athletes, including adequate facilities and coaching. So long as QU schedules all of its men’s teams with
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85-100% of the maximum permitted number of competitions, it must do the same for its women’s teams – and not the bare minimum it does for track. So long as QU schedules its men’s teams to compete in scored competitions, it must do the same for women’s track – not indoor track scrimmages without scoring. So long as QU provides travel, transportation, and training for its men’s teams, it must provide equal benefits to its women’s track team so that they can actually compete. So long as QU provides its men’s teams with athletic scholarships, it must provide scholarships for women’s track (which it does not currently do). So long as QU recruits genuine Division I athletes to participate on its men’s teams, it must provide the resources necessary for its track coach to do so for the women’s track team. So long as QU recruits male athletes to fill the different positions in each sport (e.g., baseball pitchers, catchers, infielders, and outfielders), it must recruit female athletes to fill the different types of positions in the sport of track & field. So long as QU fails to sponsor a real track team, so long as it merely enters its cross country runners in distance track events, so long as it fails to provide its track athletes with varsity benefits and a genuine varsity experience, QU cannot count 35 women track athletes – let alone double that many – for Title IX compliance.
In its Memorandum of Decision (Doc. 171), the Court clearly was troubled by certain aspects of the QU track program, noting that “structuring a team to make [winning a championship] impossible . . . does suggest that the participation opportunity is deficient when compared to the experience of other varsity athletes ….” Decision at 79. The Court also noted that “there are reasons to doubt that all cross-country runners who participate in the winter indoor track season and in the spring outdoor track season
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receive genuine participation opportunities.” Id. at 82-83. In its Proposed Plan, the University purports to address the Court’s concerns by promising that it will no longer require cross country runners to participate in track as well, but utterly fails to address the quality of the experience offered to its female runners.
Again, Plaintiffs fully support the creation and expansion of a full women’s track team at QU. Plaintiffs recognize that this may not be an objective that can be achieved instantaneously, but the Proposed Plan does not indicate that QU intends to work toward this objective, or how it will do so if it does. The Court should require the University to submit a Compliance Plan that adequately addresses these issues. Volleyball
Plaintiffs support the continuation of varsity women’s volleyball at QU. Volleyball is the third most popular sport among high school girls and women. Eliminating women’s volleyball would be akin to eliminating men’s basketball, which is the third most popular sport for males. Neither action would make pedagogical or athletic sense. Plaintiffs are therefore concerned by the implicit suggestion in the Proposed Plan that volleyball will be eliminated when it is no longer necessary to maintain the program for Title IX purposes. Plaintiffs believe that the University’s decisions to offer and/or eliminate sports should take into account all pertinent athletic, educational, and other considerations, including but certainly not limited to the requirements of Title IX. Golf
Plaintiffs support, in principle, the establishment of a women’s golf team at QU. Plaintiffs doubt, however, that Defendant can actually recruit a suitable coach and qualified Division I student athletes to field a genuinely competitive varsity team in the
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current academic year. The time for recruiting college golfers, especially Division I golfers, ended many months ago. The application and admissions deadlines also passed several months ago. It would not be acceptable for QU to merely ask existing students to join the golf team if those students are not qualified to compete at the Division I level. Plaintiffs reserve the right to contest any aspect of the proposed varsity women’s golf team as details of its establishment, funding, facilities and coaching resources emerge. Rugby
QU proposes to add women’s rugby for the 2011-2012 academic year. The Proposed Plan indicates that QU will use the 2010-2011 academic year to hire a coach, recruit student athletes this year, and “to the extent feasible, the coach will organize a club team in the 2011-2012 academic year.” Unfortunately, the proposed addition of rugby probably is not adequate to ensure that QU’s female student athletes receive genuine competitive athletic opportunities which are equal to the opportunities offered to the Defendant’s male students.
First, the Defendant’s proposal to field a 35-member women’s rugby team in 2011-12 is entirely unrealistic. According to the National Federation of High Schools, only 14 high schools in the entire country sponsor women’s rugby. Thus, there is no high school pipeline for female college rugby players. It is highly unlikely that QU can recruit 35 varsity quality athletes for a rugby team by 2011-2012. The Proposed Plan offers no details about how QU plans to do so.
Second, in order to comply with Title IX, QU must offer its female athletes the same level of competition that it offers its male athletes. If all the men’s teams are
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Division I, then all the women’s teams must be Division I. Yet QU proposes to offer only club rugby for women. Indeed, that is all that QU could offer for women, because varsity women’s rugby essentially does not exist at the college level – or even at the high school level. According to the most recent data available from the NCAA, as of 2008-09 only one Division I college had designated women’s rugby as a varsity sport.1 There simply is no competition available for a varsity women’s rugby team at any college level, let alone the Division I level. It is not sufficient that QU might be able to offer a limited club rugby schedule. QU has chosen to be Division I and must offer its women athletes Division I opportunities.
The Proposed Plan sheds no light on how QU expects to arrange varsity-level competition for its rugby team. Women’s rugby is not presently offered as a varsity sport by other schools in the Northeast Conference (“NEC”), to which the Defendant belongs. Thus, it is likely that even if the Defendant were eventually able to field a fullblown women’s varsity rugby team, the QU team would be forced to compete primarily against club teams, and may have little if any local competition at either the club or varsity level. None of the Defendant’s men’s varsity teams are required to compete primarily against club teams, or to travel regularly outside of the Northeast to find competition. Where, as here, the Defendant offers robust, fully-established varsity competition to its male student athletes, allowing the Defendant to offer only club-level competition for a women’s “varsity” team in 2011-12 would simply continue the University’s discrimination against female student athletes in continued violation of Title IX.
1 One Division II and three Division III schools fielded varsity women’s rugby teams in 2008-09.
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QU’s continued efforts to count, for Title IX purposes, the non-varsity opportunities it provides for women in such activities as cheer and rugby suggest that QU does not understand the requirement that it provide genuine Division I varsity athletic participation opportunities to its female students, or that it is not serious about complying with Title IX. A school legitimately trying to increase participation opportunities would look at which sports are most popular among its prospective students – or in the areas from which it recruits its students. It would survey its current and prospective students. It would focus on sports that its athletic conference supports. QU apparently did none of this. Its Proposed Plan offers no explanation for its decision process.
Volleyball remains the third most popular sport in the nation and it is sponsored by the NEC and NCAA. Swimming and bowling are played at the high school level, are sponsored by the NEC, and have NCAA championships. Track is the most popular sport for females in at both the high school and college level. These are the sports that QU should be keeping, expanding, or adding. Competition in these sports is available at the same Division I level that QU provides to all its men.
Women’s rugby, however, is not played in more than negligible numbers at the high school level anywhere in the nation. It is played by only one Division I school. It is not sponsored by the NEC, and the NCAA does not offer a post-season championship in it. Unless QU has convinced other NEC schools to add women’s rugby, the NEC to offer a championship, and the NCAA to offer a post-season, QU’s proposal to add rugby is disingenuous. It cannot possibly offer genuine varsity athletic participation
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opportunities – let alone Division I opportunities – in women’s rugby by 2011-2012, or at any time in the foreseeable future. 2 Continued Court Supervision is Necessary
QU’s athletic program has never complied with Title IX. Its Proposed Plan is inadequate to assure compliance by 2011-2012. Moreover, its history of roster manipulations and failures to understand (or, perhaps, to take seriously) its Title IX obligations suggest that continued Court monitoring will be necessary to assure compliance. QU must comply with Title IX not just for one year or two years, but into the indefinite future. Thus, the Court should retain jurisdiction to oversee QU’s ongoing compliance efforts until QU has maintained Title IX compliance for a reasonable number of years, and demonstrates that it can reasonably be expected to continue to do so in the future.
In view of the Defendant’s demonstrated, historical failure to comply with its obligations under Title IX, and the uncertain and speculative nature of its Proposed Plan, Plaintiffs submit that QU should be enjoined from eliminating any existing women’s team until it has demonstrated consistent Title IX compliance for an extended period of time. Further Proceedings
Defendant has submitted the bare bones outline of a plan for Title IX compliance, but has provided no supporting information to demonstrate that the plan is likely to be appropriately implemented. For example, Defendant has not indicated what financial
2 While rugby is currently recognized by the NCAA as an emerging sport for women, the dearth of schools offering rugby as a varsity sport suggests it may not maintain that status. In any event, Plaintiffs do not question rugby’s designation as a “sport,” but contend that at present and for the foreseeable future, it does not offer genuine varsity participation opportunities.
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Case 3:09-cv-00621-SRU Document 193 Filed 09/16/10 Page 13 of 15 resources it will devote to establishing its new women’s teams, how it will recruit varsitylevel golfers and rugby players in less than a year’s time, what facilities the new teams will use, or who they will compete against. Nor has the University provided any insight into the basis for its decision to offer women’s rugby, shown that there is any demand among its current or prospective students for varsity women’s rugby, or suggested that the NEC has any plans to make rugby an NEC sport. Finally, the University has offered no justification for its planned roster sizes, despite the trial evidence that called its squad sizes into question. Before the Court takes action with respect to the Proposed Plan, Plaintiffs should be given the opportunity to conduct limited, focused discovery into these and related issues, and the Court should hold an evidentiary hearing.
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Respectfully submitted,
THE PLAINTIFFS By: /s/ Alex V. Hernandez Alex V. Hernandez (ct08345) /s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440) Pullman & Comley 850 Main Street Bridgeport, CT 06601 (203) 330-2129 (phone) (203) 576-8888 (fax) jorleans@pullcom.com ahernandez@pullcom.com Kristen Galles (pro hac vice) Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 (703) 683-4491 (phone) (703) 683-4636 (fax) kgalles@comcast.net David McGuire (ct27523) ACLU Foundation of Connecticut 2074 Park Street, Suite L Hartford, CT 06106 (860) 523-9146 (phone) (860) 586-8900 (fax) dmcguire@acluct.org Their Attorneys
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CERTIFICATION OF SERVICE I hereby certify that on September 16, 2010 a copy of the foregoing “PLAINTIFFS’ RESPONSE TO DEFENDANT’S PROPOSED COMPLIANCE PLAN” was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.
/s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440)
ACTIVE/73061.1/JORLEANS/2244107v1
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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, et al., Plaintiffs,
v.
QUINNIPIAC UNIVERSITY, Defendant.

No. 3:09cv621 (SRU)

CONFERENCE MEMORANDUM On September 28, 2010, I held an in-person conference on the record with Jonathan Orleans and Alex Hernandez, representing the plaintiffs; and Edward Brill, Susan Friedfel, Rebecca Berkebile, and Jonathan Bardavid, representing the defendant, Quinnipiac University (“Quinnipiac” or “the University”). The purpose of the conference was to address the defendant’s Title IX compliance plan (doc. # 182) and take up scheduling matters. During the conference, I stated that Quinnipiac’s plan, on its face, appears to be a goodfaith effort that likely will bring the defendant into compliance with Title IX. I did not formally approve or disapprove the compliance plan, however, because the issue to be resolved in this case is not whether Quinnipiac will succeed in following the plan’s terms but whether the plan’s implementation will, in fact, bring the University into Title IX compliance. That can only be determined once Quinnipiac implements changes to its athletics department and the court holds a hearing on the legal effect of those changes. I set the following schedule with respect to count one of the complaint, which was the basis for my memorandum of decision and injunction (docs. # 171 & # 180). Quinnipiac may move to lift the injunction or for an order declaring that the University is in compliance with Title IX. The court, however, will not act on Quinnipiac’s motion until at least 120 days

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following its filing. That four-month period gives the parties sufficient time to conduct discovery, brief the motion, and prepare for a hearing regarding the University’s Title IX compliance.
The parties are scheduled for a settlement conference before Magistrate Judge William I. Garfinkel on October 27, 2010 (doc. # 195). Following that settlement conference, the parties will confer and confirm a proposed scheduling order for the remaining four claims to be litigated in this case. I suggested that counts two and three of the complaint, which are brought on behalf of the plaintiff class, should be scheduled first, and that counts four and five, which are only brought on behalf of the named plaintiffs, should be scheduled for later. I also ordered that the plaintiffs do not have to submit supporting expert reports for their motion for attorneys’ fees (doc. # 181) until after the settlement conference with Judge Garfinkel. Quinnipiac’s time for responding to the attorneys’ fees motion will not begin to run until the plaintiffs submit their expert reports.
It is so ordered. Dated at Bridgeport, Connecticut, this 28th day of September 2010.
/s/ Stefan R. Underhill United States District Judge

 
 Case 3:09-cv-00621-SRU Document 275 Filed 06/27/12 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

--------------------------------- X

STEPHANIE BIEDIGER, KAYLA LAWLER, :

ERIN OVERDEVEST, KRISTEN

:

CORINALDESI, and LOGAN RIKER,

:

individually and on behalf of all those

:

similarly situated; and

:

ROBIN LAMOTT SPARKS, individually,

:

:

Plaintiffs,

:

:

against

:

:

QUINNIPIAC UNIVERSITY,

:

Defendant.

: :

--------------------------------- X

CIVIL ACTION NO: 3:09-CV-00621 (SRU)
June 27, 2012

DEFENDANT’S POST-TRIAL BRIEF

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

ARGUMENT ...................................................................................................................................2

I.

QUINNIPIAC SATISFIES PRONG I OF THE THREE-PART TEST ............................2

A. The Acrobatics and Tumbling Team Counts ...........................................................2

B. The Rugby Team Counts .........................................................................................4

C. Quinnipiac’s Count of Participants Is Correct .........................................................4

1. Plaintiffs’ Unsupported Generalized Attacks Are Meritless .......................5

2. Plaintiffs’ Challenges to Specific Rugby and Track and Field Athletes .....6

(a) Rugby...............................................................................................6

(b) Track and Field Athletes ................................................................6

II. QUINNIPIAC SATISFIES THE COMPETITION TEST ..................................................8

A. Language and Background of the Competition Test ...............................................8

B. OCR’s Application of the Competition Test .........................................................10

C. Application of the Competition Test......................................................................12

D. The Competition Test Should Not Be Used to Thwart the Growth of Women’s Sports ................................................................................................17

III. THERE ARE NO ADDITIONAL TESTS UNDER THE EFFECTIVE ACCOMMODATION REQUIREMENT .........................................................................19

CONCLUSION..............................................................................................................................20

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CASES

TABLE OF AUTHORITIES

Page(s)

Beasley v. Alabama State University, 3 F. Supp. 2d 1325 (M.D. Ala. 1998) ......................................................................................11

Biediger v. Quinnipiac University, 728 F. Supp. 2d 62 (D. Conn. 2010)................................................................................2, 6, 11

Brust v. Regents of University of Cal., No. 2:07-CV-1488, 2007 WL 4365521 (E.D. Cal. Dec. 12, 2007) .........................................11

Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996)....................................................................................................11

Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992)................................................................................................11

Deli v. University of Minnesota, 863 F. Supp. 958 (D. Minn. 1994)...........................................................................................11

McCormick v. School District of Mamaroneck, 370 F.3d 275 (2d Cir. 2004).....................................................................................................11

Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993) .................................................................................................11

OTHER AUTHORITIES
1979 Policy Interpretation on Title IX and Intercollegiate Athletics (“1979 OCR Policy Interpretation”) ......................................................................... 8-11, 12,14, 19
1990 OCR Investigator’s Manual ............................................................................... 10-12, 14, 19
1996 Clarification of Intercollegiate Athletics Policy Guidance (“1996 OCR Clarification”).............................................................................................................6
2000 OCR Letters to Minnesota High School League re Cheer (the “2000 OCR Cheer Letter”) ....................................................................................................11
2008 OCR “Dear Colleague” letter regarding which activities can be counted as sports for purposes of Title IX compliance (the “2008 OCR Letter”) .......................................................................................1-4,11, 13, 14-15

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PRELIMINARY STATEMENT Quinnipiac demonstrated at the hearing that it now complies with the obligation to fully and effectively accommodate the interests and abilities of its female student athletes under Title IX. The July 2010 injunction, therefore, should be lifted. First, Quinnipiac provides substantially proportionate athletic participation opportunities for females under Prong I of the Three-Part Test, through the addition of women’s varsity golf and rugby teams, and the continued support of the acrobatics and tumbling team (formerly “competitive cheer”). Golf, an NCAA championship sport, and rugby, an NCAA emerging sport, both unquestionably count as sports within the meaning of OCR’s 2008 Dear Colleague Letter. Acrobatics and tumbling also counts as a sport, as it now meets all the factors in that letter that the Court found lacking in its 2010 decision. Second, Plaintiffs’ general attack on Quinnipiac’s carefully maintained roster management program is unsupported by any evidence. There is similarly no basis for their questioning of Quinnipiac’s methodology for counting participants. Third, both rugby and acrobatic and tumbling athletes competed against high level opponents that were fully equal to their abilities. Quinnipiac’s addition of these two new and emerging sports for women is consistent with the so-called “Competition Test” as it has been applied historically by OCR. Furthermore, that test needs to be interpreted and applied in light of OCR’s stated intention to encourage schools to add new sports for women, which often compete out of necessity below the Division I championship level. Fourth, Quinnipiac was not obligated to assess the interests and abilities of its students before deciding what new sports to offer, contrary to the discredited testimony of Dr. Donna Lopiano.
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ARGUMENT

I.

QUINNIPIAC SATISFIES PRONG I OF THE THREE-PART TEST

A. The Acrobatics and Tumbling Team Counts

In its July 2010 Decision, this Court recognized that it must determine whether an

activity counts as a sport based on the factors set out in OCR’s 2008 Dear Colleague Letter.

Biediger v. Quinnipiac University, 728 F. Supp. 2d 62, 94-95 (D. Conn. 2010). The Court set

out four factors the acrobatics and tumbling team then lacked – (1) off campus recruiting;

(2) consistent rules governing team’s competitions; (3) consistent types of opponents during the

regular season, and (4) adequate post-season competition. Id. at 99-100. The undisputed

evidence is that Quinnipiac’s acrobatics and tumbling team now meets every one of these

factors.

First, with respect to off campus recruiting, Coach Mary Ann Powers testified that she

conducted off campus recruiting beginning in the summer of 2010. (Tr. 315-16) Coach Powers

recruited through various methods, including, among other things, contacting high school and

club coaches and athletes in gymnastics and all-star cheer, hosting clinics, attending all-star and

high school competitions, attending a gymnastics showcase, hosting official visits, visiting gyms,

and reviewing videos submitted by prospective recruits. (Tr. 316-30)

Second, the evidence also established that Quinnipiac’s acrobatics and tumbling team and

all of its opponents compete under detailed and uniform rules set by the National Collegiate

Acrobatics and Tumbling Association (“NCATA”). (Tr. 221-34, 242-49, 252-59, 261-67, 279,

330-32, 338-42; Exs. IA, IB, IC, IF, IG.)

Third, Quinnipiac’s team competed exclusively against other collegiate varsity teams that

were members of the NCATA. In the 2011-12 season, the NCATA had four NCAA Division I

members (Quinnipiac, Oregon, Baylor, and Maryland), one NCAA Division II member 2

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(Fairmont State) and one NAIA member (Azusa Pacific, which is transitioning to NCAA Division II). (Tr. 284-85)
Fourth, the Quinnipiac acrobatics and tumbling team competed in the national championship sponsored by the NCATA in 2010-11 and 2011-12. (Tr. 222, 349, 390) The national championship uses a bracket tournament format in which the teams are seeded according to their regular season results and compete in three rounds of single-elimination competition using the same meet format as in the regular season. (Tr. 249-51, 296-97) The NCATA also sponsors event finals in each of the component events in which the top four teams, based on regular season scores, compete. (Tr. 250)
Plaintiffs do not even argue that the team fails to meet any of the factors in the 2008 Letter or those set forth by the Court in its Decision. Indeed, Plaintiffs’ expert witness, Dr. Lopiano, acknowledged in her book manuscript that acrobatics and tumbling (like cheerleading-based Stunt) satisfies the OCR requirements of a competition structure under a uniform set of rules and a national championship.1 (Tr. 953; Ex. KM) Instead, Plaintiffs assert that the team does not count because it is not formally recognized by the NCAA or OCR. There is no such requirement. Although NCAA sponsored sports are entitled to a presumption that they count under Title IX, the very purpose of the 2008 Letter was to create a rubric for assessing whether an activity that is not recognized by the NCAA or NAIA qualifies as a sport under Title IX. As OCR made clear in its amicus brief in 2010, furthermore, it is up to this Court to apply the factors and make a determination. Contrary to Plaintiffs’ suggestion, OCR does not provide advisory opinions as to whether an activity counts as a sport. (Tr. 130, 269) Thus, the

1

Dr. Lopiano admitted that she had no knowledge as to whether Quinnipiac met the other factors

identified in the Court’s 2010 decision. (Tr. 950-51)

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lack of express approval by the NCAA or OCR does not alter the Court’s role in determining whether acrobatics and tumbling counts as a sport.
B. The Rugby Team Counts There can be no dispute that rugby counts as a sport for purposes of assessing proportionality under Prong I of the Three-Part Test. Rugby is recognized by the NCAA as an emerging sport and thus enjoys a presumption under the 2008 OCR Dear Colleague Letter that it counts as a sport for purposes of Title IX. Plaintiffs do not appear to dispute that Quinnipiac’s rugby team is a sport. Indeed, Plaintiffs’ expert, Dr. Lopiano, conceded that rugby is a sport within the meaning of the 2008 Letter. (Tr. 859, 930)2 Plaintiffs’ principal argument concerning rugby is that the team competed against six collegiate club teams in 2011-12 in addition to four matches against varsity teams. This argument appears to be addressed solely to Quinnipiac’s compliance with the separate “Competition Test,” which is discussed below. Even if considered in connection with the definition of a sport under the 2008 OCR Letter, however, for the reasons discussed below, this mix of varsity and collegiate club competition would not be sufficient to overcome the presumption that rugby is a sport. C. Quinnipiac’s Count of Participants Is Correct There is no merit to Plaintiffs’ broad challenge of Lamar Daniel’s participant count as unreliable, or their specific dispute as to the counting of two rugby athletes and 13 members of the indoor and/or outdoor track and field teams.

2

Dr. Lopiano admitted that her assertion that the rugby team was a club team was based solely on

the fact that it competed against club teams, and that the team was treated as a varsity team in all

other respects. (Tr. 930)

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1. Plaintiffs’ Unsupported Generalized Attacks Are Meritless Plaintiffs make generalized claims about Quinnipiac’s record keeping and roster management, asserting that the Court should appoint an auditor to oversee the University’s practices. Plaintiffs offer absolutely no support for their claims and cannot point to any evidence of roster manipulation from the 2009-10 academic year to the present. (Ct. Ex. 1 ¶¶ 1-3; Tr. 90809) All of the evidence demonstrates that Quinnipiac has continued its careful process of roster management overseen by Dr. Mark Thompson. (Tr. 25-33; Exs. HA, HB, HC, HD, HE, HF, HG, HH, HI) In an effort to raise some question about Quinnipiac’s counting of athletes who practiced, but may not have competed, Dr. Lopiano claimed for the first time when she testified (on the last day of trial) that the University violated an NCAA rule by not maintaining individualized practice logs that reflect each student who practiced on each day. (Tr. 840) There was no evidence, however, of any athlete being counted as a participant who did not regularly practice with a team, despite Plaintiffs’ having deposed the head coach of every team, and reviewed complete records of squad lists, roster management forms, and all related email correspondence.3 Dr. Lopiano also questioned at trial the counting methodology used by Mr. Daniel – for example, including as participants a number of acrobatic and tumbling athletes who were receiving athletic financial aid but left the team before the first day of competition. Dr. Lopiano, however, did not question counting these same athletes in her expert report and specifically agreed at her deposition that Mr. Daniel’s count of the acrobatic and tumbling team was correct.

3

The rule Dr. Lopiano cited does not necessarily require such individual records. It is designed to

prevent athletes from practicing more than the maximum time allotted – thus, coaches make

individualized records when an athlete receives personal or group coaching in addition to the

team’s regular practices, but coaches are not required to take attendance at regular team practices.

Notably, Plaintiffs failed to ask compliance officer Tracey Flynn anything about this rule when

she testified about the practice logs that Quinnipiac’s coaches do maintain. (Tr. 728-29)

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(Tr. 903-05) Further, Mr. Daniel testified that he applied the same criteria for counting participants to both men’s and women’s teams, and followed the same methodology and rules he applied during his 20 years in performing Title IX investigations at OCR and some 15 years as a private consultant. (Tr. 200)
2. Plaintiffs’ Challenges to Specific Rugby and Track and Field Athletes (a) Rugby
Plaintiffs question Mr. Daniel’s counting of two rugby athletes – Molly Mahoney and Jaren Johnson– as participants. Following tryouts, these athletes were added to the roster in September 2011 and practiced with the team throughout the season. (Ex. HR; Tr. 621-23) They were cleared for competition by the NCAA before the team’s match against Stony Brook on October 23, 2011. (Tr. 621-23; Ex. JP) Coach Rebecca Carlson explained why she decided to hold both of them out of the competition for the final three matches of the season. (Tr. 621-23) OCR’s 1996 Clarification makes clear that athletes “who practice but may not compete” count as participants. Athletes who are added to a team after the first day of competition, who practice with the team and receive varsity benefits during the traditional season are properly counted as participants, regardless of whether they compete, as this Court held and Dr. Lopiano herself recognized in 2010. (Ex. 201-D (Lopiano Supplemental Report at 3, ¶ 6); see also Biediger, 728 F. Supp. 2d at 70, 111 (finding that men’s ice hockey player who rejoined the team during the season and practiced but did not compete should have counted))
(b) Track and Field Athletes Plaintiffs challenge 13 track and field athletes who were counted by Mr. Daniel as participants although they did not compete in the indoor and/or outdoor track seasons. As shown in the summary chart attached as Exhibit A, ten of these athletes did not compete due to injury or
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because they were healthy red-shirted for strategic reasons. Each of them participated in team practices, attended team meetings, travelled to meets and otherwise fully participated in team activities while rehabilitating. (Tr. 536-54) All but one of the injured or red-shirted athletes competed on the track team in prior seasons (Exs. JK, LI (Exs. AE, AJ, AR)) (and the one who did not was a freshman in 2011-12), demonstrating that they were bona fide members of those teams who would have competed but for injury or the coach’s decision to red-shirt them. Indeed one of the athletes challenged by Plaintiffs, Hannah Donadio, was the captain of the indoor and outdoor track teams. (Tr. 540) The evidence established that there was no requirement that any of these athletes remain on the teams. (Tr. 22-23, 710-11, 716, 792-93; Exs. HK, HM) Every athlete who was a member of the indoor or outdoor track and field teams chose to join those teams. (Tr. 793)
Plaintiffs’ claim that injured track and field athletes do not receive benefits beyond those that they would have received as off-season cross-country athletes is simply inaccurate. An offseason cross-country athlete could not practice with the indoor or outdoor track team, travel to team meets, attend team meetings, and otherwise participate as a member of the track team, without being on the indoor or outdoor track team roster. (Tr. 532-33, 557-58) As is common among schools that sponsor all three running sports, Quinnipiac does not hold practices for its women’s running teams after the championship season is over in each respective sport. Moreover, Plaintiffs’ argument is inapplicable to five injured or red-shirted athletes whom Plaintiffs seek to exclude and who were not even on the cross-country team. (See Exhibit A)
The other three track and field athletes challenged by Plaintiffs were on the indoor track team as of the first day of competition and practiced with the team throughout the fall semester, but left the team thereafter. Two of the athletes (Martha Alvarez and Paige Pallotto) had been
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members of the track team and competed in 2010-11, but decided to leave the team for personal reasons following the winter break in January 2012. (Tr. 536-37, 545-46; Ex. JK) The other athlete (Taylor Strode) left the team in January when it was determined that the NCAA would not clear her eligibility. (Tr. 552-53; Ex. HR) They clearly meet the OCR definition of participant, as Dr. Lopiano recognized in her 2010 report. (Ex. 201-D (Lopiano Supplemental Report at 2, ¶ 4)) II. QUINNIPIAC SATISFIES THE COMPETITION TEST
Because Plaintiffs are unable to point to any evidence that Quinnipiac fails the Three-Part Test that was the sole focus of the June 2010 trial, they turn their attention to a new claim based on the Two-Part Competition Test. That test looks to whether the competitive schedules for men’s and women’s teams, on a program-wide basis, offer proportionally similar numbers of male and female athletes equivalently advanced competitive opportunities. Quinnipiac meets that test, as it has been historically applied by OCR, and as it must be understood today in the context of OCR’s present goal of encouraging schools to add new and emerging sports.
A. Language and Background of the Competition Test In explaining the obligation to effectively accommodate the interests and abilities of male and female athletes, the 1979 Policy Interpretation states that “institutions must provide both the opportunity for individuals of each sex to participate in intercollegiate competition, and for athletes of each sex to have competitive team schedules which equally reflect their abilities.” (Emphasis added) After describing the familiar Three-Part participation test, the Policy Interpretation states that compliance will also be assessed by examining: (1) Whether the competitive schedules for men’s and women’s teams, on a program-
wide basis, afford proportionally similar numbers of male and female athletes equivalently advanced competitive opportunities; or
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(2) Whether the institution can demonstrate a history and continuing practice of upgrading the competitive opportunities available to the historically disadvantaged sex as warranted by developing abilities among the athletes of that sex.
The Policy Interpretation goes on to state that OCR will look at the following factors when determining compliance:
a. Whether the policies of an institution are discriminatory in language or effect; or
b. Whether disparities of a substantial and unjustified nature in the benefits, treatment, services, or opportunities afforded male and female athletes exist in the institution’s program as a whole; or
c. Whether disparities in individual segments of the program with respect to benefits, treatment, services, or opportunities are substantial enough in and of themselves to deny equality of athletic opportunity.
(1979 Policy Interpretation at VII.C.6.) (Emphasis added) The second factor expressly looks to whether any disparities are both substantial and unjustified.
As Mr. Daniel explained, the Competition Test was developed by OCR at a time when there was no uniformity in the competitive opportunities for men’s and women’s teams. (Tr. 123, 185, 216; Ex. HZ at 5) Thus, the Competition Test was designed to prevent schools from providing NCAA Division I level competition for men’s teams while relegating women’s teams to less than the highest available competitive level. (Tr. 123, 185, 216; Ex. HZ at 5) The Competition Test has become virtually irrelevant in recent years as the type of intentional discrimination it was designed to address has largely disappeared due to NCAA rules requiring that both men’s and women’s teams compete at the same division level, where such competition is available. (Tr. 122-23; Ex. HZ at 5) Even when that test came into play, however, it was considered secondary to the Three-Part participation test. (Tr. 202)
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B. OCR’s Application of the Competition Test OCR – the same agency that wrote the Competition Test as part of the 1979 Policy Interpretation – later explained how it measures compliance with this test. In OCR’s 1990 Investigator’s Manual, the agency directs investigators to count the number of competitions each team plays outside of its declared division and compare the total percentage of such competitions for women’s teams to the percentage for men’s teams. The Manual then provides that investigators should determine whether there are non-discriminatory reasons that explain any discrepancy. Mr. Daniel, who was a co-author of the 1990 Investigator’s Manual, explained that differences of up to five percentage points were generally considered not substantial. (Tr. 93, 126; Ex. HZ at 5) This practice is confirmed by the explanation of the Competition Test by Valerie Bonnette, the other co-author of the 1990 Investigator’s Manual, contained in the original NCAA Gender Equity Guide published in 1994 – a publication intended to inform all member schools of their obligations under Title IX and how to comply with this law. (Tr. 93, 125-26, 458; Ex. KB) OCR’s second step of looking to whether there are non-discriminatory reasons for any discrepancy in the relative percentage of competitive schedules is called for by the Policy Interpretation’s text, which explicitly requires consideration of whether there are justifications for any substantial disparity. As Ms. Bonnette explained in her authoritative treatise on Title IX, competition against lesser division opponents would be justified, for example, where there are no teams at the higher level in a school’s normal competitive region. (Tr. 124-25; Ex. HZ at 5 & Ex. B). The 1990 Investigator’s Manual was published by OCR, distributed to OCR investigators, and approved by the acting Assistant Secretary for Civil Rights. (Tr. 93-94, 147)
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This Court recognized in the July 2010 decision that “I am bound to defer to OCR’s interpretation of Title IX.” 728 F. Supp. 2d at 92. In particular, the Court recognized that OCR’s 2000 and 2008 Letters deserved deference because “they represent OCR’s interpretation of its own regulations,” and “[a]s a general proposition, courts are to defer to an agency’s interpretation of its own regulation.” Id. at 93. Certainly, if OCR’s Dear Colleague letters deserve deference, the 1990 Investigator’s Manual, an official document approved by the agency and distributed to its investigators is entitled to deference.
Numerous other courts have stated that the 1990 Investigator’s Manual is entitled to deference. See Beasley v. Alabama State University, 3 F. Supp. 2d 1325, 1335 n.8 (M.D. Ala. 1998) (noting that “courts have repeatedly turned to the instructions provided by the OCR in its Investigator’s Manual” and that “some measure of deference should be accorded to the Investigator’s Manual, which reflects OCR’s interpretation of its own regulations”); Deli v. University of Minnesota, 863 F. Supp. 958, 962 (D. Minn. 1994) (“Courts are to accord the . . . Investigator’s Manual substantial deference in determining the appropriate application of Title IX.”); Cohen v. Brown University, 809 F. Supp. 978, 988 (D.R.I. 1992) (noting the Investigator’s Manual is an “important guide[] in unraveling the requirements of the athletic regulation”); see also McCormick v. School District of Mamaroneck, 370 F.3d 275, 293 n.14 (2d Cir. 2004) (citing to Investigator’s Manual in analyzing application of Title IX); Cohen v. Brown University, 101 F.3d 155, 180 (1st Cir. 1996) (same); Roberts v. Colorado State Bd. of Agriculture, 998 F.2d 824, 830 (10th Cir. 1993) (same); Brust v. Regents of University of Cal., No. 2:07-CV-1488, 2007 WL 4365521, at *3 (E.D. Cal. Dec. 12, 2007) (same).
While, as the Court observed during the trial, it is possible to read the Competition Test differently based solely on the literal language of that provision, there is no reason to depart from
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OCR’s long-standing and settled interpretation of that test as contained in the 1990 Investigator’s Manual.
C. Application of the Competition Test As Mr. Daniel explained, Quinnipiac passes the Competition Test, when applied in accordance with the 1990 Investigator’s Manual. (Ex. HZ at 5-10; Tr. 123-24) First, the difference between men’s and women’s competition outside of Division I is not substantial, as it is under five percent. (Ex. HZ at 7; Tr. 122) Even if that difference were considered significant, it is justified by non-discriminatory reasons. (Ex. HZ at 7-9; Tr. 123-24) Quinnipiac decided to expand opportunities for women in athletics by providing new and emerging sports – just as the OCR and NCAA encourage schools to do—and afforded the athletes interested in those sports with the most competitive opportunities available to meet their abilities.4 As the Court observed during the trial, the language of the Competition Test literally calls for a comparison of the number of male and female athletes who are afforded similarly advanced competitive opportunities, rather than the number of competitive events for each sex at each competitive level. (Tr. 188) Even if the Court were to look at an analysis comparing the number of male and female athletes competing at various levels of competition, however, the difference remains small. (This analysis is attached as Exhibit B.)5 Moreover, even under this alternative

4

The second prong of the Competition Test has become largely obsolete. As discussed above,

when the Test was included in the 1979 Policy Interpretation, schools frequently provided

competition for men’s and women’s teams at completely different levels. Today, the NCAA

requires that a school’s male and female teams compete at the same division level so that most

schools are no longer in the process of increasing the level of competitive opportunities for

women.

5

Ms. Bonnette explained in her Title IX treatise that OCR chose not to apply the test in this

manner, as the method adopted is “sufficiently accurate for compliance determinations.” (Ex. HZ

at Ex. B) Furthermore, an analysis that looks exclusively at the number of participants on teams

that compete against teams outside of Division I – without accounting for the number of

competitions against non-Division I teams – would be unworkable. Such an analysis would mean

a team that played one or two games against Division II schools (as is permitted, for example, in

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analysis, it is still necessary to apply the second step of the test of inquiring whether there are any non-discriminatory justifications that explain the discrepancy. As explained above, there is a non-discriminatory reason for the competitions with non-Division I teams in this case – this competition is typical and necessary for many new and emerging sports.
Furthermore, any application of the Competition Test today should be in a manner consistent with more recent OCR guidance regarding appropriate competition in compliance with Title IX. The 2008 Dear Colleague Letter was intended to provide “clarifying information to help institutions determine which intercollegiate . . . athletic activities can be counted for the purpose of Title IX compliance.” (Emphasis added.) The letter does not limit itself to guidance regarding compliance with the Three-Part Test. Its purpose is to give guidance as to whether or not a sport can be counted for Title IX compliance, which includes compliance with the effective accommodation regulation overall. Indeed, OCR’s 2008 Dear Colleague Letter expressly endorses new sports, explaining its goal of providing schools with information “to include new sports in their athletics programs, such as those athletic activities not yet recognized by governing athletic organizations” and that “[e]xpanding interscholastic and intercollegiate competitive athletic opportunities through new sports can benefit students by creating and stimulating student interest in athletics . . . .”
Given the stated purpose of the letter, it makes no sense that a sport could count for purposes of the 2008 Letter and then cause the University to fail the rarely applied Competition Test. A review of the factors in the 2008 Letter relating to competition as applied to Quinnipiac’s acrobatics and tumbling team and rugby team make clear that the competition
basketball) would be treated the same as another team that played its entire schedule at a lesser competitive level.
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afforded to those teams is consistent with OCR’s guidance and demonstrates Title IX compliance.
The 2008 Letter addresses a number of factors with respect to team preparation and competition, including:
Whether the regular season competitive opportunities differ quantitatively or qualitatively from established varsity sports; whether the team competes against intercollegiate… varsity opponents in a manner consistent with established varsity sports; In assessing this factor, the Letter identifies the following sub-factors to be considered: (1) Whether the number of competitions and length of play are predetermined by a
governing athletics organization, an athletic conference, or a consortium of institutions; (2) Whether the competitive schedule reflects the abilities of the team; and (3) Whether the activity has a defined season; whether the season is determined by a governing athletics organization, an athletic conference, or a consortium. It is important to note that, although the 1990 Investigator’s Manual interprets the Competition Test to require an assessment of division level, the 2008 Letter makes no reference to division level. The only consideration of the quality of the competition is whether the competitive schedule reflects the abilities of the team. The 1979 Policy Interpretation itself similarly notes that its goal is for athletes of each sex “to have competitive team schedules which equally reflect their abilities.” There can be no question that Quinnipiac’s acrobatics and tumbling team met the first and third factor in that the sport was governed by the NCATA with numerous specific rules relating to number of competitions, length of play and defined season. (Tr. 229-34, 242-49, 25253, 279, 330-32, 338-42; Exs. IB, IF, IG) Acrobatics and tumbling further met the second factor in that it competed solely against other varsity teams, including three top-tier NCAA Division I schools (Maryland, Oregon and Baylor), one NCAA Division II school (Fairmont State) and an
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NAIA school in the process of transitioning to NCAA Division II (Azusa Pacific). This level of competition is fully equivalent to that of numerous NCAA Collegiate Championship sports, which compete on an inter-divisional basis. (Tr. 489-92) For example, NEC conference competition in bowling – a sport which Plaintiffs suggest that Quinnipiac could have added – included Division II and III teams such as New Jersey City, Adelphi and Kutztown. (Tr. 491-92; Ex. LD)
With respect to rugby, the first and third elements are plainly satisfied as the NCAA determines both the minimum and maximum number of contests and defines the competitive season for rugby. (Ex. JX at 17.1, 17.16) With respect to the competitive schedule, the rugby team competed in four varsity matches and six matches against collegiate club teams as part of the Metro New York division of USA Rugby. Competition against club teams is permitted by NCAA rules and is a hallmark of almost all new and emerging sports. (Ex. JX at 20.9.4.3.6; Tr. 123-24, 179-80, 475-76, 478-79; Ex. LI (Deposition of Dr. Athena Yiamouyiannis at 180)) The evidence showed, furthermore, that the collegiate club teams against which Quinnipiac competed are sanctioned by a national governing body, USA Rugby, with detailed rules for eligibility of competitors and certification of coaches and that the teams compete in an organized Metro New York Region conference. (Tr. 587-91; Ex. JO)6

6

To the extent that Plaintiffs make an issue about the availability of a post-season championship in

rugby, the coach and players chose not to participate in the Metro New York post-season playoff

in 2011 so that they could compete in additional varsity matches instead. (Tr. 604-05, 691) The

2008 Dear Colleague Letter is clear, however, that post-season competition is not required for an

activity to be a sport; the letter asks only if post-season competition exists for the activity,

whether it provides an opportunity for post-season competition in a manner consistent with

established varsity sports, for example with state, national and conference championship

competition. (2008 Dear Colleague Letter at p. 4) USA Rugby, in fact, provides regional and

national collegiate championship competition, which are available to Quinnipiac again next year,

should it choose to participate. (Tr. 604, 606, 625)

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Plaintiffs’ expert, Judith Sweet, acknowledged that club competition varies and that in determining a team’s level of competition, it is important to examine the nature of the club competition, looking at such factors as the teams against which the club teams are competing, the number of competitions, whether there is a governing body for the sport, whether there is a progressive national championship, quality of coaching, and level of institutional support. (Tr. 484-85, 487) Dr. Lopiano also agreed that competition against collegiate club teams may be scheduled “if such competition is required to meet high quality opponents.” (Tr. 955; Ex. KL)
Although acrobatics and tumbling and rugby provide some competition outside of the Division I level, evidence at the hearing showed without any real dispute that athletes on both teams enjoyed advanced competitive opportunities that reflected their abilities. Because the purpose of the Competition Test is to prevent discrimination against women, furthermore, it is important to consider the views of both coaches and athletes as to the quality of competition in determining whether that Test has been satisfied. (Tr. 125-26, Ex. KB at 10)
Rugby Head Coach Rebecca Carlson testified that she chose the competitive schedule based on who would provide the “best competition”, and that the competition “absolutely” met the abilities of her team. (Tr. 589, 675) Jacqueline MacLearie, a member of the rugby team, testified that the level of competition “definitely” met the team’s abilities. (Tr. 683) The rugby team’s record for 2011-12 was three wins, six losses, and one tie. (Ex. JP)
Similarly, Acrobatics and Tumbling Head Coach Mary Ann Powers testified that the level of competition met the abilities of her team members, and indeed, that she “hope[s her team] keep[s] on getting better.” (Tr. 347) Athlete Erin Trotman agreed and further testified that “[e]very single team in the NCATA provided . . . a challenge . . . .” (Tr. 392) Indeed, despite
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success in some individual events, the acrobatics and tumbling team had no wins this past season. (Tr. 347)
D. The Competition Test Should Not Be Used to Thwart the Growth of Women’s Sports
By definition, NCAA-recognized emerging sports do not have NCAA championships, and schools sponsoring varsity teams in emerging sports often need to compete against club teams until there are enough varsity teams for a complete schedule of varsity competitions. (Tr. 123-24, 475-76, 478-79; Ex. LI (Deposition of Dr. Athena Yiamouyiannis at 180)) Similarly, non-NCAA sports may compete against a variety of opponents from different NCAA divisions or other athletic organizations such as the NAIA. For schools that have existing men’s and women’s championship teams all competing at the same Division I level, therefore, adding a new or emerging sport for women necessarily provides women with some competition that is below the Division I championship level of men’s teams. Applying the Competition Test to prevent schools from adding new or emerging sports in these circumstances would thwart the very goal of encouraging these sports. It would ironically convert the Competition Test from a weapon against intentional discrimination into a barrier against expansion of women’s athletic opportunities, by forcing schools to add only existing championship sports.7
Indeed, Plaintiffs’ expert Judith Sweet agreed that if a school could only add NCAA championship sports, that could limit the school’s ability to increase opportunities for female athletes. (Tr. 469) Ms. Sweet recognized that in choosing to sponsor a sport, schools would want to sponsor a sport that counts for purposes of Title IX. (Tr. 469-70) She also agreed that

7

It is no answer to say that schools can simply add similar competition opportunities for men,

since there are no emerging sports for men. Moreover, it would serve as an equal impediment to

adding emerging sports for women if a school had to add a varsity men’s team that competed

against non-Division I or club opponents in order to add a new or emerging sport for women.

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“it would be very difficult for schools to sponsor a new sport if teams in that sport [ ] were permitted to compete only against varsity teams” and that “limiting teams in emerging sports to competition against varsity teams would make it more difficult to expand opportunities for women to participate in those emerging sports.” (Tr. 476-77)
A school that offers a sport and then intentionally fails to allow the women on that team to compete against available opponents that are at a level that is equal to their abilities, while providing such opportunities for men, violates both the letter and intent of the Competition Test. In contrast, a school that provides competition opportunities for women in new and/or emerging sports that meet the abilities of the school’s athletes at an appropriately advanced competition level should be seen as complying with the test. In this way, the underlying purpose of Competition Test can be harmonized with OCR’s goal of encouraging new and emerging sports.
Notably, if Quinnipiac had just added rugby or acrobatics and tumbling – but not both – the University would still have been in compliance with Prong I of the Three-Part Test, and any disparity in levels of competition afforded would have been even less than the relatively small difference that the two teams combined create. This is particularly true with respect to acrobatics and tumbling, which competed against only two non-Division I opponents, both of which were varsity programs. It would be a perversion of Title IX to find that Quinnipiac fails to meet its Title IX requirements because it provided more opportunities for women than required under the Three-Part Test.
Plaintiffs’ argument that Quinnipiac should not be permitted to replace volleyball with rugby or acrobatics and tumbling is misplaced. Quinnipiac added golf, which is a Division I NCAA championship sport. If any sport can be characterized as replacing volleyball, it should
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be golf. Accordingly, acrobatics and tumbling and rugby must be viewed as new and expanded opportunities for female athletes, not as a downgrade of opportunities.
Finally, the tiering analysis proposed by Dr. Lopiano has no basis in the 1979 Policy Interpretation or the 1990 Investigator’s Manual. It looks to the support provided to teams in areas such as scholarships, recruiting, facilities and coaching – rather than the competition schedule of the teams and their competitive opponents. Dr. Lopiano acknowledged that she had never performed this type of analysis before and that there is no basis for her approach in any OCR guidance or general publication on Title IX. (Tr. 885-86, 892) Dr. Lopiano’s analysis is completely irrelevant to the question of whether Quinnipiac satisfies the Competition Test. III. THERE ARE NO ADDITIONAL TESTS UNDER THE EFFECTIVE
ACCOMMODATION REQUIREMENT OCR has explained in its Policy Interpretation that a school complies with the regulation requiring effective accommodation of athletes’ interests and abilities by satisfying the Three-Part Test and the Two-Part Competition Test. As Mr. Daniel testified, there is no need for any additional analysis of how a school chooses which sports to offer. (Tr. 116) Although Dr. Lopiano testified that schools are required to conduct an analysis of the interests and abilities of students before adding a sport, she had previously testified in two other Title IX cases to precisely the opposite. (Tr. 870-75) In addition, Dr. Lopiano conceded that the ability of current students to compete in a sport is not relevant, as most large institutions simply “determine the sports they want to compete in and they recruit interested students from prospective high schools and community populations.” (Tr. 875-77; Ex. KK) Furthermore, it is self-evident that Quinnipiac students were interested in competing in both acrobatics and tumbling and rugby. As Dr. Lopiano acknowledged, “the fact that over 30 students showed up for rugby tryouts in 2010 did indicate student interest in the rugby team.” (Tr. 877) The coaches of the rugby and
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acrobatics and tumbling teams also testified about the interest in these teams. (Tr. 320-22, 329, 574) Moreover, the testimony of athletes Erin Trotman and Jacqueline MacLearie reflect the genuine interests of these students (and their teammates) in acrobatics and tumbling and rugby, respectively. (Tr. 387-90, 677, 679, 683-84) Thus, there is no basis for finding that Quinnipiac was deficient in any respect in how it chose to add new sports.
CONCLUSION The evidence established that Quinnipiac has taken its obligation to effectively accommodate the interests and abilities of its female athletes seriously, and the purpose of the injunction has been achieved. Indeed, the proportion of opportunities is now overweighted to women. Equitable considerations, therefore, require that the injunction be lifted and that the University be permitted to eliminate the volleyball team.

Dated: June 27, 2012

PROSKAUER ROSE LLP
By:/s/ Edward A. Brill Edward A. Brill Federal Bar No. phv015747 Susan D. Friedfel Federal Bar No. phv03585 Rebecca Berkebile Federal Bar No. phv03972 Andrew E. Rice Federal Bar No. phv05322 Eleven Times Square New York, NY 10036 Tel: 212.969.3000 Fax: 212.969.2900 ebrill@proskauer.com sfriedfel@proskauer.com
Attorneys for Defendant

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Case 3:09-cv-00621-SRU Document 275 Filed 06/27/12 Page 24 of 27
EXHIBIT A

Case 3:09-cv-00621-SRU Document 275 Filed 06/27/12 Page 25 of 27

Case 3:09-cv-00621-SRU Document 275 Filed 06/27/12 Page 26 of 27
EXHIBIT B

Case 3:09-cv-00621-SRU Document 275 Filed 06/27/12 Page 27 of 27

 
 Case 3:09-cv-00621-SRU Document 277 Filed 06/27/12 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER, :

ERIN

OVERDEVEST,

KRISTEN :

CORINALDESI and LOGAN RIKER, :

individually and on behalf of all those similarly :

situated; and ROBIN LAMOTT SPARKS, :

individually,

:

PLAINTIFFS

:

:

v.

:

:

QUINNIPIAC UNIVERSITY,

:

DEFENDANT

:

Class Action Case No. 3:09-CV-621(SRU)
June 27, 2012

PLAINTIFFS’ POST-HEARING MEMORANDUM
Plaintiffs Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, and Logan Riker, on behalf the certified class of present, prospective and future female students at Quinnipiac University, submit this Post-Hearing Memorandum setting forth the principal reasons why the Court should deny Defendant’s Motion to Lift Injunction. I. LEGAL STANDARD
As the moving party, Defendant bears the burden to prove the existence of significantly changed factual circumstances that justify lifting the injunction. To satisfy this burden, Defendant must show that: (1) the objective of the court’s original order has been achieved, and (2) a durable remedy has been implemented. Horne v. Flores, 129 S.Ct. 2579, 2595 (2009). “A ‘durable’ remedy means a remedy that gives the Court confidence that defendants will not resume their violations of plaintiffs' constitutional rights once judicial oversight ends.” Evans v. Fenty, 701 F. Supp. 2d 126, 171 (D.D.C. 2010), appeal dismissed, 10-5109, 2010 WL 3447241

Case 3:09-cv-00621-SRU Document 277 Filed 06/27/12 Page 2 of 12
(D.C. Cir. Aug. 27, 2010). Even where a defendant has recently achieved compliance with an injunction, “assessment over time is the most reliable way in which to judge whether the Decree’s objectives have been achieved.” Frew v. Suehs, 775 F. Supp. 2d 930 (E.D. Tex. 2011). Similarly, in Evans v. Fenty, 701 F. Supp. 2d 126, 172 (D.D.C. 2010), the court denied the defendants’ motion to lift the injunction because, given the defendants’ history of violations, the structural changes did not “translate into proof of a durable remedy . . . [since] it is simply too soon to tell whether they will result in improved outcomes for the plaintiffs, and, if so, whether the improvements will be sustained absent judicial involvement.”
In considering whether Quinnipiac has met its burden, the Court should recall its prior determinations that participation opportunities must be real, not illusory, and that a genuine opportunity “must allow an athlete to receive the same benefits and experience that she would receive if she played on another established varsity squad.” (2010 Decision at 52) Thus, although the parties have not yet tried Plaintiffs’ claim of unequal treatment, the Court should take into account the record evidence that strongly suggests discrimination by Quinnipiac in the allocation of benefits such as competition, practice, exercise and training facilities, coaching, and recruiting, as these factors affect the quality of experience of female student-athletes. If the Court concludes (mistakenly, in Plaintiffs’ view) that Quinnipiac has demonstrated Title IX compliance, the court should also weigh in the balance Quinnipiac’s years of failure to effectively accommodate the interests and abilities of members of both sexes, its recent history of dishonesty and roster manipulations, and its obstinate refusal to reconsider its decision to eliminate the volleyball program, in deciding whether the court is satisfied that a “durable remedy” has been achieved.
2

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II. ACROBATICS & TUMBLING PARTICIPANTS SHOULD NOT BE COUNTED TOWARD TITLE IX COMPLIANCE Since 2010, Quinnipiac’s acrobatics and tumbling (“A&T”) program has adopted a new
name, and appears to play only against collegiate competition and under a consistent set of rules. But the court should not count A&T participants toward Title IX compliance because A&T still is not recognized as a sport by either OCR or the NCAA, there is insufficient Division I varsity competition, and the so-called “national championship” remains an open invitational tournament for all of the existing varsity teams. A&T is still some time away from qualifying for recognition as a sport for Title IX purposes.
The evidence at the hearing showed that both the National Collegiate Acrobatics and Tumbling Association (“NCATA”) and STUNT, a competing organization sponsoring a similar cheer-based “sport,” have submitted proposals to the NCAA Committee On Women’s Athletics for recognition as an emerging sport for women. The CWA requested that the NCATA and STUNT resolve their disagreements and submit a joint proposal, but the two organizations have not done so. NCATA’s proposal fails to meet the CWA’s established requirements. Moreover, although the CWA requested NCATA and STUNT to obtain a ruling from OCR, neither organization has obtained such a ruling. Although Quinnipiac claims that OCR will not offer “advisory opinions” as to whether an activity is a sport, OCR certainly offers “technical guidance” to schools that request it. Quinnipiac presented no evidence that any NCATA school has sought such guidance from OCR. There is no basis to believe that the NCAA will recognize either A&T or stunt as an emerging sport in the near future.
Even if the Court were inclined to consider A&T a “sport” at this time for purposes of measuring Title IX compliance, Quinnipiac’s A&T athletes do not receive the same level of competitive opportunities as the men’s teams. No men’s team at Quinnipiac so consistently
3

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plays non-Division I opponents, plays such a small universe of opponents (some multiple times), or lacks a genuine opportunity to compete for a championship. Quinnipiac thus should not be permitted to count its A&T participants toward Title IX proportionality. III. RUGBY PARTICIPANTS SHOULD NOT BE COUNTED
TOWARD TITLE IX COMPLIANCE Quinnipiac’s women’s rugby team played its first season in 2011-12. The program was established not on the basis of any demonstration or assessment of interest among Quinnipiac students or prospective students, but apparently because the Quinnipiac administration considered it a relatively inexpensive way to create a large number of roster slots. Rugby is not a sport sponsored by the Northeast Conference, and no other school in the conference fields a team. Indeed, there is only one other Division I varsity team in the entire country. In 2010-11, there were only five women’s varsity teams at all Division levels, and since 2003-03 there have never been more than five. Most of Quinnipiac’s competition is against collegiate club teams. Quinnipiac does not participate in the national collegiate championship tournament sponsored by USA Rugby, considering its schedule dangerous to the health of the athletes, but if it did participate it would play primarily against club competition. Few of Quinnipiac’s players have been recruited either from high school or from other colleges to play rugby. The court should not count Quinnipiac’s rugby players as “participants” for purposes of Title IX compliance because they clearly do not receive a quality of experience equal to Quinnipiac’s male athletes. No men’s team at Quinnipiac consistently faces non-varsity or nonDivision I competition. No male athletes at Quinnipiac compete outside any regional collegiate conference, or are deprived of rivalries with other college varsity teams in the NEC or the region. All of Quinnipiac’s men’s teams participate in conference championships and are eligible for
4

Case 3:09-cv-00621-SRU Document 277 Filed 06/27/12 Page 5 of 12
national championships. No men’s team at Quinnipiac has such a low proportion of recruited athletes.
By selecting rugby as its new women’s sport, Quinnipiac has staked its ability to comply with Title IX on a sport that in 10 years as an NCAA emerging sport has resoundingly failed to generate sufficient support among colleges and universities to become a championship sport. Although the CWA has indicated that it may extend rugby’s time to demonstrate acceptance at the varsity level, its future as an emerging sport is in doubt at the very least. Quinnipiac presented no evidence to suggest that it is likely to succeed (or has even made serious attempts) in convincing other schools in the NEC or in other regional conferences (such as the Ivy League) to establish varsity women’s rugby teams.
Quinnipiac will argue that schools will be discouraged from adopting emerging sports for women if they may not count participants in those sports for purposes of complying with Title IX. The argument does not withstand scrutiny. First, Quinnipiac placed itself in a difficult position by seeking to eliminate an established women’s sport. Forced to rely upon prong one of the three-part test under Title IX’s “effective accommodation” requirement, Quinnipiac must show that the opportunities it provides to women in emerging sports are equal in every significant way to those it provides to its male athletes. Had Quinnipiac not eliminated the volleyball program, it could rely on prong two or prong three of the three-part test. In that context, a school could point to its sponsorship of emerging sports as part of its continuing expansion of athletic opportunities for women, or as a response to demonstrated interest and/or abilities among female students. As a practical matter a school that had not recently cut a women’s team would be less likely to face a Title IX challenge, and it would be appropriate for a court to be more flexible in its approach to fashioning relief in the event of any litigation.
5

Case 3:09-cv-00621-SRU Document 277 Filed 06/27/12 Page 6 of 12
Moreover, as the Court pointed out at trial, there are a number of potential reasons why a school might sponsor an emerging sport to comply with NCAA requirements and obtain NCAA revenue-sharing payments, apart from Title IX obligations. Finally, it hardly needs repeating that Quinnipiac’s obligations under the law trump any NCAA regulations or policies.
If Quinnipiac is serious about expanding athletic opportunities for women, it will continue to support rugby and A&T. But until they provide a quality of experience that is equal to that received by the University’s male athletes, this Court’s injunction should remain in place. IV. CERTAIN RUNNERS SHOULD NOT BE MULTIPLE-COUNTED
The court should not triple-count female runners who actually compete in fewer than three sports, or double-count those who actually compete in only one sport, because the athletes obtain no additional benefit from “participating” on an additional team.
The definition of “participant” must be interpreted in light of common sense and the statutory purpose. The appropriate focus is on the perspective of the athlete; does she receive any opportunities or benefits by virtue of her membership on a second or third team that she did not receive as a participant on her first team? This approach embraces the counting of “bench” players who practice and receive other varsity benefits, but does not require the counting of noncompeting athletes in a second or third sport who merely fill roster slots to create the appearance of Title IX compliance. The Court essentially endorsed this approach in its 2010 Decision.
Although Quinnipiac has disclaimed any formal “requirement” that cross-country runners also participate in track, that claim deserves little credence. It is clear that whatever is stated aloud, Coach Martin expects her cross-country athletes to run indoor and outdoor track. (Recall Tracy Flynn’s testimony about the cross-country athlete who came to her with concerns about the consequences she might face if she quit the indoor track team.) And in any event, the cross-
6

Case 3:09-cv-00621-SRU Document 277 Filed 06/27/12 Page 7 of 12
country runners would train in three seasons even if they were not rostered on the track and field teams. Under NCAA rules, they could even compete in a limited number of track meets. The teams practice together during the entire school year, and in the absence of the NCAA-required practice records it is impossible to tell who practiced regularly or what she practiced. The evidence does not permit the Court to find that any cross-country runner who did not actually compete in indoor or outdoor track received any additional tangible or intangible benefit from her membership on the indoor and/or outdoor track teams. Multiple-counting such athletes cannot be justified.
Nothing of significance has yet changed in Quinnipiac’s women’s running program. For all of the reasons that the court refused in 2010 to multiple-count cross country runners who did not actually compete in indoor or outdoor track, it should do the same today. V. OTHER COUNTING ISSUES
Plaintiffs submit that the evidence demonstrates the existence of several other issues affecting the reliability of Quinnipiac’s count of participants, including the following:
(a) The definition of “participant” relied upon to a significant degree by both parties requires, inter alia, that an athlete be “participating in organized practice sessions and other team meetings and activities on a regular basis during a sport’s season” in order to be counted. But Quinnipiac cannot establish with reliability the numbers of student athletes who qualify as participants on its athletic teams because it failed to keep records of which athletes practiced regularly, despite clear NCAA requirements.
(b) The regulation also provides for counting athletes who because of injury do not receive varsity benefits, do not practice, or are not listed on a team’s squad list, but who continue to receive athletic financial aid. Yet Defendant’s expert counted as a participant any athlete who
7

Case 3:09-cv-00621-SRU Document 277 Filed 06/27/12 Page 8 of 12
received aid, regardless of the reason he or she did not meet the other criteria. He justified this approach by pointing to the “investment” the school makes in the athlete, without taking into account the fact that in many cases the athletes involved received only a fraction of a full scholarship, or the fact that allowing the student to retain the scholarship is a matter within the school’s discretion.
(c) As Plaintiffs pointed out at the hearing, Quinnipiac’s system of gathering roster information depends entirely on the veracity of the coaches, who, as was seen at the preliminary injunction hearing, have incentives to tell the administrators what they want to hear, while doing what they can to make their teams more competitive. Quinnipiac has not established recordkeeping or auditing practices that would be likely to uncover either inadvertent or intentional inaccuracies. VI. LEVELS OF COMPETITION
Quinnipiac fails the “competition test” set forth in the Title IX regulation and the 1979 Policy Interpretation. Significantly, the parties agree that Quinnipiac has an obligation “to provide equal opportunity . . . in the levels of competition available to members of both sexes.” (Title IX Regulation, 45 CFR § 86.41) The parties dispute the meaning of the term “levels of competition.” Defendant’s approach – calculating that men’s teams play 100% of their competitions at the Division I level and women’s teams play 95.85% of their competitions at the Division I level, but concluding that this discrepancy is acceptable based upon a plucked-fromthin-air 5% “safe harbor” – is not consistent with the text of the Policy Interpretation, which requires that proportionally similar numbers of male and female athletes – not teams – receive equivalently advanced competition opportunities.
8

Case 3:09-cv-00621-SRU Document 277 Filed 06/27/12 Page 9 of 12

Plaintiffs’ approach takes into account additional components of “levels of competition,” recognizing that more advanced competition opportunities typically require and are accompanied by other types of institutional support. Plaintiffs’ analysis of these factors is contained in Dr. Lopiano’s report. Importantly, however, even if the Court accepts (as it should not) the proposition that the only factor that matters for purposes of the competition test is whether the competition occurs at the Division I, Division II, Division III, or club level, it remains the case that a significantly disproportionate number of Quinnipiac’s female athletes compete with greater frequency below the Division I level than the University’s male athletes. Quinnipiac discriminates against its female student-athletes in that it does not offer them an equal opportunity to compete at an equally advanced level.

VII. EQUITY AND REMEDY

.

Equity and fairness require that the Court leave the injunction in place. Women have

experienced years of discrimination in Quinnipiac’s athletics program, which remains to a

significant extent unremedied. There is little indication that Quinnipiac has made a real

commitment to women’s sports or to Title IX compliance; the evidence suggests, rather, the

Quinnipiac is intent on creating the appearance of compliance without providing genuine

equality of opportunity. Had the Plaintiffs not come forward in this action, there is no reason to

think that Quinnipiac would have made even the meager improvements we have seen in the past

three years.

Quinnipiac continues to use roster management as a tool for gaming the system.

Although Mr. Thompson denies that the roster targets are “floors” for the women’s teams, the

9

Case 3:09-cv-00621-SRU Document 277 Filed 06/27/12 Page 10 of 12
experience of the golf coach when he was short of his target belies that assertion. The Court should be skeptical of coaches’ testimony that they are content with their targets.
It should be remembered, moreover, that this case arose because Quinnipiac sought to drop an existing women’s sport at a time when it was not in compliance with Title IX. Such conduct should have consequences. Plaintiffs believe it would be fair under the circumstances to prevent Quinnipiac from dropping any women’s sports until it is in compliance with Title IX in all of its aspects – specifically including the equal benefits/equal treatment requirements.
The volleyball team deserves an opportunity to compete without the threat of elimination over its head; no men’s team has faced a similar threat since 2009, because Quinnipiac cannot eliminate a men’s team and retain its Division I status. The threat of elimination makes recruiting difficult; the inability to recruit makes the team uncompetitive in the conference. In short, Quinnipiac’s treatment of the volleyball team has made the experience much less than it should have been for the named plaintiffs and their teammates. The only effective remedy for this problem is an injunction of sufficient duration to allow several years of recruiting high school students without having to tell them that the program is subject to elimination at any time.
Plaintiffs further renew their request that the court appoint a neutral monitor to audit, on an ongoing, real-time basis, Quinnipiac’s compliance with Title IX and to bring to the immediate attention of the court and the parties any questions or concerns about Quinnipiac’s policies or practices.
10

Case 3:09-cv-00621-SRU Document 277 Filed 06/27/12 Page 11 of 12
Conclusion
For all of the foregoing reasons, Plaintiffs urge that Defendant’s Motion to Lift Injunction
be denied.
RESPECTFULLY SUBMITTED, THE PLAINTIFFS
By: /s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440) Alex V. Hernandez (ct08345) Pullman & Comley 850 Main Street Bridgeport, CT 06604 (203) 330-2129 (phone) (203) 576-8888 (fax) jorleans@pullcom.com ahernandez@pullcom.com
Kristen Galles (pro hac vice) Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 (703) 683-4491 (phone) (703) 683-4636 (fax) kgalles@comcast.net
Sandra J. Staub (ct28408) Legal Director ACLU Foundation of Connecticut 330 Main Street Hartford, CT 06106 (860) 471-8471 (phone) (860) 586-8900 (fax) staub@acluct.org Attorneys for the Plaintiffs
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Case 3:09-cv-00621-SRU Document 277 Filed 06/27/12 Page 12 of 12
CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of June, 2012, a copy of the foregoing PLAINTIFFS’ POST-HEARING MEMORANDUM was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF.
/s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440)

ACTIVE/73061.1/JORLEANS/3092260v1

12

 
 Case 3:09-cv-00621-SRU Document 182 Filed 08/11/10 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated; and ROBIN LAMOTT SPARKS, individually,

X CIVIL ACTION NO: 3:09-CV-00621 (SRU)

Plaintiffs,

against

QUINNIPIAC UNIVERSITY,

Defendant. X

QUINNIPIAC UNIVERSITY'S PROPOSED COMPLIANCE PLAN

Case 3:09-cv-00621-SRU Document 182 Filed 08/11/10 Page 2 of 9
Quinnipiac University submits the following compliance plan in accordance with the Court's July 21,2010 order. This plan is submitted without prejudice to Quinnipiac University's rights to appeal from the July 21, 2010 order or any other orders entered conceming Title IX compliance in this case.
As described below, the University plans on complying with Title IX by providing athletic participation opportunities substantially in proportion to the University's undergraduate enrollment, in accordance with Prong One of OCR's 1979 Policy Interpretation. The plan extends through the 2011-2012 academic year, after which Quinnipiac expects that court monitoring of the University's athletic team rosters will no longer be required. Quinnipiac reserves the right to submit a modified Compliance Plan, for the Court's approval, based on any unforeseen circumstances. Quinnipiac also reserves the right to demonstrate compliance with Prong Two of OCR's 1979 Policy Interpretation.
2010-2011 Plan Volleyball
As ordered by the Court, the University will continue sponsoring the women's volleyball team during the 2010-2011 season.
Women's Cross Country I Women's Indoor Track and Field I Women's Outdoor Track and Field
The Court's decision relied on unexplained and unexplored testimony that the head coach of the women's cross country team - Carolyn Martin required members of the cross country team to participate in the women's indoor track and field and outdoor track and field teams. No such requirement was ever communicated to the student athletes, and no cross country athlete was ever required to participate in the indoor and/or

Case 3:09-cv-00621-SRU Document 182 Filed 08/11/10 Page 3 of 9
outdoor track and field team who did not voluntarily decide to do so. Nevertheless, the University will take additional steps to ensure that all student-athletes and potential student-athletes are aware that participation on any and all teams is completely voluntary.
All coaches and student-athletes will be informed in writing that, consistent with long-standing University policy, student-athlete participation in varsity sports is totally voluntary on the part of the student, and no student is required to participate in any sport. The University will make clear to coaches and student-athletes that no student is required to participate in one sport in order to participate in a different sport.
In particular, students on the women's cross country team will be notified in writing that participation on the women's indoor track and field and/or outdoor track and field team is not required to participate on the women's cross country team. Women's Golf
The University will add a varsity women's golf team in 2010-2011. Golf is recognized as a championship sport by the NCAA and Northeast Conference. The NCAA's most recent participation report from 2008-2009 indicates that the average size of a Division I varsity women's golf team is 8.6. The University will initially set a roster target of 10 students for the varsity women's golf team. The University will take several steps to ensure that the women's golf team will provide genuine participation opportunities to 10 female students.
First, the University is in the process of conducting a search for a qualified women's golf coach. The coach will be hired as soon as possible, with the goal of having a coach in place by the beginning of the fall semester of the 2010-2011 academic year.
2

Case 3:09-cv-00621-SRU Document 182 Filed 08/11/10 Page 4 of 9
Second, the coach will recruit student-athletes who are in high school and/or who currently attend other colleges/universities, as well as students currently enrolled at Quinnipiac, to participate in the varsity women's golf team.
Third, the University will provide two full tuition scholarships, which the coach can allocate among student-athletes, to attract talented student-athletes to the team. Roster Management
Dr. Mark Thompson, the University's Senior Vice President for Academic and Student Affairs, will continue overseeing the University's roster management process. Dr. Thompson will remind all coaches that he must approve all additions or deletions to varsity teams.
Because the 201 0-2011 academic year begins in September and team rosters are already set, no other changes will be made to rosters for the upcoming year. With the exception of the addition of women's golf, the roster numbers will remain the same as those already provided to coaches, as set forth in the chart below:
3

Case 3:09-cv-00621-SRU Document 182 Filed 08/11/10 Page 5 of 9

Basketball Baseball Field Hockey Soccer Tennis Lacrosse Cross Country Ice Hockey Indoor Track Outdoor Track Softball Volleyball Golf Total

Men 19 31 24 10 41 13 30
168

Women 18
24 25 10 30 24 26 35 35 19 14 10 270

Below is a summary chart showing the number of male and female athletes the University expects will participate in varsity athletics in 2010-2011, compared to the projected undergraduate enrollment:

Number Percent

36.75%

63.25%

100%

4

Case 3:09-cv-00621-SRU Document 182 Filed 08/11/10 Page 6 of 9
2011-2012 Plan Volleyball
The University will continue sponsoring the women's volleyball team during the 2011-2012 season, and potentially beyond that period as needed to maintain Title IX compliance. Women's Cross Country I Women's Indoor Track and Field I Women's Outdoor Track and Field
The University will continue the practices set forth above for 2010-2011 with respect to notifying coaches and student-athletes that no student is required to participate in any sport. Women's Rugby
The University will add a varsity women's rugby team in 2011-2012. Rugby is recognized as an NCAA emerging sport. The NCAA's most recent participation report from 2008-2009 indicates that the average size of a varsity women's rugby team is 36.8, and the University initially will set a roster target of 35 students. The University will take several steps to ensure that the women's rugby team provides genuine participation opportunities to 35 female students.
First, the University is in the process of conducting a search for a qualified women's rugby coach. The coach will be hired as soon as possible, with the goal of having a coach in place during the fall semester of the 2010-2011 academic year.
Second, the coach will recruit student-athletes who are in high school and/or who currently attend other colleges/universities, as well as students currently enrolled at Quinnipiac, to participate on the varsity women's rugby team.
5

Case 3:09-cv-00621-SRU Document 182 Filed 08/11/10 Page 7 of 9
Third, the University will provide six full tuition scholarships, which the coach can allocate among student-athletes, to attract talented student-athletes to the varsity team.
Fourth, during the 2010-11 academic year, the coach will begin to practice with and assess the skills of the current students who are interested in participating in rugby. To the extent feasible, the coach will organize a club team in the 2011-12 academic year. Roster Afanagement
Dr. Thompson will continue monitoring roster numbers for all of Quinnipiac's varsity teams. Each year, Dr. Thompson will engage in the process of evaluating roster targets with coaches to ensure that the roster numbers accurately reflect genuine athletic participation opportunities.
As the OCR recognizes, enrollment numbers may fluctuate. Dr. Thompson will monitor and adjust roster numbers based on an ongoing assessment of the coaches' needs and undergraduate enrollment statistics, with the goal of ensuring that each student athlete receives a genuine athletic participation opportunity.
In any given year, coaches may be more or less successful in recruiting athletes, and other circumstances may arise that necessitate higher or lower roster numbers. For example, if several scholarship athletes on a team are injured, the coach may request a higher roster number to remain competitive. It is expected that ordinary issues will arise with the student-athletes that may require that athletes be added or cut from teams, including injuries, academic eligibility issues, and personal concerns. Dr. Thompson will continue to evaluate these issues on a case-by-case basis as they arise.
6

Case 3:09-cv-00621-SRU Document 182 Filed 08/11/10 Page 8 of 9

Below is a chart showing the number of male and female athletes the University expects will participate in each varsity sport in 2011-2012:

Basketball Baseball Field Hockey Soccer Tennis Lacrosse Cross Country Ice Hockey Indoor Track Outdoor Track Softball Volleyball Golf Rugby Total

Men 19 31 24 10 41 13 30
168

Women 18
24 25 10 30 24 26 35 35 19 14 10 35 305

Below is a chmi summarizing the total number of male and female athletes the University expects will participate in varsity athletics in 2011-2012, compared to the projected undergraduate enrollment for 2010-11:

Number Percent

36.75% 7

63.25%

100%

Case 3:09-cv-00621-SRU Document 182 Filed 08/11/10 Page 9 of 9

Stunts and Tumbling (Competitive Cheer) The University plans on continuing to support its Stunts and Tumbling team
(formerly known as the Competitive Cheer team) as a varsity sport. If Stunts and Tumbling is recognized by the NCAA as an emerging sport or by OCR as a sport prior to the 2011-12 academic year, the University will submit a modified compliance plan in light of the additional athletes who would count as participants for purposes of Title IX.

Dated: August 11,2010

PROSKAUER ROSE LLP
By: Is/ Edward A. Brill Edward A. Brill Federal Bar No. phv015747 Susan D. Friedfel Federal Bar No. phv03585
1585 Broadway New York, NY 10036 Tel: 212.969.3000 Fax: 212.969.2900 ebrill@proskauer. com sfriedfel@proskauer.com
WIGGIN AND DANA Mary Gambardella, Esq. Federal Bar No. ct05386 400 Atlantic Street Stamford, CT 06911-0325 Tel: (203) 363-7662 Fax: (203)363-7676 mgambardella@wiggin.com
Attorneys for Defendant

8

 
 Case 3:09-cv-00621-SRU Document 225 Filed 12/22/11 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - )(
STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated; and ROBIN LAMOTT SPARKS, individually,

CIVIL ACTION NO: 3:09-CV-00621 (SRU)

Plaintiffs,

December 22, 2011

against

QUINNIPIAC UNIVERSITY,

Defendant.
- - - - - - - - - - - - - - - - - - - - - - --- - - - - - - - - )(

DEFENDANT'S NOTICE OF MOTION TO LIFT INJUNCTION

PLEASE TAKE NOTICE that, upon the annexed Memorandum of Law in

Support of Defendant's Motion to Lift Injunction and Declaration of Mark A. Thompson,

PhD, Defendant hereby moves this Court for an Order lifting its July 22, 2010 injunction

and declaring that the University is in compliance with Title I>C.

Dated: December 22, 2011

PROSKAUER ROSE LLP
By: /s/ Edward A. Brill Edward A. Brill Federal Bar No. phv015747 Susan D. Friedfel Federal Bar No. phv03585
Eleven Times Square New York, NY 10036 Tel: 212.969.3000 Fax: 212.969.2900 ebrill@proskauer.com sfriedfel@proskauer.com
WIGGIN AND DANA Mary Gambardella, Esq.

Case 3:09-cv-00621-SRU Document 225 Filed 12/22/11 Page 2 of 2
Federal Bar No. ct05386 Two Stamford Plaza 281 Tresser Boulevard Stamford, CT 06901 Tel: (203) 363-7662 Fax: (203)363-7676 mgambardella@wiggin.com
Attorneys for Defendant

Case 3:09-cv-00621-SRU Document 225-1 Filed 12/22/11 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - )(
STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated; and ROBIN LAMOTT SPARKS, individually,

CIVIL ACTION NO: 3:09-CV-00621 (SRU)

Plaintiffs,

December 22, 2011

against

QUINNIPIAC UNIVERSITY,

Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - )(

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO LIFT INJUNCTION

Case 3:09-cv-00621-SRU Document 225-1 Filed 12/22/11 Page 2 of 8
Quinnipiac University requests that the Court lift its July 22, 2010 injunction and declare that the University is in compliance with Title IX. In granting the injunction, which specifically prohibits Quinnipiac from eliminating the women's volleyball team, the Court held that "Quinnipiac is not obligated to continue sponsoring the [volleyball] team beyond [the 2010-11 season] ... so long as any decision to eliminate women's volleyball is accompanied by other changes that will bring the University into compliance with Title IX." (7/21/10 Decision at 94) Quinnipiac made such changes and is complying with Title IX's requirement that the University provide substantially proportionate athletic participation opportunities.
Quinnipiac made the following changes to comply with Title IX: (1) Quinnipiac added a varsity women's golf team in 2010-11. (2) Quinnipiac added a varsity women's rugby team in 2011-12. (3) Quinnipiac communicated to all athletes and coaches, including all members
of the women's cross country team, women's indoor track and field team and women's outdoor track and field team, that no athlete is required to participate on one team to participate on any other team. (4) Quinnipiac's acrobatics and tumbling team 1 now satisfies the factors set forth in the Court's decision (e.g., the team only competes against collegiate varsity teams, the team competes under one standardized set of rules, the team participates in a progressive post-season championship, and the coach conducts off-campus recruiting), such that athletes on this team now count as participants under Title IX.
The acrobatics and tumbling team was formerly known as the competitive cheer team.

Case 3:09-cv-00621-SRU Document 225-1 Filed 12/22/11 Page 3 of 8

As a result of these changes, Quinnipiac complies with Title IX's participation

requirements. Thus, Quinnipiac requests the Court lift its injunction.

ARGUMENT

I.

Applicable Legal Standard

The Court expressly envisioned that it would modify its injunction when

Quinnipiac satisfied Title IX, stating that the injunction shall remain in force "pending

further court order" and that Quinnipiac was only required to keep the volleyball team through the 2010-11 season. 2 (Decision at 94; Injunction) In such a case, it is

appropriate to lift an injunction "once the specific results intended ... had been

achieved." Corenco Corp. v. Schiavone & Sons, Inc., 488 F.2d 207, 215 (2d Cir. 1973);

see Sierra Club v. Mason, 365 F. Supp. 47, 49 (D. Conn. 1973) (where there are

changed circumstances that satisfy the court's concern in issuing the injunction, the

injunction "ought to be dissolved since it is no longer equitable that the judgment should

have prospective application"). Quinnipiac has made significant changes to its athletics

program, including adding new women's sports. The University is now in compliance

with Title IX and the injunction should be lifted.

II.

Quinnipiac Provides Substantially Proportionate Athletic Participation

Opportunities

A. Quinnipiac's Roster Numbers

With the addition of a women's golf team in 2010-11, the addition of a women's

rugby team in 2011-12, and counting the acrobatics and tumbling team, Quinnipiac has

a total of 483 varsity athletes in 2011-12, of whom 314 are female (65 .01 %) and 169 are

The Court's September 28, 2010 Conference Memorandum instructed that "Quinnipiac may move to lift the injunction or for an order declaring that the University is in compliance with Title IX," and that this would begin the process of the Court evaluating whether to lift the injunction.

2

Case 3:09-cv-00621-SRU Document 225-1 Filed 12/22/11 Page 4 of 8

male (34.99%).3 (Thompson Declaration 1{2) In 2011-12, there are 3,735 female

undergraduates (62.37%) and 2,253 male undergraduates (37.63%). (/d. 1{3) Thus,

female athletes are overrepresented by 2.64%. Plainly, as summarized in the chart below, for 2011-12, Quinnipiac is complying with Title IX.4

Female

Male

2011-12 Varsity Athletes

65.01%

34.99%

2011-12 Undergraduate Population 62.37%

37.63%

Difference

+2.64%

-2.64%

B. Women's Golf Team

Quinnipiac began a varsity women's golf team in 2010-11. (Thompson

Declaration 1{6) Golf is a recognized NCAA sport. Thus, it is entitled to a presumption

in favor of counting as a sport for purposes of Title IX. (Decision at 57) Quinnipiac

employs a women's golf coach; the coach conducts off-campus recruiting for the team;

3

Participation numbers are based on the number of athletes on each team as of the first

date of competition. Participation numbers for the acrobatics and tumbling team and

outdoor track and field teams are the teams' approved squad sizes because those

teams have not yet had their first dates of competition. The participation numbers

include four athletes who receive athletic scholarships from Quinnipiac but in no other

way participate on a team. (Thompson Declaration Ex. A) In the event the Court

determines these athletes do not count for purposes of Title IX, there would be 313

female athletes (65.34%) and 166 male athletes (34.66%).

4

Notwithstanding the University's limited ability to make changes in its athletic program in

2010-11 following the Court's July 21, 2010 decision, Quinnipiac provided substantially

proportional athletic opportunities in 2010-11. Even without counting acrobatics and

tumbling, Quinnipiac had 264 female athletes (61.54%) and 165 male athletes (38.46%),

and the undergraduate population was comprised of 3, 700 women (63.15%) and 2,159
men (36.85%). (Thompson Declaration 1f1f 4 & 5) This represents a 1.61% difference

between the percentage of female athletes and the percentage of female undergraduate

students. The Court noted that courts have held "a disparity within two percentage

points is proof that an educational institution falls within the substantial proportionality

safe harbor." (Decision at 90) Nevertheless, the University determined it was most

prudent to wait an additional year before asking the Court to lift its injunction.

3

Case 3:09-cv-00621-SRU Document 225-1 Filed 12/22/11 Page 5 of 8
the University provides scholarships to aid in recruiting athletes; the team competes against other collegiate varsity teams; the team practices for competitions; and, the University provides athletes on the team with the myriad of other benefits that come with being a varsity athlete at the University (e.g., power hours, medical assistance, training , community service). (Thompson Declaration~ 7) Accordingly, the athletes on the women's golf team count for purposes of Title IX.
C. Women~s Rugby Team Rugby is an NCAA emerging sport. The Court recognized that NCAA emerging sport status entitles a sport to a presumption of counting under Title IX. (Decision at 57, 71) Quinnipiac hired a coach and created a women 's rugby team in the 2010-11 academic year so the team could begin practicing and competing in scrimmages against other collegiate teams, in preparation for establishing a varsity team in 2011-12 . (Thompson Declaration ~ 9) Quinnipiac awarded scholarships to recruit talented rugby athletes for the 2011-12 academic year. (/d.~ 10) The rugby team competes against other collegiate varsity and club teams, practices for competitions and provides athletes with all of the benefits of being on a Quinnipiac varsity athletic team. (/d.) Although there are currently only five varsity rugby teams in the NCAA, Quinnipiac competed in a significant number of matches against these varsity teams and had other matches against well-established collegiate club teams that provide formidable competition . (/d. ~ 11) Thus, Quinnipiac's varsity women's rugby athletes count as participants for purposes of Title IX for 2011-12.
4

Case 3:09-cv-00621-SRU Document 225-1 Filed 12/22/11 Page 6 of 8
D. Women's Cross Country, Indoor Track and Field and Outdoor
Track and Field In the Court's July 21, 2010 decision, it discounted eleven track and field participants. The Court found the "principal reason" to doubt that all athletes on these three teams receive genuine participation opportunities was the "requirement that crosscountry runners compete on the indoor and outdoor track teams." (Decision at 82-83) The University has subsequently made clear to coaches and athletes, including athletes on the women 's cross country and indoor and outdoor track and field teams, that there is no requirement that they participate on one of these teams to participate on another team . 5 (Thompson Declaration ~ 12) Therefore, athletes on the varsity women's cross country team, indoor track and field team and outdoor track and field team count under Title IX for each sport in which they participate.
E. Acrobatics and Tumbling As the Court recognized in its Decision, there was "little doubt that at some point in the near future -once competitive cheer is better organized and defined ... competitive cheer will be acknowledged as a bona fide sporting activity by academic institutions, the public, and the law." (Decision at 71) That point surely has arrived . The Court had three principal issues with the team, each of which the University has addressed. First, the Court found "the Quinnipiac regular season was inconsistent in terms of the rules governing the team's competitions and the types and quality of its opponents." (Decision at 68) The team now competes exclusively under the well-

5

Indeed, no such requirement had ever been communicated to the athletes.

Nevertheless, Quinnipiac took affirmative steps to make it clear to the athletes that no

such requirement exists.

5

Case 3:09-cv-00621-SRU Document 225-1 Filed 12/22/11 Page 7 of 8
established rules created by the NCATA.6 (Thompson Declaration 11 13) The team
competes exclusively against collegiate varsity teams that are members of the NCATA.
(!d. at 11 15) Second, the Court found "the Quinnipiac post-season fell short of what
would be expected of any other varsity team." (Decision at 68) Quinnipiac's team now participates in a progressive championship under NCATA rules. (Thompson
Declaration 11 16) Finally, the Court found that the coach did not engage in off-campus
recruitment. (Decision at 68) The coach now conducts off-campus recruiting and
recruited off-campus for the 2011-12 season. (Thompson Declaration 11 17) These
changes cure all of the significant deficiencies the Court found with the team in its decision. Thus, the athletes on the acrobatics and tumbling team count as participants under Title IX.
CONCLUSION Quinnipiac has allowed the volleyball team to compete past the required 2010-11 season to ensure that it was on the firmest possible footing before asking the Court to lift its injunction. Quinnipiac is now confident that it is in full compliance with Title IX. The Court ordered there would be 120 days for discovery on the motion to lift the injunction, after which there will be a hearing on Quinnipiac's motion. Therefore, Quinnipiac proposes that discovery end on April 30, 2012, at which point all Quinnipiac teams will have had their first date of competition, and most teams will have completed

6

The National Competitive Stunt and Tumbling Association ("NCSTA")- the governing

body for competitive cheer at the time the Court issued its decision - is now called the

National Collegiate Acrobatics and Tumbling Association ("NCATA"). The NCATA has

by-laws and enforcement mechanisms for ensuring teams follow the rules set forth by

the NCATA Furthermore, the NCATA has partnered with USA Gymnastics such that all

NCATA meets are sanctioned by USA Gymnastics. (Thompson Declaration 1l14)

6

Case 3:09-cv-00621-SRU Document 225-1 Filed 12/22/11 Page 8 of 8
their seasons of competition. 7 Quinnipiac requests the Court set hearing dates as expeditiously as possible thereafter.

Dated: December 22, 2011

PROSKAUER ROSE LLP
By: /s/ Edward A. Brill Edward A. Brill Federal Bar No. phv015747 Susan D. Friedfel Federal Bar No. phv03585
Eleven Times Square New York, NY 10036 Tel: 212 .969.3000 Fax: 212.969.2900 ebrill@proskauer.com sfriedfel@proskauer.com
WIGGIN AND DANA Mary Gambardella, Esq . Federal Bar No. ct05386 Two Stamford Plaza 281 Tresser Boulevard Stamford, CT 06901 Tel: 203.363.7662 Fax: 203.363.7676 mgambardella@wiggin.com
Attorneys for Defendant

7

The women's outdoor track and field team begins its competitions latest in the year. The

first date of competition for the women's outdoor track and field team is March 30, 2012,

and by April 30 the team is scheduled to have competed in seven meets, which

completes the regular season competition.

7

Case 3:09-cv-00621-SRU Document 225-2 Filed 12/22/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated; and ROBIN LAMOTT SPARKS, individually,

X CIVIL ACTION NO: 3:09-CV-00621 (SRU)

Plaintiffs,

against

QUINNIPIAC UNIVERSITY,

Defendant. X

MARK A. THOMPSON, PhD declares, under penalty of perjury, pursuant to 28 U.S.C. § 1746,

that the following is true and correct:

1. I am the Senior Vice President for Academic and Student Affairs at Quinnipiac University, and I submit this declaration in support ofQuinnipiac's Motion to Lift the Court's Injunction.

Roster Sizes and Undergraduate Enrollment

2. In 2011-12, Quinnipiac has and/or plans to have 314 female athletes (65.01 %) and 169 male athletes (34.99%). A chart detailing how many male and female athletes participated and/or plan to participate in varsity athletics in 2011-12 is attached hereto as Exhibit A. The numbers reflected in this chart are the actual number of athletes on each team as of the first date of competition for all teams other than acrobatics and tumbling and outdoor track and field,

8922/60224-002 current/26031 052v2

12/15/2011 6.16 pm

Case 3:09-cv-00621-SRU Document 225-2 Filed 12/22/11 Page 2 of 5

which have not yet completed their first date of competition. The numbers for these two teams are the approved roster numbers.

3. The undergraduate population in 2011-12 was comprised of3,735 women (62.37%) and 2,253 men (37.63%).

4. In 2010-11, without counting acrobatics and tumbling athletes, Quinnipiac had 264 female athletes (61.54%) and 165 male athletes (38.46%).

5. The undergraduate population in 2010-11 was comprised of 3,700 women (63.15%) and 2,159 men (36.85%).

Women's GolfTeam

6. Quinnipiac added a varsity women's golf team that began competing in the 201011 academic year.

7. Quinnipiac employs a women's golf coach; the golf coach conducts off-campus recruiting for the team; the University provides scholarships to aid in recruiting golf athletes; the golfteam competes against other collegiate varsity teams; the golf team practices for competitions; and, the University provides athletes on the golf team with the many benefits that come with being a varsity athlete at the University (e.g., power hours, medical assistance, training, community service).

Women's Rugby Team

8. Quinnipiac added a varsity women's rugby team that began competing in the 2011-12 academic year.

2
8922/60224-002 current/26031 052v2

12/15/2011 6 16 pm

Case 3:09-cv-00621-SRU Document 225-2 Filed 12/22/11 Page 3 of 5

9. Quinnipiac hired a rugby coach and created a women's rugby team in the 2010-11 academic year, so the team could begin practicing and competing in scrimmages against other collegiate teams as preparation for competition as a varsity team in 2011-12.

10. The University provided scholarships to aid in recruiting rugby athletes for the 2011-12 academic year; the rugby team competes against other collegiate varsity and club teams; the rugby team practices for competitions; and, the University provides athletes on the rugby team with the many benefits that come with being a varsity athlete at the University (e.g., power hours, medical assistance, training, community service).

11. Although there are currently only five varsity rugby teams in the NCAA, Quinnipiac competed in a significant number of matches against these varsity teams and had other matches against well-established club teams that provide formidable competition.

Women's Track and Field Teams

12. On September 24, 2010, Quinnipiac notified its coaches and all student athletes, including the women's cross country, indoor track and field and outdoor track and field teams, in writing of its policy that no student is required to pmiicipate in one spmi in order to pmiicipate in a different sport. Quinnipiac reminded all coaches ofthis policy in its 2011-12 Athletics & Recreation Staff Policy Handbook.

Acrobatics and Tumbling

13. During 2011-12, the A&T team will compete exclusively under the wellestablished rules created by the National Collegiate Acrobatics and Tumbling Association ("NCATA").

3
8922/60224-002 currenU26031 052v2

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Case 3:09-cv-00621-SRU Document 225-2 Filed 12/22/11 Page 4 of 5

14. The NCATA has by-laws and enforcement mechanisms for ensuring teams follow the rules set forth by the NCATA. Furthermore, the NCATA has partnered with USA Gymnastics such that all NCATA meets are sanctioned by USA Gymnastics.

15. The A&T team competes exclusively against collegiate varsity teams that are members of the NCATA.

16. rules.

Quinnipiac' s team participates in a progressive championship under NCATA

17. Mary Ann Powers, the coach of Quinnipiac' s A&T team, conducted off-campus recruiting for the 2011-12 season.

DATE~ I

4
8922/60224-002 current/26031 052v2

12/15/2011 6.16 pm

Case 3:09-cv-00621-SRU Document 225-2 Filed 12/22/11 Page 5 of 5

EXHIBIT A 2011-12 Athletic Participation*

Male Participants

Basketball

18

Baseball

31

Field Hockey

Soccer

25

Tennis

10

Lacrosse

44

Cross Country

13

Ice Hockey

28

Indoor Track and Field

Outdoor Track and Field Softball

Volleyball

Golf

Acrobatics & Tumbling

Rugby

Total

169 (34.99%)

Female Participants
15
22 24
11
30 24 27 33 35 16 14
11
32 20 314 (65.01 %)

These numbers include three athletes on the men's lacrosse team who have exhausted their eligibility under NCAA rules (and therefore do not pmticipate on the team), but are still receiving athletic scholarships from Quinnipiac. These numbers also include one female athlete who receives an athletic scholarship from the ice hockey team, but no longer participates on that team - she is also a member of the women's golf team, and counts as a member of that team as well .

5
8922/60224-002 current/26031 052v2

12/15/2011 6:16pm

 
 Case 3:09-cv-00621-SRU Document 14 Filed 04/21/09 Page 1 of 6

UNITED STATES DISTRICT COURT .DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KRISTEN

CORINALDESI, KAYLA LAWLER

and ERIN OVERDEVEST, individually and

on behalf of those similarly situated;

LESLEY RIKER on behalf of her minor

daughter,. L.R.

., individually and on

behalf of those similarly situated; and

ROBIN LAMOTT SPARKS, individually,

Civil Action No.

PLAINTIFFS
v.

QUINNIPIAC UNIVERSITY . DEFENDANT.

April 16, 200?

AFFIDAVITOF JOHN MCDONALD

STATE OF CONNECTICUT COUNTY OF NEW HAYEN

) ) ss: Hamden, CT )

The undersigned, having been duly sworn, hereby deposes and says: 1. I am over the age of eighteen and believe in the obligations of an oath. I am the Director of Athletics and Recreation of the Defendant, Quinnipiac University. I make this statement in support of Defendant's opposition to Plaintiffs' Request for Entry of a Temporary Restraining Order. 2. Attached hereto is a true and accurate copy of a letter sent by Defendant's counsel, Janet P. Judge, on April 15,2009. I have reviewed the content of this letter, and verify that it

Case 3:09-cv-00621-SRU Document 14 Filed 04/21/09 Page 2 of 6 .... :-

sets forth true and accurate data concerning participation offerings in Defendant's athletic programs. These participation offerings represent actual opportunities that Defendant is confident will be filled, especially given the input elicited from the coaches of the teams . represented. 3. I further affinn that Plaintiff Robin Lamott Sparks will continue to be paid through June 30,2009. 4. Finally, I affinn that the scholarships referenced in the Plaintiffs' affidavits are being honored by the University.

JOHN M DONALD The foregoing was subscribed and sworn to before me this 16th day of April 2009.

N&OTdAARY:P.UABLI6C aLlLf/ 1.~/trl:i:zfi1

CINOI A. BARREn'

MY COMMISSION EXPIRES:

NOTARY PUBLIC

MY COMMISSION EXPiIEs 121'31f2012

2

Case 3:09-cv-00621-SRU Document 14 Filed 04/21/09 Page 3 of 6 .".-::' .
......

JANET P. JUDGE
ATTORNEY jjudge@sportslawassociates.com

PO BOX 486
97 RANGE ROAD
CUMBERLAND. MAINE 04021 207-776-4551 • FAX 888-316-6757

April 15, 2009
CONFIDENTIAL
ATTORNEY/CLmNTP~GE
Jonathan B. Orleans, Esq. 850 Main Street P.O. Box 7006 Bridgeport, CT 06601-7006
RE: Letter Dated March 27, 2009
Dear: Mr. Orleans:
Thank you for your letter of March 27, 2009. Please be advised that I am representing Quinnipiac University with regard to this matter and ask that al1 correspondence and communication be directed to my attention.
As a result ofthe recent reorganization of the Department of Athletics, Quinnipiac University is able to demonstrate that its athletics program is in compliance with Prong I ofTitle IX's three part participation test. In short, as detailed below, Quinnipiac University will have approximately 165 male and 280 female student athletes in 2009-2010 which translate into 37.1 % males and 62.9% females. These percentages clearly are in substantial compliance with this year's full time undergraduate population of38.3% males and 61.7% females. The roster management numbers set forth below represent the target squad numbers. Roster management is an accepted practice that has been approved by the Office for Civil Rights. As you will see, all are in keeping with reasonable squad numbers for the particular sports and, in my dealings with the Office for Civil Rights, have been deemed to be acceptable squad numbers.
In your analysis, you did not include the elevation of Women's Competitive Cheer to varsity
status. As you may know, Quinnipiac Women's Competitive Cheer has been a national contender for a number of years and just recently came in 6th place nationally. The department has decided to elevate competitive cheer to varsity status and is providing all services and support directed to varsity teams in keeping with relevant OCR guidance regarding the sport. The elevation of competitive cheer, along with the discontinuation of women's volleyball and the men's indoor track and golf teams place the overall program in the safe harbor of Prong I

Case 3:09-cv-00621-SRU Document 14 Filed 04/21/09 Page 4 of 6
'. .

April 15, 2009 Page 2
compliance. As noted in the Brown University decision, schools have the right to decide which programs to offer provided the overall participation offerings are in compliance with the law.

Team
Basketball Baseball Field Hockey Soccer Softball Tennis Lacrosse Cross Country Ice Hockey Indoor Track Outdoor Track Cheerleading

TOTAL %

Men
15 25
23
10
36 14 28 14 0
165
37.08%

Women
15
24 26 22 12 30 25 26 30 30 40
0 280 62.92%

With regard to your claims challenging the institution's EADA reporting, Quinnipiac is reviewing its submissions and will correct any errors ifthey exist. I do not see, however, how the EADA reporting issues you have alleged will have any impact on your clients' claims. They participated during the years you allege there to have been errors in the reports and would not provide them any avenue for a Title IX claim. I would also remind you that OCR and EADA participation definitions differ and that EADA numbers are not dispositive for purposes of a Title IX cause of action.
Reorganizations in the face of challenging economic times are difficult. While I appreciate your concern and the disappointment of those student-athletes and coaches involved, I do not agree that your clients have a viable Title IX claim. If you have any further questions, feel free to contact me at 207 776-4551.
Sincerely yours,

Janet P. Judge, Esq. Sports Law Associates LLC.

cc. J. McDonald L. Marottolo

Case 3:09-cv-00621-SRU Document 14 Filed 04/21/09 Page 5 of 6

JANET P. JUDGE ATTORNEY
.ijudge@sponslawassociates.com

po BOX 486
97 RANGE ROAD
CUMBERLAND, MAINE 04021
207-776-4551 • FAX 888-316-6757

April 16, 2009
CONFIDENTIAL ATTORNEY/CLIENf PRIVILEGE
Jonathan B. Orleans, Esq. 850 Main Street P.O. Box 7006 Bridgeport, CT 06601-7006
RE: Letter Dated March 27, 2009
Dear. Mr. Orleans:
Thank you for your letter ofMarch 27, 2009. Please be advised that I am representing Quinnipiac University with regard to this matter and ask that all correspondence and communication be directed to my attention.
As a result of the recent reorganization of the Department ofAthletics, Quinnipiac University is able to demonstrate that its athletics program is in compliance with Prong I ofTitIe IX's three part participation test. In short, as detailed below, Quinnipiac University will have approximately 165 male and 280 female student athletes in 2009-2010 which translate into 37.1% males and 62.9% females. These percentages clearly are in substantial compliance with this year's full time undergraduate population of38.3%males and 61.7% females. The roster management numbers set forth below represent the target squad numbers. Roster management is an accepted practice that has been approved by the Office for Civil Rights. As you will see, all are in keeping with reasonable squad numbers for the particular sports and, in my dealings with the Office for Civil Rights, have been deemed to be acceptable squad numbers.
In your analysis, you did not include the elevation of Women's Competitive Cheer to varsity status. As you may know, Quinnipiac Women's Competitive Cheer has been a national contender for a number of years and just recently came in 6th place nationally. The department has decided to elevate competitive cheer to varsity status and is providing all services and support directed to varsity teams in keeping with relevant OCR guidance regarding the sport. The elevation of competitive cheer, along with the discontinuation of women's volleyball and the men's outdoor track and golf teams place the overall program in the safe harbor of Prong I

Case 3:09-cv-00621-SRU Document 14 Filed 04/21/09 ....Page 6 of 6

April 16, 2009 Page 2
compliance. As noted in the Brown University decision, schools have the right to decide which programs to offer provided the overall participation offerings are in compliance with the law.

I
Team
Basketball Baseball Field Hockey Soccer Softball Tennis Lacrosse Cross Country Ice Hockey Indoor Track Outdoor Track Cheerleadlng

TOTAL %

Men
15 25
23
10 36 14 28 14 0
165 37.08%

Women
15
24 26 22 12 30 25 26 30 30 40 0 280 62.92%

With regard to your claims challenging the institution's EADA reporting, Quinnipiac is reviewing its submissions and wil1 correct any errors if they exist. I do not see, however, how the EADA reporting issues you have alleged will have any impact on your clients' claims. They participated during the years you allege there to have been errors in the reports and would not provide them any avenue for a Title IX claim. I would also remind you that OCR and EADA participation definitions differ and that EADA numbers are not dispositive for purposes of a Title IX cause of action.
Reorganizations in the face of challenging economic times are difficult. While I appreciate your concern and the disappointment of those student-athletes and coaches involved, I do not agree that your clients have a viable Title IX claim. If you have any further questions, feel free to contact me at 207776-4551.
Sincerely yours,

Janet P. Judge, Esq. Sports Law Associates LLC.

cc. J. McDonald L. Marottolo

 
 Case 3:09-cv-00621-SRU Document 41-2 Filed 05/14/09 Page 1 of 38
TABA

Case 3:09-cv-00621-SRU Document 41-2 Filed 05/14/09 Page 2 of 38

1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

* * * * * * * * * * * * * *

STEPHANIE BIEDIGER, KAYLA *

LAWLER, ERIN OVERDEVEST, *

and KRISTEN CORINALDESI, *

individually and on

*

behalf of all those

*

similarly situated; LESLEY RIKER on behalf

of

* *

her minor daughter, L.R., individually and on behalf of all those similarly situated; and ROBIN LAMOTT SPARKS individually,

* * * * * *

CIVIL ACTION NO. 3:09-CV-00621 (SRU)

Plaintiffs *

vs.

*

QUINNIPIAC UNIVERSITY,

*

Defendant

*

* * * * * * * * * * * * * * Bridgeport, CT

May 1, 2009

9:35 A.M.

DEPOSITION OF JOHN (JACK) McDONALD
APPEARANCES:
FOR THE PLAINTIFFS: PULLMAN & COMLEY, LLC BY: JONATHAN B. ORLEANS, ESQUIRE ALEX V. HERNANDEZ, ESQUIRE 850 Main Street Bridgeport, CT 06601-7006 - Cont'd -

Case 3:09-cv-00621-SRU Document 41-2 Filed 05/14/09 Page 3 of 38

Stephanie Biediger, et al v. Quinnipiac University

John (Jack) McDonald; 5/1/09

2

1

FOR THE DEFENDANT:

2

WIGGIN AND DANA LLP

BY: MARY A. GAMBARDELLA, ESQUIRE

3

ERICK I. DIAZ, ESQUIRE

400 Atlantic Street

4

Stamford, CT 06911-0325

5

ALSO PRESENT: ROBIN LAMOTT SPARKS

VICTORIA SCHNEIDER, Paralegal

6

Pullman & Comley

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

CAMPANO & ASSOCIATES COURT REPORTING SERVICES

203-846-3402

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1

A.

I don't know the answer to that.

2

Q.

Okay. Does the president -- Do you know

3

whether the president has some sort of veto power over

4

the budget even if the Cabinet approves it?

5

MS. GAMBARDELLA: Object to form.

6

You can answer.

7

A.

I don't know.

8

Q.

And do you know whether the budget needs to

9

be approved by the University's Board of Trustees or a

10

committee of the University's Board of Trustees?

11

A.

Yes, it does.

12

MS. GAMBARDELLA: Just hang on. Let him

13

finish so she can type it all. Otherwise her fingers by

14

the end of the day will be nonfunctioning.

15

Q.

Now, you said this year was somewhat

16

different

17

A.

Yes.

18

Q.

-- when you were talking about the budget.

19

Could you explain what you meant by that? What was

20

different about the budget process this year?

21

A.

Well, it's quite clear that things around the

22

world were different, that we were going to be asked to

23

reduce our budgets. And we could see that coming from

24

the whole year.

25

Q.

So is it correct, then, that you saw early in

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1

the year -- last fall, say -- that you were going to need

2

to reduce the Athletic Department budget for next year?

3

MS. GAMBARDELLA: Object to form.

4

You can answer.

5

A.

Yes.

6

Q .

Did anyone ever give you a target or goal of

7

how much you needed to reduce your budget?

8

A.

I think the first draft was probably a 5 to

9

10 percent reduction.

10

Q.

And was that 5 to 10 percent reduction on

11

your own initiative, or had someone said to you in words

12

or substance "Mr. McDonald, you need to cut it 10

13

percent"?

14

A.

It was a campus initiative.

15

Q.

So there was a campus initiative to cut

16

budgets 10 percent?

17

A.

Correct.

18

Q.

How was that campus initiative made known to

19

the department heads who were doing the budget?

20

A.

Through their supervisors.

21

Q.

So your supervisor said to you at some point

22

"We need to cut the budget 10 percent"?

23

A.

Correct.

24

Q.

And who was your supervisor this year?

25

A.

This year his name is Val Belmonte,

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1

B-e-1-m-o-n-t-e.

2

Q.

And approximately when did Mr. Belmonte tell

3

you that you needed to submit a budget with a 10 percent

4

reduction?

5

A.

Probably December, January when reality was

6

occurring.

7

Q.

And you submit that in writing?

8

MS. GAMBARDELLA: Submit what? Object to

9

form.

10

Q.

Did you submit your budget proposal

11

MS. GAMBARDELLA: Thank you.

12

Q.

in December in writing?

13

A.

Yes.

14

Q.

And in prior years when you've submitted

15

budget proposals, are they submitted in written form?

16

A.

It was the same, written electronic.

17

Q.

Yes. When I say "in written form," I mean to

18

include in an electronic form that can be printed. I

19

understand

20

A.

Correct.

21

Q.

-- that it may be an Excel spreadsheet or a

22

Word document or something like that, okay?

23

A.

Yes.

24

Q.

And then this year after you submitted that

25

first draft with a 10 percent reduction, can you describe

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1. to me what happened with respect to that budget proposal?

2

A.

I think that the first proposal was one --

3

and I think I've said this to the staff many times as we

4

were watching the stock market do its slide -- that our

5

goal was to save sports and to save people. And we did

6

everything we could in the first proposal that would --

7

we spread the reduction across all sports, a game here,

8

one less overnight, just normal budget reduction kinds of

9

things that everybody shared in.

10

Q.

Was there a reaction then from your

11

supervisor or from the Cabinet to that initial 10 percent

12

reduction proposal?

13

A.

At the time it was considered a very good

14

proposal. In fact, many other institutions and colleges

15

that are in our world were copying it; but at the same

16

time in conjunction with that, the stock market, the

17

banks, you know, in January things were still happening,

18

new president, the whole world was still falling apart.

19

So when we first submitted our proposal, we felt good

20

about it.

21

Q .

Let me ask you, did that first proposal

22

and we're talking about the proposal for the 2009/2010

23

academic year, correct?

24

A.

Correct.

25

Q.

Did that first proposal for the '09/'10 year

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1

call for the elimination of the volleyball program?

2

MS. GAMBARDELLA: Object to form.

3

You can answer.

4

A.

No.

5

MS. GAMBARDELLA: Your answer can stand.

6

Q.

Did it call for the elimination of any

7

varsity sports sponsored by Quinnipiac?

8

A.

No.

9

Q.

All right. You testified that at the time it

10

was considered a good proposal. Did there come a time

11

when you were instructed to make a proposal for further

12

cuts?

13

A.

Yes.

14

Q.

Approximately when was that?

15

A.

I would say school and classes in the world

16

of academia kicks up again second semester when

17

everybody's back that third week in January. Everybody

18

starts meeting again, the Athletic Department, the

19

University Cabinet. So it was probably sometime after

20

the classes began; usually that's after Martin Luther

21

King holiday that -- and then there's trustee meetings

22

that's usually in there that people review the proposed

23

budgets and what

are they acceptable? Are they

24

realistic? So I'd say the answer to your question is it

25

began around January.

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1

Q.

Okay. Who instructed you that you needed to

2

submit a proposal with further cuts?

3

A.

My direct supervisor, Val Belmonte.

4

Q.

Okay. What

Did he give you this

5

instruction in a conversation?

6

A.

Yeah.

7

Q.

Okay. Tell me in as much detail as you can

8

recall the conversation between you and Mr. Belmonte

9

about

Excuse me. I'm sorry. I apologize for that.

10

(Discussion off the record.)

11

Q.

Let me rephrase the question that I was in

12

the middle of. Could you please tell me in as much

13

detail as you can recall the conversation between

14

yourself and Mr. Belmonte during which he instructed you

15

to make a new budget proposal with further cuts?

16

A.

Well, at a meeting sometime January, early

17

February, it was

I was told, the University was told

18

that the proposals that were submitted earlier were not

19

enough and that we needed to look even further into more

20

reductions and both in -- and, again, all phases of our

21

budgets. And in the world of athletics and recreation

22

the three phases of our budgets are operating, salaries

23

and scholarships. Tnat's just the way we measure

24

ourselves, and so we needed to look again.

25

Q.

You say this was at a meeting. Were there

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1

other people at this meeting besides yourself and Mr.

2

Belmonte?

3

A.

No.

4

Q.

Where did this conversation with Mr. Belmonte

5

take place?

6

A.

In his office. We have a new campus now, so

7

there's a York Hill campus and the Mount Carmel campus.

8

Q.

Does he have an office in the new athletic

9

facility?

10

A.

Yes.

11

Q.

What's the name of that?

12

A.

It's called the TD Banknorth Sports Center.

13

And I think that name is changing because TD Bank is

14

changing at the moment.

15

Q.

Did Mr. Belmonte give you any instructions in

16

this conversation as to how you should make the cuts?

17

MS. GAMBARDELLA: Object to form.

18

You can answer.

19

A.

Yes.

20

Q.

What did he say about that?

21

A.

He did mention that sports were now on the

22

block.

23

Q.

Did he suggest any specific sports that you

24

ought to look at?

25

A.

Yes.

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1

Q.

What did he suggest?

2

A.

Volleyball was clearly one. That was the

3

specific one.

4

Q.

He didn't mention any others besides

5

volleyball?

6

A.

Yes, he did.

7

Q.

What other sports?

8

A.

It was men's golf.

9

Q.

Did he say anything about why he was

10

suggesting that volleyball and men's golf be considered

11

to be cut?

12

A.

There is a history with Quinnipiac's growth

13

that clearly involves the TD Banknorth Sports Center and

14

the vacated gym that our basketball teams used to play in

15

and our volleyball team did play in. And there was a

16

desire and questions and proposals were flying on campus

17

as what are we going to do with the old gym? And clearly

18

our volleyball team along with our intramural programs,

19

recreation programs were still using the old gym.

20

And we successfully lobbied to say that if

21

the new -- old gym needed to be used by

I know people

22

wanted everything from auditoriums, their chapel to

23

office space, if that space was needed that badly that we

24

needed the place for our volleyball team. And we have

25

successfully included a new volleyball arena or gym into

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1

our master plan -- this was probably through -- oh, over

2

the last year before gas got to four bucks a gallon, say

3

somewhere last '07, '08 it was in the plans.

4

And we literally were walking different areas

5

and asking the coach "What's the space you need for a

6

decent court?" And then the economy went south, and the

7

ability to build that extra gymnasium for volleyball went

8

away. And then that's sort of why it became a sport that

9

was discussed.

10

Q.

Did Mr. Belmonte say something then about the

11

loss of the old gym for volleyball and cutting the

12

volleyball program because there wouldn't be a space for

13

it? Was that the tenor of what he said to you in the

14

meeting you've described?

15

A.

It was -- Yes. There was a lot of -- That

16 was a

That was discussed, yes.

17

Q.

Does the University currently plan to do

18

something with the old gym? Do you know what the plan

19

is?

20

A.

I know the plan is to use it for something

21

else that obviously would not include volleyball, but

22

that hasn't happened.

23

Q.

Will there need to be modifications made to

24

the space in order to use it for something else?

25

A.

I don't know because I am not part of those

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1

plans.

2

Q.

Do you know what the something else is that

3

it's planned to use it for?

4

A.

There's a wide range of things. Many of them

5

are nonathletic.

6

Q.

So since -- The largest room in that facility

7

is a gymnasium, isn't it?

8

A.

In the current facility there are two large

9

structures. There is the gymnasium where volleyball

10

currently plays, and then there is a four-tennis-court

11

field house. It's actually larger in terms of playing

12

space.

13

Q.

In order to convert either of those spaces to

14

office space, there'd have to be some construction

15

undertaken, I presume.

16

A.

Correct.

17

Q.

Okay. You know anything about the

18

availability of financing for any conversion of that

19

facility?

20

A.

No.

21

Q.

Could volleyball be played in the TD

22

Banknorth basketball facility?

23

A.

I'm sure, yes.

24

Q.

Did you discuss that with Mr. Belmonte, the

25

fact that volleyball could be played in the TD Banknorth

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facility?

2

A.

Yes.

3

Q.

What did you say and what did he say about

4

that subject?

5

A.

Just not sure of the exact things said when;

6

but clearly the theme of the conversation was that we

7

need to do everything we can not to drop sports, whether

8

it be playing volleyball in its current place and

9

configure the gymnasium around it, whether to play

10

volleyball in the rec center, to play volleyball in the

11

new building.

12

We talked about

There was a decision when

13

the TO Banknorth Sports Center was programmed and

14

designed back 2001, 2002 when you start laying out what

15

you're going to do, there was a decision to not play

16

volleyball then at -- then. So there ate some things

17

that -- locker rooms and things you need to do with.the

18

court; but so that was decided seven, eight years ago

19

knowing that we had volleyball in the current gymnasium.

20

Q.

But if I understood the testimony you gave

21

just a minute ago, it would certainly be possible to play

22

volleyball in the TD Banknorth gymnasium if the decision

23

were made to do that.

24

MS. GAMBARDELLA: Object to the form.

25

You can answer.

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1

A.

Well, clearly as sports became apparent that

2

we were going to be dropping sports, the

and clearly

3

because volleyball was mentioned by Mr. Belmonte that

4

there is a whole 'nother criteria that needs to be met

5

when dropping sports, particularly women's sports and

6

then all of a sudden -- not all of a sudden but

7

immediately if the sports were going to be dropped that

8

the gender numbers became critical, mandate.

9

Q.

So you had to consider Title IX, in other

10

words; is that right?

11

A.

Absolutely.

12

Q.

When you talked with Mr. Belmonte about this,

13

did you and Mr. Belmonte discuss Title IX?

14

MS. GAMBARDELLA: Just

I just want to

15

instruct you you should not be answering with respect to

16

any conversations in which counsel were present or

17

conversations where advice of counsel is the content of

18

the communication. Otherwise you should be -- you're

19

free to answer the question.

20

MR. ORLEANS: Yes. I don't mean to

21

certainly intrude on any attorney/client privilege. I'm

22

not asking for the content of any communications with

23

attorneys, but I do think I'm entitled to know if there

24

were conversations at which attorneys were present.

25

MS. GAMBARDELLA: You are entitled. I'm

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just instructing him because he may not understand what

2

you and I already know you weren't trying to do 1 okay?

3

So do you understand the instruction 1

4

Jack?

5

THE DEPONENT: No.

6

MS. GAMBARDELLA: He's asking you

7

Can you repeat the question? And we'll

8

go forward from there.

9

(Whereupon, the requested portion of

10

the record was read by the reporter.

11

MS. GAMBARDELLA: That's a Yes or a "No."

12

A.

Yes.

13

Q.

Let me try and clarify the question. At the

14

meeting with Mr. Belmonte that you've been testifying

15

about already where he told you that you needed -- in

16

words or substance that you needed to consider cutting

17

volleyball 1 you've already testified that nobody else was

18

present at that meeting 1 correct?

19

A.

Yes.

20

Q.

At that meeting did you and Mr. Belmonte

21

discuss Title IX?

22

MS. GAMBARDELLA: I'm going to object to

23

the form of the question only because of the way you keep

24

couching it. I don't think it's actually accurate based

25

on his testimony 1 but that's just a reservation for a

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1

form.

2

MR. ORLEANS: That's fine.

3

MS. GAMBARDELLA: But you can answer that

4

question. Mr. Orleans is talking about the initial

5

meeting, okay?

6

A.

Answer to that's "Yes."

7

Q.

Can you tell me the substance of the

8

conversation you had with Mr. Belmonte outside of the

9

presence of any counsel about Title IX?

10

MS. GAMBARDELLA: And without repeating

11

counsel's advice, something you got from counsel. You're

12

just talking discussions with him and you as lay people

13

about Title IX and what your understanding is you need to

14

do, that's fair game.

15

THE DEPONENT: I don't understand the

16

reference to counsel at this point in the calendar.

17

MS. GAMBARDELLA: Attorney.

18

MR. ORLEANS: I think we're talking about

19

Janet Judge, aren't we?

20

MS. GAMBARDELLA: I don't think so. Can

21

I just voir dire for one second?

22

MR. ORLEANS: Absolutely. Go ahead.

23

MS. GAMBARDELLA: Did you consult with

24

any attorneys at Quinnipiac prior to the point we're

25

talking about where you and Val are having these initial

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discussions?

2

THE DEPONENT: At this point in the

3

process, there was no attorneys.

4

MS. GAMBARDELLA: Okay. Then you can go

5

and ahead and answer the question.

6

Q.

So yes. So my question is at this point in

7

the process before there were any attorneys involved,

8

what was the substance of your discussion with Mr.

9

Belmonte about Title IX?

10

MS. GAMBARDELLA: That's fine. You can

11

answer.

12

A.

That, as I just said, the proportional

13

numbers are now critical, mandated that we as an

14

institution need to be loo~ing at.

15

Q.

So following that, then, did you undertake

16

some process to consider the requirements of Title IX as

17

you went about looking at the budget?

18

A.

When you say "prior," it's open-ended,

19

meaning that it's part of our business for 19 years as an

20

athletic director that everything you do -- and, again,

21

it's not just Title IX. It's diversity and it's gender,

22

and it's all sorts of things that you need to do in any

23

professional organization; that whenever you have a new

24

initiative, these things need to be adhered to. So when

25

it became apparent that a dropping of a sport was now

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1

looming as a very real possibility that it was my role

2

and/or the University's role to understand the

3

implications of dropping of a sport.

4

Q.

And what did you then do in order to,examine

5

that question?

6

A.

I then through

told Mr. Belmonte that we

7

need to really look at the implications of dropping a

8

woman's sport to the point of writing a memo to him that

9

I hope he would share with the University Cabinet, that

10

if this is the direction we needed to go in, these are

11

the other things we need to be aware of.

12

Q.

So you wrote a memo to Mr. Belmonte about

13

that?

14

A.

Correct.

15

MR. ORLEANS: Has that memo been

16

produced?

17

MS. GAMBARDELLA: No, that's work

18

product. That's in anticipation of potential litigation.

19

I don't want to argue with it now. We'll argue about it

20

later. It hasn't been produced, and I'm not going to let

21

him testify about the content either, and I can voir dire

22

him as well. But he and I went through the circumstances

23

under which that was written. Those memos are written in

24

anticipation of protecting the University against

25

potential claims.

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about it.

31 MR. ORLEANS: I'm not going to argue

3

Q.

Did you consult with an attorney before

4

writing that memo?

5

A.

No.

6

Q.

So you wrote it out of your own knowledge?

7

MS. GAMBARDELLA: Object to form.

8

Go ahead.

9

A.

Yes.

10

Q.

Did you -- What was the purpose of the memo?

11

A.

To state in writing the importance of -- that

12

we must adhere to the policies of the Office of Civil

13

Rights, the Department of Ed.

14

Q.

And to whom did you send this memorandum?

15

A.

Val Belmonte.

16

MR. ORLEANS: I'm going to ask that that

17

memorandum be produced.

18

MS. GAMBARDELLA: I know you are.

19

20

record.

MR. ORLEANS: I just want it on the

21

MS. GAMBARDELLA: We will argue about it.

22

MR. ORLEANS: Oh, yes, we will.

23

MS. GAMBARDELLA: Be-all and end-all is

24

not whether he consulted with an attorney just before he

25

wrote it, so we can argue about work product --

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MR. ORLEANS: The work product doctrine

2

protects attorney work product.

3

MS. GAMBARDELLA: Also -- It also

4

protects work product created in anticipation of

5

potential litigation.

6

MR. ORLEANS: By attorneys.

7

MS. GAMBARDELLA: We will discuss it.

8

Q.

What happened -- Well, withdrawn. You gave

9

that memo to Mr. Belmonte?

10

A.

Yes.

11

Q.

Did you deliver it to anyone else as well?

12

A.

No.

13

Q.

What was Mr. Belmonte's response to that

14

memorandum?

15

A.

That he would bring it to the Cabinet.

16

Q.

Okay.

17

MS. GAMBARDELLA: Let me just say for the

18

record we'll talk about it later without waiver of my

19

objection. It's a harmless memo. I may produce it.

20

What I don't want is any construed waiver of anything

21

else. My concern is not about this particular document;

22

it's a harmless document. What my concern is that the

23

other side

that the plaintiffs will suggest we've

24

waived other, you know, protections about other things

25

which I don't know where you were going with this so just

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1

state for the record. We can discuss it at the break.

2

MR. ORLEANS: Fine.

3

Q.

I'm sorry. I've lost my train of thought.

4

You gave the memo to Mr. Belmonte. And I'm sorry if I've

5

asked you this already, but what was his response then to

6

the memo?

7

A.

That he would bring it to --

8

Q.

That's right.

9

A.

-- the University Cabinet.

10

Q.

What happened next with respect to this

11

process of -- Withdrawn. Is it fair for me to describe

12

the process that you were going through at this point as

13

attempting to insure that the University would comply

14

with Title IX in whatever you did?

15

A.

Yes.

16

Q.

So what happened next in that process, the

17

Title IX process?

18

A.

Okay. The time line may get a little murky,

19

so I apologize for that.

20

Q.

Just do your best. I'm not looking for exact

21

dates.

22

A.

Okay. It was very apparent that we were

23

going to be dropping sports and in this case particularly

24

volleyball. And at some point, number 1, we enlisted the

25

support and counsel of Janet Judge. And also what was

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1

going on, Jon, is other universities were also dropping

2

sports. I think you might be familiar with some of them.

3

For example, in this particular conversation was

4

University of Vermont dropped baseball and softball. So

5

the athletic director again, a colleague in the business,

..

6

Bob, tell me how are you doing? How are your numbers?

7

That's the sort of the things we talk about.

8

He explained to me that

I says, "Bobby,

9

you know you -- you got to -- you know, prongs 2 and 3

10

are gone. You need to hit prong 1." He said, "We're

11

there." So i t was just a affirmation ~f what I had been

12

proposing.

13

We then had enlisted the counsel of Janet

14

Judge. We then had the meeting with the University

15

Cabinet which I was involved with. Again, dates, this

16

was all probably February. And we had a discussion,

17

again, we need to hit our proper numbers, proportional

18

numbers if we're going to drop this sport. And there was

19

significant, you know, struggle, strife. And it would

20

come down to we're not going to make it. What else can

21

we do? And my answer was always, well, let's not drop

22

volleyball. So we discussed it and finally agreed to

23

hitting the right numbers.

24

Q.

Okay. And when you say "we" discussed it,

25

who's the "we"?

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1

MS. GAMBARDELLA: You don't have to. As

2

long as we all agree we're talking about competitive

3

cheer, Jonathan, we're not going to --

4

MR. ORLEANS: I will try to use the term

5

"competitive cheer" without any waiver of any of

6

plaintiffs' positions in that respect.

7

Q.

Did someone at this meeting suggest that you

8

could make the numbers by making competitive cheer a

9

varsity sport?

10

A.

To finish the theme of that meeting, and it

11

was very important for me to achieve this, was that the

12

University needed to know that the numbers were now

13

critical, mandated, important. And the university senior

14

administration needed to buy into that first. That was

15

the thing we needed to say, that if we're going to drop

16

sports, particularly a women's sport, that prong l needed

17

to be met. Okay, that was the first discussion. And

18

that took a while. But once we've achieved the

19

commitment to the number, then there was a series of

20

discussions that began particularly the men's sports that

21

needed -- that needed to be dropped. Okay?

22

Q.

Okay.

23

A.

So the decision was made to drop men's golf

24

which had a

which was a first step for both

25

budgetary

for additional budgetary reasons,

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41
competitiveness. So that was decided upon.

Q.

Okay.

A.

There was a decision on campus -- There were

two possible women's sports because we clearly needed

more women's opportunities. There were two sports that

were significantly discussed. And one was competitive

cheer and the other one was women's rugby, both of whom

have similar roster sizes.

Q.

Who was involved in these discussions that

we've been describing?

A.

The discussions of what new sports to add was

some senior administration people in the Athletic

Department and then obviously the people I just mentioned

that

at this meeting.

Q.

Can you give me the -- Other than the people

than the vice presidents whom you named who were at the

meeting in

you said in February?

A.

Yes.

Q.

Who were the senior people in the Athletics

Department who were involved?

A.

Tracey Flynn, who you'll meet later today,

and Bill Mecca, M-e-c-c-a, who was the Senior Associate

Director of Athletics. So we carne with the possibility

of competitive cheer or women's rugby.

Q.

Who was the source of competitive cheer as an

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3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

42 option?

A.

The competitive cheer team. They have

with us for my whole 14 years. They have competed

successfully.

been

Q.

Is there a -- Prior to the decision process

that you've been describing, was there a distinction at

Quinnipiac between cheerleading and competitive cheer?

MS. GAMBARDELLA: Object to form.

You can answer.

A.

Yes. And I would refer to it that the same

group would do both. They would cheer at basketball

games; they would also participate in anywhere from two

to four competitions a year, one of which was the

national championship.

Q. that.

When you refer to the --We'll come back to

you've events

Again, prior to the decision-making process been describing, would the cheer squad cheer at other than basketball games?

MS. GAMBARDELLA: Object to the form. You mean when they're just the cheerleaders?

MR. ORLEANS: He just testified that prior to this decision to make competitive cheer a varsity sport, it was all the same group.

MS. GAMBARDELLA: That was doing both.

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MR. ORLEANS: That did both, that

2

competed and cheered --

3

MS. GAMBARDELLA: Okay.

4

MR. ORLEANS:

at games, and I think he

5

mentioned basketball games, and I'm just trying to

6

determine whether there were other events that they

7

cheered at.

8

MS. GAMBARDELLA: Okay. Thank you.

9

A.

Midnight Madness, maybe a hockey game once in

10

a while but

11

Q.

12

rallies?

Were there any kind of, I don't know, spirit

13

A.

Well, Midnight Madness is a spirit rally.

14

Q.

Were there typically spirit rallies other

15

than the Midnight Madness event from time to time?

16

A.

No.

17

Q.

Now, getting back to the decision-making

18

process that you've been describing to get into

19

compliance with Title IX, I think you said the

20

competitive cheer team was the source of the idea to make

21

competitive cheer a varsity sport.

22

MS. GAMBARDELLA: Object to form.

23

You can answer.

24

Q.

I might be wrong. I'm trying to understand

25

what your testimony is. Where did the proposal come

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from? is my question.

A.

They -- As long as they have been here, they

have

Let me go back to the NCAA certification process

that we sort of get

it's a natural self-study that we

conduct on a university. It's like a university's

accreditation process.

Q.

Well -- And, in fact, there's a written

self-study document, isn't there?

A.

Yes.

Q. it?

And it's available on your Web site, isn't

A.

Yes.

Q.

Go ahead.

A.

That discovered that one of the priorities in

our whole -- in this particular situation was to improve

opportunities for women by 4 to 7 percent over the next

few years or until the next certification process begins.

There was much discussion amongst official and unofficial

regarding how are we going to do that, and competitive

cheer was discussed along with women's volleyball and

women's golf and bowling. And there's a series of

emerging sports for women that have been corning on line

since Title IX started 30 years ago. So there was a

series of sports that were discussed as possibilities.

And competitive cheer in conjunction with that was a

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1

group that was competitive cheering. They were doing it

2

probably for a good six years, maybe more.

3

Q.

Are you referring to the group at Quinnipiac,

4

or are you referring to some --

5

A.

The group at Quinnipiac was cheering and

6

competing. And we had provided them with a trainer; we

7

provided them with the proper safety mats for the floor.

8

We had been doing a lot of things for them.

9

Q.

Okay. When was the NCAA, the self-study that

10

you've been describing, the certification?

11

A.

The document was approved in May of 2006.

12

The study before that was essentially two years before

13 that.

14

Q.

And when does -- You made a reference to the

15

"next time" you have to recertify?

16

A.

2015, but --but we do an annual audit.

17

There has been a person appointed by the NCAA that is

18

responsible to see how we do each year as we progress and

19

in this particular case, you know, what are your numbers.

20

Q.

Who is the person that you're referring to?

21

A.

It's Jill Martin.

22

Q.

Jill Martin?

23

A.

Right.

24

Q.

And she's an NCAA employee?

25

A.

She is a faculty member in the -- actually in

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1

along.

2

Q.

Mm-hmm.

3

MS. GAMBARDELLA: He's a smart guy.

4

A.

Okay. The decision was made

5

MR. ORLEANS: You can fool some of the

6

people some of the time, you know.

7

MS. GAMBARDELLA: And if he's not

8

following you, the hell with it.

9

MR. ORLEANS: All right.

10

THE DEPONENT: With a name like Orleans,

11

I certainly know he's following.

12

MS. GAMBARDELLA: You got to be careful.

13

A.

So the decision was made that competitive

14

cheer was going to be the sport that would be added in

15

this economic reorder of the athletic department, okay?

16

Q.

And that was a group decision or --

17

A.

Yes.

18

Q.

Okay.

19

A.

Yes, which I support. Okay. In addition to

20

that, as we were again with the spreadsheet putting in

21

numbers, pluses here, minuses there, we were still short.

22

And the decision was made to drop men's outdoor track.

23

And that

well, it didn't go over well with me

24

personally. I'm a track guy by trade. I'm in this

25

business because of my experience in track and field.

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caught with a time or two, but it's not traditional that

2

cheerleading is practiced anywhere else but.

3

Q.

And does Quinnipiac have the necessary

4

facilities and equipment currently to support the

5

proposed varsity competitive cheer team?

6

A.

Do we have

7

Q.

The facilities and equipment currently to

8

support the

9

A.

We've had them, yes.

10

Q.

Is there something called a spring floor

11

that's used in competitive cheer?

12

A.

There may be. I know being at the University

13

of Denver we had competitive gymnastics, and there was a

14

spring floor.

15

Q.

Does Quinnipiac have a spring floor?

16

A.

We do not and nor has anybody asked us for

17

one.

18

Q.

Okay. Does anyone associated -- Withdrawn.

19

In the decision-making process that you've been

20

describing that occurred over the month of February, did

21

anyone affiliated with the existing competitive cheer

22

team request that competitive cheer be elevated to a

23

varsity sport?

24

A.

It has been requested for that whole five- or

25

six-year process as they -- number 1, we were looking at

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increasing our opportunities; number 2, we went through

2

certification and number 3, they were competing

3

nationally.

4

Q.

And requested by whom?

5

A.

The coach particularly. That's who -- she

6

reports to us.

7

Q.

And so over the last several years, then, the

8

coach has requested that competitive cheer be made a

9

varsity sport?

10

A.

Yes.

11

Q.

And that's the current coach?

12

A.

Yes.

13

Q.

Has she ever done that in writing?

14

A.

No.

15

Q.

You mentioned emerging sports for women. Is

16

competitive cheer recognized by the NCAA as an emerging

17

sport for women?

18

A.

No.

19

Q.

Is competitive cheer a sport recognized by

20

the Northeast Conference?

21

A.

No.

22

Q.

Is competitive cheer a sport recognized by

23

any intercollegiate athletics conference?

24

MS. GAMBARDELLA: Object to form.

25

You can answer.

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offered to honor the athletic scholarships of current

2

members of the volleyball team who decide to stay at

3

Quinnipiac?

4

A.

That's correct.

5

Q.

And will Quinnipiac honor those scholarships

6

for -- through graduation for those students?

7

A.

Yes.

8

Q.

Okay.

9

A.

Provided

and I'm going to just say this as

10

I would say to anybody in any sport -- they remain to be

11

good citizens. I mean, it's the same as if they were on

12

the volleyball team, if they do good in school, they --

13

you understood? There's nothing different than any other

14

athlete.

15

Q.

Now, what about current high school seniors

16

who had been offered scholarships, athletic scholarships

17

to come to Quinnipiac and play volleyball, did you offer

18

to honor those schola~ships?

19

A.

That's a fair question, and I'm not saying I

20

don't know because I want to say no. I just don't know

21

because I don't know the rule. But if you don't mind

22

asking Tracey Flynn that question as well. If we need

23

to, we will. I just don't know that --what the policies

24

are for student athletes who have signed a National

25

Letter of Intent. We clearly would release her because,

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you know, the National Letter of Intent, she's bound to

2

Quinnipiac. But if she wanted -- Like for example, when

3

we change coaches, we sometimes release student-athletes

4

to go to another school even though they're bound to

5

Quinnipiac. The answer to your question, if need be, we

6

would. I just don't know --

7

MS. GAMBARDELLA: She'll know the answer.

8

Q.

Okay. We'll ask Ms. Flynn. But just let me

9

follow up a little bit on this. It's your understanding

10

that if a prospective student has signed the National

11

Letter of Intent, Quinnipiac would release them so that

12

they could go elsewhere?

13

A.

Correct.

14

Q.

What about a student who has not signed a

15

National Letter of Intent but has made a verbal

16

commitment to Quinnipiac and has had a verbal offer of a

17

scholarship, would Quinnipiac honor the scholarship offer

18

for that student?

19

MS. GAMBARDELLA: Object to form.

20

You can answer and no guessing.

21

A.

No. It probably won't be a "Yes" or "No"

22

answer. But I think I'll just go with my -- and I

23

haven't dropped sports before, so I'm going to go-- But

24

I would tell you or any -- If any coach were to leave, I

25

always ask them -- in this case, Robin -- who have you

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last 10 days there's a competitive cheer -- because of

2

the recruitment by Admissions is constant, we have added

3

competitive cheer as a woman's sport on this Web site

4

that you referred to.

5

Q.

Okay.

6

A.

And in there it has all of the same features

7

that we give to all the other varsity sports: roster

8

schedule, stats, pictures, ya-da-ya-da-ya-da. We've

9

already scheduled four to six varsity competitions, some

10

at home, some away.

11

Q.

Just before you go on, how does that compare

12

to the number of competitions that the cheer squad, the

13

competitive cheer squad had this year?

14

A.

Probably double. And, again, I say that with

15

a little bit of trepidation not knowing the exact

16

numbers. But it's significant.

17

Q.

It's more?

18

A.

Yes.

19

Q.

Other than the change in the Web site and the

20

addition of competitions, are there any other changes

21

A.

Well

22

Q.

contemplated?

23

A.

there's the salary of the coach is still

24

in proposal phase. The scholarships I mentioned is still

25

in proposal phase.

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Q .

Let me just ask, the coach currently is

2

how many coaches are there currently?

3

A.

Two.

4

Q.

Part-time or full time?

5

A.

Part-time.

6

Q.

Both part-time?

7

A.

Yes. One pays $20,000, and one paid three or

8

three thousand.

9

Q.

Okay. Is that a reflection of the amount of

10

time each one spends?

11

A.

It's as much as we give our golf coach who's

12

also varsity. So I would say yes. It's --And if you

13

don't mind me backing up, as we went Division I in all

14

sports 10 years ago, we have been adding all of these

15

people to be full time. It's just you can't do it all in

16

one fell swoop.

17

Q.

Is it proposed that the competitive cheer

18

coach will be full time next year?

19

A.

It's proposed.

20

Q.

But it hasn't been approved yet?

21

A.

Correct. And I say that to

even to the

22

cheer coach that till you see a contract in your hand,

23

it's proposed.

24

Q.

All right. Web site, competitions, proposed

25

full-time coach. Any other changes contemplated in the

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cheer program?

2

A.

There's a proposal for some safe travel

3

budget, you know, a bus instead of vans or their own

4

cars.

5

Q.

If the budget were to be approved, current

6

proposed budget, how would the expenditure on competitive

7

chaerleading next year compare to the expenditure on

8

volleyball this year?

9

MS. GAMBARDELLA: Object to form.

10

You can answer, Jack.

11

A.

It would be less.

12

Q.

How much less?

13

A.

You talking all three phrases that we talked

14

about?

15

Q.

Yes.

16

A.

Like salaries, scholarship and operating?

17

Q.

Yes.

18

A.

Well, obviously five scholarships is 50,000

19

bucks apiece. That's just round numbers; it's 46 or

20

something. But let's say 50 for round numbers. The

21

operating budget of volleyball was around 70. The

22

salaries, you know, the new coach won't be as much as

23

Robin was. And so it's going to be less. Now, again,

24

with my experience as of the development of programs,

25

could it be up there where volleyball was? It probably

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will be the same as soccer and baseball and softball, but

2

for '09/'10 it won't be.

3

MR. ORLEANS: I'm going to ask that that

4

budget proposal be produced.

5

MS. GAMBARDELLA: Which budget proposal?

6

MR. ORLEANS: Well, all of them.

7

MS. GAMBARDELLA: We've objected to that,

8

so the judge will have to rule on that.

9

MR. ORLEANS: Certainly the most recent

10

one which describes the current plan for cheer for next

11

year, I think.

12

MS. GAMBARDELLA: Oh, that would be

13

When we're done, we can discuss, yes, the relevance of

14

that, yes.

15

(Discussion off the record.)

16

Q.

When the cheer team competes at horne in the

17

corning year, where will those competitions be held?

18

A.

They'll be at the Burt Kahn Court, the old

19

gym. I'm sorry. And there'll be one

we're still

20

working on it, but there probably be one in December in

21

the TD Banknorth. Still tentative as is all our

22

schedules at this point.

23

MR. ORLEANS: Seven.

24

(Whereupon, Web site cheerleading March 27, no

25

Bates stamps, was marked as Plaintiffs' Exhibit 7 for

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2

Case 3:09-cv-00621-SRU Document 41-3 Filed 05/14/09 Page 2 of 9

1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

* * * * * * * * * * * * * *

STEPHANIE BIEDIGER, KAYLA *

LAWLER, ERIN OVERDEVEST, *

and KRISTEN CORINALDESI, *

individually and on

*

behalf of all those

*

similarly situated; LESLEY RIKER on behalf

of

* *

her minor daughter, L.R., individually and on behalf of all those similarly situated; and ROBIN LAMOTT SPARKS individually,

* * * * * *

CIVIL ACTION NO. 3:09-CV-00621 (SRU)

Plaintiffs

*

VS.

*

QUINNIPIAC UNIVERSITY,

*

Defendant

*

* * * * * * * * * * * * * *

Bridgeport, CT

May 1, 2009

2:50 P.M.

DEPOSITION OF TRACEY FLYNN
APPEARANCES:
FOR THE PLAINTIFFS:
PULLMAN & COMLEY, LLC BY: ALEX V. HERNANDEZ, ESQUIRE
JONATHAN B. ORLEANS, ESQUIRE 850 Main Street Bridgeport, CT 06601-7006
- Cont'd -

Case 3:09-cv-00621-SRU Document 41-3 Filed 05/14/09 Page 3 of 9

. ...;,:.~:. : . ·.·

.. ."·~

Stephanie Biediger, et al v. Quinnipiac University

Tracey Flynn; 5/l/09

2

1

FOR THE DEFENDANT:

2

WIGGIN AND DANA LLP

BY: MARY A. GAMBARDELLA, ESQUIRE

3

ERICK I. DIAZ, ESQUIRE

400 Atlantic Street

4

Stamford, CT 06911-0325

5

ALSO PRESENT: ROBIN LAMOTT SPARKS

VICTORIA SCHNEIDER, Paralegal

6

Pullman & Comley

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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Tracey Flynn; 5/1/09

18

1

the factors that's looked at in Title IX?

2

A.

It is -- Yes.

3

Q.

Okay. And the fact that they were cutting

4

the women's volleyball team, did you understand that that

5

would -- could potentially create Title IX issues for the

6

University?

7

MS. GAMBARDELLA: Object to form.

8

·You can answer.

9

A.

10

Yes.

"Potentially" is a key word in your question.

11

Q.

So you were aware of that?

12

A.

Yes.

13

Q.

All right. And were there any discussions at

14

that meeting, that first meeting with Billy Mecca, Jack

15

McDonald and you about the University's Title IX

16

compliance in light of this decision to cut women's

17

volleyball?

18

A.

Yes.

19

Q.

Okay. Who raised the issue of the

20

University's Title IX compliance at the meeting?

21

(Whereupon, Attorney Orleans joined the

22

proceedings.)

23

A.

I did.

24

Q.

You did? Okay. Can you tell us what it is

25

that you said about Title IX compliance at that meeting?

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Tracey Flynn; 5/1/09

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1

A.

It was in the area that if we're going to cut

2

a women's sport, we're going to have to at least cut a

3

men's sport.

4

Q.

And what was the reaction of the other people

5

in the room?

6

MS. GAMBARDELLA: Object to form.

7

You can answer.

8

A.

I believe they understood -- they understood,

9

comprehended what I was saying.

10

Q.

And is it your testimony that you're the

11

person who raised this issue about having to adjust the

12

numbers for the men's teams?

13

14

meeting?

MS. GAMBARDELLA: You mean during that

15

Q •.

During this meeting.

16

MS. GAMBARDELLA: You can answer that.

17

A.

I was the one that raised that if we're going

18

to cut a women's sport, we're probably going to have to

19

cut a men's sport, yes.

20

Q.

And what was Billy Mecca's reaction?

21

22

this.

MS. GAMBARDELLA: She's already answered

23

You can answer again.

24

A.

I think they both -- I believe he understood

25

and comprehended what I was saying.

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1

A.

Correct.

2

Q.

Isn't it also correct that Quinnipiac in

3

instituting roster management was thereby announcing a

4

goal to achieve compliance through prong 1 over the

5

years? Would that be correct?

6

A.

Yes.

7

Q.

All right. Have you witnessed or observed a

8

change in the commitment from the coaches throughout the

9

past few years since the institution of roster

10

management?

11

A.

Yes.

12

Q.

Okay. How would you describe the commitment

13

now, at least going forward for next academic year, of

14

the coaches?

15

A.

Well, I know that the

I've been -- the

16

coaches have been asking what their numbers are for next

17

year. They want to -- They're trying to make sure that

18

they're on track and if they've got to make any kind of

19

adjustments, so that's actually been kind of ongoing.

20

And I just asked the Athletic Director the other day

21

again, you know, "When are we going to tell these coaches

22

their numbers?" And he was, well, we really should wait

23

to see what the court -- how this all plays out.

24

Q.

Okay. So the final numbers have been upheld

25

because of this litigation?

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1

A.

Yes.

2

Q.

Okay. But in terms of what happened before

3

the litigation, here's what I'm asking you: Have you

4

seen an evolution in the coaches' commitment over the

5

years since the roster management method was introduced

6

as a way of the University eventually achieving

7

proportionality? Have you seen that improvement in

8

commitment?

9

A.

Yes.

10

Q.

Okay.

11

A.

Yes.

12

Q.

All right. So in terms of Exhibit 4, is it

13

accurate to say that

and you've already said this in

14

response to questions that, you know, scuttlebutt in the

15

lunchroom or whatever, you don't know where these coaches

16

got this idea of how to sort of technically meet Title IX

17

but add and delete on certain dates. That's what you

18

told counsel, correct?

19

A.

That's correct.

20

Q.

But when the University, meaning you, found

21

out the coaches -- the coach or coaches involved were

22

told "This is not acceptable to us even though you think

23

technically it can be done," you had that conversation

24

with the baseball coach, you said?

25

A.

Yes.

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Stephanie Biediger, et al v. Quinnipiac University

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82

1

Q.

Okay. So as far as you understand it, that

2

happened in the first year when roster management was

3

introduced, correct?

4

A.

Yes.

5

Q.

Okay. Or in the same time period where you

6

were getting all these pushbacks with roster management,

7

correct?

8

A.

Could you clarify what you mean by

9

"pushbacks"?

10

Q.

For the -- Well, actually, I'm using his

11

word, and I objected to it. Complaints about being

12

confined by a number?

13

A.

When it was first introduced, it was a shock;

14

and there was a lot of concern expressed by coaches of

15

trying to meet this policy.

16

Q.

But in '07/'08, the University's position was

17

not we're going to meet proportionality in '07/'08,

18

correct?

19

A.

Correct.

20

Q.

All right. Now, let's talk about

21

scholarships. You were asked about scholarships for

22

competitive cheer, but the way the question was asked is

23

if there's any scholarships now budgeted for, and you

24

said "No," correct?

25

A.

Correct.

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Stephanie Biediger, et al v. Quinnipiac University

Tracey Flynn; 5/1/09

83

1

Q.

All right. Is it premature at this point for

2

the University in its budget process to be talking about

3

those new scholarships?

4

A.

We're in the infancy of establishing

5

competitive cheer, and so there's many -- I've already

6

had several discussions with both the Athletic Director

7

and the current cheerleading coach as what my opinion is

8

of what we need to do and go forth. So assigning

9

scholarships is something I said needs to be done to make

10

this a viable opportunity for us.

11

Q.

Is it correct that Quinnipiac is using as a

12

guideline the University of Maryland competitive cheer

13

aspects because Maryland competitive cheer has been

14

accepted by the Office of Civil Rights as counting for

15

Title IX compliance?

16

A.

It is true that we have been using the

17

University of Maryland documents that they shared with

18

us; we refer to it as "the Bible." I don't have

19

knowledge that OCR accepted cheerleading for Title IX

20

purposes for Maryland.

21

Q.

Got it, okay. And is it the University's

22

current commitment to insure that competitive cheer bears

23

the characteristics necessary for Title IX counting?

24

A.

It is -- I can't speak for people outside of

25

my department.

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21 22 23 24 25

Donna Lopiano.txt
1

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

* * * * * * * * * * * * *

STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN

*

OVERDEVEST, AND CORINALDESI,

KRISTEN

*

individually and on behalf of all those

*

similarly situated; LESLEY RIKER on behalf

*

oLf.Rh.,erinmdiinvoirdduaaullgyhtaenrd, *

on behalf similarly

of all those situated; and

*

ROBIN LAMOTT SPARKS, individually,

*

Plaintiffs *

vs.

*

QUINNIPIAC UNIVERSITY, *

Defendant

*

* * .,, * .,, 'fr * * * * * * *

CIVIL ACTIO NO. 3:09-cv-00621 (SRU)

Bridgeport, CT

May 5, 2009

4:00 p.m.

VIDEOTAPED DEPOSITION OF DONNA LOPIANO

CAMPANO & ASSOCIATES

0

COURT REPORTING SERVICES

2

15:48:17 1 15:48:17

APPEARANCES:

Page 1

·.,·.,
Case 3:09-cv-00621-SRU Document 41-4 Filed 05/14/09 Page 3 of 49
.: .·

15:48:17 2 15:48:17 15:48:17 3 15:48:17 15:48:17 4 15:48:17 15:48:17 5 15:48:17 15:48:17 6 15:48:17 15:48:17 7 15:48:17 15:48:17 8 15:48:17 15:48:17 9 15:48:17 15:48:17 10 15:48:17 15:48:17 11 15:48:17 15:48:17 12 15:48:17 15:48:17 13 15:48:17 15:48:17 14 15:48:17 15:48:17 15 15:48:17 15:48:17 16
17 18 19 20 21 22 23 24 25
0
15:48:17 1 15:48:17 2 15:48:17 3 15:48:17 4

FOR

THE

Donna Lopiano.txt PLAINTIFFS:

PULLMAN & COMLEY, LLC
BY: A8JO5LNE0AXTMHVaA.iNnHSEBR.tNreOAeRNLtDEEAZN, SE, SQEUSQIRUEIRE Bridgeport, CT 06601-7006 - and -
EQUITY LEGAL BY: KRISTEN GALLES, ESQUIRE
10 Rosecrest Avenue Alexandria, VA 22301

FOR THE DEFENDANT:

WIGGIN AND DANA, LLP

BY: MARY A. GAMBARDELLA, ESQUIRE

- and -

JONATHAN M. BARDAVID, 400 Atlantic Street

ESQUIRE

P.O. BOX 110325

Stamford, CT 06911-0325

VIDEOGRAPHER: DOMINIC BOUCHER, Hamilton communications

ALSO PRESENT: ROBIN SPARKS

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 3
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Case 3:09-cv-00621-SRU Document 41-4 Filed 05/14/09 Page 4 of 49
.• . .

15:48:17 5 15:48:17 6 15:48:17 7 15:48:17 8 15:48:17 9 15:48:17 10 15:48:17 11 15:48:17 12 15:48:17 13 15:48:17 14 15:48:17 15 15:48:17 16 15:48:17 17 15:48:17 18 15:48:17 19 15:48:17 20 15:48:17 21 15:48:17 22 15:48:17 23
24 25
0
15:54:16 1 16:01:06 2 16:01:08 3 16:01:12 4 16:01:16 5 16:01:22 6 16:01:24 7

Donna Lopiano.txt
Videotaped Deposition of DONNA LOPIANO, a witness herein, taken on behalf of the plaintiffs herein, for the purpose of discovery and for use as evidence in this cause, pending in the United states District court for the District of connecticut, pursuant to Agreement, before Stephanie Moffett, Licensed shorthand Reporter, No. 00461, and a Notary Public within and for the State of connecticut, at
the law offices of Pullman & Comley, LLC, 850 Main
Street, Bridgeport, connecticut, on the 5th day of May, 2009 at 4:00p.m., at which time counsel appeared as hereinbefore set forth ...
CAMPANO & ASSOCIATES
COURT REPORTING SERVICES
4
THE VIDEOGRAPHER: We are now on record. This is the deposition of Donna Lopiano taken on behalf of the plaintiff in the case of Stephanie Biediger, et al versus Quinnipiac university. case number CV-00621(SRU) filed in the united states District court District for connecticut.
Page 3

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.. ···

16:01:24 8 16:01:28 9 16:01:33 10 16:01:37 11 16:01:39 12 16:01:39 13 16:01:40 14 16:01:45 15 16:01:46 16 16:01:47 17 16:01:50 18 16:01:51 19 16:01:51 20 16:01:53 21 16:01:58 22 16:01:58 23 16:02:03 24 16:02:04 25

Today

Donna Lopiano.txt is May 5th, 2009.

Time on video

record is 4:01 p.m. This deposition is being held

at 850 Main street, Bridgeport, connecticut. My

name is Dominic Boucher representing Hamilton

Communications of 1442 Essex Road, Westbrook,

connecticut.

would counsel please introduce yourselves for the record?

MS. GALLES: Yes. I am Kristen Galles. I am one of the counsel for plaintiffs in the matter.

MS. GAMBARDELLA: I am Mary Gambardella, and I represent the defendant Quinnipiac University, and I have -- Go ahead, John.
MR. BARDAVID: Jonathan Bardavid also for the defendants.

MR. HERNANDEZ: Alex Hernandez,
Pullman & Comley on behalf of the plaintiffs and

0
16:02:05 1 16:02:09 2 16:02:12 3 16:02:13 4 16:02:15 5 16:02:20 6 16:02:23 7 16:02:23 8 16:02:24 9 16:02:26 10

COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES
5
later will be joined by Jonathan orleans, also
Pullman & Comley on behalf of the plaintiffs.
MS. GALLES: And also, for the record, I'd like to state that one of the plaintiffs, Robin Sparks, is with us, and I guess we're ready to
MS. GAMBARDELLA: Rock and roll. MS. GALLES: okay. we want to make some statements on the record, and then we'll swear in the witness.
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22 23 24 25

so

my

DuonndnearsLtaonpdiainngo,.

txt Mary,

from

your

discussion with John is that basically we're doing

what you normally do. We're waiving all of the

objections except as form and foundation and that we

can -- if there are any, we can squawk about them

later based on the transcript.

agreement.

MS. GAMBARDELLA: Yes. That's the

MS. GALLES: Okay. All right. I guess we are ready to swear in the witness,
Dr. Donna Lopiano.

0
16:02:49 1 16:02:57 2 16:02:57 3 16:02:57 4 16:02:57 5 16:03:10 6 16:03:15 7 16:03:17 8 16:03:20 9 16:03:25 10 16:03:28 11 16:03:30 12 16:03:32 13

COCUARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES

6

Thereupon:

DONNA LOPIANO, residing at 60 Harvest Moon
Road, Easton, Connecticut, being first duly sworn,
as hereinafter certified, was examined and testified as follows:

DIRECT EXAMINATION BY MS. GALLES:

Q.

Dr. Lopiano, we've introduced everyone

around the table, just so you know who is here

listening in, and I also want to briefly explain to

you that -- You've done lots of depositions and

court testimony before, but this particular

deposition is something they call a De Bene Esse

deposition.

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Donna Lopiano.txt

what we have for EADA, like through the current school year.

A.

okay. sorry. sorry. okay.

Q.

Not looking at what Quinnipiac proposes

CAMPANO & ASSOCIATES
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to do for next year.

A.

okay. I'm sorry. Go ahead.

Q.

okay. Going up through the 2008-2009

school year, okay

A.

Right.

Q.

-- I believe you've stated your opinion

relating to Prong 1; but just in case you didn't, do

you have an opinion relating to whether or not

Quinnipiac satisfies Prong 1 of the Three Part Test?

MS. GAMBARDELLA: Object to form.

A.

Quinnipiac is currently not in

compliance with Prong 1 of the Three Part Test, and it has not been in compliance with Prong 1 for the past 15 years.

Q.

Now, let's move along to Prong 2.

A.

Quinnipiac is not in compliance with

Prong 2. It has not added a varsity team for women

since the year 2000 despite the fact that it is

obvious that its recruiting market offers

opportunities for it to add teams.

You see, in the Northeast Conference,

all of its competitors or many of its competitors

are offering swimming and women's golf. where's

my --

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Donna Lopiano.txt

Q.

Dr. Lopiano, if you wanted to find out

CAMPANO & ASSOCIATES
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what sports Quinnipiac's conference offered or had,

what would you look at or who would you talk to?

A.

well, I looked at what Quinnipiac gave

me in terms of the squad sizes for all of its

sports.

Q.

okay.

A.

And you would just look on a website and

you could see all the sports that the -- you know,

the conference

Q.

so okay. Let's go back to what you were

looking at in terms of squad sizes, the NEC page.

A.

Right.

Q.

okay. can you tell from that which

sports other NEC schools offer that Quinnipiac does

not?

A.

swimming, bowling, golf. And then you

would also look not only at what the other

conference schools -- You look at the other

conference schools because they successfully are meeting this unmet need. They here recruiting teams just like Quinnipiac should be.

You're also obligated to.look at what are the high school sports that are being offered, and you look at the high school; and those same three sports are being offered. In addition, when

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Donna Lopiano.txt

Q.

we'll get there. Anything other than

that which raises your suspicions that the numbers

were not really the numbers on the first day of

competition?

0
21:06:04 1 21:06:08 2 21:06:19 3 21:06:20 4 21:06:21 5 21:06:24 6 21:06:26 7 21:06:29 8 21:06:33 9 21:06:35 10 21:06:37 11 21:06:41 12 21:06:42 13 21:06:44 14 21:06:47 15 21:06:50 16 21:06:53 17 21:06:54 18 21:06:57 19 21:07:04 20 21:07:06 21 21:07:07 22 21:07:09 23 21:07:13 24

COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES
188

A.

Yes; that I felt that the changing of

the counting indicated an attempt to manipulate

those numbers.

Q.

okay. Doctor, my question is this --

A.

You couldn't -- There was no

consistent -- For 15 years, there was no consistent

way that it was counted even when they were counted

as a combined team. You're talking about the EADA

report?

Q.

Are you talking about counting those

sports more than once, indoor, outdoor track and

cross country?

A.

I'm talking about the way that when they

were counted as combined, they were counted in two

different ·ways, and there was no way you could tell

whether that was an accurate count or not.

Q.

okay. so, Doctor, here's my question.

You agree with me that schools are permitted to

count athletes who participate in more than one

sport once for each sport for which they participate in, correct?

A.

As long as they're the same-- they're

one sport and they're not like indoor and outdoor

track

where

it

is

--

They can't Page 170

count

indoor

and

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Donna Lopiano.txt outdoor track separately because that's one sport.

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 189

Q.

I thought -- Go ahead -- you said during

the deposition -- And if not, we'll go to some

materials -- that a school can count indoor and

outdoor track and cross country as three separate

sports?

A.

I said historically, when you look back

over a period of years before attempts were made to

manipulate roster management, that when they were

counted as separate sports, it was a mathematical

wash as to its effect on participation percentages.

Q.

okay. The question is not about that.

A.

The indoor -- Yeah. But no. I pointed

out that in the -- in the clarification with regard

to the three part -- with regard to Prong 1, that it

was very specific that the issue was, how many

participants were there in each sport? And so it is

very valid that I contend that indoor and outdoor

track are absolutely the same sport. They should

not be counted separately.

Q.

okay. Aside from what you think should

happen, Doctor, what is your authoritative source

that provides that a school may not count indoor

track, outdoor track and cross country track as

three separate sports?

A.

Just the words and regulations.

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Donna Lopiano.txt

190

Q.

show me the words and the regulation.

A.

It -- I read them to you. It said that

you had to count --All right. Let's go to a

regulation. '79.

A. Q. reading.

MS. GALLES: That's '96. '79, '96. In '96, "An athlete who participates" You need to direct me to where you're

A.

I changed my font, so the pages aren't

the same here. clarification of Three Part Test

MS. GALLES: Is it part of the

letter or clarification?

THE DEPONENT: Clarification.

A.

Three Part Test, Part 1. Three Part

Test, Part 1. On page 3.

Q.

of what document?

A.

This is

MS. GALLES: 1996 clarification.

A.

okay. Document Number 3. And it says,

at the bottom of the page --

Q.

of which page?

A.

says 3 in the middle and says attachment

F 8 of-- 8 of 17.

Q.

Great. I'm with you.

A.

In the middle of the page, in the

0

COCUARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES

191

21:10:28 1

paragraph under this definition

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0
21:11:32 1 21:11:33 2 21:11:34 3 21:11:37 4

Donna Lopiano.txt

Q.

Yup.

A.

-- it says -- the last sentence, last

three lines, "An athlete who participates in more

than ·one sport will be counted as a participant in

each sport in which he or she participates." so the

question is whether or not indoor or outdoor track

is a sport. That's the issue. Are separate sports.

And my contention is, they are absolutely the same

sport that are played where the athlete

participates in a winter and a spring season.

Q.

Other than your personal contention,

where is the authority

A.

It wasn't a personal contention.

Q.

okay.

A.

I gave you seven different reasons.

Q.

I understand the reasons. Where is the

authoritative

A.

Right there.

Q.

I understand. Do you have any

A.

More than one sport.

Q.

Do you have any document authored by the

OCR or any judicial opinion that says, definitively,

indoor, outdoor track and cross country can never

count for separate sports for purposes of Title 9

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 192

compliance?

A.

It was my testimony in the colorado

State case that indoor and outdoor track were the

same sport; and in that case, it seems that -- I

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don't

know

Donna whether the

Lopiano.txt court accepted

it

or

not,

but

that's exactly, you know, my testimony. And they

seemed to have ruled in favor. so is the expert

right when that happens?

Q.

wait a minute. You're saying

A.

In colorado state, I testified that

indoor and outdoor track were one sport.

Q.

Right.

A.

The plaintiffs prevailed. Does that

mean I'm right?

Q.

I don't know. I don't know why the

plaintiffs prevailed. Do you have a copy of the

opinion with you?

A.

I don't, but do I have a -- I do not.

Q.

In fact, I'm going to show you Just

looking for the first page. This notebook is not

cooperating.

A. Q.
Doctor.

Three rings never cooperate with me. I'm just looking for the first page,

A.

From where?

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COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES
193

Q.

of this manual.

A.

can I see the manual?

Q.

I'm going to show you the NCAA manual --

2008-2009 NCAA Division Manual.

A.

Yes.

Q.

okay? on page 289 of that manual, are

indoor, outdoor track and cross country listed as

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separate sports? Donna Lopiano.txt

A.

No. They're listed as separate

championships. Is that where you're looking?

Q.

Yeah, separate championships.

A.

Separate championships. They're not

separate sports. They're separate championships.

Q.

okay. where in this-- well, so there

were separate championships for those three sports,

correct?

A.

Yeah.

Q.

Have you ever seen the high school

participation survey conducted by the National

Federation of State High school Associations?

A.

Yeah, I've seen it.

marked?

MS. GALLES: Could we have that

MS. GAMBARDELLA: Yup. (Whereupon, the High school

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 194

Participation survey was marked as Defendant's Exhibit A for Identification.)

Q.

Are not those three sports listed

separately?

A.

oh, there's no question that you'll see

cross country, indoor track and outdoor track listed

separately as championships. My point is, they are

the same sport conducted in different seasons, and

it's fine to have an indoor track championship, an

outdoor track championship, just like there's a long

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course

swimming

Donna Lopiano.txt championship and a short

course

swimming championship. It does not mean they are

not the same sport.

Q.

Where has the OCR ever determined that

those three sports are indeed the same sport for

counting participation opportunities?

A.

Okay. so you're telling me that the OCR

says I'm not answering -- Here's what I'm not

answering -- asking -- understanding about your

question, that the OCR doesn't say specifically that

cross country is a sport, indoor is a sport, outdoor

is a -- Doesn't go there. It says this is what a

sport is.

Q.

Right.

A.

And it gives a definition of a sport

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 195

just like it tries to give a definition of a sport for -- for -- cheerleading is a good example. so when they say is there a federation that governs the sport, there isn't a cross country federation, an indoor track federation, an outdoor track federation.
There's USA track and field, and it has -- in different seasons, it runs events like cross country, like indoor, like outdoor. Just like there's one swimming federation, and it has long course and it has short course; and so I don't think it's the function of OCR to legislate what -- the name of the sport.
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0
21:16:51 1 21:16:52 2 21:16:56 3 21:16:59 4 21:17:00 5 21:17:00 6 21:17:01 7 21:17:04 8 21:17:08 9 21:17:10 10 21:17:11 11 21:17:13 12 21:17:17 13 21:17:22 14 21:17:25 15 21:17:27 16

Donna Lopiano.txt It is the function of the federation -the national governing body to say, these are our sports and this is what we -- this is the sport and this what we tell ourselves and this is what this championship is and this is what this season is. I can't say any more than that.

Q.

so it's your testimony that a school is

not permitted under Title 9 to ever count those

three sports as anything other than one sport?

A.

I said -- And I'll repeat what I said

that it is not permitted to count indoor and outdoor

track as separate sports. I gave you specific

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 196

circumstances under which I thought it would be allowable to count cross country separately from indoor and outdoor track, and I can say that again.

Q.

No.

A.

okay.

Q.

You gave me the conditions under which

cross country can be counted separately. And have

you interviewed any of the coaches at Quinnipiac of any of those sports?

A.

I have not.

Q.

Have you gone to any source, other than

the website, for information about those three

sports, those three athletic programs at Quinnipiac?

A.

I've gone to the EADA reports.

Q.

okay. Well, the EADA reports only show

that Quinnipiac counted those sports separately in

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Donna Lopiano.txt certain areas?

A.

And inconsistently.

Q.

r understand. okay.

A.

Right.

Q.

I'm asking you now if you've gone to any

other source of information about those athletic

programs at Quinnipiac other than schedules for 2008-2009 and the rosters off of the websites?

A.

And the EADA reports.

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 197

Q.

Other than that?

A.

Okay. well, it's very significant

because you have an opportunity in the EADA reports

to go cross country, indoor, outdoor or combined,

and

Q.

I --

A.

-- what is Quinnipiac saying? It's

saying that it's one sport cross country, indoor

track combined with this participation. Quinnipiac

is saying it.

Q.

we'll get to the -- we'll get to the

chart in a second, Doctor. Other than the EADA

reports, what did you rely on other than the

schedules you pulled online and the rosters you

pulled from the websites?

A.

That's what I relied on.

Q.

You now agree, however, if a sport is

indeed separate, an athlete that participates in

more than one sport can be counted once for each

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Donna Lopiano.txt sport? We have no disagreement there?

A.

If it -- If --

Q.

If it's a different sport.

A.

If it's a different sport, they are

counted separately.

Q.

okay. Thank you. Is it your belief

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 198

that the roster numbers represented on the

Quinnipiac website represent the numbers of

participants on the first day of competition?

A.

It is my understanding that the EADA

reports represent the number of participants on

first day of competition.

Q.

I'm asking you about the website roster

numbers. Do you have an --

A.

It does not -- It does not say --

Q.

Okay.

A.

-- when they were put up there, so I

cannot tell you by looking at the website.

Q.

Right. so you have no idea sitting

here, based on that information or any other

information you were given, what the time frame is

for the snapshot represented by the roster numbers

online?

A.

That is correct.

Q.

okay. And you agreed with me that there

is no legal requirement that EADA reports be

modified throughout ~he year to reflect changes in

the participant numbers?

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Donna Lopiano.txt

A.

That is correct.

Q.

Is it permissible under Prong 1 to

achieve proportionality by attempting to cut men's

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 199

programs when women's programs are also cut, in your opinion?

A.

okay. so --

MS. GALLES: objection to form.

A.

so give me the hypothetical, so that

Q.

All right. Let's say a school wants to

meet proportionality. okay?

A.

Right.

Q.

But they need to cut an athletic program

that females participate in for any variety of

reasons.

A.

That's right.

Q.

okay? Is it permissible for a school to

achieve proportionality by cutting men's athletic

programs at the same time to make sure

proportionality remains?

A.

Yes.

Q.

Is it permissible for a school to cut

men's teams and, at the same time, substitute

another female athletic program to attempt to

achieve proportionality under Prong 1?

MS. GALLES: Objection.

Q.

Forget cheerleading.

A.

A school

Q.

A sport.

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Donna Lopiano.txt
COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES
200

A.

Yeah. Yeah. No. A school can have any

kind of combinations it wants in terms of valid

participation nu~bers to meet the proportionality

test.

Q.

Right.

A.

You can go up and down on either side.

Q.

sure. Did you testify tonight that you

disfavor Strike that. Did you know that

Quinnipiac was eliminating men's athletic programs

for next academic year?

MS. GALLES: objection; foundation.

A.

It -- It looked to me that on the Janet

Judge proposal, that it was suggesting that outdoor

track be eliminated. I don't consider that to be an

elimination of the program, however, because the

indoor track participants, as well as your cross

country participants, could participate in the same

events that they would have participated in in the

same number, had there been an outdoor track team.

Q.

What about the golf team, the men's golf

team?

A.

What about it?

Q.

Did you read Janet Judge's letter?

A.

Yeah. But what's the point?

Q.

Did you -- Did you have an understanding

CAMPANO & ASSOCIATES
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break.

Donna Lopiano.txt MS. GALLES: Are we near a MS. GAMBARDELLA: We could take a

MS. GALLES: -- breaking or changing points?

time is 9:41.

MS. GAMBARDELLA: Sure. Sure. THE VIDEOGRAPHER: Going off record

(Whereupon, a recess was taken.)

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COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES
218

(Whereupon, the New York Times Article dated 4/4/04 was marked as Defendant's Exhibit F for Identification.)

THE VIDEOGRAPHER: We are back on

record. The time will be 9:49. You may continue.

Q.

Doctor, I've handed you, as Exhibit F, a

New York Times article dated April 4th, 2004

entitled "Thanks to Title 9, Cheerleading is sport

at Maryland." Have you ever seen this article

before?

A. Q. you go to

I don't think so. well, you're quoted in it. why don't

A.

That's not unusual.

Q.

I know. Understood.

A.

so --

Q.

Hold on one second. The bottom of the

article, the last paragraph on the first page at the

bottom -- sorry. Not the bottom of the whole

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article

--

Donna "Fleece says

Lopiano.txt that since

Maryland

created

its competitive cheer team last fall and number

0151" -- I have no idea what that is -- "and

notified Title 9 watchdogs at the Federal Department

of Education that it was doing so, she has heard

from more than 50 colleges or universities

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 219

expressing interest in following that path."

Do you have any information to suggest that the statement that Maryland notified Title 9 watchdogs at the Federal Department of Ed. that it was going to count competitive cheer as a sport for Title 9 is or isn't accurate?

MS. GALLES: objection; foundation.

A.

I don't know what it means.

Q.

okay. well, let's read it again.

"Fleece says that since" --And Fleece is Maryland's

cheer -- cheerleading coach, competitive cheer coach

-- "that since Maryland created its competitive

cheer team last fall and notified Title 9 watchdogs

at the Federal Department of Education that it was

doing so."

Do you have any information as to

whether or not that's true or untrue that the Federal Department of Ed. was notified by University of Maryland that it was going to count competitive cheer as a sport?

A.

I don't have any -- I'm reading what

you're reading.

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Donna Lopiano.txt

Q.

You have no information to contradict or

support that statement?

A.

No. what I'm saying is, it's very easy

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 220

to notify anybody of anything, but asking them for

technical assistance or asking them to do a ruling

is not notifying somebody, Guess what? we have

cheerleading as a sport.

Q.

well, Doctor, what would be the purpose

in telling the OCR this is what we're going to do?

what would be the purpose in that?

A.

well, you know, without seeing the May

8th letter, without seeing the series of

correspondence between Yaou and OCR, I got that.

You know, even just seeing what I've seen, I got the

impression that she was, as she was starting the

program, trying to create a paper trail which

suggested that there was some authority exercised by

OCR blessing her program.

And I have never seen an OCR statement

saying Maryland is absolutely on point. They've

asked us to come in and review their program, and we

find that they have a valid cheerleading program. I

haven't seen anything like that.

Q.

Doctor, you also haven't seen anything

to suggest that --

A.

Yeah. Exactly right.

Q.

Hold on. You've got to let me finish.

A.

Yeah. But you're right. Either way, I

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0

Donna Lopiano.txt
COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES
221

haven't seen anything.

Q.

You don't have anything to suggest that

OCR wasn't notified in advance, correct? Do you?

A.

That's a nonsensical statement. I have

no information.

Q.

Great. Great. All right.

A.

I have no information either way.

Q.

Great. so you have no information

either way.

A.

Either way.

Q.

so how do you know that she was trying

to create a paper trail?

A.

I gave you my impression in looking at

the Exhibit, Exhibit E --

Q.

Right.

A.

Exhibit D and the context of these

two things. I don't see -- If I were an athletic

director and I wanted to say to someone I had OCR's

approval, I would show a letter from OCR saying,

Here is OCR's letter of approval, so this is suspect

to me.

Q.

okay. So that's suspect because you

would do it differently?

A.

No, because I want to see a letter from

Gerald Reynolds, not Debbie Yaou saying that she's

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Donna Lopiano.txt been telling Gerald Reynolds something. I want to see Gerald Reynolds saying, we have examined the Maryland cheerleading program, and it meets OCR's guidelines in terms of cheerleading. And then I would be happy to accept that the university of Maryland has got it.

Q.

Do you have any information that the

statement about a May 8th letter from the Department

of Education does or doesn't exist?

A.

I have no information.

Q.

Great. okay. Now, in this article, on

the second page

MS. GALLES: You're talking about
F?

MS. GAMBARDELLA: Yeah. Yeah.

Q.

You're quoted, I think, for the first

time sort of in the middle of the second page. It

starts with, "Maryland had other existing

alternatives with demonstrated student interest,"

Donna Lopiano, Executive Director of the women's

sports Foundation said, "to try and manufacture a

sport and put a round peg in a square hole is

disingenuous."

Did you say that to the New York Times reporter?

0
21:55:07 1 21:55:10 2 21:55:13 3

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 223

A.

It was -- what makes me hesitate, I

wasn't Executive Director -- oh, in 2004? Yes, I

was. Good. I can't remember saying that, but I Page 201

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Donna Lopiano.txt would imagine it's accurate. I trust the New York Times to quote, but I can I can't say whether that's accurate or not.

I believe in that statement -- And I would say that -- again, I do not think that a careful examination of any competitive -- so-called competitive cheer program at the college level will reveal that it has met all of those standards, and I have not seen anything from OCR to alleviate my concerns.

Q.

You haven't seen any --

A.

And I stand with that.

Q.

You haven't seen anything from OCR that

says they audited Maryland and they're disqualified,

right?

A.

Absolutely. Yeah. But you would think

that Debbie Yaou who continues to try to imply that

she somehow has some authority for this -- you would

think she would produce this letter at some point,

and I've never seen it.

Q.

Doctor, let me ask you this.

A.

Yup.

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Q.

obviously, the university of Maryland is

getting publicity on counting its competitive cheer

need for

A.

Yeah. Absolutely.

Q. right?

competitive cheer team for Title 9, Page 202

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Donna Lopiano.txt

A.

Absolutely.

Q.

And if any of it's true, OCR was

notified that that's what they did do or were going

to do at some point?

MS. GALLES: Objection.

Q.

If any of the statements are true, then

OCR was notified either before or after, correct?

MS. GALLES: objection; foundation.

A.

Absent a complaint, there's no reason

for OCR to -- Absent a complaint or request for technical assistance, there's no reason for OCR to

come in and make any statement about Maryland's program.

Q.

okay.

A.

And I have never seen any, and I don't

mean to be -- How can I say this? My pessimism in this area is based on, you know, 35 years of being

in athletics; and when you only have two schools in the country who are, you know, supposedly doing

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 225

competitive cheer on a basis that is supposedly a

full season, I find it hard to believe that they can

put together all of the pieces that come through.

And it almost makes me think that, you know, the

best thing that could happen is, somebody should do

a -- ask for a compliance review.

Q.

Doctor --

A.

We're going to be hypothetical. You're

going to say, well, I have no reason not to believe Page 203

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.:·,.. ·

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Donna Lopiano.txt

her, and I'm going to say --

Q.

But, Doctor --

A.

-- I have no reason to believe her.

Neither of us has any reason to take a position, so

it's tough.

Q.

Doctor -- okay. You said in this

article that Maryland was trying to manufacture a

sport?

A.

Yeah, I believe they were.

Q.

okay. What do you base that on?

A.

Absolutely. Four or five years ago, my

looking at their manufactured sports schedule and

finding that there was bogus competition, and -- so

I have no reason to believe otherwise. And I

suspect if I looked at it again today, I'd bet you I'd find some bogus competition, so I may have to do

0
21:58:23 1 21:58:23 2 21:58:25 3 21:58:27 4 21:58:29 5 21:58:29 6 21:58:32 7 21:58:32 8 21:58:34 9 21:58:35 10 21:58:37 11 21:58:40 12

COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES
226

that.

Q.

But you haven't looked at it today?

A.

I absolutely have not, which is why I

can't say to you other than --

Q.

Right.

A.

-- I suspect that this is the case.

Q.

suspect.

A.

These are the reasons that I'm using.

Q.

Right.

A.

I've never seen an OCR letter. I don't

see how they can meet these standards. That's all I

can say. so I'm sorry. Page 204

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Donna Lopiano.txt

Q.

Right. so your statement that you made

to the New York Times that Maryland was trying to

manufacture a sport was based on your suspicions at

that point looking at competition numbers. Am I

wrong?

MS. GALLES: Objection.

A.

It was looking at the fact that nobody

else in the country was playing a sport, and that is

required under Title 9 that you demonstrate that you

can put together a competitive schedule.

Q.

understood.

A.

So I --

Q.

So you had your doubts about whether or

0
21:59:09 1 21:59:10 2 21:59:12 3 21:59:14 4 21:59:18 5 21:59:22 6 21:59:24 7 21:59:27 8 21:59:27 9
n= 59:3o 1o
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COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES

227

not

A.

I think-- Yeah. I think that's exactly

what I said, that I think it is -- it was, at that

time, very disingenuous.

Q.

So you still think it's disingenuous by

the University of Maryland, but haven't looked at

the University of Maryland data in four years,

right?

A.

This was a statement in 2004, and I

trust I made it.

Q.

I think you've --

A.

I have not come back into the issue of

Maryland and cheerleading till just this week.

Q.

okay.

A.

I

have

not looked into Page 205

Maryland's

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Donna Lopiano.txt
schedule. I haven't had time to. And so I can't say any more than that. I don't know what else to tell you about it. It's like you're trying to bleed this rock here.

Q.

well, I got to-- I'll tell you, I'm not

trying to bleed a rock.

A.

Yeah. Yeah.

Q.

But you've made some statements about

Quinnipiac that sound a lot like this.

A.

Like what?

0
22:00:02 1 22:00:03 2 22:00:04 3 22:00:06 4 22:00:07 5 22:00:08 6 22:00:10 7 22:00:11 8 22:00:13 9 22:00:16 10 22:00:18 11 22:00:19 12 22:00:21 13 22:00:24 14 22:00:24 15 22:00:25 16 22:00:25 17 22:00:28 18

COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES
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Q.

what you said about university of

Maryland. so I'm trying to get to the --

A.

But wait a minute. Everything I've said

about Quinnipiac I've supported with data.

Q.

Doctor, this isn't

A.

I have. No. No. No. I have.

Q.

Doctor, this isn't a conversation. I

ask questions. You answer them.

A.

But you started that conversation.

Q.

okay. Doctor, I'm not trying to bleed a

rock dry.

A.

what I'm saying is, you started this

line of conversation. I was just finishing it.

That's it.

Q.

okay. Great.

A.

okay.

Q.

You said just a few minutes ago that you

bet

if

you

look

at

the university Page 206

of

Maryland

data

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Donna Lopiano.txt now

A.

Yes.

Q.

-- you'd come to the same conclusion?

A.

Yes.

Q.

Isn't that what you just told me?

A.

Yeah. Now I'm going to need to do that

because I said it.

0
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COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES
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Q.

well, you said it first, didn't you?

A.

And I'm going to do it.

Q.

Right.

A.

so I hope I have another chance. You

give me another chance to testify in court.

Q.

Not tonight. Now, you then said, "I'm

not demeaning cheerleading skills, but is it a bona

fide athletic opportunity for women or a convenient

one for the athletic department"?

A.

Right.

Q.

YOU base that question on the same

information you just testified to, correct?

A.

That's right. That's correct.

Q.

what do you think requires more athletic

prowess, bowling or cheerleading?

A.

oh, athletic prowess is -- That's like

saying compare archery to cheerleading. Every sport

skill requires something different, and who is the

better athlete, the great -- the national champion

bowler or the national champion tumbler or --

Q.

But

if bowling were Page 207

on

that

chart,

would

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D
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Donna Lopiano.txt

it be as suspect to you as competitive cheer?

A.

No. There's a national sport

federation. It's an NCAA sport. It went through an

emerging sport process. It's been in colleges and

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 230

universities for decades.

MS. GAMBARDELLA: YOU can mark it.

(Whereupon, the New York Times Article

dated 9/20/04 was marked as Defendant's Exhibit G for Identification.)

Q.

I've marked an article. Looks like

another New York Times article of front

september 20th, 2004?

A.

Popular year for articles on

cheerleading.

Q.

seems that way. Yup.

A.

Yup.

Q.

well, that's because it was the year

before that Maryland was the first university to

grant varsity status and athletic scholarships to a competitive cheer team.

A.

This is the same --

Q.

I didn't ask a question.

A.

No. No. NO. NO. But I'm reading

this. It's the same quote, isn't it?

Q.

It's the same what?

A.

It's the same quote.

MS. GALLES: Quote.

A.

I'm just being requoted.

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25

Donna Lopiano.txt

Q.

Right. okay? so you were requoted in

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 231

September of 2004 --

A.

The same guy, too.

Q.

You got to let me finish the question.

A.

sorry. No. No. No. I was just

reading it, and it's okay.

Q.

You question when Maryland promoted

cheerleading to varsity status when it could have

recognized a more traditional sport like women's

club teams in hockey and rowing. Do you see that?

A.

Yeah.

Q.

okay.

MS. GALLES: Did we mark that as G?

THE COURT REPORTER: Yes.

(Whereupon, the Press Release was marked

as Defendant's Exhibit H for Identification.)

MS. GAMBARDELLA: Can you mark this one, too, while you're at it?

(Whereupon, the Washington Times Article

2/16/05 was marked as Defendant's Exhibit I for

Identification.)

Q.

okay. We've marked as --

THE COURT REPORTER: H.

MS. GALLES: H, the Quinnipiac and

I --

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Donna Lopiano.txt 232

MS. GAMBARDELLA: Yeah. Thank you.

Q.

-- H a press release from Quinnipiac's

website, "cheerleaders Place 6th at National

championships." Have you seen this press release

before?

A.

No. Nope. That's good.

Q.

It's great, isn't it?

A.

Yup. Yup.

Q.

The Quinnipiac university cheerleading

team placed 6th on April 11th in All Girl Division 1

at 2009 NCAA/NDA Collegiate cheer and Dance

championship in Daytona Beach, and then there's some

scoring; and then you see --

A.

Do you know what All Girl Division 1 is?

Q.

No. That's not how it works. I get to

ask the questions. All right?

A.

oh, okay.

Q.

You don't know what it is?

A.

NO.

Q.

okay. Go down one, two, three -- it's

like the fourth paragraph down.

A.

Right.

Q.

All right? "Largest" -- okay. "The

event was held" No. sorry. one under that,

"other competitors in the division included the

D
22:05:44 1

COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES
233 university of Maryland." Do you see that?
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A.

Yes. Donna Lopiano.txt

Q.

so these are the schools that were

competed with. Do you see that?

A.

Does it say whether they were

competitive cheer squads?

Q.

What did you think they were, rowers?

A.

No; sideline cheer.

Q.

Did you read Mr. McDonald's testimony

about the functions of the cheerleading team at --

A.

This isn't about

Q.

okay. Doctor --

A.

This isn't about McDonald's testimony.

Q.

I understand that. I'm going on to

another question. I'm sure you can handle the

switch in subjects.

A.

okay.

Q.

Did you read Mr. McDonald's testimony

about the cheerleading team

A. it was.

No. I told you I didn't recollect what

Q.

Thank you.

A.

But that wasn't my question.

Q.

so you don't know, sitting here today --

let me ask you whether this is just the traditional

0
22:06:32 1 22:06:37 2 22:06:38 3 22:06:39 4

COUCARMT PARNEOPO&RTAINSGSOSCEIARTVEICSES

234

cheerleading sideline team or competitive cheer team, do you?

A. article.

I have no idea. can't tell from the

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0
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Donna Lopiano.txt

Q.

Now, the second thing I marked, I, first

page, "No longer on the sidelines, Maryland Team

competes, but Doesn't cheer." Then the second page

of the article, not that cover page but the second

page of the actual article, top of the page,

"Maryland administrators," do you see that?

direct --

MS. GALLES: I'm just going to

A.

second page? where are we?

MS. GALLES: I'm just going to interrupt to direct the witness if you need to read it before you testify about it.

A.

I don't know where you are.

know where you are. Where are you?

Q.

It says at the top

I don't

A. now?

Is this I? we're looking at I right

Q.

Yeah.

A.

okay. I.

Q.

Top right, it says page 3 of 4.

A.

wait a second. wait a second. okay.

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 235

so this is washington Times.

Q.

washington Times, February 16th, '05.

A.

You're asking me what?

Q.

Top of the page marked 3 of 4,

"Maryland" Go ahead. Just let me know when

you're there.

A.

okay. Now page 3 of 4.

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Donna Lopiano.txt

Q.

Yeah. "Maryland administrators say they

worked closely with the Department of Education

office of civil Rights before adding competitive

cheer as a varsity sport for the 2003-'04 school

year." Do you see that?

A.

I do.

Q.

Do you have any information that

suggests that is an inaccurate statement?

MS. GALLES: objection; foundation.

A.

I don't have any information to indicate

it's accurate or inaccurate.

Q.

Great. Now, if you go down -- That

would be the first paragraph -- the fourth

paragraph, "Donna Lopiano, Executive Director of the

women's sports Foundation called the program

'disingenuous.'"

A.

seems like they're quoting me again.

MS. GALLES: It's same word.

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 236

Q.

"Ms. Lopiano cited the team's schedu1e

as evidence." That's different, right? You didn't

say that in the prior press release?

A.

This is like 2005. I honestly can't,

you know No question I've said this disingenuous.

No question I would have raised the validity of its

schedule. I still raise the validity of its

schedule. You know, I don't know what else to tell

you.

Q.

Going down the page, third paragraph up

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0
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Donna Lopiano.txt from the bottom, you say again -- This is the same

quote, almost the same -- "There's nothing wrong

with that being a varsity sport as long as that's

what it is. It's just not developed yet and

Maryland is trying to manufacture it." Do you see

that?

A.

Yeah.

Q.

okay.

A.

I agree with that statement.

Q.

I understand. But if it's accurate that

Maryland worked closely with the OCR before adding

it, what does that suggest to you about OCR's

disagreement or agreement with your opinion that

they were trying to manufacture it as a sport?

MS. GALLES: Objection.

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 237

A.

It suggests to me that you believe that

it is accurate, that OCR somehow has blessed it, and

I don't believe it. so we have a disagreement.

Q.

okay. If it's accurate --

A.

When you -- when you show me OCR -- any

OCR letter that says they've looked at it and this

is fine as a varsity sport, I am absolutely willing

to concede that this is it.

Q.

Great.

A.

I have never seen anything like that.

Q.

Great. Hypothetical question. If the

top paragraph is accurate --

A.

Yes.

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0
22:11:09 1 22:11:12 2 22:11:13 3 22:11:14 4 22:11:18 5 22:11:24 6 22:11:28 7 22:11:30 8 22:11:34 9 22:11:39 10 22:11:42 11 22:11:45 12 22:11:48 13 22:11:52 14 22:11:54 15 22:11:58 16

Donna Lopiano.txt

Q.

then the OCR disagrees with you --

disagree with you?

A.

A hypothetical to --

Q.

Hypothetical.

A.

Hypothetically, if -- Yeah. But -- But

look at what you're asking me to agree to. You're

asking me to agree to a hypothetical.

Q.

I'm allowed to do that.

A.

Am I wrong? You're saying, don't you

agree if hypothetically they did this, that they

would do that? That is not fair.

Q.

Right. I'm allowed to ask an expert a

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 238

hypothetical question. You should know that. Hypothetically --

A.

Hypothetically.

Q.

-- if it's accurate that they consulted

with OCR in advance, do you know whether or not that

would --

A.

You're right. consult doesn't do it for

me. If you said, hypothetically, if they presented

a letter from Gerald Reynolds saying we have

investigated this program and we find that it is

fully in compliance with all of our guidelines

regarding the categorization of a sport, I am the

first person who would say this is a bona fide team.

Q.

Right. The bottom line, Dr. Lopiano, is

that any time you were asked publicly --

A.

Yes.

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: .·: ·..·

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0
22:12:11 1 22:12:12 2 22:12:13 3 22:12:13 4 22:12:14 5 22:12:15 6 22:12:17 7 22:12:19 8 22:12:19 9 22:12:20 10 22:12:22 11 22:12:25 12 22:12:28 13 22:12:31 14 22:12:35 15 22:12:38 16 22:12:39 17 22:12:41 18 22:12:43 19

Donna Lopiano.txt

Q.

about competitive cheer as a

potential sport --.

A.

Yes.

Q.

-- you have said things like suspect,

disingenuous --

A.

Yes.

Q.

-- and why aren't they looking -- why

aren't they looking at more traditional sports?

A.

Yes.

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 239

MS. GALLES: objection; foundation.

You've only shown items from

A.

Yes. Absolutely. And I explained to

you what I've shown you.

Q.

Forget it.

A.

I've explained to you why.

Q.

I got it. I get it.

A.

You're right. Yeah. Yeah. Yeah.

You're absolutely right.

Q.

Every time that you can recall sitting

here today, other than what I've shown you, if you

have an independent recollection, any time you were

asked publicly about your opinion with respect to

counting competitive cheer as a varsity sport,

you've used terms like suspect?

A.

suspect.

Q.

Disingenuous?

A.

Disingenuous.

Q.

Manufactured?

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0
22:12:47 1 22:12:47 2 22:12:47 3 22:12:46 4 22:12:48 5 22:12:50 6 22:12:53 7 22:12:57 8 22:12:59 9 22:13:02 10 22:13:06 11 22:13:09 12 22:13:10 13 22:13:10 14 22:13:11 15 22:13:13 16 22:13:17 17 22:13:20 18 22:13:23 19 22:13:25 20 22:13:25 21 22:13:27 22

A. Q. A. Q. A. seen

Donna Lopiano.txt Yes. Right? Yes. That's what you're doing now? That's right. Because I have never

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 240

Q.

I didn't ask because.

A.

-- an OCR statement --

Q.

I didn't ask because.

A.

-- to the contrary.

Q.

okay. Doctor, we will never leave this

room if you don't stick to the question. If your

If counsel wants to clean stuff up after, she can do

it. okay?

You have used words like that every time

you were asked about competitive cheer as a varsity

sport counting for Title 9 compliance, is that

correct?

A.

That's correct.

Q.

okay. And you're doing it now with

Quinnipiac, is that correct?

A.

No. I -- In the case of Maryland, I

have explained to you what my concerns with that

program are. In the case of Quinnipiac, I've

explained to you what

Q.

Right.

A.

-- my concerns are. It's that simple.

Q.

Right. And you're relying --

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Case 3:09-cv-00621-SRU Document 41-4 Filed 05/14/09 Page 42 of 49

22:13:28 23 22:13:31 24 22:13:31 25
0
22:13:32 1 22:13:35 2 22:13:38 3 22:13:40 4 22:13:41 5 22:13:42 6 22:13:43 7 22:13:43 8 22:13:46 9 22:13:49 10 22:13:53 11 22:13:56 12 22:14:01 13 22:14:01 14 22:14:04 15 22:14:05 16 22:14:06 17 22:14:08 18 22:14:12 19 22:14:15 20 22:14:18 21 22:14:18 22 22:14:23 23 22:14:27 24 22:14:30 25

A.
statement
Q.

Donna Lopiano.txt There's no reason why I can't make a Didn't say you couldn't.

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 241

A.

of disingenuous or it is suspect

without I gave you the foundation for it.

Q.

I didn't say you couldn't. I'm asking

you about your opinion.

A.

And I told you how many times, yes, I

said it?

Q.

Great.

A.

Yes, I agree. I've absolutely said it.

Q.

okay. And you know as much about

Quinnipiac's competitive cheer program today that

you knew about Maryland's when you called it

disingenuous in those press releases. would I be

right?

A.

I guess -- What makes me curious is, I

have nothing against

Q.

You need to answer my question, Doctor.

A.

No. No. No. I have nothing against

Quinnipiac starting a bona fide cheerleading

program, and I've never said in terms of Title 9

compliance -- That is out there.

Q.

Right.

A.

It doesn't count until it happens, and

Quinnipiac has not designated cheerleading as a

sport. It has not put it on the EADA. I can't even

look at it because it's not there yet.

Page 218

Case 3:09-cv-00621-SRU Document 41-4 Filed 05/14/09 Page 43 of 49

. . . . . .-:.~·.:.

.

0
22:14:31 1 22:14:33 2 22:14:33 3 22:14:34 4 22:14:35 5 22:14:37 6 22:14:38 7 22:14:39 8 22:14:41 9 22:14:41 10 22:14:45 11 22:14:49 12 22:14:52 13 22:14:55 14 22:14:58 15 22:14:58 16 22:14:59 17 22:15:00 18 22:15:03 19 22:15:05 20 22:15:06 21 22:15:06 22 22:15:07 23 22:15:10 24 22:15:14 25
0

Donna Lopiano.txt
CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 242

Q.

Doctor, please try to answer my

question.

A.

I thought I was being responsive. I'm

sorry.

Q.

You were not. I'm sorry.

A.

I'm sorry.

Q.

Believe me, it's late. Try to be

responsive.

A.

I was trying.

Q.

You know -- Actually, you knew more

about Maryland's competitive cheer team when you

made the statement in those press releases than you

do about Quinnipiac's today because you didn't even

know Quinnipiac had a competitive cheer team

MS. GALLES: Objection.

Q.

correct?

MS. GALLES: objection; foundation.

A.

Absolutely correct, but I haven't said

anything bad about the Quinnipiac cheer team, have

I?

Q.

so is it your opinion

A.

Have I said anything bad?

Q.

Can you state now emphatically that

Quinnipiac's competitive cheer team could never

qualify under OCR tests for Title 9 compliance for

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 243
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D
22:16:04 1 22:16:06 2 22:16:10 3

Donna Lopiano.txt

next year?

A.

I have no --

MS. GALLES: objection; foundation.

MS. GAMBARDELLA: I'm asking if

that's her opinion.

A.

say it again. say it again. Go ahead.

Q.

Are you saying now that, in your

professional opinion, Quinnipiac could never its

competitive cheer team could never be Title 9

compliant for next year?

MS. GALLES: Objection.

A.

I would never say that about any

program, that you could never be in compliance with

the requirements of OCR.

Q.

Great. And if Quinnipiac's competitive

cheer team as it will exist in next year --

A.

AS it might.

Q.

as it might exist

A.

Right.

Q.

-- for next year could meet the OCR

test, then you'd agree with me that they could count

those 40 spots?

A.

oh, absolutely.

MS. GALLES: Objection.

A.

Absolutely. If it existed in reality,

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 244

absolutely.

Q.

Great.

A.

Good.

Now we're making progress. Page 220

Case 3:09-cv-00621-SRU Document 41-4 Filed 05/14/09 Page 45 of 49
.... ··.:,.·.. ·...· ·.

22:16:24 4 22:16:28 5 22:16:30 6 22:16:33 7 22:16:33 8 22:16:33 9 22:16:33 10 22:16:33 11 22:16:33 12 22:16:33 13 22:16:33 14 22:16:33 15 22:16:33 16 22:16:34 17 22:16:37 18 22:16:39 19 22:16:42 20 22:16:47 21 22:16:49 22 22:16:52 23 22:16:53 24 22:16:56 25
0
22:16:58 1 22:16:58 2 22:17:00 3 22:17:03 4 22:17:07 5 22:17:10 6

Donna Lopiano.txt

THE COURT REPORTER: Excuse me?

I'm just going to ask that if you could please just

speak one at a time.

MS. GAMBARDELLA: I know. It's

getting late. we're really sorry.

THE COURT REPORTER: And it's

getting cut off.

MS. GAMBARDELLA: It's getting kind

of loosey goosey here. You're right. I apologize.

THE COURT REPORTER: Thank you.

THE DEPONENT: It's amazing you've

been at this for so long.

MS. GAMBARDELLA: The fact that

we've been at this for so long is so amazing.

Q.

Now, you testified in a case called

Humphrey's versus Regents of University of

california, correct? That's one of the cases you

listed?

A.

Yes. I don't know I testified in court

on that case.

Q.

okay.

A.

It might have been an expert report.

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 245

Q.

Right.

A.

I don't know.

Q.

You're absolutely right. You had an

expert report. Do you remember what was in that

expert report in terms of not the specifics, Doctor,

because I am sure -Page 221

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0
23:01:18 1 23:01:20 2 23:01:24 3 23:01:24 4

first step.

Donna Lopiano.txt

silly? Not really when you consider

there are NCAA schools that offer sailing, pistol

and bowling. It's not even a question of whether

cheerleading is a sport. It fits into the OCR's

definition." Then there's the four bullet points.

Quote from Mr. orleans, "I've actually

changed my mind about it, said Jeff orleans, the

Executive Director of the Ivy League who is

principal author of Title 9. It seems to look like

an athletic activity. It's physically demanding.

It's competitive, but it suffers from its origins in

girls cheering for boys. It looks enough like a

sport that we ought to let them experiment with it

being a sport."

Do you agree with that?

MS. GALLES: objection; foundation.

MS. GAMBARDELLA: Whether or not

she agrees with it?

MS. GALLES: Agree with

A.

Do I agree with what?

Q.

The quote that it seems to look like an

athletic activity, it's physically demanding, it's

competitive, but suffers from its origins in girls

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 276

cheering for boys. It looks enough like a sport

that we ought to let them experiment with it being a

sport.

A.

I agree with the first part of his

Page 249

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0
23:03:03 1 23:03:08 2 23:03:13 3 23:03:20 4 23:03:24 5 23:03:26 6 23:03:29 7

statement.

Donna Lopiano.txt

Q.

which part?

A.

In terms of it looks like an athletic

activity, physically demanding, it's competitive, it

suffers from its origins of girls cheering for

sports. And I think there's no question that they

have the opportunity to be considered a sport.

Q.

Great. Thank you. That's all I needed

for that.

MS. GAMBARDELLA: Famous. Famous.

(Discussion off the record.)

(Whereupon, the Document Bates Stamped

D0244 was marked as Defendant's Exhibit K for

Identification.)

Q.

Have you ever seen Exhibit K before

which is bates stamped D0244?

A.

I believe it was the backup to -- Yup.

This is Yes.

Q.

Average squad size NCAA sports

Participation Division 1 men's team average squad

size, in the column at the very top -- You have to

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 277

hold it this way -- the sports are listed. can you

tell me what information is contained in this chart?

A.

That for NCAA sports for which they keep

squad size records, these are average squad sizes in

Division 1 men's teams.

Q.

okay. And outdoor track, indoor track

and cross country are listed separately, correct?

Page 250

Case 3:09-cv-00621-SRU Document 41-4 Filed 05/14/09 Page 48 of 49

·::::- . . .

··:·:

23:03:32 8 23:03:33 9 23:03:35 10 23:03:41 11 23:03:44 12 23:03:45 13 23:03:48 14 23:03:50 15 23:03:52 16 23:03:53 17 23:03:55 18 23:03:58 19 23:04:01 20 23:04:07 21 23:04:10 22 23:04:16 23 23:04:17 24 23:04:19 25
0
23:04:23 1 23:04:26 2 23:04:29 3 23:04:32 4 23:04:35 5 23:04:37 6 23:04:40 7 23:04:41 8 23:04:45 9 23:04:47 10

Donna Lopiano.txt

A.

That's correct.

Q.

And the squad size averages are

different for cross country than they are for indoor

and outdoor track, correct?

A.

Absolutely.

Q.

And indoor and outdoor track squad sizes

are different average squad sizes, correct?

A.

Yeah. Mathematically, it's perfectly

understandable.

Q.

How can that be if they're one sport?

A.

They're not the same sports. I mean

there could be -- there could be schools that put in

squad lists Let's say somebody doesn't

participate in indoor and participates only in

outdoor. That's going to affect --

Q.

we're listening to you.

A.

okay. That's going to affect the

computation of average squad size.

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 278

Q.

But if you add the numbers of these

average squad sizes per year -- Let's just take

indoor and outdoor track. Hard to read. But it's

over 60 combined, right?

A.

Well, what does that have to do with

apple pie, though? what's the point?

Q.

I get your point. You're suggesting

that even though they're not three different sports,

average squad size can vary?

A.

Absolutely.

Page 251

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....: :.

23:04:48 11 23:04:49 12 23:04:51 13 23:04:55 14 23:04:57 15 23:04:57 16 23:04:59 17 23:05:03 18 23:05:06 19 23:05:08 20 23:05:13 21 23:05:15 22 23:05:21 23 23:05:25 24 23:05:26 25
D
23:05:28 1 23:05:29 2 23:05:29 3 23:05:32 4 23:05:34 5 23:05:37 6 23:05:40 7 23:05:43 8 23:05:45 9 23:05:47 10 23:05:50 11 23:05:52 12 23:05:53 13

Donna Lopiano.txt

Q.

But they're d1fferent sports?

A. They're not different sports.

They're Indoor and outdoor-- okay. So they're

different sports on this chart.

Q.

Right.

A.

They're two different columns, right?

what I'm saying is, if -- when you comprise these

charts, there are some schools who will have indoor

track. There are some schools who will not have

indoor track. so you shouldn't suspect that the

numbers are going to be the same because they're

going to have a different end, right?

Q.

I don't have to answer questions. You

get to answer questions.

A.

Trust me. It's a different end. That's

CAMPANO & ASSOCIATES
COURT REPORTING SERVICES 279

why the numbers are different.

Q.

All right.

A.

But this is not unusual in terms of

squad lists being computed.

Q.

All right. But I'm clear there's no OCR

advisories that talk about whether or not you can

count those sports, for Title 9 proportionality

purposes, one time, two times or three times?

There's nothing that says --

A.

Are we going over this again?

Q.

I just want to make sure.

A.

You -- You promised not to have to go

over this again, right?

Page 252

Case 3:09-cv-00621-SRU Document 41-6 Filed 05/14/09 Page 1 of 6
TABE
5

_-

.-,....,.

Dear ColleaguCealestete3r :f0ro9m-cvS-t0ep0h6a2n1ie-SMRoUnroDe,oAcsusmisteanntt 4S1ec-6retaFryil,eOdf0fi5c/e1f4o/r0C9iviPl aRgigeh2ts of 6Page 1 of5

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Dear Colleague Letter: Athletic Activities Counted for Title IX Compliance

~~~~~~gJ.fin
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Rec1

OFFICE OF THE ASSISTANT SECRETARY

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The Office for Civil Rights In the United States Department of Education issues this guidance to provide State educational agencies, local educational agencies, and postsecondary institutions with information to ensure that male and female students are provided equal opportunities to participate in intercollegiate and interscholastic athletics programs consistent with Title IX of the Education Amendments of 1972, 20 U.S.C §§ 1681 et seq., and its implementing regulations (34 C.F.R. Part 106).
This guidance represents the Department's current thinking on this topic. It does not create or confer any rights for or on any person. This guidance does not impose any requirements beyond those required under applicable law and regulations.
If you are Interested in commenting on this guidance, please email us your comment at OCR@ed.gov or write to us at the following address: Assistant Secretary for Civil Rights, 400 Maryland Avenue, SW, Potomac Center Plaza, Washington, DC 20202-1100.

... ~.~.~~.t..~cJ.T(lpi
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September 17, 2008
Dear Colleague:
On behalf of the Office for Civil Rights (OCR) of the United States Department of Education, I am writing to provide technical assistance regarding your compliance with Title IX of the Education Amendments of 1972 (Title IX), 20U.S.C. §§ 1681 et seq. Specifically, this letter provides clarifying information to help institutions determine which intercollegiate or interscholastic athletic activities can be counted for the purpose of Title IX compliance; it does not represent a change in OCR's policy under Title IX.
As you are aware, Title IX prohibits discrimination on the basis of sex in education programs and activities by recipients of Federal financial assistance. The Title IX regulations governing athletics state, in relevant part:

htto://www.ed. gov/about/offices/list/ocr/letters/colleague-20080917.html

5/10/2009

Dear

ColleaguCealestete3r :f0ro9m-cvS-t0ep0h6a2n1i-eSMRoUnroDe,oAcsusmisteanntt

4S1ec-r6etaFryil,eOd f0fi5c/e1f4o/r09CivPil aRgigeh3tsof

6 Page

2

of5

No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient...
34 C.F.R. § 106.41(a). In particular, the regulations require institutions to "provide equal athletic opportunity for members of both sexes." 34 C.F.R. § 106.41(c).
When OCR conducts an investigation to determine whether an institution provides equal athletic opportunities as required by the Title IX regulations, OCR evaluates the opportunities provided by the institution's intercollegiate or interscholastic "sports." OCR does not have a specific definition of the term "sport." Instead, OCR considers several factors related to an activity's structure, administration, team preparation and competition, which are identified below, when determining whether an activity is a sport that can be counted as part of an institution's intercollegiate or interscholastic athletics program for the purpose of determining compliance with 34 C.F.R. § 106.41(c).
Many institutions are members of intercollegiate athletic organizations, such as the National Collegiate Athletic Association and the National Association of Intercollegiate Athletics, or state high school associations that have organizational requirements, which address the factors identified by OCR. When the organizational requirements satisfy these factors and compliance with the requirements is not discretionary, OCR will presume that such an institution's established sports can be counted under Title IX. This presumption can be rebutted by evidence demonstrating that the institution is not offering the activity in a manner that satisfies the factors below.
When the presumption does not apply or has been rebutted effectively, OCR will evaluate an institution's activity on a case-by-case basis. In such an evaluation, OCR will consider the factors below to make an overall determination of whether the activity can be considered part of the institution's intercollegiate or interscholastic athletics program for the purpose of Title IX compliance.
If, after reviewing the factors in their entirety, OCR determines that an activity should not be counted under Title IX, an institution may ask OCR to reconsider its initial determination and may provide OCR with other evidence related to the activity's structure, administration, team preparation and competition. This approach affords recipients the flexibility to create athletics programs that are responsive to the specific interests and abilities of their particular student bodies.
In its case-by-case evaluation of whether an activity can be counted as an intercollegiate or interscholastic sport for the purpose of Title IX compliance, OCR will consider all of the following factors:
I. PROGRAM STRUCTURE AND ADMINISTRATION - Taking into account the unique aspects inherent in the nature and basic operation of specific sports, OCR considers whether the activity is structured and administered in a manner consistent with established intercollegiate or interscholastic varsity sports in the institution's athletics program, including:
A. Whether the operating budget, support services (including academic, sports medicine and strength and conditioning support) and coaching staff are administered by the athletics department or another entity, and are provided in a manner consistent with established varsity sports; and
B. Whether the participants in the activity are eligible to receive athletic scholarships and athletic awards (e.g., varsity awards) if available to athletes in established

htto://www.ed.gov/about/offices/list/ocr/letters/colleague-20080917.html

5110/2009

Dear

ColleaguCealestete3r :f0ro9m-cvS-t0ep0h6a2n1ie-SMRoUnroDe,oAcsusmisteanntt

41-6 Filed 05/14/09 Page 4 of Secretary, Office for Civil Rights

6 Page

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of5

varsity sports; to the extent that an institution recruits participants in its athletics program, whether participants in the activity are recruited in a manner consistent with established varsity sports.
II. TEAM PREPARATION AND COMPETITION- Taking into account the unique aspects inherent in the nature and basic operation of specific sports, OCR considers whether the team prepares for and engages in competition in a manner consistent with established varsity sports in the institution's intercollegiate or interscholastic athletics program, including:
A. Whether the practice opportunities (e.g., number, length and quality) are available in a manner consistent with established varsity sports in the institution's athletics program; and
B. Whether the regular season competitive opportunities differ quantitatively and/or qualitatively from established varsity sports; whether the team competes against intercollegiate or interscholastic varsity opponents in a manner consistent with established varsity sports;
When analyzing this factor, the following may be taken into consideration:
1. Whether the number of competitions and length of play are predetermined by a governing athletics organization, an athletic conference, ·or a consortium of institutions;
2. Whether the competitive schedule reflects the abilities of the team; and
3. Whether the activity has a defined season; whether the season is determined by a governing athletics organization, an athletic conference, or a consortium.
C. If pre-season and/or post-season competition exists for the activity, whether the activity provides an opportunity for student athletes to engage in the pre-season and/or post-season competition in a manner consistent with established varsity sports; for example, whether state, national and/or conference championships exist for the activity; and
D. Whether the primary purpose of the activity is to provide athletic competition at the intercollegiate or interscholastic varsity levels rather than to support or promote other athletic activities.
When analyzing this factor, the following may be taken into consideration:
1. Whether the activity is governed by a specific set of rules of play adopted by a state, national, or conference organization and/or consistent with established varsity sports, which include objective, standardized criteria by which competition must be judged;
2. Whether resources for the activity (e.g., practice and competition schedules,l coaching staff) are based on the competitive needs of the team;
3. If post-season competition opportunities are available, whether participation in post-season competition is dependent on or related to regular season results in a manner consistent with established varsity sports; and

http://www.ed.gov/about/offices/list/ocr/letters/colleague-20080917.html

5/10/2009

Case 3:09-cv-00621-SRU Document 41-6 Filed 05/14/09 Page 5 of 6 Dear Colleague letter from Stephanie Monroe, Assistant Secretary, Office for Civil Rights Page 4 of5
4. Whether the selection of teams/participants is based on factors related primarily to athletic ability.
Please keep in mind that OCR's determinations based on these factors are fact-specific. Therefore, determinations may vary depending on a school district or postsecondary institution's athletics program, the nature of the particular activity, and the circumstances under which it is conducted.
It is OCR's policy to encourage compliance with the Title IX athletics regulations in a flexible manner that expands, rather than limits, student athletic opportunities. By disseminating this list of factors, OCR intends to provide institutions with information to include new sports in their athletics programs, such as those athletic activities not yet recognized by governing athletics organizations and those featured at the Olympic games, if they so choose. Expanding interscholastic and intercollegiate competitive athletic opportunities through new sports can benefit students by creating and stimulating student interest in athletics, taking advantage of athletic opportunities specific to a particular competitive region, and providing the opportunity for access to a wide array of competitive athletic activities.
OCR remains available to provide technical assistance on this issue to recipients on a case-by-case basis. If you have further questions regarding the application of Title .IX to athletics programs, or seek technical assistance, please contact the OCR enforcement office serving your state or territory. Contact information for these offices is available on the Department's website at http: //wdcrobcolpO l.ed .gov/CFAPPS/OCR/contactus.cfm.
Thank you for your attention to these matters and your continued efforts to ensure equal athletic opportunities for all of our nation's students.
Sincerely,
Stephanie Monroe Assistant Secretary for Civil Rights
1 For purposes of this analysis, there is no presumption that the amount of time dedicated to competition must be equal to or greater than the amount of time dedicated to practice.

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 Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

----------------------------------- X

STEPHANIE BIEDIGER, KAYLA LAWLER, :

ERIN OVERDEVEST, and KRISTEN

:

CORINALDESI, individually and on

:

behalf of all those similarly situated;

:

LESLEY RIKER on behalf of her minor

:

daughter, Logan Riker, individually

:

and on behalf of all those

:

similarly situated; and

:

ROBIN LAMOTT SPARKS, individually.,

:

:

Plaintiffs,

:

:

against

:

:

QUINNIPIAC UNIVERSITY,

:

:

Defendant.

:

----------------------------------- X

CIVIL ACTION NO: 3:09-CV-00621 (SRU)
DEFENDANT’S ANSWER TO THE FIRST AMENDED CLASS ACTION COMPLAINT
January 13, 2010

Defendant Quinnipiac University, by and through its attorneys, states as follows for its answer to the First Amended Class Action Complaint (“Amended Complaint”):
1. Denies the allegations in paragraph 1 of the Amended Complaint, except admits that Plaintiffs purport to assert class claims as set forth in paragraph 1.
2. Denies the allegations in paragraph 2 of the Amended Complaint, except admits that Plaintiffs make the allegations as set forth in paragraph 2.
3. Denies the allegations in paragraph 3 of the Amended Complaint, except admits that Plaintiffs make the allegations as set forth in paragraph 3.
4. Denies the allegations in paragraph 4 of the Amended Complaint, except admits that Plaintiffs make the allegations as set forth in paragraph 4.

1

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 2 of 19
5. Denies the allegations in paragraph 5 of the Amended Complaint, except admits that Plaintiffs make the allegations as set forth in paragraph 5.
6. The allegations contained in paragraph 6 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the statutes and regulations for their contents.
7. The allegations contained in paragraph 7 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the statutes and regulations for their contents.
8. The allegations contained in paragraph 8 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the statutes and regulations for their contents.
9. The allegations contained in paragraph 9 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the statutes for their contents.
10. Admits that Defendant is located in Hamden, Connecticut and otherwise states that the allegations contained in paragraph 10 of the Amended Complaint contain legal conclusions, which Defendant is required neither to admit nor deny and respectfully refers the Court to the statute for its contents.
11. Admits the allegations set forth in paragraph 11 of the Amended Complaint. 12. Admits the allegations set forth in paragraph 12 of the Amended Complaint. 13. Admits the allegations set forth in paragraph 13 of the Amended Complaint. 14. Admits the allegations set forth in paragraph 14 of the Amended Complaint. 15. Admits the allegations set forth in paragraph 15 of the Amended Complaint.
2

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 3 of 19
16. Admits the allegations set forth in paragraph 16 of the Amended Complaint. 17. Admits the allegations set forth in paragraph 17 of the Amended Complaint. 18. Admits the allegations set forth in the first sentence of paragraph 18 of the Amended Complaint. The allegations contained in the second sentence of paragraph 18 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny. 19. Denies the allegations set forth in paragraph 19 of the Amended Complaint, except admit that Plaintiffs purport to bring this action on behalf of themselves and others similarly situated as set forth in paragraph 19. 20. Denies the allegations set forth in paragraph 20 of the Amended Complaint. 21. Denies the allegations set forth in paragraph 21 of the Amended Complaint. 22. Denies the allegations set forth in paragraph 22 of the Amended Complaint. 23. Denies the allegations set forth in paragraph 23 of the Amended Complaint. 24. Denies the allegations set forth in paragraph 24 of the Amended Complaint, except admits that Quinnipiac is a university whose students typically graduate after approximately four years of enrollment, that its varsity athletes in sports, other than competitive cheer, are subject to the rules of the National Collegiate Athletic Association (“NCAA”) and refers to the rules for their contents. 25. Denies the allegations set forth in paragraph 25 of the Amended Complaint, except admits that it is not known how many female students may enroll at Quinnipiac in the future. 26. Denies the allegations set forth in paragraph 26 of the Amended Complaint. 27. Denies the allegations set forth in paragraph 27 of the Amended Complaint.
3

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 4 of 19
28. Denies the allegations set forth in paragraph 28 of the Amended Complaint. 29. Denies the allegations set forth in paragraph 29 of the Amended Complaint, except denies knowledge or information to form a belief as to the student plaintiffs’ intents. 30. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 30 of the Amended Complaint. 31. Denies the allegations set forth in paragraph 31 of the Amended Complaint. 32. Denies the allegations set forth in paragraph 32 of the Amended Complaint. 33. The allegations contained in paragraph 33 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the statute for its contents. 34. The allegations contained in paragraph 34 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the statute for its contents. 35. The allegations contained in paragraph 35 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the statute and regulations for their contents. 36. The allegations contained in paragraph 36 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the regulations for their contents. 37. Denies the allegations set forth in paragraph 37 of the Amended Complaint. 38. The allegations contained in paragraph 38 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the regulations for their contents.
4

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 5 of 19
39. The allegations contained in paragraph 39 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the regulations for their contents.
40. Denies the allegations set forth in paragraph 40 of the Amended Complaint, except admits that Quinnipiac has completed and submitted Assurance of Compliance forms to the Department of Education and received federal funds.
41. The allegations contained in paragraph 41 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the regulations for their contents.
42. The allegations contained in paragraph 42 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the regulations for their contents.
43. Denies the allegations set forth in paragraph 43 of the Amended Complaint. 44. The allegations contained in paragraph 44 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the regulations for their contents. 45. The allegations contained in paragraph 45 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the regulations for their contents. 46. The allegations contained in paragraph 46 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the regulations for their contents.
5

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 6 of 19
47. The allegations contained in paragraph 47 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the regulations and the referenced OCR policy interpretation for their contents.
48. The allegations contained in paragraph 48 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the referenced policy interpretation for its contents.
49. The allegations contained in paragraph 49 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the referenced policy interpretation for its contents.
50. The allegations contained in paragraph 50 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the referenced policy interpretation for its contents.
51. The allegations contained in paragraph 51 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the referenced policy clarification for its contents.
52. The allegations contained in paragraph 52 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the regulations and referenced policy interpretation for their contents.
53. The allegations contained in paragraph 53 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant
6

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 7 of 19
respectfully refers the Court to the regulations and referenced policy interpretation and “Dear Colleague” letter for their contents.
54. The allegations contained in paragraph 54 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and Defendant respectfully refers the Court to the statute and referenced website for their contents. Defendant further denies knowledge or information sufficient to form a belief as to what guidelines OCR uses when it investigates and enforces Title IX.
55. The allegations contained in paragraph 55 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny.
56. Denies the allegations set forth in the last sentence of paragraph 56 of the Amended Complaint and otherwise states that the allegations contained in paragraph 56 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and respectfully refers the Court to the regulations for their contents.
57. Denies the allegations set forth in the last two sentences of paragraph 57 of the Amended Complaint and otherwise states that the allegations contained in paragraph 57 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and respectfully refers the Court to the regulations for their contents.
58. The allegations contained in paragraph 58 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny, and Defendant respectfully refers the Court to the regulations for their contents.
59. The allegations contained in paragraph 59 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny, and Defendant respectfully refers the Court to the regulations for their contents.
7

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 8 of 19
60. The allegations contained in paragraph 60 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny, and Defendant respectfully refers the Court to the statute and regulations for their contents.
61. Admits the allegations set forth in paragraph 61 of the Amended Complaint. 62. Denies the allegations set forth in paragraph 62 of the Amended Complaint, except admits that Quinnipiac offers women’s indoor track and women’s outdoor track and that prior to the 2009-10 academic year, Quinnipiac also offered men’s indoor track and men’s outdoor track. 63. Denies the allegations set forth in paragraph 63 of the Amended Complaint, except admits that neither Quinnipiac’s women’s indoor track team nor its outdoor track team currently competes in, recruits athletes to compete in, or offers athletic scholarships for competition in hurdles, throwing, jumping, or pole vaulting nor do they target sprinters for recruiting or offer them athletic scholarships. 64. Denies the allegations set forth in paragraph 64 of the Amended Complaint. 65. Denies the allegations set forth in paragraph 65 of the Amended Complaint. 66. Admits the allegations set forth in paragraph 66 of the Amended Complaint. 67. Denies the allegations set forth in paragraph 67 of the Amended Complaint. 68. Admits the allegatons set forth in paragraph 68 of the Amended Complaint. 69. Admits the allegations set forth in paragraph 69 of the Amended Complaint. 70. Admits the allegations set forth in the first sentence of paragraph 70 of the Amended Complaint and denies knowledge or information sufficient to form a belief as to the last two sentences in paragraph 70 of the Amended Complaint. 71. Admits the allegations set forth in paragraph 71 of the Amended Complaint.
8

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 9 of 19
72. Admits the allegations set forth in paragraph 72 of the Amended Complaint. 73. Denies the allegations set forth in paragraph 73 of the Amended Complaint, except admits that Plaintiffs’ counsel sent Defendant a letter dated March 27, 2009 and respectfully refers the Court to the letter for its contents. 74. Admits the allegations set forth in paragraph 74 of the Amended Complaint. 75. Admits that the Court held a hearing on the motion for preliminary injunction in May, 2009 and that the Court entered a preliminary injunction on May 22, 2009 and respectfully refers the Court to the preliminary injunction for its contents. 76. Denies the allegations set forth in paragraph 76 of the Amended Complaint. 77. Denies the allegations set forth in paragraph 77 of the Amended Complaint. 78. Denies the allegations set forth in paragraph 78 of the Amended Complaint. 79. Denies the allegations set forth in paragraph 79 of the Amended Complaint. 80. Denies the allegations set forth in paragraph 80 of the Amended Complaint. 81. Denies the allegations set forth in paragraph 81 of the Amended Complaint. 82. Denies the allegations set forth in paragraph 82 of the Amended Complaint. 83. Denies the allegations set forth in paragraph 83 of the Amended Complaint, except admits that Defendant need not incur additional costs to comply with the law as it is already in compliance. 84. The allegations contained in the first two sentences of paragraph 84 of the Amended Complaint set forth legal conclusions Defendant is required neither to admit nor deny. Defendant denies the allegations set forth in the remainder of paragraph 84 of the Amended Complaint. 85. Denies the allegations set forth in paragraph 85 of the Amended Complaint.
9

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 10 of 19
86. Denies the allegations set forth in paragraph 86 of the Amended Complaint. 87. Repeats and realleges each and every response set forth in paragraphs 1 through 86 of this Answer with the same force and effect as if fully set forth herein. 88. Denies the allegations set forth in paragraph 88 of the Amended Complaint, except admits that the Student Plaintiffs purport to bring this claim as a class action. 89. Admits the allegations set forth in paragraph 89 of the Amended Complaint. 90. Denies the allegations set forth in paragraph 90 of the Amended Complaint. 91. Denies the allegations set forth in paragraph 91 of the Amended Complaint. 92. The allegations contained in paragraph 92 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny, and Defendant respectfully refers the Court to the referenced policy clarification for its contents. 93. The allegations contained in paragraph 93 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny, and Defendant respectfully refers the Court to the referenced policy interpretation and policy clarification for their contents. 94. Denies the allegations set forth in the second and third sentences of paragraph 94 of the Amended Complaint and states that the allegations contained in the first sentence of paragraph 94 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny, and Defendant respectfully refers the Court to the statute for its contents. 95. Denies the allegations set forth in paragraph 95 of the Amended Complaint. 96. Denies the allegations set forth in paragraph 96 of the Amended Complaint. 97. Denies the allegations set forth in paragraph 97 of the Amended Complaint.
10

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 11 of 19
98. Denies the allegations set forth in paragraph 98 of the Amended Complaint. 99. Denies the allegations set forth in paragraph 99 of the Amended Complaint. 100. Denies the allegations set forth in paragraph 100 of the Amended Complaint. 101. Denies the allegations set forth in the first sentence of paragraph 101 of the Amended Complaint and denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted in the second and third sentences of paragraph 101. 102. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 102 of the Amended Complaint. 103. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 103 of the Amended Complaint. 104. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 104 of the Amended Complaint. 105. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 105 of the Amended Complaint. 106. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 106 of the Amended Complaint. 107. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 107 of the Amended Complaint. 108. Denies the allegations set forth in paragraph 108 of the Amended Complaint. 109. Denies the allegations set forth in paragraph 109 of the Amended Complaint, except admits that competition exists in intercollegiate volleyball. 110. Admits the allegations set forth in paragraph 110 of the Amended Complaint.
11

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 12 of 19
111. Denies the allegations set forth in paragraph 111 of the Amended Complaint, except admits, upon information and belief, that some NCAA member schools sponsor teams in and the NCAA sponsors women’s national championships in basketball, bowling, cross country, fencing, field hockey, golf, gymnastics, ice hockey, indoor track and field, lacrosse, outdoor track and field, rifle, rowing, skiing, soccer, softball, swimming and diving, tennis, volleyball, and water polo.
112. Denies the allegations set forth in 112 of the Amended Complaint, except admits that QU is a member of the Northeast Conference (“NEC”), that the NEC women’s sports include basketball, bowling, cross country, field hockey, golf, indoor track and field, lacrosse, outdoor track and field, soccer, softball, swimming, tennis, and volleyball and that there is competition available for QU in these sports.
113. Denies the allegations set forth in paragraph 113 of the Amended Complaint, except admits that QU sponsors ice hockey even though the NEC does not sponsor ice hockey, that QU joined the Eastern Collegiate Athletic Conference (“ECAC”) to give its ice hockey teams intercollegiate competition, that, upon information and belief, the ECAC sponsors the following women’s sports: basketball, bowling, cross country, field hockey, golf, gymnastics, indoor track and field, lacrosse, outdoor track and field, soccer, softball, swimming & diving, tennis, synchronized swimming, volleyball, and water polo, and that there is competition for QU in these sports.
114. Admits the allegations set forth in paragraph 114 of the Amended Complaint. 115. Denies the allegations set forth in paragraph 115 of the Amended Complaint. 116. Denies the allegations set forth in paragraph 116 of the Amended Complaint. 117. Denies the allegations set forth in paragraph 117 of the Amended Complaint.
12

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 13 of 19
118. Denies the allegations set forth in paragraph 118 of the Amended Complaint, except admits that Quinnipiac was required to engage in a self study of its atheletic program in connection with maintaining its status as an NCAA Division I school and respectfully refers the Court to the report for its contents.
119. Denies the allegations set forth in paragraph 119 of the Amended Complaint. 120. Denies the allegations set forth in paragraph 120 of the Amended Complaint. 121. Repeats and realleges each and every response set forth in paragraphs 1 through 120 of this Answer with the same force and effect as if fully set forth herein. 122. Denies the allegations set forth in paragraph 122 of the Amended Complaint, except admits that the Student Plaintiffs purport to bring their claim as a class claim. 123. Admits the allegations set forth in paragraph 123 of the Amended Complaint. 124. The allegations contained in paragraph 124 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and respectfully refers the Court to the statute and regulations for their contents. 125. Denies the allegations set forth in paragraph 125 of the Amended Complaint. 126. Denies the allegations set forth in paragraph 126 of the Amended Complaint. 127. Denies the allegations set forth in paragraph 127 of the Amended Complaint. 128. Repeats and realleges each and every response set forth in paragraphs 1 through 127 of this Answer with the same force and effect as if fully set forth herein. 129. Denies the allegations set forth in paragraph 129 of the Amended Complaint, except admits that the Student Plaintiffs purport to bring their claim as a class claim.
13

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 14 of 19
130. Admits the allegations set forth in paragraph 130 of the Amended Complaint, except denies that Defendant provides its varsity student athletes with housing and dining services that differ from those provided to all students.
131. The allegations contained in paragraph 131 of the Amended Complaint set forth legal conclusions that Defendant is required neither to admit nor deny and respectfully refers the Court to the statute and regulations for their contents.
132. Denies the allegations set forth in paragraph 132 of the Amended Complaint. 133. Denies the allegations set forth in paragraph 133 of the Amended Complaint. 134. Denies the allegations set forth in paragraph 134 of the Amended Complaint. 135. Denies the allegations set forth in paragraph 135 of the Amended Complaint. 136. Denies the allegations set forth in paragraph 136 of the Amended Complaint. 137. (Misnumbered in the Complaint as 147) Repeats and realleges each and every response set forth in paragraphs 1 through 136 of this Answer with the same force and effect as if fully set forth herein. 138. Denies the allegations set forth in paragraph 138 of the Amended Complaint. 139. Admits the allegations set forth in paragraph 139 of the Amended Complaint, except denies knowledge or information sufficient to form a belief as to Coach Sparks’s state of mind and denies considering eliminating volleyball in 2006. 140. Denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted in paragraph 140 of the Amended Complaint, except admits that Coach Sparks accepted the job and moved to Hamden, Connecticut. 141. Admits the allegations set forth in paragraph 141 of the Amended Complaint.
14

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 15 of 19
142. Denies the allegations set forth in paragraph 142 of the Amended Complaint, except admits that, in March 2009, Defendant announced its intention to eliminate women’s varsity volleyball and Coach Sparks’s job effective July 2009.
143. Denies the allegations set forth in paragraph 143 of the Amended Complaint. 144. Denies the allegations set forth in paragraph 144 of the Amended Complaint. 145. Denies the allegations set forth in paragraph 145 of the Amended Complaint. 146. Denies the allegations set forth in paragraph 146 of the Amended Complaint. 147. Denies the allegations set forth in paragraph 147 of the Amended Complaint, except admits that Coach Sparks purports to seek the relief described in paragraph 147 of the Amended Complaint. 148. Repeats and realleges each and every response set forth in paragraphs 1 through 147 of this Answer with the same force and effect as if fully set forth herein. 149. Denies the allegations set forth in paragraph 149 of the Amended Complaint, except admits that the named Plaintiffs filed a Complaint with this Court on or about April 16, 2009 and that Plaintiffs’ counsel sent a letter to Defendant on March 27, 2009 and respectfully refers the Court to the letter for its contents. Defendant further admits that Plaintiff Sparks complained about the planned elimination of the volleyball team and her job and indicated her belief that the action may raise gender equity concerns under Title IX. 150. Denies the allegations set forth in paragraph 150 of the Amended Complaint. 151. Denies the allegations set forth in paragraph 151 of the Amended Complaint. 152. Denies the allegations set forth in paragraph 152 of the Amended Complaint. 153. Denies the allegations set forth in paragraph 153 of the Amended Complaint.
15

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 16 of 19
154. Denies the allegations set forth in paragraph 154 of the Amended Complaint, except admits that the competitive cheer team has been using the Burt Khan court, among other facilities.
155. Denies the allegations set forth in paragraph 155 of the Amended Complaint. 156. Denies the allegations set forth in paragraph 156 of the Amended Complaint. 157. Denies the allegations set forth in paragraph 157 of the Amended Complaint. 158. Denies the allegations set forth in paragraph 158 of the Amended Complaint.
AFFIRMATIVE DEFENSES TO PLAINTIFFS’ FIRST CLAIM FOR RELIEF FIRST AFFIRMATIVE DEFENSE
The Complaint, in whole or in part, fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitation and/or filing periods.
THIRD AFFIRMATIVE DEFENSE Plaintiff has failed to state a basis for an award of exemplary and/or punitive damages.
AFFIRMATIVE DEFENSES TO PLAINTIFFS’ SECOND CLAIM FOR RELIEF FIRST AFFIRMATIVE DEFENSE
The Complaint, in whole or in part, fails to state a claim upon which relief can be granted.
16

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 17 of 19
SECOND AFFIRMATIVE DEFENSE Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitation and/or filing periods.
THIRD AFFIRMATIVE DEFENSE Plaintiff has failed to state a basis for an award of exemplary and/or punitive damages.
AFFIRMATIVE DEFENSES TO PLAINTIFFS’ THIRD CLAIM FOR RELIEF FIRST AFFIRMATIVE DEFENSE
The Complaint, in whole or in part, fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitation and/or filing periods.
THIRD AFFIRMATIVE DEFENSE Plaintiff has failed to state a basis for an award of exemplary and/or punitive damages.
AFFIRMATIVE DEFENSES TO PLAINTIFFS’ FOURTH CLAIM FOR RELIEF FIRST AFFIRMATIVE DEFENSE
The Complaint, in whole or in part, fails to state a claim upon which relief can be granted.
17

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 18 of 19

damages.

SECOND AFFIRMATIVE DEFENSE Plaintiff has failed to state a basis for an award of exemplary and/or punitive

AFFIRMATIVE DEFENSES TO PLAINTIFFS’ FIFTH CLAIM FOR RELIEF FIRST AFFIRMATIVE DEFENSE
The Complaint, in whole or in part, fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE Plaintiff has failed to state a basis for an award of exemplary and/or punitive damages.

Dated: January 13, 2010

PROSKAUER ROSE LLP
By: _/s/ Edward A. Brill _______ Edward A. Brill Federal Bar No. phv015747 Susan D. Friedfel Federal Bar No. phv03585
1585 Broadway New York, NY 10036 Tel: 212.969.3000 Fax: 212.969.2900 ebrill@proskauer.com sfriedfel@proskauer.com
WIGGIN AND DANA Mary Gambardella, Esq. Federal Bar No. ct05386 400 Atlantic Street Stamford, CT 06911-0325 Tel: (203) 363-7662 Fax: (203)363-7676 mgambardella@wiggin.com
Attorneys for Defendant

18

Case 3:09-cv-00621-SRU Document 104 Filed 01/13/10 Page 19 of 19 CERTIFICATE OF SERVICE
I hereby certify that on January 13, 2010, a copy of the foregoing Opposition to Plaintiffs’ Motion for Miscellaneous Relief was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
_/s/ Edward A. Brill _______ Edward A. Brill Federal Bar No. phv015747
19

 
 Case 3:09-cv-00621-SRU Document 115 Filed 03/01/10 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDEVEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER

)

individually and on behalf of all

)

those similarly situated;

)

and

)

ROBIN LAMOTT SPARKS, individually,

)

)

Plaintiffs,

)

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

)

Defendant.

)

Case No. 3:09-CV-621(SRU) February_, 2010

DECLARATION OF ERIN OVERDEVEST IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
I, Erin Overdevest, state and declare as follows: 1. I am a named plaintiff in the above-referenced matter. I am a female student at Quinnipiac
University ("QD"). The facts contained in this declaration are within my personal knowledge, and I could and would testify truthfully to those facts ifcalled to do so under oath.
2. I am currently a member of the women's varsity intercollegiate volleyball team at QU. I am a graduate student, and my athletic eligibility will be exhausted at the end of this academic year. However, I am deeply committed to equal opportunity for women in college sports, particularly at QU. My experience as a student-athlete at QU was negatively affected by the University's discriminatory attempt to eliminate the volleyball team in early 2009 and its ongoing failure to comply with Title IX. Thus, I oppose any plan or attempt by QU to eliminate volleyball or any other varsity women's athletic participation opportunities. On the contrary, I want to make sure that QU provides female students with as many legitimate (not contrived) athletic participation opportunities as possible. I filed this action to stop QU from

Case 3:09-cv-00621-SRU Document 115 Filed 03/01/10 Page 2 of 4
eliminating women's participation opportlUlities and to require QU to add more participation opportlUlities until QU provides female students with equity compared tb male students.
3. QU provides members ofvarsity athletic teams with athletic financial assistance. I receive such aid. I filed this action to make sure that QU does not eliminate any aid from female athletes and to require QU to allocate more athletic financial assistance to female athletes and women's teams until QU provides female students with athletic scholarship equity compared to male students.
4. QU provides members ofvarsity athletic teams with many benefits unique to athletics such as sports equipment, supplies, unifonns, transportation to/from competitions, travel and per diem for competitions, competition and practice facilities, locker rooms, medical and training services, strength and conditioning services, access to coaching, academic support services, recruiting support, and publicity. I understand that it would be a violation ofTitle IX for QU to provide more or better benefits to male athletes than to female athletes. Ifit is proven that QU provides more or better benefits to male athletes than to female athletes, I want the Court to require QU to provide female athletes with the same and/or comparable benefits as it provides to male athletes.
5. I am willing to serve as a class representative on behalfofall similarly situated present, prospective, and future female students at QU, as well as those deterred from enrolling at QU because ofthe alleged sex discrimination.
6. I filed this action to make sure that QU complies with Title IX and provides female students with an equal opportlUlity to participate in and receive scholarship aid in athletics - and to be treated equitably once they participate. I am committed to actively pursing this case on behalfofall class members to obtain equal opportlUlity for women in sports.
2

Case 3:09-cv-00621-SRU Document 115 Filed 03/01/10 Page 3 of 4 I declare under penalty ofperjmy that the foregoing is true and correct to the best ofmy lmowledge and recollection. Executed this __ dayofFebruary, 2010, in Hamden, Connecticut.
BY:~? Erin Overdevest
ACTIVEn3061.1/JORLEANS/2012017v1
3

Case 3:09-cv-00621-SRU Document 115 Filed 03/01/10 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on March 1, 2010, a copy of foregoing DECLARATION OF ERIN
oVERDEVEST IN SUPPORT OF MOTION FOR CLASS CERTIFICATION was filed
electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent bye-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CMIECF System.
/s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440)

 
 Case 3:09-cv-00621-SRU Document 116 Filed 03/01/10 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDEVEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER

)

individually and on behalf of all

)

those similarly situated;

)

and

)

ROBIN LAMOTT SPARKS, individually,

)

)

Plaintiffs,

)

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

)

Defendant.

)

Case No. 3:09-CV-621(SRU) February 2.0,2010

DECLARATION OF KAYLA LAWLER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

I, Kayla Lawler, state and declare as follows:

1.

I am a named plaintiff in the above-referenced matter. I am a female student at Quinnipiac

University ("QU"). The facts contained in this declaration are within my personal knowledge, and I could

and would testifY truthfully to those facts ifcalled to do so under oath.

2.

I am currently a member of the women's varsity intercollegiate volleyball team at QU. I

want to continue playing varsity volleyball at QU until I exhaust my NCAA athletic eligibility. Thus, I

oppose any plan or attempt by QU to eliminate volleyball or any other varsity women's athletic participation

opportunities. On the contrary, I want to make sure that QU provides female students with as many

legitimate (not contrived) athletic participation opportunities as possible. I filed this action to stop QU from eliminating women's participation opportunities and to require QU to add more participation opportunities until QU provides female students with equity compared to male students.

Case 3:09-cv-00621-SRU Document 116 Filed 03/01/10 Page 2 of 4
3. QU provides members ofvarsity athletic teams with athletic financial assistance. I receive such aid. I filed this action to make sure that QU does not eliminate any aid from female athletes and to require QU to allocate more athletic financial assistance to female athletes and women's teams until QU provides female students with athletic scholarship equity compared to male students.
4. QU provides members ofvarsity athletic teams with many benefits unique to athletics such as sports equipment, supplies, unifonns, transportation to/from competitions, travel and per diem for competitions, competition and practice facilities, locker rooms, medical and training services, strength and conditioning services, access to coaching, academic support services, recruiting support, and publicity. Based upon my own observation and information provided by other QU athletes, I believe that QU provides more benefits to male athletes than to female athletes I filed this action to investigate this belief and to require QU to provide female athletes with the same and/or comparable benefits as it provides to male athletes.
5. I am willing to serve as a class representative on behalfofall similarly situated present, prospective, and future female students at QU, as well as those deterred from enrolling at QU because ofthe alleged sex discrimination.
6. I filed this action to make sure that QU complies with Title IX and provides female students with an equal opportunity to participate in and receive scholarship aid in athletics --- and to be treated equitably once they participate. I am committed to actively pursing this case on behalfofall class members to obtain equal opportunity for women in sports.
2

Case 3:09-cv-00621-SRU Document 116 Filed 03/01/10 Page 3 of 4 I declare under penalty ofpeIjmy that the foregoing is true and correct to the best ofmy knowledge and recollection.
Executed this 2D day ofFebruary, 2010, in Hamden, Connecticut.
BY:~~ Kayla wIer
ACTIVE/73061.1/JORLEANS/2012194v1
3

Case 3:09-cv-00621-SRU Document 116 Filed 03/01/10 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on March 1,2010, a copy of foregoing DECLARATION OF KAYLA LAWLER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent bye-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CMIECF System.
lsi Jonathan B. Orleans Jonathan B. Orleans (ct05440)

 
 Case 3:09-cv-00621-SRU Document 117 Filed 03/01/10 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDEVEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER

)

individually and on behalf of all

)

those similarly situated;

)

and

)

ROBIN LAMOTT SPARKS, individually,

)

)

Plaintiffs,

)

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

)

Defendant.

)

Case No. 3:09-CV-621(SRU) Februaryrz)), 2010

DECLARATION OF STEPHANIE BIEDIGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

I, Stephanie Biediger, state and declare as follows:

1.

I am a named plaintiff in the above-referenced matter. I am a female student at Quinnipiac

University ("QU"). The facts contained in this declaration are within my personal knowledge, and I could

and would testify truthfully to those facts ifcalled to do so under oath.

2.

I am currently a member of the women's varsity intercollegiate volleyball team at QU. I

did not play during the Fall 2009 season due to injury, but I expect to return and I want to continue playing varsity volleyball at QU until I exhaust my NCAA athletic eligibility. Thus, I oppose any plan or attempt by QU to eliminate volleyball or any other varsity women's athletic participation opportunities. On the contrary, I want to mal(e sure that QU provides female students with as many legitimate (not contrived) athletic participation opportunities as possible. I filed this action to stop QU from eliminating women's participation opportunities and to require QU to add more participation opportunities until QU provides female students with equity compared to male students.

Case 3:09-cv-00621-SRU Document 117 Filed 03/01/10 Page 2 of 4
3. QU provides members ofvarsity athletic teams with athletic financial assistance. I receive such aid. I filed this action to make sure that QU does not eliminate any aid from female athletes and to require QU to allocate more athletic financial assistance to female athletes and women's teams until QU provides female students with athletic scholarship equity compared to male students.
4. QU provides members ofvarsity athletic teams with many benefits unique to athletics such as sports equipment, supplies, unifonns, transportation to/from competitions, travel and per diem for competitions, competition and practice facilities, locker rooms, medical and training services, strength and conditioning services, access to coaching, academic support services, recruiting support, and publicity. Based upon my own observation and infonnation provided by other QU athletes, I believe that QU provides more benefits to male athletes than to female athletes I filed this action to investigate this belief and to require QU to provide female athletes with the same and/or comparable benefits as it provides to male athletes.
5. I am willing to serve as a class representative on behalfofall similarly situated present, prospective, and future female students at QU, as well as those deterred from enrolling at QU because ofthe alleged sex discrimination.
6. I filed this action to mal<e sure that QU complies with Title IX and provides female students with an equal opportunity to participate in and receive scholarship aid in athletics --- and to be treated equitably once they participate. I am committed to actively pursing this case on behalfofall class members to obtain equal opportunity for women in sports.
2

Case 3:09-cv-00621-SRU Document 117 Filed 03/01/10 Page 3 of 4 I declare under penalty ofpetjury that the foregoing is true and correct to the best ofmy knowledge and recollection.
Executed this ]A) day ofFebruary, 2010, in Hamden, Connecticut.
By:
ACTIVE/73061.1/JORLEANS/2011907v1
3

Case 3:09-cv-00621-SRU Document 117 Filed 03/01/10 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on March 1, 2010, a copy of foregoing DECLARATION OF STEPHANIE BIEDIGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent bye-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CMIECF System.
/s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440)

 
 Case 3:09-cv-00621-SRU Document 118 Filed 03/01/10 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDEVEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER

)

individually and on behalf of all

)

those similarly situated;

)

and

)

ROBIN LAMOTT SPARKS, individually,

)

)

Plaintiffs,

)

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

)

Defendant.

)

Case No. 3:09-CV-621(SRU) February (7.5,2010

DECLARATION OF KRISTEN CORINALDESI IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
I, Kristen Corinaldesi, state and declare as follows: 1. I am a named plaintiff in the above-referenced matter. I am a female student at Quinnipiac
University ("QU"). The facts contained in this declaration are within my personal knowledge, and I could and would testify truthfully to those facts ifcalled to do so under oath.
2. I am currently a senior at QU and a member of the women's varsity intercollegiate volleyball team. My athletic eligibility will be exhausted at the end of this year. However, I am deeply committed to equal opportunity for women in college sports, particularly at QU. I likely would not have attended QU if it had not had a volleyball program. My experience as a student-athlete at QU was negatively affected by the University's discriminatory attempt to eliminate the volleyball team in early 2009 and its ongoing failure to comply with Title IX. I oppose any plan or attempt by QU to eliminate volleyball or any other varsity women's athletic participation opportunities. On the contrary, I want to make sure that QU provides female students with as many legitimate (not contrived) athletic participation opportunities as

Case 3:09-cv-00621-SRU Document 118 Filed 03/01/10 Page 2 of 4
possible. I filed this action to stop QU from eliminating women's participation opportunities and to require QU to add more participation opportunities wtil QU provides female students with equity compared to male students.
3. QU provides members ofvarsity athletic teams with athletic financial assistance. I receive such aid. I filed this action to make sure that QU does not eliminate any aid fi'om female athletes and to require QU to allocate more athletic financial assistance to female athletes and women's teams wtil QU provides female students with athletic scholarship equity compared to male students.
4. QU provides members ofvarsity athletic teams with many benefits l.U1ique to athletics such as sports equipment, supplies, l.U1ifonns, transportation to/from competitions, travel and per diem for competitions, competition and practice facilities, locker rooms, medical and training services, strength and conditioning services, access to coaching, academic support services, recruiting support, and publicity. I wderstand that it would be a violation ofTitle IX for QU to provide more or better benefits to male athletes than to female athletes. Ifit is proven that QU provides more or better benefits to male athletes than to female athletes, I want the Court to require QU to provide female athletes with the same and/or comparable benefits as it provides to ma1e athletes.
5. I am willing to serve as a class representative on behalfofall similarly situated present, prospective, and future female students at QU, as well as those deterred from enrolling at QU because ofthe alleged sex discrimination.
6. I filed this action to make sure that QU complies with Title IX and provides female students With an equal opportunity to participate in and receive scholarship aid in athletics --- and to be treated equitably once they participate. I am committed to actively pursing this case on behalfofall class members to obtain equal opportunity for women in sports.
2

Case 3:09-cv-00621-SRU Document 118 Filed 03/01/10 Page 3 of 4 I declare under penalty ofpeljury that the foregoing is true and correct to the best ofmy knowledge and recollection.
Executed this d5 day ofFebruary, 2010, in Hamden, Connecticut.
BY:~ Kristen Corinaldesi
ACTIVE/73061.1/JORLEANS/2012016v2
3

Case 3:09-cv-00621-SRU Document 118 Filed 03/01/10 Page 4 of 4 CERTIFICATE OF SERVICE
I hereby certify that on March 1, 2010, a copy of foregoing DECLARATION OF KRISTEN CORINALDESI IN SUPPORT OF MOTION FOR CLASS CERTIFICATION was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent bye-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CMIECF System.
fsf Jonathan B. Orleans Jonathan B. Orleans (ct05440)
4

 
 Case 3:09-cv-00621-SRU Document 130 Filed 04/07/10 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDEVEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER,

)

individually and on behalf of all

)

those similarly situated;

)

and

)

ROBIN LAMOTT SPARKS, individually,

)

)

Plaintiffs,

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

)

Defendant.

)

Case No. 3:09-CV-621(SRU) April 7, 2010

SUPPLEMENTAL DECLARATION OF ALEX V. HERNANDEZ IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

I, ALEX V. HERNANDEZ, declare as follows: 1. I am over the age of 18 and am competent to testify about the matters set forth
herein. 2. I am one of the attorneys for the plaintiffs in the above-captioned action. I submit
this supplemental declaration to supplement the Plaintiffs’ Motion for Class Certification pursuant to Fed. R. Civ. P. 23.
3. This Declaration is also submitted in support of the Plaintiff’s Reply to the Defendant’s Memorandum in Opposition to the Plaintiffs’ Motion for Class Certification (“Reply,” Document Number 129).
4. Discovery materials have been exchanged among the parties to this lawsuit and the discovery process is on going. Among the materials exchanged were the Plaintiffs’ Requests for Admissions and the Defendant’s Responses thereto.

Case 3:09-cv-00621-SRU Document 130 Filed 04/07/10 Page 2 of 3 5. Exhibit A appended hereto is a true and exact copy of Requests for Admission and Responses to Requests for Admission Numbers 50 through 94 exchanged by the parties to this action. I declare under penalty of perjury that the foregoing facts are true and correct to the best of my knowledge and recollection. Executed this 7th day of April, 2010, in Bridgeport, Connecticut.
By: /s/ Alex V. Hernandez Alex V. Hernandez
2

Case 3:09-cv-00621-SRU Document 130 Filed 04/07/10 Page 3 of 3
CERTIFICATION of SERVICE I hereby certify that on the date hereon, a copy of the foregoing SUPPLEMENTAL DECLARATION OF ALEX V. HERNANDEZ IN SUPPORT OF MOTION FOR CLASS CERTIFICATION was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.
/s/ Alex V. Hernandez Alex V. Hernandez (ct08345)
ACTIVE/73061.1/AHERNANDEZ/2093160v1
3

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Case 3:09-cv-00621-SRU Document 130-1 Filed 04/07/10 Page 9 of 9

 
 Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDEVEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER,

)

individually and on behalf of all those

)

similarly situated; and

)

ROBIN LAMOTT SPARKS, individually,

)

)

Plaintiffs, )

v.

)

)

QUINNIPIAC UNIVERSITY,

)

)

Defendant. )

Case No. 3:09-CV-621(SRU) June 10, 2010

JOINT PRE-TRIAL ORDER
The parties shall jointly submit, in one continuous document signed by counsel for all parties, a final pretrial memorandum (in compliance with Rule 16 of the Local Rules of Civil Procedure and in lieu of the pretrial memorandum required by the Standing Order Regarding Trial Memoranda in Civil Cases). In addition to filing an original of the pretrial memorandum with the Clerk of the Court, counsel shall also provide to Chambers a courtesy copy of the pretrial memorandum and all attachments thereto, both in hard copy and on a 3 ½" computer diskette in WordPerfect or pdf format. The pretrial memorandum shall contain the following information:

1. TRIAL COUNSEL:
Plaintiffs: Jonathan B. Orleans and Alex V. Hernandez Pullman & Comley, LLC 850 Main Street Bridgeport, CT 06604 (P) 203 330 2000 (F) 203 330 2288 email: jborleans@pullcom.com
ahernandez@pullcom.com

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 2 of 18
Kristen Galles (pro hac vice) Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 (P) 703 722 1071 email: kgalles@comcast.net
Defendants: Edward A. Brill, Susan D. Friedfel and Rebecca Berkebile (pro hace vice)
Proskauer Rose, LLP 1585 Broadway New York, NY 10036-8299 (P) 212-969-3000 (F) 212-969-2900
Mary A. Gambardella Wiggin and Dana, LLP 400 Atlantic Street P.O. Box 110325 Stamford, CT 06911-0325 (P) 203-363-7662 (F) 203-363-7676
2. JURISDICTION: Federal question jurisdiction is not contested.
3. JURY/NON-JURY: Non-Jury.
4. LENGTH OF TRIAL: 5 days (First Claim for Relief only)
5. FURTHER PROCEEDINGS: Unknown
6. NATURE OF CASE:
The Plaintiffs allege that Quinnipiac University discriminates on the basis of sex in the operation of its varsity athletics program, in violation of Title IX of the Education Amendments of 1972 (20 U.S.C. § 1682 et seq.) and the regulations adopted pursuant thereto (34 C.F.R. Part 106). The Court has certified a plaintiff class consisting of :
All present, prospective, and future female students at Quinnipiac University who are harmed by and want to end Quinnipiac University’s sex discrimination in: (1)
2

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 3 of 18
the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes.
By agreement of the parties approved by the Court, only Plaintiffs’ First Claim for Relief, challenging the University’s allocation of athletic participation opportunities and seeking, on behalf of the Plaintiff Class, an injunction, will be tried at this time.
7. STATEMENT OF THE CASE:
Plaintiffs’ Contentions
The Student Plaintiffs are, or at all relevant times were, members of Quinnipiac University’s (“QU”) women’s volleyball team. Robin Lamott Sparks coaches the team. In early March, 2009, QU announced that it would eliminate the volleyball program (which was limited to women), along with men’s golf and men’s outdoor track, at the end of the 2008-09 academic year. Because the University was not then in compliance with its Title IX obligations, and indeed had never complied with those obligations, the Student Plaintiffs and their coach brought this action, seeking, inter alia, reinstatement of the volleyball program. On May 22, 2009, the Court granted Plaintiffs’ motion for a preliminary injunction and required QU to maintain the program without reduction pending further order of the Court.
The Court found that QU had failed to offer athletic participation opportunities to male and female student athletes in substantially the same proportions as the gender composition of the undergraduate student body. The Court criticized the University’s implementation of “roster management,” pursuant to which floors were set under women’s team rosters and ceilings were set for men’s team rosters in order to create the appearance of gender equity, while genuine participation opportunities remained inequitably allocated.
Plaintiffs expect the evidence at trial to show that the University continues to manage its rosters to create the appearance of gender equity, but also continues to allocate to men’s teams more than their proportionate share of genuine participation opportunities. The Defendant maintains the appearance, but not the reality, of Title IX compliance by, among other things: (a) maintaining on women’s team rosters studentathletes who are not actually able to compete at the Division 1 level, thus overstating the numbers of genuine participation opportunities provided to women; (b) maintaining women’s teams in certain sports that are so large that not all student-athletes get genuine participation opportunities; (c) counting “competitive cheer” as a varsity sport, despite the facts that it is not recognized as a sport by the NCAA or the federal Department of Education and lacks necessary characteristics of a genuine college sport, including but not limited to a sufficient number of participating schools to provide adequate competition, established rules, and a recognized and organized national governing body ; (d) triple-counting female student-athletes who participate in cross-country, indoor track,
3

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 4 of 18
and outdoor track, even though such women do not each receive three genuine athletic participation opportunities; and (e) double-counting female student-athletes who do not run cross country but who participate in indoor track and outdoor track, even though such women do not each receive two genuine athletic participation opportunities.
There are several reasons that the multiple counting of cross country and track athletes at Quinnipiac is inappropriate for Title IX purposes. The University operates its women’s track program essentially as an adjunct to the cross country team; i.e., as a way to keep its cross country runners training and competing in distance events year-round. It does not offer athletic scholarships to runners who do not run cross country, does not compete in field events (save for the occasional runner with high school experience in, for example, the triple jump), and rarely competes in sprints or hurdles. It is almost mathematically impossible for Quinnipiac’s track teams ever to win a meet, because they do not enter enough events and are not sufficiently competitive in any events other than distance running. It is thus factually inaccurate to say that a runner who runs cross country, indoor track, and outdoor track uses three genuine participation opportunities, or that one who runs indoor and outdoor track uses two.
Moreover, Quinnipiac does not sponsor men’s indoor or outdoor track teams, but its male cross country runner, like its female cross country runners, train year-round. Under NCAA rules, the men could also enter a limited number of indoor and/or outdoor competitions as Quinnipiac-sponsored runners, although the University did not allow them to do so in the year just ended. Allowing the University to count its women who run twice or three times, while it counts its men who run only once, distorts the true picture of the allocation of athletic participation opportunities at Quinnipiac.
Defendant did not comply with Title IX in the 2009-10 academic year, and has no realistic plan for future compliance, absent volleyball. The preliminary injunction should therefore be made permanent.
Defendant’s Contentions:
1. Defendant complies with Title IX by providing women and men athletic opportunities proportional to the number of women and men in Quinnipiac’s undergraduate population, satisfying Prong One of the three prongs set out in OCR’s Policy Interpretation as a way of providing effective accommodation of students’ interests and abilities in athletics.
4

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 5 of 18

Roster Management
2. In the 2009-2010 academic year, on the first date of competition for its various sports, Quinnipiac had 166 male athletes and 274 female athletes, making 37.73% of the University’s athletes male and 62.27% female. This was substantially proportionate to the University’s undergraduate population for both 2009-2010 and 2008-2009, as shown below.

Male
2009-2010 Varsity Athletes 166 (Number)
2009-2010 Varsity Athletes 37.73% (Percent)
2009-2010 Undergraduate 38.13% Population
2008-2009 Undergraduate 38.40% Population

Female 274 62.27% 61.87% 61.60%

Total 440 100% 100% 100%

3. On July 1, 2009, Dr. Mark Thompson, Senior Vice President for Academic and Student Affairs at Quinnipiac, assumed responsibility for the Athletics Department. In this capacity, he took charge of the roster management program.
4. During the summer of 2009, Dr. Thompson determined proposed roster numbers based on the past sizes of rosters at Quinnipiac and NCAA averages. Dr. Thompson then met with each coach to discuss the proposed roster numbers to ensure that they could provide genuine athletic opportunities to all of the students on their rosters and invited the coaches to suggest any changes to the proposed numbers they felt appropriate for their teams. After considering the coaches’ comments and suggestions, Dr. Thompson made additional changes in the proposed rosters and notified coaches of the final roster numbers in late July.
5. Once the rosters had been set, any coach who wanted to add or delete an athlete from a team had to get approval from Dr. Thompson by presenting a legitimate reason why the change was necessary. This procedure worked well, and the adds and deletes in 20092010 were all for legitimate reasons. For example, certain students were added to teams when the need arose for a player in a specific position because other members of the team were injured. On the other hand, some students quit their teams because of injuries, to focus on their academics, or because they transferred out of Quinnipiac.

5

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 6 of 18

6. Dr. Thompson’s close supervision over the additions and deletions from teams in 20092010 is evidenced by the consistency between the number of students on teams on the first date of competition and the number of students on teams on the last date of competition. On the last date of teams’ competitions, there were 162 male athletes at Quinnipiac, equaling 37.67% of the athletes, and 268 female athletes, equaling 62.33% of the athletes (a .05% increase in the proportion of women from the squad sizes on the first date of competition).
7. All of the students on Quinnipiac’s athletic teams in 2009-2010 received genuine participation opportunities. The students practiced and trained with their teams, and the vast majority of students competed on behalf of Quinnipiac. Of the few students who did not compete, most did not compete because they were injured.
8. Quinnipiac will remain in compliance with Title IX by satisfying Prong One in 20102011. Dr. Thompson engaged in an interactive process with the coaches to set the roster numbers for 2010-2011. Based largely on the needs and requests of the coaches, Dr. Thompson adjusted certain roster sizes for 2010-2011. The projected rosters for 2010-2011 include 168 males and 296 females, giving men 36.21% of the spots on teams and women 63.79% of the spots. If the volleyball team is cut, women would have 282 spots, and would still have 62.67% of the athletic spots at Quinnipiac, which is .4% more than the percentage of female undergraduate students at Quinnipiac this past year.

Male

Female

Number

2010-2011 Varsity Athletes – With Volleyball

168

296

Percent

36.21%

63.79%

Number

2010-2011 Varsity Athletes – Without Volleyball

168

282

Percent

37.33%% 62.67%

2009-2010 Undergraduate Population 38.13%

61.87%

Total
464 100%
450 100% 100%

9. Dr. Thompson will continue monitoring any additions and deletions to teams in 20102011, to ensure that any changes to rosters are for legitimate reasons and that roster sizes are determined based on the needs of coaches and NCAA average squad sizes.
6

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 7 of 18
10. Quinnipiac expects that Plaintiffs will contend that despite the proportional number of student athletes, the University was not in compliance in 2009-2010 because (a) Quinnipiac’s varsity Competitive Cheer team should not count as a sport, and (b) cross country, indoor track and field and outdoor track and field should not count as separate sports. Neither of these contentions has any merit.
Cross Country / Indoor Track and Field / Outdoor Track and Field
11. In 2009-2010, Quinnipiac’s women’s cross country team had 18 athletes, and its indoor track and field team and outdoor track and field team each had 30 athletes. Quinnipiac properly counts for Title IX purposes athletes who compete on two or three of these separate teams as counting separately in each sport. The NCAA considers these three sports as separate sports and each sport has its own NCAA championship.
12. As the Court stated in its preliminary injunction decision, “Cross country, indoor track, and outdoor track have separate NCAA championships and are, at their heart, different sports.”
13. The way Quinnipiac runs its cross country, indoor track and field and outdoor track and field teams is similar to the way many other schools run their teams. Quinnipiac’s cross country, indoor track and field and outdoor track and field teams comply with NCAA rules governing the minimum number of athletes on a team and the minimum number of required contests. There is no requirement that a team enter both track and field events or any given number of events or combination of events. The athletes on each of Quinnipiac’s cross country, indoor track and field and outdoor track and field teams obtain genuine athletic opportunities. Plaintiffs’ arguments that Quinnipiac’s teams are not legitimate teams or that athletes on the teams are not varsity level athletes are completely without merit.
14. The way Quinnipiac counts its cross country, indoor track and field and outdoor track and field athletes comports with OCR guidance in its January 16, 1996 Clarification of Intercollegiate Athletics Policy Guidance: The Three Part Test, which states: “In determining the number of participation opportunities for the purposes of the interests and abilities analysis, an athlete who participates in more than one sport will be counted as a participant in each sport in which he or she participates.”
Competitive Cheer
15. Competitive Cheer is a varsity sport that offers women at Quinnipiac genuine athletic opportunities. As anyone who observes a Competitive Cheer competition can see, the sport requires a high level of athletic ability.
16. Five schools that currently sponsor varsity Competitive Cheer, including Quinnipiac, and one that has announced that it will sponsor a team in 2010-11, joined together in or about September 2009 to form the National Competitive Stunts and Tumbling Association (NCSTA) – a governing body – to further the development of the sport.
7

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 8 of 18
17. The NCSTA designed a new competition format that includes numerous compulsory and optional rounds in which individual or small groups of athletes compete, as well as the traditional group performance. These rounds include 4 partner stunt rounds, 2 pyramid rounds, 2 basket toss rounds, and 7 tumbling rounds. The NCSTA further developed judging criteria and appropriate score-sheets for this new format. Athletes are judged based on the skill with which they complete various athletic feats, testing for strength, endurance, precision, flexibility, and level of difficulty. The meet format is designed so that competitions can be conducted in a head to head meet or a larger invitational.
18. The Quinnipiac Competitive Cheer team competed in ten meets this past season, including two meets under the newly designed NCSTA format. Given the emerging nature of the sport and that this is the NCSTA’s first year, Quinnipiac also competed against other college teams in traditional cheer competitions sponsored by various other organizations. In these competitions, the athletes were judged based on a two-and-a-half minute routine. The team was scored based on the difficulty level and execution of a series of skills, including partner stunts, pyramids, basket tosses, and tumbling, as well as overall choreography and synchronization.
19. It is Quinnipiac’s intent to increase the number of meets governed by the NCSTA and decrease those governed by other bodies such that, in the near future, all competition will be governed by the NCSTA. The University has already committed to five NCSTA meets for the 2010-11 season against other NCSTA varsity teams. The remainder of the schedule has not yet been set.
20. The NCSTA will also sponsor a national championship in April 2011, which will be structured similarly to a basketball tournament with brackets. The NCSTA intends to apply for NCAA emerging sport status in the next year, and has engaged in preliminary discussions with the NCAA Committee on Women’s Athletics towards that goal.
21. OCR considers a number of factors in determining whether an activity is a sport, which are set out in OCR’s September 17, 2008 “Dear Colleague” letter. Quinnipiac’s Competitive Cheer team satisfies virtually all of these factors, which are broken down into two categories: (1) program structure and administration, and (2) team preparation and competition.
22. In terms of program structure and administration, the Competitive Cheer team is run by the Quinnipiac Athletics Department, just like every other varsity sport at the University. The University requires the Competitive Cheer team to comply with all NCAA rules regarding practice time, academic eligibility, study time (“power hours”), and community service (“positive play”), just like all of the University’s other varsity athletes. The team regularly works with trainers, receiving strength and conditioning training, just as all other varsity teams at Quinnipiac do. The team has a full time head coach and part time assistant coaches. The team’s coaches also comply with NCAA rules regarding recruiting athletes to the team. The Competitive Cheer team has a number of
8

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 9 of 18
scholarships it distributes to aid in its recruiting efforts (just like Quinnipiac’s other varsity teams).
23. In terms of team preparation and competition, Quinnipiac’s Competitive Cheer team has practice opportunities that are consistent with the school’s other varsity sports in terms of number, length and quality. The NCSTA set a defined season in which Competitive Cheer teams compete, which Quinnipiac follows. The team has a competitive schedule that reflects the abilities of the team. Finally, the sole purpose of the Competitive Cheer team is to engage in athletic competition against other collegiate teams. The team does not engage in any sideline cheerleading activities.
Defendant’s Statement of Legal Issues
1. Does Quinnipiac currently comply with Title IX by satisfying Prong One of the three prong test set out by OCR in its Policy Interpretation, which requires it to provide athletic participation opportunities for male and female students that are substantially proportionate to their respective enrollments?
A. Do Quinnipiac’s roster numbers reflect genuine athletic participation opportunities for student athletes?
B. Does Quinnipiac properly count athletes on its cross country, indoor track and field and outdoor track and field teams for purposes of Title IX?
C. Does Quinnipiac properly count women’s varsity Competitive Cheer for purposes of Title IX?
2. If the Court finds Quinnipiac is not currently in compliance with Title IX, what is the appropriate remedy?
A. Should Quinnipiac be given an opportunity to develop a compliance plan?
B. What notice, if any, should be given to absent class members who may be affected by a remedial order?
8. TRIAL BY MAGISTRATE JUDGE: N/A
9. LIST OF WITNESSES: Each party shall provide the name, address, and a brief summary of the anticipated testimony of all witnesses by separately listing: (a) the witnesses the party expects to call at trial; and (b) the witnesses the party may call at trial if the need arises. Witnesses not listed shall not be permitted to testify at trial, except for good cause shown.
9

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 10 of 18
Plaintiffs expect to call the following witnesses at trial:
1. Stephanie Biediger was a redshirt sophomore member of the volleyball team at Quinnipiac University during the academic year 2009-10, and has three years of athletic eligibility remaining. She will testify about her experience as a member of the QU team, and the impact which the Defendant’s elimination of volleyball would have on her personal, academic, social, and athletic life.
2. Kayla Lawler was a sophomore member of the volleyball team at Quinnipiac University during the academic year 2009-10, and has two years of athletic eligibility remaining. She will testify about her experience as a member of the QU team, and the impact which the Defendant’s elimination of volleyball would have on her personal, academic, social, and athletic life.
3. Erin Overdevest was a graduate student member of the volleyball team at Quinnipiac University during the academic year 2009-10. Her athletic eligibility has been exhausted. She will testify about her experience as a member of the QU team, and the impact which the Defendant’s attempted elimination of volleyball has had on her personal, academic, social, and athletic life.
4. Logan Riker was a freshman member of the volleyball team at Quinnipiac University during the academic year 2009-10. She has three years of athletic eligibility remaining. She will testify about the impact which the Defendant’s elimination of volleyball would have on her personal, academic, and athletic life.
5. Kristen Corinaldesi was a senior member of the volleyball team at Quinnipiac University during the academic year 2009-10. She has graduated from college. She will testify about her experience as a member of the QU team, and the impact which the Defendant’s attempted elimination of volleyball has had on her personal, academic, social, and athletic life.
6. Robin Lamott Sparks is the Head Coach of the volleyball team at Quinnipiac University and an adjunct member of the faculty. She will testify concerning the volleyball program and her observations of the operations of other sports at Quinnipiac.
7. Dr. Donna Lopiano, an expert in the field of collegiate athletics administration, Title IX and Title IX compliance, will testify as an expert witness concerning gender equity in athletic participation, including an explanation of the “three-part test,” measuring gender equity, and the effects of such things as recruitment, athletics administration, budgets, NCAA rules, athletic conferences, and the Equity in Athletics Disclosure Act affect equal opportunity in athletics. She will also testify concerning her assessment of Quinnipiac’s compliance with Prong One of the three-part test.
8. Dr. Athena Yiamouyiannis, an expert in the field of NCAA athletics rules and compliance, will testify as an expert witness by video deposition. She will testify
10

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 11 of 18
concerning (a) NCAA rules and regulations; (b)NCAA championships and sport sponsorship; (c) gender equity, including NCAA gender equity certification; (d) the application of NCAA rules to running sports; (e) whether Defendant operates 2 bona fide varsity running sports; (f) whether Defendant’s plan to count women’s indoor track and women’s outdoor track as separate sports is consistent with NCAA or gender equity rules; (g) whether Defendant’s plan to double and triple count runners or any other athletes is consistent with NCAA and gender equity rules; (h) NCAA championship standards for running sports; (i) average squad sizes; and (j) how Defendant’s cross country and track programs compare to those of other NCAA and/or NEC schools.
9. Mr. Jeff Webb, an expert in cheerleading and related activities, will testify as an expert witness, concerning: (a) the history and background of cheerleading; (b) the nature of cheerleading, including whether it is or should be deemed a varsity sport at the high school or collegiate level; (c) the development of cheerleading competitions; (d) the differences among sideline, club, and competitive cheerleading; (e) the numbers of cheer teams and/or cheerleaders at various levels of competition, including cheer counting by the National Federation of High Schools; (f) the competitions available for college cheer teams; and (g) the nature of the competitions and competitors on Defendant’s cheer schedule.
10. Mr. Jim Lord will testify as a fact witness concerning (1) the position of the American Association of Cheerleading Coaches and Administrators concerning cheer as a sport, and the bases for that position; (2) numbers of females participating in cheerleading and competitive cheer in U.S. high schools; and (3) insurance costs, safety, and other cost issues pertaining to cheer.
Plaintiffs may call the following witnesses at trial:
1. Ms. Germaine Fairchild is the Women’s Softball coach at Quinnipiac University.
2. Mr. Rick Seeley is the Women’s Ice Hockey coach at Quinnipiac University.
3. Jack McDonald
4. Mary Ann Powers
5. Tracey Flynn
6. Mark Thompson
Defendant expects to call the following witnesses at trial:
11

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 12 of 18
1. Mark Thompson: Dr. Thompson will testify as to Quinnipiac’s roster management and Title IX compliance.
2. Tracey Flynn: Ms. Flynn will testify as to Quinnipiac’s roster management and Title IX compliance.
3. John (Jack) McDonald: Mr. McDonald will testify as to Quinnipiac’s athletic program, Title IX compliance, and the National Competitive Stunts and Tumbling Association.
4. Mary Ann Powers: Ms. Powers will testify as to all aspects of Quinnipiac’s Competitive Cheer team, its treatment as a varsity team, and the National Competitive Stunts and Tumbling Association.
5. Carolyn Martin (by deposition): Ms. Martin testified as to all aspects of Quinnipiac’s men’s and women’s cross country teams and women’s indoor track and field and outdoor track and field teams.
6. Samuel Seemes (Expert – by deposition): Mr. Seemes is Chief Executive Officer of the U.S. Track & Field and Cross Country Coaches Association. He will testify as to typical practices of cross country teams, indoor track and field teams and outdoor track and field teams, and NCAA rules regarding such teams.
Defendant may call the following witnesses at trial if the need arises:
Since Plaintiffs have not identified any specific teams which they contend do not provide genuine participation opportunities to all women on their rosters, Defendant reserves the right to call the following coaches, if necessary, to rebut testimony by plaintiffs regarding any particular team:
1. Tricia Fabbri (Head Coach, Women’s Basketball)
2. Becca Kohli (Head Coach, Women’s Field Hockey)
3. Rick Seeley (Head Coach, Women’s Ice Hockey)
4. Danie Caro (Head Coach, Women’s Lacrosse)
5. Dave Clarke (Head Coach, Women’s Soccer)
6. Germaine Fairchild (Head Coach, Women’s Softball)
7. Mike Quitko (Head Coach, Women’s Tennis)
10. DEPOSITION TESTIMONY:
12

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 13 of 18

Plaintiffs:
1. Dr. Athena Yiamouyiannis: Dr. Yiamouyiannis’ testimony is summarized above.
Defendant:
1. Defendant designates the direct and redirect testimony of Carolyn Martin. (pp. 4:8 - 129:25; 191:4 - 196:14) Defendant reserves the right to amend or supplement this designation.
Plaintiffs designate the following testimony of Carolyn Martin (from her deposition on May 18, 2010): 130:17 - 132:3; 139:4 – 140:1; 143:10 – 144:10; 145:4 – 145:14; 147:23 – 148:17; 165:4 – 165:9; 166:18 – 167:23; 179:22 – 180:25; 184:22 – 185:6; 185:12 – 187:14; 197:1 – 197:9. Plaintiffs reserve the right to amend or supplement this designation.

11. EXHIBITS: Each party shall identify all exhibits that it may present at trial, by providing a brief description of each exhibit, and by separately listing the exhibits that the party: (a) expects to offer at trial; and (b) may offer at trial if the need arises. Exhibits not listed will not be admitted at trial except for good cause shown.

Plaintiffs:

See Plaintiffs’ Preliminary List of Exhibits attached as Exhibit A (to be filed).

Defendant: See Defendant’s Preliminary List of Exhibits attached as Exhibit B.

13

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 14 of 18
12. ANTICIPATED EVIDENTIARY PROBLEMS/ MOTIONS IN LIMINE:
Plaintiffs:
1. Plaintiffs have not at this juncture seen the Memorandum of Law referred to below by Defendant, concerning Defendant’s objection to evidence regarding its lack of past compliance with Title IX and its roster management practices prior to 2009-10 academic year. Plaintiffs believe, however, that such evidence is relevant, probative, and admissible on their claim that Defendant failed to comply with Title IX in 2009-10 and will not be in compliance in 2010-11.
Defendant:
1. Defendant objects to evidence regarding Quinnipiac’s alleged lack of compliance with Title IX and roster management practices in years prior to the 2009-2010 academic year. (See accompanying Memorandum of Law.)
2. With respect to Plaintiffs’ experts, Defendant objects to expert testimony outside their respective areas of established expertise and beyond the disclosures made pursuant to Federal Rule of Civil Procedure 26(a)(2). Defendant further objects to duplicative testimony on any issue by more than one expert.
13. STIPULATIONS OF FACT AND LAW:
See Stipulations attached as Exhibit C.
14. TRIAL TO COURT/JURY
(a) Court: Each party shall submit proposed findings of fact and conclusions of law, citing relevant authority where appropriate.
(b) Jury: N/A
15. AVAILABILITY OF WITNESSES: Each party shall ensure the availability at trial of each witness listed by that party unless the Court and counsel are advised to the contrary not less than forty-eight (48) hours prior to the commencement of the evidence.

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 15 of 18 16. PRETRIAL REQUIREMENTS: The requirements established by this Order may not
be modified by agreement of counsel. 17. OTHER STIPULATIONS:
(a) The parties stipulate that the deposition testimony of Dr. Donna Lopiano in connection with the preliminary injunction hearing shall not be made part of the trial record. (b) The parties stipulate that the reports of expert witnesses Dr. Athena Yiamouyiannis and Mr. Samuel Seemes may be introduced into evidence as part of the witnesses’ testimony on direct examination. The parties reserve the right to assert any objections to the expert reports that could be asserted if the testimony were offered at trial. The parties do not by this stipulation waive any objections to testimony by either expert that goes beyond the scope of the Rule 26 disclosure concerning the expert.
15

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 16 of 18

THE PLAINTIFFS

By:

/s/

Jonathan B. Orleans (ct05440)

Alex V. Hernandez (ct08345)

Pullman & Comley, LLC

850 Main St., P.O. Box 7006

Bridgeport, CT 06601-7006

Telephone: (203) 330-2000

Facsimile: (203) 576-8888

Email: jorleans@pullcom.com

Email: ahernandez@pullcom.com

Kristen Galles (pro hac vice) Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 Telephone: (703) 722-1071 E-Mail: kgalles@comcast.net

David McGuire (ct27253) American Civil Liberties Union Foundation
of Connecticut 2074 Park Street, Suite L Hartford, CT 06106 Telephone: (860) 523-9146 Email: dmcguire@acluct.org

THEIR ATTORNEYS

16

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 17 of 18
DEFENDANT, QUINNIPIAC UNIVERSITY Proskauer Rose, LLP By:_/s/ Edward A. Brill_ Edward A. Brill Federal Bar No. phv015747 Susan D. Friedfel Federal Bar No. phv03585 1585 Broadway New York, NY 10036 Tel: 212-969-3000 Fax: 212-969-2900 ebrill@proskauer.com sfriedfel@proskauer.com
WIGGIN AND DANA, LLP Mary A. Gambardella, Esq. Federal Bar No. ct05386 400 Atlantic Street Stamford, CT 06911-0325 Tel: 203-363-7662 Fax: 203-363-7676 mgambardella@wiggin.com
ATTORNEYS FOR DEFENDANT
17

Case 3:09-cv-00621-SRU Document 145 Filed 06/10/10 Page 18 of 18 Certification of Service
I hereby certify that on the date hereon, a copy of the foregoing Joint Pretrial Order was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.
/s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440)
ACTIVE/73061.1/JORLEANS/2174341v1
18

Case 3:09-cv-00621-SRU Document 145-1 Filed 06/10/10 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

--------------------------------- X

STEPHANIE BIEDIGER, KAYLA LAWLER, :

ERIN OVERDEVEST, KRISTEN

:

CORINALDESI, and LOGAN RIKER,

:

individually and on behalf of all those

:

similarly situated; and

:

ROBIN LAMOTT SPARKS, individually,

:

:

Plaintiffs,

:

:

against

:

:

QUINNIPIAC UNIVERSITY,

:

:

Defendant.

:

--------------------------------- X

CIVIL ACTION NO: 3:09-CV-00621 (SRU)
June 10, 2010

STIPULATIONS OF FACT and LAW

1. Plaintiffs Stephanie Biediger, Kayla Lawler, and Logan Riker, are female student athletes who currently attend Defendant Quinnipiac University in Hamden, Connecticut (“QU” or “the University”). They are members of the Defendant’s varsity women’s volleyball team.

2. Plaintiffs Kristen Corinaldesi and Erin Overdevest were, through academic year 2009-10, female student athletes who attended QU. They were members of the Defendant’s varsity women’s volleyball team.

3. Robin Lamott Sparks is the women’s varsity volleyball coach at QU and has been so employed since 2007. She also is an adjunct professor in communications at the Defendant university.

4. Defendant QU is a private university which receives federal financial assistance and is subject to Title IX of the Education Amendments of 1972, 20 U.S.C. Section 1681-88 (“Title IX”).

5. Jack McDonald is the Defendant University’s Athletic Director. As such, he is responsible for managing the Athletic Department's personnel, budget, fundraising and revenue efforts, athletic events and campus athletic facilities. With the assistance of his staff, he also contributes to oversight of QU’s compliance with all applicable rules and regulations of the National Collegiate Athletic Association (“NCAA”) and with Title IX.

Case 3:09-cv-00621-SRU Document 145-1 Filed 06/10/10 Page 2 of 4
6. Tracey Flynn is employed by the Defendant University in its Athletic Department and holds the titles of Senior Women’s Administrator (“SWA”) and Assistant Athletic Director for Compliance.
7. (RFA #2) The University provides varsity intercollegiate athletic participation opportunities for both male and female students.
8. (RFA #3) The University does not provide intercollegiate athletic participation opportunities at the sub-varsity level, including club team sports.
9. (RFA #4) The University provides male and female students with opportunities to participate in intramural sports.
10. (RFA #9) The University compiles and submits athletic gender equity data to the NCAA each school year.
11. (RFA #49) There are enough current and/or prospective female students at the University who have the interest and ability to participate in varsity, intercollegiate volleyball to maintain a team.
12. The University claims, in this action, that it complied with Title IX in 200910 and will comply with Title IX in 2010-11 under “Prong One” of OCR’s 1979 Policy Interpretation concerning compliance with Title IX’s requirement that institutions effectively accommodate the athletic interests and abilities of members of both sexes.
13. The University does not claim, in this action, that it complied with Title IX in 2009-2010 and/or will comply with Title IX in 2010-2011 under “Prong Two” or “Prong Three” of the 1979 Policy Interpretation.
14. (RFA #57) The University is a member of the Northeast Conference (“NEC”).
15. (RFA #58) Both the NCAA and the NEC sponsor championships in Division I intercollegiate volleyball.
16. (RFA #66) The following schools are members of the NEC: Central Connecticut State University, Fairleigh Dickinson University, Long Island University, Monmouth University, Mount St. Mary’s University, Robert Morris University, Sacred Heart University, St. Francis University (NY), St. Francis University (PA), and Wagner University.
17. (RFA #70) The following colleges are located in the state of Connecticut and participate in NCAA Division I athletics: Quinnipiac University, Yale University, University of Connecticut, Central Connecticut State University, Sacred Heart University, Fairfield University, and Hartford University.
18. (RFA #72) The University enrolls students from all 50 states and the District of Columbia.
2

Case 3:09-cv-00621-SRU Document 145-1 Filed 06/10/10 Page 3 of 4
19. (RFA #109) There is no international governing body for competitive cheer as a sport.
20. (RFA #111) Competitive cheer is not recognized as an Olympic sport.
21. (RFA #118) During the 2008-2009 school year, the University did not have a competitive cheer team that it counted as a varsity sport for purposes of Title IX.
22. (RFA #119) The University offers athletic scholarships for varsity athletes, including volleyball players.
23. (RFA #121) The University has not conducted a national search for a competitive cheer coach.
24. (RFA #122) The University recruits athletes for its varsity intercollegiate sports teams.
25. (RFA #125) The University did not recruit athletes for its competitive cheer team before the recruiting season for the 2009-2010 school year.
26. (RFA #126) The University’s cheerleaders did not complete NCAA sports eligibility forms for the 2008-2009 school year.
27. (RFA #127) The University’s cheerleaders did not go through the NCAA’s sports clearinghouse before the 2008-2009 school year.
28. (RFA #133) The NCAA Division I women’s spring track championships include the following events: 100 meter dash, 200 meter dash, 400 meter dash, 800 meter run, 1500 meter run, 5000 meter run, 3000 meter steeplechase, 4X100 meter relay, 4X400 meter relay, 4X800 meter relay, 100 meter hurdles, 400 meter hurdles, high jump, long jump, triple jump, pole vault, shot put, discus, hammer throw, and javelin.
29. (RFA #134) The University does not have an outdoor track on campus.
30. (RFA #155) The EADA report form includes gymnastics, golf, bowling, swimming, and volleyball as varsity sports.
31. (RFA #156) University students participate in intramural volleyball but not in intramural competitive cheer.
32. (RFA #159) The University’s men’s and women’s lacrosse teams play games in both the fall and spring.
33. (RFA #161) The University’s men’s baseball and women’s softball teams play games in both the fall and spring.
3

Case 3:09-cv-00621-SRU Document 145-1 Filed 06/10/10 Page 4 of 4 34. (RFA #163) The University’s men’s and women’s tennis teams play matches in both the fall and spring. 35. (RFA #164) The University’s men’s and women’s tennis teams have played varsity intercollegiate matches indoors and outdoors. 36. (RFA #167) The University’s spring championship sports teams practice in the fall, winter, and spring of each school year. 37. (RFA #172) The University’s varsity intercollegiate ice hockey, basketball, softball, baseball, field hockey, lacrosse, soccer, and volleyball coaches coach only one sport at the University. 38. (RFA #178) All or most of the non-freshmen members of the University’s 2009-2010 competitive cheer team were members of the University’s 2008-2009 sideline cheer team.
ACTIVE/73061.1/JORLEANS/2174384v1
4

 
 Case 3:09-cv-00621-SRU Document 151-1 Filed 06/21/10 Page 1 of 4
EXHIBIT A

Case 3:09-cv-00621-SRU Document 151-1 Filed 06/21/10 Page 2 of 4

QUINNIPIAC UNIVERSITY ROSTER NUMBERS: 2009-2010

ATIILRTES ON FIRST DATE OF COMPETITION

ATHLETES ON LAST
OAT£ 01'' COMPETITION
IN CHAMPIONSHIP
SEASON

Men's Baseball

31

29

Men's Basketball

17

16

Men's Cross Country

13

13

r - - -- - - - - -MM- Meenne'sn' sI'scLcSaoHccr-oocc-seks-ree--y------------------rt------------------~ -234-14~ 0------------------~~---------------- --~342-400-------------------~1

!---

- - --

-- --

-
Men's

Tennis

10

10

t---- --T-o-ta-l Male Athletes

166

162

% of Athletes: Men

37.73%

37.50%

2009-2010 Total 2009-2010% of
~8-2009 Total

Male l'ndergraduatcs

2,168

Underg-r-a-d-ua-t-es-:-M--en---~------------------ 38~.1~ 3%~----------------~

Male U-nd-e-r-g-ra-d-u:-a-:-t-c_-·s----+r--------------------------------------::~ -:2-1,:~ -3:~4--:------------------------------------~ -;

2008-2009% of Undergraduates: Men

Women's Competitive Cheer

30

30

Women's Cross Countt·y

18

18

------------r---------77--------_, Women's Field Hockey

24

23

WWWooWmoWmeomenomne'msn'esen'OsIn'snuI' scdtLdcSoa-oooHc-ocrro---rcoTc-eTs--krsr--r--aeea-yc---ck----k---------------------~---44~·---------------------------------------23~23~ 2~60097------- ------------------------ --~ ~~ ~----------------------------------------:~2232~ 2~ ~69780--------------------------------~ -~~1

r - - - -WW-Woomomme- enen'ns'- 'ssVSToolelf-en-tyb-n-bai--lsal-l-l ---------------+~-------------------:~ -211:020:-----------------!j-----------------~211-100-:---------- ---~-t

Total Female Athletes

274

270

% of Athletes: Female

62.27%

62.50%

--- - 1

2009-2010 2009-2010 2008-2009 2008-2009

%T%ToototoaaffllUUFFnneedmmdecaarrllggeerr-UuaU--ddnn-uu-dd-aae~ ett~ rreeggss-rr::-aaFF~-ddee- -u-ummaa---tata-eel- l~ssee-~ 4+----------- ----------------------------------------~ ~ ~ 663311,~ ,..~ 54~862071-~ 48%%~ ---- ---------------------------------------~ ~ -~

DEFENDANT'S

I"'

EXHIBIT
13M

Case 3:09-cv-00621-SRU Document 151-1 Filed 06/21/10 Page 3 of 4
EXHIBIT B

.• -• Quinnipiac University 2010-11 Roster Comparisons w ith 2009-10

MEN

: 2009-10
. . ~-~ - ·:·.-; -

Change

NCAA

Squad Size

Basketball

19

17

2

15

18

Baseball

31

31

0

33

Field Hockey

24

Soccer

24

24

0

29

25

Tennis

10

10

0

10

10

Lacrosse

41

41

0

46

30

Cross country

13

13

0

15

24

Ice Hockey

30

30

0

28

26

Indoor Track

0

35

Outdoor Track

35

Softball

19

Competitive Cheer

36

Volleyball

14

Total

168

166

2

296

WOMEN

2009-10 Change

18

0

24

0

27

2

10

0

29

l

18

6

26

0

30

5

30

5

20

-1

30

6

12

2

274

22

NCAA Squad
Size
15
23 26
9
27 17 23 : 38 37 20
15

Total Men Women

Planned Gender Distri bution 464 100.00% 168 36.21% 296 63.79%

Fall 2009 fT UG Gender Distribution 5686 100.00% 2168 38.10% 3518 61.90%

DEFENDANT'S E XHI B IT BQ

D 15857

Case 3:09-cv-00621-SRU Document 151-1 Filed 06/21/10 Page 4 of 4

 
 Case 3:09-cv-00621-SRU Document 162 Filed 06/25/10 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

--------------------------------- X

STEPHANIE BIEDIGER, KAYLA LAWLER, :

ERIN OVERDEVEST, KRISTEN

: CIVIL ACTION NO:

CORINALDESI, and LOGAN RIKER, individually and on behalf of all those

: :

3:09-CV-00621 (SRU)

similarly situated; and

:

ROBIN LAMOTT SPARKS, individually,

:

Plaintiffs,

: June 25, 2010 :

:

against

:

QUINNIPIAC UNIVERSITY,

: :

Defendant.

: :

--------------------------------- X

DEFENDANT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:09-cv-00621-SRU Document 162 Filed 06/25/10 Page 2 of 23
DEFENDANT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Quinnipiac University is a private, co-educational university located in Hamden, Connecticut.
2. In the 2009-2010 academic year, Quinnipiac had both men’s and women’s varsity teams. The University had the following 7 men’s teams: baseball, basketball, cross country, ice hockey, lacrosse, soccer and tennis. The University had the following 12 women’s teams: basketball, competitive cheer, cross country, field hockey, ice hockey, indoor track and field, lacrosse, outdoor track and field, soccer, softball, tennis and volleyball.
3. On July 1, 2009, Dr. Mark Thompson, Senior Vice President for Academic and Student Affairs at Quinnipiac, assumed responsibility for the Athletics Department. In his new role, he began to oversee directly the University’s roster management program. (Tr. 357, 263)
Setting Roster Numbers for 2009-2010
4. Even before officially taking charge of the athletics department, in June 2009, Dr. Thompson worked to determine appropriate roster numbers for each of Quinnipiac’s varsity teams. Dr. Thompson examined NCAA Division I average roster sizes for the teams Quinnipiac offers as a first step in setting appropriate roster numbers. (Tr. 324)
5. Based on these national averages, and taking into consideration the Court’s findings in its preliminary injunction decision, Dr. Thompson created a list of proposed roster numbers. (Ex. 146; Tr. 270)
6. Dr. Thompson met with all coaches in a staff meeting at the beginning of June 2009. He introduced himself and explained his new role and responsibilities. Dr. Thompson distributed the proposed roster number to the coaches at the meeting and explained that he would be meeting with each of them individually and welcomed their comments and suggestions on the proposed roster numbers.
7. After distributing these preliminary roster numbers, Dr. Thompson met with each coach individually to discuss the roster numbers and how the roster management program would be administered. Dr. Thompson had an open door to coaches, and repeatedly asked for their input on whether the numbers he proposed were appropriate. Several coaches expressed concerns to Dr. Thompson regarding their proposed roster numbers. Dr. Thompson was responsive to the coaches’ concerns and made adjustments to the roster numbers based on these communications. (Tr. 268 – 269, 271 – 272, 322, 324)
8. On July 22, 2009, Dr. Thompson sent letters to the head coaches with a revised set of proposed roster numbers. The letters asked each coach to

Case 3:09-cv-00621-SRU Document 162 Filed 06/25/10 Page 3 of 23
confirm that the roster number was “a reasonable roster number that represents a genuine opportunity for a Division I experience for each team member and that I have a sufficient budgetary allocation to support this number.” (Ex. BO)
9. After Dr. Thompson distributed these letters, he e-mailed all of the head coaches on July 24, 2009 to urge them to give their input if they had lingering concerns about roster numbers being too large or too small. Dr. Thompson wrote, “Your input and vetting as part of the roster number determination is important. Your input is important because you understand your sport best and any unique issues that should be considered to ensure that we have a roster number for your team that is reasonable and represents a genuine Division I experience for each team member.” (Ex. BX)
10. Dr. Thompson continued discussing the proposed roster numbers with coaches in July and August 2009 and made numerous adjustments based on coaches’ recommendations. (Exs. BX – CB, CD – CP; Tr. 329 – 337)
11. For example, in the initial proposed roster numbers distributed at the June 2009 athletics department meeting, the women’s basketball team had a roster number of 15. In July and August 2009, the head coach of the women’s basketball team spoke with Dr. Thompson several times, requesting additional roster spots for her team. Dr. Thompson adjusted the roster in response to the coach’s request, first raising the roster number to 17, and ultimately to 18 to accommodate the unique needs of the women’s basketball team. (Exs. BY – CA; Tr. 330 – 331)
12. As another example, in June 2009, the women’s ice hockey team began with a proposed roster number of 27. The head coach of the women’s ice hockey team spoke with Dr. Thompson in July 2009. Dr. Thompson adjusted the roster number down to 26 based on this communication, and the head coach confirmed that he could “easily work with 26” as the roster number. (Ex. CB; Tr. 741 – 742))
13. Dr. Thompson finalized the roster numbers for 2009-2010 in early September 2009. (Ex. 86)
14. After Dr. Thompson finalized the roster numbers based on the 3-month interactive process with the coaches from the coaches, he monitored the rosters to confirm that the coaches met their roster numbers. (Tr. 324)
15. In 2009-2010, the coaches understood that roster management was not an option. Dr. Thompson clearly communicated that the roster numbers were not “ceilings” or “floors,” but rather actual approved team sizes that coaches were expected to meet and maintain throughout the year, subject
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only to approved additions and/or deletions for legitimate reasons. (Tr. 298 – 299, 324 – 325)
16. In 2009-2010, the coaches all met their respective targets, as is reflected in the 2009-2010 squad lists. (Ex. EL)
17. In the 2009-2010 academic year, on the first date of competition for its various sports, Quinnipiac had 166 male athletes and 274 female athletes, making 37.73% of the University’s athletes male and 62.27% female. (Ex. BM)
18. In the 2008-2009 academic year, Quinnipiac had 2,134 male undergraduates and 3,424 female undergraduates, for a total of 5,558 undergraduate students. In the 2009-2010 academic year, Quinnipiac had 2,168 male undergraduates and 3,518 female undergraduates, for a total of 5,686 undergraduate students. The athletic participation numbers and enrollment numbers are shown below (Exs. BM, BN):

2009-2010 Varsity Athletes (Number)
(Percent)
2009-2010 Undergraduate Population (Number)
(Percent)
2008-2009 Undergraduate Population (Number)
(Percent)

Male 166
37.73% 2,168
38.13% 2,134
38.40%

Female 274
62.27% 3,518
61.87% 3,424
61.60%

Total 440
100% 5,686
100% 5,558
100%

19. In 2009-2010, the percentage of female athletes as of the first date of competition was less than half of one percent higher than the percentage of female undergraduate students at Quinnipiac. (Ex. BM)
Monitoring Additions and Deletions from Teams in 2009-2010
20. After the coaches met their roster targets, Dr. Thompson vigilantly oversaw additions and deletions from teams. Dr. Thompson informed the coaches that, as with any team at any school, there could be certain legitimate additions or deletions from teams. For example, an athlete might quit a team because he needs to focus on his academics, or a team might add a player because it needed someone to fill a position when
3

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another athlete on the team quit or became injured during the course of the season. (Tr. 338)
21. Dr. Thompson also made clear that, moving forward, there would be no roster manipulation of the sort found by this Court in its preliminary injunction decision. Students could not be added or deleted after the first date of competition without a legitimate reason. Now that the roster numbers were carefully set, taking into account the significant input of the coaches, Dr. Thompson demanded that no such manipulation occur. (Tr. 322 – 323)
22. The coaches met Dr. Thompson’s demand and did not make any attempt to manipulate their rosters. (Tr. 809)
23. Quinnipiac’s coaches received training from an outside expert in Title IX in the fall of 2009, and were fully informed about the theory and practice of roster management. (Tr. 339 – 340)
24. As expected, most teams had some additions or deletions over the course of the year, based on the circumstances of each team and individual athletes. When coaches wanted to make a change, they sought permission to do so, and Dr. Thompson approved changes for legitimate reasons. In doing so, Dr. Thompson applied the same standards for women’s and men’s teams. (Tr. 339)
25. For example, two women quit the women’s field hockey team because of injuries and academics. Given these deletions, Dr. Thompson approved the field hockey coach’s request to add an additional athlete to the team who had previously been a member of the women’s ice hockey team. (Ex. CQ; Tr. 340)
26. As another example, the men’s lacrosse coach requested that he be allowed to add a goalie when one of the team’s goalies kept missing practice. Dr. Thompson approved this request after he confirmed that, based on other deletions from the team, the roster would remain the same size. (Ex. CS; Tr. 341)
27. Over the course of the 2009-2010 academic year, the men’s lacrosse team added two players to the team (on 1/14/10 and 1/27/10) and three players either quit or were cut from the team (on 1/17/10, 2/7/10 and 4/26/10). The team met its roster target of 41 athletes for the first date of competition, and on the last date of competition the team roster had decreased to 40 athletes. At no point during the men’s lacrosse season did the team’s roster ever exceed 42 players. (Exs. EL, EN)
28. By the last date of each team’s championship season, there were 4 fewer male athletes and 4 fewer female athletes on Quinnipiac’s varsity teams. The percentage of male and female athletes on the last date of
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competition remained almost identical to the percentages on the first date of competition. (Ex. BM)
29. The breakdown of how many athletes were on each team on the first date of competition and how many athletes were on each team on the last date of each team’s competition is shown below (Ex. BM):

SPORT
Men’s Baseball Men’s Basketball Men’s Cross Country Men’s Ice Hockey Men’s Lacrosse
Men’s Soccer Men’s Tennis Total Male Athletes % of Athletes: Men
Women’s Basketball Women’s Competitive Cheer
Women’s Cross Country Women’s Field Hockey Women’s Ice Hockey Women’s Indoor Track
Women’s Lacrosse Women’s Outdoor Track
Women’s Soccer Women’s Softball Women’s Tennis Women’s Volleyball Total Female Athletes % of Athletes: Female

ATHLETES ON FIRST DATE ATHLETES ON LAST DATE

OF COMPETITION

OF COMPETITION IN

CHAMPIONSHIP SEASON

31 17 13 30 41 24 10 166 37.73%

29 16 13 30 40 24 10 162 37.50%

18 30 18 24 26 30 29 30 27 20 10 12 274 62.27%

18 30 18 23 26 30 27 29 28 21 10 10 270 62.50%

5

Case 3:09-cv-00621-SRU Document 162 Filed 06/25/10 Page 7 of 23

Quinnipiac’s Roster Numbers for the 2010-2011 Academic Year

30. In setting the roster numbers for the 2010-2011 academic year, Dr. Thompson engaged in a similar interactive process with the coaches as he did in 2009-2010. (Tr. 343)

31. Several coaches requested adjustments to their rosters for 2010-2011. Dr. Thompson carefully considered the requests and changed several of the roster numbers based on the reasons offered by coaches. (Exs. DY – EK; Tr. 346 – 350, 353)

32. After consultation with the coaches and adjusting rosters based on coaches’ requests, Dr. Thompson set the final roster numbers for 20102011, which are summarized below (Ex. BQ):

Male

2010-2011 Varsity Athletes – With Volleyball

Number

168

Percent

36.21%

2010-2011 Varsity Athletes – Without Volleyball

Number

168

Percent

37.33%

2009-2010 Undergraduate Population

38.13%

Female
296 63.79%
282 62.67% 61.87%

Total
464 100%
450 100% 100%

33. Quinnipiac currently projects that the 2010-2011 undergraduate enrollment will be 5900 students, 3712 who will be female and 2188 who will be male. These are preliminary estimates; the actual numbers, which will not be available until September 2010, are likely to vary from these estimates. (Ex. 141)
Quinnipiac Correctly Counts Athletes on its Cross Country, Indoor Track and Field and Outdoor Track and Field Teams
34. Quinnipiac sponsors women’s cross-country, women’s outdoor track and field and women’s indoor track and field teams. (Martin Tr. 4, May 18, 2010)
35. During Academic Year 2009-2010, Quinnipiac had 18 women on the cross-country team, 30 women on the indoor track and field team, and 30 women on the outdoor track and field team, as of the first date of competition in each sport. (Exs. AB, AM, AU; Martin Tr. 15, 59, 82-83)
36. Dr. Thompson set these roster numbers based on conversations with Shawn Green, the team’s head coach up until the summer of 2009 when
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Case 3:09-cv-00621-SRU Document 162 Filed 06/25/10 Page 8 of 23
Carolyn Martin took over as head coach. Shawn Green had agreed that these numbers were reasonable and reflected genuine participation opportunities for all team members. (Martin Tr. 14 – 15)
37. As of the last date of competition in each sport, the roster numbers were almost the same; cross-country – 18; indoor track and field – 30; outdoor track and field – 29. (Ex. BM)
38. Quinnipiac provided genuine participation opportunities for all members of the women’s cross-country team, outdoor track and field team and indoor track and field team. (Martin Tr. 15, 59 – 60)
39. Cross-country, indoor track and field and outdoor track and field are properly treated as separate sports by Quinnipiac for purposes of Title IX. (Tr. 787)
40. For purposes of determining the number of participants under Title IX, Quinnipiac properly counts athletes who are on multiple teams as participants on each team. (Tr. 786)
41. The NCAA treats cross-country, indoor track and field and outdoor track and field as three separate and distinct sports. It conducts separate men’s and women’s championships in each sport. Furthermore, each sport counts separately towards fulfilling the NCAA requirements that a school sponsor a minimum number of sports in order to be classified as a Division I, II or III institution. (Ex. BG at 5)
42. The NCAA manual explicitly states in Rule 14.2.3.3 that “Cross country, indoor track and field, and outdoor track and field shall be considered separate sports.” (Ex. EP)
43. Cross-country, indoor track and field and outdoor track and field are similarly recognized as separate sports by the National Association of Intercollegiate Athletes (NAIA), the National Junior College Athletic Association (NJCAA), USA Track and Field (which is the governing body for running sports in the United States) and the International Association of Athletic Federation (IAAF) (the international governing body for running sports). (Ex. BG at 5)
44. The 2009 User’s Guide for The Equity In Athletics Act Web-Based Data Collection, published by the U.S. Department of Education, Office of PostSecondary Education (“EADA User’s Guide”) provides schools a choice of reporting information for cross-country, indoor track and field and outdoor track and field teams, either separately or consolidated. In either case, the EADA User’s Guide provides that athletes participating in multiple teams are counted as participants on each team. (Ex. 110)
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45. There are significant differences among cross-country, indoor track and field and outdoor track and field. (Ex. BG at 5-6)
46. As the Court found in its Preliminary Injunction decision, cross-country is fundamentally separate from either indoor track and field or outdoor track and field. It is run in all weather, outside, through mud, gravel or grass, on track, up and down hills and through woods and open fields, and no two courses are the same. All runners in a cross-country meet run the same course, with the team score determined by the finishing place of the five fastest runners in each team. (P.I. Decision at 32)
47. Unlike cross-country, not all track and field team members compete in the same event, and scoring is the sum of the results of individual and relay events. (P.I. Decision at 32)
48. There are significant differences in the size and radius of indoor versus outdoor tracks (400 meters with a radius of approximately 120 feet is the common size for an outdoor track, compared to 200 meters as the most common size for an indoor track). Indoor tracks are sometimes banked, while outdoor tracks cannot exceed a one percent slope. And, athletes in outdoor track competitions have to deal with the elements, such as wind. (Martin Tr. 30, Ex. BG at 6)
49. Furthermore, there are significant differences in the events offered in outdoor track and field and indoor track and field. For example, the 60meter dash, 1 mile run, 60 meter hurdles, weight throw, pentathlon and distance medley relay are championship events typically offered in indoor track and field meets but not at outdoor track and field meets. Conversely, the 100 meter dash, the 1500 meter run, 10,000 meter run, 4x100 meter relay, 3000 meter steeplechase, 100 meter hurdles, 400 meter hurdles, hammer throw, javelin throw, discus throw and decathlon are typically offered in outdoor track and field meets but not at indoor meets. (Ex. BG at 6)
50. As a result of the differences in the indoor and outdoor tracks, as well as environmental differences, indoor track and field and outdoor track and field require different athletic skills and competitive techniques. (Ex. BG at 6)
51. There is nothing unusual about the way in which Quinnipiac operates its women’s cross-country, indoor track and field and outdoor track and field teams. (Ex. BG at 8-10)
52. Carolyn Martin is the full-time Head Coach of Quinnipiac’s men’s and women’s cross-country and women’s indoor track and field and outdoor track and field teams. There are two paid part-time assistant coaches, and volunteer coaches. (Martin Tr. 4, 8 – 9)
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53. Quinnipiac maintains separate budgets for men’s cross-country, women’s cross-country, women’s indoor track and field and women’s outdoor track and field. (Martin Tr. 90 – 91)
54. Quinnipiac provides a total of 4 scholarships for women on the three running teams, which are divided among women on the teams. Historically, Quinnipiac has focused on supporting distance runners who run both cross-country and track, although one women currently receiving scholarship money in 2009-10 was primarily a track athlete (specializing in the 800 meter run). (Martin Tr. 89 – 90)
Cross-country
55. NCAA rules provide that a Division I women’s cross-country team must have a minimum of five athletes. Quinnipiac meets the requirement, as it had 18 women on the team in 2009-10. (Exs. EP, AB; Martin Tr. 15)
56. NCAA rules provide that a women’s Division I cross-country team must compete in a minimum of six contests, including a conference championship. Quinnipiac meets this requirement, as it competed in seven events, including the NEC conference championship in 2009-10. (Exs. EP, AC)
57. Each of the 18 athletes on the cross-country team competed during the season, except for two athletes who were injured the entire season. Both injured athletes received financial aid and thus were properly included as participants for Title IX purposes. (Martin Tr. 24)
58. All of the athletes on the cross-country team regularly participated in practices, received coaching, were supplied with uniforms and equipment, received medical and training room services, and attended team meetings. They received academic support available to all Quinnipiac varsity athletes and participated in other activities, such as “Positive Play”, which is community service required of all Quinnipiac varsity athletes. (Injured athletes were required to come to practice and either received physical therapy or treatment in the training room or participated in weight lifting or other training activity to the extent possible.) (Martin Tr. 25 – 27)
59. There is nothing unusual about the number of athletes in Quinnipiac’s women’s cross-country team. Quinnipiac’s roster of 18 was just one above the NCAA Division I average roster size in 2008-09. Moreover, the number of athletes on cross-country teams varies considerably. Women’s cross-country teams in the NEC Conference ranged from a low of 7 to as high as 27 in 2008-09. (Martin Tr. 108, Ex. 9)
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Indoor Track and Field
60. NCAA rules provide that a Division I women’s indoor track and field team must have a minimum of 14 athletes. Quinnipiac meets that requirement, as it had 30 women on its indoor track and field team in 2009-10. (Exs. EP, AM; Martin Tr. 59)
61. NCAA rules provide that a Division I women’s indoor track and field team must compete in a minimum of six contests, including a league championship. Quinnipiac meets this requirement. It competed in six indoor track and field meets in 2010, including the NEC championship. (Exs. EP, AH; Martin Tr. 152)
62. Other than the NEC Championship, the indoor track and field meets were “non-scoring meets”, in which team scores were not tabulated. These meets count as team competitions for NCAA purposes, and individual athletes’ times and performances qualify for post-season competition. Non-scoring meets are a common form of track and field competition. (Ex. BG at 4; Martin Tr. 35-36)
63. Of the 30 women on the first day of competition roster, 26 women competed during the season.1 Four women did not compete during the season. Two were scholarship athletes who were injured; one was a scholarship athlete who was “red-shirted” as she was studying abroad; and one was a non-scholarship athlete who was injured at the start of the season but who the coach expected to recover and compete during the season. (Martin Tr. 51 – 52)
64. All of the women on the team regularly participated fully as team members throughout the season (except for the one woman who was studying abroad). (Martin Tr. 52)
65. They participated in practices throughout the season. If injured athletes were not able to run, they would spend practice time in the training room receiving physical therapy, treatment or cross-training to keep themselves fit. The team did weight training together as a team, but practice runs were divided into three or four groups depending on the events athletes were training for. For example, athletes training for 200M and 400M races trained separately from those preparing for the mile run or longer distances. (Martin Tr. 52 – 54, 58)
66. All members of the team received coaching, including individual coaching, on a regular basis. (Martin Tr. 54)
1 Although 31 women were listed on the opening day roster one (Boyer) was not able to compete for medical reasons and should have been deleted from the roster before the first day of competition. (Martin Tr. 62)
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67. All members of the team received equipment, including a running shoe allowance, team sweats, warmups, and a team uniform. (Martin Tr. 55)
68. All members of the team received medical and training room services. The head trainer was assigned to the team. (Martin Tr. 55, 56)
69. All members of the team attended regular team meetings (unless excused due to a class conflict). (Martin Tr. 56)
70. All members of the team participated in other activities, such as “Positive Play” (unless excused due to a conflict in their schedules). (Martin Tr. 56)
71. The team travelled together to meets, and all members of the team were treated the same with respect to housing, meals, and other aspects of travel. (Martin Tr. 57)
72. There was no differentiation among the 30 members of the women’s indoor track and field team in any respect, except that not all of the athletes received athletic scholarships and they received different training schedules and coaching depending on the events they were competing in. (Martin Tr. 57)
73. The Quinnipiac women’s indoor track and field team regularly competed in running events from 200 meters up through 5,000 meters and the 4x400, 4x800 and Distance Medley Relay. The team competed in a majority of events at the Northeast Conference (NEC) Championship meet in February 2010, including 9 of the 11 running events. Quinnipiac did not participate in the 6 field events (jumping and throwing). Quinnipiac finished in a tie for 7th place out of 12 teams in the League. (Exs. AJ, AI)
74. There was nothing unusual about the number of Quinnipiac athletes participating in any specific events, or about the number of athletes on the team. (Ex. BG at 9)
75. Quinnipiac properly counted all 30 members of the women’s indoor track and field team as participants for the purposes of Title IX.
Outdoor Track and Field
76. NCAA rules provide that a Division I Women’s Outdoor Track and Field Team must have a minimum of 14 athletes. Quinnipiac meets this requirement. There were 30 women on the team in 2009-10. (Exs. AU, EP; Martin Tr. 82 – 83)
77. NCAA rules provide that a Division I women’s outdoor track and field team must compete in a minimum of six contests (which can include the league championship). Quinnipiac meets this requirement. The team competed
11

Case 3:09-cv-00621-SRU Document 162 Filed 06/25/10 Page 13 of 23
in eight meets, including the Northeast Conference Championship and the New England Championship in 2010. (Exs. EP, AO)
78. Of the 30 women on the roster as of the first date of competition, 24 women competed during the season. Six did not compete. Two (Morelli and Sorell) were scholarship athletes who were out due to injury. Two others (Cristobal, Santandreu) were injured at the start of the season, but were expected by the coach to recover in time to compete during the season. One woman (Kelly) was receiving a scholarship but was “redshirted” during the season as she was studying abroad. One (Donnelly) left the school on a medical leave and was deleted from the roster. (Martin Tr. 80-82)
79. All of the athletes on Quinnipiac’s women’s outdoor track and field team participated as members of the team throughout the season (except for the one student who was studying abroad and the student who left school). (Martin Tr. 84)
80. They regularly practiced with the team throughout the season. They were divided into groups depending on the nature of event different athletes were training for. (Martin Tr. 85)
81. They all received individual coaching. (Martin Tr. 85)
82. They all received equipment for the outdoor track and field season, including an allowance for running shoes, jackets, equipment bags, tshirts, and a singlet when they were competing. (Martin Tr. 85)
83. They all received medical and training room services. A trainer was assigned to the team. (Martin Tr. 86)
84. They all attended team meetings (unless they were excused due to a class conflict). (Martin Tr. 86)
85. They all participated in other team activities, such as the Relay for Life and other “Positive Play” community service activities (unless there was a scheduling conflict). (Martin Tr. 86)
86. No distinction was made among members of the team during travel to meets. All members of the team were treated the same. (Martin Tr. 87:69)
87. There was no respect in which any member of the team was treated differently than others for any purpose in terms of University support or participation on the team, except that not all members of the teams received athletic scholarships and team members had different training schedules and coaching depending on the events in which they were competing. (Martin Tr. 87)
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88. The women’s outdoor track and field team competed in most running events from 200 meters up through 10,000 meters, the 4x400 and 4x800 meter relays, the 3000 meter steeplechase, and triple jump. Quinnipiac competed in a majority of the events at the NEC Championship Meet in May 2010, including 10 out of the 13 running events, and 2 out of 8 field events (long jump and triple jump). Quinnipiac finished 7th of 12 teams in the league. (Exs. AR, AP; Martin Tr. 75)
89. There was nothing unusual about the number of women on Quinnipiac’s outdoor track and field team or the number of women entered in specific events during the season. (Ex. BG at 9)
90. Quinnipiac properly counted 30 athletes as participants on the outdoor track and field team for purposes of Title IX.
General
91. There was nothing unusual about Quinnipiac’s decision not to enter athletes in most field events. It is common for schools to concentrate on running events, or even certain running events (e.g., sprints, middle distance, long distance), and not to compete in most or all field events. Field events require practice facilities and specialized coaching that many schools do not have, or have chosen not to devote resources to supporting. Nothing in NCAA, Northeast Conference, or other rules requires that a school compete in both track events and field events, or in any minimum number or combination of events. (Ex. BG at 9)
92. There is also nothing unusual about the fact that Quinnipiac’s crosscountry runners also compete on the indoor and outdoor track and field teams. Most schools that sponsor cross-country teams also sponsor track and field teams, and members of the cross-country team commonly also run on the track and field teams. (Ex. BG at 8)
93. Plaintiffs’ contention that Quinnipiac does not operate “bona fide” indoor and outdoor track teams, and that the track and field teams are simply an adjunct of the cross-country team, is without merit. As found above, cross-country is a completely different sport from track and field. Furthermore, 40 per cent of the athletes on Quinnipiac’s track and field teams (i.e., 12 out of 30) are not on the cross-country team, and the indoor and outdoor track and field teams both compete in a range of running events from the 200 meters up. (Ex. BG at 8-10)
94. Nor is there any basis for plaintiffs’ assertion that Quinnipiac’s crosscountry and track and field teams include “extra athletes” or “sub-varsity athletes”. Each of the athletes on the cross-country and track and field teams participated on the teams within the meaning of NCAA and OCR
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rules, and is properly counted as a participant for Title IX purposes. (Ex. BG at 10-14)
Roster for 2010-11
95. Coach Martin requested that the roster of the women’s cross-country team be increased from 18 to 24 athletes for 2010-11, and that the roster for the indoor and outdoor track and field teams be increased from 30 to 35. (Martin Tr. 107; Ex. BF)
96. Coach Martin asked for this increase based on her successful recruiting results, and an assessment of what she believed would be the proper roster size for each team. No one at the university suggested that she increase the roster size of any team for next year. (Martin Tr. 107, 109, 103)
97. Dr. Mark Thompson questioned Coach Martin to be sure that she had sufficient budget to support the increased roster such that there would be genuine competitive opportunities for all athletes on the team. Coach Martin explained that the increased roster size would result in more competitive runners on the teams, and also allow her to expand into additional events; for example, she has recruited a pure sprinter and a high jumper. (Tr. 347; Martin Tr. 121, 120)
98. Dr. Thompson approved Coach Martin’s request and set the roster for 2010-11 at 24 runners for the women’s cross-country team, and 35 on both the indoor and outdoor track and field teams. (Ex. BQ)
99. Dr. Thompson also increased the budget for the women’s cross country, indoor track and field and outdoor track and field by $10,000 to be distributed, as needed, among these 3 teams. (Tr. 347)
100. The roster numbers for the 2010-11 women’s cross-country and indoor and outdoor track and field teams were set in good faith and based on the reasonable request of Coach Martin for rosters in each sport that will provide a genuine athletic participation opportunity for each member of the team.
Quinnipiac Correctly Counts the Members of its Competitive Cheer Team
101. From 1999 through 2008-09, Quinnipiac University had a sideline cheerleading squad that competed in one or two cheer competitions each year. The primary mission of the sideline cheerleading squad was to cheer at men’s and women’s basketball games. (Tr. 551, 564)
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102. In 2009-10, Quinnipiac added a varsity competitive cheer team and continued to maintain a separate sideline cheerleading squad. (Tr. 62122)
103. Quinnipiac University operates its competitive cheer team as a varsity sport. The purpose of the team is competition, and they engage in no sideline cheerleading. (Tr. 622)
104. Thirty student-athletes were on the competitive cheer team in 2009-10. The athletes played specific positions: main base, support base, back spot, and flyer. Each of those positions requires different skills and different physical attributes. (Tr. 616, 618-19)
105. The team was administered by the athletic department and treated in the same manner as all other Quinnipiac varsity sports. (Tr. 616; 627)
106. The team had a paid full time coach, Mary Ann Powers, and two paid parttime assistant coaches and a volunteer part-time assistant coach. (Tr. 568; 616)
107. The team was given an operating budget that was administered through the athletic department. The team was not required to, nor did it, raise funds for its operation. Excluding scholarships and coaching salaries, the team expenditures for the 2009-10 academic year totaled approximately $130,000. (Tr. 631-32)
108. All of the members of the varsity competitive cheer team were required by Quinnipiac to meet NCAA rules for academic eligibility and had to be cleared by the sports medicine staff. (Tr. 622-24)
109. The student athletes were provided with all necessary equipment, including mats, numbered uniforms, shoes, warm up outfits, and bags. The team’s expenses for travel, meals, insurance, recruiting and other administrative costs were covered as well. They had access to strength and conditioning coaches, trainers, academic support, and scholarships. They were eligible for awards given to varsity athletes. In fact one of the team members was recognized as a scholar athlete. (Tr. 628, 630-31)
110. The University’s Sports Information Department covered the team and issued press releases about them just like all other varsity teams. (Ex. FF; Tr. 629-30)
111. The Competitive Cheer student-athletes were required to participate in mandatory study time, called “power hours”, in accordance with the athletic department rules that apply to all varsity athletes. Freshman were required to attend power hours during the first semester and any students who did not maintain a 3.0 gpa were required to attend power hours as well. (Tr. 622-23)
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112. The Competitive Cheer student-athletes were required to and did participate in “positive play” in accordance with the athletic department rules that apply to all Quinnipiac varsity athletes. (Tr. 623-24)
113. The University provided Coach Powers with a total of six full scholarships to award to her team, but she was permitted to divide that sum among as many athletes as she chose. Coach Powers chose not to award all six scholarships in the first year so that she could use them for recruiting in the future. Instead, she chose to award the equivalent of approximately 1.5 scholarships and to divide them among 13 student-athletes. (Tr. 633)
114. The team members were selected based upon their athletic ability. Coach Powers assessed the skill level of the returning students who were members of the 2008-09 cheerleading squad, which had competed in addition to their sideline responsibilities, and determined that 16 had the skills necessary to participate in the varsity team. She offered 13 of those athletes scholarship dollars. (One of them elected not to participate in the team.) In order to identify the remaining members of the 2009-10 team, Coach Powers held a clinic in the beginning of the year for students interested in going out for the sport. She had been in contact with many of the students throughout the prior year and had encouraged the athletes with the highest skills to come to Quinnipiac. At the clinic the students were required to practice and perform the various athletic skills that would be required in competition, including standing tumbling, running tumbling, jumps, basket tosses, pyramids and partner stunts. She identified the students with the requisite skills and invited them to join the team. She selected 13 students from the clinic to be on the team. One athlete quit a few weeks into preseason practices and was replaced by a graduate student who had participated on the sideline team as an undergraduate. The graduate student was awarded a scholarship as well. (Tr. 569-73, 619-21)
115. The team was also required by the University to comply with NCAA rules regarding hours of practice, competition, and other team activities. (Tr. 624)
116. Prior to the commencement of their defined championship season and in accordance with NCAA rules, the team practiced in groups of eight or ten for eight hours per week, focusing upon skills for four hours per week and strength and conditioning for the other four. For the duration of their defined season, the team was limited to 20 hours per week of team activities which include practice, competition, team meetings, etc. (Tr. 625)
117. The team participated in ten competitions during the 2009-10 season. In three of those competitions, they competed against other college varsity competitive cheer teams. In the remaining competitions, they competed
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against club teams that do not engage in sideline cheerleading activities and teams that compete in addition to their sideline cheerleading responsibilities. (Ex. 41; Tr. 578 – 608)
118. In 2009-10, five colleges sponsored varsity competitive cheer teams that did not engage in any sideline cheerleading activities. Those schools are Quinnipiac University, University of Maryland, University of Oregon, Fairmont State, and Azusa Pacific. (Exs. 132, 135)
119. In September 2009, those five colleges along with Baylor University, which announced its plans to sponsor a varsity team in 2010-11, Fort Valley State and Ohio State, gathered to form the National Competitive Stunts and Tumbling Association (“NCSTA”). The NCSTA was established to serve as the governing body for the varsity sport of competitive cheer. For 2009-10, the NCSTA set a defined 132 day season, which began in early December 2009 and ended April 9, 2010. The NCSTA further set rules governing the maximum number of coaches, the maximum number of equivalency scholarships, the surface on which competitions would occur, and access to sports medicine at practices and competitions. (Exs. FT, 43)
120. The NCSTA developed a new meet format for competition. The meet format includes compulsory and optional rounds in stunts, basket toss, pyramid, tumbling as well as a traditional 2.5 minute team routine. The scoring for the meets is standardized. Similar to gymnastics and figure skating, skills are given a predetermined difficulty score and the athletes are judged based upon their ability to execute those skills. The meet format is designed to allow two teams to compete against one another in head-to-head competition. In a head-to-head competition the meet should last approximately two hours. (Exs. 44, FB; Tr. 645 – 55)
121. The first meet conducted in the new format was conducted on February 5, 2010. Seven schools, including Quinnipiac, competed in the meet. Quinnipiac also competed in an NCSTA format meet against the University of Maryland on February 28, 2010. (Exs. 41, FB, FE;Tr. 591 – 92)
122. The remaining eight competitions were governed by private competition organizations. The team performed a 2 minute 30 second or 2 minute 15 second routine in which they demonstrated their skills in tumbling, pyramids, basket tosses, and partner stunts. The team was judged based upon the level of difficulty of their routine and the execution of it, including technique, stability, and synchronization. (Ex. FB; Tr. 641 – 42)
123. Throughout the course of the year, the NCSTA further developed and refined their rules and policies. These include the number of student athletes permitted to participate in competition, the number permitted to
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travel to regular season competition, the number permitted to travel for post-season competition, the requirements for numbered uniforms, how officials will be hired, trained and paid, post-season qualification, and AllAmerican qualification. In addition, they have developed software to manage scoring and to maintain statistics about individual athletes. They have also developed a website, logo, and marketing materials for the sport. The NCSTA has also developed and refined its safety guidelines. (Exs. 98, FG, FW; Tr. 656 – 59)
124. For the 2010-11 season, NCSTA rules require that varsity teams participate in at least four NCSTA meets in order to qualify for the postseason tournament. (Exs. 98, FG)
125. Quinnipiac is scheduled to participate in five regular season meets in the NCSTA format against other varsity teams in 2010-11. The University also plans to host a meet against club teams in the region who have expressed an interest in competing in the NCSTA meet format. Quinnipiac will also participate in several traditional cheer competitions. (Tr. 659 – 60)
126. The NCSTA post-season tournament will take place in April 2010 at the University of Oregon. The tournament will use a bracket system and each varsity team will be assigned a ranking based upon its regular season record. The top two seeds will get a bye in the first round. There will be a total of three rounds and the winner will win the national championship. (Tr. 660 – 62; Ex. FG)
127. Several high school athletic associations have expressed interest in using the NCSTA meet format as well. (Tr. 669)
128. The NCSTA intends to file for NCAA Emerging Sport status in the spring of 2011. (Ex. 98)
129. Although Coach Powers did not obtain her NCAA off-campus recruiting certification until June 2010, she had a very successful recruiting season. For the 2010-11 season, Coach Powers offered scholarships to eleven incoming students, nine of whom accepted. In addition, she guaranteed spots on the team to three incoming students who will not receive scholarships and one returning student who did not compete in 2009-10 due to the academic constraints of her program. (Tr. 636 – 40)
130. All 30 of the athletes on the 2009-10 team participated in competition over the course of the season. (Ex. EW)
131. Of the 30 student-athletes on the 2009-10 team, 24 have indicated their intent to be on the team in 2010-11. Of those 24, only 18 are guaranteed spots. The remaining six will have to try out. The roster size for 2010-11 is 36. Based upon the inquiries she has received from incoming students,
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Coach Powers expects to have approximately 35 students trying out for five spots. (Tr. 639 – 41)
Conclusions of Law
132. Title IX states, in pertinent part, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .” 20 U.S.C. 1681(a).
133. Interscholastic athletics are included within the meaning of “program or activity” covered by Title IX, and the Code of Federal Regulations consider whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes when determining whether a university is providing equal opportunity. 34 C.F.R. 106.41(c).
134. A Policy Interpretation issued by the Office of Civil Rights (“OCR”) in 1979 provides three ways (the 3 prongs) for a university to comply with the requirement to provide effective accommodation of students’ interests and abilities: (1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or (3) Where the members of one sex are underrepresented among intercollegiate athletics, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. OCR 1979 Policy Interpretation.
135. Quinnipiac complied with Title IX in 2009-10 by meeting Prong 1, through providing athletic participation opportunities substantially in proportion to the University’s undergraduate enrollment.
136. Quinnipiac counted the number of athletic participation opportunities it provided to students correctly, by following the OCR’s instructions, as set out in the 1979 Policy Interpretation and 1996 Clarification, which both define participants as those athletes:
a. Who are receiving the institutionally-sponsored support normally provided to athletes competing at the institution involved, e.g., coaching, equipment, medical and training room services, on a regular basis during a sport’s season; and
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b. Who are participating in organized practice sessions and other team meetings and activities on a regular basis during a sport’s season; and
c. Who are listed on the eligibility or squad lists maintained for each sport, or
d. Who, because of injury, cannot meet a, b, or c above but continue to receive financial aid on the basis of athletic ability.
137. Quinnipiac correctly counts its athletic participants by counting those athletes who were members of the team as of the first date of competition. OCR 1996 Clarification (“As a general rule, all athletes who are listed on a team’s squad or eligibility list and are on the team as of the team’s first competitive event are counted as participants by OCR.”). Quinnipiac is correct in not double-counting as participants both people who were added to teams after the first date of competition for legitimate reasons as well as people who were deleted from teams after the first date of competition for legitimate reasons.
138. Quinnipiac is correct in not counting as athletic participants individuals who were removed from teams before the first date of competition, or added to teams after the last date of competition. OCR 1996 Clarification (noting that participants are only those athletes who obtain benefits “during a sport’s season,” and that a sport’s season commences “on the date of a team’s first intercollegiate competitive event” and concludes “on the date of the team’s final intercollegiate competitive event”).
139. Quinnipiac correctly counted athletes for Title IX who were on teams as of the first date of competition, who received coaching, equipment, medical and training room services, and participated in organized practice sessions and other team meetings and activities on a regular basis during a sport’s season, but who were not elite athletes.
140. Quinnipiac correctly counted as participants athletes who were injured during the season and did not compete because they were training to recover from their injuries.
141. Quinnipiac correctly counted as participants athletes who were on scholarship and were members of teams, but did not compete and were red-shirted.
142. Teams are separate for purposes of Title IX when they are distinct teams that are recognized as different sports by the NCAA and have different NCAA championships.
143. Quinnipiac correctly counts its cross country, indoor track and field and outdoor track and field athletes, counting athletes who compete in two or
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three of these teams as participating in separate teams. OCR 1996 Clarification (“In determining the number of participation opportunities for the purposes of the interest and abilities analysis, an athlete who participates in more than one sport will be counted as a participant in each sport in which he or she participates.”); Miller v. Univ. of Cincinnati, No. 1:05-cv-764, 2008 U.S. Dist. LEXIS 4339 (S.D. Ohio, Jan. 22, 2008) (“it is proper for the University to count an athlete who competes on the crosscountry team, indoor track team and outdoor track team as competing on three separate teams”).
144. The athletes on Quinnipiac’s Competitive Cheer team count as varsity athletes for purposes of Title IX. The team meets the standards set out in the OCR’s April 11, 2000 Letter to David Stead and OCR’s September 17, 2008 Dear Colleague Letter. These letters both set out a series of factors to be weighed in making an “overall” determination as to whether an activity is a sport. These factors are not a checklist, and neither the 2000 Letter nor the 2008 Dear Colleague Letter instructs institutions to give particular weight to any single factor.
145. OCR explained that it considers “whether the activity is structured and administered in a manner consistent with established intercollegiate or interscholastic varsity sports in the institution’s athletics program,” looking at whether such things as its budget and coaching staff are administered by the school’s athletics department, whether participants are eligible to receive scholarships, and whether participants are recruited consistent with other varsity sports. 2008 Dear Colleague Letter.
146. OCR also considers whether a team has practice opportunities consistent with other varsity sports, competitive opportunities, pre-season and/or post-season competition, and whether the “primary purpose of the activity is to provide athletic competition at the intercollegiate or interscholastic varsity levels rather than to support or promote other athletic activities.” OCR clarified that its policy is “to encourage compliance with the Title IX athletics regulations in a flexible manner that expands, rather than limits, student athletic opportunities.” 2008 Dear Colleague Letter.
147. Quinnipiac’s Competitive Cheer team meets the standard for a varsity sport. This sport is extremely athletic and demands high levels of strength, precision and flexibility. The sole purpose of the Competitive Cheer team is to engage in intercollegiate competition. Quinnipiac’s Competitive Cheer team does not cheer for other teams. Quinnipiac has a separate, unrelated sideline cheerleading squad that cheers for other sports teams. The team trains and practices like other varsity teams, recruits like other teams, offers scholarships like other teams, and competes like other teams. The Competitive Cheer team is administered by Quinnipiac’s athletics department in the same way as every other varsity sport at the University.
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Case 3:09-cv-00621-SRU Document 162 Filed 06/25/10 Page 23 of 23 148. Quinnipiac satisfies Prong 1 by providing substantially proportionate
athletic opportunities to men and women. See Equity in Athletics, Inc. v. Department of Educ., 675 F. Supp. 2d 660 (W.D. Va. 2009) (noting the court has been unable to locate “any authority to support the proposition that a disparity as low as 2% is substantially disproportionate as a matter of law”); Boulahanis v. Board of Regents, 198 F.3d 633, 639 (7th Cir. 1999); Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 611-14 (6th Cir. 2002); Miller v. University of Cincinnati, No. 1:05-cv-764, 2008 U.S. Dist. LEXIS 4339, at *20 (S.D. Ohio Jan. 22, 2008). 149. Plaintiffs’ claims in Count 1 of the Amended Complaint, addressed to participation, therefore are without merit and should be dismissed.
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 Case 3:09-cv-00621-SRU Document 163 Filed 06/25/10 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

--------------------------------- X

STEPHANIE BIEDIGER, KAYLA LAWLER, :

ERIN OVERDEVEST, KRISTEN

:

CORINALDESI, and LOGAN RIKER,

:

individually and on behalf of all those

:

similarly situated; and

:

ROBIN LAMOTT SPARKS, individually,

:

:

Plaintiffs,

:

:

-v-

:

:

QUINNIPIAC UNIVERSITY,

:

:

Defendant.

:

--------------------------------- X

CIVIL ACTION NO: 3:09-CV-00621 (SRU)
June 24, 2010

PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW The Plaintiffs submit these Proposed Findings of Fact and Conclusions of Law
pursuant to the Court’s pre-trial instructions. Background
The background of this case is detailed in the Court’s May 22, 2009 ruling granting the Plaintiffs’ Application for a Preliminary Injunction. See Biediger v. Quinnipiac Univ., 616 F. Supp. 2d 277 (D. Conn. 2009).
PROPOSED FINDINGS OF FACT Facts Which Are Not In Dispute The Plaintiffs and Defendant entered into a series of stipulations filed with the Court on June 10, 2010. As a consequence, the facts set forth in paragraphs 1 – 38 below are not in dispute.

Case 3:09-cv-00621-SRU Document 163 Filed 06/25/10 Page 2 of 35
1. Plaintiffs Stephanie Biediger, Kayla Lawler, and Logan Riker, are female student athletes who currently attend Defendant Quinnipiac University in Hamden, Connecticut (“QU” or “the University”). They are members of the Defendant’s varsity women’s volleyball team.
2. Plaintiffs Kristen Corinaldesi and Erin Overdevest were, through academic year 2009-10, female student athletes who attended QU. They were members of the Defendant’s varsity women’s volleyball team.
3. Robin Lamott Sparks is the women’s varsity volleyball coach at QU and has been so employed since 2007. She also is an adjunct professor in communications at the Defendant university.
4. Defendant QU is a private university which receives federal financial assistance and is subject to Title IX of the Education Amendments of 1972, 20 U.S.C. Section 1681-88 (“Title IX”).
5. Jack McDonald is the Defendant University’s Athletic Director. As such, he is responsible for managing the Athletic Department's personnel, budget, fundraising and revenue efforts, athletic events and campus athletic facilities. With the assistance of his staff, he also contributes to oversight of QU’s compliance with all applicable rules and regulations of the National Collegiate Athletic Association (“NCAA”) and with Title IX.
6. Tracey Flynn is employed by the Defendant University in its Athletic Department and holds the titles of Senior Women’s Administrator (“SWA”) and Assistant Athletic Director for Compliance.
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7. (RFA #2)1 The University provides varsity intercollegiate athletic participation opportunities for both male and female students.
8. (RFA #3) The University does not provide intercollegiate athletic participation opportunities at the sub-varsity level, including club team sports.
9. (RFA #4) The University provides male and female students with opportunities to participate in intramural sports.
10. (RFA #9) The University compiles and submits athletic gender equity data to the NCAA each school year.
11. (RFA #49) There are enough current and/or prospective female students at the University who have the interest and ability to participate in varsity, intercollegiate volleyball to maintain a team.
12. The University claims, in this action, that it complied with Title IX in 200910 and will comply with Title IX in 2010-11 under “Prong One” of OCR’s 1979 Policy Interpretation concerning compliance with Title IX’s requirement that institutions effectively accommodate the athletic interests and abilities of members of both sexes.
13. The University does not claim, in this action, that it complied with Title IX in 2009-2010 and/or will comply with Title IX in 2010-2011 under “Prong Two” or “Prong Three” of the 1979 Policy Interpretation.
14. (RFA #57) The University is a member of the Northeast Conference (“NEC”).
15. (RFA #58) Both the NCAA and the NEC sponsor championships in Division I intercollegiate volleyball.
1 References in the form “(RFA # __) refer to Defendant’s Responses to Plaintiffs’ Requests for Admissions, Plaintiffs’ Trial Exhibit (“PX”) __.
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16. (RFA #66) The following schools are members of the NEC: Central Connecticut State University, Fairleigh Dickinson University, Long Island University, Monmouth University, Mount St. Mary’s University, Robert Morris University, Sacred Heart University, St. Francis University (NY), St. Francis University (PA), and Wagner University.
17. (RFA #70) The following colleges are located in the state of Connecticut and participate in NCAA Division I athletics: Quinnipiac University, Yale University, University of Connecticut, Central Connecticut State University, Sacred Heart University, Fairfield University, and Hartford University.
18. (RFA #72) The University enrolls students from all 50 states and the District of Columbia.
19. (RFA #109) There is no international governing body for competitive cheer as a sport.
20. (RFA #111) Competitive cheer is not recognized as an Olympic sport. 21. (RFA #118) During the 2008-2009 school year, the University did not have a competitive cheer team that it counted as a varsity sport for purposes of Title IX. 22. (RFA #119) The University offers athletic scholarships for varsity athletes, including volleyball players. 23. (RFA #121) The University has not conducted a national search for a competitive cheer coach. 24. (RFA #122) The University recruits athletes for its varsity intercollegiate sports teams.
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25. (RFA #125) The University did not recruit athletes for its competitive cheer team before the recruiting season for the 2009-2010 school year.
26. (RFA #126) The University’s cheerleaders did not complete NCAA sports eligibility forms for the 2008-2009 school year.
27. (RFA #127) The University’s cheerleaders did not go through the NCAA’s sports clearinghouse before the 2008-2009 school year.
28. (RFA #133) The NCAA Division I women’s spring track championships include the following events: 100 meter dash, 200 meter dash, 400 meter dash, 800 meter run, 1500 meter run, 5000 meter run, 3000 meter steeplechase, 4X100 meter relay, 4X400 meter relay, 4X800 meter relay, 100 meter hurdles, 400 meter hurdles, high jump, long jump, triple jump, pole vault, shot put, discus, hammer throw, and javelin.
29. (RFA #134) The University does not have an outdoor track on campus. 30. (RFA #155) The EADA report form includes gymnastics, golf, bowling, swimming, and volleyball as varsity sports. 31. (RFA #156) University students participate in intramural volleyball but not in intramural competitive cheer. 32. (RFA #159) The University’s men’s and women’s lacrosse teams play games in both the fall and spring. 33. (RFA #161) The University’s men’s baseball and women’s softball teams play games in both the fall and spring. 34. (RFA #163) The University’s men’s and women’s tennis teams play matches in both the fall and spring.
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35. (RFA #164) The University’s men’s and women’s tennis teams have played varsity intercollegiate matches indoors and outdoors.
36. (RFA #167) The University’s spring championship sports teams practice in the fall, winter, and spring of each school year.
37. (RFA #172) The University’s varsity intercollegiate ice hockey, basketball, softball, baseball, field hockey, lacrosse, soccer, and volleyball coaches coach only one sport at the University.
38. (RFA #178) All or most of the non-freshmen members of the University’s 2009-2010 competitive cheer team were members of the University’s 2008-2009 sideline cheer team.
Facts Relating to Competitive Cheer 39. Quinnipiac’s version of “competitive cheer” is a new form of competitive cheerleading. 40. The first competitions in this new form of competitive cheer were held in 2010. 41. There is neither an international governing body for competitive cheer as a sport, nor is it recognized as an Olympic sport. 42. During the 2008-2009 academic year, the University did not have a “competitive cheer team” that it counted as a varsity sport for any purpose. 43. While the University generally recruits off-campus for its varsity intercollegiate sports teams, it did not recruit athletes off-campus for its competitive cheer team before the recruiting season for the 2009-2010 school year or the upcoming 2010-11 school year.
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44. QU did not conduct a national search for a coach for its Competitive Cheer Team.
45. Other than its freshmen, nearly all of the members of the University’s 2009-2010 competitive cheer team were also members of the University’s 2008-2009 sideline cheer team.
46. While Quinnipiac University students participate in intramural volleyball, they do not participate in intramural competitive cheer.
47. The QU Competitive Cheer Team is coached by Mary Ann Powers. 48. Her current position at QU is “Head Competitive Cheer Coach.” She has been so employed since July of 2009. Prior to that, Coach Powers was the “Head Cheerleading Coach” since 1998. 49. The QU Sideline Cheerleading squad first competed in 1999. 50. The Sideline Cheer squad competed three times during the academic year 2008-09. 51. QU’s Sideline Cheer squad also competed at the NCA/NDA National Championships in Florida on March 11, 2009, sponsored by Varsity Brands, a for-profit cheerleading company. 52. “All Star” Competitive Cheer Programs are sponsored by private gyms or clubs. All Star Competitive Cheer Programs have competitors beginning at ages of two and one-half to three years old, and all the way up to Level Six, which includes athletes eighteen years and older. Competitive Cheer Schedule 2009-10 53. QU’s first cheer event of the 2009-10 academic year occurred on December 3, 2009 when it performed an inaugural exhibition.
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54. QU’s competitive cheer team entered a competition held on December 5, 2009 which was sponsored by a private cheer company known as Spirit Unlimited, an organization similar to Varsity Brands, but smaller than Varsity Brands. At this event, QU competed against the Babson and Stonybrook cheer teams, neither of which were strictly competitive cheer teams. The competition consisted of a 2 and ½ minute routine.
55. This event also included All Star non-collegiate divisions. 56. The format and scoring system for the event were determined by Spirit Unlimited, the company. 57. Varsity Brands has a different scoring system, which includes a sideline cheer aspect. 58. The National Cheerleaders Association (“NCA”) runs competitions with a different format and scoring system. 59. The UCA, another organization also connected to Varsity Brands, has another competitive cheer scoring system. 60. In UCA-sponsored competitive cheer events, there is a break in the middle of the presentation for a crowd response section, and a different weighted score on the sideline aspect. 61. Both the NCA and UCA competitions are based on 2 ½ minute team routines. Walter Camp Charity Exhibition 62. On January 14, 2009, the QU Competitive Cheer squad performed an exhibition for the Walter Camp Foundation at the New Haven Field House.
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Sacred Heart Pioneer Cheer and Dance Challenge 63. QU was scheduled to compete in the Sacred Heart Pioneer Cheer and Dance Challenge on January 16, 2010, an event sponsored by Sacred Heart University in Fairfield, Connecticut, against a club team sponsored by the University of Connecticut, and a cheer squad from Fairfield University, a sideline cheer squad that also competes. 64. The University of Connecticut and Fairfield University cheer squads did not compete due to injuries. QU was declared the winner of this event. All Girl Collegiate Competitive Cheer Competition 65. In February 2010, the QU Competitive Cheer squad competed at the All Girl Collegiate Competitive Cheer Competition, at Kennesaw State University in Georgia, against the University of Maryland, University of Oregon and Georgia, in the first event sponsored by the newly formed National Competitive Stunt and Tumbling Association (“NCSTA”). 66. The NCSTA is in the process of developing its own meet format and scoring system, different from other cheer organizations. NCSTA’s format features individual and small group competitions in specific skills, plus team competitions in 2 ½ minute routines that combine the skills. 67. Six schools were at the Kennesaw State University competition: Fairmont, Quinnipiac, Maryland, Oregon and Georgia. All of the teams who competed at this event were strictly competitive cheer squads.
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Cheer Sport Nationals Competition 68. QU’s Competitive Cheer team participated on February 6 and 7, 2010 in an event sponsored by Cheer Sport, another competitive cheer organization with a scoring system distinct from the systems employed by Spirit Unlimited, the NCA and UCA. 69. The Division in which QU competed at the Cheer Sport Nationals included two sideline cheer teams: Louisville and Coastal Carolina. North Carolina State, Georgia and Ohio State competed at the Cheer Sport Nationals as club teams. 70. Louisville did not compete under the banner of the University of Louisville. Rather, it competed as “Louisville Gym Tyme”, an All Star cheer program. Quinnipiac All Star and Competitive Cheer Challenge 71. On February 27 and 28, 2010, QU sponsored the Quinnipiac All Star and Competitive Cheer Challenge, which was held at the university’s TD Bank Sports Center. 72. This QU-sponsored event occurred over two days. Saturday competition included high school and middle school athletes. Sunday included competitions among All Star and college teams. Later, Quinnipiac University’s Competitive Cheer team and University of Maryland’s Cheer squad competed against each other under the NCSTA scoring system. The USA Wildcat All Stars and Dance Challenge 73. QU’s Competitive Cheer team participated in the March 20, 2010 USA Wildcat All Stars and Dance Challenge, sponsored by USA Wildcat All Stars, an All Star gym organization.
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74. The competition was based on 2 ½ minute cheer routines. The All New England Open 75. On March 27, 2010 QU’s Competitive Cheer team competed in an event sponsored by the New England Cheerleaders Association (“NECA”), an event known as the All New England Open. This event had its own scoring system. 76. None of the teams which QU competed against at this event were strictly competitive cheer squads. 77. The NECA Championship event included competition among All Star and college cheer squads. 78. The All Star cheer squads included athletes from elementary school all the way up through eighteen years of age and over, competing in the NECA scoring system, which consisted of two and one-half minute routines. QU’s Competitive Cheer team competed in the Collegiate Division against college squads from University of New Hampshire and Nichols, neither of which are strictly competitive cheer squads. Daytona Beach, Florida 79. On April 8 and 9, 2010 the QU Competitive Cheer team participated in the NCA/NDA College Nationals in Daytona Beach, Florida, sponsored by Varsity Brands, using a format and scoring system which included a crowd response component of 45 seconds.
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QU’s Competitive Cheer Program 80. In March 2010, Jack McDonald, Tracey Flynn, and Bill Mecca informed Coach Powers that cheer would become a varsity sport at Quinnipiac. 81. No one in the QU Athletic Department consulted with Coach Powers about making Competitive Cheer into a varsity sport before announcing their decision to her. 82. Prior to QU’s making Competitive Cheer into a varsity sport, Coach Powers had not been involved in any organized effort to make cheer a varsity sport. 83. Prior to setting Competitive Cheer’s roster management target of 30 participants for Academic Year 2009-10, Coach Powers was not consulted about an appropriate number for her team. 84. Because the NCAA does not recognize Competitive Cheer as a varsity sport, QU was not able to purchase insurance in the same way it obtains insurance for all of the other varsity teams it sponsors. 85. QU was required to purchase a separate catastrophic insurance policy for the Competitive Cheer team. 86. QU’s Competitive Cheer team did not have an assigned locker room in 2009-10. 87. Pursuant to NCAA Regulations, coaches are not permitted to recruit student athletes off campus until the coaches have passed the NCAA Recruiting Test. 88. Neither Coach Powers nor her two coaching assistants had taken the NCAA recruiting test during the 2009-10 academic year. She passed the test in June 2010, which will permit her to begin off-campus recruiting in August 2010.
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89. In the Fall of 2009, Coach Powers began recruiting student athletes from within the QU student body for the 2009-10 Competitive Cheer season.
90. Because Coach Powers had not passed the Recruiting Test, she has not been able to recruit off the QU campus, and has not initiated any contacts with prospective student athletes who may be interested in QU’s Competitive Cheer Team.
91. Other than Coach Powers, all of the other Head Coaches at QU had passed the NCAA Recruiting Exam before the 2009-10 academic year.
92. The Competitive Cheer team was budgeted six athletic scholarships for the Academic Year 2009-10. Coach Powers, however, decided not to use all of the six scholarships.
93. Coach Powers’ team follows NCAA rules on practicing. In the pre-season, practice is limited to eight hours per week. Once the Competitive Cheer Team reached its 132-day declared season, her athletes’ practice was limited to not more than twenty hours a week.
The National Competitive Stunts and Tumbling Association (“NCSTA”) 94. The National Competitive Stunt and Tumbling Association (“NCSTA”) is an organization consisting of coaches and administrators from universities and colleges which either claim to treat competitive cheer as a varsity sport, or intend to. 95. The September 2009 initial meeting of the NCSTA was known as “the Maryland Cheer Summit,” and was attended by representatives from QU, University of Maryland, University of Oregon, Baylor University, Fairmont University and Ohio State University.
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96. Mr. McDonald has had experience organizing sports leagues for ice hockey, lacrosse and track and field, and is intimately involved in establishing and expanding the NCSTA.
97. The attendees of the Maryland Cheer Summit discussed the establishment of seasons of competition, roster sizes, the establishment of scholarships, coaching and national competition.
98. At the time of the initial summit of the NCSTA, there was no agreed-upon set of rules of competition for competitive cheer.
99. Jack McDonald, Cheryl Thomes and Coach Powers attended the Maryland meeting on behalf of QU. In April 2010, athletic department administrators from member schools attended a meeting in Daytona, Florida. QU was represented by Jack McDonald at the April meeting.
100. The formal structure of the NCSTA’s governing board and any committees are not yet formalized.
101. NCSTA has not been incorporated. 102. Currently, NCSTA member schools include University of Oregon, University of Maryland, Baylor, Fairmont State, Azusa Pacific, UMass/Dartmouth and Quinnipiac University. 103. The organization is working to establish uniform rules, regulations, a scoring system, and a new competitive cheer meet format for intercollegiate, varsity competition. 104. Members of the NCSTA have not reached a consensus on what to name their new sport.
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105. Administrator members of the NCSTA have determined that in Academic Year 2010-11, up to half of its members’ competitions may be held outside of the NCSTA format and against non-member institutions.
106. The scoring system and meet format for NCSTA competitions are undergoing revisions.
107. One of the NCSTA’s principal goals is to have Competitive Cheer recognized by the NCAA as an emerging sport for women, but the organization does not plan to submit a proposal to the NCAA’s Committee on Women’s Athletics until 2011.
108. In order to submit a new sport to the NCAA for emerging sport status, ten university presidents must submit letters stating that their institutions intend to offer the sport as a varsity sport.
109. At this time, the NCSTA has seven universities who are prepared to apply to the NCAA to make its proposed, unnamed activity designated an emerging sport.
110. The NCSTA is still in the process of formalizing membership requirements for the organization.
111. There is disagreement among those organizations affiliated with Varsity Brands and those affiliated with the NCSTA, about whether the word “cheer” should be included in the name of their organizations and/or in the name of any new sport that may evolve from cheerleading.
112. QU is aware that the NCAA does not recognize Competitive Cheer as a sport.
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113. Notwithstanding the fact that the NCAA does not recognize Competitive Cheer as a sport, QU intends to treat Competitive Cheer in the same way it would treat its NCAA-recognized sports for purposes of EADA reporting.
114. At the 2009 Maryland Cheer Summit, NCSTA determined that the squad size for Competitive Cheer Teams would be 30 athletes.
115. Recently, the NCSTA determined that the size of Competitive Cheer squads would be set at 36.
116. The NCSTA has yet to adopt bylaws for the organization. 117. At this time, the NCSTA has determined that twelve scholarships is an appropriate number for Competitive Cheer squads. 118. The NCSTA has determined that a maximum 24 student athletes would actually compete on the floor in the “team event” portion of an NCSTA-sanctioned meet. The NCSTA has not set a minimum number of competitors for the team event. 119. At this time, the NCSTA projects that Competitive Cheer travel parties would include 28 student athletes, but the overall roster is projected to consist of 36. 120. The NCSTA and its member universities intend to make the NCSTA the national governing body for the proposed new sport. 121. The NCSTA members have not agreed upon a name for their proposed new emerging sport, and its members continue to discuss different proposed names. 122. At this time, the NCSTA and its member universities have determined that each member institution is allowed to name the new proposed sport whatever name the member institution chooses.
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123. QU projects that its 2010-11 Competitive Cheer team will carry 36 female student athletes.
124. QU intends to report members of its Competitive Cheer team as participants in a varsity sport in its EADA Report for Academic Year 2009-10.
125. QU did not count the members of its Competitive Cheer team as varsity athletes for EADA purposes in connection with its 2008-09 academic year, a report which it submitted in October 2009.
126. QU does not have a letter from the Office of Civil Rights confirming that the OCR has determined that its Competitive Cheer team constitutes a varsity sport, although QU knows that OCR has instructed schools to obtain such a determination letter before counting cheerleading as a varsity sport for EADA purposes.
127. The NCSTA and its member universities intend to ask the Office of Civil Rights whether its proposed new sport may be counted as a varsity sport towards Prong One Title IX compliance, but such a request has not yet been made.
QU’s Cross-Country and Track and Field Teams 128. QU does not have either an indoor or outdoor track facility suitable for holding or hosting track and field competitions. 129. QU’s Women’s Indoor Track Team practices on a track in the Recreation Center. 130. Members of QU’s outdoor men’s and women’s track teams practice on the roads, on the grass and a couple of days of the week at Cheshire High School. 131. QU does not have any plans to construct an outdoor track facility.
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132. QU has decided not to permit members of its Men’s Cross Country Team to compete in any indoor or outdoor track events.
133. Most of the women student athletes who run Indoor Track also run Outdoor Track.
134. Most of the women student athletes at QU who run Cross-Country also run Indoor Track and Outdoor Track.
135. All of QU’s female student athletes in running sports who receive scholarship, compete in three running sports, Cross-Country, Indoor Track and Outdoor Track. Track and Field competitions include running events, and field events, that is, discus, pole-vault, hammer throw, javelin, triple jump and long jump.
136. QU does not enter any of its women student track athletes in any of the field events.
137. According to QU’s business records, in 2009-10, three women student athletes are identified as receiving scholarships in Women’s Outdoor Track. There are no scholarship recipients, however, listed in either Women’s Cross-Country or Women’s Indoor Track.
138. The NCAA average squad size for a Men’s Cross-Country team is fifteen. 139. In academic years 2009-10 and 2010-11, QU set the target roster management number for its Men’s Cross-Country team at 13. 140. The NCAA average squad size for a women’s Cross-Country team is 17. 141. The target roster management number for QU’s women’s cross-country team for academic years 2009-10 and 2010-11, were set at 18 and 24, respectively.
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142. The NCAA average squad size for a women’s indoor track and field squad is 38, while the average outdoor track and field squad is 37.
143. QU’s target roster management number for both its women’s Indoor and Outdoor Track and Field Squads for Academic Year 2009-10 was set at 30, notwithstanding the fact that neither of these teams competes in field events.
144. QU’s target roster management number for academic year 2010-11 projects that its Women’s Indoor and Outdoor Track and Field Teams will carry 35 student athletes, notwithstanding the fact that QU does not compete in any field events.
145. Prior to eliminating the women’s volleyball team, and the men’s golf and track teams at QU, members of QU’s Athletic Council were not consulted about the decision.
146. Carolyn Martin has been employed as the Men’s and Women’s Head Cross-Country Coach and the Women’s Indoor and Outdoor Track Head Coach beginning Academic Calendar Year 2009-10. Prior to that, she was QU’s Assistant Coach for Women’s Cross Country and Indoor and Outdoor Track for approximately five years.
147. Coach Martin was asked by the QU Athletic Department to reach a target roster management number of 18 student athletes for the 2009-10 academic year for women’s cross-country.
148. The sport of indoor track consists of a variety of running events of various lengths. In addition, there are throwing and jumping events falling under the category of “field events”.
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149. In calendar year 2009-10, QU women’s indoor track team competed in the 200-meter dash the 400-meter dash, the 500-meeter dash, the 800-meter dash, the 1000-meter run, the mile run (also known as the 1,600 meter), the 3,000-meter run, the 5,000-meter run, the 4 x 400 meter relay, the 4 x 800 meter relay, and a distance medley relay.
150. The QU Women’s Indoor Track Team did not compete in the sprint events, such as the 55 or 60-meter dash runs.
151. QU’s women’s indoor track and field team also did not compete in the field events: long jump, the high jump, the pole-vault, the hammer throw or shot-put.
152. Women’s indoor track has year-end championships, including the Northeast Conference Championship, the Eastern Collegiate Athletic Conference Championship and the NCAA National Championship.
153. In October of 2009, Coach Martin held walk-on tryouts for the women’s indoor track team, as a result of which she added a number of student athletes.
154. The women’s indoor track team began practicing in October 2009, and their first competition was held on December 5, 2009.
155. For Academic Year 2009-10, the women’s track team was directed to meet a target roster management number of 36 student athletes.
156. Quinnipiac University’s women’s track and field team does not have facilities which allow student athletes to train or compete in field events.
157. The same women student athletes who run indoor track at QU also run in the outdoor track competitions. Practices for outdoor track commenced on March 22, 2010, and the first date of competition for outdoor track was March 27, 2010.
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158. Coach Martin and her coaching staff actively recruit male student athletes for the men’s cross-country team and women student athletes for the three women’s running sports at QU.
159. QU allocates two full scholarships for men’s cross-country, and four scholarships for the women’s running teams.
160. QU has traditionally focused its efforts at developing distance runners for both the men’s and women’s running sports.
161. The target roster management number for the men’s cross-country team for academic year 2009-10 was set at 13 student athletes.
162. According to Coach Martin, for the coming Academic Year 2010-11, she requested an increase to the target roster management numbers for members of the women’s running teams.
163. For the coming academic year 2010-11, she has requested that her target roster management number for women’s cross-country be increased to 35.
164. Coach Martin is the only Head Coach at QU who coaches four teams. There are no other head coaches at QU who serve as the head coach for even as many as three teams.
165. On August 6, 2009, Coach Martin signed a letter, acknowledging the target roster management numbers for her Men’s Cross Country Team, Women’s Cross-Country and Women’s Indoor and Outdoor Track teams.
166. Prior to signing the letter, she did not have any conversations or input into the target roster management numbers chosen for her team, with either Jack McDonald
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or Dr. Mark Thompson. She had no choice but to sign the Target Roster Management letters presented to her.
167. Although QU does not sponsor a men’s indoor or outdoor track team, members of the men’s cross-country team are permitted to compete in up to five indoor and outdoor track meets as representatives of QU. QU, however, prohibits members of the Men’s Cross-Country Team to compete individually as representatives of QU. They are, however, allowed to compete individually, although not as representatives of QU.
168. Coach Martin considers indoor and outdoor track as the same sport held in different seasons.
169. In Coach Martin’s view, the track program at QU has been operated primarily as an adjunct to the cross-country program.
170. None of QU’s female student athletes on the Indoor or Outdoor Track Team who run distances shorter than 800 meters, receive athletic aid.
171. All of Coach Martin’s female cross-country student athletes are also required by her to run indoor and outdoor track.
Facts Relevant to Multiple Counting of Track & Field Athletes 172. The NCAA Division I women’s spring track championships include the following events: 100 meter dash, 200 meter dash, 400 meter dash, 800 meter run, 1500 meter run, 5000 meter run, 3000 meter steeplechase, 4X100 meter relay, 4X400 meter relay, 4X800 meter relay, 100 meter hurdles, 400 meter hurdles, high jump, long jump, triple jump, pole vault, shot put, discus, hammer throw, and javelin. 173. The University’s men’s and women’s lacrosse teams, men’s baseball and women’s softball teams play games in both the fall and spring. Its men’s and women’s
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tennis teams play matches in both the fall and spring and have played varsity
intercollegiate matches indoors and outdoors.
174. The University’s spring championship sports teams practice in the fall,
winter, and spring of each school year.
175. The University’s varsity intercollegiate ice hockey, basketball, softball,
baseball, field hockey, lacrosse, soccer, and volleyball coaches coach only one sport at
the University.
Legal Standards
176. The Department of Education, Office for Civil Rights (“OCR”), Office of the
Secretary, issued its policy interpretation of Title IX on December 11, 1979, appearing in
the Federal Register Volume 44. Number 239. The policy interpretation provides, in
relevant part, as follows:
4. Definition – For purposes of examining compliance with this Section, the Participants will be defined as those athletes: (a) who are receiving the institutionally-sponsored support normally provided to athletes competing at the institution involved e.g., coaching, equipment, medical and training room services on a regular basis during a sports season; and (b) who are participating in organized practice sessions and other team meetings and activities on a regular basis during a sports season; and (c) who are listed on the eligibility or squad lists maintained for each sport, or (d) who, because of injury, cannot meet (a), (b) or (c) above, but continue to receive financial aid on the basis of athletic ability.
177. On January 16, 1995, Norma V. Cantu, Assistant Secretary for Civil
Rights, issued a Dear Colleague letter which enclosed “Clarification of Intercollegiate
Athletics Policy Guidance: The Three-Part Test” (the “Clarification”). The Clarification
provides, in part, as follows.
It is important to note that under the Policy Interpretation, the requirement to provide nondiscriminatory participation
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opportunities is only one of many factors that OCR examines to determine if an institution is in compliance with the athletics provision of Title IX. OCR also considers the quality of competition offered to members of both sexes in order to determine whether an institution effectively accommodates the interests and abilities of its students.
In addition, when an “overall determination of compliance” is made by OCR, 44 Fed. Reg. 71417, 71418, OCR examines the institution’s program as a whole. Thus, OCR considers the effective accommodation of interest and abilities in conjunction with equivalents in the availability, quality and kinds of other athletic benefits and opportunity provided male and female athletes to determine whether an institution provides equal athletic opportunity as required by Title IX. These other benefits include coaching, equipment, practice and competitive facilities, recruitment, scheduling of games and publicity, among others. An institution’s failure to provide nondiscriminatory participation opportunities usually amounts to a denial of equal athletic opportunity because these opportunities provide access to all other athletic benefits, treatment and services.
178. The OCR has and does review on a case-by-case basis, whether an
athletic activity may properly be considered part of an academic institution’s
interscholastic or intercollegiate athletic program within the meaning of Title IX
regulation.
179. The OCR has considered a number of factors determining whether a
particular activity should be considered part of an institution’s athletic program for
purposes of Title IX. Those factors include, but are not limited to, the following.
whether the activity is sponsored for the primary purpose of preparing for and engaging in athletic competition against other similar teams; whether the team prepares for and engages in competition in the same way as other teams in the interscholastic or intercollegiate athletic program, e.g., whether it receives coaching, conducts tryouts, engages in regular practice sessions, and has regularly scheduled athletic competitions; and, whether selection for the team is based upon factors related primarily to athletic ability. In contrast, if the purpose of the team is primarily to support and promote other
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athletes, then OCR will not consider the team to be engaged in a sport. But OCR will also consider other factors relevant to the activity that may help demonstrate that the activity is part of an institution’s interscholastic or intercollegiate athletic program. Whenever a future case is filed with us, we will continue to apply this kind of analysis. 180. Since 1995, the Office of Civil Rights has consistently taken the position
that cheerleading should be treated as an extracurricular activity, and not as part of an
educational institution’s athletic program within the meaning of Title IX Regulation.
Letters from different personnel within the Office of Civil Rights have memorialized the
Office of Civil Rights’ position in letters dated April 26, 1995, May 18, 1995, January 26,
1996, October 13, 1998 and September 16, 1999. Copies of those letters have been
received into evidence as Plaintiff’s Exhibit 19.
181. Most recently, by way of letter dated April 11, 2000, OCR has expanded
the criteria by which it will determine whether an athletic activity may be recognized as a
sport. That letter provides, in relevant part, as follows.
OCR may also consider other evidence relevant to the activity, which might demonstrate that it is part of an institution’s athletic program. Such evidence that may be considered includes, but is not necessarily limited to, the following:
 whether organizations knowledgeable about the activity agree that it should be recognized as an athletic sport;
 whether the activity is recognized as part of the interscholastic or intercollegiate athletic program by the athletic conference to which the institution belongs and by organized state and national, interscholastic or intercollegiate athletic associations;
 whether state, national, and conference championships exist for the activity;
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 whether a state, national, or conference rulebook or manual has been adopted for the activity;
 whether there is state, national, or conference regulation of competition officials along with standardized criteria upon which the competition may be judged; and
 whether participants in the activity/sport are eligible to receive scholarships and athletic awards (e.g., varsity awards).
Process to be Followed Certain school activities in which students are engaged may be activities that require a considerable amount of athleticism, but not athletic activity qualifies as a sport. Consistent with earlier policy statements, there is a presumption by OCR that drill teams, cheerleading and other like activities are extracurricular activities, and are not considered sports or part of an institution’s athletic program within the meaning of Title IX Regulation. Donna A. Lopiano
182. Donna A. Lopiano, PhD., President of Sports Management Resources
(“SMR”). Dr. Lopiano is considered one of the foremost national experts on gender
equity in athletics. As such, she is an expert in Title IX athletics regulations, and offered
her expert opinion regarding the meaning and spirit of Prong 1 of Title IX, which
requires educational institutions receiving federal financial support to provide athletic
competition opportunities for male and female student athletes in numbers substantially
proportionate to their respective enrollments.
183. Based on her training, experience and expertise, she found that QU’s
athletic squad sizes differed from reasonable, average squad sizes of other NEC and
NCAA schools, to such an extent that it suggested that QU has and continues to
engage in artificial roster manipulation through the manner in which it employs its roster
management system
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184. The manner in which QU applies the program creates the appearance of proportional gender equity. Assessing whether a given educational institution’s participation rate among male and female student athletes provides comparable, genuine varsity competition opportunities, however, is not a purely quantitative determination as suggested by annual EADA reporting requirements. Rather, it is a fact-specific, qualitative inquiry.
185. The manner in which an educational institution fills its male and female athletic rosters is one of the factors which must be examined to determine whether a given institution is providing equal athletic opportunities.
186. To the extent that a university fills its athletic rosters by recruiting high school athletes with the athletic ability to play at the school’s competition level, then the women’s teams should be finding their athletes in the same way. For example, if women’s coaches must meet their mandated roster management target numbers by recruiting women student athletes from a pool of walk-on student athletes, then this is an indication that the additional female student athletes may not have the necessary skills for genuine varsity competitive opportunities.
187. By diluting a varsity team with female student athletes who cannot compete at the varsity level, it necessarily dilutes the competitive varsity experience for the other varsity female student athletes.
188. Whether a university is providing genuine varsity competitive opportunities to its male and female student athletes in substantial proportion to their enrollment in the undergraduate population, will depend upon how the institution counts its athletic participation opportunities.
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189. Title IX requires that schools provide male and female students with equal opportunities to participate at each level of athletic competition offered, such as intramural programs, club sports and intercollegiate athletics.
190. Club teams and competition with club teams which are not fully supported by the institution, or that play non-varsity schedules, cannot be counted as varsity teams, or as providing varsity competitive opportunities for purposes of Prong 1. Rather, equity at the club level must be measured separately. Maintaining this distinction is crucial in order to insure that the schools do not end up supporting men’s competitive opportunities at the varsity level, while women’s sports opportunities are supported only at the lower club or intramural level.
191. If men’s teams play at the varsity Division I level against other varsity Division I teams, then the school must also provide its women’s teams with a comparably competitive schedule. If, for example, an institution’s women’s teams are competing primarily against club, or non-Division I teams, then those women’s teams may not be operating as varsity teams comparable to the competitive opportunities being offered the male varsity students.
192. After carefully reviewing QU’s own data, and applying the principles for counting “participants” as set forth in OCR policy, she determined that QU has overcounted the number of female participation opportunities and under-counted the number of male participation opportunities to such an extent that QU has not and cannot be in compliance with Prong One in the coming academic year 2010-11.
193. It is also important when assessing Prong One compliance to examine closely the activities which a given institution counts towards its compliance numbers.
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194. The OCR’s Guidelines for Completing EADA Forms expressly states that schools may not count cheerleading unless they have received an approval letter from the Department of Education. Thus, a school may not properly count members of its cheer team as part of its Prong One compliance, unless and until it receives approval from OCR to do so.
195. Eliminating the proposed 36 female competitive cheer athletes from QU’s 2010-11 participation rosters places QU out of Prong One compliance.
Enrollment and Athletic Participation in Academic Year 2009-10 196. In academic year 2009-10, QU had an undergraduate population of 5,686 students. 197. In academic year 2009-10, QU’s undergraduate population consisted of 3,518 women and 2,168 men, or 61.9% female and 38.1% male. 198. In academic year 2009-10, QU continued to rely on a roster management program in order to comply with Prong One of Title IX. 199. QU’s 2009-10 roster management program resulted in the creation of 166 competitive opportunities for male student athletes. 200. QU purports that its 2009-10 roster management program resulted in 274 competitive opportunities for women student athletes, or 61.9% of the varsity competitive opportunities. 201. In order for QU’s athletic program to reach perfect proportionality in academic year 2009-10, it needed to allocate 61.9% of the varsity competitive opportunities to women, a total of 270.
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202. QU’s roster management program for 2009-10 included, among others, 18 female cross country athletes, 30 female indoor track athletes, 30 female outdoor track athletes, 30 female Competitive Cheer athletes, and 12 female volleyball athletes.
203. Subtracting the 30 competitive cheer athletes from the Defendant’s roster yields a total female athletic participation rate of 244, which translates into a relative participation rate of 56%.
Projected Enrollment and Athletic Participation for Academic Year 2010-11 204. QU estimates that it will enroll a total of 5,900 undergraduates for the 2010-11 academic year, consisting of 2,188 men and 3,712 women, resulting in a population which is 37% male and 63% female. 205. QU plans to continue to implement a roster management program in an effort to comply with Prong One of Title IX in the coming academic year 2010-11. 206. QU’s projected roster management program for 2010-11 includes 24 female cross country athletes, 35 female indoor track athletes, 35 female outdoor track athletes, 36 female competitive cheer athletes, and 14 female volleyball athletes. 207. QU’s roster management program for 2010-11 projects that there will be 168 competitive opportunities for male student athletes, or 36.21% of the 464 total proposed varsity competitive opportunities. 208. For the 168 allocated male athletes to constitute 37% of the University’s total roster positions, there would have to be approximately 454 total athletes competing at QU in the coming year. (168 M  0.37 = 454) 209. Perfect female proportionality of 63% in a constellation of 454 total athletes means that the Defendant would need to have no fewer than 286 female
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student athletes. Subtracting the 36 proposed competitive cheer athletes results in a total of 250 female student athletes which yields a participation rate of 55%.
210. Using the defendant’s projected 2010-11 rosters also results in a lack of proportional female athletic participation, even if competitive cheer is retained and volleyball is eliminated.
211. The defendant’s own 2010-11 roster projects a total of 464 athletes, 296 of whom are female student athletes which include the 36 competitive cheer and 14 volleyball athletes. Subtracting the 14 volleyball players from the projected 296 female student athletes results in 282, which represents a participation rate of 60.7%, a difference of 2.3 basis points.
CONCLUSIONS OF LAW 212. This Court defers, as it must, to the OCR’s policy statements and interpretations of Title IX. 213. Not all athletic activities may be properly considered a “sport” for Title IX compliance purposes. 214. The OCR has set forth specific factors to evaluate whether a given athletic activity may properly be considered towards Title IX substantial proportionality compliance under prong one. 215. The OCR has set forth specific factors to evaluate whether a given athletic activity may properly be considered towards Title IX substantial proportionality compliance under Prong One.
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216. The OCR has set forth specific factors to evaluate whether a given athletic activity may properly be considered towards Title IX substantial proportionality compliance under prong one.
217. Applying the factors set forth by the OCR for evaluating whether the proposed athletic activity of competitive cheer constitutes a “sport” for Title IX purposes, the Court finds that competitive cheer is not sufficiently developed as an athletic activity to provide genuine varsity competitive opportunities to its female student athletes.
218. Subtracting the 36 proposed varsity competitive cheer participants from the Defendant’s projected 2010-11 roster, the Court finds that QU’s female athletic participation rate will fall to 55%, and thus fail to provide substantially proportional competitive opportunities to its female undergraduate population which constitutes 63% of the undergraduate population.
219. QU’s practice of requiring female cross country athletes to run indoor and outdoor track and proceeding to count those athletes three times for Title IX compliance purposes, while it simultaneously limits the male runners to cross country competition, constitutes the imposition of an impermissible minimum or “floor” on women’s participation rosters.
220. The manner in which QU has counted the number of “participants” in its athletic activities focuses narrowly on the first date of competition roster numbers which are required for EADA reporting purposes, and fails to properly count the total number of “participants” as that term is defined by OCR policy statements.
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221. Carefully analyzing QU’s athletic participation data reveals that it continues to under-count the number of participants on its men’s teams and over-count the participation rate of its female student athletes.
222. The manner in which QU counts its female student athletes, and fails to count accurately its male student athletes, creates the appearance of proportional gender equity in its athletic program without creating gender equity in fact.
223. The Plaintiffs have demonstrated that Defendant Quinnipiac University’s proposed roster management program for academic year 2010-11 will fail to provide genuine athletic participation opportunities for women in substantial proportion to the projected undergraduate enrollment of women.
224. The Plaintiffs are seeking the enforcement of federal civil rights in connection with their education, and monetary damages alone would not adequately compensate them.
225. If a permanent injunction is not entered, the Plaintiffs will be denied the unique educational opportunities which flow from participation in collegiate athletics and thus would suffer substantial and irreparable harm in the absence of a permanent injunction.
226. The public interest will be served by enforcing Title IX civil rights legislation which prohibits discrimination on account of the Plaintiffs’ sex.
227. The Court will enter a permanent injunction subjecting the Defendant to court-supervision of its athletic department and enjoining the Defendant from eliminating its women’s volleyball team and from discriminating against its present and prospective female student athletes.
33

Case 3:09-cv-00621-SRU Document 163 Filed 06/25/10 Page 34 of 35
Respectfully submitted: THE PLAINTIFFS
By: Alex V. Hernandez
Alex V. Hernandez (ct08345) Jonathan B. Orleans (ct05440) Pullman & Comley, LLC 850 Main St., P.O. Box 7006 Bridgeport, CT 06601-7006 Telephone: (203) 330-2000 Facsimile: (203) 576-8888 Email: jorleans@pullcom.com Email: ahernandez@pullcom.com David McGuire (ct27253) American Civil Liberties Union Foundation
of Connecticut 2074 Park Street, Suite L Hartford, CT 06106 Telephone: (860) 523-9146 Email: dmcguire@acluct.org Co-counsel admitted pro hac vice: Kristen Galles Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 Telephone: (703) 722-1071 E-Mail: kgalles@comcast.net THEIR ATTORNEYS
34

Case 3:09-cv-00621-SRU Document 163 Filed 06/25/10 Page 35 of 35 CERTIFICATION
I hereby certify that on June 24, 2010, a copy of the foregoing Plaintiffs’ Proposed Findings of Fact and Conclusions of Law was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.
/s/ Alex V. Hernandez
Alex V. Hernandez (ct08345)
35

 
 Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 1 of 146 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - x

STEPHANIE BIEDIGER, ET AL vs.
QUINNIPIAC UNIVERSITY

: No. 3:09cv-621 (SRU) : 915 Lafayette Boulevard : Bridgeport, Connecticut : : June 21, 2010 :

- - - - - - - - - - - - - - - - x

BENCH TRIAL

B E F O R E: THE HONORABLE STEFAN R. UNDERHILL, U. S. D. J.

A P P E A R A N C E S:

FOR THE PLAINTIFFS:

PULLMAN & COMLEY 850 Main Street P.O. Box 7006 Bridgeport, Connecticut 06601-7006
BY: JONATHAN B. ORLEANS, ESQ. ALEX V. HERNANDEZ, ESQ.

KRISTEN GALLES, ESQ. Equity Legal 10 Rosecrest Avenue Alexandria, Virginia

22301

FOR THE DEFENDANT:

WIGGIN AND DANA, LLP 400 Atlantic Street P. O. Box 110325 Stamford, Connecticut 06911-0325
BY: MARY A. GAMBARDELLA, ESQ.

(CONTINUED)

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 2 of 146 2
PROSKAUER ROSE 1585 Broadway New York, N. Y. 10016
BY: EDWARD A. BRILL, ESQ. SUSAN D. FRIEDFEL, ESQ. REBECCA BERKEBILE, ESQ.
Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604
Tel: (917)703-0761

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 3 of 146 3
I N D E X
WITNESSES: KAYLA LAWLER Direct Examination by Mr. Hernandez..................6 Cross Examination by Mr. Brill..................... 14 LOGAN RIKER Direct Examination by Mr. Orleans.................. 15 DONNA LOPIANO Direct Examination by Ms. Galles....................29 Redirect Examination...............................245 Cross Examination by Mr. Brill.....................147 MARK THOMPSON Direct Examination by Mr. Hernandez................261
-0-

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 4 of 146 4

1

(9:00 O'CLOCK, A. M.)

2

THE COURT: Good morning. Everybody prepared to

3

proceed?

4

MR. ORLEANS: Yes, Your Honor.

5

THE COURT: All right. Call your first witness.

6

MR. HERNANDEZ: Plaintiffs call Kayla Lawler.

7

THE COURT: Before we begin, my understanding is

8

that we have a stipulation that the testimony from the

9

preliminary injunction hearing shall be part of this

10

record as well and that I will simply ignore anything that

11

I deemed to be irrelevant for this proceeding. Is that

12

right?

13

MR. BRILL: That is correct except for the

14

deposition testimony of Dr. Lopiano.

15

MR. ORLEANS: Your Honor, at the pretrial

16

conference you indicated that you thought that the record

17

was the record and that it was senseless to try to parse

18

it so that's our understanding.

19

THE COURT: Okay. Remind me, I'm sorry, what

20

was the concern about Lopiano?

21

MR. BRILL: She gave a deposition in connection

22

with the preliminary injunction hearing, she didn't appear

23

and the parties agreed that she would simply testify in

24

this phase of the trial that her deposition that was given

25

prior to the PI hearing would not be considered part of

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 5 of 146 5

1

the trial record.

2

MR. ORLEANS: We did stipulate to that, Your

3

Honor.

4

THE COURT: Okay.

5

MR. ORLEANS: I was under the impression from

6

your remarks at the pretrial conference that you were more

7

or less overriding that and indicating that you wanted the

8

entire record to be the record, but either way --

9

THE COURT: Okay, well, hopefully it won't

10

matter.

11

MR. ORLEANS: Hopefully it won't matter.

12

THE COURT: I'm looking for a stipulation. It

13

looks like we have one.

14

MR. BRILL: Well, it's a significant difference

15

because --

16

THE COURT: I'll abide by the stipulation.

17

MR. BRILL: -- because I'm prepared to cross

18

examine her.

19

THE COURT: I'll abide by the stipulation.

20

MR. BRILL: Thank you, Your Honor.

21

MR. ORLEANS: That's fine, Your Honor. Thank

22

you.

23

THE COURT: Please raise your right hand.

24

25

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 6 of 146 6

1

K A Y L A

L A W L E R,

called as a witness on

2

behalf of the Plaintiff, having been duly sworn by the

3

Court, testified as follows:

4

THE COURT: Please be seated.

5

DIRECT EXAMINATION

6

BY MR. HERNANDEZ:

7

Q. Good morning, Ms. Lawler.

8

A. Good morning.

9

Q. Could you please spell your name for the record and

10

give us your address?

11

THE COURT: Actually don't give us your address.

12

MR. HERNANDEZ: That's fine.

13

THE COURT: Because this could wind up on the

14

internet.

15

MR. HERNANDEZ: Thank you.

16

A. K A Y L A, Lawler, L A W L E R.

17

Q. And what state do you live in Ms. Lawler?

18

A. Kentucky.

19

Q. And you traveled, did you travel here for testimony

20

in this case?

21

A. Yes.

22

Q. When did you travel here?

23

A. We left at 4:00 o'clock in the morning on Saturday

24

and we got here about 6:30 Saturday.

25

Q. Who's we?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 7 of 146 7

1

A. My mother and I.

2

Q. Is your Mom here today?

3

A. Yes.

4

Q. And are some your teammates here today as well.

5

A. Yes.

6

Q. Will you be able to stay throughout the entire trial,

7

Ms. Lawler?

8

A. No.

9

Q. Okay. I'd like to talk to you a little bit about

10

last year, last season. How did you do academically?

11

A. I did very well. I think that this second semester I

12

had a 3.8. I think my cumulative for the two years is a

13

3.7, I believe.

14

Q. And did you receive any awards or, any awards last

15

year?

16

A. This past sophomore year I received the outstanding

17

sophomore award.

18

Q. And how did you get that award?

19

A. I had to get nominated by a faculty member. And then

20

I had to fill out an application to receive it. You had

21

to have above, I'm not sure the G P A was, and you had to

22

be actively involved in a couple of organizations on

23

campus.

24

Q. And do you play any particular leadership role within

25

the team?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 8 of 146 8

1

A. I'm captain of the team for this coming season. And

2

I've always been a floor captain before.

3

Q. How were you chosen to be the captain.

4

A. Coach asked me if I wanted to take on the role.

5

Q. And what role does the captain play on the team?

6

A. We're responsible for making sure everyone's where

7

they are supposed to be on time. Keeping up the morale of

8

the team, keeping motivated. If there's any problems,

9

sitting down and talking them through, making sure

10

everyone has their equipment, clean locker room, lots of

11

stuff.

12

Q. Does that have an impact on team spirit and morale?

13

A. Yeah, I think it's really important.

14

Q. Are team spirit and morale important to the

15

competitive experience?

16

A. Yes.

17

Q. And over all, how has your experience been?

18

A. I love my team. We get really excited. We're loud,

19

we're enthusiastic and that's how we play. That's

20

important to us.

21

Q. All right. And as I recall, you train in Division I

22

volleyball through the entire year, is that correct?

23

A. Yes.

24

Q. All right. As a Division I volleyball player at

25

Quinnipiac university, are you required to play any other

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 9 of 146 9

1

sports as a condition to being a member of the volleyball

2

team?

3

A. No.

4

Q. Do you know how the volleyball team did academically

5

last year?

6

A. We had a very high G P A. My freshman year we won an

7

award, I think we were, had the top G P A for a volleyball

8

team in the conference and there's a strong

9

possibility we could get that again this year.

10

Q. Which schools did you compete against last year?

11

A. All schools in our conference, Robert Morris, CCSU,

12

Dartmouth, Yale. We also competed against some bigger

13

schools like St. Johns, that was one of our opening

14

tournaments, and then we also played Army, another big

15

competitive school.

16

Q. And what's the farthest that you had to travel in

17

order to compete?

18

A. This year the farthest was Pennsylvania.

19

Q. How did you get there?

20

A. By bus.

21

Q. You didn't have to fly?

22

A. No.

23

Q. Is competing with other schools in the northeast

24

conference important to your competitive experience in

25

college?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 10 of 146 10

1

A. Yeah. It helps us figure out where we stand locally,

2

schools that are similar to us, and also it's our

3

conference, you know, that's how we measure our skill

4

primarily. You know, we want to be, you know, successful

5

in our conference.

6

Q. Have you developed any rivalries with schools in the

7

northeast conference?

8

A. Yeah. Personally, my personal opinion, I know my

9

teammates feel the same, Central Connecticut State

10

University and also Robert Morris, I'd say those are two

11

of the biggest ones in our conference.

12

Q. And does having a rivalry within the northeast

13

conference, is that important to your experience as a

14

competitive athlete in college?

15

A. Yeah, definitely.

16

Q. Why?

17

A. I think that it's a different experience when you

18

come to college. It's not like high school. In high

19

school the high schools are close, you might know some of

20

the kids. But in college it's a different experience.

21

You know, I didn't know much about the universities on the

22

East Coast. I've never been out here before. Developing

23

a rivalry against the people in our conference is a good

24

driving factor. It motivates us, gets us excited to play

25

and just that competitive spirit.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 11 of 146 11

1

Q. What about locally, did you compete against any local

2

teams? And by local, I mean within Connecticut?

3

A. Yeah. Besides in our conference we also compete

4

against Yale this year.

5

Q. And traditionally have you competed against other

6

local schools like Fairfield U or Sacred Heart?

7

A. Yeah, Sacred Heart. We play a lot of schools in

8

Connecticut.

9

Q. Okay. And does the women's volleyball team have a

10

fan base at Quinnipiac University?

11

A. Yeah.

12

Q. And when you play at home, do some of your fans come

13

out to support you?

14

A. Yeah. We always have our parents, of course, Taylor

15

Payne's (ph) father, and we have classmates, roommates,

16

friends come out and support us.

17

Q. Is that local hometown fan base, if you will,

18

important to your competitive experience?

19

A. Very much.

20

Q. How so?

21

A. Just to have a fan base and to have support, know

22

that people are behind you, it's motivating, it makes you

23

want to win and it gets me pumped up, I guess.

24

Q. Okay. And what about when you travel to some of the

25

local schools like Fairfield U, Sacred Heart or Yale; do

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 12 of 146 12

1

you get support from your fan base?

2

A. Yeah.

3

Q. And what does that support involve?

4

A. They come out, you know, they wear shirts, they

5

cheer, yell for us, do chants, sometimes they have signs.

6

Lots of stuff.

7

Q. And is that fan base support at some of your local

8

competitions important to your experience as competitive

9

athletes?

10

A. Very.

11

Q. How so?

12

A. I think it's a completely different feeling, you

13

know, if you're there and you don't have people cheering

14

you on, I mean you still go out, you play hard, but just

15

knowing they are there makes you play that much harder.

16

It's a motivator.

17

Q. Okay. I think last year we talked about the

18

importance of your relationship with your coach. I'd like

19

to go into a slightly different area in that respect. And

20

again, do you have to have access to your coach the entire

21

year?

22

A. Yeah.

23

Q. All right. Now, if Coach Sparks were coaching

24

another team during your volleyball office season, that is

25

when you're not competing, would that have an impact on

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 13 of 146 13

1

your access to her?

2

A. Definitely.

3

Q. And what sort of impact would that have?

4

A. Just knowing she didn't have the same time commitment

5

to us, she wouldn't be able to be there as much. Spring

6

season is when we really break down technique and we

7

remold and we work on things we couldn't work on during

8

season to get better for our next season. So just to know

9

she that has time to work with us and make us all better

10

and improve on our weaknesses is really important.

11

Q. And how many people are on your volleyball team or

12

were on in '09, '10?

13

A. I believe that we had eight or nine.

14

Q. Okay. And let's say that number were to next year

15

double; you had twice as many. Let's say you had as many

16

as 20 people on your volleyball squad. Would that have an

17

impact on you and your teammates' ability to have access

18

to your coach?

19

MR. BRILL: Objection, Your Honor.

20

Hypothetical.

21

THE COURT: I'll allow it. It's lay opinion.

22

BY THE WITNESS:

23

A. Yeah, definitely. The fact that Coach has the

24

ability to work with us individually and do stuff with us

25

definitely helps make us get more touches, more

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 14 of 146 14

1

repetitions and help us get better individually so that we

2

can be a better team overall.

3

Q. And when you go to use training facility for strength

4

and conditioning, do you go as a team?

5

A. Yeah.

6

Q. And if there were twice as many of you in the

7

training room, would that have any impact on your ability

8

to train effectively?

9

A. Yeah. If we have to wait on machines it would take

10

more time. That's one of the things that happens. If we

11

don't have morning weights but we if weight together later

12

than the other students in there, a lot of times it's hard

13

to do our workout.

14

MR. HERNANDEZ: I have no other questions, Your

15

Honor.

16

THE COURT: All right. Cross?

17

CROSS EXAMINATION

18

BY MR. BRILL:

19

Q. Good morning, Ms. Lawler.

20

A. Good morning.

21

Q. Were you here during the preliminary injunction

22

hearing?

23

A. Yes.

24

Q. Did you hear the testimony of Coach Sparks?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 15 of 146 15

1

Q. Do you recall that she testified that ideally she'd

2

like to have 15 to 16 players on the volleyball team?

3

A. Yes.

4

Q. Thank you.

5

MR. HERNANDEZ: No further questions, Your

6

Honor.

7

THE COURT: Okay, thank you. You're excused.

8

MR. ORLEANS: Your Honor, plaintiffs call Logan

9

Riker.

10

L O G A N

R I K E R,

called as a witness on

11

behalf of the Plaintiff, having been duly sworn by the

12

Court, testified as follows:.

13

THE COURT: Please be seated. State your name,

14

spell your last name for the record?

15

THE WITNESS: Okay. Logan Riker. Just last

16

name? R-I-K-E-R.

17

DIRECT EXAMINATION

18

BY MR. ORLEANS:

19

Q. Good morning, Ms. Riker. How are you?

20

A. Good, how are you?

21

Q. What state are you from?

22

A. Ohio.

23

Q. You're one of the plaintiffs in this case?

24

A. Yes, I am.

25

Q. Now, you didn't testify at the preliminary injunction

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 16 of 146 16

1

hearing, did you?

2

A. No, I did not.

3

Q. And why was that?

4

A. My mother came to testify for me because I was still

5

17 at the time.

6

Q. And since then you've come in as a plaintiff and your

7

mother has dropped off; you must have turned 18, is that

8

correct?

9

A. Yes.

10

Q. And you're a member of the volleyball team at

11

Quinnipiac?

12

A. Yes, I am.

13

Q. You played this past year?

14

A. Yes.

15

Q. So where do you stand in school at this point?

16

A. I am going to be a sophomore so I just completed my

17

freshman year.

18

Q. And in order to be a member of the volleyball team at

19

Quinnipiac, have you been required to play any other

20

sports?

21

A. No, I have not.

22

Q. Did the volleyball team have a spring season this

23

year?

24

A. We did have a spring season. We had fewer players,

25

so --

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 17 of 146 17

1

Q. I beg your pardon?

2

A. We had fewer players.

3

Q. Did you play volleyball in high school?

4

A. Yes, I did.

5

Q. How old were you when you started playing volleyball?

6

A. On official team I was eight years old but before

7

that I claimed I was the assistant coach starting when I

8

was about five years old on my sister's teams.

9

Q. When you were growing up through high school, was

10

volleyball important to you?

11

A. It was the main thing in my life.

12

Q. Would you just describe for the court briefly the

13

importance of volleyball in your life?

14

A. Volleyball has been everything. Since I was eight

15

years old I decided that I wanted to play in college at

16

an, obviously a collegiate level. It's what I spent

17

probably ten months out of the year doing, training in,

18

getting better. It was just something that I loved to do.

19

Q. Did you play for a high school varsity team?

20

A. Yes, I did.

21

Q. Were you recruited to play volleyball by colleges?

22

A. Yes, I was.

23

Q. Okay. Were you recruited by Quinnipiac?

24

A. Yes, I was.

25

Q. Were you recruited by other schools as well?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 18 of 146 18

1

A. Yes.

2

Q. Why did you decide to -- well, withdrawn.

3

Could you just describe a little bit of what, what it

4

was like to be recruited; what was involved in being

5

recruited?

6

A. There was a bunch of different things. It's very

7

stressful. My Mom did a lot of it for me because it was

8

too much. There was a lot of letters being sent out. I

9

mean coaches ask for tapes. They come watch your games,

10

they come to tournaments. There's a lot of talking to

11

coaches just telling them what kind of player you are,

12

finding out what the school is. And obviously the most

13

important part of being, you know, a collegiate player is

14

student athletes have to make sure the school is a right

15

fit for you.

16

Q. And did Coach Sparks come and see you play?

17

A. Yes, she did.

18

Q. When you were in high school?

19

A. She never came to any high school games but she came

20

to my club tournaments.

21

Q. That would be when you were a senior in high school?

22

A. Yes.

23

Q. And did she talk with you when she came to see you

24

play?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 19 of 146 19

1

Q. And why did you -- well, withdrawn.

2

When did you decide that Quinnipiac was the school

3

for you?

4

A. I had visited -- Coach contacted me after one of my

5

last games as a high school player and that was in late

6

September or early November. I decided to come out for a

7

visit, which is showing interest mainly in that school.

8

It was on Election Day, so like November 4 I think.

9

Q. And after you visited Quinnipiac, did you reach a

10

decision that you thought Quinnipiac was the place for

11

you?

12

A. Yes, I did.

13

Q. When did you learn that Quinnipiac had decided to

14

eliminate its volleyball team?

15

A. In March after I had committed in November.

16

Q. That would be March of 2009?

17

A. Yes.

18

Q. Right? Not just this in past March but the March

19

before, right?

20

A. Yes.

21

Q. And when you learned that Quinnipiac had decided to

22

eliminate volleyball, did you investigate the possibility

23

of going elsewhere?

24

A. Slightly. It's very late in the recruiting period so

25

there weren't many top schools that I was interested in

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 20 of 146 20

1

that had a liberos (ph) position open. Not many schools

2

had money which is obviously a huge factor in collegiate

3

volleyball. You work so hard all your life you want to be

4

rewarded somehow. And there weren't many options for that

5

in March and April.

6

Q. Are you receiving scholarship aid from Quinnipiac?

7

A. Yes.

8

Q. Why did you decide to attend Quinnipiac even though

9

you knew that there was a lawsuit that might or might not

10

result in the elimination of the volleyball program?

11

MR. BRILL: I object, Your Honor. Relevance of

12

her recently coming to Quinnipiac.

13

THE COURT: I'll allow it. Again, you know,

14

it's a bench trial.

15

MR. BRILL: All right.

16

THE COURT: So it can roll off my back if it's

17

not relevant. Go ahead.

18

BY THE WITNESS:

19

A. I came to Quinnipiac because in the first place if I

20

committed, like when I make a decision to do something I

21

dedicate myself to it. I couldn't back out on my team.

22

Q. And how do you feel about the prospects for the

23

volleyball team for the coming season?

24

A. This coming season I can't wait to play. I cannot

25

wait to get out in the gym. And we're going to be really

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 21 of 146 21

1

strong. We have some great recruits coming in. So --

2

MR. ORLEANS: Nothing further, Your Honor.

3

THE COURT: All right. Cross?

4

MR. BRILL: No questions, Your Honor.

5

THE COURT: All right, you're excused. Thank

6

you.

7

MR. BRILL: Your Honor, before we go to the next

8

witness, we have some deposition transcripts to hand up.

9

You want to do that now or --

10

THE COURT: Whenever is fine.

11

MR. ORLEANS: I was actually going to suggest it

12

might be a good time to take care of some housekeeping

13

matters before we call our next witness so why don't you

14

go ahead and I'll go after.

15

MR. BRILL: Sure. I have two deposition

16

transcripts of witnesses for the record. First is the

17

videotape deposition of Samuel Seemes who's the track and

18

field expert that was called by the defendant who was not

19

available this week, together with his written report.

20

And the parties stipulated that the written report would

21

be admissible.

22

And we have the videotape deposition of Karen

23

Martin who's the track and field coach who is not able to

24

be here. She gave birth just before the trial. And we do

25

have the videotape of this deposition as well.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 22 of 146 22

1

THE COURT: Okay.

2

MR. BRILL: Let me note for the record we don't

3

yet have the videotape from Mr. Seemes but I'm not sure

4

that it's particularly necessary.

5

THE COURT: That's fine. And just so we're

6

clear, I'm going to treat these not as trial exhibits but,

7

rather, simply as part of the record. In other words, I

8

was going to treat it as if they gave oral testimony.

9

MR. BRILL: Yes, that's the way we would expect.

10

MR. ORLEANS: That is correct.

11

MR. BRILL: Your Honor, another thing, Your

12

Honor, in the pretrial order the parties designated and

13

cross designated portions of Coach Martin's deposition

14

transcript. We had not turned in our final cross

15

designation but we would like if the entire balance of the

16

deposition be read. There's just a few pages in the cross

17

examination that have not been designated yet.

18

MR. ORLEANS: Well, I'm sorry to make trouble

19

but the issue with Ms. Martin was we combined her

20

discovery deposition and her deposition for purposes of

21

trial into one deposition because at the time we took her

22

deposition, she was eight months pregnant and we knew she

23

wasn't going to be able to testify at trial, so it was my

24

understanding with respect to the cross examination

25

because I had never deposed her previously that I would be

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 23 of 146 23

1

able to designate portions of the cross examination for

2

purposes of trial and that the remainder of the cross

3

examination would not come in. So --

4

MR. BRILL: You're looking at me. That was not

5

my understanding, Your Honor, but I certainly would have

6

re-asked her the same questions if I'd known that was Mr.

7

Orlean's understanding and there's nothing to that effect

8

on the record. I don't think it's a big deal but there

9

are little gaps in a few pages here and there and I think

10

it should all be in read in context.

11

MR. ORLEANS: I agree it's not a big deal. I

12

think now that you know what happened, we're happy to have

13

you read the entire transcript.

14

THE COURT: Very good.

15

MR. ORLEANS: With respect to Mr. Seeme's

16

deposition, I think I received an email from

17

Ms. Berkebile -- am I pronouncing your name correctly?

18

MS. BERKEBILE: Yes.

19

MR. ORLEANS: Regarding the signature on that

20

deposition and any corrections?

21

MR. BRILL: Right.

22

MR. ORLEANS: We do not need for Mr. Seemes to

23

read and sign that deposition.

24

I did notice two transcription errors, not in

25

the testimony but in the questioning and perhaps at a

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 24 of 146 24

1

break I can find those and we can let Your Honor know what

2

those are later. It's just two words that do change the

3

meaning of the questions that I'd like to get corrected.

4

THE COURT: All right.

5

MR. ORLEANS: The other housekeeping matter I

6

thought we ought to address is the exhibits because, Your

7

Honor, you had indicated that you were hopeful that we

8

might stipulate into evidence many of the exhibits and I

9

think we can stipulate into evidence many, not all of the

10

exhibits and I thought it might be useful to just go

11

through that at this time, particularly because our next

12

witnesses, Dr. Lopiano -- and she's going to be relying on

13

some of the exhibits.

14

THE COURT: Okay.

15

MR. ORLEANS: Unfortunately I don't have, with

16

respect to the plaintiff's list, I don't have a copy that

17

I can hand up that has the exhibits noted -- the

18

objections noted on it but I could indicate for the record

19

my understanding of what the, which ones the defendants

20

object to and I think the rest all go in.

21

THE COURT: Okay, that's fine.

22

MR. ORLEANS: Does that work?

23

THE COURT: Yes, obviously.

24

MR. ORLEANS: I'm just going to step up to the

25

podium so I have something to put it down on.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 25 of 146 25

1

With respect to the first 39 exhibits that are

2

listed on our list, those are all of the exhibits that we

3

had identified for the pretrial, the preliminary

4

injunction, and we thought that we shouldn't, since that's

5

becoming part of the record we thought we shouldn't change

6

any of that at all, so our exhibit list notes some of

7

those have already been admitted.

8

I should report that as to Exhibit Four, my

9

understanding is that the defendant objects on the grounds

10

of relevance to the portions of the exhibit that were not

11

already admitted. The defendant has objected to Exhibit

12

Five on the grounds of, on grounds of relevance. To

13

Exhibit 8 on grounds of relevance to the extent not

14

already admitted. To Exhibit 18 on grounds of relevance.

15

To Exhibit 22 and Exhibit 27 on grounds of relevance.

16

THE COURT: All right. Are the trial exhibit

17

numbers that were used at the preliminary injunction

18

hearing the same?

19

MR. ORLEANS: Yes, that was -- I didn't want to

20

disturb that. I thought it would be too confusing.

21

The defendant has objected to 30 on foundation

22

and relevance.

23

MR. BRILL: Could I just ask, Jon, could you

24

give me a few minutes? I'm having trouble --

25

MR. ORLEANS: Absolutely, I'm sorry.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 26 of 146 26

1

(Pause)

2

MR. BRILL: Could we defer this, Your Honor?

3

Unfortunately I can't locate my copy of the objections

4

easily and I'm not sure we need to do this right now

5

before Dr. Lopiano's testimony. If there are specific

6

exhibits she wants to rely on we can address those but I'm

7

not prepared to go through the whole list.

8

MR. ORLEANS: That's fine. I don't need to

9

inconvenience Mr. Brill.

10

THE COURT: Okay.

11

MR. ORLEANS: We'll continue that later.

12

MS. GALLES: Your Honor, we would like to call

13

Dr. Donna Lopiano as the next witness please.

14

MR. BRILL: Your Honor, before Dr. Lopiano takes

15

the stand -- she can sit down but before she begins her

16

testimony -- we did not make a motion in limine as to her

17

testimony but I do have two issues that I think would be

18

useful to sort out now rather than through objections in

19

the course of her testimony.

20

THE COURT: All right. Before she sits let me

21

jury just swear her in. Would you raise your right hand

22

please?

23

D O N N A

L O P I A N O,

called as a witness on

24

behalf of the Plaintiff, having been duly sworn by the

25

Court, testified as follows:

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 27 of 146 27

1

THE COURT: All right, thank you. You can sit.

2

MR. BRILL: She's being called as an expert, as

3

I understand, on Title IX and I don't frankly understand

4

the point of testimony on what a law means anymore than

5

Mr. Orleans and I could testify about what Title VII

6

means. The court may find testimony of that useful as

7

background, I don't have any objection. I think what is

8

more concerned is in her report she purports to say at

9

various times what she thinks the Office of Civil Rights

10

would do or what positions the Office of Civil Rights

11

would take on certain issues. That to me, that's

12

absolutely beyond the bounds of what any expert -- she's

13

not even a lawyer but what an expert can say about what an

14

administrative agency could do with respect to the

15

situation where there's been no rulings, anymore than

16

Mr. Orleans or I could testify as to what we think the

17

EEOC or the Department of Labor might do in response to a

18

particular case where there's been no ruling. So I think

19

that ought to be the guidelines for that frankly ought to

20

be understood before she begins because these are issues

21

that she addresses in her report.

22

MS. GALLES: Yes, Your Honor. Several things I

23

guess I can respond to that. Number one, is shown in her

24

CV is that these are exactly the issues that Dr. Lopiano

25

has testified about in every major Title IX litigation

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 28 of 146 28

1

that has come up in the last 30 years, so this is nothing

2

more than what she has done before and has been accepted

3

by courts in the case against Brown University, Colorado

4

State, Louisiana State University, and many others that

5

are listed on her CV.

6

Secondly, what she really does is because of her

7

expertise in gender equity, sports administration, having

8

been the former athlete -- women's athlete director at the

9

University of Texas, how do you apply these principles

10

practically in an athletic program. And some of these

11

matters are simply calculating -- obviously the law says

12

here's how you do it but you have to calculate, you have

13

to use numbers. Who are participants, why are they

14

participants. And then how do you calculate if you have

15

how many men, how many women, just doing the math to show,

16

all right, that produces a gap of X. Somebody has to do

17

that and Dr. Lopiano has indeed done that, so it's more in

18

terms of application rather than she may state that

19

obviously OCR says this, this is how I would apply it

20

here.

21

THE COURT: All right. In general, I'm going to

22

allow this testimony.

23

MR. BRILL: Could I just clarify, Your Honor.

24

I'm sorry, I don't object to the testimony that Ms. Galles

25

described. That's fine, but what I object to is with

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 29 of 146 29

1

respect to competitive cheer there have not been rulings

2

and Ms. Galles in her statement says the OCR will take

3

such and such a position or would have such and such a

4

view. To me that is not permissible expert testimony. If

5

she wants to apply her understanding of how you count

6

numbers in participation, I don't have no objection to

7

that, with respect to that.

8

THE COURT: Again, it's a bench trial. If

9

somebody comes up here and says the 2nd Circuit's going to

10

go this way or that way, you know, no one knows. I think

11

we should keep the testimony moving and I'm really not

12

worried about sorting out these issues in the end.

13

I would ask though for a copy of plaintiff's

14

exhibits, assuming you have them.

15

THE CLERK: Do we have copies for --

16

MR. ORLEANS: Yes. You have to be careful what

17

you ask for sometimes, Your Honor.

18

THE COURT: Okay.

19

MS. GALLES: All right, ready to go?

20

MR. ORLEANS: I don't know if you're going to

21

need these, Dr. Lopiano. Here you are.

22

DIRECT EXAMINATION

23

BY MS. GALLES:

24

Q. All right. Dr. Lopiano, I would first like to direct

25

your attention to what has been marked as Plaintiff's

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 30 of 146 30

1

Exhibit 99, which you have your own copy in front of you.

2

Could you please take a look at that and let me know --

3

A. Are you talking about my expert report?

4

Q. Yes. Dr. Lopiano, I'd just like you to identify what

5

that is.

6

A. This is a report dated May 15th, 2010, and it was my

7

original expert report that was, that was done without the

8

submission of the 2009, 2010 squad lists, which I just

9

received in this past week. And that required me in order

10

to do a count of 2009, '10 based on the squad list, to

11

issue a supplemental report which I have done.

12

Q. Okay. And I am --

13

A. But this is my original report.

14

Q. Original report, Exhibit 99?

15

A. Right.

16

Q. Okay.

17

A. I trust you on Exhibit 99. I'll mark it.

18

MS. GALLES: May I approach the witness, Your

19

Honor?

20

THE COURT: Yes. It's not necessary to ask.

21

MS. GALLES: Okay, since we're -- all right.

22

BY MS. GALLES:

23

Q. And could you please give this to the judge?

24

(Hands Court.)

25

MR. ORLEANS: Just -- to identify that those are

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 31 of 146 31

1

the three supplemental exhibits, there's a supplemental

2

exhibit list, 149, 150 and 151. And the report is 149,

3

this report. The supplemental report is 149. The -- do I

4

have my numbers right?

5

THE CLERK: There's Exhibit A and --

6

MS. GALLES: And Exhibit B.

7

MR. ORLEANS: And they are attached. I don't

8

think they are in the exhibit book. I'm not sure.

9

THE CLERK: I have 149.

10

MS. GALLES: Oh, they are fast.

11

MR. ORLEANS: My staff did a faster job than I

12

even knew.

13

BY MS. GALLES:

14

Q. Okay. So, Dr. Lopiano, what I have handed you and is

15

marked as Exhibit 149, and attached as Exhibits A and B

16

which have been marked as Exhibits 150 and 151, could you

17

please identify those for us?

18

A. Yes, Exhibit 149 is my supplemental report dated June

19

20. Let me make sure on that date. Dated June 20, 2010.

20

And it has attached to it two charts, Chart A which is

21

150, and which is my athlete by athlete analysis of how I

22

counted each athlete on the squad list.

23

And then Chart B is a summary by sport of the three

24

different ways I counted a comparison to conference and

25

NCAA squad list. And then in addition to showing -- I'll

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 32 of 146 32

1

explain all this in my supplemental testimony -- I did

2

four different calculations based on the court's pleasure

3

and whether it's going to consider triple counting, double

4

counting, unduplicated counting or single sport counting

5

of the runners. So I'll explain all of that but I tried

6

to create in the supplemental report a very clear picture

7

of the choices that the court has in making a

8

determination on counts.

9

Q. All right. Dr. Lopiano, I'd like you to go to what

10

has been, what is marked as Exhibit A to your expert

11

report, but is Exhibit 100 of plaintiff's trial exhibits.

12

A. Okay.

13

Q. And that is your CV. And since providing the CV that

14

is attached or that is marked as Exhibit 100, have you

15

since updated that or confirmed it for accuracy?

16

A. Yes, I have updated it as of 6/13, 2010.

17

Q. Okay.

18

A. You have a copy of that, I believe.

19

Q. Yes. Dr. Lopiano, I'd like to present that to you.

20

(Hands witness.) And is what I have just handed you the

21

most recent version of that, of your CV?

22

A. Yes, it has very minor changes.

23

Q. Okay.

24

THE COURT: Mark that as 152.

25

MS. GALLES: Okay.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 33 of 146 33

1

(Whereupon Plaintiff's Exhibit 152 was marked

2

full.)

3

THE COURT: Okay, I'm going to suggest this.

4

When exhibits are used with a witness, if there's going to

5

be an objection, just give me a heads up.

6

MR. BRILL: I was waiting, Your Honor. She

7

hadn't offered it.

8

THE COURT: No, I know, I'm thinking we can

9

almost --

10

MR. BRILL: All right, I'll state my position on

11

these exhibits. There are no objection to 152, the CV.

12

We did not stipulate that the reports of Dr. Lopiano could

13

come into evidence. Actually we didn't get the

14

supplemental report much I got it at six a. m. this

15

morning but I read it through. They are hearsay obviously

16

and we agree that she would give her testimony orally.

17

I probably, depending on the testimony, would

18

not object to Exhibits A and B to the supplemental report

19

coming in, nor the limited purpose of summarizing her

20

analysis, but not for the truth of the statements that are

21

on there, many of which are hearsay, inaccurate, et

22

cetera, et cetera. But if the plaintiffs want to put in

23

that chart simply to show that this is what I was

24

thinking, and this is how I made my calculations, then I

25

think it might be useful to have that in the record rather

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 34 of 146 34

1

than have them all orally, but certainly not for the

2

truth. She misquotes from emails, et cetera.

3

THE COURT: I understand, I understand.

4

MS. GALLES: Okay.

5

THE COURT: Do you need the reports in?

6

MS. GALLES: Well, obviously we will want the

7

reports in it was our understanding because this, the

8

trial was significantly shortened, that the court

9

preferred that we enter the reports and that we only

10

highlight some of the most important stuff in her oral

11

testimony. Otherwise, you know, we'd be here all day

12

having her go through the detail that's already in the

13

report. And as an expert, obviously she is entitled to

14

rely on hearsay if it's the type of information that an

15

expert would generally rely upon.

16

But I don't think, most of the materials that

17

she relies upon are either provided by Quinnipiac or are

18

the type of things that anyone in her position or a

19

athletic director's position would rely upon, such as NCAA

20

manuals, NCAA participation.

21

THE COURT: I think the concern are the reports

22

themselves are hearsay but I'm going to overrule that

23

objection in light of the procedure we're using in this

24

hearing, in light of the time limits that have, we've

25

imposed. And that will work both ways, so --

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 35 of 146 35

1

MS. GALLES: Okay, Your Honor. So the report

2

and the supplemental report have been --

3

THE COURT: Yes, 99, 149, 150, 151, 152 are

4

full.

5

(Whereupon Plaintiff's Exhibit 99, 149, 150,

6

151, 152 were marked full.)

7

MS. GALLES: Now, in addition to her report

8

includes many exhibits that are also separately marked on

9

the exhibit list. Would you like me to go through those

10

or would you like me to wait until I go through them with

11

Dr. Lopiano?

12

THE COURT: Why don't you list them right now.

13

MS. GALLES: All right. Exhibit 100 is her

14

original CV and then Exhibit 152 is her updated CV.

15

THE COURT: Right.

16

MS. GALLES: Exhibit 101 was the disclosure

17

about the compensation for an expert.

18

THE COURT: Okay.

19

MS. GALLES: Exhibit 102 are charts that

20

Dr. Lopiano prepared in conjunction with the preliminary

21

injunction hearing that merely compare Quinnipiac's squad

22

sizes to the average squad sizes.

23

MR. BRILL: Do you want my objections as we go

24

along, Your Honor?

25

THE COURT: Let me get the list out and you can

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 36 of 146 36

1

object. Basically we have 101 through what?

2

MS. GALLES: Yes, sir, 101 through 114.

3

THE COURT: All right, 101 through 114. 100 is

4

full. That's just the old CV. And I'm going to allow

5

that in, so 101 through 114, any objection to those?

6

MR. BRILL: Yes, Your Honor.

7

THE COURT: Okay.

8

MR. BRILL: 102 is completely irrelevant now.

9

This is having to do with proposed squad sizes from the

10

time of the preliminary injunction hearing and NCAA

11

averages at that time. It just has nothing to do with the

12

case at this moment and would be confusing just to have

13

another set of numbers that we're not really dealing with

14

now.

15

THE COURT: It might confuse the jury, it won't

16

confuse me.

17

MR. BRILL: 103 I have no objection to. 104 I

18

have no objection to. 105 I have no objection to. 106 I

19

have no objection to. 107, no objection. 108 I believe

20

is already in evidence, Your Honor.

21

THE COURT: Okay, well no harm in having it

22

twice.

23

MR. BRILL: Well then -- it is, these are

24

hearsay letters from the Office of Civil Rights written

25

to -- especially the second letter, responding to a

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 37 of 146 37

1

letter -- we don't know what the facts were. It was

2

stated to the OCR when he was responding to the letter so

3

it's half of the story.

4

THE COURT: All right, so 108 is already in in

5

another number?

6

MR. BRILL: I believe so.

7

THE COURT: But you're objecting to 108?

8

MR. BRILL: Yes, you asked me if you wanted it

9

in again.

10

THE COURT: So you're objecting to something

11

that's already in evidence?

12

MR. BRILL: I'm essentially asking the court to

13

reconsider the ruling on that objection.

14

THE COURT: Well, okay. I'm going to allow it

15

in. Go ahead.

16

MR. BRILL: 109, we have no objection. 110, no

17

objection. 111, I don't know. 111, the court has ruled

18

is irrelevant for the most part. These are the EADA

19

numbers going back to 1995.

20

THE COURT: Right. Again there's no point in

21

redacting this document. I can read it, I can understand

22

what it says.

23

MR. BRILL: I'm just stating for the record my

24

position about it so it's clear to the reader of the

25

record that there's been a ruling that this document is

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 38 of 146 38

1

largely irrelevant.

2

THE COURT: All right.

3

MR. BRILL: Exhibit M, which is reported as

4

Exhibit 112 --

5

MS. GALLES: We withdraw it.

6

MR. BRILL: That's withdrawn? Okay. 113, no

7

objection. Is that the last one or are we going --

8

THE COURT: 114.

9

MS. GALLES: 114.

10

MR. BRILL: No objection.

11

THE COURT: Okay, so 101 through 111, 113 and

12

114 are full.

13

(Whereupon Plaintiff's Exhibit 101, 111, 113,

14

114 were marked full.)

15

BY MS. GALLES:

16

Q. Okay. Dr. Lopiano, I'd like to just -- your CV is

17

now in evidence but just to provide some context to the

18

court for the, for your expertise, I would like you to

19

please describe briefly your employment history as it

20

relates to gender equity and intercollegiate sport

21

administration?

22

A. Yes, in terms of employment, for 18 years I served as

23

director of women's athletics at the University of Texas

24

in Austin in Division I program, consistently among the

25

top ten in the United States.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 39 of 146 39

1

For 15 years I served as the Executive Director, CEO

2

of the Women's Sports Foundation, an expert research

3

efficacy programming organization in terms of gender

4

equity and increased opportunities for girls and women to

5

participate in sports and physical activity.

6

For the last two -- time flies here -- two years, two

7

and-a-half years, I started my own consulting business

8

called Sport Management Resources. I'm president and I

9

have three other independent contractors, all of which are

10

either researchers or experts in gender equity and other

11

areas of interest in terms of athletic programs from fund

12

raising to good compliance and eligibility systems, to any

13

athletic administrative topic that a student needs help

14

with that our directors could be of assistance, expert

15

athletic directors could be of assistance in.

16

That's the nature of the company with every one of

17

the principals having, again, college professors and

18

support management in addition to serving as

19

administrators and researchers themselves.

20

Q. And does any of that consulting involve gender equity

21

issues?

22

A. Absolutely. The schools will hire us to perform a

23

comprehensive Title IX assessment for them and to make

24

recommendations as to how they might come into compliance.

25

Q. Are there any other issues on your CV that you would

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 40 of 146 40

1

like to highlight or is that a sufficient summary?

2

A. It's up to you.

3

Q. Well, I would like you to describe your background

4

with the AIAW. Could you please explain what that is, and

5

what your role was?

6

A. In terms of non-employment leadership experience, I

7

was president of the association for athletics for women

8

which was predecessor government's organization for

9

women's championships, conducted women's championships

10

just like the NCAA did before the NCAA included women. It

11

existed for approximately ten years.

12

When AIW went out of existence, when NCAA took over

13

women's championships, I served in various leadership

14

roles within the NCAA, either on committees or chairing

15

various committees, that are detailed in the CV but it

16

ranged from rewriting entire NCAA manuals so people could

17

understand it to other issues in intercollegiate

18

elections.

19

Q. I'd like to focus on your mention of the OCR. While

20

you were athletic director at Texas and while you were

21

president of the AIAW, did you provide any input or

22

consulting services to the Office for Civil Rights

23

relating to gender equity issues?

24

A. Yes, not when -- I was president of AIAW in 1981, I

25

believe it is, but in the early 1970s when I was a member

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 41 of 146 41

1

of the executive board, director of national championships

2

for AIW, I was intimately involved in all of the beginning

3

OCR work on Title IX's application to intercollegiate

4

athletics, their protections and the '75 policy

5

interpretation.

6

On a number occasions, I testified before Congress on

7

the need for and the contents of these regs. I also, I

8

worked on the first Title IX investigators manual which

9

was developed as a training tool for all of the regional

10

Title IX coordinator offices. And was brought in along

11

with another colleague of mine in support manager resource

12

Dr. Christine Grant that we both engaged in training all

13

the regional offices as to how to apply Title IX to

14

intercollegiate programs and how to use it. At the time

15

it was a draft, this investigators manual.

16

Also worked with OCR. They contacted the Women's

17

Sports Foundation in my capacity there, helped them

18

develop their definition of sport criteria, which they

19

have used in not only letters responding to questions from

20

the individual institutes but it was also used in the 2008

21

recent Dear Colleague letter that really summarized how

22

one was, OCR was going to look at what activities would be

23

considered sports.

24

Also worked in, if I haven't said this already, I

25

also worked on the '96 clarification with Norma Cantoo

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 42 of 146 42

1

(ph) and staff there in terms of the three prong test, all

2

of that work.

3

And as the head of the Women's Sports Foundation and

4

as a former, you know, athletic director, every year I

5

would meet, we would meet with OCR. It was part of our

6

work to be experts to people who called into the

7

foundation seeking resources and advice. And typically we

8

would get calls from parents saying this is the situation

9

at the school, you know, is this allowed under the law.

10

Who can I go to? We would point them to OCR, we would

11

point them to educational resources, point them to legal

12

documents.

13

So it was very important for us to stay absolutely up

14

to date as to where OCR was on all of these questions and

15

we would formally meet with them once a year and the

16

women's sport agency still does that.

17

Q. I just want to clarify, I'm not sure if you mentioned

18

it or not, but in several different places in this case

19

and indeed in your report, it refers to the 1979 policy

20

interpretation. I believe there was a 1975 memo but there

21

also was a 1979 policy interpretation.

22

A. It was recodified when --

23

Q. So I just want to be clear, is the 1979 policy

24

interpretation also one that you provided expertise to OCR

25

on?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 43 of 146 43

1

A. Yes, basically '79 was recodified when Department of

2

Health Education and Welfare was changed to DOE, so it

3

changed.

4

MR. BRILL: I'm sorry, Your Honor, could you ask

5

the witness to speak more directly into the microphone.

6

Maybe it needs to be adjusted, I'm having trouble hearing.

7

A. I apologize. Is that better?

8

THE COURT: Don't get too close because you'll

9

get on -- okay.

10

THE WITNESS: Raise your hand and I'll try to

11

enunciate more clearly.

12

BY MS. GALLES:

13

Q. Now, Dr. Lopiano, I'd like to have full disclosure

14

here for the court, I'd like you to look at what's been

15

marked as Exhibit B of your report which is exhibit --

16

THE COURT: It's 101.

17

MS. GALLES: 101.

18

BY MS. GALLES:

19

Q. And just are you being compensated for the work that

20

you have done in this case?

21

A. Yes, I am.

22

Q. Okay. And could you please let us know what your

23

rates are for this work?

24

A. Exhibit 101 specifies that if I -- I get $175 an hour

25

for consulting with attorneys, two hundred dollars an hour

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 44 of 146 44

1

for preparation of written reports and research related to

2

such reports, $250 an hour for a deposition or court

3

testimony. No charge for hours traveling. On site visit

4

for Title IX analysis, it's $1,500 a day. These are

5

nonprofit rates, these are reduced rates. If the

6

plaintiffs had deeper pockets, they would be much higher.

7

THE COURT: Let me just briefly interrupt and

8

just let all counsel know that when a document's in

9

evidence, you can either just say, Judge, look at 101 and

10

you'll see what she's paid, or you can actually read from

11

it or you can --

12

MS. GALLES: Okay.

13

THE COURT: Save time doing that.

14

MS. GALLES: So go ahead and zip through unless

15

we want to emphasize it. Yes, sir, we will do that.

16

BY MS. GALLES:

17

Q. All right. Then, Dr. Lopiano, I'd like to jump ahead

18

to the substance of your original report. There is a part

19

A that says athletic participation opportunities dash

20

general. And it describes how you approach prongs one,

21

two and three in general, not with respect to Quinnipiac

22

but in general. Okay?

23

MR. BRILL: Could you just point us to what page

24

you're -- the pages aren't numbered.

25

MS. GALLES: Yes.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 45 of 146 45

1

MR. BRILL: Could we agree to number of pages?

2

MS. GALLES: It starts right here.

3

BY THE WITNESS:

4

A. So this roman five capital A, that's where you are?

5

In the report, Roman numeral five capital A?

6

Q. Yes, roman numeral five, capital A.

7

A. Okay.

8

Q. Could you go through, there's some parts A -- let's

9

focus on subpart A about athletic participation

10

opportunities in general. Is what's in your report an

11

accurate summary of your approach to application of the

12

three part test?

13

A. Yes, it is.

14

Q. Okay. Now, I only want to highlight a few points in

15

there. I'd like you to go to the page that has the 1979

16

policy interpretation language in it.

17

A. Could you tell me where you are?

18

THE COURT: Three more pages.

19

BY MS. GALLES:

20

Q. Right here. (Indicating)

21

A. Okay.

22

Q. There you go. Now, on this particular page, you

23

reference the 1979 policy interpretation and again in your

24

supplemental report, in the front page of your

25

supplemental report, you reference the 1979 policy

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 46 of 146 46

1

interpretation and the 1996 clarification. I just want to

2

ask you, did you use or apply the definitions in those OCR

3

documents when conducting your analysis?

4

A. Yes, I did.

5

Q. Okay. Now, on the top of that page, you state that

6

when schools count male and female athletes differently in

7

this way they breach the purpose and intent of Title IX

8

and by definition they discriminate on the basis of sex.

9

Could you please explain what you meant by that statement?

10

A. When an athletic program establishes a policy that

11

says I want to have certain size teams and I want these

12

teams to be different sizes for male and female because in

13

athletics, we have separate programs, we treat them

14

differently, you are discriminating on the basis of sex.

15

And if the result of that policy results in a different

16

experience for men and women, it is discrimination on the

17

basis of sex, especially if women get the short end of the

18

deal.

19

So, for instance, when Quinnipiac says to the mens

20

program you can have no more than this number of athletes

21

and that number of athletes is equal to an average squad

22

size or lower than average squad size which is an ideal

23

size squad for instruction and participation, it's

24

matching up to everyone else that they are playing

25

against, they have a set up, a structure, a sport program

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 47 of 146 47

1

that is like who they are playing. When they say to the

2

women's program that you have a, a minimum floor that you

3

have to have a number, if the reach the number for your

4

squad that is larger than a national average, I want you

5

to generate more in participants for purposes of counting,

6

for instance, and they inflate by that policy,

7

artificially inflate the size of the team, they create a

8

team size that hurts both participants who would be on a

9

normal size and these extra inflated participants because

10

not everyone is going to be able to get the same

11

instructional attention on the part of the coaches that

12

the kids who would have been on a normal size game or your

13

best athletes would have gotten much more attention, and

14

the kids who now share all this who are, you know, who are

15

for all intents and purposes kind of extras are taking

16

away from that instructional responsibility. And also, it

17

dilutes the amount of money you put into the program that

18

now your, usually your per capita expenses are going to be

19

less and, therefore, your benefits and treatment of those

20

larger teams are going to be less than the small teams.

21

So it's a real red flag whenever you see policies

22

that are different for men and women. Ideally it is

23

perfectly acceptable and most institutions do this. They

24

say I want you to cap men and women, I want you to cap

25

teams at average squad sizes that are consistent with the

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 48 of 146 48

1

teams you play against. That's fair because that's who

2

I'm competing with and these average squad sizes then are

3

ways that I can financially control expenditures and it's

4

a reasonable financial control that affects men's and

5

women's teams equally. It's nondiscriminatory.

6

Q. So you're saying if you apply the same rules, are you

7

saying that you if you apply the same rules to men and

8

women it's okay, but if for men it's one and women

9

another, that's when it's discriminatory?

10

A. Yes, and they have the negative effect on one, it's

11

discriminatory.

12

Q. Now, I'd like you to go to the next page of your

13

report where the second paragraph says by padding women's

14

teams. Do you see that?

15

A. I do.

16

Q. Okay. And is that -- is there anything else you

17

wanted to add to that or is that what you were just

18

describing?

19

A. That is what I was just describing.

20

Q. Okay. Now, in the, the next paragraph, it talked

21

about they, meaning coaches, do not want to carry men

22

athletes who will never compete or who do not have the

23

athletic ability to contribute to the team overall. True

24

varsity teams are elite by their very nature and thus such

25

cuts must be made. Could you please explain what you

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 49 of 146 49

1

meant by that statement?

2

A. Yes. High schools, colleges, universities kind of

3

differ in terms of how big they want their squad and how

4

elite they want their squads, but there's no question,

5

individual ones, this is the most elite level, and you

6

always are looking to maximize the student/instructor

7

ratio. So, having a reasonable size team so you can

8

optimize coaching and the development of each of these

9

athletes is absolutely critical in Division I.

10

So that these squad sizes padded is, is very

11

antithetical to an elite athlete's success because, as I

12

just explained, it diminishes success for students and

13

makes you less competitive vis a vis your opponents.

14

Q. Just to confirm their Division I is the most elite

15

level of college athletics?

16

A. Yes, it is.

17

Q. And would you expect to have the most talented or

18

most accomplished athletes at the Division I level?

19

A. Absolutely. And in Division I, usually you look at

20

all recruited student athletes, you're looking at, you

21

know, vast majority of them are on athletic scholarship

22

and you are looking at the athletes who are going to

23

school to get the most out of that school's teaching staff

24

and the experience itself.

25

Q. Okay. Now, further down in the report, sort of the

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 50 of 146 50

1

last paragraph on that page, when it talks about how the

2

schools find their athletes?

3

A. The paragraph --

4

Q. Same page of the last paragraph, when investigating

5

the squad numbers?

6

A. Okay.

7

Q. Could you please explain the importance, if any, of

8

recruiting athletes at the Division I level?

9

A. Yes. Schools are obligated in treating their men's

10

and women's programs equally. These athletes who

11

participate in it should be coming from the same place.

12

If your men's programs said I am going to recruit the best

13

athletes from all over the country or the best athletes

14

from all over the region and are recruiting from an

15

incoming class of high school graduates, that is very

16

different than recruiting on your campus kids who are

17

unsolicited because of their athletic talent for coming to

18

your school who may or may not have exceptional talent.

19

So Title IX would expect the school to treat its women's

20

and men's program in the same way to make the commitment

21

to spend money on recruiting and to go out and recruit the

22

very best athletes and to provide the same quality of

23

experiences for both men and women. So recruiting's very

24

important.

25

Q. Which leads in to my next question. Would you expect

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 51 of 146 51

1

a Division I school to recruit most of its athletes as

2

opposed to just wait, see who shows up for the first day

3

of practice?

4

A. Absolutely. Usually 90 percent of who's going to be

5

on your team the coach knows about probably three or four

6

months before the, prior to the subsequent season.

7

Coaches are a year to a year and-a-half ahead of who they

8

are going to identify as potential recruits and are

9

recruiting them in their sophomore, junior and senior

10

years in high school. This is not just a, you know, last

11

minute, you know, call. It's a, recruiting is an art form

12

in Division I. The most successful coaches in Division I

13

have to be as good recruiters as they are instructors.

14

Q. So, let's go back to when you were the athletic

15

director at the University of Texas. If you're adding a

16

new sport, a new Division I sport, what process would you

17

use? Would you simply just start it up tomorrow or what

18

would be the steps that you would take to add a new sport?

19

A. The process is you would start at least a year in

20

advance, you hire the best coach you possibly could, you'd

21

establish a scholarship budget that would commit to a

22

certain number of scholarships over a four year period,

23

wouldn't give them all away in the first year because you

24

would have to stagger your squad. But you might give up

25

to half away in your first year you if you were able to

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 52 of 146 52

1

use some transfers, college transfers as well as incoming

2

freshmen, so would you recruit from the junior college as

3

well as a high school class, but it would take in a

4

Division I school at least a year in advance a commitment

5

to budget, commitment to scholarships, a real commitment

6

to, you know, hiring assistant coaches, doing all your

7

publicity materials. As I said, recruiting is extremely

8

important in Division I.

9

Q. Now I'd like you to move to the next part of your

10

report where it says prong two. Do you see that?

11

A. Yes, I do.

12

Q. Okay. And does the prong two text of your report

13

accurately summarize your views relating to prong two of

14

the three part test?

15

A. Yes, it does.

16

Q. Okay. The next part of your report deals with prong

17

three. Does that part of your report adequately describe

18

your views and opinions regarding prong three of the three

19

part test?

20

A. Yes, it does.

21

Q. Now, the next part of your report under section A

22

talks about levels of competition. Could you please

23

explain what you mean by levels of competition?

24

A. Yes. There are many levels of competition in terms

25

of interscholastic activity between schools. Clubs, which

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 53 of 146 53

1

are nonvarsity teams, can compete against each other.

2

Intermural teams can, champions of basketball murals at

3

one school can compete against basketball champions from

4

another school.

5

And a team, individual one in particular, is expected

6

to play all of its contests, majority of its contests

7

against someone of an equal competitive level. So if I

8

were running a Division I basketball program I would be

9

expected to play all other Division I schools and, as a

10

matter of fact, I would be penalized if I did not.

11

The selection procedure for national championships,

12

for example, the power ratings are all based on your, who

13

your opponents are. So there's a real specific

14

expectation, especially in Division I, but according to

15

Title IX, applicable to all schools, college, high school,

16

whatever, that you must provide men and women with the

17

same competitive levels.

18

So you would expect to see in Division I, I'm

19

competing against other varsity teams playing the same

20

number of contests against athletes of my high elitist

21

level.

22

Q. So if the men's programs at your Division I school

23

play primarily other Division I men's programs, would you

24

expect that the women's teams at that school should also

25

primarily compete against Division I institutions?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 54 of 146 54

1

A. Absolutely. When you look at schedules you should

2

not expect to see in Division I level any competition that

3

wasn't in a bona fide Division I school.

4

Q. Now, on the next page still within that levels of

5

competition?

6

A. And not just Division I competition against the

7

school, a varsity team at that school. Not a club team at

8

that Division I school or exhibition team against this

9

Division I school.

10

Q. Okay. Now, I next want to focus you, you first in

11

that section talk about the level of exhibit and then you

12

talk about how many competitions. Why does it matter how

13

many competitions when you're comparing men and women?

14

A. The more you play against high level competition the

15

better you get and so you should still, you should -- men

16

and women should have the same opportunity to become as

17

good as they can be and you do that by designing your

18

competitive schedule and having it to be comparable for

19

men and women.

20

Q. Now, does the NCAA have any rules placing a limit on

21

the number of games or other competitions that you can

22

engage in?

23

A. Yes. It does, in all sports. And I believe we have

24

exhibits in the NCAA manual and 17.1, 17.2, that

25

specifically talk about every single sport and the number

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 55 of 146 55

1

of, maximum competitions that are allowed within an entire

2

period of time or in two separate competitive seasons.

3

And that is because coaches know that's what makes teams

4

good. They are going to take it to the absolute limit.

5

You would expect to see in Division I everyone playing at

6

or close to whatever those maximum limits are.

7

Q. So if the men's teams are playing 90 to 100 percent

8

of the maximum allowed by the NCAA, would you expect that

9

they, the women's teams at that same institution should

10

also be playing at 90 to 100 percent?

11

A. Absolutely.

12

Q. Now, I'm going to, for the moment I'm going to skip

13

over your discussion of cheerleading and move to part B of

14

the report, athletic opportunities at Quinnipiac

15

University.

16

MR. BRILL: I'm sorry, what page are you --

17

BY MS. GALLES:

18

Q. On are you on that page, Dr. Lopiano?

19

A. Yes.

20

Q. First, on that page I understand that you wanted to

21

make a correction on the first paragraph of that page

22

about this where it says the NCAA has long notified its

23

members?

24

A. At the top of that page.

25

Q. Yes.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 56 of 146 56

1

A. In the paragraph that starts the NCAA -- that third

2

sentence in the front page, that should instead be on page

3

two.

4

Q. I just want to --

5

MR. BRILL: I'm sorry, could you -- explain that

6

to me? I don't see that.

7

MS. GALLES: Sure.

8

THE WITNESS: It's a minor editorial.

9

BY MS. GALLES:

10

Q. Now, going below to the part B, the athletic

11

participation opportunities at Quinnipiac University?

12

A. Uh huh. (Affirmative.)

13

Q. Okay. In assessing the application of the three

14

prong test to Quinnipiac, did you believe that it was

15

necessary to assess their historical compliance?

16

A. I did.

17

Q. And why is that?

18

A. There was real concern because there was no squad

19

list numbers, no numbers to go on. When I examined the

20

EADA reports, there were, when you looked at them back to

21

1996, when they were first required --

22

Q. Let me step back --

23

A. Sorry.

24

Q. I want to talk about the abstract.

25

MR. BRILL: Can I, Your Honor, there was rulings

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 57 of 146 57

1

made on the motion in limine that this evidence is not

2

relevant, and I understand Your Honor can sort through

3

what's relevant and what's not but there was a record that

4

may go up to a higher court and I am concerned --

5

THE COURT: I think they can sort it out too.

6

MR. BRILL: Excuse me?

7

THE COURT: I have confidence they can sort it

8

out too.

9

MR. BRILL: I'm not sure. I'm sorry, I haven't

10

tried a case before Your Honor and I don't know if you

11

just want me to sit here and not saying anything about

12

relevance?

13

THE COURT: You should object whenever you want

14

but let's wait for a question because right now we don't

15

have a question.

16

MR. BRILL: Thank you.

17

BY MS. GALLES:

18

Q. Dr. Lopiano, speaking in the abstract, if you are

19

assessing whether a school is or is not compliant with the

20

three prong test of Title IX, okay, would you look only at

21

this year's data or would you think it would be important

22

to look at several years' worth of participation data?

23

A. When you're assessing the three prong, you must look

24

back to 1975. It is critical for a prong two because if

25

you show a diminution, you drop a sport, show a diminution

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 58 of 146 58

1

of opportunities for women, or if you don't add an

2

opportunity for the under represented two or three years,

3

then you're not able to comply with two.

4

Also if you're going to use prong one, you have to

5

use prong one all the time. You just can't say I was, I

6

met prong one in 1975 and that was it. I'm prong one.

7

So I wanted to go back to see whether they had

8

traditionally reached prong one, whether they were ever in

9

compliance with prong one and whether I could have

10

confidence that, especially in the cases when it was first

11

presented, there they were creating a theoretical prong

12

one structure, I felt it really important to go back to

13

see if they were capable of even doing it theoretically.

14

And which is why I went back historically.

15

Q. And when you advised schools about compliance with

16

gender equity issues and you do your own analysis for when

17

the schools hire you, do you go back and assess the

18

historical compliance of prong one?

19

A. Absolutely. You must because there are three

20

independent tests and the school may be able to meet any

21

one of these three tests and you're obligated as a

22

consultant to tell them which one is better for them,

23

which one are they closer to, which is easier for them.

24

Which, you know, is not, not possible for them.

25

Q. Now, if, if a school has never relied on prong one in

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 59 of 146 59

1

the past, would it be even more important to look at the

2

historical, how they measure up historically regarding

3

prong one?

4

MR. BRILL: Object to the leading nature of

5

these questions. We're getting into an important matter

6

and Ms. Galles should not be feeding the answers to the

7

witness.

8

THE COURT: All right, rephrase the question.

9

BY MS. GALLES:

10

Q. If a school has never complied with prong one in the

11

past, would your response be any different?

12

A. I would always look back for any school, even if they

13

had not complied with prong one I would be very focused on

14

this with prong one. However, to really look at the size

15

of the gap and whether what they were thinking of doing

16

was even possible. If the gap is 100 or 200 students and

17

they are expecting to make that up in one year, for

18

instance, to have four sports in one year, five sports in

19

one year, it would influence how I speak to the school

20

about prong one. So you always go back and look and that

21

gap over time is very important for prong one and two.

22

Q. And if --

23

A. And three. If they were to cut a sport which

24

demonstrates interest.

25

Q. And if the school never complied with prong one

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 60 of 146 60

1

before and was saying that going forward they want to

2

comply with prong one, would their historical compliance

3

or noncompliance have any affect on their credibility in

4

your mind?

5

A. Only in the way I just said, that if the gap was

6

excessively large, if I look back and said and saw that

7

they were close, for instance, I would be more inclined

8

to --

9

Q. More inclined to what?

10

A. More inclined to trust they could achieve that and in

11

a relatively short period of time. If there were huge

12

gaps or, in this case, where there were --

13

Q. I don't want to talk about particular gaps right now.

14

We're just talking in the abstract, why it is or is not

15

important.

16

A. Right.

17

Q. Okay? And based upon that reasoning and your

18

assessment of other schools, did you believe it was

19

similarly necessary to do that for Quinnipiac in this

20

case?

21

A. Yes, and I did that in Exhibit one --

22

Q. L?

23

A. 111.

24

Q. I don't want to have you talk about that yet. I just

25

want to say, okay -- and did you indeed in Exhibit L

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 61 of 146 61

1

calculate that historical compliance or noncompliance with

2

prong one?

3

A. Yes, I did.

4

MR. BRILL: What exhibit are you referring to?

5

MS. GALLES: I'm sorry --

6

THE COURT: 111.

7

BY MS. GALLES:

8

Q. And is that analysis reflected in Exhibit L to your

9

report?

10

A. It is, based on EADA numbers.

11

Q. Now --

12

MS. GALLES: Your Honor, so given the foundation

13

that we have just laid regarding the importance of the

14

historical significance of the numbers, we would ask the

15

court to reconsider its ruling and allow Dr. Lopiano to

16

testify about the chart that she prepared and why it was

17

important.

18

THE COURT: Well, 111's in evidence so you can

19

certainly testify about it. Frankly I'll decide later

20

whether I'm going to reconsider.

21

MS. GALLES: Okay. So you're going to allow her

22

to testify about it?

23

THE COURT: Sure.

24

MS. GALLES: Okay.

25

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 62 of 146 62

1

BY MS. GALLES:

2

Q. So, Dr. Lopiano, would like you to look at Exhibit

3

11?

4

THE COURT: 111.

5

MS. GALLES: Yes, thank you, sir.

6

BY MS. GALLES:

7

Q. Exhibit 111 which is Exhibit L to your report, okay?

8

And it states Quinnipiac University historical EADA

9

figures, 1995 to 2009?

10

A. Right.

11

Q. Okay, could you please explain what this chart is?

12

A. Yes. If I were to look at the row numbers in row six

13

and seven, for every year --

14

Q. You know what, Dr. Lopiano -- if you would give me a

15

moment, Your Honor, I think we have it all on one big

16

sheet of paper and it might be easier for her to read.

17

May I grab that?

18

MR. BRILL: Your Honor, would this be a good

19

time for a short recess? Do you have a specific time when

20

you like to break?

21

THE COURT: I generally break closer to 11. We

22

started a little early today so maybe we can go a little

23

sooner but -- do you need a break?

24

MR. BRILL: I would appreciate a short break,

25

Your Honor.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 63 of 146 63

1

THE COURT: All right, we can take a break. Why

2

don't we take 15 minutes. We'll stand in recess until

3

10:35.

4

MR. HERNANDEZ: Thank you.

5

(Whereupon a recess was taken from 10:20

6

o'clock, p. m. to 10:40 o'clock, a. m.)

7

THE COURT: Ms. Galles, before you start let me

8

quickly put on the record, I wanted to explain a little

9

further my ruling on the report. Obviously it's hearsay,

10

normally I don't allow an expert report into evidence but

11

the witnesses here, and the report is in lieu of her

12

testimony. You're free Mr. Brill to cross her on any

13

aspect of the report, so unlike your typical hearsay

14

judgment which you don't have the opportunity to cross the

15

proponent of the statement, here you do and it just seems

16

to me we'll never get this case concluded if we don't take

17

some shortcuts, including admitting the report and

18

allowing you to cross from it. So I just wanted to

19

explain that further.

20

MR. BRILL: I appreciate that, Your Honor.

21

THE COURT: Sure.

22

BY MS. GALLES:

23

Q. Dr. Lopiano, I'd like to go back to the part of your

24

report, section B, athletic participation opportunities at

25

Quinnipiac University, and where it says prong one, the

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 64 of 146 64

1

first, the first part of that section, it talks about your

2

analysis of the participation data for Quinnipiac for

3

1995, '96 through 2008, 2009. Is the chart at Exhibit 11

4

a compilation of that data?

5

THE COURT: 111.

6

MS. GALLES: Yes, thank you, Your Honor.

7

BY MS. GALLES:

8

Q. 111 a compilation of that data?

9

A. Yes, it is.

10

THE COURT: Let me just interrupt briefly, the

11

mic on the tables are very sensitive and when documents or

12

other things touch them they make that noise, so just, if

13

you could can be careful of those. Thanks a lot.

14

MS. GALLES: Okay.

15

BY MS. GALLES:

16

Q. So, Dr. Lopiano, if you could please just explain,

17

did you create Exhibit 11?

18

A. Yes, I did.

19

Q. Okay. Could you please explain what it shows?

20

A. Yes. Not only is this for '95 to '96 but this method

21

of computation is the one you'd use for '09, '10, using

22

the squad list and supplemental report. So in

23

understanding how the numbers mathematically are derived

24

is a really important concept. We can disagree on the

25

counts later on but you have to know how gaps are created

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 65 of 146 65

1

so I can explain it. Let me take, for instance --

2

Q. Could I just back up for one moment?

3

A. Sure.

4

Q. For those charts did you analyze squad lists or did

5

you just use the Equity in Athletics Disclosure Act

6

reports that were used?

7

A. I just used Equity in Athletics Disclosure Act

8

reports. No squad lists were available.

9

Q. So please continue.

10

A. Yes, so if we focus on column C, which is 1995, '96

11

as an example, Title IX prong one requires that your

12

percentage of males and females in the athletic program be

13

proportional to the percentage of males and females in

14

your general student body, full-time, undergraduate

15

enrollment. So if you look at rows six and seven you're

16

looking at QU's undergraduate enrollment for men and

17

women, and when you look at nine and ten, you're looking

18

at what they that represents as a portion, the percentage.

19

All right?

20

So, and then if you count up, let's just assume these

21

counts are okay right now, you see that at line 24, you

22

have 138 men in the program --

23

Q. Just I just want to be clear that like, for example,

24

men's teams, and 13 through 23, are those the numbers of

25

athletes for those men's teams?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 66 of 146 66

1

A. Right, for each team. So you add up on the total

2

number of participants on each team, and the total for all

3

of the men's teams is at line 24, which is 138.

4

You do the same thing for women's teams. So add up

5

everything in line 27 to line 38, and you get the total

6

women, 107.

7

Now, you want to solve for the gap, you know, how

8

many women do you need to get up to 66.5 percent. This is

9

solving the gap. You know three variables. You know how

10

many men you have, which would be fixed. You know what

11

that should represent. The proportion 33.5 percent. You

12

don't know how many women you have but you know they

13

should represent proportion 66.5 percent. So --

14

Q. Okay.

15

A. -- you mathematically you have in this case, 138, the

16

men's participants is the 33.5, as, equals, X is to

17

66.5 percent. And if you then do the math, you get X

18

equals 138 times .665 divided by .335. And you get a

19

number that is represented at line 40 as 274. You solve

20

for X. So X is the number of women have that should be in

21

the program if women were 66.5 percent of the student

22

population.

23

And then you simply take the number of women who were

24

actually in the program which is 107, and you subtract it

25

from that 274 and you have 167 as the gap.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 67 of 146 67

1

So it's a pretty simple mathematical computation.

2

This, the mathematical computation should not be in

3

question. It's how one counts. Obviously that is always

4

the question, but that's the basic thing to, you know,

5

that's the tool that you have to have for prong one

6

analysis.

7

Q. So for each each year, did you calculate the number

8

of women or number of women's athletic opportunities that

9

there would have to be or should have been in order to

10

provide the same proportionality as the undergraduate

11

enrollment?

12

A. Yes, and those numbers will appear on row 41.

13

Q. Okay. Well, row 40 is the number of athletes you

14

should have in row 41?

15

A. Is the gap.

16

Q. Is the gap?

17

A. Yes.

18

Q. And after making those calculations for Quinnipiac,

19

what did you find?

20

A. I found that obviously they were very significant.

21

These were huge numbers that would require the addition of

22

a great many teams.

23

Q. So in terms of -- let's focus on the 2000s. So if we

24

look at 2001 through 2002 all the way up through the end

25

of the chart?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 68 of 146 68

1

A. Right.

2

Q. Okay? Could you summarize, for example, for 2001,

3

2002, what is the gap number?

4

A. The gap number is 153. Goes from 153, 155, 178, 139,

5

174, 111, 63, 102. And whenever I see changes in numbers

6

like that, for instance, it goes 174 down to 63, it always

7

raises a red flag for me, why is this happening when there

8

are no sports added or dropped. And so, this was great

9

indicator for me that something had changed in the

10

mechanisms of counting for the numbers of sports and I had

11

looked just much more carefully at this. Why were these

12

fluctuations happening when they weren't normal

13

fluctuations in team size. It's not unusual for team size

14

to fluctuate from year to year, two to four, or

15

participants up, down. You might have a lot of injuries,

16

you have a better recruiting class coming in next year

17

than you do this year. Little fluctuations are really

18

explainable but there aren't big program changes. Very

19

unusual to see number changes like this. So that's what

20

else I would get from this chart.

21

Q. Okay. So given that the size of the gap numbers,

22

would you expect, and this goes up through 2008, 2009

23

where the last gap number was 102, given gap numbers of

24

that size would you expect that a school could come into

25

compliance with prong one within one year?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 69 of 146 69

1

A. No, but not looking from these numbers, just from --

2

if you take 102 within the context of what it takes to

3

start a program and having at least a year to, you know,

4

start developing a team and everything else, I thought it

5

would be very difficult to do that.

6

Q. Okay. Now, you identified the change in number; was

7

there anything about that -- when you said you thought

8

that that was strange, is there anything more about that

9

that you wanted to identify?

10

A. Well, if you look at both men and women stopped

11

counting individual teams in cross country, indoor outdoor

12

track, which is perfectly allowable with the EADA reports,

13

they chose to combine cross country and track participants

14

and that is, it is there that we see these big number

15

differences, these changes in numbers that just make me

16

want to look closer as to why you would go from 64 to 26

17

to 22 to 73 on line 35 at the last four years. You know,

18

those are really substantial changes. And the same with

19

the men. It would make me want to look closer to say,

20

well, what's going on here. So that's all that I would

21

get from this kind of analysis.

22

Q. Okay.

23

A. But again I am much more comfortable dealing with

24

squad list than I am with EADA reports. EADA are

25

notoriously weak.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 70 of 146 70

1

Q. But based on using the EADA reports through 2008,

2

2009, did Quinnipiac meet the proportionality prong under

3

any of those years?

4

A. In none of those years and it was really far off.

5

Q. Okay. Now --

6

MR. BRILL: I apologize, Your Honor, the

7

witness' voice is dropping off at the end, I'm having a

8

lot of trouble hearing the end of her sentences here.

9

THE COURT: I think she said it really far off.

10

MR. BRILL: Thank you.

11

BY MS. GALLES:

12

Q. Now, Dr. Lopiano, I'd like you to jump ahead in your

13

report to where there's a small A, we're talking about big

14

subset B, small letter A.

15

A. B one? One A? Or --

16

Q. We're jumping to go right here. (Indicating)

17

A. Okay.

18

Q. Now, that part of your analysis where it starts A,

19

using QU zone, 2008, 2009 on part A --

20

A. Correct.

21

Q. -- B and C?

22

A. Right.

23

Q. Now, the original report was based upon what you had

24

for roster numbers?

25

A. The original report was based on EADA numbers and

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 71 of 146 71

1

rosters and therefore my supplemental report replaces

2

these sections.

3

Q. Okay, so I just want to be clear, so since you

4

prepared this report --

5

A. Right.

6

Q. -- have you reviewed the squad lists and seasons of

7

competition provided by Quinnipiac?

8

A. Yes, I have and that is what I based my 2009, 2010

9

analysis on.

10

Q. Okay, so the A, B and --

11

A. C.

12

Q. -- small A, small B and small C sections had been

13

replaced by your supplemental report?

14

A. Yes.

15

Q. Okay. And does your supplemental report, does that

16

address just 2009, 2010?

17

A. Yes, it does.

18

Q. Okay. I'd like you to pull up your supplemental

19

report that's been marked as Exhibit 149?

20

A. Right.

21

Q. And you've already identified it for us and just

22

to -- does this exhibit accurately reflect your analysis

23

and your opinions regarding the 2009, 2010 participation

24

numbers for Quinnipiac University?

25

A. Yes, it does.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 72 of 146 72

1

Q. Okay. Now, I just want to give you a chance to

2

explain to the court, you said for the prior years you

3

looked at EADA. For 2009, 2010, how did you go about

4

counting athletic participants for men and women?

5

A. Well, first I depend on two documents. One was the

6

squad lists dated May 26, 2010 which was provided by QU,

7

and the other was the seasons of competition used.

8

Another document that said whether each athlete had used

9

the season in competition. And then I, in taking those

10

documents, I created a methodology for determining a

11

count. Do you want me to --

12

Q. Yes, hold on one second please. I believe the

13

defendants, the defendants have marked the squad list as

14

Exhibit E M, and the seasons of competition used list as

15

Exhibit E T. I'm going to show these to you and let me

16

know whether these are indeed the documents that you

17

reviewed. (Hands witness.)

18

A. Yes, these are the documents that I reviewed.

19

Q. Okay. So on the --

20

A. These are the documents that I have used in creating

21

my chart table 150.

22

Q. So if we look at for example, let's just take

23

baseball, for example?

24

A. Right.

25

Q. Okay?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 73 of 146 73

1

THE COURT: Let me just interrupt you and see if

2

I can get our copies of the defendant's exhibits.

3

(Pause)

4

THE COURT: Go ahead.

5

MS. GALLES: Okay.

6

BY MS. GALLES:

7

Q. So, Dr. Lopiano I'd like you to focus on the squad

8

list first. So let's take baseball, for example. There

9

are a list of 33 men's names on the baseball squad list.

10

Okay? When deciding who should count as a participant, do

11

you just count all 33 names or how do you decide who you

12

count and who you don't count?

13

A. This is, this is the heart of my analysis in terms of

14

understanding how I count it so I would feel more

15

comfortable if I could be allowed to take you through the

16

methodology.

17

Q. Sure.

18

A. And to connect all the dots here.

19

Q. Okay.

20

A. Because there are many choices that the court is

21

going to have to make in terms of what count it accepts.

22

Q. Okay.

23

A. Okay. So if you look at the methodology section on

24

page one of my report.

25

Q. Your supplemental report?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 74 of 146 74

1

A. Supplemental report. And then if you look at Exhibit

2

150, right? Which is the count chart that I created, I am

3

going to connect the two dots here.

4

Q. Okay.

5

A. As to which counts relate to what.

6

Q. Okay.

7

A. So first I took the absolutely clearly expressed in

8

OCR documents instructions to who to count. So I started

9

with the '79 policy interpretation that you see on page

10

one. And I looked at those, A B C and D, and I said we

11

absolutely have to use this as guidance and then in the

12

1996 clarification, in terms of when OCR considers a sport

13

season to commence and to conclude, and how it determines

14

who's listed on a squad list or an eligibility list, that

15

we had to take that and based on these definitions, I

16

created this nine reason count, methodology that I

17

assigned to each athlete the reason why I counted them.

18

And I made sure to connect it to the OCR guidance or I'm

19

pointing out when there is leeway in that guidance that

20

requires some interpretation because it's not absolutely

21

clear.

22

For instance, when the -- I've never received a QU

23

count, all I received from QU was here are the number of

24

kids on my squad list in the beginning of the year, here

25

are my number of the kids on the squad list at the end of

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 75 of 146 75

1

the year, but there is no what are the count for this

2

sport. There are two different numbers. There is no what

3

did you count, so I ahd to create this system.

4

Q. So did you go through each athlete by athlete to

5

determine whether he or she should count as participant?

6

A. Yes.

7

Q. And just to make, I believe you said nine reasons, I

8

only see eight here.

9

A. Did I say nine? I'm sorry, eight.

10

Q. So is it eight or is it nine?

11

A. It's eight.

12

Q. Okay.

13

A. And if you look at Exhibit 150, if you look at the

14

columns, reason one is going to correspond to reason one.

15

See the column that said reason one repeated?

16

Q. So could you please -- so in your report, reason one

17

athletes who participate in any competition?

18

A. Exactly. So I'm just making the connection with this

19

chart. So reason one says that I counted any athlete who

20

actually participated in a competition during the year,

21

whether in a NCAA traditional or nontraditional seasonal

22

sport who would be charged with a season of eligibility.

23

And I took that off of the eligibility list provided by

24

QU.

25

Q. Is that off of the seasons of competition?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 76 of 146 76

1

A. That is right.

2

Q. Used? Which would be E T?

3

A. Right. Reason two corresponds directly with you have

4

to count athletes who cannot participate because of injury

5

but who received athletic aid and that corresponds to on

6

the first page, D, who because of injury cannot meet A B

7

or C above but continued to receive financial aid based on

8

athletic ability. And that is reason two on my 150 chart,

9

right?

10

Number three is a red shirt. A red shirt is an

11

athlete and it says very specific NCAA definition. An

12

institution determines whether there's red shirt and I

13

accepted all the red shirt determinations by QU.

14

Q. Could you please, explain for folks who are not well

15

versed in college athletics --

16

A. I'll explain what it is.

17

Q. -- well versed in college athletes what a red shirt

18

is?

19

A. A red shirt is one who does not use a season of

20

eligibility because they don't compete in the sport but

21

not only -- they practice, but you don't have to count

22

them and they haven't received some substantial benefits

23

of participation which kind of preserves your year of

24

eligibility. They cannot travel with the team, they can't

25

wear their team uniforms in open competitions. They are

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 77 of 146 77

1

legitimate practice player that the NCAA recognizes as a

2

way of preserving your eligibility but they count as a

3

participant because they are there all the time.

4

Q. So you're practicing every day, receiving --

5

A. Everything except travel, wearing the uniform.

6

Q. And competing?

7

A. Exactly. And competing in the, whether in

8

intercollegiate competition, or wearing the uniform of the

9

school. So that's number three on that chart.

10

Q. Okay.

11

A. Number four, I counted every athlete who was on the

12

squad list and practicing on the first day of competition

13

of the traditional season even if they didn't compete,

14

which is corresponding to the first page, definition of --

15

C. I'm sorry, the '96 clarification as a general rule all

16

athletes who are listed on a team squad list are on the

17

team as of the first competitive event are counted as

18

participants by OCR. So those were --

19

Q. So on the first go around, you counted all those

20

folks under number four?

21

A. Right.

22

Q. So even if they quit later in the season for purposes

23

of reason four, you counted them?

24

A. That is correct.

25

Q. Okay.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 78 of 146 78

1

A. Okay. Now, what's important here is in my final

2

analysis I'm giving the court three options of counting.

3

The first option is these four reasons. I feel like they

4

are the most conservative, strongest tied, non

5

interpretive ways of counting that clearly match up to

6

specific language that is offered by OCR. There are four

7

additional reasons that I'm going to explain that I

8

believe are supported but not on point by the language.

9

And I'll explain why.

10

Q. Okay.

11

A. They are different circumstances and the court can

12

decide whether or not it wants to use this middle ground

13

of counting. And then I'm going to show you a third one.

14

Q. Okay.

15

A. So under reason number five, many sports have more

16

than one competitive season. So basketball, for instance,

17

goes from the first, a first practice date all the way

18

through, you know, the end of after the championship, cuts

19

across two semesters. Soccer has a traditional season and

20

non traditional season. Lacrosse has a traditional, a

21

nontraditional season and they are separated in two ways.

22

Sometimes they are separated by dates, the NCAA actually

23

says you can start the first one on this date, go to this

24

date, now you've got to break and you can start on this

25

day and go to this date. Or it may say you can only play

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 79 of 146 79

1

20 in the first period and five in the second or seven in

2

the first, five in the second. So it makes distinctions

3

and creates a double competitive season.

4

So the question I had to ask was, because you're

5

going have a multiple sport participants, all right, you

6

have somebody compete in soccer in the fall and choose to

7

compete in Lacrosse in the spring, so what what happens

8

when somebody enters in a nontraditional season, starts

9

playing in a nontraditional season, right? Has not

10

practiced before and is -- or may or may not have

11

practiced before but is on the squad list for that second

12

nontraditional season, I said that if they were on the

13

squad list for that second nontraditional season they

14

should count under reason five and I've specifically noted

15

that athlete so you knew why I counted that.

16

Q. So let me give you an example. Let's take soccer,

17

okay? Soccer, when is the traditional season for soccer?

18

A. The traditional season for soccer is in the fall.

19

Q. And --

20

A. I mean the traditional season is in the spring.

21

Q. Okay, so at the college level there's a non

22

traditional season in the spring, okay? So if someone

23

joined the soccer team after, you know, the first date of

24

competition in the fall, that person --

25

A. She wasn't counted under reason four.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 80 of 146 80

1

Q. Because this person was not on the --

2

A. Listed on the first date of competition.

3

Q. On the first date of competition. Would that person

4

then be picked up under reason five because they would

5

exist on the squad list by the time of the first date of

6

competition?

7

A. Yes.

8

Q. Of the nontraditional season?

9

A. Yes, that's exactly what reason five does. That is

10

the case. Because, and the reason why you have to get

11

into reason five to eight is because when you look at the

12

language of, especially who counts on the squad list, it

13

says as general rule, right? So you have to use a rule of

14

reason at some point in time and that is what I'm doing in

15

five, six, seven and eight.

16

Q. Well, and also with the -- let's look at the

17

definition of the 1979 policy interpretation and the 1996

18

clarification. Does it anywhere talk about -- when it

19

talked about season does it say traditional season or non

20

traditional season?

21

A. No, the language just talks about better seasons and

22

seasons. It doesn't get into this kind of detail which is

23

why you have to look at it as a general rule and that you

24

have to apply it, and what I was expected to do was to

25

apply it evenly for males and females and that it would be

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 81 of 146 81

1

logically applied. So that the experience, you know, in

2

my mind was if you stood with a team for an entire

3

semester and you received the benefits of competition and

4

all of that, it's like if you go to a class for five week

5

they are not giving you a refund, you got something from

6

that school that was substantial. So that those reasons

7

five, reasons six, both of these, this was my standard

8

that they participated in practice for a substantial part

9

of the year.

10

Q. We haven't got to number six yet --

11

A. Right.

12

Q. -- so I want to confirm, four is on the squad list as

13

the first date of competition of the traditional season?

14

A. Yes.

15

Q. And number five, they are on the squad list as of the

16

first day of competition of the non traditional season?

17

A. And they weren't on, in the --

18

Q. For number four purposes?

19

A. Right, right.

20

Q. Okay, could you please explain what your reason

21

number six is?

22

A. Yes, reason number six is that if an athlete

23

practiced and received varsity benefits during traditional

24

season, nontraditional season, or a year long season when

25

they cut across two semesters, did not compete, didn't

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 82 of 146 82

1

meet reason number one, was not designated as red shirt

2

which is two, was not on the squad list which on the first

3

day of competition, four or five, I made a reasonable

4

judgment whether that person should be counted based on

5

whether he or she received a full semester of instruction

6

and coaching and all the accouterments of being a varsity

7

athlete.

8

Q. So, for example, let's, you use the example that

9

basketball being one long season as opposed to broken into

10

two segments, okay. Basketball season say starts in

11

October, you have the first game in November, the person

12

someone joins the team after Thanksgiving.

13

A. Right.

14

Q. So that person is not on the squad list of the first

15

November game?

16

A. Correct.

17

Q. But joined, you know, at Thanksgiving or after finals

18

in December. Okay? Is that an example of a person that

19

would fall under number six?

20

A. Yes, somebody who participated, occupied a

21

participants lock for the majority of the season, even

22

though they were not on the squad list that first day.

23

Q. And also I just want to point out for, sort of maybe

24

distinguish high school from college, in high school you

25

may think of soccer season as the fall, you play in the

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 83 of 146 83

1

fall and then you're done. What happens at the college

2

level? You're a college athlete, do you just play in that

3

one season and you're done? Or please explain how it

4

works at the college level?

5

A. High school is much more restrictive in terms of

6

allowing student athletes to play for an entire year in

7

any sport so you're not likely to see a double season in

8

high school at all. This is a peculiarly collegiate

9

university, high level lead score phenomena because the

10

NCAA was trying to control the, or to balance the time one

11

spends in sport not making it excessive so it would hurt

12

academics, so there became these, you know, segmented

13

seasons or these manipulations of what originally probably

14

was this thought of a season, being on one squad list one

15

season. So that's why I had to get into five.

16

Q. So in order to make that clearer, I would like us to

17

pull out the -- when making these determinations, would

18

you or any athletic administrator rely on the NCAA's

19

Division I manual, in terms of when the seasons are?

20

A. Yeah, I think I mentioned before that I use 17.1, and

21

17.2, in the Division I manual which shows either by

22

competition splits or by dates when seasons could start.

23

Q. I would just like to make that clear so we can show

24

exactly what you're looking at.

25

A. I have one.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 84 of 146 84

1

Q. Okay.

2

MR. BRILL: I'm sorry, is there an exhibit

3

number?

4

MR. BRILL: E P, Edward Peter.

5

BY MS. GALLES:

6

Q. So this --

7

THE COURT: Let me just make sure that there's

8

agreement that E M, E T and E P are full exhibits?

9

Mr. Brill? E M, E T, E P, you have no objection?

10

MR. BRILL: Yes, no problem, Your Honor.

11

MR. ORLEANS: The plaintiff has not, does not

12

intend to object.

13

THE COURT: All right, those are full.

14

(Whereupon Exhibits Exhibit EM, ET, EP were

15

marked full.)

16

BY MS. GALLES:

17

Q. All right. Dr. Lopiano, I'd like you to focus on the

18

NCAA Division I manual and turn to what are figure 17.1

19

and 17.2. Okay?

20

A. All right.

21

Q. Okay. Could you please explain what these are in the

22

context of what you were talking about in terms of

23

seasons?

24

A. Yes, if you look at 17.1, it is, it is clear whenever

25

you see two -- let's say, look at lacrosse, women's, there

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 85 of 146 85

1

are two segments. Championship segment would be your

2

traditional season. Your other segment would be your

3

nontraditional season. You're allowed 17 dates of

4

competition in your championship segment and only five in

5

your other segment, but it clearly says this is a two

6

season sport.

7

If you look at basketball, which is a one season

8

sport, right? You can play 27 or 29 contests, really

9

depends, there are rules about the nature of those

10

contests but it's a season that covers both a fall and a

11

spring semesters. There would only be one squad list

12

assessment on there. But I should say something about

13

squad lists.

14

A squad list is, a squad list is a living document.

15

It is not a, most people think that a squad list is a list

16

of everybody who was there on the date of the first

17

competition. It is not. It's an electronic record of

18

when everybody started. So it could include a kid who was

19

not -- in fact, the squad list that we examine, they

20

include plenty of youngsters who were not on the squad

21

list on the first date of the competition but they are

22

there because they are participants. And what I'm trying

23

to do is to say are you a countable participant when

24

you're on that squad list.

25

MR. BRILL: Your Honor, I have not been

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 86 of 146 86

1

objecting and I don't intend to interpose many objections

2

but we don't really have questions and answers here.

3

Ms. Galles goes from one topic to another and I think the

4

it would be better for the record -- I'm sorry,

5

Dr. Lopiano segwayed into a discussion of squad lists that

6

had nothing to do with the question and I would prefer if

7

we could have question and answer for the sake of the

8

record. Thank you.

9

THE COURT: Ms. Galles?

10

BY MS. GALLES:

11

Q. All right. Let's step back to figure 17.1 and 17.2.

12

So, did you rely on the segment descriptions there in

13

assessing whether there was a traditional and a

14

nontraditional season of the sport?

15

A. Yes, I did. In every case in which competitions had

16

to be split into two, I said there was a traditional and a

17

non traditional season with regard to figure 17.1. In

18

every case in 17.2, when there was a, two competition

19

seasons that were defined by dates, then I used that as a

20

split season also.

21

Q. Okay. All right, so -- I'm sorry but we've kind of

22

melded this a little bit together. Have you, have you

23

finished your description of your reason number six?

24

A. No.

25

Q. Or not? Okay, I'll let you explain reason number

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 87 of 146 87

1

six.

2

A. No, I finished my description of reason number six as

3

this, this person who participated, you know, occupied

4

this participation time under the '79 policy A and B,

5

practice sessions, received all the institutional support,

6

insurance, coaching, equipment, everything else for a

7

majority of the season. And that was number six.

8

Q. Okay, and it states on here whether you received at

9

least a full semester or more of the usual benefits, so is

10

that the standard that you used?

11

A. That is. I thought that was a reasonable standard.

12

They definitely occupied a participation slot.

13

Q. So under six you did not count people who maybe were

14

there for just two or three weeks?

15

A. That is correct.

16

Q. Okay. Let's move onto number seven. Could you

17

please explain what number seven means?

18

A. Right. In number seven, there were specific athletes

19

that raised a red flag in my mind as to whether or not

20

they should be counted. And I wanted to specifically show

21

that reason and to explain whether I thought that they

22

were, they should be counted or not. They may have been

23

counted in reasons one through six but I said this might

24

not be legitimate, or they might not have been counted and

25

I thought they should for a given reason but that, case by

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 88 of 146 88

1

case those should be looked at individually.

2

Q. So when you -- on the ones designated red flagged --

3

A. It's a comment in general, if they were designated

4

red flag it's a comment in general I had a concern. If I

5

recommended a change in count because of that concern, it

6

appears in caps, bold, you know, exactly who it is that I

7

think should have been counted and wasn't or should not

8

have been counted and was.

9

Q. All right. Is there anything else on --

10

A. And if you look at Exhibit One, for instance, let me

11

see if I can show you one where -- Exhibit 111 -- 150

12

rather. If you go one, two --

13

Q. If you tell us the team?

14

A. Yes, the third page in is men's cross country.

15

Q. Okay.

16

A. And I had red flagged three athletes, right? But I

17

have done nothing about recommending whether -- I think

18

they should be counted exactly as they were and not

19

discounted, all right, but it's a real concern and I

20

wanted to point this out. So in each case the court would

21

have to look at this and say, you know, this really makes

22

sense.

23

Q. Okay. Now, reason number eight, could you please

24

explain what reason number eight is?

25

A. Right, reason number eight is the NCAA permits

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 89 of 146 89

1

somebody who has used up their eligibility to continue on

2

a fifth year so they use four years of eligibility, they

3

are now in their fifth year at school, they are completing

4

their degree. They are allowed to get financial aid, to

5

be on financial aid or not be on financial aid but they

6

are allowed to compete with the team.

7

Q. Can they --

8

A. Not compete with the team -- practice with the team,

9

to receive the benefits of training rooms, insurance,

10

everything, and typically in Division I these are kids who

11

could be going pro. They could be competing on outside

12

teams. They are pretty high level athletes. So they

13

choose to keep participating with the team and occupying a

14

participation slot. So for any athlete who was this

15

category, that they received fifth year aid, they weren't

16

eligible and they continued participating, I said reason

17

eight.

18

Now, there are only two athletes like that and I

19

don't know whether they, either of them participated or

20

not, so I counted them as participants equally. That

21

there was one male, one female, and so I said you are

22

obviously receiving all these benefits throughout the

23

whole year.

24

Q. So you applied the rule in the same way to both men

25

and women?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 90 of 146 90

1

A. Men and women, it's just one and one so it's a minor

2

piece.

3

Q. Okay. Now, right after your reasons, there's the

4

paragraph that states, of course. Could you please read

5

that and explain that?

6

A. I think I've said this before, that first you have

7

rules that even say as a general rule, they are general

8

conceptual rules, this is how you should do it, there are

9

always fact situations that are going to be questionable

10

in somebody's mind or I wonder if it complies, whether it

11

doesn't, that's one piece.

12

The other piece is that it has become in vogue in

13

trying to achieve prong one compliance that there would be

14

efforts to look for loopholes in these rules so you won't

15

have to catch somebody. For instance, if you knew that

16

everybody who's on the, who has to play on -- who's on the

17

squad list on the first day of competition counts, I can

18

tell somebody don't come out for the team until after the

19

first date of competition and they wouldn't have to count.

20

So you could lower, let's say, a male team size that day

21

if you consistently did it. That's why it's so important

22

to be able to not have any definitive single, you know,

23

you're only there on the first date of competition. They

24

participate the day after and throughout the rest of the

25

year they can play they can do whatever. So it's really

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 91 of 146 91

1

important, I think, to look at the application of the rule

2

based on the totality of the circumstances. That's my

3

point in that section paragraph, to make sure there's no

4

loophole seeking in this.

5

Q. Okay. So let's look how you applied this. Is there

6

any particular sport you would like to start with or do

7

you just want to go with page one?

8

A. I would like to, I would like to connect the dots for

9

the court between, so I've established the eight rules and

10

I've shown you how to copy each athlete. Now I want to

11

show you how Exhibit 151 fits.

12

Q. I'd like to use an example of a squad how you count

13

it and then connect the dots. Like to go through baseball

14

and talk about why you did or you didn't?

15

A. Okay.

16

Q. All right? Let's look for example at the baseball

17

squad list and your Exhibit 150?

18

A. Okay.

19

Q. Okay? Now, there are 33 names on the baseball squad

20

list?

21

A. Correct.

22

Q. Okay? Of those 33 names, now let's back up now --

23

I'm seeing why you wanted to do that, to make that

24

connection to A B and C. Okay. Let's back up. Did you

25

count these, you indicated that?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 92 of 146 92

1

A. Now I see it, an error in the -- it doesn't continue

2

but --

3

MR. BRILL: I'm sorry, Your Honor, maybe we can

4

move the mic but I cannot hear.

5

A. Okay.

6

THE COURT: She was talking under her breath and

7

she says she sees an error in the chart.

8

MR. BRILL: I didn't hear that, I apologize.

9

MS. GALLES: Okay.

10

BY MS. GALLES:

11

Q. So so we're looking at, let's just look at the

12

baseball chart, for example.

13

A. Right.

14

Q. Okay? So we list the, you list there the 33 names of

15

the baseball athletes?

16

A. That is correct.

17

Q. Okay. And reasons one, two, three and four, what are

18

those?

19

A. All right, and I would like to note an error in this

20

chart.

21

Q. Okay.

22

A. You will see on the very last line that there under

23

reason number two, there is a number two. That should be

24

zero.

25

Q. Nobody's marked in there, it's just a summary?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 93 of 146 93

1

A. Correct, the rest of it is correct but -- sorry. So

2

29 of those 33 athletes actually -- 29 --

3

MR. BRILL: I'm sorry, Your Honor, which column

4

has the two you're correcting?

5

THE WITNESS: In reason number two.

6

MR. BRILL: Got it, thank you.

7

BY THE WITNESS:

8

A. Sorry. It's embarrassing to have that occur on your

9

first chart.

10

So, if you look at the bottom row where it says total

11

33 on the squad list, on the column reason one which

12

indicates they competed, 29 of those athletes on the squad

13

list were counted because they competed in one or more

14

games. None were reason two or three or four. There were

15

two athletes that I counted by virtue of reasons five and

16

six. And so in the case of Anis Campal (ph), I probably

17

mispronounced that -- this athlete practiced and received

18

varsity benefits the entire first semester. The first

19

date of competition in baseball was scheduled to be in

20

that semester. There are three contests that were

21

supposed to be played in the first semester and he's on

22

the squad list but the events never occurred. All right?

23

They never occurred. They should have occurred, they were

24

rained out. And so I said to myself, both in terms of it

25

was the nontraditional season, he would, the first part of

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 94 of 146 94

1

baseball is nontraditional. He was on the squad list for

2

the nontraditional season, so five would apply. And six

3

would also apply because he continued to receive benefits

4

for the whole remainder of the year.

5

Q. Okay.

6

A. Until the end of the semester.

7

Q. Could you please explain what other notes are?

8

A. Other notes, Q is quit, C is cut, I might have used C

9

or a cut, OR is other reason.

10

Q. And are those Quinnipiac designations?

11

A. These are all Quinnipiac designations from the squad

12

list.

13

Q. Okay. So we don't necessarily know why they were cut

14

or why they quit or what the other reason is?

15

A. Right.

16

Q. Okay.

17

A. I would like to connect the dots.

18

Q. Okay, go ahead.

19

A. To be here because otherwise this is going to be an

20

exercise you're not going to understand.

21

Q. Okay.

22

A. If you go to 151, all right, and you see my summary

23

counts in 151, so on 151, right, and you see columns at

24

the top which say Lopiano count A, Lopiano count B,

25

Lopiano count C, and Lopiano count A is this first four

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 95 of 146 95

1

reasons definitely okay. Lopiano count B is anybody who

2

on the first four reasons, four, five, six, seven, eight.

3

And so this becomes where I have exercised my expert

4

opinion that they should count. But you can, the court

5

needs to look at that and decide whether they believe me

6

or not or whether I was reasonable as an expert in making

7

a specific application of a general rule.

8

And then Lopiano C is when I made an adjustment to

9

either A or B, I'm recommending an adjustment because

10

something specific happened where I think this person

11

should not have been counted or they should have been

12

counted for a very unusual circumstance, a red flag. So

13

that's how chart 151 -- 150 --

14

Q. 151?

15

A. 151 relates to --

16

Q. 150?

17

A. 150 relates to 151, and when I talk about my

18

conclusions I'll try to be very clear in terms of how

19

these all relate to participation gaps and decisions on

20

how to count but that is the -- the execution of the

21

methodology in full to come up with the summary chart and

22

my conclusions at the end of 152.

23

Q. Okay, so for the baseball chart that you prepared?

24

A. Right.

25

Q. Okay? How athletes fell into reasons one through

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 96 of 146 96

1

four?

2

A. You see were counted, that column A equals 29, so A

3

is the first column, the Lopiano count A, in 151. So 29

4

athletes fell in reasons one through four, only two

5

athletes fell in reasons five to six, and there were no

6

changes recommended in terms of red flags.

7

Q. So, if we go to Lopiano count B of 151, it shows the

8

original 29?

9

A. Plus --

10

Q. Plus the two that fell into five through eight?

11

A. That's right.

12

Q. For a total of 31?

13

A. Thirty-one.

14

Q. And so you did not make any --

15

A. So does everybody follow that?

16

Q. Well --

17

A. No, I want to make sure. I want to make sure. I'll

18

say more about it if it's not clear. But if you look

19

at --

20

Q. We can tell you're a professor.

21

THE COURT: Show of hands?

22

A. But if you look at 151 and you, it becomes clear, and

23

if you look at Lopiano count B under B, you see 29 plus

24

two equal 31.

25

THE COURT: I've got it. You're doing this for

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 97 of 146 97

1

me.

2

BY MS. GALLES:

3

Q. All right. Well then let's, should we jump to one

4

where you actually made an adjustment so we can explain

5

the --

6

A. Okay.

7

Q. -- the red flag issue? Okay?

8

A. Okay.

9

Q. Let's -- well, so you went through and did this

10

analysis for every single Quinnipiac --

11

A. Student.

12

Q. -- team?

13

A. Every team, every team and every athlete who was on

14

the squad list.

15

Q. Okay. Now, let's jump ahead to women's field hockey.

16

A. Okay.

17

Q. Okay. Women's field hockey. There are 27 women on

18

the squad list. Could you please explain how you counted

19

the people on the Quinnipiac, how you counted field hockey

20

players?

21

A. Yes. And so if you look at reason one, there were 20

22

of the 27 who actually competed. None under reason two,

23

none under reason three. There were five who were counted

24

by virtue of reason four. They were on the squad list at

25

the beginning of the traditional season. There was one

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 98 of 146 98

1

who participated or practiced a full semester. She was on

2

the squad list of a, of the nontraditional season. She

3

came on into the spring, she's still playing. That is a

4

dual sport athlete, was still playing ice hockey and

5

started in the nontraditional spring season of, you know,

6

of the year, so they was a five. So there's one in five.

7

Q. So how many fell, how many did you count under

8

reasons one through four?

9

A. Twenty-five.

10

Q. Okay. How many --

11

A. So if you look under where I counted. Right, it says

12

A, reasons one to four were A. 25 were counted.

13

Q. And how many were counted under reasons five through

14

eight?

15

A. And reasons five through eight is one.

16

Q. So B equals one?

17

A. B equals one.

18

Q. Okay. Now --

19

A. And -- go ahead.

20

Q. I'm going to say now under the red flag notes, it

21

looks like you've made notes under four or five different

22

names?

23

A. Yes.

24

Q. But you made only one adjustment, it says C equals

25

minus one?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 99 of 146 99

1

A. Yes.

2

Q. So could you please explain your red flag notes?

3

A. Yes.

4

Q. For the field hockey team?

5

A. Yes, I have to be, I was trying to be very

6

conservative with my red flags, that I have to have some,

7

either an email evidence or some confirmation of something

8

happening or that really said, come on, what are you doing

9

here? And otherwise I let it go. I wanted this to be a,

10

a very conservative adjustment, not something very

11

liberal, so in the case of one athlete --

12

Q. Can we go through -- because you didn't count all of

13

the red flags?

14

A. That's exactly right.

15

Q. Could we into through an example of when you counted

16

a red flag and when you didn't?

17

A. Sure. So when look at Katharine Calucci (ph), that

18

was the one I mentioned, right? So here is, I counted her

19

and I thought this was really funny. She was not, she was

20

cut from the ice hockey team. She came over to the field

21

hockey team even though she was not off of the ice hockey

22

team yet, and she was added onto three.

23

Q. And when was she --

24

A. This was a nontraditional season. You have to look

25

at the ice hockey to see -- but I just, this is kind of

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 100 of 146 100

1

unusual to see an ice hockey, field hockey, you know,

2

combo added that late in the year, cut from one squad.

3

It's like -- this kind of never happens in Division I.

4

Q. Okay. Now, let's also look for an example; there is

5

a woman named Meghan Lillibrige (ph), okay? That's marked

6

red flag there. Why was that marked as a red flag?

7

A. She was not on A, she didn't play. She, you know,

8

seemed to receive varsity benefits, she was cut on two, 26

9

on a, in the nontraditional season. And so she -- how I

10

do say this -- she, I didn't think -- I'm trying to think

11

how to say this.

12

Q. Well, let me see. If you're in the Division I --

13

A. She, she counted, she counted because she was on the

14

squad list and I didn't want to change that count. Even

15

though she was cut. And --

16

Q. So would you --

17

A. I considered it.

18

Q. So, for example, with the first two, the Ms. Calucci

19

and the Ms. Lillibrige, you flagged them but you counted

20

them anyway?

21

A. Yes. It's highly unusual to cut someone after your

22

traditional season unless there's something wrong but I

23

didn't know if there was anything wrong.

24

Q. So it could have been totally legitimate?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 101 of 146 101

1

Q. So you counted her because she fell under one of the

2

rules?

3

A. Right.

4

Q. Okay. Now --

5

A. I didn't want to change it.

6

Q. Now, let's look at the one person where you did the

7

red flag and adjusted the cut -- or, excuse me, adjusted

8

the count accordingly?

9

A. Right, here's a good example of, here's an athlete

10

who does not get on the squad list in her traditional

11

season. She's not there on the first day of competition

12

but right after it she gets cut. So she hasn't received,

13

she's cut on 10/15, right? So how -- what benefits did

14

she -- how long did she occupy this participation slot?

15

Q. So this --

16

A. So even though she was, you know, counted because she

17

was on the squad list, it's a great example of she was

18

counted because she was on the squad list but she

19

disappeared immediately, she was cut. She could have been

20

cut the day before the squad list. And it's so close

21

in --

22

MR. BRILL: Excuse me, I object. This is

23

speculative testimony about what could have happened to an

24

athlete. This witness doesn't know why this athlete was

25

cut. She can explain the chart and what she's basing it

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 102 of 146 102

1

on, but for her to talk about circumstances with

2

individual athletes that's not in evidence I just think

3

goes beyond her competency. She doesn't know anything

4

about the circumstances under which this athlete was cut

5

and she has not made any inquiries up until today.

6

THE COURT: Okay, let's continue.

7

BY MS. GALLES:

8

Q. Yes, Ms. Lopiano, you're not trying to make any value

9

judgments about why she was or why she wasn't cut, are

10

you?

11

A. No, I'm giving you the reason.

12

Q. So you're just looking at the date she was cut?

13

A. Exactly right. And the real question is is she

14

occupying a participation slot, receiving all the benefits

15

under A, B in the clarification, she's there for only two

16

weeks. Even if she was cut for any reason, no matter how

17

bad the reason, why isn't that fishy?

18

Q. So if she was -- and she was there less than a full

19

semester and less than a full season?

20

A. Yes, looks for a month, maybe. And that's why I

21

really have been careful to segment my Exhibit 151 C so

22

that the court can, if they don't like me making that kind

23

of a judgment then don't count that number, you know, that

24

column.

25

Q. Okay. So let's move, for example, let's jump to

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 103 of 146 103

1

women's lacrosse.

2

A. Okay.

3

Q. Okay? Now the women's lacrosse chart, okay, there

4

are 30 names on the squad list. Could you please explain

5

how you handled each of these 30 athletes?

6

A. This is women lacrosse.

7

Q. Women's lacrosse, yes.

8

A. So there were 30 athletes on a squad list, reason

9

one, 25 competed so they count. No one was counted in

10

terms of being injured, and on eight one was counted

11

because they were red shirt designated by QU. And two

12

were counted because they were on the squad list at the

13

beginning of the season and continued to practice.

14

Q. So --

15

A. Well, they were on the squad list at the beginning of

16

the season, that's right.

17

Q. So how many athletes fell under reasons one through

18

four?

19

A. Twenty-six -- I'm sorry, 28.

20

Q. Twenty-eight?

21

A. My glasses.

22

Q. Now you have two athletes in reasons five through

23

eight. Could you please explain how you handled those two

24

athletes?

25

A. Both of those athletes were on the squad list in the

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 104 of 146 104

1

nontraditional season. The nontraditional season is the

2

fall for lacrosse and they participated and they were on

3

this, on the squad list in that nontraditional season and

4

they participated the whole fall.

5

Q. Okay. Now those particular athletes --

6

A. Quit.

7

Q. They quit before the start of the traditional season?

8

A. That's right.

9

Q. So --

10

A. Which is the reason for -- for the red flag. That's

11

pretty unusual.

12

Q. So what -- but you did count them?

13

A. Yes.

14

Q. But you did not make, so -- are they counted under B?

15

A. I didn't want to change them. I felt that I didn't

16

want to change them because it really occupied a semester

17

of participation even before they quit.

18

Q. So --

19

A. Even though it's understandable, you don't keep

20

somebody for that period of time and then -- it's funny.

21

That's all.

22

Q. But because those athletes were there the entire fall

23

and up into the spring, you went ahead and counted them?

24

A. Yes, and what I think is important about this red

25

flag thing is I'm really, I really do think that it, it's

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 105 of 146 105

1

going to be demonstrated by Exhibit 151, that for the

2

women's teams there was an attempt to pad, to -- there was

3

a definite policy in place that established a minimum for

4

your team that was higher in many cases, in many sports

5

than an average game size. So my red flags, I was looking

6

for who are these athletes that really weren't serious

7

about playing, who were put on a team to meet the minimum

8

and then whose experience wasn't worthwhile or were cut

9

later. That was the red flag I was looking at because of

10

the indicator of Quinnipiac team size being off the

11

average team size and this policy that was in place.

12

Q. Okay. I just want to make sure that in, that in

13

terms of the red flags, were you making any kind of value

14

judgment regarding individual athletes?

15

A. I don't understand your question.

16

MR. BRILL: Object to the form of the question.

17

BY MS. GALLES:

18

Q. Yes, it was poorly worded. I want to focus on the

19

red flag, the fact that you maybe red flagged a particular

20

athlete, I just want to make sure that you weren't trying

21

to disparage any particular athlete by marking it as a red

22

flag?

23

A. No, I was just trying to demonstrate to the court the

24

relationship between this circumstance of this dual policy

25

application and how it creates pressures on the coaches

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 106 of 146 106

1

having, you know, to keep kids when they shouldn't or

2

wanting to add kids when they can't.

3

Q. And also for the red flags, you're not, you couldn't

4

make a determination whether that, the odd circumstances

5

were for an appropriate reason or an inappropriate reason,

6

could you?

7

A. I did not know why they were cut or why they quit,

8

absolutely right.

9

Q. So, in deciding what to -- did you see, did you just

10

rely on the totality of the circumstances as you could see

11

from the documents provided by Quinnipiac?

12

A. Yes. As I said, if I ever recommended an adjustment,

13

I really felt that it was a compelling circumstance.

14

Q. Okay. I guess --

15

MS. GALLES: Since this is a bench trial, may I

16

ask, we could go through each one of the lists but, as you

17

said, you got it. Do you want us to go through each one

18

or just we kind of use an example of each one and we can

19

jump to the --

20

THE COURT: I understand the charts. I

21

understand the analysis. If there's particular teams that

22

you want to focus on, you should do that.

23

BY MS. GALLES:

24

Q. Dr. Lopiano, were there any particular teams that you

25

wanted to focus on or did you want to move to Exhibit 151?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 107 of 146 107

1

A. I can move to 151 upon which I base my conclusions.

2

I can move to my conclusions which might be most helpful.

3

Q. Okay. Well, let's -- please explain for the court

4

what Exhibit 151 is?

5

A. Well, Exhibit 151 is, it is a review, a summary table

6

that is based --

7

THE COURT: Let me just say I think you already

8

kind of explained it. You have the squad list numbers,

9

the numbers that the university used, your count A, your

10

count B, your count C, and then I assume NEC and NCAA and

11

average squad sizes for conferencing for Division I

12

schools.

13

THE WITNESS: Correct, and the reason I put the

14

last two columns in was so there could be a comparison to

15

QU's numbers which was beginning and start dates, so you

16

could make a decision as to whether or not there was an

17

artificial depression in team size or a padding of team

18

size.

19

THE COURT: Okay.

20

THE WITNESS: Just have it all in one chart so

21

you can look at it.

22

BY MS. GALLES:

23

Q. So, for Lopiano count A, those are all the athletes

24

that were counted only under reasons one through four, how

25

many men did you count?

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 108 of 146 108

1

A. 170.

2

Q. Okay. So --

3

A. That's right, yes, 170.

4

Q. So for Lopiano count B, people that fell under

5

reasons one through eight, how many males did you count?

6

A. 176.

7

Q. Okay. Now, Lopiano count C where you adjusted for

8

red flags, how many males did you count?

9

A. The number remained the same so I didn't make any

10

adjustments in the male athletes.

11

Q. Okay. So now, let's jump to the chart regarding

12

women.

13

A. Okay.

14

Q. Or the page relating to women. So the first page

15

summarizes the men, let's go to the second page. Okay.

16

You've broken them out to the female athletes except for

17

the runners?

18

A. Correct.

19

Q. Okay? So under Lopiano reasons one through four, how

20

many women did you count?

21

A. Before the runners, 170.

22

Q. And under Lopiano count B which is reasons one

23

through eight?

24

A. 172.

25

Q. Okay. And Lopiano count C where there was the red

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 109 of 146 109

1

flag adjustments, how many did you count?

2

A. 164.

3

Q. Okay. All right. Now, for -- now, let's jump to the

4

third page of that exhibit.

5

A. Right.

6

Q. Okay? Where it says cross country, track, indoor

7

track, outdoor?

8

A. Yes.

9

Q. So where do those numbers come from?

10

A. The cross country comes right off the cross country

11

squad list. I simply duplicated the track, track indoor

12

and track outdoor, the exact same list.

13

Q. So you actually looked at the squad list?

14

A. That is correct.

15

Q. And had the same?

16

A. Same numbers.

17

Q. Or the same?

18

A. Same people.

19

Q. Okay.

20

A. Same participants. And, as you know, in my analysis

21

I consider that that would be one season, indoor, outdoor

22

track, that's one team.

23

Q. So for it says cross country, under A B and C, it

24

says 18; what does that mean?

25

A. That means that reasons one through four, there were

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 110 of 146 110

1

18 cross country runners that were counted for those

2

reasons and there was no change. There were no five dates

3

and there were no red flag adjustments.

4

Q. Okay. So, but you didn't do any analysis of who

5

competed in what track or, excuse me, what cross country

6

meets or anything like that, did you?

7

A. No.

8

Q. You just looked at who was on the squad list?

9

A. Yes.

10

Q. On the first day of competition?

11

A. No. For whatever reason.

12

Q. That you listed?

13

A. Right.

14

Q. Okay. So let's go to the indoor, what's the number

15

that's recorded for the indoor?

16

A. For reasons one through four it's 30. Reasons one

17

through eight it's 30. And for, I didn't make any changes

18

for adjustments or red flags.

19

Q. So let's jump to the total runners.

20

A. All right.

21

Q. I'd like to start with the, just explain for the

22

unduplicated count, if we looked at the actual number of

23

athletes, how many female runners are at Quinnipiac? How

24

many are there?

25

A. This is my teaching person --

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 111 of 146 111

1

Q. Okay.

2

A. -- speaking now, right? I have combined the

3

definition of unduplicated, trial count whatever in my

4

conclusion in a more clear fashion that replicates exactly

5

what you see here as triple runners counted, double count,

6

unduplicated. I really feel, I tried to make my

7

conclusions absolutely reflective of this chart. But to

8

train on my conclusion in the clearest way possible so

9

that the court can make judgments. So if counsel would

10

permit, I would rather attack it that way. If I'm allowed

11

to.

12

Q. Okay, would you like to explain what you mean by

13

triple count, double count?

14

A. Yes.

15

Q. Please explain.

16

A. This is the heart of it right here. I'm going

17

through the supplemental report, the second to the last

18

page on page four, which says conclusion. And if you

19

follow this one, this is -- we're making this clear. If

20

the court decides to triple count QU's female runners,

21

which means counting cross country, indoor and outdoor, as

22

separate teams and separate seasons and does not choose to

23

count cheerleading, I do not consider cheerleading a sport

24

for the reasons that are already covered, right? Then

25

I've calculated using the mathematical formula I told you

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 112 of 146 112

1

about before, exactly what the gaps are under each of my

2

counts with and without volleyball. So if you look at

3

this first one, right? So here is the triple count

4

scenario. There's a gap of 28 without volleyball, so this

5

is --

6

Q. No, with volleyball it says?

7

A. I'm sorry, with volleyball.

8

Q. What do you mean by when you say with volleyball?

9

A. That means counting volleyball.

10

Q. So they don't eliminate volleyball?

11

A. So with volleyball counted the gap is still 28, so if

12

they eliminated it it would make it worse it would make it

13

41 without volleyball.

14

Q. Okay.

15

A. Right? So that's what happens under the triple count

16

scenario.

17

Q. And again, we talked about it earlier but just to

18

drive into this chart, when you say gap of 41, what do you

19

mean?

20

A. I took everyone through the mathematical

21

determination of gap. So what I mean by gap is that's the

22

difference between the number that Title IX would require

23

for prong one compliance and what they actually have.

24

Right? Under these two circumstances. And so you can

25

see, I didn't, you know, count cheerleading, right there

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 113 of 146 113

1

are 30 cheerleaders. You can see if you counted the 30

2

cheerleaders, right, that in the, with volleyball, right,

3

with volleyball there, you would be right there in terms

4

of prong one. You'd be right there. You'd have to keep

5

volleyball, right? And that's assuming cheerleading is

6

viable, which you know where I am, all right?

7

So if you then wanted to count cheerleading without

8

volleyball, right, you'd have to -- that number would be

9

41 minus 30, right? So you'd still be 11 short and you

10

would still have to add another team for women because

11

you'd add a golf team and do it, so that's how it worked

12

throughout each of these counts.

13

Q. So when I focus on that first chart that you're

14

presenting in your conclusion, that's under count A?

15

A. Triple count.

16

Q. Excuse me, that's under, counting under A so it's

17

just the four reasons that are --

18

A. Yes.

19

Q. -- the letter of the definition? That's triple

20

counting each, triple counting the running -- excuse me,

21

the runners?

22

A. Right.

23

Q. Okay. But that is not including cheerleading?

24

A. Exactly. And Count One does not take any into

25

consideration for red flags or squad size padding.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 114 of 146 114

1

A. Well --

2

A. Unless a change was made in C, it wouldn't.

3

Q. Right, so under A it doesn't?

4

A. No.

5

Q. You just accepted the squad sizes?

6

A. Reasons one through four are all that is included

7

under Lopiano count A.

8

Q. So they would, the athletes would have been counted

9

even if they were on an unusually large squad size?

10

A. Yes.

11

Q. So let's move onto Lopiano count B under triple

12

counting.

13

A. Okay.

14

Q. Explain what that means?

15

A. So, I used one through eight as reasons, I did not

16

count cheerleading, I did count volleyball and the gap was

17

35.

18

Q. Okay, and you triple counted the runners?

19

A. This is all triple counting the runners, right. And

20

then I did the same thing, without counting volleyball,

21

what the gap would be, so it's 48 if you got rid of

22

volleyball.

23

Q. Okay. And so then let's look at Lopiano count C

24

under the triple counting scenario.

25

A. Same explanation, that in this, in this case, without

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 115 of 146 115

1

counting cheerleading, counting volleyball, the gap would

2

be 44. Without cheerleading, without counting volleyball

3

the gap would be 56.

4

Q. Now, let's move onto your next chart in your

5

conclusion.

6

A. Right.

7

Q. Okay?

8

THE COURT: Let me just short circuit, I think I

9

understand that chart. I mean feel free to spend as much

10

time as you want but --

11

MS. GALLES: Okay.

12

THE WITNESS: The whole chart?

13

THE COURT: I understand it.

14

THE WITNESS: The whole chart including the next

15

three things?

16

THE COURT: The difference is how you're

17

counting the runners.

18

THE WITNESS: Exactly.

19

THE COURT: Okay.

20

THE WITNESS: He's got it.

21

MS. GALLES: Okay.

22

BY MS. GALLES:

23

Q. Is there anything else you wanted to say about how

24

you're counting the runners?

25

THE COURT: I'd like to hear a little

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 116 of 146 116

1

explanation for why the runners should be counted in a

2

particular way.

3

MS. GALLES: Okay.

4

THE COURT: I don't know if this is the point at

5

which you intend to do that but at some point, why should

6

I pick any one of these scenarios rather than another?

7

MS. GALLES: Actually we had another expert who

8

was going to address that but Dr. Lopiano --

9

THE COURT: No, that's fine. We can do it then.

10

I understand the numbers. If she's not the expert to talk

11

about that, that's fine.

12

MS. GALLES: Well --

13

THE WITNESS: I did opine in my original report,

14

and I feel strongly about this, that under no circumstance

15

should you ever count indoor and outdoor as two separate

16

sports in two separate seasons. It is counter intuitive.

17

These are the same exact rosters participating indoors

18

shorter distances. Like long and short course swimming,

19

you don't split swimming up into long courses is a

20

different sport than short course. And they are right

21

next to each other, indoor and outdoor. Under no

22

circumstances would I ever consider those two to be

23

separate sports except one, and this is historical

24

statistical, before people started manipulating these

25

track numbers, when men's sports ran legitimate cross

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 117 of 146 117

1

country indoor and outdoor and women's sports ran

2

legitimate cross country indoor and outdoor, they

3

statistically offset each other, right? They counted

4

everybody in cross country. Everybody knew everybody in

5

indoor, everybody in outdoor, and statistically they were

6

a wash. They just cancel each other out.

7

Now, when you start saying, oh, we don't have

8

have an indoor and outdoor for men, right, then if you

9

weren't to triple count, you see where you go with that.

10

The same kids are getting counted 30, 30. You have not

11

increased the number of kids participating at all. You

12

haven't increased that many. They are the same kids

13

participating in indoor and outdoor, and in this situation

14

with Quinnipiac, there was such evidence in the

15

preliminary injunction --

16

MR. BRILL: I object, Your Honor, to the witness

17

summarizing evidence at the preliminary injunction.

18

THE WITNESS: I'm sorry. There were, if you

19

look at even Exhibit L, we saw that this whole program was

20

built on distance runners who, according to NCAA rules

21

could, a cross country team could participate in cross

22

country and indoor and outdoor and never count, never

23

count as indoor and outdoor, that they were allowed to

24

pick up distance events in those two seasons. And

25

wouldn't count.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 118 of 146 118

1

And so the reason why I feel strongly about this

2

is whenever I see a different counting of men and women,

3

there is the danger of nefarious counts, that they are

4

doing it purposely to do prong one, and that's why I'm so

5

cautious before I -- that's why I don't even look at

6

triple counts anymore.

7

BY MS. GALLES:

8

Q. Well, let's look at, let's go to the NCAA manual and

9

you previously referred to figure 17.1, and 17.2. Okay?

10

Now, in there there's a, you indicated the separate

11

softball seasons, there's a championship segment and

12

there's an other segment?

13

A. Right.

14

Q. So when is the championship segment of softball?

15

A. It's in the fall.

16

Q. The championship season of softball?

17

A. Of softball, is in, in the spring, I'm sorry. I

18

don't know why I say fall.

19

Q. You used to be a softball coach?

20

A. I'm an American softball player. I apologize. And

21

in the spring season, the championship season, you would

22

can play 56 and in your nontraditional, you can play --

23

Q. So let's just look at softball. There's a

24

traditional and a nontraditional fall and a spring season?

25

A. Correct.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 119 of 146 119

1

Q. Now, if someone plays pitcher on the softball team in

2

the fall, and plays right field in the spring, are those,

3

is that person counted as two different athletes?

4

A. No.

5

Q. Okay.

6

A. Only one.

7

Q. And now, let's look at lacrosse for an example.

8

There's a fall season and spring season, okay. If there's

9

an attacker in the fall season and a goalie in the spring

10

season, is that athlete counted as two different sports?

11

A. Nope, count as one. And that's a great example where

12

you see some of the lacrosse games that are actually

13

field, in field houses like indoor track, where you just

14

because it's indoor and outdoor, you don't make them

15

separate seasons.

16

Q. So that's in the next thing. Now, let's look at, you

17

know, as a -- were you a former softball player?

18

A. Yes.

19

Q. Were you a former softball coach?

20

A. Yes.

21

Q. So are you familiar with the different surfaces that

22

softball plays on?

23

A. Yes.

24

Q. Does softball sometimes play on dirt?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 120 of 146 120

1

Q. Does softball sometimes play on grass?

2

A. Yes.

3

Q. Does softball sometimes play on gravel?

4

A. Gravel, artificial turf. There's lots of different

5

surfaces.

6

Q. We used to call it kitty litter. It's not dirt but

7

it's that little gravelly stuff. Does softball play on

8

something like that?

9

A. Yes.

10

Q. Does some softball teams play on astro turf or some

11

other type of artificial surface?

12

A. Yes.

13

Q. Now, do you count softball as a different sport based

14

on the surface that it's played on?

15

A. No.

16

Q. Now, let's look at the sport of tennis. Okay. Now

17

did you use to be a tennis coach?

18

A. No.

19

Q. You didn't. Okay, sorry. Now, let's look at, is

20

there a spring and a fall, do college tennis teams play in

21

both the fall and the spring?

22

A. They do.

23

Q. Now, on tennis do they sometimes play on concrete

24

courts?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 121 of 146 121

1

Q. Do they sometimes play --

2

A. Very seldom on Division I however.

3

Q. Do they sometimes play an asphalt courts?

4

A. Yes, it's usually a composite of some court or clay

5

or grass.

6

Q. So is there -- are there different surfaces that the

7

same ten player might play on during the course of the

8

season?

9

A. Yes, and there's another example where tennis can go

10

indoor for a competition, doesn't count as a separate

11

sport. Tennis is typically in the northeast. If you have

12

a field house facility, you'll just play indoors when

13

you're scheduled and you're rained out.

14

Q. So when it's snowing or raining --

15

A. And it's not a separate season, right.

16

Q. So for a tennis player, do you count that tennis

17

player as an athlete in separate sports based on the type

18

of tennis surface that that person plays on?

19

A. No.

20

Q. Do you count that tennis player as participating in

21

separate sports depending upon whether that tennis player

22

plays indoors or outdoors?

23

A. No.

24

Q. Now, let's use football for an example. Are there

25

different types of surfaces that football, college

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 122 of 146 122

1

football teams play on?

2

A. Yes, and if you're going in the same direction you

3

can play indoors or outdoors; they don't count as separate

4

seasons.

5

Q. Okay. So, and -- okay.

6

A. The only other thing I'd like point out, if you look

7

at 17 --

8

MR. BRILL: Your Honor, there's no question

9

pending. The witness is not here to give a lecture, she's

10

here to answer questions.

11

BY MS. GALLES:

12

Q. Is there anything else you would like to add to that

13

response, Dr. Lopiano?

14

A. Just in showing, when you look at NCAA figure one,

15

NCAA figure 17.1 and you look at track and field, they

16

combine indoor and outdoor in figure 17.1. And to 18

17

contests over those two indoor and outdoor periods. So --

18

Q. So could a track team, if you had a track team that

19

ran nine events indoors and nine events outdoors, that

20

would fall under the 18 maximum?

21

A. Yes.

22

Q. Okay. And if that school eliminated what it called

23

its indoor program, could those athletes continue to run

24

in 18 meets?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 123 of 146 123

1

Q. Okay, so --

2

A. And could even run in indoor.

3

Q. Okay. So they could still continue to run in nine

4

indoor and nine outdoor?

5

A. That's a good question. In order to count as indoor,

6

they have to do a minimum, you know, indoor so the example

7

is a poor one.

8

Q. But what I'm trying to get at is they could still run

9

18 meets and just call it outdoor?

10

A. Yes.

11

Q. Okay. In that instance, if you had a school that had

12

a men's track program, had 18 meets combined indoor

13

outdoor, then the school said we're going to eliminate our

14

men's indoor track program, okay, could those same men

15

still continue to compete in 18 meets but just in call it

16

outdoor track?

17

A. Yes.

18

Q. Okay. Now, also within a track meet, is there like

19

100 meter dash in, for example, outdoor track meets?

20

A. Because I was never a track coach, may I leave that

21

to a different expert?

22

Q. Okay.

23

A. If you're going to get into detailed events in track.

24

Q. What I'm trying to get into to is when we were

25

talking about the double counting, triple counting and

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 124 of 146 124

1

single counting --

2

A. Right.

3

Q. If a track athlete competed in the 100 meter dash and

4

the shot put in the same outdoor meet, is that athlete

5

counted as one track athlete or two track athletes because

6

he or she competed in two totally different kinds of

7

events?

8

A. One track athlete. The number of events and types of

9

events do not matter.

10

Q. So now if we start looking at, if in February a track

11

athlete runs 400-meters indoors, and then in March that

12

track athlete runs 400-meters outdoors, is that athlete,

13

how is that -- is that athlete counted as participating in

14

two separate sports under any of the triple, double,

15

single counting scenarios that you provided?

16

A. Obviously I contend they should be counted as one,

17

and that my scenario, my second scenario in terms of the

18

double count would allow indoor and outdoor as one.

19

Triple count would count them as two, that athlete in --

20

that does that.

21

Q. So under your triple counting scenarios --

22

A. Right.

23

Q. Okay. An athlete who ran 400-meters in every single

24

event -- or excuse me. Every single meet would be counted

25

as two different athletes if they ran indoors and

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1

outdoors?

2

A. That is correct.

3

Q. Okay. But an athlete who ran 400-meters and threw

4

the shot put but only did so outdoors would be considered

5

as one athlete?

6

A. That is correct.

7

Q. Okay.

8

MS. GALLES: Could we take a short break, Your

9

Honor, or -- just kind of need to use the restroom.

10

THE COURT: Sure. All right.

11

MS. GALLES: Or were you planning to do a lunch

12

break soon or --

13

THE COURT: I was thinking of maybe 12:30 or one

14

but I'm not sure where you are with the witness, how much

15

longer do you think you have with the witness?

16

MS. GALLES: We do have a bit longer to go. I

17

just --

18

THE COURT: All right, let's take a five minute

19

recess.

20

MS. GALLES: Thank you.

21

THE COURT: Stand in recess until 12:15.

22

(Whereupon a recess was taken from 12:10

23

o'clock, p. m. to 12:15 o'clock, p. m.)

24

BY MS. GALLES:

25

Q. Dr. Lopiano, before moving on I just want to make

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 126 of 146 126

1

sure that, is there any -- anything else in your

2

supplemental report that you have left to explain or have

3

we finished that?

4

A. Unless you have any other questions. I think I said

5

enough probably, or if the court has any questions.

6

Q. Okay, well, I'd like to just go back to your original

7

report.

8

A. Okay.

9

Q. Which is Exhibit 99, and you have in front of you.

10

Now, this whole analysis of the supplemental report was

11

dealing with prong one, is that right?

12

A. That is correct.

13

Q. Okay. Now, in your original report, you provide a

14

brief analysis of prongs two and three. Could you please

15

go to that section of your report. It's like section B?

16

A. Yes.

17

Q. And then prongs two and prongs three?

18

A. Yes.

19

Q. Okay. Do you have that in your report?

20

A. I do.

21

Q. Okay, so does the brief section under prong two

22

accurately reflect your opinion regarding prong two in

23

this matter?

24

A. Yes, it does.

25

Q. Okay, and does the section under prong three

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 127 of 146 127

1

accurately reflect your opinion in this case?

2

A. It does with one correction, I've noticed an error in

3

three F.

4

Q. Okay.

5

A. That reference should go to Exhibit G which is 106.

6

Q. Okay.

7

A. And not E.

8

Q. Okay. So, if you were an athletic director in

9

Connecticut, and you were going to add a new sport, what

10

do you look at to decide which new sport you should add?

11

A. Well, under this, under prong three, I have showed

12

with exhibits and with explanations where I would look for

13

what sports to add. So I would look in my conference, the

14

Northeastern Conference, and I would say what sports are

15

changed because I have to make competitive equal post

16

season competition opportunities available for my women

17

and look there first, for sure, because you form a

18

conference because it's the same kind of schools. You

19

want your kids to compete against the same academically

20

stressed or unstressed kind of athletes. You also pick

21

your schools because they are in reasonable geographic

22

proximity. It is the natural first place to look when you

23

add sports.

24

So you can, especially if your conference already has

25

those sports, you have a schedule, instant schedule. You

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 128 of 146 128

1

don't have to worry about getting a nonconference games.

2

The hardest thing in Division I is on put a, to add a new

3

sport, to not have it be in your conference and to find

4

enough games to complete a new schedule because

5

everybody's all scheduled with their own conference. And

6

there aren't any opportunities for non conference schools,

7

so that would be my absolutely first choice.

8

Then it makes sense to look at other schools in my,

9

in my state. What are they doing? Because those are my

10

nonconference opponents. So first you look at your

11

conference, then you look at your nonconference schools in

12

your state because those are the ones who are at complete

13

my schedule. You never play just a conference schedule,

14

you have to keep both. So that would be natural.

15

And I've detailed here where I looked at all of those

16

websites or EADA reports of schools in Connecticut and

17

I've created tables.

18

Q. And is that the chart on Exhibit O of your --

19

A. Yes.

20

Q. Okay.

21

A. Which is 113.

22

Q. 113.

23

A. Okay. And then of course QU's an NCAA one school. I

24

would look at NCAA championships that are offered because

25

I have an obligation, would have a obligation to run a

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 129 of 146 129

1

sport that has a national championship competition because

2

national championship access is provided to women and so

3

you would look for a sport where you could give that to

4

your new female athletes also.

5

And then you'd look at, because you're recruiting

6

from high schools and you're recruiting from open amateur,

7

open amateur teams in your area, you look at Connecticut

8

high schools and see what their sport participating was.

9

And the national federation of state high school athletic

10

associations does an annual survey of what sports are

11

sponsored by high schools in, like, if you look at Exhibit

12

G, which is 106 -- like you could, if you look at the

13

second set of averages by just keep turning pages.

14

About four pages in, you can look up Connecticut and

15

then right across and you can see how many kids are

16

participating in every single sport in Connecticut at the

17

high school level. That's your recruiting pool, so you

18

would look at that.

19

And then looking at other state high school

20

associations not in Connecticut. So we're so close to New

21

York, so close to Massachusetts and so you would continue

22

to use that kind of resource for that.

23

And I always, we're also diversity consultants. You

24

know, lots of schools are very eager to increase diversity

25

so, you know, I always recommend that you look for diverse

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 130 of 146 130

1

schools to increase that kind of profile.

2

Q. All right. Now, have we sufficiently discussed the

3

prongs one, two and three of your analysis?

4

A. Unless you have further questions.

5

Q. No. Okay, just weren't to make sure there isn't

6

anything else you wanted to say. Let's jump toin your

7

original report, okay? Let me find the page here. You

8

address cheerleading.

9

This would be the first place where you address

10

cheerleading is in section eight, part five, cheerleading,

11

when does an activity count as a sport. Would you please

12

find that particular part of your report?

13

A. I have it.

14

Q. You found it? I'd like to start with when, when you

15

were CEO of the Women's Sports Foundation, could you, well

16

could you explain or describe the purpose or function of

17

the Women's Sports Foundation?

18

A. The Women's Sports Foundation is the expert in

19

women's sports in the United States. It's recognized by

20

most to be the place to go for research, for informational

21

resources, information on general, on gender equity,

22

policy issues, advocacy. Definitely the Women's Sports

23

Foundation are an advocate for gender equity and increased

24

opportunities for women's sports remedying historical

25

discrimination.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 131 of 146 131

1

So we are -- that's what the Women's Sports

2

Foundation does. We have done studies of OCR, we've --

3

Q. So as CEO of the women's Sports Foundation did you or

4

the foundation develop any positions or policy papers

5

relating to cheerleading and sport?

6

A. Yes.

7

Q. Okay. I'd like to direct you to, it's Exhibit H of

8

your report and it's also Exhibit 107?

9

A. Exactly.

10

Q. This is a document with the Women's Sports Foundation

11

logo and it says cheerleading. Okay, could you please

12

take a look at that and tell us what it is?

13

A. Yes, this is a position paper developed by Women's

14

Sports Foundation and we do this, we did this regularly on

15

all, on any issue that was high public concern and if

16

you'd gone to the Women's Sports Foundation website and

17

type in search "position papers" you'd find any number of

18

these, but this was developed under my direction. I as

19

the executive director and CEO was in charge of the

20

advocacy director, and developed all position papers in

21

the area of gender equity, so I was the principal author

22

on this one.

23

Q. Okay. And could you please explain -- did you just

24

say that you were the principal author of this one?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 132 of 146 132

1

Q. Okay. Could you -- and was this indeed adopted as

2

the position of the Women's Sports Foundation?

3

A. Yes, it was. And let me just say in terms of -- say

4

something about my authoring, my background in terms of my

5

page includes a sociology of sports and the study of sport

6

and so the definition of sport, the thing I teach if I

7

were to be a teacher in colleges and universities would be

8

this, what makes something a sport and what isn't a sport.

9

When would chess be a sport and when would it not. When

10

would softball be a sport and when could it not. So this

11

is in my bailiwick of expertise.

12

Q. Okay. Could you please then summarize for us what,

13

what the position of the Women's Sports Foundation is

14

that -- or the position that you wrote and that was

15

adopted by the Women's Sports Foundation?

16

MR. BRILL: Objection, Your Honor. The document

17

in evidence speaks for itself. Don't need to summarize

18

it.

19

THE COURT: Well, if they want to summarize, I

20

have no problem because it's in evidence if they want to

21

summarize it.

22

BY THE WITNESS:

23

A. What I think is fair to say in keeping with the

24

court's time, that we met with OCR on this, we had

25

extensive discussions on what makes a sport a sport --

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 133 of 146 133

1

MR. BRILL: Your Honor, I'm sorry to interrupt.

2

The witness is not answering questions so it's difficult

3

for me to object. If she'd been asked did you meet with

4

OCR and what did OCR say to you, I would be objecting to

5

hearsay. She was asked the question to summarize this

6

document, not to talk about conferences she had with aOCR

7

years ago.

8

MS. GALLES: All right. Well, I will let you

9

rule --

10

THE COURT: No, are you withdrawing the

11

question?

12

MS. GALLES: Yes.

13

THE COURT: Okay.

14

BY MS. GALLES:

15

Q. Dr. Lopiano, before preparing this particular

16

position paper, did you do any research or take any steps

17

in order to investigate the cheerleading situation and

18

whether it should or should not be a sport?

19

A. The answer is yes. I can't remember --

20

Q. And what --

21

A. -- the time, whatever, but the Women's Sports

22

Foundation involvement with cheerleading is a neutral one.

23

The Woman's Sports Foundation position is the more sports

24

for women, the better. And so we want more sports for

25

women to evolve and I have no objection to competitive

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 134 of 146 134

1

cheerleading or the Woman's Sports Foundation doesn't have

2

any objection to legitimate, objective cheerleading sports

3

and we indeed encourage the American cheerleading

4

association, which is a sideline cheering association

5

because of this opportunity for new sports. For the last

6

15 years, we kind of met with them and said, look, you're

7

in a perfect position to develop competitive cheerleading

8

as a sport that we can count and involve girls in --

9

MR. BRILL: Your Honor, I'm sorry to interrupt.

10

That is a narrative. This is a very sensitive area of the

11

case. I would appreciate questions and answers by the

12

witness, not deviating into conversations she had 15 years

13

ago with some other organization that is not even a

14

government organization. If we could take it question and

15

answer, I'll be able to object and the court can rule. I

16

don't want to have to interrupt the witness and I didn't

17

object when she was giving a lecture essentially on prior

18

testimony but I would really ask that she be asked

19

questions that I have an opportunity to object and she

20

answer the question.

21

THE COURT: All right. Well, I think she is

22

answering the question. Did you do any research or take

23

any steps in order to investigate the cheerleading

24

situation and whether it should or should not be a sport.

25

It is a fairly long answer but I don't see a

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 135 of 146 135

1

problem with it. Why don't we get another question.

2

BY MS. GALLES:

3

Q. Dr. Lopiano, you were talking about the steps you

4

took with the American Cheerleading Association. Is

5

that --

6

A. And so we said we need an NGB. You're in a perfect

7

position to be the NGB. There has to be a set of rules,

8

you have to come up with a different name, otherwise

9

people are going to think it's sideline cheerleading. So

10

we worked with that group and I believe that group has

11

incorporated and wants to get into this --

12

Q. I just wanted to talk about what you particularly

13

have knowledge about. Any other -- so do you personally

14

have a beef regarding cheerleading?

15

A. No, competitive or sideline. Competitive or

16

sideline.

17

Q. Okay, so let's get back to the position paper that

18

you wrote for the Women's Sports Foundation; could you

19

please summarize that position paper for us?

20

A. I believe it's would be self explanatory.

21

Q. Okay.

22

A. But it defines sport, with a number of points.

23

Q. All right. Now, do sideline cheerleaders sometimes

24

compete?

25

A. Absolutely.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 136 of 146 136

1

Q. And the fact that a sideline cheerleader competes,

2

does that turn into a sport in your opinion?

3

MR. BRILL: Your Honor, first of all, there's no

4

foundation for this witness testifying about sport and

5

competitive cheer. They have a expert on competitive

6

cheer and we don't know the spent of extent of this

7

witness' knowledge about it. If she's --

8

THE COURT: She hasn't been asked about

9

competitive cheer. She's being asked about sideline

10

cheer.

11

MR. BRILL: Well, she was asked about a sideline

12

cheerleader competing and we have no evidence that she has

13

foundation on this issue. I don't know how far she's

14

going to testify about sideline cheer and competitive

15

cheer but I don't believe she has any sufficient

16

foundation, and they have a witness coming tomorrow as an

17

expert on the sport of -- what we've -- the sport of

18

competitive cheer and sideline cheer.

19

THE COURT: Well, okay. You want to lay a brief

20

foundation?

21

MS. GALLES: Sure.

22

BY MS. GALLES:

23

Q. Dr. Lopiano, during -- you've described for some of

24

us, over the last say ten or 15 years, have you been

25

involved in working with cheerleading groups in order to

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 137 of 146 137

1

help develop or evolve cheerleading into a competitive

2

sport?

3

A. Yes, I have.

4

Q. Okay. Based upon those years of those discussions,

5

have you developed an understanding of what sideline cheer

6

is?

7

A. Yes.

8

Q. Okay. And what is your definition of sideline clear?

9

A. When the primary purpose of the activity involves the

10

encouragement of student spirit, their appearances at the

11

competitive event of someone else or as a school

12

auditorium event, it is a student -- student spirit focus.

13

It is not competing against another cheerleading team in

14

order to determine who's the best cheerleader.

15

Q. And do sideline cheerleaders, do they sometimes

16

compete?

17

A. Yes, they could or they could not.

18

Q. Okay.

19

A. It's very common for cheerleaders in sideline

20

cheerleading groups have a one or two events a year where

21

they compete with each other, or festivals where they

22

compete against each other and put an exhibitions of their

23

routines and are judged better than someone else.

24

Q. Okay, and the fact that, as you say, the sideline

25

team goes and attends a few competitions a year, in your

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 138 of 146 138

1

opinion would that be enough to convert what those

2

sideline cheerleaders do into a sport?

3

A. No.

4

Q. Okay. Now, you prepared the Women's Sports

5

Foundation paper; I'd also like you to look at what's

6

Exhibit I to your report which is Exhibit 108 of the, of

7

plaintiff's exhibits. That's an OCR letter?

8

A. Correct.

9

Q. Okay. And at any time in your, like you said, over

10

the years of your working on the cheer issue, were you

11

ever consulted by or did OCR ever request input from you

12

to provide guidance on cheerleading and sport?

13

A. Yes, we were consulted in the development of this

14

response and they, we met with them, shared with them our

15

definitions of sport, and helped create this list of

16

factors.

17

Q. Okay, I'd like to jump to page two of that, of the

18

letter where it says types of inquiries and OCR may also

19

consider?

20

A. Correct.

21

Q. All right. So did you work with OCR in the creation

22

of those criteria?

23

A. Yes.

24

Q. Okay. And are those criteria generally accepted in

25

the sports world as establishing the factors for when an

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 139 of 146 139

1

activity can be considered a sport?

2

MR. BRILL: Objection, Your Honor. Generally

3

accepted in the sports world is vague and not material.

4

The question here is whether something is a sport for

5

purposes of Title IX, and we have specific criteria that

6

we can give the court.

7

THE COURT: All right, but I'll allow the

8

question.

9

BY THE WITNESS:

10

A. This is OCR and as opposed to a generally accepted,

11

the point was well made that this is what OCR says. It is

12

going to look at, these are all the factors they look at

13

in making a determination of whether or not this is a

14

sport vis-a-vis a sideline cheerleading activity.

15

Q. Now, I'd also like you to look at Exhibit J which is

16

Exhibit 109. This is OCR. Could you please describe for

17

us what this particular letter is?

18

A. This is, this letter was issued in September of 2008.

19

Instead of applying generally to cheerleading it applies

20

to the definition of sport in general. And it follows and

21

tracks the extent letter which was the previous exhibit

22

and is even a little more comprehensive than that. It

23

clearly, I think it's just a more clear enunciation of

24

what OCR is going to look at.

25

Q. Okay. So let's jump to Exhibit 110, which I believe

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 140 of 146 140

1

is Exhibit K of your report. Exhibit K are the users

2

guide for the Equity in Athletes Exposure Act; do you see

3

that?

4

A. Yes.

5

Q. I'd like to direct your attention to page 19 where it

6

says information you need to complete this screen?

7

A. Yes.

8

Q. Okay. Could you please read the second bullet point?

9

A. "To be considered a sport under the EADA an

10

activity's primary purpose must be to engage in

11

intercollegiate competition. If you indicate in the

12

caveat box that your other sports are dancing and/or

13

cheerleading, please also specify in the caveat box that

14

your institution has a letter from the Office of Civil

15

Rights confirming that the OCR has determined that dancing

16

and/or cheerleading are varsity sports in your

17

institution."

18

Q. Does the OCR provide technical assistance to schools?

19

A. Yes, it does.

20

Q. Could you please explain what that means?

21

A. That any institution can go through to a regional

22

office and ask them to assess a specific fact situation at

23

your institution and indicate whether it complies or

24

doesn't comply with policy, laws, what have you.

25

Q. So could a school go to OCR and ask for technical

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 141 of 146 141

1

assistance about whether their cheerleading program meets

2

the OCR criteria for a sport?

3

A. Absolutely. And I have confirmed that no school ever

4

has.

5

MR. BRILL: Your Honor --

6

A. I'll tell you --

7

MR. BRILL: I move the last portion to be

8

stricken. That was not responsive and I did not have an

9

opportunity to object to the hearsay which she just put on

10

to the record.

11

THE COURT: That's fine, that's stricken.

12

BY MS. GALLES:

13

Q. As you sit here today, are you aware of any school

14

that has ever gone to OCR to -- and received an OCR

15

determination that their cheerleading program is a sport?

16

A. No.

17

Q. Okay. As you sit here today, are you aware of any

18

college that has, or it says here that your institution

19

has a letter from the Office of Civil Rights confirming

20

that OCR has determined that dancing and/or cheerleading

21

are varsity sports at your institution; are you aware of

22

any colleges that have received such a letter from the

23

OCR?

24

A. No.

25

Q. Do you know whether the NCAA sanctions cheer as a

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 142 of 146 142

1

sport?

2

A. It does not.

3

MR. BRILL: Objection, Your Honor. How could

4

she know that? There's no foundation for this witness to

5

testify what the NCAA thinks about this.

6

THE COURT: That was the question. I'll allow

7

it.

8

BY MS. GALLES:

9

Q. Whether they sanction a championship in cheer?

10

A. They do not.

11

Q. Do you know whether the NCAA has -- do you know what

12

an emerging sport is at the NCAA?

13

A. I do.

14

Q. And what is an emerging sport?

15

A. An emerging sport are those NCAA non championship, or

16

sports related that is not sponsored championships which

17

it has identified as being prospective NCAA sports. NCAA

18

has a minimum number of institutions that are required

19

before championship could be established. And in an

20

effort to remedy historical discrimination, has lowered

21

this number for a classification of sport called emerging

22

sports in an effort to help those sports get what they

23

need to be comparable to men. So it has a classification

24

of such sports that is administered by the committee on

25

women's athletics.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 143 of 146 143

1

Q. Okay. Do you know whether the NCAA classifies any

2

form of cheerleading as an emerging sport?

3

A. It does not.

4

Q. Okay.

5

MS. GALLES: Your Honor, could I just take a

6

moment to make sure I've covered everything and to confer

7

briefly with counsel?

8

THE COURT: Sure.

9

(Pause)

10

BY MS. GALLES:

11

Q. Now, on the emerging -- you mentioned that it

12

requires a minimum number of schools in order to be

13

designated a championship sport or an emerging sport; do

14

you know why there is a minimum number of school

15

requirement for that?

16

A. I would opine just logically that before the NCAA's

17

going to spend significant resources to sponsor a national

18

championship, it pays expenses of everyone to go to

19

national championships, that it has to be assured that a

20

minimum number of institutions are participating in this

21

sport.

22

Q. Now, in your report you state that your opinion

23

that -- let's see. All right, I'd like to go to the last

24

paragraph in part five, A five where you talk about

25

cheerleading.

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 144 of 146 144

1

MR. BRILL: Could you show me what --

2

MS. GALLES: Sure.

3

(Pause)

4

BY THE WITNESS:

5

A. The NCAA has long notified? That one?

6

Q. Yes. Okay. You go onto say that given this

7

longstanding direction from OCR and the NCAA, I do not

8

believe that any school can count cheerleaders as athletes

9

for purposes of Title IX whether the school classifies

10

these cheerleaderies as sideline cheerleaders or

11

competitive cheerleaders. Is this an accurate statement

12

of your opinion?

13

MR. BRILL: Your Honor, I have an objection.

14

Not to whether it's accurate or not but whether it's

15

admissible. I mean the witness has identified the only

16

OCR positions that exist on this and this goes to the

17

issue I raised earlier. She's identified the OCR

18

standards, she's testified that she's not aware of any OCR

19

letter that approves this, but she's not competent to give

20

an opinion as to, you know, what the OCR would do here.

21

It's just -- beyond her, beyond her expertise and beyond

22

her ability for her to testify to say what OCR may or may

23

not do about this in the future.

24

MS. GALLES: I'm not asking her what OCR would

25

do. I'm asking about whether she as an expert in sport

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 145 of 146 145

1

and a expert in woman's sports, sociology of sports,

2

whether she would recognize cheerleading as a sport at

3

this time.

4

THE COURT: I'm going to allow it.

5

BY THE WITNESS:

6

A. The answer is no. It doesn't fulfill the majority of

7

criteria established by the OCR. And as paragraph, this

8

paragraph you're referring to, it's clear the NCAA does

9

not support it. In the 2008 letter which was issued by

10

OCR, it specified specifically that support of the

11

governing association was one of the criteria, and we also

12

know that without OCR approval, that you can't count it.

13

So that is the basis for my opinion that it should not be

14

counted. It simply hasn't evolved enough right now to be

15

considered a sport.

16

Q. But are you open to that at some point in the future

17

it might evolve into something that could be considered a

18

sport?

19

A. Absolutely.

20

Q. But as it exists today, what is your opinion?

21

A. It is not a sport. It's not even close.

22

MS. GALLES: I believe that's it for direct

23

exam, Your Honor.

24

THE COURT: Okay, why don't with break for

25

lunch. Normally I would take an hour for lunch. Is

Case 3:09-cv-00621-SRU Document 172 Filed 07/21/10 Page 146 of 146 146

1

everybody willing to try and squeeze that a little bit?

2

MS. GALLES: I'm sorry, I didn't hear.

3

THE COURT: How long do you need for lunch?

4

MR. BRILL: Forty-five minutes, Your Honor?

5

MR. ORLEANS: That's fine with us, Your Honor.

6

THE COURT: Let's shoot to come back at 1:30 or

7

just after. Have a nice lunch.

8

(Whereupon the luncheon recess was taken at 12:50

9

o'clock, p. m.)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

 
 Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 1 of 161 147

1

A F T E R N O O N

S E S S I O N.

2

(1:30 o'clock p. m.)

3

THE COURT: Cross?

4

MR. BRILL: Thank you, Your Honor. Good

5

afternoon.

6

CROSS EXAMINATION

7

BY MR. BRILL:

8

Q. Dr. Lopiano, your position in this case both at the

9

preliminary injunction hearing and today, is that

10

competitive cheer or cheerleading, as you refer to it, is

11

not a sport, is that correct?

12

A. Correct.

13

Q. And your position at the preliminary injunction

14

hearing and today is that cross country, indoor track and

15

field and outdoor track and field should not be counted as

16

separate sports, is that correct?

17

A. Correct.

18

Q. Did you read the judge's decision on the preliminary

19

injunction motion?

20

A. I did not.

21

Q. Are you aware that the judge found as a preliminary

22

matter that he rejected your position on both those issues

23

finding it likely that Quinnipiac would prevail on both

24

the competitive cheer and the track and field issues?

25

A. I did not read the judgment so I do not know that.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 2 of 161 148

1

Q. No attorney advised you of that?

2

A. I, I was just asked to do what I just did and, no, I

3

didn't.

4

Q. So for the year that you've been serving as expert in

5

this case you never bothered to read the preliminary

6

injunction decision?

7

A. I said I did not read the decision.

8

Q. Okay. Well, in Exhibit --

9

THE WITNESS: No offense, Judge.

10

THE COURT: None taken.

11

BY MR. BRILL:

12

Q. In Exhibit M to your original report, you analyzed

13

Quinnipiac's participation numbers for 2009, 2010 in no

14

less than 11 different ways as I counted, does that sound

15

right to you?

16

A. Exhibit L?

17

Q. The original report?

18

A. L.

19

MS. GALLES: Object, and it's been withdrawn.

20

MR. BRILL: I'm asking about her original

21

analysis.

22

THE COURT: Okay.

23

MR. BRILL: She analyzed it eleven different

24

ways originally.

25

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 3 of 161 149

1

BY MR. BRILL:

2

Q. You analyzed it seven different ways in the revised

3

Exhibit M that you give me on Friday, correct?

4

A. Okay, go slow. The first question is what?

5

Q. I withdraw that question.

6

Dr. Lopiano, in all of the assessments that you've

7

done of Quinnipiac's roster numbers, in all of your

8

reports and supplemental reports and amended reports, did

9

you ever analyze those numbers the one way the judge said

10

was likely correct, that is, to include competitive cheer

11

and triple count, as you put it, the track and field and

12

cross country athletes?

13

A. I asked to follow, my understanding, my expert

14

understanding, was of NCAA rules and I don't --

15

MR. BRILL: No. Your Honor, would you instruct

16

the witness to please answer my questions on cross yes or

17

no?

18

THE COURT: Well, if you want her to answer yes

19

or no, you need to ask her in your question, yes or no.

20

BY MR. BRILL:

21

Q. Dr. Lopiano, yes or no, in your evaluations did you

22

ever assess, in the reports that you issued did you ever

23

provide an assessment of Quinnipiac's participation

24

numbers for 2009, 2010, including the competitive cheer

25

athletes and counting cross country, indoor track and

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 4 of 161 150

1

field and outdoor track and field as separate sports? Yes

2

or no.

3

A. Yes. In my testimony in conjunction with the report.

4

Because in my conclusion for the supplemental report, I

5

did tell you what would happen if you put cheerleading

6

together with all three counted separately. So in an

7

effort to be responsive to your question the answer is

8

yes. Concerning --

9

Q. But not in any of your reports, is that correct,

10

Dr. Lopiano? Yes or no. There's no chart in any of your

11

reports that looks at the numbers that way, putting aside

12

your testimony this morning.

13

A. Yes, the conclusion of my supplemental report, that's

14

says exactly that.

15

Q. Did you actually calculate what the percentage of

16

participation numbers for men and women would be on your

17

assumptions if you included competitive cheer athletes as

18

well as triple counting track and cross country athletes?

19

A. Did I -- say this once more?

20

Q. Did you make a calculation, taking the numbers that

21

you gave us this morning in your supplemental report, and

22

comparing the percentage of women participating in sport

23

at Quinnipiac to the percentage of women enrolled as

24

undergraduates, did you compare those numbers, including

25

competitive cheer athletes, as well as track and field and

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 5 of 161 151

1

cross country athletes counted separately?

2

A. No, I only did participation gaps.

3

Q. Well, I only got your supplemental report this

4

morning at six o'clock so forgive me if my math is wrong

5

but I want to see if I'm correct.

6

If you can look at that, if I turn it right side up.

7

You may want to refer to your supplemental report but am I

8

correct that, putting aside your count C which is a

9

counting for red flags, that you, without competitive

10

cheer you have 170 men and 248 women in count A?

11

A. Can you tell me where this is in the report just so I

12

can -- because this is in the supplemental report, right?

13

Q. Yes, in your supplemental report which we got today.

14

A. Okay.

15

Q. I want to make sure I'm understanding it correctly.

16

A. Surely.

17

Q. If you look at Exhibit 151?

18

A. Okay.

19

Q. Okay?

20

A. Okay.

21

Q. Column A, count A, you say 170 men?

22

A. Right.

23

Q. And count B you have with, including all runners,

24

triple count, as you put it, you have 248 women, right?

25

A. What page are you on?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 6 of 161 152

1

Q. Well, I'm looking at your chart, that's Exhibit --

2

A. Which page?

3

Q. -- 151 and at the bottom of the first page it says

4

170 in men in count A and 176 in count B?

5

A. Got it.

6

Q. The next page, for total women, triple counting

7

runners, you have 248 for count A and 251 for count B?

8

A. I don't see that in the second page.

9

THE COURT: It's the third page.

10

BY MR. BRILL:

11

Q. Third page?

12

A. Okay, I have it. Third page.

13

Q. Now, you agree there were 30 athletes in the

14

competitive cheer team, correct?

15

A. On the squad list, yes.

16

Q. On the squad list. So I did a little calculation of

17

when your numbers come out to if we add in competitive

18

cheer. And tell me if I'm wrong. If we add in the

19

competitive cheer athletes in count A, the percentage of

20

women is 62.1 percent versus 61 percent, 61.9 percent

21

enrollment which is 0.2 percent over representation of

22

women. Do you need a calculator? I happen to have one

23

here.

24

A. No, no, I understand your point at all and --

25

Q. No, the question is my math right?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 7 of 161 153

1

A. Is your math right?

2

Q. Yes. Do you agree with those calculations?

3

A. I agree that you are absolutely close on, on prong

4

one, if you kept volleyball, which that does. And you

5

counted cheer. And so we're on the same page.

6

Q. Okay, great. Now, Quinnipiac did have a volleyball

7

team during 2009, 2010, didn't it?

8

A. It did.

9

Q. So there's no justification for counting

10

proportionality or measuring proportionality without a

11

volleyball team for 2009, 2010, is there?

12

A. And I chose to do that.

13

Q. You chose to --

14

A. I gave all the options that I considered the court

15

might want to consider.

16

Q. How could Quinnipiac leave the volleyball team out of

17

its report to the government of the sports that it

18

sponsored for 2009, 2010? We had a volleyball team.

19

A. It was my understanding you didn't want to have a

20

volleyball team, which is, you know, why I included that

21

possibility. I thought that was the whole reason for the

22

lawsuit. Maybe I'm wrong. I apologize if I'm wrong but I

23

thought it was the dropping of the volleyball team which

24

led to this whole thing.

25

Q. But you understand that Quinnipiac did have a

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 8 of 161 154

1

volleyball team in 2009, 2010, right?

2

A. Absolutely.

3

Q. And you agree that if you include the volleyball team

4

and you include the competitive cheer athletes that under

5

your count A or count B, prong one is satisfied?

6

A. I have said that.

7

Q. Thank you.

8

A. If you triple count.

9

Q. Thank you.

10

A. Yes, sir.

11

Q. Now, would you agree that as a general rule, the EADA

12

information can be used to calculate whether an

13

institution meets the substantial proportionality

14

requirement prong one and, if not, how large the

15

participation gap is?

16

A. No.

17

Q. But isn't that what you say in your report?

18

A. I said that's all, that's all the information I had,

19

when I used the EADA. As soon as I was supplied with the

20

eligibility list and the squad list, that was what I used

21

and what I prefer to use.

22

Q. Do you have your report in front of you?

23

A. Which one?

24

Q. Your original report?

25

A. Yes, which was, which was amended with my

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 9 of 161 155

1

supplemental report when I got the squad list.

2

Q. I apologize for turning my back, Your Honor. I'm

3

looking for a document. Please turn to the fourth

4

unnumbered page of your report. You have that?

5

A. Yes. Well, let me make sure. Where are you on

6

this --

7

Q. The language I highlight, isn't that on your report

8

--

9

THE COURT: Okay, okay. We have to have some

10

rules here because the court reporter's trying to take

11

down what everybody is saying and she can only do that for

12

one person at a time. So, you need to not answer while

13

the question's being asked and you need to not talk while

14

the answer's being given. Thank you.

15

BY THE WITNESS:

16

A. Okay.

17

Q. Did you find the page of your report --

18

A. I found it and I see now, you have it on the screen

19

and I am reading your highlighting portion.

20

Q. And that's what you said in your report, correct?

21

A. That is correct.

22

Q. Thank you?

23

A. But I pointed out in my report --

24

Q. No, no, there's no question. There is no question

25

pending.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 10 of 161 156

1

THE COURT: You'll get a chance to explain when

2

your lawyer comes back up.

3

THE WITNESS: No problem.

4

BY MR. BRILL:

5

Q. Your lawyer will have a chance to ask you additional

6

questions on redirect, Dr. Lopiano.

7

A. I understand.

8

Q. So your only function now is to answer my questions

9

to the best of your ability.

10

A. I apologize.

11

Q. Thank you. And the dated numbers are based on the

12

squad list as of the first date of competition, correct?

13

A. Correct.

14

Q. And the OCR --

15

A. They are supposed to be.

16

Q. The OCR guidance similarly states, does it not, that

17

as a general rule, all the athletes who are listed on a

18

team squad or eligibility list and/or on the team as of

19

first competitive event are counted as participants by

20

OCR?

21

A. For EADA, yes.

22

Q. Well, for OCR purposes, correct?

23

A. Okay, say the question again.

24

Q. Let me show you, this is an excerpt from the OCR

25

guidance, which I believe has been marked as Exhibit

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 11 of 161 157

1

Seven, and is it correct that the OCR says as a general

2

rule all athletes who are listed on the team squad or

3

eligibility list and are on team as of the first date,

4

first competitive event, are counted as participants by

5

the OCR?

6

A. Yes. May I make a clarification? Were you asking me

7

about the EADA report or did you skip the EADA report?

8

Q. I asked you about the EADA report first and now I'm

9

asking you about the OCR instructions.

10

A. Okay, I did not understand the separation. So now

11

we're off the EADA report and we're talking about what OCR

12

says?

13

Q. Correct.

14

A. Okay, that's fine.

15

Q. And this is what OCR says, correct?

16

A. That is partially what it says, yes.

17

Q. Thank you. Did you calculate the number of athletes

18

on Quinnipiac's teams as of the first date of competition

19

for each sport?

20

A. I did.

21

Q. And where does that appear on your report?

22

A. Reads number four.

23

Q. No, I didn't ask you to about reason for. I said is

24

there a chart that you have this shows your calculation of

25

the number of athletes on each team as of the first date

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 12 of 161 158

1

of competition for that sport?

2

A. I was never provided with a squad list that indicated

3

that.

4

Q. So your answer is you didn't, you didn't calculate

5

that?

6

A. I did not, I wasn't provided with that information --

7

no, no I take it back, I take it back. Can I see the --

8

can I see the one -- could I see the one page Quinnipiac

9

document with start and end teams and it's my

10

understanding that that indicates the total number of

11

athletes on the squad list, and that does not represent

12

the number of athletes on the squad list on the first day

13

of competition. It was the number of athletes on the

14

squad list who may or may not have been on there on the

15

first day of competition. That was my understanding and

16

the reason I could not give you that number. So if I am

17

incorrect I will stand corrected.

18

Q. But so you're saying that you didn't have enough

19

information to calculate the number of athletes on the

20

squad list on the first date of competition?

21

A. I was not provided with, I do not believe that the

22

squad list represented that.

23

Q. But isn't that your very reason for, don't you say in

24

general I count all the athletes who are on the squad list

25

and practicing on the first date of competition of the

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 13 of 161 159

1

traditional season?

2

A. So, all right, so reason for and is reason one

3

through four became administrative so the clearest count,

4

no matter what, was if you used -- okay, look. When you

5

look at the supplemental report, and you're looking at all

6

of the things that are considered, it says as a general

7

rule all athletes are listed on team squad list or

8

eligibility list. It's "or." So I could have chosen

9

eligibility first or I could have chosen squad list first.

10

Since the squad list is not everybody on the first date of

11

competition but eligibility is for sure you use your

12

eligibility, I chose to use eligibility first and then to

13

see if anybody should be added as a result of first date

14

of competition when I could determine that they did not

15

use for eligibility and I was forced into that position to

16

calculate it because I was never provided with just first

17

date of competition.

18

Q. What information did you lack that you say you would

19

need to calculate the squad list as of the first date of

20

competition? Just describe as succinctly as you can what

21

you say you didn't have.

22

A. That every -- the 33 members on the squad list were

23

not, were not all on there on the first day of

24

competition; some were added after the first day of

25

competition. They didn't appear on the squad list.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 14 of 161 160

1

Q. No, what information, if you now were to sit down

2

with the information that you had and attempt to calculate

3

the numbers of athletes on Quinnipiac's teams as of the

4

first date of competition, what information would you need

5

that you don't already have?

6

A. I'd have to look at it. You want me to take time to

7

look at it --

8

Q. In the year you served as expert did you ever ask,

9

did you ever say to your lawyers or to Quinnipiac, to ask

10

Quinnipiac for additional information so that you could

11

calculate the first day of competition squad list numbers?

12

A. Yes, I absolutely did. And I got the squad list in

13

May and said they were not clear. And they went back to,

14

it was my understanding that they went back to the

15

compliance officer earlier this week and asked all the

16

questions I asked of them. And then came back to, they

17

came back to me and it was when all the questions on

18

status were cleared up that I made this assessment.

19

Q. So your explanation -- but do you agree that the

20

information that both OCR and EADA at least presumptively

21

say is most significant is the first day of competition

22

squad list numbers?

23

A. No, because it says or it could be the eligibility

24

list. So as a general rule it could be the eligibility

25

list which is seasons. You use a season of competition or

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 15 of 161 161

1

first day of competition so I think I could go either way,

2

as long as I eventually combine them, starting with which

3

one. You would rather me started with the first day of

4

competition and I did not. You were right, I did not

5

start with the first day of competition. I explained

6

why.

7

Q. Now did you look at the numbers that Quinnipiac

8

supplied for the first day of competition?

9

A. Let me check the squad list. I just want to make

10

sure.

11

Q. I'm talking about the charts that we gave to your

12

attorneys that summarized the first day of competition

13

squad list in every sport?

14

A. Could you show me this chart?

15

Q. Sure, I'll show it to you a little later in my cross

16

examination.

17

A. Okay.

18

Q. Rosters of teams can change for a variety of reasons

19

after the first competitive event, isn't that true?

20

A. Yes.

21

Q. In fact, as you said, it's a living document

22

throughout the course of the season. Athletes could be

23

injured, correct?

24

A. Correct.

25

Q. They could be become ineligible for academic or other

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 16 of 161 162

1

reasons, right?

2

A. Correct

3

Q. Or they simply may decide to leave the team for

4

personal reasons?

5

A. Correct.

6

Q. And other athletes may legitimately be added to a

7

team during a season, correct, for such reasons as

8

clearing NCAA eligibility; would that be a reason to add

9

an athlete?

10

A. Absolutely.

11

Q. Transferring from another school, correct?

12

A. Absolutely.

13

Q. Or replacing an athlete who's injured in a key

14

position on a team, correct?

15

A. Absolutely.

16

Q. Like a goalie on a hockey team; if you lose a goalie

17

you need to get another goalie on the team, correct?

18

Would you agree with that?

19

A. Yes.

20

Q. This normal fluctuation in roster size would not

21

affect the determination of whether a school meets

22

substantial proportionality under prong one, would it?

23

A. If it were normal fluctuation, it would not.

24

Q. Thank you.

25

A. We'd have to look at it over time.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 17 of 161 163

1

Q. And the EADA contains no requirement that if the

2

number of participants on a team changes during a season

3

that the institution has to either modify its report to

4

reflect the change or otherwise file any notice with the

5

government, does it?

6

A. What report?

7

Q. The EADA report.

8

A. Okay, so -- ask that question again.

9

Q. The dated report is filed on October 15 of each year,

10

correct?

11

A. Correct.

12

Q. And that report contains the squad numbers as of the

13

first date of competition for each sport, right?

14

A. Correct, right.

15

Q. And if those numbers change during the course of the

16

season, there's no requirement that the school modify or

17

amend its EADA report?

18

A. That is correct, but EADA report is not Title IX

19

compliance assessment.

20

Q. Thank you. I'm going to try and specify when I need

21

a yes or no answer.

22

Now, you saw nothing in your review of information

23

regarding Quinnipiac rosters indicating the number of

24

participants on any team change for illegitimate reasons,

25

did you?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 18 of 161 164

1

A. Say it again.

2

Q. Did you see anything in, or review information

3

regarding Quinnipiac rosters indicating that the number of

4

participants on any team was changed during the season for

5

illegitimate reasons?

6

THE COURT: Talking about this past season?

7

MR. BRILL: During 2009, 2010.

8

A. I saw no definitive number from Quinnipiac about what

9

they counted for each team. I don't know what this number

10

was. All I saw was -- this is why I'm asking for this

11

chart. All I saw was the, here's the squad list on the

12

start --

13

THE WITNESS: I feel like I'm at a disadvantage,

14

Your Honor, not having the document I referred to in front

15

of me, that I'm trying to recall.

16

BY MR. BRILL:

17

Q. What document is it, Dr. Lopiano? You refer to your

18

own chart in Exhibit 151 --

19

A. No, I need to refer to the Quinnipiac chart I'm

20

talking about.

21

Q. Well, I'm withdrawing that question. I'm asking you

22

to refer to Exhibit 151.

23

A. Okay.

24

Q. You have your own chart that says Quinnipiac numbers,

25

correct? Start and end numbers for each team.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 19 of 161 165

1

A. Okay, if I might --

2

(Pause)

3

All right, so --

4

Q. So you have --

5

A. This is the chart I'm looking for. I would like to

6

see the chart from which I derived these numbers.

7

Q. What is that chart?

8

A. Okay, now -- I can see it in my mind. And -- let me

9

look, see if it's in here.

10

MR. BRILL: What exhibit is it?

11

BY MR. BRILL:

12

Q. Exhibit B M in your exhibit book, Dr. Lopiano.

13

A. B, I do not --

14

Q. Exhibit B as in boy, M as in mother.

15

THE COURT: I don't think the witness has

16

defendant's exhibits.

17

THE WITNESS: I do not.

18

MR. BRILL: Is there a convenient place to put

19

those?

20

MS. GALLES: Your Honor, just like to make the

21

objection for the record now that we did object to this

22

based, to this exhibit because we didn't know the basis

23

for it or where the numbers came from. So if he's going

24

to examine her about it we would object to the

25

admissibility of it on foundation and -- primarily on

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 20 of 161 166

1

foundation.

2

THE COURT: So you're objecting now?

3

MS. GALLES: I'm objecting to -- yes, I'm

4

objecting to his asking the witness about it because

5

there's no foundation for the document as to where those

6

numbers came from.

7

THE WITNESS: I do not have B M.

8

THE COURT: Well, I'm not going to admit it at

9

this time. I don't believe it was being offered at this

10

time.

11

MR. BRILL: Only that the witness asked to see

12

it.

13

THE WITNESS: I do not have E M in these

14

exhibits.

15

MR. BRILL: Excuse me?

16

THE COURT: No, B as in boy.

17

MR. BRILL: B as in boy.

18

THE COURT: It's in volume one.

19

THE WITNESS: Okay I have it.

20

BY MR. BRILL:

21

Q. Does that help you answer my question now?

22

A. Would you repeat your question again please?

23

Q. I think my question was whether in your review of the

24

information regarding Quinnipiac's rosters you found any

25

indication that the number of participants on any team

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1

changed for illegitimate reasons during the course of the

2

year?

3

A. Okay, say that again. I didn't think that was a

4

question. I'm sorry. Say it again.

5

Q. Maybe that wasn't the pending question. I might have

6

gone back one question too far.

7

THE COURT: Well, you were questioning about her

8

chart showing Quinnipiac's own numbers.

9

MR. BRILL: Right, right, right.

10

BY MR. BRILL:

11

Q. And my question was where you derive those numbers

12

from.

13

A. When I looked at this chart, B M, right, and looked

14

at 31, I could not tell in looking at the squad list where

15

the 31 came from. All I saw was 34. And there is no

16

first date of competition on that chart. So I chose then

17

to start with the eligibility list for that reason,

18

because I felt it was the more, it had more definitely

19

countable numbers and would be a more defensible

20

foundation for my count.

21

Q. Well, let me --

22

A. That's the only explanation I can give you.

23

Q. Thank you. I'm going to move on, Dr. Lopiano.

24

Did you find any men's sport in your review of all

25

the information that you had where you found athletes who

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1

were cut immediately before the first day of competition

2

and that added back to the squad shortly thereafter?

3

A. I'll have to look. All right, so I'm looking for

4

male athletes who were --

5

Q. Cut before the first day of competition and then

6

added back to the squad shortly thereafter.

7

A. Or who were not put on until after the first date of

8

competition; they don't have to be cut, right?

9

Q. No, my question was men's sport where athletes were

10

cut before the first day of competition and then added to

11

the squad shortly thereafter.

12

A. I will look.

13

(Pause)

14

All right, so you're saying cut prior to, added

15

after. I would never -- even without looking at this --

16

cut prior to, added after, doesn't make sense. I wouldn't

17

think that there's one of those in here, because if they

18

were cut prior to, you just wouldn't put them on until

19

after.

20

Q. Did you find any indication of male athletes who were

21

just added to teams right after the first date of

22

competition in a sport?

23

A. Okay, that I would look for.

24

Q. If you found such information, Dr. Lopiano, would it

25

not be reflected in your supplemental report that I gave

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 23 of 161 169

1

you this morning?

2

A. What I can't tell is in looking at this chart what

3

the date of first competition was so I was just going to

4

look at the chart you just mentioned --

5

Q. Thank you.

6

A. -- for that. And that doesn't tell me the date

7

either. I think the answer is I would have to go back and

8

look at the first date of competition in Exhibit B and

9

compare it to my add notes in Exhibit A. The 150, I would

10

have to look at my notes on the actual date of first

11

competition in B then go back and compare it to my other

12

notes in 150 in order to answer your question.

13

Q. How much --

14

A. And --

15

Q. I'm sorry, how much time did you spend preparing the

16

supplemental report that we received this morning?

17

A. (whistle) I'd have to look at my hourly notes but

18

I've been working on it since Wednesday. So I would guess

19

ten, 15 hours?

20

Q. And would it not have been significant to you to

21

include in your supplemental report if you found a

22

situation where a team had unaccountly added athletes

23

right after the first day of competition, men athletes to

24

a team and then kept them on the team for the entire

25

season?

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1

A. I would think I would have picked it on a red flag

2

but since I had a reason that -- let me give you an

3

example. Since I inserted a reason five which was that I

4

would count you if you were there on the first date of

5

competition for your second, for the nontraditional

6

season, then I did pick up athletes that I added in, and

7

for instance, the -- if you look at, if you look at the, I

8

think it's cross country. Let me see.

9

Okay, if you look at the three on cross country --

10

Q. I'm sorry, men or women?

11

A. The men's cross country. We're talking about men,

12

right? So here are three cross country runners who ran,

13

were added after the first date of competition in

14

traditional season, right? Who were picked up under

15

reason five because I added them because they were on the

16

squad list first day of competition for the nontraditional

17

season. So, so -- since I picked them up I noted them in

18

the red flag. But because they were counted, I did not

19

think it required a change in them. I thought they were

20

properly counted by reason five.

21

Q. Now, Dr. Lopiano, my question was whether you found

22

something I would say suspicious about a situation where

23

Quinnipiac seemed to be leaving men off the first day of

24

competition roster and then adding them in right after

25

that. Now, the example you've given us has to do with the

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 25 of 161 171

1

men's cross country team, the first day of competition for

2

which was the beginning of September, right?

3

A. For the traditional season.

4

Q. For the whole, for the first day of competition for

5

the year. The date for the EADA report was the beginning

6

of September, correct?

7

A. For the traditional season, correct.

8

Q. Yes, and that season ended at the end of the fall

9

semester, correct?

10

A. No, they continued to practice into the

11

nontraditional --

12

Q. The competitive season, the championship season ended

13

on November, the end of November for cross country, right?

14

A. That is correct, and the nontraditional season was in

15

spring.

16

Q. I didn't ask you about the nontraditional season,

17

okay? These three runners were added to the team in

18

February, correct?

19

A. Correct.

20

Q. So this is not an example of people that were added

21

to the team right after the first day of competition, is

22

it?

23

A. It is, if you count -- it is, it absolutely is, and

24

that's why it's red flag. Because you can, if you count

25

them, you've got 16. You don't you have 13, right? So --

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 26 of 161 172

1

Q. Dr. Lopiano, I'm sorry, maybe we're miscommunicating.

2

These runners were added --

3

A. You were --

4

Q. Excuse me, these runners were added to the team six

5

months after the first day of competition for that team,

6

correct? Yes or no.

7

A. Yes.

8

Q. Okay. So they were not added to the team right after

9

the first day of competition, were they?

10

A. In the, in the nontraditional season they were not

11

added right after the first day of competition, they were

12

on the squad list for the first, the squad list at the

13

beginning of the nontraditional season. And let me

14

explain why this could have been nefarious, as you would

15

suggesting. There is an email from the coach saying that

16

because my squad is limited to this number, right? And

17

because my seniors finished their nontraditional season,

18

I'll get rid of those guys and now I'm going to add these

19

guys to take their participation places. And the question

20

is whether or not they should be counted. And I would, I

21

am suspecting that QU would say no, and I would say yes,

22

reason five. That that is exactly what happened. Let me

23

see if I can check that.

24

Q. Dr. Lopiano, nobody is debating with you at the

25

moment whether they qualified under some definition of

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 27 of 161 173

1

participant. My question was whether you found evidence

2

that Quinnipiac was manipulating the squad size numbers as

3

of the first date of competition which was in September.

4

So I gather your answer is no, there was no -- the entire

5

cross country championship season finished without these

6

three runners on the team, correct?

7

A. Without the three runners that started in the

8

nontraditional season.

9

Q. Correct? And you know that Coach Martin gave a

10

deposition in this case, is that correct?

11

A. Yes.

12

Q. And you did read her deposition, did you not?

13

A. Yes.

14

Q. And did you see her explain why these three athletes

15

were added in the spring?

16

A. Yes, and I read an email to that effect.

17

Q. Okay. So there's no red flag about the fact that

18

these three men were added to the team in the spring to

19

start practicing for the fall in your view, is there?

20

A. I didn't see, I didn't make an adjustment because of

21

it.

22

Q. Is there any --

23

A. I'm not trying --

24

Q. I'm sorry, I don't want to waste -- we have precious

25

time. Is there any other team that you can point to where

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 28 of 161 174

1

you believe the evidence showed that Quinnipiac added men

2

to a team right after the first date of competition with

3

the intent of misstating the number of players on the

4

roster?

5

A. In that specific example of first, of first day of

6

the traditional sport season squad list, let me just

7

check.

8

Q. Well, just to be clear, the first day of competition

9

can be either a nontraditional season or a traditional

10

season, right?

11

A. Yes.

12

Q. Depending on whether it's a fall sport or a spring

13

sport?

14

A. Yes, and --

15

Q. But the EADA report is based on the first day of

16

competition, whether it's traditional season or

17

nontraditional seasonal, correct?

18

A. Yes, and I did not consider the EADA report for 2009,

19

'10, I did not.

20

Q. It hasn't been filed yet, has it?

21

A. But I'm not -- I'm counting -- I don't know why

22

you're bringing up EADA for 2009, '10. I did not -- my

23

whole testimony is here. I did not consider EADA for '09,

24

'10. I considered the best possible information that was

25

available which is squad list and eligibility lists. So I

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 29 of 161 175

1

don't know why you're bringing up EADA.

2

Q. Because you have the number, don't you, Dr. Lopiano,

3

that Quinnipiac maintained in its official records,

4

whether it's on the summary chart or lots of other

5

documents that we supplied that showed the university's

6

count of athletes on the very first day of competition.

7

A. In the traditional season.

8

Q. Traditional or nontraditional, the first date of

9

competition.

10

A. I don't know that, because when I look at the B M,

11

right? It does not say the date. It does not say when it

12

was determined, and the squad list doesn't either. So I'm

13

sorry, I just couldn't milk that out of the data. I can

14

trust that first column in E M, I can trust it and say,

15

are they right? But no date was given to me. I couldn't

16

check it which is why I went to eligibility first.

17

Q. Well, whatever you went to first --

18

A. That's the best I could do.

19

Q. I'm sorry, the court has to make a determination here

20

as to whether Quinnipiac was engaged in manipulation of

21

the roster numbers, okay? Let's be very blunt about it.

22

And you're serving as an expert witness to give us your

23

analysis of the rosters. You've been serving as expert

24

for a year, correct?

25

A. Go ahead.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 30 of 161 176

1

Q. Excuse me. What can you point to to tell this court

2

that you found any indication with respect to the men's

3

rosters now, that any single team, the roster number that

4

Quinnipiac indicates in its documents, was manipulated or

5

less than you believe it should have been as of the

6

beginning of the season?

7

A. A specific policy which limited the men to a cap,

8

which was different from a standard applied to women and

9

the women had a minimum threshold that they had to have.

10

So that in and of itself was a discretionary policy that

11

depressed the size of the men's teams and inflated the

12

size of the women's teams and that's what I pointed to as

13

manipulative.

14

Q. Is that the best answer you can give to my question?

15

A. Yeah, I think.

16

Q. Now, women's teams, what evidence can you point to to

17

show the court that any women's and any women's team,

18

there were athletes who were included in the roster as of

19

the first day of competition by Quinnipiac but were cut

20

from or quit the team immediately thereafter?

21

A. Say it again.

22

Q. What evidence can you point to based on your analysis

23

of the roster information as to any women's team where

24

athletes were included on the roster by Quinnipiac as of

25

the first day of competition and then either cut or quit

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 31 of 161 177

1

the team immediately thereafter?

2

A. I believe I went over one example.

3

(Pause)

4

Women's field hockey, Mucci, who was cut after the

5

first date of competition and I recommended an adjustment

6

in that.

7

Q. What was the name of that --

8

A. M-U-C-C-I, Mucci?

9

Q. Did you know that Mucci was a foreign athlete from

10

Italy and the university was trying to get her

11

eligibility. She was able to practice with the team for

12

the first one and-a-half months but then ultimately was

13

ruled ineligible by the NCAA? Did you see that

14

information in the emails that you reviewed?

15

A. No, I only saw that she was cut on 10/15.

16

Q. So you don't know that she was cut because she was

17

declared ineligible by the NCAA?

18

A. Usually it was in EE status; it was not cut.

19

Q. If you assume what I was telling you was correct,

20

would that remove the red flag you have on Mucci?

21

A. Yes, it would.

22

Q. Okay. Anybody else where you feel there was some

23

improper indication that women were cut from or quit teams

24

right after the first day of competition?

25

A. Okay, ask -- the coach's -- okay. So in the case of

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 32 of 161 178

1

women's ice hockey, all right?

2

Q. Right.

3

A. There was an email from this coach wanting to cut

4

these kids and everyone of them as I say just not to

5

count. And he wasn't allowed to cut them until after they

6

had completed the -- he wasn't allowed to do it.

7

Q. That's that's what you think that email said?

8

A. Yes.

9

Q. Did you see the email or did somebody describe it to

10

you?

11

A. No, I have this email.

12

Q. Okay. Did you know that your attorneys asked to

13

speak to the women's ice hockey coach last week?

14

A. Yes.

15

Q. Do you know after they spoke to him, they decided

16

they would not call him as a witness in the case?

17

A. I do not know that.

18

Q. Did the attorneys tell you what the ice hockey coach

19

told them?

20

A. They said that he did not reiterate what he said in

21

his email, and that's why it's red flagged and that's why

22

I've tried to separate this column so that the court can

23

absolutely decide not to use it if it doesn't want to.

24

But I'm pointing out what I was concerned with.

25

Q. All right, but just to go back to my question --

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 33 of 161 179

1

A. Sure.

2

Q. Dr. Lopiano, let's start with Stacy Kmill on the

3

women's ice hockey team. The first day of competition for

4

the --

5

A. Wait, wait. What's her name?

6

Q. Stacy Kmill?

7

A. Are you on ice hockey? I'm at field hockey, I'm

8

sorry. Now I'm on ice hockey. Stacy Kmill.

9

Q. Do you see Stacy Kmill?

10

A. No, I don't see her. How do you spell it?

11

Q. K-M-I-L-L?

12

A. I don't see her.

13

THE COURT: She's just past halfway down the

14

women's ice hockey. It starts with a K, not a C.

15

A. Sorry, sorry. Okay, got it.

16

Q. Now the women's ice hockey team, the first day of

17

competition is at the end of September, right?

18

A. Correct.

19

Q. And Stacy Kmill was deleted from the team on April

20

fifth, right?

21

A. Correct.

22

Q. You know she had a full scholarship?

23

A. No.

24

Q. You saw, you had the list of scholarships, didn't

25

you?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 34 of 161 180

1

A. Well, are you asking me do I recall it? I --

2

Q. Well, when you analyzed those numbers would it make

3

any difference to your analysis, Dr. Lopiano, if I told

4

you that Stacy Kmill had a full scholarship; she was on

5

the team the entire championship season and competed in 34

6

games?

7

MS. GALLES: I would just say objection,

8

foundation.

9

MR. BRILL: I'm asking if that would make a

10

difference to her answer.

11

THE COURT: I'll allow it.

12

BY THE WITNESS:

13

A. That's a fair question so say it once more.

14

BY MR. BRILL:

15

Q. Would if make a difference to you --

16

A. I'm not trying to make it hard for you. You speak

17

quickly and I'm trying to make sure I understand your --

18

Q. I'll try and slow down. That's fair.

19

A. That's okay.

20

Q. Would it make a difference to you if you were aware

21

Ms. Kmill was on full scholarship?

22

A. Yes.

23

Q. She was on the team the entire time, the championship

24

ice hockey season?

25

A. Yes, it would.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 35 of 161 181

1

Q. And she competed in 34 games?

2

A. Yes.

3

Q. There's nothing suspicious about her --

4

A. I agree.

5

Q. Would it make a difference to you, let's look at

6

Brenda Poultry (ph) another one of your red flags, on ice

7

hockey?

8

A. Okay.

9

Q. Would it make a difference to you if you knew that

10

she was also on full scholarship? That she competed in 37

11

games? And she was on the team the entire championship

12

season?

13

A. Yes, it would.

14

Q. Nothing wrong with that, right?

15

A. That is correct.

16

Q. And would it make a difference to you if I told you

17

that both, that Jessica Puieg, P-U-I-E-G, who was deleted

18

from the team on April fifth actually competed and was on

19

the team the entire championship season?

20

A. Yes, in general I would -- yes, the answer is yes.

21

Q. And Christina -- I'm sorry. And Katharine Colucci

22

(ph) competed, was on the team and competed the entire

23

championship season?

24

A. Yes, I would make those adjustments.

25

Q. And, in fact, none of those people who were deleted

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 36 of 161 182

1

from the ice hockey team were deleted or cut at any time

2

close to the first day of competition, isn't that true?

3

The first day of competition being in September and they

4

were cut from the team in April?

5

A. That is true. Fenoia (ph) is not one of those people

6

who you mentioned in terms of who had participated, right?

7

Q. I left her out, and would it make a difference to you

8

if you knew that Christine Fenoia actually spent at least

9

the first part of the season practicing with the team even

10

though she did not compete?

11

A. It says here she spent the whole time.

12

Q. Excuse me?

13

A. It says here she spent the whole time and the reason

14

why I red flagged it was because the coach wanted to cut

15

her and they were forced to keep them on the team, and I

16

don't know what else to tell you. That the red flag notes

17

are my, you know, opinions in the third column which is

18

the most, which are the opinions you should most question.

19

And I fully admit two and what I try to do in column three

20

was because I was looking at Exhibit L and, you know,

21

concerned about this use of the policies, the use of --

22

you know, the numbers were getting really, whatever. I

23

just tried to raise these issues as red flags. So I'm

24

perfectly, you know, happy for the court to just weigh

25

that for exactly what it is. Your information and my

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 37 of 161 183

1

understandings. That's fine.

2

Q. When you started to find these red flags did you ask

3

the attorneys for the plaintiffs to see if you could

4

actually talk to the coaches in the last two weeks?

5

A. I just got all this stuff on Wednesday. And here was

6

the court date.

7

Q. You got what stuff on Wednesday?

8

A. I got the answers to all my questions, was able to do

9

my analysis on Wednesday because the meeting with the

10

compliance person to clear up all my questions wasn't

11

until Monday.

12

Q. So the answer is --

13

A. I was out of town, I could not even get to this until

14

Wednesday. And in preparing for court, I didn't -- I

15

thought there was nothing else we could do at that point.

16

Q. Would it help you at this point to talk to some of

17

the coaches to clarify some of the red flags that you

18

have? You know that Quinnipiac has offered from day one

19

to make any of the coaches available to the plaintiffs for

20

interviews or depositions; you're aware of that, right?

21

A. If the court would like me to do that, I'd be happy

22

to do that but how did I know what question to ask them?

23

I mean --

24

Q. I can't tell you that but --

25

A. I didn't have anything to go on until Wednesday and I

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 38 of 161 184

1

could have, should have but I didn't have anything to go

2

on until Wednesday and I was looking at giving you a very

3

light supplemental, so I mean I'm sorry if I didn't pull

4

out all the plugs or try to.

5

Q. You would agree this is a very important case?

6

A. Absolutely.

7

Q. Both to the plaintiffs and to the defendant, correct?

8

A. Absolutely.

9

Q. Any additional information you need to make sure that

10

your report is correct, you'd like to have that

11

information, wouldn't you?

12

A. If the court allows time for it, sure, but that

13

wasn't a possibility. I did the best I could and I am,

14

I'm going repeat this again. That because of my level of

15

confidence of C, I have completely separated that out,

16

completely been transparent with it and perfectly willing

17

to hear your criticism of it or correction of it. I make

18

no qualms about that.

19

Q. Okay. Dr. Lopiano, just to make sure we've covered

20

it, is there any other team that you can point to where

21

you believe there was evidence that you discovered of

22

women who were included on the opening day roster in

23

effect to pad the roster or inflate the roster and then

24

shortly thereafter either deleted from the team or cut

25

from the team?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 39 of 161 185

1

A. See, you're putting two pieces of the puzzle together

2

and they are independent variables and I'll answer them

3

separately. That it is a composite look at the data, so

4

you have to look at your, the QU numbers in the, in E M,

5

then you have to look at the average squad sizes to see

6

whether the policy itself created this inflation. It

7

wasn't necessarily the way I counted that creates

8

inflation, or whether you just count somebody after or

9

count somebody before. The inflation is created alone

10

with this differential policy about cap and floor. So

11

that alone is a problem if you see that you don't match up

12

to your numbers, your average squad size numbers for

13

conference or for national.

14

Q. Is that the best answer you can give to my question

15

at this time?

16

A. Yes, the best I can do.

17

Q. Now, Dr. Lopiano, there was nothing in the OCR

18

definition of a participant for determining prong one

19

compliance, there's nothing in that definition that

20

requires that an athlete actually needs to engage in

21

competition to be counted as a participant, correct?

22

A. Correct.

23

Q. In fact, OCR guidance specifically says that

24

participants include both walk ons and athletes who

25

practice but may not compete, correct?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 40 of 161 186

1

A. Correct.

2

Q. And OCR complains that even athletes who do not

3

compete receive numerous benefits and services of being on

4

the team?

5

A. And I so stated, correct.

6

Q. Including intangible benefits of being a member of a

7

team and participating in a whole variety of ways.

8

Correct?

9

A. Absolutely.

10

Q. And isn't that one of your principal focuses for many

11

years as an advocate for increasing women's athletic

12

opportunities that it's important to get the life lessons

13

of being on a team?

14

A. Absolutely, and those are the principal bases for my

15

reasons that I laid out for you and I considered at that

16

point.

17

Q. And now, there's nothing in the OCR in definition of

18

participant that requires an athlete to compete at a

19

particular level of performance, is there?

20

A. The Title IX requirement for giving the athlete the

21

same opportunities as men to participate at a particular

22

level is there. It is not in this count section. It's --

23

levels of competition is separate from the participation,

24

how you count. You have two requirements under prong one.

25

Q. Okay. But in order to be counted as a participant --

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 41 of 161 187

1

A. Right.

2

Q. Let's say in order to count a member of a track team

3

as a participant, do you have to run a certain time in the

4

400-meter dash or can you count the slowest runner as well

5

as the fastest runner?

6

A. No, it doesn't depend on performance, no. You have

7

performance in competition all the time.

8

Q. And similarly there's no such requirement in the

9

definition for participant for EADA purposes, correct?

10

There's no --

11

A. Okay, wait, wait. You're confusing me with your

12

question. So say --

13

Q. There's no requirement for -- the purposes of EADA

14

counting and reporting, there's no requirement that a team

15

member satisfy a certain level of performance?

16

A. No.

17

Q. And, in fact, it's quite common for teams to include

18

athletes who will never compete, correct?

19

A. Oh absolutely.

20

Q. For example, many men's football teams have well over

21

100 athletes, even though the NCAA limits division I

22

schools to 85 football scholarships, correct?

23

A. Yes.

24

Q. In fact, you yourself have referred to the 120th man

25

on a football team as the tackle dummy, right?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 42 of 161 188

1

A. I was just going to say that. You beat me to it.

2

Q. And that 120th man is probably never going to see the

3

playing field, is he?

4

A. That is right.

5

Q. But he receives coaching insurance, practice time and

6

all the other accouterments of being on the team, right?

7

A. Yes.

8

Q. And you would consider being a tackle dummy on the

9

football team as a legitimate varsity experience, wouldn't

10

you?

11

A. If he participated in the whole season, if he did all

12

those things, that is a legitimate experience.

13

Q. And in your report, and I believe in your testimony,

14

you've talked about reasonable squad sizes, correct?

15

A. Correct.

16

Q. And you suggested, actually in your report you state

17

that schools that fully fund a sport with large travel

18

budgets and large coaching squads may reasonably carry one

19

or two more athletes than schools that have limited

20

budgets and high coach to athlete ratios, do you remember

21

that statement from your report?

22

A. I don't but I would not disagree with that statement.

23

Q. But isn't it true that squad sizes of a given sport

24

often vary by more than one or two athletes at given

25

schools?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 43 of 161 189

1

A. Squad sizes do vary from school to school.

2

Q. And in fact --

3

A. And if you're saying do they, do they vary by more

4

than one to two, statistically I would say they probably

5

would, but all you'd look at is averages in terms of

6

trying to make some kind of a comparison.

7

Q. Well, let's take a look at the NCAA average. The

8

NCAA squad sizes that you attach as an exhibit to your

9

report, I believe this is Plaintiff's Exhibit 103?

10

A. What year is this?

11

Q. This is what you attached to your report. I believe

12

it's 2008, 2009, if you look at the top. And so just to

13

run down --

14

A. So this is, so this is --

15

Q. Can you see that from where you are?

16

THE COURT: It's Exhibit D to your original

17

report.

18

THE WITNESS: Thank you.

19

A. Okay, got it.

20

Q. Well, I just want to review with you that the squad

21

sizes for these women's teams range enormously; don't

22

they? For example, women's field hockey from 17 to 28.

23

Women's golf, from five to eleven. Women's lacrosse, from

24

15 to 30. Women's soccer from 21 to 30. Women's

25

softball, from 14 to 29. And so on. It's going town to

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 44 of 161 190

1

outdoor track which ranges from 17 to a high of 55.

2

A. Right. And your question is?

3

Q. So my question is you cannot tell just from the size

4

of a team whether it's providing genuine athletic

5

opportunities to all athletes on the team, can you?

6

A. No, as I said, you have to a look at the total

7

situation and when you have a policy and cap and floor and

8

then you have averages which are out of sync and that's

9

the only point I'm making, I think that's a valid thing to

10

look at.

11

Q. From now on, I'd like --

12

A. You can tell by my 151, by looking at those averages

13

and the two numbers, the court can make its assessment

14

whether or not there's inflation or too small.

15

Q. From this point on, Dr. Lopiano, I'd like you to

16

answer yes or no to the extent that you can.

17

A. On every question?

18

Q. Yes.

19

A. Okay.

20

Q. The NCAA average squad sizes are just averages,

21

correct?

22

A. Yes.

23

Q. You don't know the range of squad sizes that schools

24

have reported for any given sport to the NCAA, have you?

25

A. No.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 45 of 161 191

1

Q. Some deviation from the average one way or the other

2

would be expected, correct?

3

A. Yes.

4

Q. And not every school has the same squad size in every

5

sport, do they?

6

A. Try it without the negative.

7

Q. Schools have different size squads of the same sport,

8

correct?

9

A. Yes.

10

Q. Would you agree that as long as a school is providing

11

women on its teams with genuine participation

12

opportunities within the meaning of the OCR guidelines,

13

there is nothing wrong with a school providing greater

14

participation opportunities in a sport than the NCAA

15

average?

16

A. There's two considerations -- I would not agree with

17

that.

18

Q. You would not -- I've asked for those questions to be

19

answered yes or no.

20

THE COURT: That's fine.

21

A. Okay.

22

Q. Now, schools report squad sizes to the NCAA based on

23

the first date of competition, correct?

24

A. I do not know that.

25

Q. I'm showing you an excerpt from Exhibit GI which is

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 46 of 161 192

1

the current NCAA work sheet, in particular page 23.

2

A. G I?

3

Q. I guess, G I.

4

A. And this is, I have a Big Forest Open -- this is

5

not -- I have the times of the meet.

6

BY MR. BRILL:

7

Q. I'm sorry, it's G K. I apologize. You need any

8

assistance finding the exhibit?

9

A. What am I looking for within this document?

10

Q. It's on page 23.

11

A. Twenty-three?

12

Q. Yes.

13

A. Got it.

14

Q. Okay.

15

A. It says --

16

Q. Are you familiar with this?

17

A. Does it say table one, participation?

18

Q. Yes. Are you familiar with this NCAA work sheet?

19

A. I've seen them before.

20

Q. Well, just so the record is clear, the NCAA has its

21

own reporting requirement separate from EADA, correct?

22

A. Yeah, the NCAA requires you to complete these, all

23

NCAA work sheets from which the EADA is derived so you

24

don't have to do two separate ones.

25

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 47 of 161 193

1

Q. Well, actually you do have to do two separate ones

2

now, isn't that --

3

A. But this is your work sheet.

4

Q. And the NCAA report is filed January 15th of each

5

year, is that correct?

6

A. I --

7

Q. You don't know?

8

A. No.

9

Q. But you agree that the NCAA form defines

10

participation as a student athlete as of the date of the

11

varsity team's first scheduled contest, is either listed

12

as team member or practices with the varsity team and

13

receives coaching or receives athletically related aid,

14

but those factors are measured as of the first date of

15

competition, correct?

16

A. Yes.

17

Q. So would you agree with me that the average squad

18

sizes published by the NCAA are based on first day of

19

competition squad sizes?

20

A. Yes, that's exactly what it says here.

21

Q. So you didn't compare, your comparison of total

22

participation versus the average first day squad size is a

23

meaningless comparison, isn't it? It's apples to oranges?

24

A. I am trying to -- what I tried to do is say these are

25

actual real participants, right? And to compare that to

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 48 of 161 194

1

an average squad size.

2

Q. But some of those participants, as you said, joined

3

the teams during the season after the first day of

4

competition, right?

5

A. That is correct.

6

Q. And that would be the case on many other, many NCAA

7

teams, correct, across the United States?

8

A. So you are saying that there is a statistical error

9

inherent in using NEC or NCA squad list and comparing it

10

to a participant count.

11

Q. I'm saying that you're comparing two things that are

12

not comparable.

13

A. I think you are agreeing with what I just said,

14

right?

15

Q. I don't know if there's a question pending but do you

16

recognize --

17

A. I don't either. I'm just supposed to be saying yes

18

or no.

19

Q. Do you recognize a discrepancy between your count --

20

A. Yes, I understand your point completely. I

21

understand your point completely, yes.

22

Q. Thank you. And in your report, you say that a

23

recruited athlete with Division I skills does not want to

24

waste valuable NCAA limited practice time --

25

A. Where are you now?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 49 of 161 195

1

Q. On page eight of your report, I'm sorry.

2

A. Now my original report or my old one?

3

Q. Your original report.

4

A. All right.

5

(Pause)

6

Q. Pages aren't numbered, unfortunately.

7

A. I apologize for that.

8

Q. But --

9

A. This is the page that starts with the schools

10

carries?

11

Q. It's the last sentence of the first paragraph right

12

above where the heading says prong two on page eight --

13

A. Last sentence of the first paragraph?

14

Q. Right, you see, did you not, that recruited athlete

15

with division --

16

A. Wait, I'm not with you.

17

Q. May I approach the witness and point it out to her,

18

Your Honor?

19

A. Thank you.

20

THE COURT: You don't need to ask.

21

Q. (Indicating)

22

A recruited athlete with Division I skills. Do you

23

see that sentence?

24

A. Yes.

25

Q. Okay. Do you want to read that into the record?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 50 of 161 196

1

A. A recruited athlete with Division I skills does not

2

want to waste valuable NCAA -- a recruited student athlete

3

with Division I skills does not want to waste valuable

4

NCAA dash limited practice time training with students

5

with substantially less skill who will never compete.

6

Q. Is that assertion based on any research by you?

7

A. This is --

8

Q. Yes or no. Did you do any research before you made

9

that assertion?

10

A. Okay, you're confusing me, yes or no. Okay, so it

11

was not derived from research, only experience.

12

Q. Does it apply to the star quarterback on a football

13

team who was forced to share his practice time with the

14

tackle dummy?

15

A. It depends on the context.

16

Q. Isn't it true, Dr. Lopiano, that most Division I

17

teams and all sports have a range of athletes from stars

18

to the starters to the substitutes down to the bench

19

warmers; isn't that a common pattern?

20

A. It is but I hope you're looking at this, counselor,

21

this statement as the general introduction and not a

22

characterization of the specific fact situation, right?

23

You're not --

24

Q. Many teams -- are you finished with your answer?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 51 of 161 197

1

Q. Many teams have walk ons who will compete

2

infrequently, if ever, right? As well as scholarship

3

players, correct?

4

A. Yes.

5

Q. And OCR, as you testified earlier, recognizes the

6

significant benefits to those nonrecruited walk on

7

athletes who do not compete but otherwise fully

8

participate on a team, correct?

9

A. That is correct.

10

Q. And incidentally, you talked about how people are

11

recruited; do you know of any Quinnipiac University

12

athlete of any sport who is recruited from the dining hall

13

or the physical education classes?

14

A. I do not specifically by name, no.

15

Q. Now, your position as you stated is that indoor track

16

and field and outdoor track and field are always the same

17

sport, is that correct?

18

A. Correct.

19

Q. In fact, you testified at your deposition in this

20

case that indoor and outdoor track is always considered

21

the same sport, no ifs, no ands and no buts; do you

22

remember that testimony?

23

A. Correct.

24

Q. But you are aware that the NCAA treats indoor track

25

and field and outdoor track and field as separate sports,

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 52 of 161 198

1

aren't you?

2

A. Yes, for different purpose.

3

Q. Conducts separate championships in each sport?

4

A. Yes.

5

Q. Counts its sport separately for meeting minimum

6

number of sports sponsorships necessary to qualify as

7

Division I? It counts its sports separately for purposes

8

of meeting minimum number of sports sponsorships necessary

9

to qualify as a Division I, two or three school, isn't

10

that correct?

11

A. Yes, for those purposes.

12

Q. And, in fact, Dr. Lopiano, isn't it true that the

13

NCAA bylaws which you refer to --

14

A. I'm sorry, the NCAA --

15

Q. The NCAA bylaws, provide that cross country and

16

indoor track and field and outdoor track and field shall

17

be considered as separate sports?

18

A. NCAA, not Title IX.

19

Q. Is that what the NCAA bylaws provide, Section

20

14.2.3.3?

21

A. The NCAA; not talking Title IX.

22

Q. But that is what the NCAA bylaws provide, correct?

23

A. Yes.

24

Q. And you were aware of that, correct?

25

A. Yes absolutely, because it's for a different purpose.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 53 of 161 199

1

The counting, what the NCAA is trying to do is to --

2

Q. No no, I'm not asking you what the NCAA is trying to

3

do, Dr. Lopiano. I'm asking you very different specific

4

questions, okay?

5

A. Sorry.

6

Q. Now, the EADA also provides for separate reporting of

7

cross country indoor track and field and outdoor track and

8

field, correct?

9

A. Correct.

10

Q. Did you consider the fact that --

11

A. Uhm -- it allows -- I would like to look at the

12

EADA -- they have changed the EADA report to move from

13

separate reporting to combine the reporting and I would be

14

more comfortable looking at the EADA report currently to

15

remind myself, you know, how that's put.

16

Q. We'll come back to that. So, Dr. Lopiano, you don't

17

consider it even an if, an and or a but that the NCAA

18

considers track and field, indoor and outdoor, to be

19

separate sports?

20

A. Absolutely not. They are for separate purposes.

21

Q. Not even an if, and or but?

22

A. That's right.

23

Q. Now, in your report, I'm not sure if this was in your

24

testimony but it's in your report; you said this, that if

25

Quinnipiac does not enter athletes into most events, it's

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 54 of 161 200

1

not operating a track and field team, let alone a varsity

2

team; do you recall saying that?

3

A. This is in my report? Can you point it out to me?

4

Q. Is this your position as you sit here today, that if

5

Quinnipiac does not enter athletes into most events --

6

A. Could you tell me whether I said that in my report?

7

Q. Well unfortunately --

8

A. No.

9

Q. -- I deleted the references to your report from my

10

outline because I didn't think it was going to be in

11

evidence. I can find it later. But just listen to my

12

question and see if you agree with it as you sit here

13

today or not.

14

If Quinnipiac does not enter athletes into most

15

events at a track and field meet, is it operating a track

16

and field team, let alone a varsity team?

17

A. I could not agree with the statement you're saying

18

without it being in context. That, it's unfair of you to

19

pull that out of an analysis of QU's legitimacy and

20

whether it's really running a track program. That's one

21

little piece of the puzzle.

22

Q. I'm asking you that piece of the puzzle.

23

A. Because if you had all -- runners, distance runners,

24

and nobody was in a field event and nobody as in

25

traditional -- they were, nobody's is was in any of the

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 55 of 161 201

1

traditional other events, it could bring into question

2

whether or not you were really conducting your cross

3

country nontraditional season in your, through your indoor

4

and outdoor which the NCAA allows, and that was the

5

context in which I was trying to make those statements.

6

Q. Well, let me just ask you a yes or no question so

7

it's clear. Is it your position that if Quinnipiac does

8

not enter athletes into most events at a track and field

9

meet that it's not operating a legitimate track and field

10

team, yes or no?

11

A. I repeat that I cannot --

12

Q. Can you answer that yes or no?

13

A. I cannot answer yes or no because it is out of

14

context.

15

Q. Well okay, that's fine you can stop there,

16

Dr. Lopiano. Yes or no or I cannot answer yes or no is

17

fine.

18

A. I cannot answer yes or no.

19

Q. Didn't you, you gave testimony in the case of

20

Mansurian (ph) against University of California Davis. Do

21

you recall that case?

22

A. I recall having been an expert.

23

Q. And you recall giving deposition testimony in that

24

case?

25

A. It was sometime ago. You'll -- do I recall exactly

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 56 of 161 202

1

what I said? If you show me I will try to recall.

2

Q. Do you remember saying in Mansurian -- incidentally,

3

Mansurian involved a claim by three women varsity

4

wrestlers that they had been improperly denied the

5

opportunity to continue as varsity wrestlers, correct?

6

A. Correct.

7

Q. And didn't you testify in that case that a school

8

could have a viable competitive varsity track team or

9

wrestling team with one athlete?

10

A. Because of wrestling being able to compete one on one

11

according to weight class, yes.

12

Q. And you said a track team could have as little as one

13

athlete, correct?

14

A. To enter a meet.

15

Q. Could have a varsity track team with with one

16

athlete, correct, wasn't that your testimony?

17

A. Yes.

18

Q. But it's not possible for a single track and field

19

athlete to compete in the majority of events at a meet, is

20

it? Not even Bruce Jenner could do that?

21

A. How does that, how does that relate? I'm -- I'm

22

trying to get the context of your question.

23

Q. Is it possible for a single track and field athlete

24

to compete in the majority of the events at a track and

25

field meet? Yes or no.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 57 of 161 203

1

A. I'm not getting the connection.

2

Q. Well, maybe the judge gets it.

3

A. I'm one person, would I ever put that one person into

4

all track and field events; is this your question? As a

5

coach probably not.

6

Q. It's not physically possible?

7

A. But it's not a team. You're taking it out of

8

context. I'm talking about to be considered varsity team,

9

not whether one athlete can enter how many different

10

events.

11

Q. Well, as you surely know, do you not, the NCAA

12

requires a minimum of 14 athletes on an indoor or outdoor

13

track and field team, correct?

14

A. Right.

15

Q. The NCAA does not require that a school participate

16

in both track and field events, correct?

17

A. Say that again? Sorry.

18

Q. Yes or no, the NCAA does not require that a school

19

participate in both track and field events?

20

A. Correct.

21

Q. The NCAA does not require that a school participate

22

in any minimum number of events or any number combination

23

of events to sponsor an indoor or outdoor track and field

24

team, correct?

25

A. It does. No, it does.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 58 of 161 204

1

Q. What's that?

2

A. The NCAA does.

3

Q. I didn't hear the answer, I'm sorry?

4

A. The NCAA does.

5

THE COURT: The answer is no.

6

Q. Can a school sponsor a team, let's say a track team,

7

with fewer than 14 athletes for the purposes of Title IX

8

even if it didn't comply with the minimum participation

9

requirements of the NCAA?

10

A. Okay, say that again.

11

Q. Okay. Let's say I'm a small school, I only have ten

12

women that are coming out for track and field, so I want

13

to operate at a track and field team with ten women and

14

count them for OCR purposes even though it's not a, it's

15

not a NCAA compliant track team.

16

A. So they don't play in the minimum number of contests

17

with the NCAA?

18

Q. Right.

19

A. Whatever, it's just can I participate in this sport.

20

Q. And count --

21

A. And entering into all these events, yes.

22

Q. You can count it for OCR purposes, correct?

23

A. I think you have to look at the experience itself to

24

make sure it's legitimate. Like you're doing

25

hypotheticals right now and out of context and it's making

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 59 of 161 205

1

me nervous. Because if you only participated in one or

2

two events and it wasn't comparable and this whole

3

counting or legitimacy under Title IX, without looking at

4

the totality of the fact situation and saying I looked at

5

this, I looked at this, that's a little general --

6

Q. I'm sorry, I'll try to get specific if that's easier

7

for you, Dr. Lopiano. In your supplemental report that

8

you testified about this morning, you looked at one

9

possible way of counting Quinnipiac's track athletes as

10

only counting the 18 women who participated on the cross

11

country team, right?

12

A. That was one of the -- last one.

13

Q. The that was one of your options?

14

A. The last one, yes, I believe, yes. So you're talking

15

about on the conclusion page, you're talking about if they

16

only count cross country, the very last one with my

17

signature.

18

Q. Right, but you know from reading the deposition of

19

the track coach there were 12 other women who were not on

20

the cross country team who were on the indoor and outdoor

21

track and field team who participated, practiced and

22

actually ran events throughout the entire indoor track and

23

field season and the outdoor track and field season,

24

correct?

25

A. Are you --

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1

Q. I'm asking if there were 12 women who were in the, on

2

the cross country team but actually participated, ran

3

races consistently in the indoor track and field season,

4

the outdoor track and field season?

5

A. Yes.

6

Q. Well, can you explain any possible basis to exclude

7

those 12 women from your count? Why is that even an

8

option for the court, Dr. Lopiano?

9

A. Because it's my understanding that I was not the

10

expert on track, and that there, that these four options

11

would be considered by the court and I was asked to give

12

my numbers for each of these options so that's why I put

13

it there.

14

Q. Who gave you the options you were to address?

15

A. Legal counsel asked me for my opinion.

16

Q. So the same counsel who asked you to consider an

17

option not counting 12 athletes who actually competed

18

throughout two seasons, that's the same counsel that told

19

you to leave out or didn't mention to you that you should

20

look at competitive cheer?

21

A. Whoa, whoa. That's a very convoluted statement. So

22

say it again, just say it slowly.

23

Q. Is it the same counsel --

24

A. Same counsel.

25

Q. -- who advised you not to look at the impact of

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1

including competitive cheer on your calculations --

2

A. No, no, counsel did not advise me to do that. I say

3

competitive cheer is not a sport. Counsel did not advise

4

me that.

5

Q. That was your own decision?

6

A. That is right.

7

Q. But --

8

A. I didn't, I'm not passing judgment on these four, all

9

right? I'm saying these are all the possibilities I think

10

that are going to be raised were raised within the

11

preliminary injunction that I wanted to make sure you had

12

complete choices here. It was just a, you know, a way for

13

me to try to be comprehensive and not to dictate, you

14

know, by narrowing options.

15

Q. But what --

16

A. That's all.

17

Q. You expect your options to be reasonable ones,

18

wouldn't you?

19

A. Absolutely.

20

Q. Well, what possible explanation could there be not to

21

count, even if it's just once, not to count 12 women who

22

had varsity participation experience on both the indoor

23

track team and outdoor track team but weren't cross

24

country runners?

25

A. The explanation is simply that it's possible and I

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 62 of 161 208

1

don't know if a subsequent expert, right, is going to

2

characterize those athletes the way you just characterized

3

them.

4

Q. But you read in Coach Martin's testimony, right?

5

A. But you're trying to milk a stone here.

6

THE COURT: Let me interject here there's no

7

point in the two of you arguing with each other.

8

Counsel's point is there's 12 women who aren't included in

9

the report. I got that.

10

MR. BRILL: I'll move on, Your Honor.

11

THE COURT: Okay.

12

BY MR. BRILL:

13

Q. Do you know Dr. Athena Yiamouyiannis?

14

A. I do.

15

Q. And you coauthored some books with her or articles,

16

haven't you?

17

A. I do not know.

18

Q. Would you consider --

19

A. She's a colleague I served on, you know, numerous

20

committees with her and organizations. I don't remember

21

whether I coauthored anything with her.

22

Q. Would you consider her to be an expert on Title Nine

23

gender equity issues?

24

A. Yes, I think she's quite capable.

25

Q. Are you familiar with the book chapter authored by

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 63 of 161 209

1

her on gender equity sports sponsorship and participation?

2

A. Not offhand.

3

Q. Well, let me show you --

4

A. When was it published?

5

Q. In 2009.

6

MR. BRILL: I'm going to come back to that, Your

7

Honor. I'm trying to locate the chapter now.

8

BY MR. BRILL:

9

Q. Let me go onto another topic. That's roster

10

management. Would you agree, Dr. Lopiano, that roster

11

management can be a useful tool for institutions -- I'm

12

going to ask these questions yes or no, that's my first

13

few questions, if you could try. Would you agree that

14

roster management can be a useful tool for institutions to

15

satisfy prong one of the three part test?

16

A. Yes.

17

Q. Would you agree that roster management can properly

18

include both limits on the size of men's teams and

19

increasing the size of women's teams?

20

A. As long as the standard is equally applied and that

21

would be a desirable result. As long as the policy

22

standard were applied equally in terms of caps and

23

obviously women aren't to under represent, or over

24

represent, the intent of the cap policy would not be to

25

artificially depress either side but allow it to go to its

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 64 of 161 210

1

equal number.

2

Q. That was a long way of saying yes or no. I asked

3

that these questions be answered yes or no.

4

I have one more yes or no question for you. Would

5

you also agree or would you agree that roster management

6

is permissible as long as it does not hurt men's teams to

7

the point that they are not viable or so long as it does

8

not increase women's teams to the point that they do not

9

really have a viable varsity athletic experience, for

10

example, if the added women do not receive coaching, do

11

not compete, do not receive uniforms, et cetera?

12

A. Not according to the example, the extreme example.

13

Your beginning premise as a generality was pretty decent

14

but your example of completely and extreme position being

15

completely without coaching, that's not how it happens.

16

It happens that the, every athlete has a lower coach

17

instructional time when there are more athletes. It's not

18

a complete absence of teaching or the complete absence of

19

something.

20

MR. BRILL: Your Honor, I'm getting frustrated.

21

I would appreciate it if would you ask the witness when I

22

do ask for a yes or no answer if she confine herself to

23

yes or no. It's taking up my time on cross examination.

24

THE COURT: You should, if you can answer yes or

25

no or I can't answer yes or no.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 65 of 161 211

1

BY MR. BRILL:

2

Q. Dr. Yiamouyiannis (sic), the three sentences that you

3

did just read were taken verbatim from your expert report

4

in the Mansurian case, is that not true?

5

A. I don't know that.

6

Q. Let me show you excerpt from your report and see if

7

you recognize it. This was the cover that is the case in

8

which you submitted an expert report?

9

A. Yes, it is.

10

Q. And your discussion of roster management is on the

11

next page?

12

A. Could I see that little section?

13

Q. Yes, sure.

14

A. Could do I have to read from here? Okay.

15

Q. I think we have an extra copy.

16

A. I think I'm doing okay.

17

Q. I was given this by the plaintiff so I assume they

18

have a copy. It's Dr. Lopiano's expert report in the

19

Mansurian case. I don't want to offer the whole report, I

20

just want to call the witness' attention to the page that

21

I was referring to on roster management.

22

(Hands witness.)

23

A. Thank you.

24

Q. I just want you to read that and without going into

25

detail because we have the document, whether that report

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 66 of 161 212

1

that you gave in Mansurian accurately reflects your

2

position on roster management.

3

A. If you take the entire section in its totality it

4

does but I am hesitant to agree with, without reading the

5

whole thing, to agree with one statement out of context

6

and I think that's only fair.

7

Q. That is fair.

8

MR. BRILL: And, Your Honor, I'll offer that

9

section of the report as the next defendant's Exhibit.

10

MS. GALLES: No objection.

11

THE COURT: All right, that's fine.

12

THE CLERK: That's G L.

13

MR. BRILL: That's G L, thank you.

14

THE COURT: You'll prepare an excerpt that

15

includes just the portion that you're offering?

16

MR. BRILL: Excuse me?

17

THE COURT: Can you prepare a copy that has only

18

the portion that you are offering?

19

MR. BRILL: Yes, that's what I handed to the

20

clerk and we'll make a copy.

21

MS. GALLES: Your Honor, we would object to

22

taking a snippet out of the report, Dr. Lopiano said if

23

you take the whole thing in context. We do not object to

24

the entire report coming in but if he's only going to take

25

out a small part --

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 67 of 161 213

1

THE COURT: I think he offered a section.

2

MR. BRILL: The entire section on roster

3

management, Your Honor.

4

THE COURT: If you -- do you object to the

5

section on roster management being --

6

THE WITNESS: I haven't seen it.

7

MS. GALLES: No objection if the entire report

8

comes in. In terms of the section on roster management,

9

we'd like to reserve.

10

THE COURT: Take a look. He's offered it so

11

take a look, see if you object.

12

MS. GALLES: I actually don't have a copy.

13

MR. ORLEANS: Could we look at a copy?

14

MR. BRILL: And Dr. Yiamouyiannis --

15

MS. GALLES: Dr. Lopiano.

16

BY MR. BRILL:

17

Q. Dr. Lopiano, thank you. I've now located the article

18

by Dr. Yiamouyiannis which is contained as Defendant's

19

Exhibit G C, if you would take a look at that.

20

MS. GALLES: Your Honor, if the entire portion

21

regarding roster management is what is being offered we

22

have no objection. We just don't want a small snippet.

23

THE COURT: So G L is full.

24

(Whereupon Defendant's Exhibit G L was marked

25

full.)

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 68 of 161 214

1

THE COURT: And you'll prepare, can you prepare

2

a non-highlighted copy of that?

3

MR. BRILL: Yes, Your Honor, sure.

4

THE COURT: That would be great.

5

BY THE WITNESS:

6

A. I have the exhibit.

7

Q. Have you located G C?

8

A. G C, I have it.

9

Q. Are you familiar with this article, the book chapter?

10

A. I can't say that I have. I haven't read the whole

11

thing but I can't say that I have.

12

Q. Let me show you an excerpt from it and ask if you

13

agree with your fellow expert, Dr. Yiamouyiannis. In

14

discussing the issue of sports participants, there she

15

says she talks about the duplicated count, unduplicated

16

count?

17

A. Could you just give me the page? Where is this?

18

Right here? It's easy for me to read here, so -- is

19

this --

20

Q. It's on, the page number's at the top, it's page

21

48 --

22

A. Okay, hold it. Okay, this has to do with the Equity

23

in Athletic Disclosure Act?

24

Q. Correct.

25

A. Okay, and your question?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 69 of 161 215

1

Q. Why don't you take a moment to read that whole

2

paragraph on sports participants?

3

A. I'd like to read this whole section if I could.

4

Q. The whole section on sports participant you can read.

5

A. I'd like to read the whole section what it's talking

6

about.

7

(Pause)

8

All right, okay, and your question is?

9

Q. I want to know if you agree with her statement in the

10

paragraph on sports participants, actually the two

11

statements that I've highlighted, first duplicated count

12

is used for determining sport participation opportunities

13

at prong one of the three prong test. Do you agree or

14

disagree?

15

A. The EADA --

16

Q. Yes or no, Dr. Yiamouyiannis -- Dr. Lopiano, I

17

apologize.

18

A. You know you're really good because I can't even say

19

Athena's last name so I really -- it's good practicing.

20

Q. I simply want to know, yes or no, do you agree with

21

her statement that the duplicated count is used in

22

determining sport participation opportunities under prong

23

one of the three prong test?

24

A. Yes, for every sport.

25

Q. And did you also agree with her statement that this

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 70 of 161 216

1

means that an athlete competing in indoor track, outdoor

2

track and cross country would count three times for

3

determining a sport participation opportunities but only

4

once for purposes of assessing financial aid?

5

A. No, unless -- and I believe I said this before in my

6

testimony that you had the same teams for men and women

7

and it was a statistical wash.

8

Q. So your position is that how you count cross country,

9

indoor outdoor track and for cross country, indoor outdoor

10

track depends on whether the schools have both men's

11

teams in those sports and women's teams in those sports in

12

general, Dr. Yiamouyiannis --

13

A. Dr. Lopiano.

14

Q. Dr. Lopiano. I'm very sorry. Does your position

15

depend on whether a school has both men's and women's

16

teams in those sports?

17

A. Historically, my position does. When the, when there

18

are different assessments used for men's and women's multi

19

sport, multiple or --

20

Q. Would it raise -- I'm sorry, did you finish your

21

answer?

22

A. Yes, I did, thank you.

23

Q. Would it raise a red flag for you, Dr. Lopiano, if

24

you reviewing an EADA report for a school that eliminated

25

three men's sports and women's, and a women's sport in the

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 71 of 161 217

1

following year -- let me start this over again.

2

Would it raise a red flag for you if you were

3

reviewing an EADA report for a school that eliminated

4

men's cross country, men's outdoor track and men's indoor

5

track and eliminated a women's sport as well and the

6

following year reported zero male athletes who were track

7

and cross country and 133 women on the cross country and

8

track teams combined?

9

A. Yes.

10

Q. That would raise a big red flag for you, wouldn't it?

11

A. Yes.

12

Q. You would want to look into this and see what the

13

story was, wouldn't you?

14

A. Right. I would not be counting three sports in that

15

situation.

16

Q. Now, are you familiar with something called an NCAA

17

gender equity guide?

18

A. Yes.

19

Q. As a matter of fact I think you offered it as an

20

exhibit in connection with your testimony?

21

A. You're correct.

22

Q. At the preliminary injunction hearing, correct?

23

A. Correct.

24

Q. And that was published in 2008?

25

A. I don't recall.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 72 of 161 218

1

Q. I believe that's Exhibit 25?

2

A. Do you want me to check that publication?

3

Q. If you want to look at it, yes. It's Plaintiff's 25.

4

A. It's plaintiff's --

5

Q. Plaintiff's 25?

6

A. I thought it was in -- okay.

7

Q. And are you familiar with the discussion of roster

8

management in the NCAA gender equity?

9

A. No, I can read it again if you point me where it is.

10

Q. On pages 180 and 181.

11

A. How much of this do you want me to look at?

12

Q. I just wanted to ask you if you were familiar with

13

the NCAA's position that the practice of adding spots to

14

current women's teams increases women's opportunities

15

without adding a brand new women's sport team which

16

carries a challenge of securing money for salaries for a

17

new staff, operating budget, and sometimes new facilities?

18

A. And your question is?

19

Q. Were you familiar with the fact that that is the part

20

of the NCAA's statement on roster management contained in

21

their gender equity?

22

A. I would object to taking, pulling that out and not

23

reading that from the very top and understanding what

24

roster -- how they are presenting roster management, when

25

previously over represented sex with all, with no limits

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 73 of 161 219

1

as to their participation typically men, and then you're

2

trying to raise opportunities for women you have limited

3

financial resources. Then by using the same cap for men

4

and women will be the same cap for men and women which

5

roster manages both in an equal basis, yes, those overly

6

represented athletes may have the, may be disadvantaged in

7

not having the opportunity to compete that they previously

8

had. I agree with that statement and that context.

9

Q. So you would agree with the final summary here that

10

in summary, if maximums for men and minimums for women are

11

truly fair, this practice can assist administers in

12

predicting more accurately future expenditures in each

13

sport?

14

A. No.

15

Q. No, you don't agree with that?

16

A. No, I think it has to be a cap for both, not have

17

maximums and minimums, there should be caps without

18

floors.

19

Q. That is what I just showed you, you recognize is the

20

position of the NCAA in the gender equity guide?

21

A. That's their gender equity guide.

22

Q. Okay, I want to move onto the subject of competitive

23

cheer. You, at least in your report and I believe in your

24

testimony this morning, you said that -- I'm going to

25

refer to the sport as competitive cheer, do you understand

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 74 of 161 220

1

I'm not talking about sideline cheerleading?

2

A. I do.

3

Q. That in order for competitive cheer to be counted as

4

a sport, Quinnipiac would have to schedule, have to have a

5

full schedule of competition against other varsity

6

programs, is that your testimony?

7

A. It is one of the criteria we looked at.

8

Q. And you state that a competition against the club

9

team would not qualify the team as varsity, correct?

10

A. You'd have to look at all of those criteria in

11

totality. You couldn't say that any one of them was, you

12

know, this completely discriminates you, you have to look

13

at all of them.

14

Q. But you do say in your report the competition against

15

a team does not count in qualifying a team as varsity,

16

correct?

17

A. I explained this in my testimony. That you can have

18

anything you want on your schedule, that you don't see

19

that in Division I, and you -- it would be a -- if the men

20

don't have it and the women are forced to play lower level

21

competition, that that is the point of contention, in

22

terms of equal opportunity for women to have a varsity

23

experience. The men don't have, you know, club teams on

24

their schedules. You would look at that as a reason to be

25

concerned.

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1

Q. Dr. Lopiano, let's talk about emerging sports for

2

men. Isn't it true, yes or no, that schools who sponsor

3

teams competing in emerging sport often compete in club

4

teams, yes or no?

5

A. Yes, it's the nature of emerging sports in fact at

6

NCAA, which cheerleading is not.

7

Q. Excuse me?

8

A. Which cheerleading is not.

9

MR. BRILL: Please, Your Honor, please ask the

10

witness not to volunteer statements. I asked her a

11

question and I didn't ask her whether cheerleading --

12

THE WITNESS: That was my --

13

THE COURT: All right, okay.

14

MR. BRILL: I'm sorry, it's becoming

15

antagonistic.

16

THE COURT: She understands. Next question.

17

BY MR. BRILL:

18

Q. You recognize, don't you, that the NCAA rules with

19

respect to emerging sport expressly require there be 20 or

20

more varsity teams or competitive club teams that exist on

21

college campuses in order for a sport to qualify as

22

emerging sport?

23

A. If you say that's what's in the rule book, I believe

24

you. The details of it right now this second without

25

looking at the rule, I can't attest to.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 76 of 161 222

1

Q. You don't know if in fact all 20 of these teams could

2

be club teams, correct?

3

A. Without -- you're asking me without even looking at

4

the NCAA rules to say something is correct and I'm very

5

uncomfortable with that.

6

Q. All right. In fact, isn't it true that a number of

7

sports currently recognized as emerging sports by the NCAA

8

do not have even ten schools that sponsor the sport at a

9

varsity level?

10

A. I do not know that.

11

Q. Well, look at Exhibit F to your report, which is

12

Exhibit 105 in the exhibit book.

13

A. Under page, NCAA participation, which page --

14

Q. Page 65?

15

A. Thank you.

16

Q. And that page shows the current list of recognized

17

emerging sport, does it not?

18

A. Okay, so you're on page --

19

Q. Sixty-five.

20

A. Sixty-five. Okay, emerging sports. Got it.

21

Q. And if you look down to the bottom and if you look to

22

the right hand column which is headed overall, in other

23

words, combined divisions one, two and three?

24

A. Right.

25

Q. The total number of schools sponsoring each one of

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 77 of 161 223

1

those sports appears there, is that correct?

2

A. That is correct.

3

Q. So there's one in archery, two in badminton, five in

4

rugby and eight in swimming, right?

5

A. Right.

6

Q. So doesn't it follow that schools competing in these

7

emerging sports necessarily are competing against teams

8

other than other varsity teams?

9

A. That would be a good deduction.

10

Q. And isn't it also true that a sport does not need to

11

be recognized as a NCAA championship or emerging sport for

12

a school to count that sport as a varsity sport for Title

13

IX purposes?

14

A. Okay, repeat that question.

15

Q. A sport does not need to be recognized by the NCAA as

16

either a championship sport or an emerging sport in order

17

for a school to count that sport for Title IX purposes?

18

A. Yes, it does.

19

Q. Well --

20

A. Okay, so -- okay. You started this by saying let me

21

talk about cheerleading; are we talking about cheerleading

22

or not?

23

Q. I'm asking the questions, Dr. Lopiano.

24

A. No, you prefaced, you prefaced all of this with let

25

me talk about cheerleading.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 78 of 161 224

1

THE COURT: Ma'am, let him ask the next

2

question. Okay.

3

A. Okay. Go ahead.

4

Q. Let make it simple. There are schools that sponsor

5

men's varsity squash, for example, right here at Yale they

6

have a squash team for men, don't they?

7

A. Right.

8

Q. And squash is not, men's squash is not a championship

9

sport. In fact, emerging sport are only for women, right?

10

A. Right.

11

Q. So squash is not an NCAA sport?

12

A. Right.

13

Q. Can you count squash for Title IX purposes?

14

THE COURT: Well, squash is a male

15

nonchampionship sport. Is that an emerging sport or not?

16

MR. BRILL: No, it's not an NCAA recognized --

17

this page only talks about emerging sports for women.

18

BY MR. BRILL:

19

Q. There are no emerging sports for men, is that

20

correct, Dr. Lopiano?

21

THE COURT: There are not emerging sports for

22

men?

23

MR. BRILL: No.

24

THE COURT: Not even nonchampionship sports.

25

MR. BRILL: You have to go to the next page.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 79 of 161 225

1

THE COURT: That's what I'm looking at, page

2

six. What are non championship sports for men.

3

MR. BRILL: There are none. There are only

4

championship sports for men.

5

THE COURT: Archery, badmitton, bowling,

6

equestrian, rowing, rugby and squash are listed --

7

MR. BRILL: Oh, I see what you're saying. Those

8

are sports -- you want me to explain? Those are sports

9

that schools can self report to the NCAA, that they

10

participate in the sport even if it's not a championship

11

sport. So the NCAA will report participation statistics.

12

We can clarify this with Dr. Yiamouyiannis who worked at

13

the NCAA when she testifies but those are sports that are

14

not recognized by the NCAA. In other words, those sports

15

don't count for purposes of determining minimum sports

16

sponsorship for any other purpose except the NCAA collects

17

statistics on them. And we can confirm that with

18

Dr. Yiamouyiannis.

19

THE COURT: Okay.

20

BY MR. BRILL:

21

Q. In any event, let me go on.

22

Women's wrestling is not a NCAA championship or

23

recognized emerging sport, is it?

24

A. It is not listed.

25

Q. And in the Mansurian case, however, you took the

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 80 of 161 226

1

position that women wrestlers at U C Davis were varsity

2

athletes, correct?

3

A. Yes.

4

Q. And you testified, did you not, that it didn't matter

5

whether they competed against wrestlers on other college

6

teams?

7

A. That is correct.

8

Q. You testified in that case competition against other

9

women who were open amateur athletes was sufficient?

10

A. That is correct.

11

Q. And in fact, you said neither Title IX nor NCAA rules

12

require them to compete against other college teams,

13

right?

14

A. That is correct. This is all NCAA. You're not

15

saying that Title IX requires.

16

Q. Didn't you testify specifically --

17

A. Yes, and I'm just clarifying that you said, you're

18

saying that's what I said in terms of NCAA.

19

Q. And in Mansurian, didn't you testify -- Mansurian was

20

about Title IX, was it not?

21

A. It was.

22

Q. And didn't you testify that nothing in either Title

23

IX or the NCAA rules require those wrestlers at U C Davis

24

to compete against other college teams?

25

A. Right, and the reason why I'm clarifying this is I

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1

feel as though you're taking this little small piece of

2

testimony in Mansurian which does not relate to the larger

3

list of what it takes to be a sport and you're insinuating

4

because I said wrestling was a sport which has a national

5

governing body which has all the pieces of the puzzle,

6

that you're going to then say, oh well, wrestling is a

7

sport, cheerleading is a sport and, you know, it's apples

8

and oranges and you're trying to lead me to that point and

9

I don't think it's accurate for the court.

10

Q. Well, I'm asking you to relax and not worry about

11

where I'm leading you, Dr. Lopiano, and just answer my

12

question. All I'm asking you in this case you testified

13

in your report -- let's go back and see it, that in order

14

to count as a varsity sport, that a team would have to

15

compete against other college competition?

16

A. Yes.

17

Q. But you testified --

18

A. Among those and among others.

19

Q. But that was one of the factors you pointed to?

20

A. Right, exactly.

21

Q. And I'm only asking so that factor you said in

22

Mansurian, that factor did not matter in Mansurian, did

23

it?

24

A. Yes --

25

Q. Yes or no?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 82 of 161 228

1

A. Yes, it was one of the factors.

2

Q. You said it didn't matter in Mansurian that they

3

didn't compete against other colleges, right?

4

Do you want me to show you the testimony? Would that

5

help you?

6

A. The way you're phrasing the question is confusing me.

7

Say it once more. Say it once more. I said that in

8

Mansurian. All I'm concerned about is context, apples and

9

oranges, but that's okay. I will say yes -- it's yes. If

10

it's in context along with the other stuff, the other

11

criteria of a sport.

12

Q. Isn't it true that, well -- withdrawn. Withdraw

13

that.

14

Are you aware that Quinnipiac has recruited athletes

15

for the competitive cheer team for 2010, 2011?

16

A. 2010, 2011.

17

Q. For next year?

18

A. No.

19

Q. And you talked about how schools would need a one

20

year ramp up period to start a new sport, but are you

21

aware that in this case members of the Quinnipiac sideline

22

cheerleading squad were engaging in competitive events for

23

several years before 2009, 2010?

24

A. Was I aware they were?

25

Q. Yes.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 83 of 161 229

1

A. Engaging in competitive events?

2

Q. Yes.

3

A. Yes.

4

Q. And nothing in Title IX, OCR rules or the NCAA

5

regulations require a national search for coach of a new

6

sport or any sport for that matter --

7

A. Absolutely not.

8

Q. Correct?

9

A. Yes.

10

Q. And have you ever seen a Quinnipiac university

11

competitive cheer team compete?

12

A. No.

13

Q. Have you ever seen any member of the NCSTA -- do you

14

know what the NCSTA is?

15

A. I think something told me that.

16

Q. The National Competitive Stunts and Tumbling

17

Assocation?

18

A. Your question is what?

19

Q. Have you ever seen any school that's a member of the

20

NCSTA compete in competitive cheer?

21

A. No.

22

Q. So when you testified this morning that in your

23

opinion competitive cheer is not a sport, you were

24

saying that without ever having witnessed anybody engage

25

in competitive cheer, is that correct?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 84 of 161 230

1

A. Watching a sport isn't required. I don't get your

2

point, in other words. I didn't watch it.

3

BY MR. BRILL:

4

Q. I'm not making a point, Dr. Lopiano. This is not a

5

debate. I just want to get facts on the record.

6

A. I have not seen those schools participating in

7

competitive cheer.

8

Q. Now, the April 11th, 2000 letter that you referred

9

to --

10

A. April 11 --

11

Q. 2000 letter from OCR, Exhibit 108.

12

A. Okay.

13

Q. Do you have that?

14

A. Okay.

15

Q. That letter states that OCR's practice is to assess

16

each activity on a case by case basis, correct?

17

A. Correct.

18

Q. Taking into account the types of inquiries described

19

in the letter to determine whether the activity is a

20

sport, correct?

21

A. Are you reading from it? Are you quoting from it?

22

Q. Yes.

23

A. Then I would assume it's correct. I didn't follow

24

exactly where you were. I was wondering whether you were

25

asking me or whether it was them.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 85 of 161 231

1

Q. Now, the 2008 Dear Colleague letter which is Exhibit

2

109, that's the one that you said clarified in some

3

respects --

4

A. 109, okay.

5

Q. That didn't change the OCR's position that it does

6

not have a specific definition of the term sport and

7

instead makes a determination in each case based on case

8

by case evaluation, correct?

9

A. That is correct.

10

Q. And nothing in that letter suggests that competitive

11

cheer is not subject to the same case by case

12

determination, is there?

13

A. That is correct.

14

Q. And OCR, in fact, if you look at the first page of

15

the letter I think you'll see, if you agree with me, the

16

second page, I'm sorry, that OCR considers the factors

17

listed to make a, quote, overall determination, close

18

quote, of whether the activity can be considered part of

19

an institution's intercollegiate athletic program for

20

purposes of Title Nine compliance, correct?

21

A. Correct.

22

Q. And OCR also emphasized in that letter, does it not,

23

that its policy is to encourage compliance with Title IX

24

in a flexible manner that expands rather than limits --

25

A. Are you reading from this? So I'm, I'm attesting to

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 86 of 161 232

1

whether or not you're reading correctly?

2

Q. Do you see that in the letter? I can point the --

3

THE COURT: If it's in evidence you can just

4

read it. You don't have to have her acknowledge it says

5

that.

6

MR. BRILL: Rightly. I'll read this into the

7

record.

8

THE COURT: Fine.

9

MR. BRILL: It is OCR's policy to encourage

10

compliance with Title IX, and this is on the last page the

11

second to the last paragraph, to encourage compliance with

12

Title IX athletics regulations in a flexible manner that

13

expands rather than limits student athletic opportunities.

14

By disseminating this list of the factors OCR intends to

15

provide institutions with information to include new

16

sports in their athletic programs, such as those athletic

17

activities not yet recognized by governing athletics

18

organizations and those featured at the Olympics games if

19

they so choose. Expanding interscholastic and

20

intercollegiate athletic opportunities to new new sports

21

can benefit students by creating and stimulating student

22

interest in athletics, taking advantage of athletic

23

opportunities specific to a particular competitive region

24

and providing the opportunity for access to a wide array

25

of competitive athletic activities.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 87 of 161 233

1

BY MR. BRILL:

2

Q. And going back to the NCAA gender equity guide, if

3

you would, Dr. Lopiano, Exhibit 25?

4

A. I'm sorry, say it again?

5

Q. Paragraphs Exhibit 25.

6

A. Okay.

7

Q. Would you turn to page 20 which is what is a

8

athletics team for purposes of Title IX.

9

MS. GALLES: I'm sorry, what page did you say

10

please?

11

MR. BRILL: Page 20. Plaintiff's Exhibit 25,

12

page 20. It's paragraph three A, what is an athletics

13

team for purposes of Title IX.

14

BY MR. BRILL:

15

Q. Do you see that?

16

A. I do.

17

Q. And, Your Honor, I'd just like to point, could I just

18

call the court's attention to the following?

19

THE COURT: Absolutely.

20

MR. BRILL: Language that appears on page 21?

21

Although men's rowing clearly appears to meet the test,

22

the status of other team activity such as competitive

23

cheerleading, rodeo and judo are not as clear the OCR has

24

taken the position that cheerleading squads, for example,

25

or support services and not varsity programs. This view

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 88 of 161 234

1

has begun to change as competitive opportunities for

2

cheerleading have increased nationally and as schools

3

offer coaching, practice facilities, equipment and

4

scholarship opportunities to squad members who compete

5

against squads at other colleges and universities. It

6

should be noted that the OCR and its regional officers

7

have not uniformly accepted competitive cheerleading as a

8

sport under Title Nine but, rather, continue to evaluate

9

each program on a case by case basis.

10

BY MR. BRILL:

11

Q. Now, Dr. Lopiano, do you know if the NCAA has issued

12

any further statement with respect to competitive cheer

13

since the 2008?

14

A. I do not know.

15

Q. In your report, you refer to a statement in the NCAA

16

form --

17

A. Which report?

18

Q. I'm sorry, your original report, you refer to a

19

statement in the NCAA and EADA reporting form that was

20

used in 2002, Plaintiff's Exhibit Seven?

21

A. Where are you in this report?

22

Q. I'm sorry?

23

A. Where are you?

24

Q. I'm not, I can't give you the exact page now but do

25

you recall that you referred to the 2002 reporting form

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 89 of 161 235

1

Exhibit Seven? Would you look at Exhibit Seven.

2

A. Plaintiff's Exhibit Seven?

3

Q. Seven, yes. I think this was the form that you said

4

there was something on page two, you changed your report

5

to say the statement appeared on page two.

6

A. So it's my let's see --

7

THE COURT: Exhibit G.

8

A. No, that's an exhibit. I didn't mark an exhibit

9

there. This is also, the NCAA is pointing out without

10

looking at the exhibit --

11

Q. Let me just short circuit this, Dr. Lopiano. Try and

12

save sometime. You refer, first of all, 2002 there was no

13

college sponsoring competition only, competitive cheer

14

team, correct?

15

A. I do not know.

16

Q. You don't know of any school that was sponsoring a

17

competition?

18

A. I don't know that.

19

Q. And do you know whether that same form that was used

20

in 2002 is being used today by the NCAA form that was

21

introduced as Plaintiff's Exhibit Seven?

22

A. Where is Plaintiff's Exhibit Seven?

23

MR. ORLEANS: Plaintiff Exhibit Seven is the

24

1996 clarification.

25

MR. BRILL: Oh, it is?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 90 of 161 236

1

MR. ORLEANS: Yes.

2

MR. BRILL: Then I have the wrong exhibit number

3

and I apologize. I'll come back to that.

4

BY MR. BRILL:

5

Q. Now, the Women's Sport Foundation position on

6

cheerleading that you said you helped draft, what year was

7

that adopted?

8

A. I cannot recall.

9

Q. It was prior to 2003, was it not?

10

A. I don't know.

11

Q. Do you know whether at the time you adopted that

12

position, that the Woman's Sport Foundation adopted the

13

position, whether there was any compete only competitive

14

cheer team at any college?

15

A. I do not know.

16

Q. And that report does say under certain circumstances

17

cheerleading could be considered a sport, correct, in the

18

view of the Women's Sports Foundation, correct?

19

A. Yes.

20

Q. And that those circumstances are set forth in the

21

statement, correct?

22

A. Correct.

23

Q. Now, I want to ask you about the language that you

24

referred to in your testimony this morning that appears in

25

the, on page 19 of the instructions to the EADA form. I

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 91 of 161 237

1

believe that's Defendant's, I believe that's Exhibit 110

2

but my exhibit numbers may be slightly discombobulated,

3

the NCAA instructions.

4

A. Yes.

5

Q. And the paragraph you read earlier says and let me

6

just read it again -- to be considered a sport under --

7

A. So what page is this?

8

Q. This is on page 19 of that exhibit. To be considered

9

a sport under the EADA, an activity's primary purpose must

10

be to engage in intercollegiate competition.

11

Stopping there for a minute, do you know whether or

12

not the Quinnipiac University competitive cheer team has

13

has a primary purpose of engaging in intercollegiate

14

competition?

15

A. I would guess it does.

16

Q. It does. And the second sentence says if you

17

indicate in the caveat box that your other sports are

18

dancing and/or cheerleading, please also specify in the

19

box that your institution has a letter from the Office of

20

Civil Rights confirming that the OCR has determined that

21

dancing and/or cheerleading are varsity sports at your

22

institution, right? That's what you were pointing to this

23

morning?

24

A. Right.

25

Q. Now, that instruction first appeared in the EADA

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 92 of 161 238

1

instructions for reports to be filled out for 2009, 2010,

2

correct?

3

A. I don't know.

4

Q. That was not in the, you don't know that that was not

5

in the instructions prior to this year?

6

A. No -- I cannot recall.

7

Q. Okay. Do you know whether OCR has provided any

8

written explanation of that instruction?

9

A. The only reference I can -- well -- I do not know, I

10

do not know.

11

Q. And assuming, and we'll link this up, Your Honor,

12

that the instruction first appeared for reports to be

13

filed for the '09, '10 year, those reports aren't due

14

until October of 2010, correct?

15

A. You're asking me to assume --

16

Q. You know what? I don't need to ask you to assume

17

anything --

18

A. I'm just trying to get your question. You're trying

19

to get me to say yes to that, assuming that --

20

Q. I'm going withdraw my question.

21

A. This is my first time, this is the first time this

22

appeared, right? If that is true, you would like me to

23

say yes or no whether I agree that it would apply to the

24

next year for the first time, and if you want me to assume

25

that, I will be willing to say yes, if both of those

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 93 of 161 239

1

things, if that's true.

2

Q. And so you asserted this morning and you state on

3

your report that a school, in your opinion a school cannot

4

count cheer as part of --

5

A. Where are you? Are you on my report now, back to my

6

original report?

7

Q. Well, you testified to it this morning, Dr. Lopiano.

8

THE COURT: Let me interrupt. Mr. Brill, how

9

long how much longer do you have?

10

MR. BRILL: I have about two more minutes, Your

11

Honor.

12

THE COURT: All right, let's go.

13

BY MR. BRILL:

14

Q. You heard this morning that a school cannot count

15

cheer as part of prong one unless and until it receives

16

approval from the OCR?

17

A. That is correct.

18

Q. That's your testimony, right? And didn't you testify

19

to precisely the opposite of that at your deposition in

20

this case in advance of the preliminary injunction

21

hearing?

22

A. I don't believe I did.

23

Q. I'd like to show the witness a copy of her pages 207

24

to 209 of her deposition, Your Honor.

25

THE COURT: Well, if you're impeaching her why

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 94 of 161 240

1

don't you --

2

MR. BRILL: What's that?

3

THE COURT: If you're peaching her, why don't

4

you simply read it out loud, question and answer.

5

MR. BRILL: Thank you. It's a rather long

6

passage, I apologize. I'm going to -- actually I'll put

7

it up on the Elmo so you can follow along.

8

Didn't you testify at this point at your

9

deposition, all right, I asked you for your -- for the

10

authority for what I perceived to be your contention that

11

this multi part test had to be administered in advance for

12

OCR to even begin to apply the five part test and you

13

referred me to the case by case basis language, did I

14

understood?

15

I'm going skip the colloquy of counsel and you

16

answered, I repeat what I said earlier, two to three times

17

that I have never -- you may have mismisunderstood but I

18

have never said that singularly it is a case by case

19

statement which the reason why an institution should have

20

OCR come in and look at it. I said it was that in

21

combination with the suspect nature of cheerleading and

22

the inability of cheerleading to comply with this test,

23

these test queries that would lead me to believe that

24

there was a high risk proposition for anyone to depend on

25

just establishing cheerleading and assuming that it would

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1

be considered a sport. So I --

2

Question: But it's not.

3

Answer: No, you keep on going back to this case

4

by case when that's not what what I said.

5

Question: Okay, so to clear it up, there is no

6

legal requirement that this assessment be done in advance.

7

It is your recommendation it would be unwise not to do it

8

with OCR, but there is no legal requirement that an

9

advanced in assessment can done with OCR of its

10

competitive cheer team as part of the compliance test that

11

it done in advance.

12

Answer: It is absolutely true that every

13

institution puts its athletic program together and until

14

OCR or a court looks at it, these issues do not come up.

15

My point with cheerleading is that this is a very high

16

risk area for you to have cheerleading be the lynch pin

17

for your prong one or any prong compliance, and that's why

18

I recommended it, and --

19

Question: Fine.

20

Answer: I recommended that OCR come in first.

21

Question: Okay, but so there is no legal

22

requirement OCR come in first, is that true or false?

23

There's no legal requirement OCR do this in advance?

24

Answer: Yeah, there is no requirement that OCR

25

come in and attest to anything about your sport program.

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1

Question: Thank you.

2

In fact every sport presumably would be

3

subjected to this multi part test.

4

Question: Every sport presumably can be put to

5

this test by OCR in audit, correct?

6

Answer: Absolutely, and my point -- sorry.

7

Absolutely, and my point was with in record to

8

cheerleading that this is an activity that is so highly

9

suspect and without the federation and governance and

10

national championship basis of all other sports that are

11

in athletic programs commonly, that you'd have to be a --

12

not astute athletic director to put your institution at

13

risk like this.

14

Question: So it's risky not to do it in advance

15

when it's not required?

16

Answer: That's a fair statement.

17

And you gave this testimony at the preliminary

18

injunction, did you not?

19

A. Well --

20

Q. Yes or no. I'd like to know, yes or no, is that your

21

testimony?

22

A. Yes, in the context of legality.

23

Q. Thank you.

24

A. That it does not appear in the Title IX regs that you

25

have to check cheerleading with, with your -- with OCR.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 97 of 161 243

1

It appears in a clarification letter that I was

2

distinguishing between legal and what that requirement was

3

that you have to get OCR approval. And it's legal that I

4

was answering to. You kept on saying is it legally

5

required, is it legally required, and I'm making a

6

difference between Dear Colleague letter which says you

7

shall and what was in, you know, the regs. That is my

8

intent.

9

MR. BRILL: Your Honor, I'm sorry. I do have a

10

follow up question.

11

THE COURT: Go ahead, Mr. Brill.

12

BY MR. BRILL:

13

Q. Yes. Dr. Lopiano, what clarification letter were you

14

referring to that requires the school to get OCR

15

permission in advance before counting it as a sport for

16

Title IX purposes?

17

A. When it says -- you know, getting tired here. When

18

is it says in instructions to the EADA report that you

19

don't include cheerleading without first getting a letter

20

from OCR, the EADA instructions to me are not a, a part of

21

the EADA law. It's instructions. And this was, this

22

excerpt, Your Honor, was after a long interchange about

23

what was the nature of this requirement. Was it a legal

24

obligation, was it a high risk proposition, was it

25

somewhere in the middle, and I was saying it was here and

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1

it was here. That it wasn't part of the original law, it

2

is definitely an OCR position. And also as an athletic

3

director I wouldn't dare like make that the lynch pin of

4

any prong one compliance piece without getting that letter

5

and that was my position. And it still is my position.

6

Q. And there's nothing that you can point to, is there,

7

Dr. Lopiano, that would require a school to give OCR

8

approval of a competitive cheer team before counting as a

9

varsity sport except for the instructions to the EADA form

10

that I showed you just a few minutes ago?

11

A. That is correct.

12

Q. And as you testified we don't know what the OCR meant

13

by that because it's not self explanatory?

14

A. (Pause)

15

Are you asking me something?

16

MR. BRILL: I withdraw that, Your Honor. I

17

don't want to be arguing with the witness. I think her

18

testimony is clear. I'd like, before I close my cross I'd

19

just like a minute during break to review my notes. Or

20

would you rather --

21

THE COURT: Why don't you do it now. I'd rather

22

break after you finish cross.

23

MR. BRILL: I'll close my cross now.

24

THE COURT: Okay. All right. Let's take a 15

25

minute break and stand in recess until 3:55.

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1

(Whereupon a recess was taken from 3:55 o'clock,

2

p. m. to 4:10 o'clock, p. m.)

3

REDIRECT EXAMINATION

4

BY MS. GALLES:

5

Q. Dr. Lopiano, I'd like to, if you would start off

6

where Mr. Brill left off which is Exhibit K of your

7

report, the EADA users guide?

8

A. Okay.

9

Q. Now, Mr. Brill, if it is true as he indicated that

10

this section about --

11

A. Where are you?

12

Q. This is page 19, yes?

13

A. Okay.

14

Q. If it is true that that section is new, and that it

15

will only apply to to 2009, 2010, okay, if that is true,

16

then wouldn't Quinnipiac have to get such a letter to

17

count its cheer starting next year?

18

MR. BRILL: Objection, Your Honor. This witness

19

is not in a position to interpret the OCR language.

20

With -- she said she has, they've not issued a

21

clarification of this language. Anybody in this courtroom

22

can interpret if as well as this witness.

23

MS. GALLES: He examined her extensively about

24

her view of it.

25

MR. BRILL: There are two opposing thoughts in

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1

that paragraph.

2

THE COURT: Well, all right, I think it's speaks

3

for itself.

4

MS. GALLES: Okay.

5

BY MS. GALLES:

6

Q. Dr. Lopiano, I want to refer you to page four of your

7

supplemental report, please.

8

A. Okay.

9

Q. Where we're talking about the numbers.

10

A. Yes.

11

Q. Okay. Mr. Brill kept saying that you weren't

12

counting cheer and you weren't counting cheer. Now, on

13

those numbers, if there were an order to account for

14

cheer, how would you do that? Like if there were 30

15

cheerleaders, then the numbers would be --

16

A. I explained in each of these cases that you would add

17

30 -- sorry, 30 would offset the -- if I'm looking at the

18

conclusion, the first column A, and cheer would count,

19

then the gap of 28 would be reduced with, to two as long

20

as you kept volleyball. And if you didn't keep

21

volleyball, then it's 41 minus 30, it would be 11 and

22

you'd have to add another team like golf or something that

23

would make up that discrepancy, and that applies to every

24

single column. You would make that adjustment in what the

25

gap would be.

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1

Q. So with the number, with the calculation of the gap,

2

that tells you how many sports, additional sports

3

opportunities Quinnipiac would have to provide?

4

A. That is correct.

5

Q. And no matter what they claim those opportunities

6

are, cheer, track, rugby, whatever?

7

A. Correct.

8

Q. Now, I'd like to direct your attention to your

9

charts, the Exhibit A or I believe it's 150?

10

A. Okay.

11

Q. And I just want to make clear that reasons one

12

through five -- okay, well, let's look, for instance,

13

reason number two, they are injured and still on aid; can

14

that be tied directly to the 1979 or 1996 policy

15

clarification?

16

A. Yes.

17

Q. Okay? Reason number three, a red shirt as designated

18

by the school, can that be tied directly to the 1979 and

19

'96 clarification?

20

A. Yes.

21

Q. The reason number four, that's on the squad list on

22

the first day of competition just as Mr. Brill discussed,

23

correct?

24

A. Yes.

25

Q. Okay. And reason number one is they actually played

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1

in a game, does it not?

2

A. Yes. That's also tied to the same thing as, it's in

3

general the squad eligibility list.

4

Q. And so you looked at the eligibility list to see if

5

they used up their NCAA eligibility for the year?

6

A. Yes.

7

Q. Okay, and reason number five is if they were on the

8

squad list the first day of competition in the

9

nontraditional seasonal?

10

A. Correct.

11

Q. Okay. So for reasons one through five, are those

12

tied directly to what Mr. Brill was discussing in terms of

13

the first day of competition or actually competing?

14

A. I believe they are.

15

Q. Okay. So, also in terms of the ice hockey, Mr. Brill

16

gave some examples of those ice hockey athletes, those six

17

athletes that he identified that you red flagged, you

18

actually, did you actually count them in your column A?

19

A. I'm trying to find --

20

MR. ORLEANS: The women's ice hockey.

21

A. Women.

22

Q. Women's ice hockey, yes?

23

A. Yes, all but Christine Fenoia.

24

Q. Okay, so the six that he was talking about, that he

25

was talking about earlier in terms of column A, you

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1

counted these ice hockey women, right?

2

THE COURT: Four of the six.

3

MS. GALLES: Excuse me?

4

THE WITNESS: Yes, you're absolutely right.

5

THE COURT: Carry Wilson, two of them are

6

listed.

7

THE WITNESS: They were, they were counted in

8

different column.

9

MS. GALLES: Yes, so I'm looking at were they

10

counted for under --

11

THE WITNESS: One through four?

12

THE COURT: One through four. Got it, okay.

13

BY MS. GALLES:

14

Q. And were all six of them counted in columns A and B

15

of your summary chart?

16

A. Yes.

17

Q. Okay, so the only place --

18

A. Yes, one through four, yes.

19

Q. So the only place where you made an adjustment was in

20

column C, the red flag column?

21

A. That is correct.

22

Q. Okay.

23

THE COURT: Are we going to seat the Seeley

24

email?

25

MR. BRILL: I'm sorry, what did you ask, Your

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 104 of 161 250

1

Honor.

2

THE COURT: Are we going to see the S-E-E-L-E-Y

3

email?

4

MR. ORLEANS: Yes, Your Honor.

5

MR. BRILL: Well, over our objection, Your

6

Honor. The emails are hearsay. We offered to have Hope

7

Seeley available, they spoke to him --

8

THE COURT: Okay, if it's not being offered at

9

this moment, I'm just asking whether that's going to be

10

offered at some point or whether we should talk about it

11

through this witness.

12

MR. ORLEANS: It will be offered, Your Honor.

13

THE COURT: Okay.

14

MS. GALLES: So we can talk about that later.

15

BY MS. GALLES:

16

Q. I also wanted to speak about average squad sizes.

17

Mr. Brill put up NEC with broad ranges of the squad sizes

18

for various sports, okay? If you saw an unusually high

19

number of athletes at any school, not just Quinnipiac, an

20

unusually high number of women in a sport, would that

21

raise a red flag for you?

22

A. If -- in comparison to the averages.

23

Q. Yes.

24

A. It would make me look closer. And that's what the

25

red flag's intended to do.

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1

Q. And I also want to refer you to Exhibit 25.

2

Mr. Brill took you through the NCAA's discussion of roster

3

management. Exhibit 25.

4

A. Okay. Okay, page number? Page number?

5

Q. Page 180.

6

A. Okay.

7

Q. Okay, on the Elmo here I've sort of put a, that

8

little bracket is mine. Okay?

9

A. Okay.

10

Q. You read different parts of that section. I would

11

like you to read the part that I've outlined. Start where

12

the negatives, see where it says the negatives?

13

A. The negatives of roster management include the fact

14

that overall, some opportunities are lost for men, it also

15

is possible that so many roster spots are eliminated that

16

team may be rendered noncompetitive. The way to solve

17

this problem would to be use the traditional team average

18

of roster response as a method to reasonably and fairly

19

cap men's teams.

20

Q. Okay. Is that statement regarding one of the

21

negative aspects of roster management one that you agree

22

with?

23

A. Yes.

24

Q. Okay. Would you please read the next paragraph?

25

A. The opposite problem could occur in women's teams.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 106 of 161 252

1

If roster management for women's teams may be so high

2

there are too many people on a team for it to be a

3

meaningful experience for all. Using the divisional

4

average should be a way to reasonably and fairly construct

5

roster management numbers for women's teams as well.

6

Q. Is that, does that paragraph, would you agree with

7

that particular paragraph as it relates to roster

8

management?

9

A. Yes, my statement, as long as you use the same caps

10

and they are based on average sizes, that that makes

11

sense.

12

Q. Now, Mr. Brill was talking a lot about Mansurian and

13

women's wrestling. Is there, do you know of any dispute

14

in the athletic community as to whether wrestling is a

15

sport?

16

A. No.

17

Q. And does such a dispute exist regarding cheerleading?

18

A. Yes.

19

Q. Now, Mr. Brill also talked about what if you only

20

have a track team with eight or ten athletes on it. If

21

you were an athletic director and you had only eight or

22

ten athletes on your track team, what would you do?

23

Presuming you're a Division I institution like Quinnipiac?

24

A. The reason why I'm hesitating with the question is I

25

can't imagine Division I institution not having bona fide

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 107 of 161 253

1

track team that would be large enough to compete. That's

2

all I can say. What would I do? I would never have one

3

that small. That's --

4

Q. Would you go out and recruit athletes in order to

5

fill those additional spots?

6

A. Oh absolutely. My point is that Division I is you're

7

on a level, when you've say I'm going to participate in

8

these sports, you're pretty much saying I'm going to play

9

with these guys under those circumstances and these are

10

going to be my team sizes and things like that. So

11

whenever you posit just even hypotheticalcally really

12

small teams in Division I or half hearted efforts at

13

particular sports, it doesn't compute to Division I

14

athletics.

15

Q. Well, I'd like to tie that back into or, into the

16

1979 policy interpretation which is on the front page of

17

your supplemental report.

18

A. Okay.

19

Q. Okay? And for A, it says that you would count

20

participants who are receiving the institutionally

21

sponsored support normally provided to athletes competing

22

at the institution involved, e.g., coaching, equipment,

23

middle and training room services on a regular basis

24

during a sports season, okay? Could you please explain

25

what that means?

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1

A. Well, the Title IX isn't only about counting based on

2

where are you in the season or anything else. It's a

3

whole laundry list of requirements, comparative tests that

4

look at how you treat men in your institution, how you

5

treat women in your institution, and it's a list about 11

6

factors and it looks at everything. And that's, that's

7

this total program look. That has to be made, and you

8

look at supplies, it's access to the same quality coaches,

9

it's size of schedule, it's quality of schedule, it's

10

access to post season play, it's housing, it's

11

transportation, it's support staff. It's everything. And

12

when you look at these things, you really are taking the

13

total program look and that's why it's so important to be

14

fact specific with this.

15

Q. So if you were looking at varsity, Division I varsity

16

program, and all of the men's teams have level A of

17

varsity benefits, and then you look over at the women's

18

teams, and would it raise any red flags for you as to

19

whether it's a varsity team or not if only a woman's team

20

didn't have a facility to practice in?

21

A. That in and of itself as a single factor would not.

22

I don't think you can take any one thing and say

23

absolutely, if you fail this test you're out of here or

24

you're in. It is total program. And what is good about

25

the OCR regs asking for technical assistance, doing all

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1

this is schools are being invited to come in and do this

2

test and to help you to be confident with certainty that I

3

am doing the right thing here and I'm not going to get

4

caught, and that is the struggle that I have with, you

5

know, with cheerleading, that knowing all of this, you

6

have to be a, it's almost an absence of fiduciary

7

responsibility on the part of the administrator not to do

8

it.

9

Q. Now, I want to focus on, however, looking back at

10

you're looking at the totality of the circumstances, under

11

what circumstances might there be red flags as to whether

12

a program is being run as a Division I varsity program?

13

What kinds of things would you look at?

14

A. I think you have to look at the, all of the tests

15

under participation which are levels of competition, and

16

whether you're, you know, supporting that program in terms

17

of the same level as the men, as well as numbers of

18

opportunities, whether -- and then you go into the laundry

19

list of recruiting, you know, support -- it's looking at

20

all of it. I don't know how else to -- I think I keep on

21

saying this, that this total program comparison is, it's

22

not just words. It's very important to do it that way.

23

And I think it speaks to Mr. Brill's point in terms

24

of flexibility, that this is very flexible. That's why I

25

don't know why people wouldn't ask for technical

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 110 of 161 256

1

assistance to determine it. That's what confuses me,

2

because if you trust in the flexibility, if you trust in

3

the law, then you go and you, you know --

4

Q. Sure.

5

A. You get the word out.

6

Q. I'd also like to, we were talking about wrestling

7

we're talking about cheer. If an athletic director, if I

8

came up to you and said my school, my school is going to

9

start Run Pass Tackle next, would that raise a red flag to

10

you as to whether that could be counted as a sport at the

11

Division I level?

12

A. Yes.

13

Q. And why is that?

14

A. Because I don't know if there's a N G B in that

15

sport. I don't know anything, I don't know whether or not

16

any of the list of criteria could probably be met with the

17

name of this new thing. I don't know if anybody plays it,

18

if there's --

19

Q. So would you supply the same criteria as were

20

discussed in the 2008 --

21

A. Yes.

22

Q. -- OCR Dear Colleague letter?

23

A. Absolutely. Run pass, whatever -- Frisbee.

24

Q. And then also if Quinnipiac wanted to provide

25

cheerleading or competitive cheerleading opportunities to

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 111 of 161 257

1

its female students, there's nothing that would stop them

2

from doing so and just not counting them for Title IX

3

purposes, is there?

4

A. True.

5

MS. GALLES: I think we're done, Your Honor.

6

THE COURT: All right. All right, whose your

7

next witness?

8

MR. HERNANDEZ: Mark Thompson.

9

MR. BRILL: I have some redirect, Your Honor.

10

THE COURT: Recross.

11

MR. BRILL: Just two to three questions.

12

THE COURT: Well, we ought to figure out if we

13

want to do this in this context or not.

14

MR. BRILL: Oh, that's fine. I don't have

15

anything that's that significant. That's going to --

16

THE COURT: I think a lot of judges cut it off

17

after redirect and I think in light of the limited time

18

that we have, it might be useful to do that.

19

MR. BRILL: Could we just have a good cause

20

exception?

21

THE COURT: Good cause exception.

22

MR. BRILL: Thank you.

23

THE COURT: If the redirect gets into a whole

24

new area and there was no objection.

25

MR. BRILL: I don't need to.

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1

THE COURT: Okay, thank you.

2

(Whereupon the witness was excused.)

3

MR. BRILL: Before we move to Dr. Thompson,

4

could we raise two procedural issues? The plaintiffs are

5

planning to call Mr. Web tomorrow and we had raised an

6

issue on Friday about the privileged nature of the

7

communication.

8

THE COURT: I will get you a ruling quickly.

9

MR. BRILL: And we did make and I know they

10

haven't had a chance to respond but we also made a motion

11

in limine this morning as to his testimony. I wonder

12

there could be some at least some response to that before

13

he's called to testify.

14

MR. ORLEANS: Not only have we not had a chance

15

to response, we've barely had a chance to read it.

16

THE COURT: I haven't read it either.

17

MR. BRILL: It was a lot shorter than mine.

18

MR. ORLEANS: We'll be prepared to address it

19

tomorrow, Your Honor, but --

20

MR. BRILL: Okay, that's fine, thank you.

21

THE COURT: Okay. Okay, let me just express a

22

little concern about time. I had set down four days for

23

this trial thinking eight hours each day. Two for

24

plaintiff, two for defense. Obviously that's not going to

25

work out.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 113 of 161 259

1

MR. ORLEANS: Your Honor, I think we had been

2

under the impression you had set down five days.

3

MR. BRILL: Yes, we had.

4

THE COURT: Well, that was my sense of your

5

impression since we spent a lot of time on the last

6

witness.

7

MR. ORLEANS: It's a little bit hard to know how

8

long anyone is going to take. If we're calling Thompson

9

next, are you going to do your, essentially your direct as

10

part of --

11

MR. BRILL: Yes.

12

MR. ORLEANS: -- as part of your cross? So he's

13

going to go for a while and certainly it's not impossible

14

that we would done by the end of the day on Thursday, Your

15

Honor, but --

16

THE COURT: Well, let me just urge everyone,

17

I've tried to hint to both sides that there are ways to

18

make this a lot faster. You may have a reason for reading

19

something into the record, you can point me to the

20

paragraph, I can read it a lot faster than it can be read

21

into the record and you can read it into the record rather

22

than asking the witness to adopt it. We've essentially

23

adopted a practice of if an exhibit is used without

24

objection it's a full exhibit. I think that helps, but

25

all I'm trying to say to you is I'm going to be out of the

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 114 of 161 260

1

country for a significant period of time and so we don't

2

have flexibility on the back end and we need to be aware

3

of where we are and get this case done and I think it can

4

get done but it's going to take everybody's cooperation.

5

So remember this is a bench trial, it's not a jury trial.

6

I'm relatively intelligent, I can follow things. You

7

know --

8

MR. BRILL: It would help if you granted our

9

motion in limine, Your Honor, that would --

10

THE COURT: I haven't read it.

11

MR. ORLEANS: I'm not sure we'd stipulate to

12

that, Judge.

13

THE COURT: I've got to at least read it. But

14

I'm not trying to squeeze anybody, I'm just trying to say

15

I think you can do the same case you intend to do faster

16

than it's been going today.

17

MR. ORLEANS: May I just ask, Judge, if we're

18

not done by the end of the day on Thursday, do you have

19

time for us on Friday or is that out of the question?

20

THE COURT: I have some time. I have a speaking

21

engagement in the middle of the day in Stamford

22

unfortunately. We'll get it done this week. I just

23

really --

24

MR. ORLEANS: I agree.

25

THE COURT: It means moving some other people

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 115 of 161 261

1

and not getting some things that I'd like to get to as

2

well, so your cooperation is appreciated. I'm going to

3

shorten this speech and leave it at -- who do we have?

4

MR. HERNANDEZ: Plaintiffs call Dr. Mark

5

Thompson.

6

M A R K

T H O M P S O N,

called as a witness on

7

behalf of the Plaintiff, having been duly sworn by the

8

Court, testified as follows:

9

THE COURT: Please be seated. State your name,

10

spell your last name for the record please.

11

THE WITNESS: My name as Mark Thompson.

12

T-H-O-M-P-S-O-N.

13

DIRECT EXAMINATION

14

BY MR. HERNANDEZ:

15

Q. Sir, you're an employee of Quinnipiac University?

16

A. Correct.

17

Q. You are a doctor, is that correct?

18

A. Correct.

19

Q. What do you hold a doctorate in?

20

A. Economics.

21

Q. Where did you get your doctorate in economics?

22

A. Georgia State University.

23

Q. You're a numbers guy.

24

A. That is correct.

25

Q. All right. I may be referring to your transcript of

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 116 of 161 262

1

your deposition during the course of your testimony so I

2

have your sworn testimony from before, that's just up

3

there for your convenience in case we need to refer to it.

4

Sir, what is your present title at Quinnipiac

5

University?

6

A. Senior vice president for academic and student

7

affairs.

8

Q. And what areas fall under your portfolio?

9

A. I'm responsible for all the deans of all our schools

10

report to me, in addition against the academic portion.

11

The student affairs portion is student affairs for

12

essential life health services and I'm also responsible

13

for athletics and recreation.

14

Q. Okay. So is that, do I count correctly that's four

15

different portfolios that fall underneath your purview?

16

A. If you count athletics and recreation as two

17

separate.

18

Q. Okay, we'll say three.

19

A. Okay, that's fine.

20

Q. Combining athletics and recreation?

21

A. (Nodding head affirmatively.)

22

Q. All right. That seems like an awful lot to cover.

23

Approximately how much of your time percentage wise is

24

covered by academics?

25

A. It varies depending upon what's happening in any

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 117 of 161 263

1

given time. For example, this past year, quite a bit of

2

academics was covered as a result of our regional

3

accreditation that occurs every ten years, so it varies

4

from time to time. Would you like a general --

5

Q. Yes, roughly about what percentage of your time in

6

this past year was devoted to the academic portion of your

7

portfolio?

8

A. Just in the past year?

9

Q. Yes.

10

A. I would say approximately 40 percent of my time.

11

Q. Okay. And what about student affairs; how much of

12

your time is consumed by that?

13

A. I would say probably about 20 percent, 20,

14

25 percent.

15

Q. All right. So that leaves approximately 40 percent

16

for athletics and recreation, is that correct?

17

A. Yes.

18

Q. Okay. Now, when did you take athletics and

19

recreation under your umbrella?

20

A. This became part of my responsibilities July 1st of

21

2009.

22

Q. All right, well, when did you first begin working on

23

athletics and recreation issues for Quinnipiac University?

24

A. There was some preparation prior to July 1st, 2009,

25

where I was part of some meetings with management over the

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 118 of 161 264

1

course of April, May, June.

2

Q. What were those meetings about?

3

A. In part some budget decisions that were made with

4

respect to elimination of teams and when the lawsuit was

5

filed, some preparation as I was getting ready to take

6

over the responsibilities July 1st.

7

Q. Okay. And did you have an opportunity to begin

8

working on proposed roster management numbers for the year

9

2009, 2010?

10

A. Yes.

11

Q. And do you recall when you first prepared such a

12

roster?

13

A. I think my work on roster numbers began sometime

14

probably beginning of May, middle of May, 2009.

15

Q. Okay. Showing you Plaintiff's 146, do you recognize

16

Plaintiff's 146?

17

A. Yes.

18

Q. And is that your handwriting in the lower right hand

19

corner, May 20, 2009?

20

A. Yes.

21

Q. Is that approximately when you drafted your first

22

proposed roster management numbers?

23

A. Yes.

24

Q. So when you came in and assumed athletics and

25

recreation, one of your first tasks was to begin working

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 119 of 161 265

1

on roster management target numbers for '09, '10, is that

2

correct?

3

A. Correct.

4

Q. All right, and for the sake of reference, Plaintiff's

5

146, can we agree, sir, that that is all of the proposed

6

roster management target charts that you generated during

7

the course of your -- here I'll hand it up, to you.

8

During the course of your tenure to date as being in

9

charge of athletics and recreation?

10

MR. BRILL: Your Honor, could you advise the

11

witness that he has the exhibits in the books next to him?

12

THE COURT: Sure, that's fine.

13

MR. BRILL: I'm not sure he has a document.

14

BY MR. HERNANDEZ:

15

Q. And, sir, just to keep things moving, is that your

16

hand writing in the lower right hand corner in each of

17

these documents?

18

A. Yes.

19

Q. Okay. So --

20

A. Sorry, just making sure. These appear to be all of

21

the ones that I worked on, yes.

22

Q. Okay. Now, sir, when did you become aware that a

23

lawsuit was filed against your employer Quinnipiac

24

University?

25

A. I don't remember the exact date but whatever date it

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1

was that the lawsuit was filed or the day thereafter.

2

Q. And did there come a time when you learned that Judge

3

Underhill entered his decision and order granting the

4

plaintiff's motion for a preliminary injunction?

5

A. I'm sorry, what did you say? Would you say that one

6

more time?

7

Q. Did you learn that Judge Underhill ruled in the

8

plaintiff's favor as far as the preliminary injunction?

9

A. Yes, I did.

10

Q. And you're aware that a published decision was issued

11

as a result of that, is that correct?

12

A. Yes.

13

Q. All right. And as I understand it from your

14

deposition transcript, you've had an opportunity to read

15

that decision, correct?

16

A. That is correct.

17

Q. And did you understand that Judge Underhill found a

18

problem with the way Quinnipiac University was adding,

19

strike that. Was dropping male student athletes shortly

20

before the first date of competition and then adding them

21

on again after the first date of competition?

22

A. Yes, I read that as part of his ruling.

23

Q. All right, and according to your deposition

24

testimony, was that, was it your understanding that was

25

the sum and substance of the problem that Judge Underhill

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 121 of 161 267

1

had with Quinnipiac University's use of roster management?

2

A. Yes, I think that was the primary concern.

3

Q. All right. Now, as a result of that, you undertook

4

to monitor roster management, is that correct?

5

A. Yes, correct.

6

Q. And could you explain for Judge Underhill what steps

7

you took in order to manage what you understood to be the

8

most important part of Judge Underhill's decision?

9

A. There was a several step process on my part of it,

10

there was an educational process and part was an

11

implementation process.

12

The educational process was to familiarize myself

13

with Title Nine legislation, NCAA regulations and so

14

forth. And in order to accomplish that, I reviewed

15

government available information from Department of

16

Education, Office of Civil Rights, so I reviewed NCAA

17

documents such as the ones that referred to under gender

18

equity. I engaged the help of an expert in the field to

19

help me understand the appropriate way to implement roster

20

management for compliance with Title IX.

21

In the implementation piece, following that work in

22

order to familiarize myself with various laws and

23

regulations, I then followed up with a meeting with head

24

coaches to discuss my own concerns about roster management

25

insuring that we made it very clear that we were to be in

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 122 of 161 268

1

compliance with Title IX, NCAA regulations. And at that

2

time I talked a bit about my own analysis, at least a

3

preliminary analysis of the roster numbers and what I

4

thought they might be for the up coming year.

5

But I thought this part of the process was to have

6

the vetting with the individual coaches who know their

7

sport and their situation best with respect to

8

competition, travel schedule, budgets and so forth. So I

9

invited the coaches to come to me individually to discuss

10

their individual sport and any concerns and get their

11

input with respect to what the appropriate roster number

12

would be that did reflect a genuine experience for each of

13

the participants in each of those teams.

14

There's a secondary invitation that followed that so

15

some of the coaches did come and see me and I was

16

concerned that not all of them had come so I sent a

17

secondary invitation. Eventually I did speak with all of

18

the coaches on a one to one basis to get their input.

19

And in addition to that, I indicated to the coaches

20

that we would be having formal training for all of them in

21

Title IX compliance as well as NCAA regulations. And this

22

was a process that went forward over the course of a

23

couple months. And again, the most important part for me

24

was making sure from the coach's perspective, given their

25

knowledge about their particular sport and so forth that

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 123 of 161 269

1

they would represent a number that was reasonable with

2

respect to genuine participation.

3

Q. Okay. Sir, my question was the steps that you took

4

to educate yourself on Title Nine. Do you recall being

5

asked the following question and giving the following

6

answer -- page ten, beginning at line eight -- on

7

May 14th, 2010.

8

Question: And after becoming in charge of athletics

9

and recreation, did you take any steps to educate yourself

10

on the university's requirements under Title IX?

11

Yes.

12

And what steps did you take?

13

It was more along the lines of educating myself with

14

respect to Title IX in general, not limited to the

15

university's website, talking with attorneys, talking with

16

Tracy -- I can't remember Tracy's last name.

17

Tracy Flynn?

18

Tracy Flynn, thank you. Our compliance officer in

19

athletics, an expert in Title IX, who asked to come help

20

with my understanding of Title IX was all about.

21

And later you said that's okay, that pretty much

22

covers what I did.

23

A. Yes, at the time, as I remember, yes.

24

Q. Sir, I'd like to talk to you about this process that

25

you mentioned about finding out what a reasonable target

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 124 of 161 270

1

roster management number would be. Do you have a contract

2

with Quinnipiac University?

3

A. Employment contract?

4

Q. Yes.

5

A. Yes.

6

Q. When does that expire?

7

A. My current contract expires June 30th of 2011.

8

Q. Are you being compensated for your time being here

9

today?

10

A. Not outside the employment contract.

11

Q. And I think you mentioned that you sent an email to

12

the coaches asking them for their input on reasonable

13

roster management numbers, is that correct?

14

A. I sent both an email, I also asked -- first sent that

15

invitation and asking for their respect input, yes.

16

Q. Did that email come before or after you sent out

17

proposed target roster management numbers?

18

A. I think, my recollection was that it was a meeting

19

that occurred either late May or I think it was early June

20

actually and at that point I did go over some numbers that

21

I thought represented what was close to NCAA average squad

22

sizes and my email followed that meeting, inviting them to

23

come speak with me individually.

24

Q. Did the email you sent to the coaches include

25

proposed roster management numbers for '09, '10?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 125 of 161 271

1

A. I don't believe, I don't believe so. I think that

2

the discussions took place at the face to face meetings.

3

I do not believe that I attached a spread sheet at that

4

point.

5

Q. Did you have a face to face meeting with each and

6

every coach?

7

A. Right.

8

Q. As a result of this email?

9

A. Either through the personal invitation I made for the

10

head coach meeting or via email which was a secondary

11

invitation to come speak to me.

12

Q. Did there come a time where you emailed proposed

13

target roster management numbers to the coaches?

14

A. I don't believe that I ever sent an email directly to

15

the coaches. My recollection could be wrong. My

16

recollection was that if I did email something, it was to

17

our athletic director Jack McDonald.

18

Q. Did you ask him to further those to the coaches?

19

A. I asked him to make sure that he communicated with

20

the coaches for the purpose of having their input, yes.

21

Q. And after forwarding the proposed target roster

22

management numbers for '09 dash '10, did you invite the

23

coaches to come and speak to you about those proposed

24

numbers?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 126 of 161 272

1

Q. Okay. And did they come and speak to you about those

2

proposed numbers?

3

A. Yes.

4

Q. Did any of them express problems with the proposed

5

numbers for '09, '10?

6

A. It wasn't anything I would consider to be a, anything

7

I would consider to be significant in terms of the numbers

8

on the teams. It was more concern about their own

9

understanding of the process and Title IX compliance

10

regulations.

11

Q. And sir, did the coaches at the time that you met

12

with them, did they have an employment contract with

13

Quinnipiac University?

14

A. Yes, they did. It was May of last year -- June of

15

last year so they would have had a contract at that time.

16

Q. All right, and when did their contract expire?

17

A. In general when we issue contracts it ends the fiscal

18

year that ended June 30.

19

Q. And did were the coaches contracts renewed as of

20

July 1, 2009?

21

A. No, they were not.

22

Q. All right. And, in fact, are all of the coaches at

23

Quinnipiac University at this time employees at will?

24

A. Yes, in addition to all the other administrators at

25

our university.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 127 of 161 273

1

Q. After the coaches became employees at will, did you

2

solicit the target roster management numbers for '09, '10?

3

A. Yes.

4

Q. Sir, how many coaches are there for the combined

5

men's, women's cross country and women's indoor and

6

outdoor track?

7

A. I'd have to take a minute to count, but I can tell

8

you that there's -- I'm sorry, for cross country indoor

9

outdoor track? That's one coach who has responsibility

10

for men's cross country, women's cross country, women's

11

indoor and women's outdoor track.

12

Q. Is that Coach Martin?

13

A. Yes.

14

Q. All right. Do you know how many men are on the cross

15

country team?

16

A. I'd love to look back and see the cross numbers but

17

whatever the roster number was is what they started their

18

season with.

19

Q. And is it your understanding that Coach Martin has to

20

coach the men's and women's cross country team at the same

21

time, the same season?

22

A. Yes.

23

Q. All right, and after that she coaches the women's

24

indoor track?

25

A. As I said, she has responsibility for men's and

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 128 of 161 274

1

women's cross country, indoor track and outdoor track for

2

women.

3

Q. And so after indoor track, she coaches outdoor track,

4

is that correct?

5

A. I'm not clear in terms of -- given my

6

responsibilities, the breadth of my responsibilities, I

7

can't tell you precisely when indoor track ends and

8

outdoor track begins but, as I said, she has

9

responsibility for all four teams.

10

Q. Sir, is it your understanding that in this litigation

11

your employer's position is that each of those sports

12

men's cross country, women's cross country and women's

13

indoor and outdoor track, are four separate sports?

14

A. Yes, that is correct.

15

Q. Is she paid four times as much as the other head

16

coaches?

17

A. I don't know what her salary is relative to the other

18

coaches without looking at it. I know approximately what

19

her salary is personally but I don't know how it compares

20

off the top of my head with others.

21

Q. Does she have any assistant coaches?

22

A. Yes.

23

Q. All right, how many assistant coaches does she have?

24

A. Again, I'd have to look. I think she has at least

25

two.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 129 of 161 275

1

Q. Okay. Sir, you had an opportunity to hear

2

Dr. Lopiano testify about the importance of fairness in

3

the proportional allocation of competitive opportunities,

4

do you agree?

5

A. Yes.

6

Q. All right. You're an economist, right?

7

A. Yes.

8

Q. Would you agree, sir, if we have a limited resource,

9

R, and you divide it by a certain number, you get a

10

percentage?

11

A. Yes.

12

Q. All right. And the bigger the number underneath

13

gets, the smaller the amount of resources are going to be

14

that gets spread around, correct?

15

A. Yes.

16

Q. All right. Sir, in connection with your educating

17

yourself about Title IX, did you have an opportunity to

18

review the NCAA's gender equity and intercollegiate

19

athletics handbook?

20

A. Yes, I have.

21

Q. On gender equity?

22

A. I did look at this.

23

Q. Did you forget that you had read it when you

24

testified?

25

A. I didn't remember all the things I did at the time.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 130 of 161 276

1

Q. Okay. And sir, did you have an opportunity to look

2

at the NCAA gender equity handbook -- well, you tell me

3

when you first saw it.

4

A. I would say it was probably June of last year, June

5

of 2009.

6

Q. All right. And, sir, as I understand it, your

7

primary, your understanding of the primary concern of the

8

court was this roster manipulation, is that correct?

9

A. Yes.

10

Q. All right. And that's what you were looking at?

11

A. I was looking at the entire, when I take

12

responsibility for somebody, I take it very seriously so

13

my review was not limited just to the question that you

14

just asked me, it was my responsibility in its entirety.

15

Q. Now, did there come a time when Coach Martin

16

requested that she increase the number of women's

17

athletes?

18

A. Yes, that came with regard to the setting of roster

19

for the upcoming academic year.

20

Q. And was she granted her request to increase the

21

target roster management number for the women's track?

22

A. Yes, she was.

23

Q. All right. And, sir, draw your attention to, if we

24

can just back up a little bit to Plaintiff's Exhibit 85,

25

you have a copy up there and I'll throw it up here.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 131 of 161 277

1

Do you recognize, sir, Plaintiff's 85 as an email

2

chain between yourself and Jack McDonald, the athletic

3

director?

4

A. Yes.

5

Q. And sir, was that email dated Tuesday, July 21st,

6

2009, from Jack McDonald to you?

7

A. Yes.

8

Q. All right. And did that have an attachment?

9

A. Yes, it did.

10

Q. Okay, and what was attached to that email?

11

A. You'll have to put it back so I can see. If you can

12

put two back on the first page? The reason I'm asking the

13

question is because it indicates there's a sample there

14

with respect to baseball and -- I'm sorry, could you move

15

it down so I could see the top?

16

Q. Sure.

17

A. Thank you. Okay, thank you. Yes, I think, I believe

18

the attachment is the ones you just showed, the excel

19

spread sheet.

20

Q. Is this your response to Jack McDonald's email, "I

21

think this looks good, I attached the roster numbers, we

22

are seeking in case you don't have the latest"?

23

A. Yes, that's what I said.

24

Q. And this is your attachment, correct?

25

A. I believe that is correct, that's right, yes.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 132 of 161 278

1

Q. All right, and this email was sent by you to Jack

2

McDonald on July 21st, 2009, correct?

3

A. Correct.

4

Q. This is after the coaches had become at will

5

employees at Quinnipiac University, is that correct?

6

A. That is correct.

7

Q. All right. And what was the purpose of

8

transmitting -- well, withdrawn.

9

Did you send another proposed target roster

10

management, set of target roster management numbers to

11

Mr. McDonald on or about September 1st of 2009,

12

Plaintiff's Exhibit 86?

13

A. Yes. Could I see the attachment, please?

14

Q. Sure. First of all, do you recognize --

15

A. Yes, I recognize.

16

Q. The plaintiffs --

17

A. Yes, I recognize it, yes.

18

Q. And showing you the attachment --

19

MR. BRILL: What is the exhibit number, please?

20

MR. HERNANDEZ: Eighty-six, Plaintiff's 86.

21

A. Yes.

22

Q. All right. This is your email?

23

A. Yes.

24

Q. All right, sir, did you have an email exchange with

25

Coach Martin, referring to Plaintiff's Exhibit 84, on or

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 133 of 161 279

1

about November 16th of 2009. This is an email chain, do

2

you recognize it?

3

A. Maybe just a bit bigger. I can look if -- it's one

4

of the exhibits there. Thank you, that's perfect. Yes, I

5

recognize that.

6

Q. And that begins on November 16th from Carolyn Robin

7

(ph) to Tracy Flynn and just so that we're clear, is

8

Carolyn Robin the maiden name of Carolyn Martin?

9

A. Yes, it is.

10

Q. So that we're clear. And this email is Carolyn

11

Martin requesting an opportunity to add some add ons to

12

the women's track team?

13

A. Yes.

14

Q. All right, and Tracy responds, correct?

15

A. Yes.

16

Q. All right, and she sent that email to you, is that

17

correct?

18

A. That is correct.

19

Q. All right, and did you respond in email dated

20

November 19th, 2009?

21

A. Yes.

22

Q. And was your response, quote, "Dear Tracy, Does this

23

represent the process of building her roster up to the

24

required 30"?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 134 of 161 280

1

Q. Those are your words?

2

A. Yes.

3

Q. Required?

4

A. Yes, she had her roster target at 30 and she was

5

required to meet that. That's a management issue.

6

Q. That was mantory, correct?

7

A. Yes, as with every team there's a target number and

8

my expectation is coaches being held accountable for those

9

numbers, and yes.

10

Q. And we were talking here about a women's team,

11

correct?

12

A. It's the same standard for both men and women.

13

Q. Okay, and did you convey to Coach Martin that she was

14

required to build up her roster to 30?

15

A. As I said, for every coach there's a target cross

16

number that they are expected and held accountable to

17

meet.

18

Q. I believe the word you used in your email was

19

required, is that correct?

20

A. And I'm answering it's required of every coach.

21

Q. Thank you. Sir, drawing your attention to

22

Plaintiff's Exhibit 81, this is the -- first page, it's a

23

four page document. Email chain, Plaintiff's Exhibit 81.

24

Beginning on the last page, does this represent an email

25

chain that you were copied on?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 135 of 161 281

1

A. Yes.

2

Q. All right. And is that, does that represent an email

3

exchange between yourself and Carolyn Robin also known as

4

Carolyn Martin?

5

A. I don't know if there's others included along the way

6

but yes, that's, there's exchange between myself and

7

Carolyn, yes.

8

Q. And Carolyn Martin again is an at will employee at

9

Quinnipiac University coaching four teams?

10

A. Correct.

11

Q. Sir, did she send an email to you; is this her email

12

to you in which she says, this is highlighted, "I would

13

like to increase my number from 18 to about 24"?

14

A. Yes.

15

Q. That's what she said?

16

A. Correct.

17

Q. Did she also say for women's track I currently have

18

30 women on the team and made no cuts this year so my

19

track team has some lower quality women with next year's

20

increase in cross country I will probably need a slight

21

bump up in track, I think 35 would be sufficient.

22

A. Yes, that's what she says.

23

Q. All right, and you read this email?

24

A. Yes, I did.

25

Q. All right. And later she said "I'm willing to work

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1

with these numbers to help the overall goal. Please let

2

me know what you think. Thank you so much for your

3

support. This year's gone very smoothly with all the

4

changes. Thanks again, Carolyn"?

5

A. Yes, that's what she wrote.

6

Q. And did you actually speak to her about this email?

7

A. Yes, I did.

8

Q. All right. Did you meet with her after you received

9

this email?

10

A. Yes.

11

Q. Where did you meet with her?

12

A. In my, either in my office or in the athletics

13

center, I don't remember which.

14

Q. What did you talk about?

15

A. I asked some questions. I was concerned about the

16

impact of increasing the team on her budget.

17

Q. And what was, did you have concerns about any other

18

aspects about her program other than the budget?

19

A. I did ask her questions regarding her statement about

20

lower quality women. She did qualify that later by saying

21

that, despite her statement in her email which she

22

indicated was -- I'll give you one example, there was one

23

participant in the team she felt contributed in a way in

24

terms of strategy that she offered that she wasn't

25

necessarily highly competitive in terms of her

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1

performance, but that she was a significant component of

2

the team as a result of this strategy and what she brought

3

to what they might be doing differently.

4

I also questioned her on the number, the increased

5

number she sought and, again, that was mostly around my

6

concern that she have a sufficient budget to insure that

7

she could handle the additional number that she's

8

requesting.

9

Q. All right. And so if I'm correct, your concerns with

10

her were budget -- that was one, correct?

11

A. Correct.

12

Q. All right. Two was whether the add ons were

13

competitive, is that correct?

14

A. Yeah, well, again, it was more than around my concern

15

that she was able to offer legitimate experience for the

16

side roster she was requesting.

17

Q. All right. And based upon her representations to

18

you, you allowed her to have these people, is that

19

correct?

20

A. That is correct.

21

Q. All right, and so what we're looking at here is an

22

addition of six women to the cross country team, is that

23

correct?

24

A. I believe that's what -- I'd have to refer to the

25

final roster for --

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1

Q. Well, I'm referring to her email.

2

A. Okay, that's what she proposed. I don't remember

3

that's precisely what I approved.

4

Q. Okay, and --

5

A. I believe it is but I'd have to look back at the

6

numbers.

7

Q. And she was proposing a 30 percent increase in the

8

number of women on cross country, is that correct?

9

A. Correct.

10

Q. All right. And did you offer to increase her salary

11

by 30 percent of one fourth of whatever her income was?

12

A. No, I did not.

13

Q. Did she also request an increase of five women to the

14

women's track team?

15

A. Yes, she did.

16

Q. Did she tell you where these women were coming from?

17

A. No, she didn't.

18

Q. Did you eventually learn some of them were walk ons,

19

she was attempting to add them with walk on athletes?

20

A. No, she did not share that information with me.

21

Q. And, again, the increase from 30 to 35, that would be

22

a 20 percent increase, is that correct?

23

A. Correct, approximately.

24

Q. Sir, drawing your attention to the email that you

25

eventually sent on or about May 7th in the same email

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1

chain, were your concerns stated in that email, did you

2

say you had a couple of concerns, two concerns, first is

3

with the budget and second about the quality of the

4

athletes?

5

A. And also I put in the question about genuine

6

experience.

7

Q. And when you -- well, withdrawn.

8

All right. Did you eventually approve an increase in

9

her roster?

10

A. Yes, I'd have to again look at the roster plan to

11

know what the exact number was but yes, there was an

12

increase.

13

Q. Okay. You know, along with increasing her roster,

14

did you also increase the number of assistant coaches that

15

were available to help her?

16

A. No, I did not.

17

Q. All right, did you require her to work longer hours

18

to coach these additional female student athletes?

19

A. No.

20

Q. Did you take any steps to get more scholarship

21

funding to help bring quality Division I student athletes

22

to her track team?

23

A. No. We did increase her operating budget.

24

Q. By how much?

25

A. I believe her budget was around 50,000-dollars and we

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1

increased it by another $10,000. A coach does have

2

discretion how they utilize their budget so I'm not quite

3

sure what her plans are in terms of how she plans to use

4

that.

5

Q. You didn't ask her?

6

A. No, I think that's the responsibility of a coach

7

who's doing their job to have an understanding how best to

8

utilize their budget.

9

Q. Sir, you had an opportunity, I believe you said, to

10

read the gender equity and intercollegiate handbook,

11

correct?

12

A. Correct.

13

Q. Sir, would it surprise you to learn it's actually the

14

responsibility of the university to make sure that the

15

coaches are spending their money appropriately?

16

A. No, it wouldn't surprise me at all. I think the same

17

with regard to my academic program, the primary oversight

18

is with the dean of the school, for example, or the

19

chairman of a department, chairperson of the department.

20

And then the university would review whether or not they

21

are within their budget limits and have some sense as to

22

whether or not they are using their budgets appropriately.

23

And that's standard, comes through in review things with

24

respect to accreditation, when accreditation visits occur

25

and so forth.

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1

Q. Okay. And, sir, drawing your attention to

2

Plaintiff's Exhibit 96, does this represent an email

3

chain, for the record referring to bate stamp numbered D

4

13322 and 13323. Do you recognize this email chain, sir?

5

A. Yes.

6

Q. All right. Does that begin on -- on May 3rd from you

7

to the head coaches?

8

A. Yes.

9

Q. And did Coach Dave Clark respond by email to your

10

request for input about the target numbers?

11

A. Yes, he did.

12

Q. All right. And in fact, he emailed you back the very

13

next day, correct?

14

A. Correct.

15

Q. All right, do you recall this email?

16

A. Yes, I do.

17

Q. And what team does Coach Dave Clark coach?

18

A. He's the women's soccer coach.

19

Q. I'm sorry?

20

A. Women's soccer.

21

Q. Women's soccer. Okay, and did you as of May 4th,

22

2010 let him know what the target roster management number

23

was that you and the university were looking for out of

24

him for women's soccer?

25

A. No, I think he was assuming that his number might be

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1

the same as the prior year.

2

Q. Okay. And did he tell you if he had a choice he

3

would have a roster of 22 to 24 players?

4

A. Yes, that's what he wrote.

5

Q. "In the current climate I understand that I need to

6

have a definitive number that would be as high as 27"?

7

A. Yes, he wrote that.

8

Q. All right. And did he also go onto say "I will work

9

with what the school needs but keep in mind that 27 is not

10

a manageable number for a sport such as soccer"?

11

A. Yes, he wrote that as well.

12

Q. All right. And eventually he was given a break on

13

his target number, is that correct?

14

A. I was concerned about --

15

MR. BRILL: Objection, objection to the

16

characterization in the question. Given a break.

17

THE WITNESS: I would object to that

18

terminology. I don't give people a break. I take this

19

very seriously and I listened very closely to what he had

20

to say via his email, and I did reduce his roster number

21

because he did express a concern about -- my

22

interpretation of a manageable number and his concern

23

about a change in the opportunity.

24

BY MR. HERNANDEZ:

25

Q. Would say it be fair to say that Coach Clark, coach

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1

of the women's soccer team, expressed that he believed

2

that the school had a need with respect to target roster

3

management numbers for women's soccer?

4

A. Yeah, and I hoped that my response to him took his

5

end of it very seriously and in reducing his roster taking

6

away any concerns he had about trying to meet the target

7

needs. I responded very seriously to his concern about

8

his needs.

9

Q. And by needs, earlier you had told the coaches that

10

they were required to meet their roster numbers, is that

11

correct?

12

A. Again, it came after the invitation of the coaches

13

and after the rosters were set following what I think was

14

an appropriate process in making a determination about

15

change and opportunities.

16

Q. Sir, let's talk for a moment, if we could, about

17

genuine competitive opportunities. What's your

18

understanding of what the NCAA looks for as far as a

19

genuine competitive opportunity?

20

A. Came out in earlier testimony actually today. Could

21

include participating in competitions, it could include a

22

role whereby someone is helping with practice. It can

23

include an experience of being on, part of a team in terms

24

it was comradery and so forth that comes, but essentially

25

it means that benefits flow as a result of the person's

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1

being a member of a team.

2

Q. And sir, do you understand that as far as substantial

3

proportionality goes, when you compare the men's program

4

to the women's program, they have to be fair?

5

A. I'm not clear what you mean. I understand

6

substantial proportionality being the percentage of

7

opportunities for men's and women's athletics need to

8

match the full undergraduate population.

9

Q. That's a number, right? Correct?

10

A. Yes.

11

Q. 50/50, 60/40, whatever that may be?

12

A. Correct.

13

Q. And, sir, would you agree with if the population were

14

50 percent women and 50 percent men and the participation

15

rate were 50 percent female and 50 percent male, that

16

would be numerical proportionality?

17

A. If you're asking whether or not there are any more

18

analysis to understand about whether or not the 50/50

19

split represented genuine opportunity or whether it was

20

window dressing, I would say what you're saying is I'd

21

have to know -- your question is at best a way for me to

22

respond is I'd have to know more about the situation.

23

Q. Okay. Sir, are you aware that Quinnipiac University

24

prepared a self audit as far as gender equity when it

25

joined Division I?

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1

A. I believe it was in 2006.

2

Q. All right. Did you read the university's gender

3

equity plan?

4

A. Yes, I did.

5

Q. All right, when did you read that?

6

A. Again it was approximately a year ago. I may have

7

read it before then when the report was released but I

8

don't recollect exactly when but I remember the last time

9

I read it was about a week ago.

10

Q. And included in the gender equity plan, were there

11

some proposed student surveys?

12

A. Yes, I think there were.

13

Q. Okay, to your knowledge -- to your knowledge were

14

your surveys ever sent out?

15

A. You're referring to the end of the year or end of the

16

season surveys?

17

Q. Well, there's actually two surveys, right? Is that

18

correct?

19

A. I don't know, I'd have to go back and look. The once

20

I'm familiar with are the end of the season or end of the

21

year surveys to get some inputs from the students with

22

respect to their experience and, yes, my understanding is

23

those have been done.

24

Q. And have you had an opportunity to see any of the

25

student surveys that came back?

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1

A. No, I haven't seen them.

2

Q. All right, and do you know if those surveys have ever

3

been sent out?

4

A. Sent out to whom?

5

Q. To student athletes?

6

A. If you're requesting a response --

7

Q. Yes.

8

A. Yes.

9

Q. And I'm not talking about the end of the year survey.

10

A. Okay, you'll have to tell me which survey you're

11

referring to.

12

Q. All right, we'll get to that in a second.

13

A. All right.

14

Q. Sir, who is the Title IX coordinator at Quinnipiac

15

University?

16

A. Sarah Steele, S-T-E-E-L-E.

17

Q. And have you had a chance to speak to her about

18

Quinnipiac University's problem with roster management?

19

A. I don't feel we have a problem with roster management

20

so I haven't discussed it with her.

21

Q. All right. Who is Jo Martin?

22

A. Jo Martin is one of the representatives, she's a

23

faculty member from our legal studies department who

24

serves on the student advisory committee, student athlete

25

committee.

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1

Q. All right. Sir, in connection with your role as

2

being in charge of athletics and recreation, did you take

3

any steps to monitor whether any nontrack athletes were

4

running or practicing with any of the cross country

5

runners?

6

A. No.

7

Q. Did you take any steps to find out if there were any

8

male student athletes who were practicing with whatever

9

male team, who were not being recorded on rosters?

10

A. No.

11

Q. Are you aware, sir, that Coach Martin requires all of

12

her cross country athletes to run track?

13

A. No. No.

14

Q. Sir, do you know if anyone at Quinnipiac University

15

in charge of Title IX compliance has made any efforts to

16

speak with Coach Sparks to investigate the allegations of

17

sex discrimination at Quinnipiac University?

18

A. I'm not aware of that, no.

19

Q. Have you taken any steps to speak with her about the

20

allegation the of sex discrimination at Quinnipiac

21

University?

22

A. I've spoken to Coach Sparks like the other coaches

23

with respect to their roster numbers, the same questions

24

with respect to any concerns they had about their subjects

25

or resources, schedules and so forth, but we did not

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1

talk specifically about gender equity concerns. I see

2

that as a broader issue than just one team at a time.

3

Q. Sir, have you had an opportunity to compare the total

4

expenses for the men's athletic program against the

5

women's athletic program?

6

A. Yes, I have looked at it.

7

Q. When did you look at it?

8

A. Again this was probably about a year ago, probably

9

June or July of last year and than I did see it again,

10

October when we submitted the EADA report for '08, '09 or

11

'07, '08, whichever one we submitted last October.

12

Q. Sir, I'd like to talk with you about the timing of

13

when coaches are made aware of what their target numbers

14

are going to be. All right? When in 2010 did you or the

15

athletic director notify the coaches as to what their

16

target numbers were going to be for the coming year, 2010,

17

'11?

18

A. Finalized numbers were only provided to them recently

19

within the last couple weeks, and this was a problem that

20

came up as a result of the last meeting I had with head

21

coaches. So my hope is that the process going forward is

22

going to go, we're going to know well in advance now that

23

I have a better understanding about recruiting issues and

24

so forth. It did come, I consider it to be late this year

25

but I'm moving forward. My hope is we'll come at an

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 149 of 161 295

1

appropriate time for them to make it easier in terms of

2

recruiting and so forth.

3

Q. Okay. And when you say late, when were they

4

notified?

5

A. Again, as I said, they were notify within the last

6

two weeks. I don't remember exactly what date it was.

7

Q. So would it be fair to say first week of June?

8

A. Sometime around then, yes.

9

Q. Would this have been after June 1st?

10

A. I believe so.

11

Q. All right. And, sir, what is your understanding as

12

to when depositis are due from prospective candidates?

13

A. Deposits are due on July 1st -- I'm sorry, June 1st.

14

Q. June 1st, correct?

15

A. Yes, correct.

16

Q. All right. And the target roster management numbers

17

were made available to the coaches after June 1st, is that

18

correct?

19

A. I should say that most of them were in advance of

20

that in items of verbal communications from me but the

21

actual final roster plan in terms of being on a spread

22

sheet was distributed, did not come until after June 1st.

23

Q. Okay. And sir, are you aware that after, sometime

24

after the budget is set for the coming year the university

25

sometimes imposes mandatory costs on the teams, for

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 150 of 161 296

1

example, an increase in the cost of insurance?

2

A. No.

3

Q. What about increased expenses for things like

4

training?

5

A. No.

6

Q. All right. You're not aware that after the numbers

7

are set and the budget is set, that sometimes a team's

8

expenses will go up?

9

A. No, I'm not, but again, my question to coaches was

10

very specific with regard to their budgetary needs. They

11

did not offer this information to me.

12

Q. And you did not learn that either, correct?

13

A. I'm not aware of it, no.

14

Q. All right. Sir, showing you what we've marked as

15

Plaintiff's Exhibit 143, all right, this is an

16

inter-department envelope addressed to Robin Sparks marked

17

Confidential. Do you know whose handwriting that is?

18

A. No, I don't.

19

Q. All right. And is that dated June 9, 2010?

20

A. Yes.

21

Q. All right. And drawing your attention to the

22

attachment, the second page, do you recognize the latter?

23

A. Yes, this is the part of the process that I

24

implemented that requested the coach's certification of

25

their number with respect to, again, it's a reasonable

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1

number on their team and can be supported by the budget

2

and represents genuine experience for the athletes on the

3

team.

4

Q. And this letter was actually addressed June 1st, is

5

that correct?

6

A. That is correct.

7

Q. But it wasn't put into enter office mail until

8

June 9 --

9

MR. BRILL: Objection, Your Honor. There's no

10

testimony it was his office mail. Actually there's no

11

evidence about this at all. We don't know whose

12

handwriting that is, who sent it to Robin Sparks and when.

13

THE COURT: Well, 143 is in evidence and it says

14

what it says.

15

MR. BRILL: Excuse me?

16

THE COURT: 143 is in evidence and it says what

17

it says. We don't need to ask the witness to agree.

18

MR. BRILL: You're saying you're accepting it

19

into evidence now?

20

THE COURT: We have a practice when an exhibit

21

is used absent an objection, it becomes a full exhibit.

22

143, there's no objection -- do you have a objection to

23

143?

24

MR. BRILL: No, I don't object.

25

THE COURT: Okay, so it's there. It says

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 152 of 161 298

1

whatever it says.

2

BY MR. HERNANDEZ:

3

Q. And, sir, did you make it clear to the coaches at

4

Quinnipiac University that after target roster management

5

numbers were set, their rosters really should not change

6

without your permission?

7

A. That is correct.

8

Q. Or without your review, is that correct?

9

A. That is correct, I indicated I had final approval on

10

any changes to the rosters.

11

Q. Okay. And, but the bottom line was that the caps on

12

the men's teams were fixed as far as you were concerned?

13

A. I don't believe that we had caps or ceilings on any

14

of our teams. I think that's evidenced through some of

15

the changes we made in roster numbers from last year to

16

this year, having one year's experience with last year's

17

roster numbers.

18

Q. But the roster numbers going forward for 2010, 2011,

19

those --

20

A. It's a number. I don't consider it to be either a

21

cap or a ceiling.

22

Q. Okay.

23

A. Or a floor, I'm sorry.

24

Q. You do not consider it, correct?

25

A. It's a number and it's just like any number. Again,

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1

in an economic department if there's a number that needs

2

to be met with respect to a faculty student ratio to

3

maintain accreditation standards, it's not a floor or a

4

ceiling, it is a number that is required accountability

5

with respect to them managing that number.

6

Q. And sir, you eventually approved an increase in Coach

7

Martin's roster management number for her women's track

8

team, is that correct?

9

A. Yes, I approved a roster increase for Coach Martin.

10

Q. And when you approved that increase, did you consider

11

the relative level of accessibility of her as a coach to

12

the other student athletes?

13

A. I believe I addressed that when I asked her about

14

the, her resources and what she needed and she responded

15

she could have that size roster and provide an opportunity

16

to athletes.

17

Q. And, sir, you expanded the women's track team,

18

correct?

19

A. Correct.

20

Q. All right.

21

A. Indoor and outdoor.

22

Q. All right. Were they given additional locker space?

23

A. I don't know.

24

Q. You don't know?

25

A. No.

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1

Q. Did you look into whether their locker space would be

2

sufficient for these added student athletes?

3

A. As I testified before, the question was posed to the

4

coach specifically about how this would impact resources

5

available to her athletes and she indicated there was no

6

problem. She had reasons for wanting this. This was a

7

large group for competitive reasons and they did, as I

8

said, increase the operating budget which was primarily my

9

concern.

10

Q. Did you look into the locker room question?

11

A. Personally, no. Again, I rely on coaches to respond

12

to my questions with respect to how they'll be impacted

13

about any of these changes.

14

Q. Did you take into consideration access to training

15

facilities in light of this increased number of women on

16

the women's track team?

17

A. Again, I think this was covered by my question with

18

respect to her ability to provide a genuine opportunity to

19

her athletes.

20

Q. Sir, I'd like to talk to you if I could about the

21

competitive cheer squad. Did the university solicit to

22

hire a head coach?

23

A. I don't understand the question.

24

Q. Did the university hire a head coach for the

25

competitive cheer?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 155 of 161 301

1

A. Yes.

2

Q. And were you involved in that process at all?

3

A. No.

4

Q. All right. Sir, I'm going to show you Plaintiff's

5

Exhibit 82. Do you recognize Plaintiff's Exhibit 82?

6

A. No, I have not seen that before.

7

Q. You have not seen that before?

8

A. No.

9

Q. Sir, in connection with competitive cheer, is it the

10

university's intention to increase the roster of the

11

competitive cheer team for the coming year?

12

A. Yes, the coaches requested an increase from 30 to 36.

13

Q. All right, and again that's a 20 percent increase, is

14

that correct?

15

A. Not quite but pretty close.

16

Q. All right, and did you approve that increase?

17

A. Yes, I did.

18

Q. All right. When you approved the increase, did you

19

consider the experience of the head coach in coaching

20

competitive cheer?

21

A. No.

22

Q. You did not?

23

A. No.

24

Q. Did you consider her ability to recruit student

25

athletes when approving the increase in the competitive

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 156 of 161 302

1

cheer squad?

2

A. No.

3

Q. Did you consider Coach Powers' access to support

4

staff when you agreed to increase her roster for the

5

competitive cheer team?

6

A. Again, same question I posed to any coach who made a

7

request of changing their roster numbers and it was with

8

respect to the impact on the student athletes.

9

Q. And, sir, are you aware that Coach Powers, the head

10

coach for the competitive cheer team, has not passed the

11

NCAA recruiting test?

12

A. Not until it was brought to my attention during the

13

deposition.

14

Q. And your deposition was in May of this year, correct?

15

A. Correct.

16

Q. Just a few weeks ago?

17

A. Correct.

18

Q. All right, and notwithstanding the fact that she --

19

well, just so that we're clear, do you understand if she

20

ha has not passed the NCAA recruiting test, she's not

21

allowed to recruit off campus?

22

A. No, I did not know that.

23

Q. Okay. Sir, would you agree that if a coach is unable

24

to recruit off campus, that has an impact on how the team

25

is run?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 157 of 161 303

1

A. Yes, it obviously has an impact that limits the scope

2

of the degree of where the coach can recruit, yes.

3

Q. And that would also have an impact on the competitive

4

experience of the members of the competitive cheer team,

5

correct?

6

A. I don't see a connection there.

7

Q. You do not?

8

A. No.

9

Q. Would you be surprised, sir, that the NCAA considers

10

recruiting to be a real hallmark, lynch pin of a qualified

11

head coach?

12

A. Yes, I do.

13

Q. You are surprised or --

14

A. No, I'm sorry, I understand that that's an important

15

part of what a coach would do, recruiting a team to be

16

competitive.

17

Q. All right, and when you approved increases to Coach

18

Martin's women's track team, were you aware of her

19

experience as a track coach?

20

A. No.

21

Q. Have you had a chance to look at her resume?

22

A. No.

23

Q. All right. Do you know what her experience is as far

24

as recruiting, referring to Coach Martin?

25

A. No.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 158 of 161 304

1

Q. Do you know if she has taken any steps to recruit off

2

campus for the student athletes that she proposes to add

3

to her roster?

4

A. No.

5

Q. Sir, would you agree that if Coach Martin is coaching

6

the entire year, she has no off season, correct?

7

A. Again I'm not quite sure when seasons end and begin

8

but I would say she has a significant portion of the year

9

she has coaching responsibilities.

10

Q. And would it be fair to say that since she's coaching

11

year round, four teams in a year, she doesn't have the

12

luxury of down time, noncoaching time to recruit?

13

A. I don't know how Coach Martin divvies up her time

14

between different responsibilities.

15

Q. Would you agree if she's spending a substantial

16

amount of her time coaching three -- strike that, four

17

teams during the year, she's not going to have as much

18

time available to recruit?

19

A. Again I think it's speculative to make that

20

statement. I don't know how she divvies up her time. I

21

don't know how she utilizes her assistant coaches.

22

Q. So what I'm hearing from you when you approved an

23

increase to her roster management numbers for the women's

24

track team, you didn't ask her about her ability to

25

recruit with these added responsibilities?

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 159 of 161 305

1

A. Again, the question was with respect -- I did not go

2

through all 12 standards of the OCR letter, for example,

3

or, you know, go down a check list of various things. The

4

conversation was please tell me how this impacts your

5

ability to provide a genuine opportunity to your student

6

athletes.

7

Q. All right, and we would agree that the quality of the

8

competitive experience is determined by the 12, the 12

9

point check list propogated by OCR?

10

A. I'm sorry, say that one more time.

11

Q. We would agree that determining the quality of the

12

competitive experience is driven by that 12 point check

13

list?

14

A. I think it's important to pay attention to the 12

15

points, yes.

16

MR. HERNANDEZ: I have no further questions.

17

THE COURT: All right, why don't we break here

18

for the day. I understand we're going to be picking up

19

with both cross and your direct of this witness?

20

MR. BRILL: Yes, I'll finish up this witness

21

tomorrow morning, Your Honor. I would expect to have

22

probably an hour.

23

THE COURT: Okay.

24

MR. ORLEANS: And we'll proceed with Mr. Webb, I

25

expect.

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 160 of 161 306

1

THE COURT: All right. All right, thank you

2

sir. You may step down.

3

(Whereupon the witness was excused.)

4

THE COURT: We'll take up motion in limine, when

5

do you want to respond to that?

6

MR. ORLEANS: You want something written, Your

7

Honor?

8

THE COURT: It's up to you, I can hear your

9

argument in the morning.

10

MR. ORLEANS: Let us take a look at it, if we're

11

going to have something in writing we'll try to get it

12

emailed before we go home tonight, first thing in the

13

morning so you can see it tomorrow morning if we're going

14

respond. If we're not going to respond in writing we'll

15

let you know when you take the bench and be prepared to

16

argue.

17

THE COURT: Okay, very good. Anything else we

18

should take up today?

19

All right, thank you all. We'll stand

20

adjourned.

21

(Whereupon the above matter was adjourned at 5:20

22

o'clock, p. m.)

23

24

25

Case 3:09-cv-00621-SRU Document 173 Filed 07/21/10 Page 161 of 161 307
C E R T I F I C A T E
I, Susan E. Catucci, RMR, Official Court Reporter for the United States District Court for the District of Connecticut, do hereby certify that the foregoing pages are a true and accurate transcription of my shorthand notes taken in the aforementioned matter to the best of my skill and ability.
/S/ Susan E. Catucci __________________________
Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604
Tel: (917) 703-0761

 
 Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 1 of 139 308

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - x

STEPHANIE BIEDIGER, ET AL vs.
QUINNIPIAC UNIVERSITY

: No. 3:09cv-621 (SRU) : 915 Lafayette Boulevard : Bridgeport, Connecticut : : June 22, 2010 :

- - - - - - - - - - - - - - - - x

BENCH TRIAL

B E F O R E: THE HONORABLE STEFAN R. UNDERHILL, U. S. D. J.

A P P E A R A N C E S:

FOR THE PLAINTIFFS:

PULLMAN & COMLEY 850 Main Street P.O. Box 7006 Bridgeport, Connecticut 06601-7006
BY: JONATHAN B. ORLEANS, ESQ. ALEX V. HERNANDEZ, ESQ.

KRISTEN GALLES, ESQ. Equity Legal 10 Rosecrest Avenue Alexandria, Virginia

22301

FOR THE DEFENDANT:

WIGGIN AND DANA, LLP 400 Atlantic Street P. O. Box 110325 Stamford, Connecticut 06911-0325
BY: MARY A. GAMBARDELLA, ESQ.

(CONTINUED)

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 2 of 139 309
PROSKAUER ROSE 1585 Broadway New York, N. Y. 10016
BY: EDWARD A. BRILL, ESQ. SUSAN D. FRIEDFEL, ESQ. REBECCA BERKEBILE, ESQ.
Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604
Tel: (917)703-0761

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 3 of 139 310
I N D E X WITNESSES: MARK THOMPSON Cross Examination by Mr. Brill..................318 Redirect Examination by Mr. Hernandez...........354 JEFF WEBB Direct Examination by Ms. Galles................371 Cross Examination by Ms. Friedfel...............423
-0-

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 4 of 139 311

1

(9:05 O'CLOCK, A. m.)

2

THE COURT: Good morning. Should we start with

3

the motion in limine?

4

MR. HERNANDEZ: Yes, Your Honor. I'm prepared

5

to address that for the court on behalf of the plaintiffs.

6

The defendants had filed this motion, this claim

7

with respect to two of the plaintiff's witnesses, expert

8

witnesses Mr. Webb and Ms. Yiamouyiannis, and I'll deal

9

with them in turn.

10

First of all, they move to preclude Mr. Webb

11

from testifying about what constitutes a varsity sport. I

12

take that to mean that they are moving to preclude him

13

from testifying about what constitutes a varsity sport

14

within the meaning of Title IX and/or OCR. He's not being

15

called as an expert witness in these fields so I do not

16

anticipate that that will be an issue.

17

THE COURT: Okay, all right.

18

MR. HERNANDEZ: The next, they next move to

19

preclude testimony about whether Quinnipiac's competitive

20

cheer should be properly counted as a varsity sport. They

21

didn't qualify it and I'm looking at the bottom of page

22

two of their motion. I take that to mean, I take the

23

adjective "properly" to mean under Title IX slash OCR

24

compliance. Again, Mr. Webb is not an expert, he's not

25

being called as expert in Title IX or OCR compliance. I

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 5 of 139 312

1

don't anticipate that that will be an issue.

2

Lastly, they move to preclude testimony about

3

the NCSTA, the National Competitor Stunts and Tumbling

4

Association, or its meet format. He is prepared to

5

compare and contrast the rules and format of his

6

organization with those of the NCSTA, but as far as

7

offering an expert opinion as to whether the NCSTA rules

8

constitute a sport, he's not, he's not testifying about

9

that.

10

He's going to be testifying that in his view the

11

competitive cheer community is of varying minds and I

12

use -- many, many different minds about whether cheer

13

should be considered a sport at all, so I don't anticipate

14

that the substance of their motion will be an issue.

15

They are also objecting to the testimony of

16

Ms. Yiamouyiannis. She is testifying primarily as a

17

expert in what the requirements are under NCA, under the

18

NCAA. I take it from their motion that they are moving to

19

preclude Ms. Yiamouyiannis from testifying about the, what

20

the rules are for cross country and/or track. She's not

21

being called as an expert with respect to those particular

22

areas.

23

She is, however, going to inform her opinion

24

about what the NCAA requires by way of reference to what

25

the rules are in cross country and in and outdoor track

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 6 of 139 313

1

but she's not going to be giving an expert opinion about

2

those particular sports, so --

3

THE COURT: Okay.

4

MR. HERNANDEZ: So to the extent that there are

5

objections about specific questions posed to the witness

6

regarding opinion, I'd invite counsel -- we'll bring the

7

witness, they can bring their objections.

8

THE COURT: That was going to be my suggestion.

9

Okay. All right? Very good. So, in effect the motion in

10

limine is denied largely as mute but without prejudice to

11

raising objection to specific inquiries made of either of

12

these witnesses.

13

MR. BRILL: Unless the court has something else

14

to address preliminary, I was thinking of the privilege

15

issue. I have one or two also preliminary matters.

16

THE COURT: Well, okay. On the privilege issue,

17

I have reviewed the materials supplied to me --

18

MR. ORLEANS: Excuse me, Your Honor. I don't

19

mean to interrupt. If you're going to address, may I just

20

go out in the hall and bring Ms. Galles and Mr. Webb into

21

the room because --

22

MR. HERNANDEZ: I'll get them.

23

THE COURT: Sure.

24

MR. ORLEANS: If you just give us one moment I

25

think they are out there.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 7 of 139 314

1

MR. BRILL: I can make use of the one minute for

2

two very quick points, Your Honor.

3

THE COURT: Sure.

4

MR. BRILL: First of all, we did receive

5

yesterday an amicus brief from the United States.

6

MR. HERNANDEZ: Yes.

7

MR. BRILL: I assume the court saw it. And we

8

would like an opportunity to respond to that. If we can

9

have until the end of the week.

10

MR. HERNANDEZ: To respond to the brief or to

11

respond to the motion?

12

MR. BRILL: No, the motion. I can see the brief

13

is being filed and we accept it. We'd like to respond to

14

the substance of the brief.

15

THE COURT: That's fine.

16

MR. BRILL: And secondly, there was some

17

discussion yesterday about Mr. Seely, the women's ice

18

hockey coach. We had spoken to them. He can be available

19

to come in Thursday and testify briefly. He was on our

20

witness list as a possible witness. I just want to advise

21

the court and the plaintiffs that we will make him

22

available, and there's no need to worry about hearsay or

23

nonhearsay. The emails are going to come in at this

24

point.

25

THE COURT: Okay. All right, well, in terms of

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 8 of 139 315

1

the privilege issue, I have a little trouble reviewing it

2

based on what I've seen in part because I don't know the

3

relationship and/or the positions of some of the folks who

4

are the addressees of the communications. I will say that

5

the, the substance of the communication that begins

6

with -- it's dated May 4, 2010 at 10:56 a. m. -- does not

7

appear to me to be a privileged conversation.

8

The other one appears to be privileged, assuming

9

that it hasn't been waived by CC'ing someone who's not in

10

the attorney-client relationship. In other words,

11

Mr. Webb, Mr. Bill Seely, S-E-E-L-Y, Jim Lord or Bill

12

Boggs, I don't know who these people are.

13

MS. GALLES: Would you like me to address that,

14

Your Honor?

15

THE COURT: Sure.

16

MS. GALLES: Mr. Jeff Webb is the CEO and those

17

other gentlemen are management employees of Mr. Webb's

18

organization.

19

THE COURT: All right.

20

MS. FRIEDFEL: Your Honor, may I -- I think

21

there's a dispute as to that because Jim Lord is copied on

22

that email, I believe.

23

THE COURT: Yes.

24

MS. FRIEDFEL: And Mr. Lord testified at his

25

deposition that he is only employed by Varsity Brands for

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 9 of 139 316

1

purposes of obtaining their benefits package and that he

2

receives his salary from them, he's on their payroll;

3

however, he's the conduit to AACCA, which is I think it's

4

American Association of Cheerleading Coaches or something

5

like that, and that he's the executive director of that

6

organization and he does not actually have a formal

7

position with the Varsity Brands.

8

THE COURT: Well --

9

MS. FRIEDFEL: I don't want to dispute this. I

10

just want to make the record clear for Your Honor.

11

THE COURT: Fair enough. I think if these folks

12

are all either current employees or paid by Varsity, then

13

that's sufficient to secure the privilege with respect to

14

the April 13, 2010, 3:50 p. m. communication. But the

15

other one seems to me -- and I'm happy to hear any

16

argument on that but it does not appear to be related to a

17

legal, the provision of legal advice or the request for

18

legal advice, or seems to be --

19

MS. GALLES: Your Honor, we would just take the

20

position that this is all part of developing a legal

21

strategy and that was part of the background working

22

discussion related to creating that legal strategy. So --

23

THE COURT: Well, I understand why you take that

24

position. I don't agree.

25

MS. GALLES: Okay.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 10 of 139 317

1

MR. HERNANDEZ: So that one should be disclosed.

2

I don't think it's a significant document. I don't think

3

it's going to cause the defense to jump up and down.

4

MS. GALLES: Sure, Your Honor. We just wanted

5

to -- obviously we're sort of the conduit for that and

6

they wanted it asserted and that's what we did.

7

THE COURT: I appreciate that. Okay. And just

8

for the record, I am going to grant the motion for leave

9

to file an amicus brief by the United States, which is

10

Document 153.

11

MS. FRIEDFEL: Your Honor?

12

MR. HERNANDEZ: Yes.

13

MS. FRIEDFEL: With respect to the waiver of the

14

privilege by the disclosure to Ms. Galles, I was going to

15

address that issue but I do want to note that they took

16

the position they were redacting the document solely at

17

the direction of Varsity Brand's attorney and they were

18

just doing it for expediency sake and they weren't maybe

19

as concerned about it, but Mr. Orleans had the documents

20

in full form to send to you. So it's not like they

21

redacted the version and just took the redacted version

22

because they were acting at the instruction of Varsity

23

Brands' attorney. They kept the fully, the full document

24

and not only with Ms. Galles but then Mr. Orleans saw it.

25

So it doesn't seem to me they were really maintaining a

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 11 of 139 318

1

privilege.

2

MR. HERNANDEZ: In light of representations made

3

to me about the circumstances under which it was turned

4

over and in light of the expedience that was been kind of

5

imposed upon this case, in part by my decision to speed up

6

the trial by a week, I don't see a problem with the way

7

it's been handled.

8

All right. Are we ready to go?

9

MR. ORLEANS: Yes, sir.

10

THE COURT: We have Mr. Thompson I think?

11

M A R K

T H O M P S O N,

called as a witness on

12

behalf of the Plaintiff, having been previously duly sworn

13

by the Court, testified as follows:

14

THE COURT: You're still under oath.

15

THE WITNESS: Yes.

16

MR. BRILL: We're on the clock?

17

THE COURT: We're on the clock.

18

CROSS EXAMINATION

19

BY MR. BRILL:

20

Q. Good morning, Mr. Thompson.

21

A. Good morning, Mr. Brill.

22

Q. I'd like to give a little bit more of your background

23

than you were able to give yesterday. Will you tell me he

24

how long you've been at Quinnipiac and what positions

25

you've held during the course of your employment?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 12 of 139 319

1

A. Sure. I've been at Quinnipiac University for 12

2

years. First appointment was as associate within the

3

school business which I held that position for five years.

4

I was five years within the school of business, and then

5

last two years I've had health position, senior vice

6

president for academic and student affairs.

7

Q. Who do you report to?

8

A. I report to the president of the university, John

9

Lahey.

10

Q. What is the President's cabinet at Quinnipiac?

11

A. The President's cabinet includes the vice presidents

12

and senior vice presidents who are responsible for the

13

major function of the university.

14

Q. Now, you testified yesterday about your span of

15

authority over three or four different areas. Could you

16

just much describe very briefly for the court your

17

management philosophy with respect to those different

18

areas?

19

A. Given the breadth of responsibilities I have, my

20

philosophy is that we seek to hire the folks who clearly

21

have the experience and the ability to take on the duties

22

and responsibilities without significant oversight on my

23

part. My leadership philosophy is that you trust the

24

folks that you have hired. You look at their expertise

25

and you have some assurance they can carry out these

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 13 of 139 320

1

duties and responsibilities. I intervene in case -- we do

2

manual reviews and so forth but I do certainly intervene

3

in cases where I feel that there is an issue that needs to

4

be addressed.

5

Q. Would you apply any different philosophy with respect

6

to the coaches in carrying out their responsibilities than

7

you do, for example, with the department chairman or a

8

faculty member?

9

A. No, it would be the same type of handling of

10

leadership and management of those folks.

11

Q. Can you take a look at Exhibit B N, which is in the,

12

I'm going to be using mostly the defendant exhibits this

13

morning, if you have those handy.

14

(Pause)

15

A. Yes.

16

Q. Could you identify that document?

17

A. This is the EADA report that was submitted by

18

Quinnipiac University.

19

Q. This is the --

20

A. Excuse me, iPad report.

21

Q. What is the iPad report?

22

A. IPad report is our required government document that

23

all colleges and universities submit.

24

Q. Does this report contain the undergraduate

25

enrollments for men and women for 2009, 2010?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 14 of 139 321

1

A. Yes, it does.

2

Q. Now, going back to the process of setting the

3

roster --

4

MR. BRILL: Your Honor, I'm trying to make this

5

quick so I'm not going to like go over the numbers, but if

6

you have a question about where we are?

7

THE COURT: I think I can read.

8

MR. BRILL: Okay, fine.

9

BY MR. BRILL:

10

Q. What was your, what was your approach when you first

11

took over responsibility as senior vice president for

12

academic and student affairs, what was your approach to

13

going about taking over responsibility for the athletic

14

department?

15

A. With respect to roster management?

16

Q. More in general, more generally.

17

A. More broadly, it would be the same concerns I'd have

18

over the same things that are important to me with respect

19

to my areas of responsibility, that I have to have a

20

thorough understanding of the operations of the

21

department, any needs that they have, what goals and

22

strategies they have in place, ways that I can support

23

them and certainly in the areas of compliance and

24

adherence to law and regulations, being sure we are -- in

25

fact our house is in order.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 15 of 139 322

1

Q. And did you have any concerns that you developed as

2

you took over responsibility for the athletics area?

3

A. I did, and it came as a result of the filing of this

4

lawsuit and also the ruling on the preliminary injunction.

5

Q. What were those concerns?

6

A. I had three concerns with respect to roster

7

management in particular. And I in reviewing what had

8

happened, my feeling was there were three issues.

9

One issue was that the person who was responsible for

10

athletics and recreation prior to me I feel did not give

11

sufficient oversight to what happened especially with

12

respect to Title IX compliance and roster management.

13

And, secondly, I don't think the coaches were

14

properly trained in Title IX compliance.

15

And the third issue I had was with respect to roster,

16

claims for roster manipulation, that was of particular

17

concern to me. My findings in reviewing that were that

18

two of our coaches out of, I think we had 18 at the time,

19

two of our head coaches did engage in some adding/deleting

20

that I considered to be inappropriate.

21

I did immediately, because the men's baseball coach

22

and men's lacrosse coach, I did immediately speak to both

23

of them, told them it was not acceptable and it was not in

24

compliance with Title IX, it would not be accepted going

25

forward. And I asked for an explaination as to why they

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 16 of 139 323

1

did it. Their explanation was that they -- basically what

2

it boiled down to, they had a tough time making a

3

leadership decision, management decision, to cut certain

4

players from the roster and keep them off the roster as a

5

way of appropriately manage it. Essentially what it

6

boiled down to was they had some of the players that they

7

liked personally and did not want to burn them by not

8

including them on the team.

9

But, in any event, there is no -- my finding was

10

there was no wide spread manipulation. It was limited to

11

those two teams. There was certainly no university policy

12

of padding or manipulating or ceiling or floors. And the

13

problem as I found it was addressed immediately and I was

14

given every assurance that things are in order.

15

Q. And when you set about to take over responsibility

16

for the roster management program, what was your overall

17

approach, if I can ask you that, general terms?

18

A. It started with my own education with respect to both

19

NCAA regulations and Title IX compliance, including the

20

help of an expert in the field and, then again, I was

21

very -- I thought it was very important to understand in

22

particular from the head coach's perspectives, given they

23

are closest to the sport that you're responsible for and

24

meet the circumstance you might be faced with, to hear

25

directly from them any concerns and get their input in

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1

terms of what an appropriate roster size would be.

2

In addition, at a head coaches meeting I informed

3

them very specifically about my expectations around

4

compliance, not just with Title IX but compliance more

5

broadly in all aspects, and told them that they will be

6

held accountable for their actions but we would go through

7

an appropriate process to look at NCAA average squad

8

sizes, NEC squad sizes in some cases, that I would get

9

their personal opinions.

10

What we basically went through were three mental

11

processes of back and forth and personal meetings with the

12

coaches that ultimately set the roster numbers for '09,

13

'10. I felt that we, that I personally went out of my way

14

in this case, given that I did have concern to insure that

15

the process was appropriate and that we ended up with

16

numbers that did represent in fact genuine opportunities

17

for all athletes.

18

Q. Dr. Thompson, yesterday the plaintiffs introduced a

19

set of charts of various roster targets beginning in I

20

think June through September. Is there someone on your

21

staff that you had prepare those charts for you?

22

A. No, I did those myself.

23

Q. Each one of those charts?

24

A. Each one, yes.

25

Q. And when you talk about roster numbers, just to

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1

clarify, were you talking about caps for the men's teams

2

and minimums for women's teams?

3

MR. HERNANDEZ: Objection. Leading.

4

THE COURT: I'll allow it.

5

A. Absolutely not. My process was to insure that for

6

each team that the number that we ultimately arrived at

7

given all of the input that I described before represented

8

what was a genuine opportunity for the athletes to be

9

participating on that team.

10

Q. And what did you tell the coach, both in the

11

individual meetings and the June 2nd meeting, about what

12

you expected of them with respect to the target roster

13

targets once they were developed?

14

A. Well, start with the discussion again questioning

15

them around their budget facilities, their coaching staff

16

and so forth to make sure that they understood the breadth

17

of the question I was asking with respect to insuring that

18

in fact they had resources to be able to offer input for

19

athletes.

20

Once that number was set and following a lengthy

21

process of talking and thinking about what resources were

22

in place, once that number was set, I told them very

23

clearly they are being held accountable for having that

24

number on their roster. I felt it was appropriate to do

25

that, again, given that we clearly are expected to comply

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 19 of 139 326

1

with Title IX, and I felt that the process was sufficient

2

in terms of receiving their input directly in terms of

3

what they felt was an appropriate number.

4

Q. Did you tell any of them that their jobs were at risk

5

if they did not meet their roster targets?

6

A. No, I did not tell them that. I did tell them they

7

would be held accountable for achieving the number on the

8

roster.

9

Q. Did you ever mention the terms "at will employment"

10

in any of your discussions with the coaches?

11

A. No, I did not.

12

Q. Incidentally when was the change at the university

13

from employment contracts to at will employees?

14

A. The decision to go to at will employment for folks

15

who are in administrative positions which would include

16

head coaches in this, as part of that, in that category,

17

was actually made January or February of 2009. This was

18

actually before any decisions with respect too cutting of

19

teams or budget cuts and so forth.

20

Q. How did that come about?

21

A. It came about as a result of a review of our Human

22

Resource policies at the university and we decided that it

23

was inconsistent with what our corporate practices in

24

terms of issuing contracts to administrative employees.

25

In addition we were putting in place an annual fee process

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1

as part of what we were doing. But the decision to do

2

that was completely unrelated to anything having to do

3

with decisions regarding discontinuance of any of the

4

teams in the athletics department.

5

Q. And are there any coaches that do have employment

6

contracts?

7

A. There are four coaches that do have rolling five year

8

contracts. Those are the men's and women's head

9

basketball coach and men's/women's head ice hockey

10

coaches. Those are sports of emphasis on our campus and

11

in order to secure highest quality head coaches for these

12

particular sports, we feel it's an appropriate practice

13

for those four.

14

Q. If you would look at Exhibit B R? Now, I think this

15

actually went in yesterday as a plaintiff's exhibit.

16

THE COURT: I believe it did. I don't hear any

17

objection.

18

MR. HERNANDEZ: It's already in.

19

MR. BRILL: Excuse me.

20

MR. HERNANDEZ: It's already in.

21

BY MR. BRILL:

22

Q. So, Dr. Thompson, there's reference in this email to

23

giving the coaches a roster memo. Can you tell us what

24

the roster memo referred to?

25

A. Roster memo was part of formulizing the process to

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1

insure that in fact it was clear on the part of the

2

coaches that they are being held accountable and also I

3

wanted to have confirmation, written confirmation from

4

them or something that they signed indicating in fact they

5

did give consideration to that roster number and that it

6

did represent genuine opportunity for the participants on

7

the team, that they had sufficient budget to carry it out

8

and again to bring more formality of the introduction of

9

setting roster numbers.

10

Q. And if you turn your attention now to Exhibit B O,

11

can you identify these as the letters that were signed by

12

the coaches as to the rosters?

13

A. Yes, those are copies of the letter.

14

Q. Now, I notice that the letters are all dated July 22

15

but were some of them in fact revised after that day?

16

A. They were as a result of additional input from

17

coaches with respect to their roster numbers.

18

Q. Did all the coaches sign?

19

A. No.

20

Q. Which coaches did not sign?

21

A. The volleyball coach and the softball coach did not

22

their letters.

23

Q. Now, I want to go through a number of email

24

communications fairly quickly just to show the

25

correspondence that you had with the various coaches and

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1

I'll begin with B X. This is competitive cheer and I

2

don't need to go into these in any detail but just to put

3

them into the record, can you tell us very briefly what

4

communications you had with the competitive cheer coach

5

about the roster size and whether you made any adjustments

6

based on the input of the coach?

7

A. This, originally our plan was to have 40 on the

8

competitive cheer team and this was a request by the coach

9

in response to my invitation to have a personal meeting

10

with each head coach. Ultimately we set the roster at 30.

11

Her concern was that was not a large number number.

12

Q. The coach wanted a larger number?

13

A. Yes.

14

Q. And did she explain why?

15

A. She did, for several reasons. One is that she was

16

familiar with the schools that we're competing against and

17

the size squads they had, which are typically 36 to 42,

18

somewhere in that neighborhood.

19

And an additional concern on her part was that it's a

20

high injury sport and she wanted to have sufficient

21

players in the event that someone became injured.

22

And also, she was looking for multiples of six, so

23

her request was actually to have 36 and the reason for the

24

multiple of six was because they apparently practice in

25

groups of six.

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1

Q. And why did you reject her request to have a higher

2

roster at that point?

3

A. It was a couple of things. Being that it was the

4

first year, wanted to insure that things went relatively

5

smoothly. There was sufficient resources. In addition, I

6

also was aware of the ruling by Judge Underhill in the

7

preliminary injunction that he felt that 40 would seem to

8

be too high of a number.

9

Q. Now, could you turn your attention to Exhibits B Y

10

through C A. And again just tell us briefly about the

11

communications you had with the women's basketball coach?

12

A. The women's basketball coach for 2009, '10, my intent

13

was to set the roster at 15. She requested an additional

14

two players as walk ons. She felt that the number of 17

15

at the time was what she needed in order to field a

16

competitive team. In response to that request I did ask

17

her the questions I ask of all coaches who made requests

18

with respect to resource availability, budgets and so

19

forth, and I did grant her the increase to 17 as a result

20

of her request.

21

Q. And did she subsequently ask for further adjustment

22

in the roster?

23

A. She did. She asked for one additional player and

24

again it was a situation of concern about the

25

competitiveness of the team and I did grant that

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1

additional player later on.

2

Q. Now, on women's ice hockey, if you turn your

3

attention to C B, do you recall conversations with the ice

4

hockey coach Mr. Seely?

5

A. Yes, Coach Seely actually I believe my intent was

6

again looking at my primarily plan which I presented, the

7

intent was to set the roster at 27 initially. Coach Seely

8

came to me me again at my invitation to talk about how he

9

felt about that, the number 27. He indicated to me during

10

the course of our conversation that he felt 26 was

11

appropriate and his reasoning was he had already

12

identified 25 student athletes to play on the team and

13

actually that day was added a 26th person visiting on

14

campus, so I set the roster at 26 as an as a result of her

15

inquiry.

16

Q. Did he agree to that number?

17

A. Yes, he did.

18

Q. If you look at Exhibit C D through C E, which relate

19

to women's soccer, can you tell us what conversations you

20

had the women's soccer coach?

21

A. Dave Clark was the women's soccer coach. The plan

22

was to set his roster at 27. He expressed no concern at

23

that point about 27. His concerns were around questions

24

with respect to training, Title IX compliance and so

25

forth, so it was limited to that.

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1

As a result of not expressing concern at that time I

2

left the roster at the number 27.

3

Q. Did he ever come to you during the course of the year

4

to say that number was too high or unmanageable?

5

A. No, he came to me more recently in terms of giving

6

his input at my invitation for setting the roster numbers

7

for next year.

8

Q. And did you in fact adjust the roster for women's

9

softball for next year based on his input?

10

A. Women's soccer?

11

Q. I'm sorry, yes.

12

A. Yes, I did. He said, well, as discussed yesterday he

13

felt 27 was not a manageable number after years of

14

experience and he indicated he had hope for a reduction of

15

one to two players to reduce the roster from 27 to 25 as a

16

result of his concern.

17

Q. Okay, on women's softball you said that the softball

18

coach was the one of two coaches who did not sign the

19

letter?

20

A. Yes.

21

Q. Did you have communications with Germaine Fairchild

22

the softball coach about the roster size?

23

A. I did.

24

Q. Can you just tell us briefly what these

25

communications were?

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1

A. It was both written communications and emails that

2

are in C F, but if the face to face conversation that I

3

had with Coach Fairchild enforcement roster number was she

4

felt that 20 was a number that she could provide an

5

opportunity, a genuine opportunity for her players. The

6

reason she stated she did not sign the roster letter was

7

despite her feeling that 20 was a manageable number, she

8

felt by signing the number it would be in conflict with

9

the testimony she gave at the preliminary injunction

10

hearing, where she recollected saying that 17 to 19 would

11

be a preferred number. But she did not express any

12

concerns about 20, but that's the reason she gave for not

13

signing the letter, in concern about her prior testimony.

14

Q. Did there come a time where Coach Fairchild wanted to

15

change the roster either by adding or deleting athletes?

16

A. Yes.

17

Q. Tell us what happened.

18

A. As we approached the first day of competition for the

19

softball team, I believe it was on a Saturday, late in the

20

day on Friday which is the day prior to the first day of

21

competition, I received a request that she wanted to add a

22

21st player. I denied the request because she did not

23

provide me with a rationale as to why she wanted to do it.

24

It was a last minute request that I didn't feel I had

25

sufficient information to make the decision to add the

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 27 of 139 334

1

player. It turned out later in that past the followed the

2

first week of competition, the issue was that she needed

3

an additional catcher particularly for practice where she

4

had an injury for one of her catchers, and not having the

5

secondary catcher would have simply, in her words, torn up

6

the other catcher by over utilizing the person. So my

7

decision was to add the 21st player once I understood what

8

the rationale was, I had concern about the welfare and the

9

well being of the catcher who she thought may be injured

10

as a result of not adding the second person.

11

Q. Just to be clear, even though this was a women's

12

team, the women's team coaches didn't have the right

13

automatically to add players to the teams?

14

A. No, absolutely not.

15

THE COURT: I take it, Mr. Brill, that you're in

16

effect offering C T?

17

MR. BRILL: C F through C H actually.

18

MR. HERNANDEZ: No objection.

19

THE COURT: All right, very good.

20

(Whereupon Defendant's Exhibit CF through CH was

21

marked full.)

22

BY MR. BRILL:

23

Q. Turning your attention to C I which is volleyball,

24

did you have any conversations with Coach Sparks about the

25

roster number of volleyball?

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1

A. I did. And it was again same invitation that went to

2

all the coaches and her originally intent was to set the

3

roster at 14 which is in the NCAA average squad size but

4

as a result of conversations it was set at 12.

5

Q. Did Coach Sparks subsequently request either adding

6

or increasing or decreasing that roster?

7

A. Yes. Coach Sparks wanted to add a 13th player. I

8

don't remember the exact time but -- I don't remember it

9

as well as I do the softball situation but it was a

10

request that came out of 13, to add a 13th player but no

11

rationale that made it clear to me as to why she wanted

12

that, to add a player, and I denied that request.

13

Q. If you'd look at Exhibit C J through C K on men's

14

basketball, again can you briefly tell us the

15

conversations you had about the size of the men's

16

basketball roster?

17

A. Tom Moore, the head coach, made a request and as a

18

result of more information with how we handle who should

19

be included and who shouldn't be, questions around

20

injuries, players on full scholarship, for example,

21

whether or not they should be included. Not taking that

22

into account, he felt that 15 was the appropriate size for

23

his team. When he found out additional information with

24

in terms of who should count and who know shouldn't and

25

had an injured player who was on scholarship and another

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 29 of 139 336

1

player, I can't remember the situation but it was a

2

similar situation where the person had an account but

3

clearly couldn't play, he requested an increase to 17 and

4

his concern was he wanted to be able to field a

5

competitive team and given this was a sport of emphasis

6

for us -- excuse me -- I increased the number to 17.

7

Q. And looking at Exhibit C L through C O on men's ice

8

hockey, again --

9

A. This was actually a lengthy exchange with Ran Pecnold

10

(ph) who is our head coach for the men's ice hockey team

11

who wanted to increase his roster to 30, was I think

12

intended to be set at 28 if I remember correctly. I

13

denied the request because I didn't feel that there was

14

any need to add those players. After speaking with him

15

several times it became clear that his concern was that

16

he, again being a sport of emphasis, he wanted to be able

17

to field a competitive team.

18

In addition to this, in our conversations he shared

19

with me something I didn't know and that was that the

20

locker facilities at our new sports center included 30

21

lockers for both men's ice hockey and women's ice hockey,

22

and given the input and his concerns about competitiveness

23

of the team, I ultimately did agree to increase his number

24

from 28 to 30 as a result, with the assurances that there

25

would be a genuine opportunity for 30 players.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 30 of 139 337

1

Q. And looking at Exhibit C P, which is men's lacrosse,

2

do you recall conversations with the men's lacrosse coach?

3

A. Yes, I do. And this was a situation actually to look

4

back at my notes from June until, where we ultimately

5

ended up. My recollection in this case was that Eric

6

Becca (ph) who is our head coach for lacrosse requested an

7

increase. My intent was to have it at 39. He had

8

requested a roster size of 41, again, around concerns

9

about fielding a competitive team and I did grant his

10

request to have that set at 41.

11

Q. Now, you finalize the, you remember when the roster

12

numbers were actually finalized for the '09, '10 year?

13

A. It was shortly after the letters were issued, the

14

letters were issued I believe July the 2nd, it was shortly

15

before that numbers were finalized at that point.

16

However, again, there were some changes that occurred as

17

situations came up, as we got close to the first date of

18

competition for some of the teams. And part of that was

19

my own process in terms of learning more clearly my own

20

learning curve in terms of counting and so forth.

21

Q. And yesterday you were shown an exhibit dated

22

September 1st of 2009, and again I have the defendant's

23

exhibit number But you were shown a plaintiff's exhibit

24

with a roster plan of September 1st. Was that the final,

25

was that the day when you finally reached the final roster

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 31 of 139 338

1

plan for the year?

2

A. Yes, I believe that is correct.

3

Q. So the entire process took June, July and August?

4

A. It was a three month process, yes.

5

Q. Now, did you do anything to monitor the rosters after

6

that, those final numbers were established at the

7

beginning of September?

8

A. Yes, I made it very clear to all of the head coaches

9

as well as the administrative staff and in athletics, I

10

wanted final approval over any changes to the rosters

11

throughout the academic year. So I did monitor very

12

closely in terms of the individual cases. Every case that

13

came up was reviewed by me personally to insure that it

14

was an appropriate request.

15

Q. And how did you evaluate the requests that came to

16

you?

17

A. Tracy Flynn would provide me -- generally what would

18

happen is Tracy Flynn would provide me information with

19

respect to the situation.

20

Q. Who's Tracy Flynn?

21

A. Tracy Flynn is our compliance officer in athletics or

22

in some cases the head coaches would email me directly

23

with the situation if they wanted my input, so through one

24

of those two avenues, information was provided me to allow

25

me to make a decision on a case by case basis.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 32 of 139 339

1

Q. Did you apply different standards for women's and

2

men's teams?

3

A. No.

4

Q. Let me call your attention to Exhibit B V?

5

A. B V?

6

Q. B as in boy, V as in Victor. What, this is an email

7

that you sent out on November 12th to Jack McDonald, Tracy

8

Flynn and Robert Tipson?

9

A. Yes, correct.

10

Q. Who is Robert Tipson?

11

A. Yes, Jack McDonald is on our athletic director, Tracy

12

Flynn, Bob Tipson are both compliance officers.

13

Q. And what led to this email?

14

A. I had a concern regarding one case, I don't remember

15

what it was in particular that did not feel -- it came to

16

my attention so I wanted to clarify it one more time that

17

it was my expectation that all requests would be approved

18

by me.

19

Q. Now, there's a reference in the first paragraph to

20

the Title IX presentation?

21

A. Yes.

22

Q. What is that referring to?

23

A. I made arrangements for all of our head coaches and

24

our administrative staff in athletics to have Title IX

25

training. The original intent was to have it in

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 33 of 139 340

1

September. Unfortunately the person who was scheduled had

2

a family situation and that preclude her from being there

3

on that day but it did occur in early November.

4

Q. I'd just like to direct your attention to several

5

examples of email correspondence regarding deletions and

6

additions. And I'm not going to go through these in any

7

great detail but if you could look at Exhibit C Q to begin

8

with.

9

A. Yes, I have it.

10

Q. C Q, just tell us very briefly what the situation was

11

there.

12

A. This is a request that came from our field hockey

13

coach. Her request was to -- sorry, I have to read this

14

one briefly.

15

(Pause)

16

She wanted to add a player to her spring roster for

17

remainder of the spring season and it was someone she

18

wanted to give an opportunity for a try out for the

19

upcoming year, and I did approve that request.

20

Q. If you look at Exhibits C R through C S, C U and C X,

21

those are four separate exhibits that all pertain to the

22

men's lacrosse team and I don't think we need to go

23

through these in any detail but, again, do you have any

24

general understanding of the changes that were made to the

25

men's lacrosse team and approved by you?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 34 of 139 341

1

A. Yes, and I think this is an example of the

2

seriousness that the head coaches took with respect to my

3

request to approve this and with respect to Title Nine

4

compliance.

5

Q. Was the men's lacrosse coach one of the coaches you

6

felt had not understood?

7

A. Yes, he's one of the two coaches I felt had engaged

8

in some inappropriate action and I addressed immediately.

9

But in effect he's asking about the, in this email he had,

10

he had a student who was away for a semester coming back

11

in January as a student so he wasn't a student in the fall

12

semester, and another student coming in as a transfer

13

student, both of whom he wanted to add to the team. The

14

41 that he had in his roster included some walk ons and

15

his question was if I make a request to add these two to

16

my team, should I delete two walk ons and my response was

17

yes.

18

Q. And if you look at Exhibit D E which is the women's

19

soccer, communications with the women's soccer team coach?

20

A. Did you say E E?

21

Q. D as in David, E as in Edward.

22

A. Yes, I have it here.

23

Q. And actually Dave Clark, the same coach who

24

complained subsequently that 27 was too high, correct?

25

A. That is correct.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 35 of 139 342

1

Q. Can you tell us what this communication, what you

2

recall about the communications with Mr. Clark?

3

A. In this email he indicates he had three players

4

trying out for the team during spring semester, he wanted

5

to add one of these players to the roster so she could

6

play in the upcoming games. He indicated that by this

7

point in the season he had seven seniors who were not

8

playing and essentially was down to 17 active players. As

9

a result of his explanation, I did approve his request to

10

add the one player to the team.

11

Q. Now, now there are -- were there other examples of

12

such communications?

13

A. There's more examples than you probably need to go

14

through, that's obviously up to you, but there are several

15

examples of correspondence between myself and head coaches

16

along these lines.

17

Q. Now, turning your attention to the spring of this

18

year, Dr. Thompson, did there come a time when you talked

19

to the coaches about the process for setting the rosters

20

for the upcoming academic year?

21

A. I did -- there was a meeting of all the head coaches

22

that occurred, my recollection is that was in May.

23

Purpose of the meeting was twofold; one was to get their

24

input as a collective group as who how they felt in '09,

25

'10 and addressing any concerns that they had.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 36 of 139 343

1

As I mentioned yesterday the primary concern was the

2

timing with respect to setting of the roster for the

3

upcoming year so they could effectively recruit and so

4

forth, which I will address. And then the second reason

5

was to, again, make a personal invitation to have each one

6

of them provide me input with respect to their individual

7

team and how things went in '09, '10 and any input they

8

had with respect to setting numbers for '10, '11.

9

Q. During the course of the year, was there any coaches

10

on a men's team or women's team who came to you to tell

11

you they felt their roster size was either too large or

12

too small?

13

A. During --

14

Q. During the course of the year?

15

A. No.

16

Q. And how did the meeting that you held with the

17

coaches in the spring, was there any --

18

A. No.

19

Q. -- discussion along those lines?

20

A. No, not at the meeting. You're talking about the

21

large --

22

Q. The large meeting?

23

A. No.

24

Q. Now, did you have email communications with coaches

25

about their roster sizes for the up coming year?

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1

A. I did.

2

Q. I'm just going to ask you to look briefly at Exhibits

3

B W.

4

MR. ORLEANS: That is B as in boy.

5

MR. BRILL: B as in boy, W as in wind. I'm not

6

going to go through these individually. I just want to

7

identify them for the record, and then D Y through E K, if

8

you would just flip though those exhibits.

9

A. D as in dog?

10

Q. D as in dg, Y as in year. E as in Edward, K as in

11

kite.

12

A. (Pause)

13

Yes, I recognize all these emails.

14

Q. All right. I don't want to go through them right

15

now. I have a few specific questions about the process of

16

setting rosters for the next year. Before I do, I'm

17

sorry, I want to go back in time because there's one thing

18

I forgot to ask you about.

19

For the process of setting the rosters for '09, '10,

20

there's no email correspondence but did you speak with the

21

track and field and cross country coach about any

22

adjustment to the preliminary roster number that you had

23

suggested?

24

A. Yes, I did. My primarily plan was based on NCAA

25

average squad sizes which I think were 38, if I remember

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 38 of 139 345

1

correctly, somewhere in that neighborhood for the track

2

indoor and outdoor track.

3

I met with the prior coach who's no longer with us,

4

Sean Green (ph) and he indicated to me that the NCAA

5

average squad sizes for track include both track and field

6

which we don't have here. So my response to him was what,

7

given that information what do you think is the

8

appropriate roster size? And his response was 30, so I

9

reduced from my plan based on his input down to 30 for

10

both indoor outdoor track teams.

11

Q. Coming back now to this spring, can you just tell me

12

if you remember what sports you adjusted the roster sizes

13

on for this coming year? And actually, maybe it will be

14

easier for you if I refer you to Exhibit B Q.

15

Again this might be -- I'm not sure if this is

16

already in evidence as a plaintiff's exhibit but I'm going

17

to refer to it with the defendant's exhibit number and

18

this is 2010, '11 roster comparison to the current year.

19

A. Yes.

20

Q. And could you just describe briefly the changes that

21

you made, and any conversations you had with the coaches

22

about those changes?

23

A. Would you just like me to roll through this?

24

Q. If you can just do it briefly. There was not too

25

many.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 39 of 139 346

1

A. All of the changes came at the request of the coaches

2

and their input, so that was the only reason I made the

3

change. Men's basketball was increased by two as a result

4

of coaches input. Again, this was his concern about

5

competitive team and some injuries that he had, so that

6

changed from 17 to 19.

7

The change in men's soccer -- excuse me, women's

8

soccer we addressed with Coach Clark indicating he felt 27

9

was not the number that he felt was appropriate. He

10

requested a reduction from one to two and reduced down to

11

25.

12

Women's lacrosse coach, Caro, C-A-R-O, actually

13

requested an increase in her roster to 36. I asked her

14

questions about that. I had significant concern with such

15

a significant increase and whether or not her budget could

16

handle that and coaching staff and so forth. And in the

17

course of our conversation, it became clear to me that her

18

budget was such that that was too high of a number. And

19

the thing that really prompted me to come to a decision

20

not to meet her request was she indicated she had 30

21

uniforms. And so I told her, and I think there's an email

22

actually, I questioned her on that, did she mention that

23

she add 30 uniforms. But as a result of her input and

24

after my questioning, I decided that 30 was an appropriate

25

number for that team and I did not grant her request to go

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 40 of 139 347

1

to 36.

2

On the cross country, women's cross country and

3

indoor/outdoor track, these requests came from the head

4

coach, Carolyn Martin. She did indicate in her email to

5

me her reasons for wanting to increase it. That was again

6

having to do with fielding competitive teams, but she did

7

indicate to me that this wasn't an issue where she'd have

8

to recruit, she already identified athletes that she felt

9

wanted to join the team but also actually represented

10

higher quality than what she had on the team for the '09,

11

'10 year. I did question her extensively with respect to

12

the impact on her budget, the coaching staff and so forth

13

and she indicated to me that everything was sufficient to

14

be able to provide opportunities for this number of

15

females on these teams, but I did increase her operating

16

budget by, I think it was, I know it was $10,000. I think

17

her original budget was 50,000-dollars or thereabouts, and

18

increased it to about $60,000.

19

Q. And actually if you take a look at Exhibit 81 which

20

you were shown yesterday, which was, that's a Plaintiff's

21

exhibit, which was correspondence with Coach Martin?

22

A. I don't think I have that one here. This is -- oh,

23

I'm sorry.

24

Q. (Hands witness)

25

A. Thank you. Yes, I have it.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 41 of 139 348

1

Q. If you would look at her email to you, that begins at

2

the bottom of the first page and continues at the top of

3

the second page that Mr. Hernandez did not direct your

4

attention to that portion of the exhibit. Is this -- is

5

this what you were referring to when you said that she'd

6

already given you have information about her recruiting

7

and projected athletes for the following year?

8

A. Yes.

9

Q. And, in fact, with respect to any teams that you

10

decided to change the rosters from '09, '10 to '10, '11,

11

had you notified the coaches of your decisions before the

12

final letters were sent out in early June?

13

A. I did. Most coaches knew within a couple of weeks

14

after the meeting with head coaches what their number was

15

going to be. The only hold-up on the final roster numbers

16

was actually the softball coach's not being available.

17

She wanted to talk, unfortunately she was out of town and

18

she indicated she would contact me for a personal meeting

19

when she got back, which hasn't occurred yet, but I felt

20

the email information communication we had gave me

21

sufficient information to make that final determination.

22

Q. And in fact, of the coaches on the women's teams that

23

requested an increase that you granted, that is, in the

24

track and field team and the competitive cheer team, did

25

the coaches indicate to you the state of their recruiting

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 42 of 139 349

1

at the time that they requested the increases?

2

A. I didn't hear the last part.

3

Q. Did the coaches advize you of the state of their

4

recruiting for next year at the time that they requested

5

the increases?

6

A. Yes, they gave me information with respect to her

7

recruiting, where they were with it.

8

Q. And what did they tell you?

9

A. Essentially they had identified students who could

10

participate and were competitive and so forth so I had no

11

concerns with respect to anyone they were recruiting. The

12

only other one I didn't cover was softball, and that, I

13

did reduce that from, from '08, '09 was reduced from 22 to

14

20, I believe, and 20 was a number again that coach felt

15

was an appropriate number but she had a concern about

16

signing the letter, as I mentioned before. I did reduce

17

the roster from to 20 to 19 for the upcoming year based on

18

some of the conversations I had with coach.

19

Q. I'm not sure we discussed competitive cheer. If we

20

didn't --

21

A. Competitive cheer, the coach requested an increase to

22

36 for reasons I stated before, with respect to it being a

23

high injury sport and that they do practice in groups of

24

six. So any increase, if I increased it 32, 33, would not

25

have made sense or appropriately address the coach's

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 43 of 139 350

1

concerns. And she also indicated to me again what the

2

average squad size was or the schools she was competing

3

against and I did agree to increase that number to 36 as a

4

result of her input and reasoning.

5

Q. Now, going back to Exhibit B Q, which was the roster

6

chart that you prepared for this coming academic year?

7

A. Yes.

8

Q. There is a column for NCAA squad size.

9

A. Yes.

10

Q. Where was that information derived?

11

A. That comes from this communication from the NCAA.

12

Q. What weight, if any, did you give to the NCAA squad

13

size information?

14

A. Well, I think the coaches' input was more significant

15

but this certainly weighed heavily on this decision. I

16

would question any request that was significantly below or

17

over what the NCAA average squad size is.

18

Q. Now, I notice on the projected roster for 2010, 2011

19

if you include volleyball, with 14?

20

A. Yes.

21

Q. And is it the university's intention to eliminate

22

volleyball if the injunction in this case is lifted?

23

A. Yes.

24

Q. And did you look at what the resulting gender

25

distribution of athletes would be without the volleyball

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 44 of 139 351

1

team?

2

A. Yes, I did.

3

Q. And do you have those numbers handy?

4

A. I'm sorry, I don't have the number.

5

Q. Well, in general terms what did you find?

6

A. In general terms, given that the team is a relatively

7

small team, does not make a substantial difference in

8

terms of where the number is, including the team, but it

9

does represent substantial proportionality and in

10

comparison with our full-time undergraduate population.

11

Q. Now, I know you mentioned you granted a budget

12

increase in the track and field teams. Did you give any

13

other teams budget increases for next year?

14

A. I did, I increased the budget of the competitive

15

cheer team by $10,000.

16

Q. Now, with respect to the budget of the competitive

17

cheer team, was the coach held to her budget for the first

18

year?

19

A. No, she wasn't. This, again, is as we alleged more

20

about travel schedule, the extensive recruiting and so

21

forth, we'll make adjustments as we go forward to support

22

team appropriately. It's not unlike any team, once we

23

decide to do something, whether it's an academic program

24

or an athletic team, we're fully committed to insuring

25

there are appropriate resources to support it.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 45 of 139 352

1

Q. And have you let her know that for this coming year

2

that the same basic process would be in effect?

3

A. I haven't spoken to her directly. I believe that the

4

athletic director has though.

5

(Pause)

6

BY MR. BRILL:

7

Q. I have just a few more questions, Dr. Thompson.

8

Did you participate in the head coaching and hiring

9

of the head coaches for the track or competitive cheer

10

teams?

11

A. I did not participate in the hiring of the

12

competitive cheer head coach. My role in the hiring

13

process for the track coach was Carolyn Martin was

14

identified as the candidate that was preferred by the

15

athletics department. My only role in that was to offer

16

her the position and a salary for the job.

17

Q. Did you know the background of either of those --

18

well, I'll say with respect to Carolyn Martin did you, did

19

you know that she'd been at the university for any length

20

of time?

21

A. Yes, Carolyn Martin actually is an alumna of our

22

university. She's been there a very long time and she

23

actually ran track while she was a student and also served

24

in an assistant coaching role, so she certainly had

25

significant experience not only in track but at Quinnipiac

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 46 of 139 353

1

University specifically.

2

Q. Did you ever make any suggestion to any coach of any

3

women's team that the coach increase their roster for this

4

coming year?

5

A. No.

6

Q. So, any adjustments to the roster were based solely

7

on the coach's input?

8

A. All the adjustments to all rosters, decreases or

9

increases, came as a result of the coaches and based on

10

their experience of the previous year and in response to

11

my questions in terms of budget facilities, support, so

12

everything came from coaches.

13

Q. The last question I have is you were asked the

14

question on direct examination about whether you

15

investigated or knew of the university investigating

16

allegations of discrimination by Coach Sparks the

17

plaintiff in this case?

18

A. Yes.

19

Q. Can you tell us why, why you did not investigate

20

yourself or authorize anyone else to investigate such

21

allegations?

22

A. Because it was my personal decision not to engage in

23

a conversation with the plaintiff given that we're in the

24

middle of litigation.

25

MR. BRILL: That's all I have. Thank you.

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1

THE COURT: All right, any redirect?

2

MR. HERNANDEZ: Your Honor, I have some brief

3

cross on Mr. Brill's direct.

4

THE COURT: Very well.

5

REDIRECT EXAMINATION

6

BY MR. HERNANDEZ:

7

Q. Sir, as I understand your testimony, part of your

8

process in educating yourself about roster management at

9

Quinnipiac University included learning how the roster

10

management program had been run before you came on board,

11

is that correct?

12

A. That is correct.

13

Q. All right. And so you wanted to know, among other

14

things I take it how roster management target numbers had

15

been set prior to 2009?

16

A. Actually I didn't get into the determination of

17

roster numbers prior to -- my concern was more about how

18

it was being implemented.

19

Q. Okay.

20

(Pause)

21

THE COURT: I think it's the projector.

22

BY MR. HERNANDEZ:

23

Q. Just so we're clear here, sir, is it your testimony

24

that your policy with respect to adjustments to the target

25

roster management numbers was applied evenly to the men's

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 48 of 139 355

1

teams and the women's teams?

2

A. Was it my practice with respect to input? Is that

3

what --

4

Q. No, decisions to make changes to those numbers?

5

A. Yes.

6

Q. All right. And you understand, sir, that the women

7

student athletes at Quinnipiac University were the under

8

represented sex at QU in terms of athletics?

9

MR. BRILL: Object --

10

A. What year?

11

MR. BRILL: Yes, I object to the form of the

12

question. It's not clear.

13

MR. HERNANDEZ: All right.

14

BY MR. HERNANDEZ:

15

Q. Sir, you had an opportunity to read Judge Underhill's

16

decision in this case?

17

A. Yes, I did.

18

Q. And do you understand that as part of that decision

19

there was a finding that the women's student athletes at

20

Quinnipiac University were under represented at QU as far

21

as athletic participation?

22

A. Prior to 2009, '10, yes.

23

Q. Okay. And as part of your claimed remedial steps in

24

2009, 2010, it's your testimony that you applied the

25

roster management policies to the men's and women's teams

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 49 of 139 356

1

the same?

2

A. When I took responsibility as effective July 1st,

3

2009, I treated both men's and women's coaches and teams

4

the same.

5

Q. All right. But you understand, however, that at

6

least according to the finding of Judge Underhill, the

7

women's -- the women were under represented at Quinnipiac

8

University?

9

A. I'm looking forward. I'm not sure what you mean by

10

looking back. My personal feeling is that we have been in

11

compliance with Title IX all along. The issue of prong

12

one came as a result of the decision to eliminate teams.

13

Q. All right. So it's your testimony that in your view

14

Quinnipiac University has always been in compliance with

15

Title IX?

16

A. I believe that's the case as long as I've gone back

17

to look.

18

Q. And that's based upon your understanding of Title IX?

19

A. Yes, it's, my personal view was we were in compliance

20

but we were not in prong one prior to 2009, '10.

21

Q. And it's your understanding, your belief anyway based

22

on what you've learned about gender equity at Quinnipiac

23

University, that in applying that to what you know about

24

Title IX you believe Quinnipiac University has always been

25

in compliance?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 50 of 139 357

1

A. I don't know. I can't speak going back to our

2

history starting in 1929 and I know the law was initiated

3

in the early 1970s, so I can't go back that far.

4

In terms of my own review of things, my focus at this

5

point is are we in compliance today and are we insuring

6

that we're in compliance going forward. That's my

7

responsibility that I accepted when I took on the

8

additional role effective last July.

9

Q. Give me a date, how far back do you think Quinnipiac

10

University has been in compliance with Title IX?

11

MR. BRILL: Objection, Your Honor. It's really

12

irrelevant.

13

THE COURT: Yes, I'm not sure where we're going.

14

MR. HERNANDEZ: I'll move on, Your Honor.

15

BY MR. HERNANDEZ:

16

Q. Sir, you stated that you adjusted Coach Martin's

17

budget, is that correct?

18

A. Correct.

19

Q. She coaches four teams according to Quinnipiac

20

University, is that correct?

21

A. Yes, correct.

22

Q. And you adjusted her budget up ten thousand dollars?

23

A. Yes, that's right.

24

Q. The $10,000, which team was that for?

25

A. Again, as I explained to you yesterday, the coach has

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 51 of 139 358

1

discretion over how that is allocated across teams and how

2

they utilize it for different purposes so there's no line

3

item budgets under the team budget with respect to certain

4

number as to recruiting, certain number has to go for

5

uniforms and so forth.

6

So in hiring people, as I mentioned before, it's a

7

matter of having faith in the coaches based on their

8

expertise and how they performed that they can

9

appropriately allocate their budget across the various

10

needs and in a way that supports the team effectively.

11

Q. Did you take any steps to determine how Coach Martin

12

allocated that $10,000 across the four teams she has to

13

coach?

14

A. She hasn't allocated it yet because she hasn't

15

received it yet.

16

Q. Okay. Did you put any conditions on how she was

17

going to allocate that $10,000 across these four teams?

18

A. No. As I said, it's my expectation that a coach will

19

take the responsibility of effectively utilizing the

20

resources across their various needs.

21

Q. And as I understand it, one of the problems that you

22

found when you took over is that you thought that there

23

was insufficient oversight on the coaches, is that

24

correct?

25

A. I did have a concern about a lack of oversight, yes.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 52 of 139 359

1

Q. Okay.

2

A. Of course it's been corrected as a result of my

3

taking it over. I take this very seriously.

4

Q. Okay. And as I understand it from your direct

5

testimony, you identified three issues with roster

6

management; one, insufficient oversight. Two,

7

insufficient training of the coaches. And, three, roster

8

manipulation, and by that I mean dropping and then adding

9

after the first date of competition, is that correct?

10

A. Yes, I indicated I don't -- I think we're trying to

11

indicate there was wide spread manipulation. I don't

12

believe that's the case. I did see cases that the two

13

coaches, the men's baseball team and the men's lacrosse

14

coach did do some things as a result of their concern over

15

some players they had a personal relationship with. But

16

it was not, I don't believe their intent was to not comply

17

we have Title IX. It was more a personal issue in concern

18

for these individual students.

19

But those issues have been corrected and I feel very

20

strongly that, again as I said before, our house is in

21

order going forward.

22

Q. I think with respect to the women's soccer coach, you

23

indicated that you felt that 27 was too high, is that

24

correct?

25

A. For this upcoming year after a year of experience, he

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 53 of 139 360

1

felt that 27 was too high.

2

Q. What did he want to get down to?

3

A. He indicated in his email to me that he would like to

4

see a reduction of one to two players and I did reduce it

5

by two.

6

Q. Okay, and he got 25, is that correct?

7

A. That is his number for the upcoming year, yes.

8

Q. And just showing you Plaintiff's 60 in evidence, does

9

that indicate that Coach Clark said if he had his choice

10

he would have a roster of 22 to 24 players?

11

A. Yes, and then he goes onto say his hope was he could

12

reduce for the upcoming year from 27 by one to two

13

players.

14

Q. Okay and he's now down to 25?

15

A. Correct.

16

Q. He's one over what he, the max of what he wanted,

17

correct?

18

A. He's one, in terms of the beginning of the email,

19

yes.

20

Q. Did you take any steps, sir, to learn what the

21

process was for setting roster management target numbers

22

prior to July of 2009?

23

A. Well, I started to get an understanding of things

24

knowing that I was taking on responsibility and in

25

response to what's happening with respect to the lawsuit

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 54 of 139 361

1

and so forth. So I did start to think about and plan for

2

what I knew was going come become of my role effective

3

July 1st.

4

Q. Is that a yes?

5

A. Yes.

6

Q. All right. Sir, drawing your attention to your

7

testimony from May 14th, 2010. Copy for you. (Hands

8

witness) And referring counsel to page 15. Lines 19

9

through 25. Were you asked these questions and did you

10

give these answers?

11

Did you take any steps to learn about how the roster

12

management targets were set before July of 2009?

13

Answer: No.

14

Question: Did anyone tell you what the process had

15

been for setting roster management in target numbers prior

16

to July of 2009?

17

Answer: No.

18

Was that your testimony?

19

A. Yes, that's a different question than what you just

20

asked me a moment ago. The question you asked me was

21

whether I preparing for setting roster targets going

22

forward. This question, you asked me earlier --

23

MR. BRILL: Your Honor, I believe in all

24

fairness, he needs to show the witness the continuation of

25

that question and answer on the next page. It can't be

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 55 of 139 362

1

read aloud.

2

MR. HERNANDEZ: He has a copy of the transcript

3

in front of him.

4

MR. BRILL: Excuse me?

5

MR. HERNANDEZ: He has a copy of the transcript

6

in front of him.

7

MR. BRILL: I'll ask that the witness be allowed

8

to read the questions and the answers if he's intending to

9

impeach the witness with inconsistent testimony.

10

THE COURT: One, I don't have a transcript so I

11

can't decide. The witness already said his answer wasn't

12

inconsistent so I don't feel out of fairness it needs to

13

go further.

14

MR. BRILL: All right.

15

BY MR. HERNANDEZ:

16

Q. Coach Martin, you were relying on her, is that

17

correct?

18

A. Yes.

19

Q. All right. And do you know if she had ever been a

20

head coach before she took on the task of managing four

21

teams?

22

A. No, I don't believe she was.

23

Q. All right. Do you know if she had had any experience

24

in recruiting before she took on the task of coaching four

25

teams?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 56 of 139 363

1

A. I don't know what role she played in recruiting as an

2

assistant coach.

3

Q. Do you know what sort of administrative support Coach

4

Martin was receiving?

5

A. In terms of clerical or secretarial support?

6

Q. Yes, sir.

7

A. There's a shared secretarial resource within the

8

athletics department for all of the head coaches.

9

Q. And did she have anyone -- did she have any increased

10

access to administrative staff as a result of her increase

11

in the women's track team?

12

A. No.

13

Q. I just want to make sure I understand this. Now,

14

compared to Coach Sparks, how many years has Coach Sparks

15

been a head coach at Quinnipiac?

16

A. Not sure. I believe it may be four years or so.

17

Q. Okay. And she would have also had five years

18

actively recruiting, is that correct?

19

A. That's one of her duties as head coach would be

20

recruiting, yes.

21

Q. And you understand that recruiting is a significant

22

aspect in Division I athletics?

23

A. In terms of fielding a competitive team, yes.

24

Q. Can you tell the court what Coach Powers' experience

25

is as a head coach in a Division I school?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 57 of 139 364

1

A. I don't think she was a head coach in a Division I

2

school prior to taking on this. I believe that's the same

3

situation as Coach Sparks when she joined us.

4

Q. And she has no experience in actively recruiting for

5

a Division I school, is that correct?

6

A. That I can't tell you, I don't know.

7

Q. Well --

8

A. Other than her experience with Quinnipiac.

9

Q. You have no idea what her experience is as far as

10

recruiting?

11

A. No, I -- again, if I could give you an analogy. The

12

breadth of my responsibility is such that this would be

13

like me getting into minutiae with, micro management with

14

a department chairperson. The expectation is when you

15

hire somebody, they have the skills, capabilities and so

16

forth to carry out their duties effectively. I have that

17

confidence in my department chairs, my deans, all the

18

student affairs staff, all services staff, essential life

19

staff, the head coaches. If there's an issue or problem

20

brought to my attention, I address it; otherwise my

21

expectation is that they'll carry out their duties and

22

responsibilities as expected.

23

Q. Okay. And what about qualifications? You understand

24

now that Coach Powers is not NCAA certified for

25

recruiting?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 58 of 139 365

1

A. Actually she is. After your question yesterday, I

2

questioned our athletic director about it. She did pass

3

her test in May.

4

Q. That would be May of this year?

5

A. Correct.

6

Q. All right. And I believe I asked you yesterday when

7

deposits were due. Did you take any steps to -- I believe

8

you said June 1st?

9

A. That is correct.

10

Q. Did you take any steps to verify that?

11

A. No, I believe it was June 1st.

12

Q. Would you be surprised to learn that it's May 1st?

13

A. I'm sorry, you're right. It is May 1st.

14

Q. All right. So she passed her recruiting test after

15

deposits were due?

16

A. Yes, she did. It was sometime in May.

17

Q. So she had no opportunity to recruit off campus for

18

2009, 2010?

19

A. Not that I'm aware of.

20

Q. And are there any men on the competitive cheer team?

21

A. No, there are none.

22

Q. All right. So the 36 competitive cheer athletes,

23

we're talking about women, correct?

24

A. Yes.

25

Q. All right. None of the male athletes are

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 59 of 139 366

1

participating -- well, withdrawn.

2

MR. HERNANDEZ: If I could just have a moment,

3

Your Honor?

4

THE COURT: Sure.

5

(Pause)

6

MR. BRILL: I have nothing on redirect, Your

7

Honor.

8

THE COURT: He's not done.

9

MR. BRILL: I'm sorry.

10

THE COURT: But that's good to know.

11

MR. BRILL: Up to this point.

12

BY MR. HERNANDEZ:

13

Q. Sir, I believe part of your answer was that when

14

Quinnipiac University decides to do something, you commit

15

the necessary resources; was that your testimony did I

16

hear?

17

A. That is correct.

18

Q. Is that correct? And did Quinnipiac University make

19

a commitment to restart its women's volleyball team?

20

A. Yes, we did, as a result of the temporary injunction,

21

the injunction hearing.

22

Q. I'm talking about a few years ago. A few years ago

23

Quinnipiac University actively recruited Coach Sparks,

24

actively recruited student athletes, made promises and got

25

them to come to the campus to play volleyball for

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 60 of 139 367

1

Quinnipiac University, is that correct?

2

A. The volleyball team has been sufficiently supported

3

by a budget, coaching staff, facilities, and the same

4

levels of support that are provided to every one of our

5

athletic teams.

6

Q. And in March of last year, that support was pulled

7

out from underneath their feet, correct?

8

A. We did make a budget decision last year with regard

9

to two men's teams as well as the women's volleyball team,

10

that we needed to eliminate those for budgetary reasons.

11

Q. So Quinnipiac University withdrew its commitment to

12

the necessary resources to support volleyball, correct?

13

A. Again, it was a budget decision with respect to three

14

teams. It was not limited to women's volleyball.

15

Q. Okay, I'm not talking about budget. I'm talking

16

about people. Living, breathing people. Quinnipiac

17

University withdrew the resources to support the women's

18

student athletes and Coach Sparks. Fair?

19

MR. BRILL: This is just argumentative. There's

20

no factual dispute here about this decision.

21

THE COURT: Well, it's cross. That goes to

22

prior testimony. I'm allow it.

23

BY THE WITNESS:

24

A. I don't feel good about telling any teams. My

25

primarily concern, my role in particular is with regard to

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 61 of 139 368

1

student well being and student welfare. So I wouldn't say

2

that -- I mean there are 40 employees as well and either

3

their positions were cut or were not refilled. So this is

4

a very tough decision process throughout the economic

5

crisis. This was not something that was done lightly. It

6

was one difficult consideration for well being. So it's

7

not something that I feel good about but it was a

8

necessary decision given our economic condition and our

9

budgetary situation at the time.

10

Q. And, sir, drawing your attention to your earlier

11

testimony, you said that after Coach Fairchild expressed

12

her concerns, you had meeting with her, is that correct?

13

A. Yes, I had several meetings with Coach Fairchild.

14

Q. And you discussed her concerns about the target

15

number?

16

A. Are you referring to last year or this upcoming year?

17

Q. All right. For 2009, 2010?

18

A. Yes, I did meet with her.

19

Q. All right. And what about with respect to an email

20

that she sent regarding the target roster number for 2010,

21

2011?

22

A. I did not speak to her directly. I offered to. Her

23

response was she was going to be out of town I think in

24

Texas for a period of time and she indicated to me she

25

would be getting back to me to have that personal meeting.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 62 of 139 369

1

She's not done so yet.

2

MR. HERNANDEZ: I have no further questions,

3

Your Honor.

4

THE COURT: All right.

5

MR. BRILL: Nothing on redirect.

6

THE COURT: Very good. Sir, you're excused.

7

Thank you.

8

THE WITNESS: Thank you.

9

(Witness excused.)

10

MR. ORLEANS: Your Honor, before Mr. Webb takes

11

the stand, with respect to your ruling this morning on the

12

privilege question, defense counsel has quite reasonably

13

asked for a copy of the unredacted document that you ruled

14

was not privileged, and unfortunately we didn't bring it

15

with us. I wonder if it might be possible for your staff

16

to make a couple copies of -- one for each lawyer.

17

THE COURT: Tell you what, we can do that.

18

MR. ORLEANS: Of that one?

19

THE COURT: I was going to say I can return --

20

the unredacteds were given to me for use in camera. I

21

don't intend to docket them in any way, even under seal

22

unless anybody thinks that's necessary for further review.

23

So I'll have my clerk during the next break make two

24

copies of the portion that were disclosed.

25

MR. ORLEANS: That would be useful. And then we

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1

could have one and disclose one to the other side.

2

THE COURT: All right.

3

MR. ORLEANS: Thank you.

4

THE COURT: Sure. And you're calling Mr. Webb?

5

MS. GALLES: He's in the restroom.

6

THE COURT: This counts toward your time.

7

MR. BRILL: Can we have a two minute restroom

8

break?

9

THE COURT: You know what --

10

MS. GALLES: There he is.

11

THE COURT: We'll take our morning break. Why

12

don't we take 15 minutes, come back at one until 11.

13

MR. ORLEANS: May we strike Mr. Webb's location

14

from the record? It's a little more personal than we

15

expected.

16

(Whereupon a recess was taken from 10:25

17

o'clock, a. m. to 10:40 o'clock, a. m.)

18

MS. GALLES: Your Honor, plaintiffs would like

19

to call Jeff Webb who's the next witness. We do have one

20

housekeeping matter related to Mr. Webb though. It's

21

Exhibit Three of Mr. Webb's report which is Trial Exhibit

22

135, was supplemented before his deposition and

23

unfortunately the supplement which is just basically the

24

most recent list of teams was not included, and we've

25

provided a copy and showed it to the defense counsel.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 64 of 139 371

1

I understand that when the point comes to admit

2

it, they may object, but at least for purposes of making

3

sure that all of the books and everything have the right

4

exhibit, maybe submit that to the books or however --

5

THE COURT: Sure.

6

(Hands Court)

7

MS. GALLES: -- it needs to be done. I made a

8

bunch of copies.

9

MS. FRIEDFEL: I've got it. Thank you.

10

THE CLERK: Actually I could use two more

11

copies.

12

MS. GALLES: All right, there you go.

13

THE COURT: This is replacing or supplementing?

14

MS. GALLES: Supplementing, because what's in

15

there is for 2009 and that was for 2010.

16

THE COURT: Very good.

17

Sir, please stand and raise your right hand

18

J E F F

W E B B ,

called as a witness on behalf

19

of the Plaintiff, having been duly sworn by the Clerk,

20

testified as follows:

21

THE COURT: Please be seated, state your name.

22

Spell your last name for the record.

23

THE WITNESS: Jeff Webb. W-E-B-B.

24

25

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 65 of 139 372

1

DIRECT EXAMINATION

2

BY MS. GALLES:

3

Q. Mr. Webb, what is your current position?

4

A. I'm the Chairman and chief executive officer of

5

Varsity Brands Incorporated.

6

Q. And what is Varsity Brands?

7

A. Varsity Brands is a company that provides products

8

and services for all ages of cheerleaders and cheer

9

service.

10

Q. What is the Universal Cheer Association?

11

A. The Universal Cheerleaders Association is a division

12

of Varsity Brands and its primary purpose is to provide

13

training and competition opportunities for cheerleaders.

14

Q. So, as head of Varsity Brands you are the head of the

15

Universal Cheerleaders Association?

16

A. I am.

17

Q. And what is the National Cheerleader Association, or

18

NCA?

19

A. NCA is similar to the Universal Cheerleaders

20

Association, provides educational services for

21

cheerleaders. It's just a different brand with a slightly

22

different curb aluminum.

23

Q. And is it affiliated in any way with Varsity Brands?

24

A. Yes, it's also a division of Varsity Brands.

25

Q. So, as head of Varsity Brands are you also the head

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 66 of 139 373

1

of the National Cheerleader Association?

2

A. Yes, ultimately.

3

Q. Okay. What is the United Spirit Association?

4

A. United Spirit Association is also a division of

5

Varsity Brands. It is, it's a regional provider, West

6

Coast primarily, provider of educational services to

7

cheerleaders.

8

Q. Okay. And are you the -- is it affiliated in any way

9

with Varsity Brands?

10

A. Yes, it is. It's a division, a division of Varsity

11

Brands.

12

Q. Okay, and as head of Varsity Brands, are you

13

ultimately head of the United Spirit Association?

14

A. Yes.

15

Q. Why are there three separate organizations there as

16

opposed to one; is that historical or how did that happen?

17

A. Yes, these -- into these grew up separately. In

18

fact, the National Cheerleaders Association and United

19

Spirit Association at one time were part of separate

20

companies that were acquired by Varsity.

21

Q. How did you first get involved in cheerleading?

22

A. I was a cheerleader in my senior year in high school,

23

Dallas, Texas, and following that, I was a cheerleader at

24

the University of Oklahoma. And during the summers my job

25

was, my summer job was as an instructor for the National

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 67 of 139 374

1

Cheerleader Association at training camps throughout the

2

southeast and midwest.

3

Q. And what was your first job out of college?

4

A. I went to work as a director of external programs for

5

the National Cheerleader Association based in Dallas.

6

Q. And what were your responsibilities in that position?

7

A. I was responsible for developing the educational

8

curriculum for the high school and collegiate programs,

9

primarily in camp. I was also responsible for directing

10

the larger camps in the country.

11

Q. Why did you decide to take a job with a cheerleading

12

group outside of -- when you got out of college?

13

A. Well, throughout my -- again, my summer job was as an

14

instructor and I developed a real passion for teaching

15

cheerleading and training cheerleading and the NCA job

16

gave me a chance to do that, and also gave me a pretty

17

good living.

18

Q. How long did you work at the NCA?

19

A. I was there two and-a-half years.

20

Q. And what did you do after leaving NCA?

21

A. I started my own organization, Universal Cheerleaders

22

Association.

23

Q. And why did you start a new organization?

24

A. Well, I began -- I'd begun to develop a different

25

concept, nuance approach to cheerleading that was really

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 68 of 139 375

1

different than what NCA's historical approach had been,

2

and that approach included adding more athleticism,

3

entertainment to the traditional role of cheerleading.

4

And I felt that within the NCA confines, because it had

5

been there for 20 years and had its own, you know, format

6

and traditions, I didn't feel like I'd had the opportunity

7

to actually, to do that.

8

Q. All right. At some point in your -- well, what kinds

9

of things did you add to cheerleading as part of your

10

development of UCA?

11

A. Well, we added, you know -- well, what I most recall

12

now, we added a real athletic component and also

13

contained. And the idea that the concept that I really

14

came up with was that the sport was changing and becoming

15

more of an entertainment venue really, that cheerleading

16

was part of that. And a promoter of that can also change,

17

and we felt like it would be more effective for

18

cheerleaders to be more athletic, to provide entertainment

19

during the, kind of the dead spots, if you do --

20

Q. Excuse me, what do you mean by dead spots?

21

A. The boring parts of the game which we all are

22

familiar with. I think except for volleyball, of course.

23

Q. You mean basically half time, time outs?

24

A. Yes, half time, time outs, just pre-game, so on.

25

Q. And when did you start the UCA?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 69 of 139 376

1

A. Our first games were the summer of 1975.

2

Q. I should ask when did you start working at the NCA?

3

A. That would have been January of 1972.

4

Q. Okay. And, again, what did you say for --

5

A. UCA started in the Fall of 1974 and our camps were,

6

the first camps were the Summer of 1975.

7

Q. Okay. For UCA?

8

A. For UCA.

9

Q. Now, at some point with the UCA, did you start

10

creating any kind of competitions for cheerleaders?

11

A. Yes, yes.

12

Q. Would you please explain the circumstances for doing

13

so?

14

A. Yes. We wanted to get more, have visability for our

15

concept and style of cheerleading and we were too small to

16

have kind of national footprint in conducting our camps

17

and we believed that the best way to get exposure for what

18

we were doing was to get cheerleading on television, our

19

type of cheerleading. And we, through a contact with a

20

new shoe company I was introduced to some television

21

production people and they came to one of our camps and

22

looked at what was happening, thought it was very visual

23

and said, well, we can -- we think this has television

24

opportunities but we need a format that gives us some

25

drama. And so we indicated why don't we create a

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 70 of 139 377

1

competition between cheerleading groups? And that's what

2

we did.

3

Q. Okay. And so when you added that competition format

4

for television, did you think you were changing

5

cheerleading or creating a new sport?

6

A. No, absolutely not. We were trying to, again, get,

7

you know, visibility and promotion of our style of

8

cheerleading.

9

Q. Okay. And when you startrd working with these

10

television folks, about what time was that?

11

A. 1980.

12

Q. Okay. And eventually did any colleges participate in

13

these competitions?

14

A. Yes, several years later.

15

Q. Okay, and were these like the football cheerleaders

16

or what we might in this trial call sideline cheerleaders?

17

A. Yes, these were the classical, the only cheerleading

18

squads that the schools had.

19

Q. How many competitions a year were offered for these

20

college teams?

21

A. One.

22

Q. Is that -- so how many competitions a year -- like if

23

you're the, you know, the University of Florida or

24

whatever, how many competitions a year did they have to

25

compete in?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 71 of 139 378

1

MS. FRIEDFEL: Objection. Could we get a

2

clarification of the time period?

3

MS. GALLES: He just said in the 1980's.

4

MS. FRIEDFEL: Okay so we're still in the

5

eighties. Thank you.

6

BY THE WITNESS:

7

A. One.

8

Q. Now, do you still conduct and provide the competition

9

opportunities for the college groups?

10

A. Yes.

11

Q. And do colleges still attend your events?

12

A. Yes.

13

Q. Okay. How many events does the Universal Cheer

14

Association put on for colleges each year?

15

A. One.

16

Q. And the National Cheerleading Association, how many

17

events does it put on for colleges each year?

18

A. One.

19

Q. And is that called the NCA Nationals?

20

A. Yes.

21

Q. Okay. How long have you been -- the Universal Spirit

22

Association, does that still run any competitions for

23

cheerleaders?

24

A. The United Spirit Association?

25

Q. Thank you for correcting me.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 72 of 139 379

1

A. Yes, it does have competitions for cheerleaders.

2

They have one for colleges.

3

Q. Okay. And is that still the case through the -- as

4

we stand here in court today in 2010?

5

A. Yes.

6

Q. So, have UCA, NCA and United Spirit Association --

7

did I get it right that time?

8

A. Yes.

9

Q. Thank you. So they have been running one competition

10

a year since, ever since the 1980s? College competition?

11

A. NCA, UCA started their college competitions about

12

1990.

13

Q. Okay. And you're still running those competitions?

14

A. Yes.

15

Q. Okay. And at any time during running any of those

16

competitions, United Cheerleaders Association, National

17

Cheerleaders Association or United Spirit Association, did

18

you think that you were running a sports competition?

19

A. No.

20

Q. Over the years from when you first started the

21

competitions in the 1980's through this school year, have

22

you changed the way you conduct or run these competitions

23

at all?

24

A. The competitions are essentially the same. Rules

25

may, may vary slightly but they are essentially the same.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 73 of 139 380

1

Q. Could you please describe for us -- let's take the

2

Universal Cheerleader Association, their college

3

competition, could you please describe for us what is

4

involved?

5

A. Each team that enters -- and it's open to anybody.

6

Each team that enters submits a videotape during the fall

7

of their cheerleading team in action leading a crowd.

8

They have classical responsibility; that can be everything

9

from being on the sideline at football games, it can be

10

pep rallies, it can be alumni functions where they really

11

are demonstrating their spirit leading competitions and

12

they get a score for that.

13

Then when the teams sign up to enter the actual

14

physical competition which takes place in the middle of

15

January, that crowd score goes with them, and then they,

16

in Orlando they perform a two minutes, two and-a-half

17

minutes, two minutes and 15 second routine that includes,

18

again, a cheer or chant, some type of crowd leading

19

component, and then also a minute and-a-half of dance,

20

routine with dance moves and acrobatics.

21

Q. So, is there any other component of the competition

22

for any given time?

23

A. No.

24

Q. Okay. Now, the National Cheerleaders Association,

25

okay, do you run that national event?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 74 of 139 381

1

A. Yes.

2

Q. And where does that take place?

3

A. Daytona Beach, Florida.

4

Q. And could you please describe what that competition

5

or what that event looks like?

6

A. Again, the teams sign up. It's open to anybody.

7

They come to Daytona and the first day they present with,

8

again, a portion of the routine that precedes the dance

9

routine separately. It goes with the first. That

10

includes kind of a spirit leading traditional performance

11

where they meet the crowd, they do signs and flags and

12

megaphones and solicit a crowd response for their score.

13

Q. How long is that?

14

A. That is approximately a minute long.

15

Q. Okay.

16

A. And then that's followed by an approximately two

17

minute routine that is the dance routine with acrobatics.

18

Q. So is that the entire performance of the cheerleading

19

squad at nationals?

20

A. Yes.

21

Q. So is the entire performance three minutes or less?

22

A. Yes.

23

Q. And just to clarify, when you say that, you mention

24

that anyone can enter; does this mean any college

25

cheerleading team anywhere in the country can enter the

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 75 of 139 382

1

event?

2

A. Yes.

3

Q. Do they have --

4

A. I'm sorry, speaking of the NCA?

5

Q. Yes, NCA.

6

A. Yes.

7

Q. Do they have to go through any kind of qualifying

8

rounds to earn a right to go or just anybody, all-comers?

9

A. Anybody.

10

Q. Now, let's back up to the Universal Cheer

11

Association. Is that the same for the Universal Cheer

12

Association?

13

A. Yes.

14

Q. Okay. Now, at the Daytona event, are there different

15

divisions or just everybody who shows up?

16

A. There are different divisions.

17

Q. And could you please explain what the different

18

divisions are for all the events that take place at

19

Daytona?

20

A. In general the divisions are divided into size of the

21

school, and then also whether it's coed or all female.

22

And then there's also division based on ability level

23

which would be like intermediate or advanced so you have

24

this matrix of divisions.

25

Q. And is there also a dance competition that goes along

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 76 of 139 383

1

at the same time as the cheer competition?

2

A. Yes, there is.

3

Q. Is there also a mascot competition that goes along

4

with --

5

A. Yes.

6

Q. And could you please describe for us the basis of the

7

dance competition that goes along the same lines?

8

A. The dance competition is for separate dance or pompom

9

teams. That's what they are referred to. Approximately

10

two minute routine. All dance with no acrobatics allowed.

11

Q. Okay. And what about the mascot routine? What does

12

that involve?

13

A. The mascot routines are generally, you know, team or

14

a routine for a couple minutes and it's more of a skit.

15

Q. Now, next year are you going to be adding a division

16

for -- let me back up.

17

Do you know what the NAIA, at National Association of

18

Intercollegiate Athletics is?

19

A. Yes.

20

Q. Do you know what the NCAA is, the National Collegiate

21

Athletic Association?

22

A. I do.

23

Q. And so next year are you going to be starting a

24

division for NAIA schools?

25

A. Yes, we're discussing it and it looks like we're

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 77 of 139 384

1

going to do that.

2

Q. Is that something that's going to start next year?

3

A. Next year.

4

Q. Is that going to be for the traditional sideline

5

cheerleader, the NAIA schools?

6

A. Yes. To the best of my knowledge all the schools

7

that participate have the classical cheerleading function,

8

spirit.

9

Q. And these NCA Nationals in Daytona, has Quinnipiac

10

ever participated?

11

A. Yes, they have, yes.

12

Q. Before this year, to your knowledge, before this year

13

had Quinnipiac ever entered NCA as a varsity or sport

14

cheer team?

15

A. No.

16

Q. Now, who is the -- do you have a Director of College

17

Programs for the Universal Cheerleader Association?

18

A. Yes.

19

Q. And who is that?

20

A. John White.

21

Q. Do you have a director of college programs for the

22

National Cheerleaders Association?

23

A. Yes.

24

Q. Who is that?

25

A. Bill Boggs.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 78 of 139 385

1

Q. And do they report to you?

2

A. Yes.

3

Q. Now, over the years of running these competitions,

4

UCA, NCA, have you and your staff, meaning your directors

5

of college programs, developed a relationships with the

6

teams and their coaches?

7

A. Yes.

8

Q. Okay. So do either you or those two gentlemen that

9

you mentioned have familiarity with the types of teams and

10

the coaches who coach them?

11

A. Yes, with every single one of them.

12

Q. Okay. Mr. Webb, I would like to -- well, as part of

13

running those competitions, do you or your directors of

14

college programs keep track of the types of teams that

15

enter, for example, whether they call themselves --

16

whether they are classical cheerleading teams or whether

17

they call themselves a varsity sport cheer team?

18

A. Yes.

19

Q. Okay. Mr. Webb, and do you and your directors of

20

college programs, is that something that you keep in the

21

ordinary course of your business?

22

A. Yes.

23

Q. And why do you keep track of that information?

24

A. Well, beginning about six years ago, the University

25

of Maryland declared that it was attempting to develop

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 79 of 139 386

1

this cheerleading squad to be considered a sport and was

2

especially, as I say, working a fine line and we felt that

3

that was potentially a new direction, something we should

4

be aware of and we should follow to see what the effect

5

might be.

6

Q. Okay. And before the last year or two, had any

7

school that entered any of your competitions ever called

8

itself a varsity sport besides Maryland?

9

A. Until a couple years, only Maryland.

10

Q. Okay.

11

A. Couple years ago.

12

Q. Okay, I'd like you to turn to Exhibit Three in your

13

report, which is Exhibit 135.

14

MS. FRIEDFEL: Your Honor, we object to the use

15

of this exhibit. When Mr. Webb was deposed about this

16

document he testified that he did not know how it was

17

prepared, he didn't know what arrangement was used to

18

prepare it. The designations as to whether something was

19

sideline, competitive or club was not made by him. They

20

were made by his employees and his employees aren't here

21

and I can't cross examine them to find out what the basis

22

of their knowledge is.

23

MS. GALLES: Your Honor, I do believe that she's

24

slightly mischaracterizing the deposition but what

25

Mr. Webb said was he personally did not create these

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 80 of 139 387

1

charts but that his directors of college programs created

2

them and they have personal knowledge of every single team

3

on here, they were created in the ordinary course of

4

business, he has personal knowledge of many of these

5

teams. But otherwise we would have -- there are several

6

hundred or thousand, you know, Varsity employees but they

7

ultimately report to Mr. Webb and I really don't think

8

there's any dispute regarding the content of which teams

9

are sideline cheer. These are business records of Mr.

10

Webb's organization.

11

THE COURT: Let me make sure I understand the

12

objection. What's the objection?

13

MS. FRIEDFEL: The objection is, well, for one,

14

I wasn't able to thoroughly question him about the

15

document in the course of his expert disclosure because

16

when I asked him if he created the document or if he knew

17

what information was used, he testified that I believe

18

this was created by John White and Bill Boggs.

19

And I said did they rely on any documents in

20

preparing this?

21

I'm sure -- they have knowledge, I'm sure they

22

just went to the actual registration list. That's what

23

they do. Yes, they would have knowledge of this.

24

And I said, my question was would they rely on

25

documents.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 81 of 139 388

1

And you said they relied on their registration

2

list. And he said that's what I assume, I didn't ask them

3

how they got it, this is what they do, they work with this

4

all the time. And I'm sure they just went, I would assume

5

they just went to the registration documents and I'm sure

6

that's accurate.

7

So he didn't know. He's assuming that they went

8

to registration documents, he didn't know for sure.

9

And when I followed up with Ms. Galles she

10

emailed me and told me that they looked up registration

11

documents for the identities of the teams that competed at

12

their competition.

13

If that's what they want to put it in for,

14

that's fine, I have no objection. They have a business

15

record of who competed in their competition. But she also

16

told me that the basis of the categorization, whether it

17

was sideline or competitive, it was based just on their

18

knowledge and what they happen to know from their

19

communications and their knowledge of the coaches. But I

20

can't ask him questions about that because they are not

21

here.

22

MS. GALLES: She certainly could have chosen to

23

depose any of those gentlemen, that this is their boss and

24

this information was provided or created in the normal

25

course of business for him, for their Varsity Brands, and

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1

he ultimately is the head of Varsity Brands.

2

THE COURT: All right, I take it the objection

3

is a hearsay objection?

4

MS. FRIEDFEL: Yes, Your Honor.

5

THE COURT: Sir, was this document created --

6

why was it created?

7

THE WITNESS: It was created because we had --

8

I'd asked in our meetings with our collegiate directors,

9

and there are only three, I asked them to track the teams

10

that participate and the way they are categorized so we

11

can watch how things develop. This is based originally

12

beginning five or six years ago in Maryland, saying

13

they're trying to move to a sport.

14

This was done exactly the way that I would ask

15

for a report. There's no way I would sit there and

16

develop this report myself. These are vice presidents of

17

our company who in the typical course of business provide

18

me this exact format, this exact report. I'm highly

19

confident it's accurate.

20

THE COURT: So it was prepared for your

21

business, not for your expert report.

22

THE WITNESS: Were certainly both.

23

MS. GALLES: Well --

24

THE COURT: Well, okay.

25

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 83 of 139 390

1

BY MS. GALLES:

2

Q. Let me back up. The first part of these deal --

3

these are for 2009, are they not?

4

A. Yes.

5

Q. Okay, and you weren't asked to provide some kind of

6

expert report before winter or spring of this year, were

7

you?

8

A. That is correct.

9

Q. So those were prepared long before you were ever

10

asked to participate in this case, were they not?

11

A. Yes.

12

MS. FRIEDFEL: Your Honor, I'd also like to

13

point out with respect to the supplement that Ms. Galles

14

identified earlier as the 2010 nationals, when I

15

questioned him about this document at his deposition it

16

includes a bunch of columns before the school names that

17

say classical and group, and when I asked him what some of

18

these meant he couldn't tell me. I asked him what CD

19

meant, he didn't know. I asked him what MA meant, he

20

didn't know.

21

THE COURT: Well, okay, but that's a different

22

problem. You know, a witness isn't always expected to

23

know everything about every business record. The question

24

for admissibility is not --

25

MS. FRIEDFEL: Fair enough.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 84 of 139 391

1

THE COURT: It's is this a business record, so

2

that's what I'm trying to sort out.

3

Sir, give me a better sense who prepares this,

4

when and why.

5

THE WITNESS: Yes. These lists are prepared

6

again by the directors of our collegiate programs and

7

again we have one for the three separate collegiate

8

programs. These are developed for the Universal Spirit

9

Association, National Cheerleader Association. These are

10

the primary national competitions. And these, again, are

11

executives in the company. They are charged with knowing

12

everything about every one of their accounts, the colleges

13

they work with.

14

So, for instance, from the National Cheerleaders

15

Association report, Mr. Boggs would be responsible for

16

knowing every coach, knowing the type of team it is,

17

knowing what their environment is at their school, knowing

18

how they classify themselves. That's his responsibility.

19

It's his only responsibility. All he has is college. So

20

for college he only has the college competition and then

21

the four to five camps that are run. So he is charged

22

with having a -- just a very, very deep knowledge of each

23

one of these programs.

24

THE COURT: Okay. Is the information

25

classifying sideline, club or sport taken from an

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1

application or a registration document submitted by the

2

team or is that an evaluation made by someone who works --

3

THE WITNESS: That would be taking the actual

4

registration and Mr. Boggs and Mr. White would clarify

5

with the team what they are. But, but again, again, Your

6

Honor, these directors know every -- there aren't that

7

many teams, 150 teams or 200 teams. They knew every

8

single team. They know every coach. They know the

9

purpose of their program. They can tell you all kinds of

10

detail.

11

THE COURT: I understand.

12

MS. GALLES: And I can clarify one other point,

13

Your Honor.

14

BY MS. GALLES:

15

Q. What the UCA -- are only sideline teams even allowed

16

to participate by rule of the UCA?

17

A. Yes.

18

MS. GALLES: So it's another reason why we know

19

the accuracy of that.

20

MS. FRIEDFEL: As to the UCA but not NCA.

21

MS. GALLES: Right.

22

THE COURT: Okay.

23

MS. GALLES: Again we say if they wanted to

24

depose Mr. Boggs, they certainly could have.

25

MS. FRIEDFEL: It's not our obligation to depose

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 86 of 139 393

1

every employee.

2

THE COURT: All right, all right. We're trying

3

to figure out if it comes in or not. Let's figure out if

4

it comes in.

5

I'm still uncertain whether this information of

6

the sideline sport club clarification that the team

7

indicates on a registration form or whether it's simply

8

your employee understands that Armstrong State College is

9

a sideline squad.

10

THE WITNESS: On the actual NCA registration I'm

11

not sure. It's not the kind of detail that I would be

12

involved with, and what I would do is rely on my directors

13

for the accurate information which, Your Honor, we take

14

from the registration. And, again, I can't emphasize

15

enough they are, they are in constant contact all year

16

long with these different programs and these different

17

coaches. Not only are they responsible for getting, for

18

promoting their participation in our programs, these

19

directors also serve as a resource for those colleges.

20

They come to us any with any particular problems they may

21

have or to help them, you know, to help them with issues

22

with their team and their administrations.

23

THE COURT: Does the NCA group competitors,

24

according to this sideline, club or sport classification,

25

do you have a sport --

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 87 of 139 394

1

MS. GALLES: There's more background to that

2

that if you'd like me to lay it, Your Honor --

3

THE COURT: All right.

4

BY MS. GALLES:

5

Q. Okay. Before last year, did any team besides

6

Maryland even represent itself to be a varsity sport to

7

your team?

8

A. It was Maryland and possibly Fairmont State and

9

that's it.

10

Q. So is this the first year, last year or this year,

11

the first year, the first time that any of these teams

12

even represented themselves as something other than a

13

sideline or a club team?

14

A. Beyond Maryland and Fairmont State, yes.

15

Q. Okay, so it's really all about what they are doing

16

this year?

17

MS. FRIEDFEL: Further, Your Honor, when I

18

inquired about the documents that were used to prepare

19

this, Ms. Galles represented to me that the registration

20

forms did not contain any information about these

21

classifications and so I didn't pursue getting them

22

because if they didn't have the information, it wasn't

23

necessary.

24

THE COURT: Okay.

25

MS. GALLES: I believe Mr. Webb said he's

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 88 of 139 395

1

relying on his director of college programs who in the

2

course of his day to day activities it's his

3

responsibility to have intimate knowledge of each and

4

every one of these teams and, therefore, has personal

5

knowledge of what these teams are and has provided and

6

collected that information every year since Maryland and

7

provides it to Mr. Webb every year since Maryland, and --

8

THE WITNESS: This is our business to know this.

9

This is what we do.

10

MS. GALLES: It is their, we would represent it

11

is their business record. And also, despite their

12

objections to it, I really didn't think there's any

13

dispute as to who's a varsity team and who's not a varsity

14

team or purporting to be a varsity team in the litigation.

15

MS. FRIEDFEL: I don't know there's a dispute as

16

to the varsity teams, Your Honor, except with respect to

17

Oregon. The only other -- the question that really is

18

about club teams, I don't know about all the club teams in

19

the country. I only know about the teams that Quinnipiac

20

competes with.

21

THE WITNESS: We do.

22

THE COURT: The supplement we got today, NCA

23

2010, how did your business use that document?

24

THE WITNESS: We used it primarily again to

25

track the trends in cheerleading, where it is and what

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 89 of 139 396

1

it's becoming, so that we can be on top of that and

2

participate in it.

3

And, for instance, on the, on the club teams, we

4

have situations -- again I talked about this as being a

5

resource. We have situations, for instance, where you

6

have the actual cheerleading squad for Ohio State, for

7

instance, who cheers for football games and does all the

8

alumni functions, is under the athletic department as a

9

support group. They also participate in the UCA

10

competition. Well, we required at the UCA competition

11

only the teams that have run the full gamut. Full

12

cheerleaders, leadership, so on, participate.

13

NCA you have the Ohio State Club Team. Well,

14

there are some times during the year there are disputes

15

between these two teams and actually the Ohio State

16

cheerleaders may come to us and say these people are

17

misrepresenting themselves in the community and we have a

18

problem with that. Well, they look to us to help try to

19

solve that. So we have to know the dynamics, what's

20

taking place at every single one of these institutions.

21

And how they mesh together and what their role is. People

22

depend on us to do that.

23

So we track the type of team that this is at

24

each institution that we work with. So we use it for that

25

purpose and then, of course, again, as I said, we also use

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 90 of 139 397

1

it to track the trends on what is developing in

2

cheerleading for this very purpose.

3

MS. GALLES: So I guess in addition to our

4

believing this is a business record, obviously there was

5

at residual hearsay rule where Mr. Webb has, you know,

6

gone over in great detail about how this information is

7

collected and, you know, the degree to which he relies on

8

it in his business and his directors of college programs,

9

particularly Mr. Boggs, relies on it.

10

THE WITNESS: There's also been discussion over

11

the year about, it's again a trend that we are continuing

12

to track about whether the club cheerleaders should have

13

their own separate division and not be competing against

14

the classal cheerleaders as well. So it's incumbent upon

15

us to track how many club teams there are, if that's a

16

trend that's growing, that it's getting smaller. If it's

17

creating problems for the classical teams, if it's

18

creating internal problems at the universities. So we

19

track this information to have a handle, a very accurate

20

handle on whether, what the dynamic is at each

21

institution. It's part of our business.

22

THE COURT: Okay. Who prepared it?

23

THE WITNESS: Sir?

24

THE COURT: Who prepared these documents?

25

THE WITNESS: The National Cheerleaders

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 91 of 139 398

1

Association document was prepared by Mr. Boggs who's the

2

director of that program. And the UCA document was

3

prepared by Mr. White, who's the director of that program.

4

THE COURT: And when were they prepared?

5

THE WITNESS: I can't give you an exact date,

6

Your Honor.

7

THE COURT: Well, for example, the first one

8

says UCA College Nationals. Was that document prepared at

9

or about the time of the UCA College Nationals?

10

THE WITNESS: Yes, it would typically be. I

11

would assume it would be this type of report I would get

12

after the event takes place.

13

THE COURT: That was my next question. How was

14

the document used within the company?

15

THE WITNESS: Again it's used --

16

THE COURT: Circulated, I mean. Who gets it?

17

THE WITNESS: How is it circulated? If -- let's

18

take Mr. White. Mr. White would circulate it to Mr. Boggs

19

and to me, and that's probably it. Again, it's a small

20

group that deals with colleges because we also have high

21

school camps and high school competitions, so this is a

22

smaller program for us. There are only a limited number

23

of us that are actually engaged or involved directly in

24

the college program.

25

MS. GALLES: And I would say these are prepared

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 92 of 139 399

1

every year right after the competitions and have been done

2

long before this lawsuit, as I recall.

3

THE WITNESS: That's right.

4

THE COURT: Do you wish to voir dire anymore?

5

MS. FRIEDFEL: I do have one question, Your

6

Honor.

7

VOIR DIRE EXAMINATION

8

BY MS. FRIEDFEL:

9

Q. Mr. Webb, if you look at the UCA National colleges

10

speech, you testified a few minutes ago that under the

11

rules of the UCA college nationals, only sideline

12

cheerleading teams can participate, is that right?

13

A. Only -- only traditional cheerleading teams that,

14

that you know, are on the sideline but also deal with

15

school spirit. They are the classical cheerleading team,

16

that is right.

17

Q. But not competitive club teams?

18

A. Correct.

19

Q. And not competitive varsity sport teams?

20

A. Correct.

21

Q. Could you explain to me then why there's a column on

22

this page that says competitive team only, unless it was

23

prepared for purposes of this lawsuit?

24

A. I would imagine that this is the form that Mr. White

25

and Mr. Boggs would use and it's the same form.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 93 of 139 400

1

Q. But it's not the same form. The next form has three

2

columns: Sideline, club and competitive?

3

A. I'm having a little trouble finding it. Give me a

4

second.

5

(Pause)

6

Yes, I'm not sure why. Competitive team is all

7

there.

8

MS. FRIEDFEL: That was my only question, Your

9

Honor.

10

THE COURT: All right. I'm going to admit these

11

documents as business records.

12

MS. GALLES: All right.

13

THE COURT: So 135 is full.

14

(Whereupon Plaintiff's Exhibit 135 was marked

15

full.)

16

BY MS. GALLES:

17

Q. Now, this particular year in 2009, 2010, I believe

18

you said that just because we had the long break there,

19

just want to make sure that before, before last year or

20

this year, that only Maryland and possibly Fairmont State

21

represented themselves as a varsity cheer team; is that

22

accurate?

23

A. Yes, that's my understanding.

24

Q. Now, this year -- for this year's 2009, 2010

25

competition, okay, was this the first year that any other

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 94 of 139 401

1

schools beside Maryland and possibly Fairmont State held

2

themselves out to be a varsity cheer sport team?

3

A. To the best of my knowledge, yes.

4

Q. At some point during this past year, did you become

5

aware that some schools, some additional schools were

6

calling themselves varsity sport cheer teams?

7

A. Yes.

8

Q. Okay. And did you take any action in response to

9

learning that, hey, there's these additional schools --

10

were these schools that had participated in NCA

11

Nationals before?

12

A. Yes.

13

Q. Okay. Did you take any action in response to

14

learning that?

15

A. The only action was to tell Mr. Boggs to continue to

16

follow the, you know, what was happening, get as much

17

information as he could from the schools, find out what

18

was the driving factor at their institutions so that we

19

could consider it at a later date.

20

Q. And at the NCA Nationals in Daytona, did -- did

21

Mr. Boggs or any other of your employees conduct any

22

meetings with these schools to talk about what they were

23

intending to do?

24

A. Yes. There was a, there was a meeting with these

25

particular schools.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 95 of 139 402

1

Q. Okay. And as a result of that meeting, meeting with

2

those schools, have you been considering whether you're

3

going to, whether you're going to allow them to

4

participate against the other teams that have

5

traditionally been in your competition?

6

A. Yes, we have had discussions.

7

Q. Okay. And why have there been such discussions. Or

8

let me back up.

9

Did you think it would be fair -- have you received

10

any complaints from any of your usual participants, usual

11

teams about whether they should be competing against

12

schools that claim to be varsity sport teams?

13

A. Yes, according to Mr. Boggs there have been several

14

complaints.

15

Q. Okay. And did that trigger at all as to whether you

16

should allow these new sport cheer teams to continue to

17

participate?

18

A. Well, the complaints would have been one part of that

19

consideration. The fact that there would now be more than

20

just one or two would lead us to believe that at some

21

point a different division should be created to level the

22

playing field.

23

Q. Okay. So do you think it would be fair to have these

24

sport teams or the schools that purport to be sport teams

25

compete against the regular sideline teams?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 96 of 139 403

1

A. I don't think so.

2

Q. Okay. Now, when schools like Maryland or Quinnipiac,

3

when they come and they show up at your event, at your

4

nationals, do they compete with your, the rules of your

5

organization?

6

A. Yes, they do.

7

Q. Are those sideline rules?

8

A. Those are rules that are primarily designed by the

9

classical sideline, so-called sideline cheerleaders, yes.

10

Q. And do they compete in the same format that you

11

talked about earlier, providing the cheer component and

12

the two and-a-half minute routine component?

13

A. Yes.

14

Q. Okay. Now, are you aware at all or have you become

15

aware at all of the organization known as the National

16

Competitive Stunt and Tumbling Association?

17

A. Yes.

18

Q. Okay, is that something that was just created this

19

year?

20

A. That's what I understand, yes.

21

Q. Okay. Do you have any understanding of what the

22

format is for those competitions?

23

A. Well, it's my understanding and our records confirm

24

that, that the teams or the schools who are part of that

25

organization first has to have competed in the traditional

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 97 of 139 404

1

or against classical cheerleading teams and sideline

2

teams.

3

Q. And using the sideline format?

4

A. Yes.

5

Q. Okay.

6

A. They also have created a different format that I

7

think is still in development, it's my understanding, that

8

they use in meets with each other.

9

Q. Okay. Now, this new format, do you know of any high

10

schools or amateur or club teams that use or have ever

11

used this new NCSTA format?

12

A. No.

13

Q. As far as you know, has anyone in the history of

14

cheerleading ever used that format before this year?

15

A. No.

16

Q. Do you know what USA Cheer is?

17

A. Yes.

18

Q. Okay. What is USA Cheer?

19

A. USA Cheer IS the generally accepted national

20

governing body or authority for cheerleading in the United

21

States.

22

Q. Were you involved in setting up that organization?

23

A. Yes.

24

Q. Okay. And as it currently is constituted, does it

25

govern sideline, sport or what does it govern?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 98 of 139 405

1

A. It governs sideline, collegiate and high school

2

levels and it also, it IS also governing is what's called

3

allstar club cheerleading.

4

Q. Okay. At this point in time, is there any part of

5

USA Cheer that has anything to do with -- well, let me

6

back up.

7

I'd like to point out is USA Cheer the same thing as

8

USA Federation for Sport Cheering?

9

A. Yes.

10

Q. Okay. It's the same entity?

11

A. Yes, USA Cheer is the shorter --

12

Q. Version?

13

A. -- name.

14

Q. Okay. So do you know why the word sport is in the,

15

in the official name?

16

A. Yes. When we had decided that it was important to

17

create this governing entity for purposes of structure and

18

safety and so on, you know, we wanted to at least have the

19

flexibility so that if cheerleading developed some type of

20

outgrowth that it became a sport, it would be included as

21

well.

22

Q. Okay. Now, was part of that in order to present it

23

to Sport Accord?

24

A. I can't -- I can't remember if that was the full

25

intention but we wanted more flexibility to have this

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 99 of 139 406

1

organization part of the other types of international

2

federations.

3

Q. And what is the sport --

4

A. Like Sport Accord?

5

Q. What is Sport Accord?

6

A. Sport Accord, it's actually a private company. Its

7

main function is to provide a forum for communication

8

between many different types of international federations.

9

Q. All right. Is chess part of Sport Accord?

10

A. Yes.

11

Q. Is billiards part of Sport Accord?

12

A. I believe so, yes.

13

Q. Are there any other games or activities that you

14

would not ordinarily characterize as a sport that are part

15

of Sport Accord?

16

A. Sport accord takes the very broad general description

17

of sport. And I give you chess. It not only includes

18

your classical sports like international track and field,

19

the original sport, but again, very broad things like

20

chess.

21

Q. Okay. Now, when -- does Varsity Brands, does it have

22

anything to do with providing insurance for cheerleaders?

23

A. Yes.

24

Q. Okay, could you please --

25

MS. FRIEDFEL: Your Honor, I fail to understand

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 100 of 139 407

1

the relevance of the insurance issue. What's the

2

difference whether there's insurance required or not?

3

That has nothing to do with the case.

4

MS. GALLES: Well, we haven't been able to

5

examine him yet to demonstrate the relevance. Or would

6

you like me to just describe it?

7

THE COURT: Well, I'll allow a little of this.

8

We'll see where we're going to go.

9

BY MS. GALLES:

10

Q. Mr. Webb, does the NCAA provide catastrophic injury

11

for sport teams?

12

A. Yes, for on the field athletes.

13

Q. Okay. Does the NCAA provide catastrophic insurance

14

for cheerleading teams?

15

A. Yes.

16

Q. Okay. What kinds of cheerleading teams does it

17

provide insurance for?

18

A. The classical holistic cheerleading squad that,

19

again, involves all the school spirit activities as well

20

as compete.

21

Q. So when a cheerleading team comes and participates at

22

your events, at your competitions --

23

A. Yes.

24

Q. -- is the covered by the NCAA's insurance policy?

25

A. No.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 101 of 139 408

1

Q. So, do these cheerleading squads as part of -- do

2

they have to obtain separate independent insurance to

3

participate in these competitions?

4

A. Varsity Brands provides that insurance for the

5

participating competitions.

6

Q. And, is that insurance only for during those events?

7

A. Travel to and from those events and at these events,

8

competitions or camps.

9

Q. And have you looked into how expensive that insurance

10

is if it were, if a school had to go out and get that

11

insurance for its competitive team?

12

A. If it was a separate team that wasn't, again,

13

classical cheerleading team which is covered by the NCAA

14

insurance, and it was not, you know, then, we have looked

15

just to compare the insurance rates that we're getting and

16

we can't even find where you can get it. So I assume it

17

would be very expensive but I'm not sure.

18

Q. But you looked into --

19

A. Yes.

20

Q. -- whether you can find arrange to find a way for

21

the teams to get it and thus far have not been able to do

22

such?

23

A. That is correct.

24

Q. What was the American Association of Cheer Coaches

25

and Administrators?

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1

A. It's a nonprofit entity comprised of several thousand

2

cheerleading coaches across the United States and their

3

mission is to help promote cheerleading, to represent

4

cheerleading coaches and to create a safe environment for

5

cheerleaders to participate in.

6

Q. Okay. Do you have any role in the American

7

Association of Cheer Coaches and Administrators?

8

A. I'm the President.

9

Q. Okay, I would like you to look at what's Exhibit Six

10

in your report, please. I believe it's Exhibit 138 over

11

all.

12

A. Okay.

13

Q. This is entitled, it's a position paper of the

14

American Association and Cheerleading Coaches and

15

Administrators. Do you recognize this document?

16

A. Yes.

17

Q. And I'd like to direct you to the second page where

18

it says the best category for cheerleading?

19

A. I'm trying to find that.

20

Q. The second page of the --

21

A. Uh huh. (Affirmative.)

22

Q. It says the best category toward the end of the

23

article in position.

24

MS. FRIEDFEL: I'd just like to note my

25

objection because they're introducing this document.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 103 of 139 410

1

Mr. Hernandez earlier represented this witness was not

2

going to be presenting any testimony about what is termed

3

a proper sport, and this whole article is about the

4

definition of a sport under OCR rules.

5

MS. GALLES: He's not representing himself as an

6

expert in Title IX, he's representing himself as an expert

7

in cheer. We haven't even tried to introduce it yet.

8

MS. FRIEDFEL: I'm just trying to follow the

9

judge's rule.

10

THE COURT: So, what's the objection?

11

MS. FRIEDFEL: The objection is to the extent

12

they are trying to use this position paper to present

13

Mr. Webb and his organize as experts on cheer and they're

14

saying that cheer is not a sport, that they earlier

15

represented that they were not going to be doing that.

16

MS. GALLES: Well, Your Honor, he's entitled to

17

represent what he believes and what his organization

18

believes and, indeed, the OCR guidelines, which he's not

19

going to be discussing the OCR guidelines. The OCR, ones

20

of those OCR guidelines is what do authorities in the

21

activity think and what do the organizations representing

22

the activity think, and so obviously what does the

23

American Association of leading coaches and administrators

24

think is relevant and important to that guideline.

25

Mr. Webb is certainly not going to be talking about these

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1

OCR guidelines but the only way to find out what do these

2

organizations and what do the people who are experts in

3

cheer want or think, is to ask them.

4

THE COURT: Well, okay. I'm going to, I'm going

5

to sustain the objection.

6

MS. GALLES: Okay.

7

MS. FRIEDFEL: Thank you, Your Honor.

8

MS. GALLES: Obviously we would ask -- we

9

disagree just for the record.

10

THE COURT: Yes, you don't have to do that. By

11

offering it --

12

MS. GALLES: Okay. Let me take one moment, Your

13

Honor, make sure I covered everything.

14

THE COURT: Sure.

15

(Pause)

16

BY MS. GALLES:

17

Q. Mr. Webb, why is cheerleading so important to you?

18

A. Well, cheerleading is something I have had a passion

19

for since I was very young man. And you know, I've been

20

able been fortunate enough over the past 30, 35 years to

21

take sort of a concept that I created and to be able to

22

transform this athletic activity into something that

23

millions of kids can participate in and I honestly believe

24

that as cheerleading exists today which is what we

25

originally envisioned when we started UCA, we began that

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 105 of 139 412

1

transforming process, we envisioned that the traditional

2

role of cheerleading with leadership, with spirit race,

3

combined with what we do on the field, entertainment and

4

an element of competition, we believe that the result

5

speaks for itself.

6

Most people tell you that cheerleading has grown

7

three to four times over the past 25 years and it involves

8

millions and millions of kids, and we know from the

9

feedback we get the impact it's had on so many lives and

10

it's because of the total experience, not just one. So

11

that's why it's important.

12

Q. And during any of these 30 years or whatever that you

13

have been running cheerleading camps, running clinics,

14

running cheerleading competitions, have you at any time

15

thought or considered that you were running varsity sport

16

competitions?

17

A. No.

18

Q. Okay. Now, do you have, do you have anything

19

against, you know, in the future something evolving out of

20

cheer that becomes a sport?

21

A. No, absolutely not. I mean if there is some type of

22

legitimate outgrowth of what has been classical

23

cheerleading and it provides a format for more kids to

24

participate, we're all about that. We totally support it.

25

Our issue is it has to be different enough that it's not

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1

confused with cheerleading so it doesn't threaten

2

classical cheerleading because we know what it is, we know

3

how valuable it is. We get to participate.

4

So it has to be a different now. Maybe use some of

5

the disciplines or styles of cheerleading so there's no

6

confusion and that particularly means the name. You know,

7

we don't think there should be any way that cheer or

8

leader is used in any type of entity that is not

9

cheerleading because we think it creates confusion and we

10

think it risks classical cheerleading which we think is

11

very valuable.

12

Q. So most of the schools that are representing

13

themselves as competitive teams, are they skill just doing

14

classical cheerleading?

15

A. To which teams are you referring? I'm sorry.

16

Q. Whether you're participating in events or events just

17

like yours, are they still just doing what are considered

18

traditional cheerleading?

19

A. You're not --

20

Q. I'm not talking about NCSTA.

21

A. Okay, yes, yes. They may have a competitive element

22

which we support as recognition. It's not the main thing

23

but they are the classical teams. They may compete once

24

or device a year, but what they primarily do are the

25

traditional school spirit.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 107 of 139 414

1

Q. Do you think it would be fair for schools that may

2

eventually evolve into something different to compete

3

against classical sideline cheerleading?

4

A. No. Different resources, different function. No, I

5

don't think it's fair.

6

Q. Okay. And do you have any financial reason to be,

7

for wanting to stop a school from evolving a new sport out

8

of cheerleading?

9

A. Absolutely not. The fact of the matter is we know

10

from our year long contacts. We conduct coach's meetings

11

at all of our camps and our events. We get feedback about

12

what's happening. We know those coaches want cheerleading

13

to continue like it is today. So we don't, and because,

14

again, the things I said, kids get out there. The fact is

15

that at the college level, they want to be at the games,

16

they want to be at the ball games, they want to be at the

17

tournaments.

18

MS. FRIEDFEL: Objection, Your Honor --

19

BY MS. GALLES:

20

Q. Stop when there's an objection. You have to --

21

MS. FRIEDFEL: I'm sorry to interrupt but he

22

can't testify what students want or don't want.

23

THE COURT: Let's get back to the question. It

24

was about whether you have a financial reason.

25

MS. GALLES: Yes.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 108 of 139 415

1

A. And that's the whole context I bring that up. So we

2

know that, we -- based on that information, it is our

3

strong feeling that the kids who participate in classical

4

cheerleading now, you're not going to take an existing

5

team and take a competition. It would be adding another

6

team. Okay? If you add another team, then from a

7

business standpoint, that means we have more potential

8

customers to sell products and services to. So from a

9

business standpoint, you know, it's counterintuitive to

10

think we would be against it.

11

Q. So, but as you sit here today with your 30 some years

12

of experience in cheerleading, including cheerleading

13

competition, do you believe that those competitions are

14

sport?

15

A. No.

16

Q. Do you believe that they are varsity sport?

17

A. No.

18

MS. FRIEDFEL: Objection, Your Honor. This is

19

exactly what they said they were not going to use this

20

witness for.

21

MS. GALLES: He is allowed to talk about what

22

his 35 years, whether he believes his own activity is a

23

sport. He is not --

24

THE COURT: Well, you got that answer but then

25

he went on. So I'll sustain the objection.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 109 of 139 416

1

MS. GALLES: Okay. Again, we would just

2

register for the record, Your Honor, the OCR factors and

3

indeed, asking that very question of the people most

4

knowledgeable is somehow you have to be able to represent

5

that factor and that's why we are offering that evidence,

6

so it's on there.

7

THE COURT: Okay.

8

MS. GALLES: May I have one moment to confer

9

with co-counsel to see if there's anything else?

10

(Pause)

11

BY MS. GALLES:

12

Q. I believe just one more question, Mr. Webb.

13

A. Okay.

14

Q. You've been involved in cheerleading for 35 years.

15

Is there, do you know if there's any kind of a consensus

16

or -- amongst various organizations knowledgeable about

17

cheer, including yours, about whether cheer is or should

18

become a sport?

19

A. Yes.

20

Q. And what is that consensus?

21

A. Well, our organization has a strategic partnership

22

with the NCAA and the National High School Federation and

23

both of the -- this is with the branding people of the

24

NCAA and, you know, the position with regard to classical

25

cheerleaders is they should remain that, they should

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 110 of 139 417

1

remain in their current role.

2

MS. GALLES: I have no more questions at this

3

time.

4

THE COURT: All right, let's take a five minute

5

recess and pick up with cross.

6

(Whereupon a recess was taken from 11:45

7

o'clock, a. m. to 11:50 o'clock, a. m.)

8

MS. GALLES: Your Honor, I'd like to take care

9

of one more duty I'm sorry I forgot to do before the

10

break.

11

BY MS. GALLES:

12

Q. Mr. Webb could you please turn to what's been marked

13

as -- I just had it out. The exhibit number 132, which is

14

what you have in front of you.

15

A. Number --

16

Q. No, it's Exhibit 132 in the bigger picture but it's

17

what you have in front of you?

18

A. Oh, the entire, yes.

19

Q. It's marked report of Jeff Webb?

20

A. Yes.

21

Q. Okay. Is that the expert report that you prepared

22

for this particular case?

23

A. Yes.

24

Q. Okay, and does it accurately reflect your views and

25

opinions relating to this case?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 111 of 139 418

1

A. Yes.

2

Q. And one mention in there, since preparing this

3

report, have you learned that Oregon this semester moved

4

from, moved from sideline into competitive cheer?

5

MS. FRIEDFEL: Objection, Your Honor. That's a

6

question, Your Honor. I have a further objection to the

7

introduction of the report but I assume we're going to get

8

to that.

9

THE COURT: Yes, it is leading, so let's

10

rephrase it.

11

MS. GALLES: I'm sorry.

12

BY MS. GALLES:

13

Q. Is there any correction that you want to make in the

14

report relating to the University of Oregon?

15

A. Yes, I've learned that the University of Oregon is

16

attempting to or is part of the NCSTA and attempted to

17

create a separate type of cheerleading team.

18

Q. Okay.

19

A. Strictly competition.

20

Q. And again, I'm sorry, and this accurately reflects

21

your opinions relating to the issues in this case?

22

A. Yes, it does.

23

Q. Okay.

24

MS. GALLES: Your Honor, we would move to admit

25

Mr. Webb's report except for Exhibit six which you have

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 112 of 139 419

1

excluded as just a way of cutting short the testimony in

2

the case.

3

THE COURT: All right. Just to be clear, that

4

would be Exhibits 132?

5

MS. GALLES: Yes, sir, Exhibit 132 through 137.

6

THE COURT: 137.

7

MS. GALLES: Would not include 138 because you

8

already ruled on that.

9

THE COURT: Any objection?

10

MS. FRIEDFEL: Yes, we object to the

11

introduction of the report for a couple of reasons. One

12

is it includes some of the representations with respect to

13

what is or is not a varsity sport which the plaintiffs

14

earlier represented they were not going to try to

15

introduce evidence of.

16

And second, the report is filled with hearsay

17

and I'm not referring to the facts that the report in and

18

of itself is hearsay, which I understand you ruled with

19

respect to the Lopiano report yesterday. But it includes

20

statements that would not be admissible even if he were to

21

make them here in court today.

22

He talks about, in the report he talks about the

23

fact that the NCSTA meet format doesn't work. When I

24

asked him at his deposition, he testified he's never been

25

at a NCSTA meet. He never reviewed materials provided by

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 113 of 139 420

1

the NCSTA about their meet. And his opinion was solely

2

based on what his employee Bill Boggs told him based on

3

what Bill Boggs saw and what Bill Boggs was told by

4

parents at the NCSTA meet.

5

THE WITNESS: Bill Boggs was at the meet.

6

MS. GALLES: The judge has to --

7

THE WITNESS: I'm sorry, I'm sorry.

8

MS. GALLES: The judge has to --

9

THE WITNESS: I'm sorry.

10

MS. FRIEDFEL: And there are further objections

11

to some of the exhibits if you would like, Your Honor.

12

THE COURT: All right, well, I'm going admit

13

132. It seems to me that to the extent it contains

14

hearsay, an expert is permitted to rely on hearsay if he

15

or she would rely upon it in the ordinary course of their

16

activities. Here it seems to me that this witness fits

17

that bill. He's in the business of cheerleading and to

18

the extent that the example you just gave is something

19

that he's relying on in the ordinary course of his

20

business, it seems to me he can rely upon it in his expert

21

report as well. It seems to me you can also cross him on

22

that and I think it goes more to the weight than to the

23

admissibility.

24

MS. FRIEDFEL: We further object to Exhibit 134

25

which is the, regarding the insurance as completely

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 114 of 139 421

1

irrelevant. The types of insurance that are available for

2

sideline cheerleaders have nothing to do with competitive

3

cheer as a varsity sport.

4

MS. GALLES: I would address two points. Number

5

one, that information is directly off of Varsity's

6

website. It's the information that Varsity provides to

7

the schools that enter its competitions in order to notify

8

them that they are going to compete, they need to go out

9

and get insurance. And that was just one of the factors

10

that were established in terms of why cheer has presently

11

constituted as not a sport and also Quinnipiac's

12

representation that cheer is going to be so much less

13

expensive than volleyball. That, you know, that that's

14

not true and insurance is either very expensive or

15

impossible to get.

16

And so we would say, number one, it's irrelevant

17

because of that and it's admissible as part of the

18

business records that Quinnipiac -- or excuse me. That

19

Mr. Webb's company provides to the entrants in its

20

tournaments every year.

21

MS. FRIEDFEL: Just for the record, Your Honor,

22

the position taken is not that the competitive cheer team

23

would be less expensive than the volleyball team.

24

THE COURT: Okay. I'm going to sustain the

25

objection to 134. It does not appear to me to be

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 115 of 139 422

1

especially relevant.

2

MS. GALLES: Okay.

3

THE COURT: And I don't believe it's a business

4

record. The fact it's on the website doesn't make it a

5

business record.

6

MS. GALLES: I would say it becomes a business

7

record because it's what they provide in the course of

8

their business to the teams that enter their tournament so

9

that the teams can be aware of, hey, you don't have

10

insurance and we've arranged a way for you to get

11

insurance and this is the information so --

12

THE COURT: Okay, I understand.

13

MS. GALLES: Just so it's clear.

14

THE COURT: Any other objections?

15

MS. FRIEDFEL: Yes. As to the Exhibit 136, Your

16

Honor.

17

MS. GALLES: Actually we're going to withdraw

18

that exhibit. It's going to be dealt with with another

19

witness.

20

THE COURT: All right.

21

MS. FRIEDFEL: The only objection I have, Your

22

Honor to 137 is the extent it contains hearsay statements

23

about what was motivating other schools when they chose to

24

present, create competitive cheer teams. I assume it's

25

being offered for its truth.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 116 of 139 423

1

MS. GALLES: 137 is sort of a guest editorial

2

that Mr. Webb wrote for the NCAA news which is sort of the

3

newspaper, or it used to be a newspaper put out by the

4

NCAA for its members. It's now all on line.

5

THE COURT: Well, the motivations for creating

6

competitive cheer team don't seem especially relevant to

7

me, so there's no harm in allowing it in is what I'm

8

saying.

9

MS. FRIEDFEL: If it comes in as his opinion on

10

these issues I don't have any particular objection so long

11

as it's not offered for the truth.

12

MS. GALLES: We basically wanted to offer it,

13

Your Honor --

14

THE COURT: Okay, it's in.

15

MS. GALLES: Okay, thank you.

16

(Whereupon Plaintiff's Exhibit 137 was marked

17

full.)

18

THE COURT: Cross?

19

CROSS EXAMINATION

20

BY MS. FRIEDFEL:

21

Q. Good morning, Mr. Webb.

22

A. Hi.

23

Q. Now, Quinnipiac University's varsity competitive

24

cheer team is not engaged in cheerleading, is that --

25

A. It's not what?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 117 of 139 424

1

Q. Engaged in cheerleading.

2

A. I don't think so.

3

Q. Now, you testified earlier that your organization was

4

in discussions about whether or not the schools in the

5

NCSTA are permitted, were going to be permitted to compete

6

in your NCA competition, is that right?

7

A. No, asked to compete against the sideline teams.

8

Q. Against the sideline times teams, okay.

9

Now, isn't it true that the teams that are part of

10

the NCSTA have already told your organization that they

11

are not going to compete in the NCA championship next

12

year?

13

A. Most recently, yes. Before that they were going to

14

compete so at this point they've said they are not going

15

to.

16

Q. Right, so -- you are no longer in discussions about

17

whether or not, who they are going to compete against,

18

right? Because they've --

19

A. That is correct.

20

Q. Okay. Now, you also testified that you were not

21

aware of any team that had -- any club team, excuse me,

22

that had competed in the NCSTA format, is that right?

23

A. Correct.

24

Q. Well, isn't it true that Michigan State and Ohio

25

State's have both not only competed in the NCSTA meet

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 118 of 139 425

1

format but they have hosted competitions in that format?

2

A. I'm not sure about that.

3

Q. You don't know?

4

A. I don't know.

5

Q. And you've never been to a NCSTA meet, is that

6

correct?

7

A. Correct.

8

Q. And you've never reviewed the format of that meet?

9

A. I've been briefed on it by our collegiate director

10

Mr. Boggs who, one of his responsibilities was to go and

11

audit it and provide me with a brief of its content and

12

how it was conducted.

13

Q. All right. So, in your report where you say that the

14

NCSTA meet format didn't work, what is the basis of this

15

statement?

16

A. That was primarily from Mr. Boggs.

17

Q. And at your deposition, you testified that he, what

18

he told you was that he felt like it didn't really work,

19

that it wasn't that interesting, there weren't many crowds

20

and that didn't really provide the kind of venue in the

21

event they were hoping for, right?

22

A. That is correct.

23

Q. So he didn't tell you about any technical issue with

24

respect to how the competition worked, did he?

25

A. He did.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 119 of 139 426

1

Q. He did?

2

A. Yes, he did.

3

Q. What did he tell you?

4

A. He told me that the format included individual

5

competition and tumbling, individual competition and

6

partner stunts, routine members and then an actual team at

7

the end that was identical to what the classical

8

cheerleaders do.

9

Q. Right, but that's not anything about why in any way,

10

shape or form the format didn't work, is it?

11

A. He felt like it didn't work from a, the way it was

12

perceived by the audience. He didn't feel like it was

13

very exciting. He didn't feel like it worked from a lens

14

that we would primarily look at on an event working which

15

would include not only the legitimacy of the competition

16

but crowd reaction, environment and so on. That's the way

17

we would look at it.

18

Q. Right. And you run your competitions for

19

entertainment purposes, is that what you testified

20

earlier?

21

A. That's one of the reasons, yes.

22

Q. One of the reasons, right. And the NCSTA is being

23

run as a varsity sport, is that right? That's what they

24

are, that's their claimed purpose?

25

MS. GALLES: Objection, foundation.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 120 of 139 427

1

THE COURT: I'll allow it.

2

A. From what I've seen, they are attempting to develop a

3

format that would be considered a varsity sport.

4

Q. And the primary purpose of a varsity sport is

5

competition, isn't it? It's not entertainment.

6

A. Yes, I would think so, yes.

7

Q. Okay. Now, you testified earlier that you're the

8

president of the USA Cheer, is that right?

9

A. Correct.

10

Q. Now, I'd like you to take a look at Defendant's

11

Exhibit F N. It's in the binders that are next to you. I

12

believe it should be in Exhibit Binder three of three.

13

(Pause)

14

BY MS. FRIEDFEL:

15

Q. Now, one of the purposes of USA Cheer is to be

16

recognized by the U. S. Olympic Committee as the governing

17

body for sport cheering, is that right?

18

A. Yes.

19

Q. Okay. And the Olympic Committee is responsible for

20

the Olympic games, right?

21

A. That is one of their responsibilities.

22

Q. Right, and is there any dispute that the Olympic

23

committee is made up of sports?

24

A. No.

25

Q. Thank you. Now, if you look at, on page 3?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 121 of 139 428

1

A. Page what?

2

Q. I'm sorry, on page four of the bylaws?

3

A. Okay.

4

Q. Paragraph F. One of the purposes of USA Cheer is to

5

coordinate athletic -- I'm sorry. I may have a wrong

6

paragraph here -- is to sanction and coordinate athletic

7

participation in competition, is that right?

8

A. Yes.

9

Q. And another purpose is to coordinate and provide for

10

a participation by athletics in national athletic

11

competition in cheer, is that right?

12

A. By athletes.

13

Q. By athletes, okay. And let's go then to page two of

14

the report where it says at 1.3 and -- right?

15

A. Page two?

16

Q. Page two of the report, article one definitions? And

17

it defines an athlete as one who's eligible under ICU

18

rules to compete in international athletic competition

19

sanctioned by the ICU?

20

A. Right.

21

Q. And that's the International Cheer Union?

22

A. Correct.

23

Q. And are you the president of the International Cheer

24

Union?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 122 of 139 429

1

Q. The athletes, they participate, in those competitions

2

they participate in a two and-a-half minute cheer routine

3

competition, is that right?

4

A. Yes.

5

Q. Okay.

6

A. And -- go ahead.

7

Q. And you further define an active athlete for purposes

8

of the USA Cheer bylaws --

9

A. Which, what are you referring to?

10

Q. Right preceding paragraph 1.2. I'm sorry.

11

A. Okay.

12

Q. As one who has within the last ten years competed at

13

an official national championship which was either

14

sanctioned or under the jurisdiction of the USACF, the NCA

15

or the UCA, correct?

16

A. Correct.

17

Q. And those organizations also sponsor competition in

18

that two and-a-half minute format, is that right?

19

A. Yes.

20

Q. Now, let's go to page five, paragraph 2.2, the bylaws

21

further state that USA Cheer supports the competitive

22

aspects and activities of cheer which function more as a

23

sport, is that right?

24

A. Uh huh. (Affirmative.) Yes.

25

Q. Now, if you could look at Exhibit F Q?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 123 of 139 430

1

A. Okay.

2

Q. This is a letter that you wrote?

3

A. Uh huh. (Affirmative.)

4

Q. I'm just going to put this up on the Elmo so that

5

everybody can see it. One second.

6

Now, in this letter you wrote that the ICU has had

7

remarkable success in building its membership and

8

addressing its primary concerns which are to assist and to

9

support global development of cheer and to be an effective

10

voice in representing the athletes, coaches and officials

11

who make up our sport. Is that right?

12

A. Yes.

13

Q. And you refer to cheer as a sport eight times in this

14

document, didn't you?

15

A. Yes, in the general sense is how I meant it, which is

16

a very loose definition that would be used in terms of a

17

Sport Accord where you include even chess.

18

Q. So when you were testifying earlier that you didn't

19

think that cheer is a sport, you were using a different

20

definition of sport than you used in all these documents?

21

MS. GALLES: Objection, Your Honor. They

22

repeatedly said they did not want him testifying about a

23

definition of sport and now she's soliciting from him

24

exactly what she would not allow me to solicit from him.

25

THE COURT: Well, no, I think there's a

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 124 of 139 431

1

distinction between sport and varsity sport, and that's

2

why I drew the line in your examination, so I'll allow

3

this.

4

BY THE WITNESS:

5

A. Would you ask the question again, please?

6

Q. You were using a different definition a few minutes

7

ago when you testified that you don't think cheer is a

8

sport that you use in all these other documents where you

9

refer to cheer as a sport?

10

A. I'm not trying to be difficult. Please tell me

11

exactly what you refer to, what I said, when did I say it.

12

Q. A few moments ago when Ms. Galles questioned you she

13

asked you if you considered cheer a sport and you said no.

14

A. Yes, that is correct.

15

Q. Right, but in all these documents that relate to

16

cheer competition, you referred to cheer as a sport?

17

A. Yes, in the broad athletic activity sense, not in the

18

form of like a varsity sport.

19

Q. Right, but your testimony earlier was not a varsity

20

sport because the court didn't allow you to answer that

21

question, did it?

22

A. I don't understand what you mean by that.

23

Q. Withdrawn.

24

Now, let me see here. Okay. You testified earlier

25

that your, that the NCA is planning to or is in

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 125 of 139 432

1

discussions about sponsoring a separate division from the

2

the NAIA, is that correct?

3

A. Yes.

4

Q. And I'd like to direct your attention to Exhibit F O.

5

MS. GALLES: Your Honor, we object to F O and if

6

she proceeds to F P which apparently are press materials

7

from the NAIA, obviously there's no one here from the NAIA

8

or anyone competent to testify about the NAIA, so they of

9

course are hearsay, they are not relevant to any extent.

10

If she cares to characterize what the NAIA is doing, we

11

believe it would be a misrepresentation of that.

12

So basically hearsay and relevance. If they

13

want to talk about the NAIA is doing they can bring

14

somebody from the NAIA in.

15

MS. FRIEDFEL: Your Honor, I'm not offering it

16

for the truth. If you give me a little latitude --

17

THE COURT: What's the purpose of it?

18

MS. FRIEDFEL: The purpose of it is to show Mr.

19

Webb was aware that the NAIA was representing that their

20

competition in the NCA's competition is for their varsity

21

cheerleading teams, that he was aware of that. That's

22

all.

23

MS. GALLES: And again, Your Honor, we would say

24

that is irrelevant because whether a school wants to claim

25

that something is a sport and then call it that, who knows

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 126 of 139 433

1

why they may or may not be calling it, and of course as we

2

know and as we believe that schools are calling it a sport

3

simply to count it for Title IX purposes, not because it

4

legitimately is a sport, so if they want to get into a

5

side trial about what NAIA is or is not doing, that's

6

fine.

7

THE COURT: Why don't you ask him what he's

8

aware of and see whether we even need this document.

9

MS. FRIEDFEL: I'll back up a little bit.

10

BY MS. FRIEDFEL:

11

Q. In your Exhibit 5 to your report, it was entered into

12

evidence a few minutes ago?

13

THE COURT: 137.

14

MS. FRIEDFEL: Thank you, 137.

15

A. Okay.

16

Q. You indicate that one of your objections to varsity

17

competitive cheer teams is they cause confusion, is that

18

right?

19

A. Correct.

20

Q. And you think that they make some schools think they

21

can just count their sideline teams, is that right?

22

A. Yes.

23

Q. Now, as I -- if you look at Exhibit F O, you're aware

24

that the NAIA is representing that their teams are varsity

25

sports, is that right?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 127 of 139 434

1

MS. GALLES: Same objection, Your Honor.

2

THE COURT: Well, why don't you just ask him if

3

he's aware without looking at them?

4

BY MS. FRIEDFEL:

5

Q. Fair enough. Are you aware that NAIA is representing

6

that the teams that will be competing in your, in the

7

competition that your organization is going to conduct are

8

varsity teams?

9

A. I believe from talking to, especially Mr. Boggs, that

10

the teams that are competing are their classical

11

cheerleading teams who also do all the sideline material.

12

Q. All right, but you understand that I'm not asking you

13

to make a judgment as to whether or not they should or

14

should not be characterizing them as varsity teams. I'm

15

just asking you are you aware of the fact that the NAIA is

16

representing that they are varsity teams?

17

A. Yes.

18

Q. Yes. And your company contracted with them to run a

19

competition for them, is that right?

20

A. Right.

21

Q. And you weren't concerned that that was going to

22

create confusion?

23

A. Yes, we have, we have registered that concern.

24

Q. Yeah, but you were still willing to take their money

25

and run that competition?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 128 of 139 435

1

A. We're still talking about it. And there's that

2

amount of money, by the way.

3

Q. Now, sideline cheerleaders attend your company's

4

camps and clinics, correct?

5

A. Correct.

6

Q. And you train them in new skills and help them in

7

their learning how to be better cheerleaders, is that

8

right?

9

A. Yes.

10

Q. Okay, and you testified you run competitions that

11

those sideline cheerleaders attend?

12

A. Yes.

13

Q. And they buy your company's uniforms, right?

14

A. Some do.

15

Q. And I believe you testified at your deposition that

16

your uniform division is actually the most profitable?

17

A. That is correct.

18

Q. And you're concerned that if competitive cheer is

19

recognized as a varsity sport that competitive cheer teams

20

may try to prevent sideline teams from learning certain

21

skills in their routines, correct?

22

A. Yes.

23

Q. And you view varsity competitive cheer as a threat to

24

sideline cheerleading, is that correct?

25

A. What do you mean varsity competitive cheer? Are you

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 129 of 139 436

1

talking -- define that for me, please.

2

Q. What Maryland has been doing and Quinnipiac --

3

A. I view it as what, as a threat?

4

Q. As a threat to classical cheerleading.

5

A. It continues to call itself cheer which they don't

6

cheer and they don't lead, which creates confusion with

7

the classical cheerleader team. And if they perform the

8

same type of routine that classical cheerleaders have

9

provided as part of their entertainment component for 25

10

years, which further confuses things. Yes, I think it's a

11

threat because I think that what the sideline cheerleaders

12

do and the skills they use help them be more effective.

13

And, again, I think the fact that it's run three or four

14

times over the past 20 years validates that.

15

Q. And you think that if the schools have competitive

16

cheer teams, that the cheer teams may try to prevent the

17

athletic -- I'm sorry. May try to prevent the sideline

18

cheer groups from using some of those athletic elements

19

that you've introduced to clear, is that right?

20

A. I think it's a possibility.

21

Q. Right. And if sideline cheer teams weren't able to

22

participate or to use those athletic skills, they wouldn't

23

have as great a need to attend your camps and clinics to

24

learn how to execute those skills, would they?

25

A. That's not necessarily true. In the state of Ohio at

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 130 of 139 437

1

the high school level they can't do any stunts and our

2

enrollment is as large as it's ever been.

3

Q. Now, if you'll look at Exhibit F K.

4

A. Okay.

5

Q. Now, your NCA championship, you considered that to be

6

a pretty prestigious event in the cheerleading world,

7

correct?

8

A. Yes.

9

Q. And it's important for you to maintain that prestige,

10

right?

11

A. Sure.

12

Q. And, in fact, your rules prohibit any team from

13

competing in another national championship?

14

A. Yes.

15

Q. If they want to compete in your championship, right?

16

A. Yes.

17

Q. Now, if competitive cheer were to become an NCAA

18

champion sport, your national collegiate probably wouldn't

19

be that prestigious anymore, would it?

20

A. I think it would still contain the great majority of

21

the teams it does now because it's primarily classical

22

cheerleaders. I don't think it hurts prestige at all.

23

Q. Now, you testified earlier that you felt that it

24

would be unfair for sideline teams to compete against the

25

varsity competitive teams, is that right?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 131 of 139 438

1

A. Yes.

2

Q. And was that because you think that they, the

3

competition would be uneven, because they wouldn't --

4

A. I think that the competition only teams have only one

5

focus, generally or probably going to have more resources,

6

and a lot more time to focus on that one aspect of

7

cheerleading. And the classical cheerleading teams have a

8

lot of other responsibilities and so it's only a matter of

9

time. And they are probably only going to compete once

10

during the year when these other teams are going to be

11

competing many times, probably, or a number of times. So,

12

yes, I don't think it provides a level playing field.

13

Q. If you'll look at Exhibit F J?

14

A. Okay.

15

Q. Now, these are results from your 2010 NCA college

16

national championship, correct?

17

A. Right.

18

Q. Now, if you'll look at the first page, it shows that

19

Quinnipiac University came in third, is that right?

20

A. Correct.

21

Q. And Quinnipiac's team is a varsity team, is that

22

right?

23

MS. GALLES: Objection.

24

BY MS. FRIEDFEL:

25

Q. They consider themselves a varsity team, is that

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 132 of 139 439

1

right?

2

A. I guess so.

3

Q. On your Exhibit 3 to your report you classify them as

4

a sport team, is that right?

5

A. Thank you.

6

Q. The University of New Hampshire, what kind of team is

7

that?

8

A. That's a classical cheerleading team.

9

Q. Right. And University of New Hampshire beat

10

Quinnipiac, right?

11

A. Yes.

12

Q. So they were formidable competitors, right?

13

A. Yes.

14

Q. And also if you look at the next page which is the

15

results from your all girl one A division, the University

16

of Maryland won that competition, right?

17

A. They did.

18

Q. And they consider themselves to be a varsity team, is

19

that right?

20

A. Okay.

21

Q. Is that correct?

22

A. The same as Quinnipiac, yes.

23

Q. Okay, and what about the University of Louisville;

24

what kind of team is Louisville?

25

A. They are a classical cheerleading team.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 133 of 139 440

1

Q. They are. And what was the difference in the score

2

between Maryland and Louisville?

3

A. A couple of, you know, what, 20/100ths or whatever.

4

Q. So they were clearly formidable competition for the

5

University of Maryland, is that right?

6

A. Yes, and the only one.

7

Q. I'm sorry, what?

8

A. They were the only one that was really formidable

9

competition. That was a classical cheerleading team.

10

Q. Right, well --

11

A. In fact, the teams that you're describing have two of

12

the top three spots.

13

Q. Yes, Oregon and Maryland do have two of the top three

14

spots. And N C State has what kind of team?

15

A. N C State is, in this case I believe it's a club

16

team. I'm not sure if this is club or their sideline

17

team. They have both in competition.

18

Q. And the University of South Carolina?

19

A. It's a classical team.

20

Q. And Georgia?

21

A. Is a club team.

22

Q. And Michigan State?

23

A. I believe that's their club, they have both.

24

Q. Okay. So only two of the teams on this were actually

25

sideline teams?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 134 of 139 441

1

A. Yes.

2

Q. Right?

3

A. Correct.

4

Q. Now, your NCA competition, you said divides the teams

5

into divisions, right? And that's based on the NCAA

6

division rules, right?

7

A. Generally speaking, the classification, that's one,

8

right. Second one is, it can be how the teams

9

classified themselves as whether they are advanced or

10

intermediate teams and also reference coed or all girl.

11

Q. So the people, the teams competing in the all girl

12

Division I that Quinnipiac competed against, those are all

13

NCAA Division I schools?

14

A. I do believe Kennisaw (ph) division is so I'm not

15

sure. And again, the divisions classically for NCA and

16

UCA, while they have some relevance to how NCAA classes,

17

we also have, they are really our own division so we can,

18

we can move teams back and forth. I don't believe

19

Kennisaw is a Division I team. I could be wrong.

20

Q. Okay. Now if we go to Plaintiff's Exhibit 135 which

21

is Exhibit Three to your report?

22

MS. GALLES: I'm sorry, could you please say

23

that again?

24

MS. FRIEDFEL: 135, his Exhibit 3.

25

MS. GALLES: Okay.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 135 of 139 442

1

BY MS. FRIEDFEL:

2

Q. This document includes the teams that will compete at

3

your UCA nationals and your NCA nationals, is that right?

4

A. Yes.

5

Q. But it does not include every team that competes in

6

cheer, does it?

7

A. I'm not sure about that, it's the great majority.

8

There could be a few that participate at USA.

9

Q. Right, but are you aware that Quinnipiac University's

10

competed against Batsin (ph), Stoney Brook, Penn State

11

Club Team, Fairfield University, UConn Club and in this

12

case also college?

13

MS. GALLES: Objection, foundation. And in

14

terms of how she's characterizing that.

15

THE COURT: I'll allow it. He can answer it.

16

BY THE WITNESS:

17

A. I'll have to go to -- let me look.

18

(Pause)

19

Could you name the schools again, please?

20

Q. I'll withdraw that question.

21

A. Okay.

22

Q. Are you willing to admit there are schools in the

23

country that compete, competitive cheer or cheerleading,

24

participate in cheerleading competitions who do not attend

25

your competition?

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 136 of 139 443

1

A. I'm talking about classical cheerleaders. Is that

2

what you're talking about?

3

Q. We'll take them one at time. They are sideline

4

classical cheerleading teams that compete but that do not

5

attend your companies, NCA and UCA competitions.

6

A. There could be.

7

Q. Right, and there could also be club teams that

8

compete but they do not attend your company's

9

competitions, is that right?

10

A. There could be but I'm not aware of any. There could

11

be.

12

Q. Well, do you know that UConn has a club team?

13

A. No.

14

Q. No? Now, allstar cheer teams don't do any sideline

15

cheerleading, do they?

16

A. That is correct.

17

Q. And all they do is compete and train to compete?

18

A. That is correct. And perform, entertain, as well as

19

they put on exhibitions sometimes too.

20

Q. Okay, and your company sponsors allstar competitions,

21

is that right?

22

A. Yes.

23

Q. About what percentage of the allstar competitions

24

that are out there do you sponsor?

25

A. 50 percent.

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 137 of 139 444

1

Q. 50 percent, okay. Now if we look at Exhibit F V?

2

MS. GALLES: What?

3

MS. FRIEDFEL: As in Victor.

4

THE COURT: Just for planning purposes, let me

5

let you know, I have a commitment at 12:30 for one hour.

6

MS. FRIEDFEL: I'll finish this document and

7

then we can break.

8

MS. GALLES: B as in boy or V as in Victor?

9

MS. FRIEDFEL: V as in Victor.

10

MS. GALLES: Okay.

11

BY MS. FRIEDFEL:

12

Q. This was a document produced by you made in response

13

to a request, is that right?

14

A. Yes.

15

Q. And what is this document?

16

A. This is participants in the various Varsity Brands

17

divisions in the, primarily in the allstar space for the

18

past year.

19

Q. Well, the document says participants by division for

20

spring 2010, so that would be from January to date?

21

A. Yes.

22

Q. And it shows that you had 130,678 people participate

23

in allstar competitions in your company, is that right?

24

A. That is right.

25

Q. And more than 56,000 of those participants were

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 138 of 139 445

1

between the ages of 12 and 18, is that right?

2

A. Yes.

3

Q. So you'll agree with me that there is substantial

4

interest in cheer competition, is that right?

5

A. There is substantial interest in allstar competition,

6

yes.

7

Q. All right.

8

MS. FRIEDFEL: Do you want to break now, Your

9

Honor? I'm done with that document.

10

THE COURT: All right, sure.

11

All right, we'll take our lunch break until

12

1:30. We'll continue with the cross then. Stand in

13

recess.

14

(Whereupon the luncheon recess was taken at 12:30

15

o'clock, p. m.)

16

17

18

19

20

21

22

23

24

25

Case 3:09-cv-00621-SRU Document 174 Filed 07/21/10 Page 139 of 139 446
C E R T I F I C A T E
I, Susan E. Catucci, RMR, Official Court Reporter for the United States District Court for the District of Connecticut, do hereby certify that the foregoing pages are a true and accurate transcription of my shorthand notes taken in the aforementioned matter to the best of my skill and ability.
/S/ Susan E. Catucci __________________________
Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604
Tel: (917) 703-0761

 
 Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 1 of 149 447

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - X

:

STEPHANIE BIEDIGER, ET AL

:

: No. 3:09cv-621 (SRU)

: 915 Lafayette Boulevard

vs.

: Bridgeport, Connecticut

:

: June 22, 2010

QUINNIPIAC UNIVERSITY

:

:

- - - - - - - - - - - - - - - - X

BENCH TRIAL - AFTERNOON SESSION B E F O R E:
THE HONORABLE STEFAN R. UNDERHILL, U. S. D. J.

A P P E A R A N C E S:

FOR THE PLAINTIFF:

PULLMAN & COMLEY 850 Main Street P.O. Box 7006 Bridgeport, Connecticut 06601-7006
BY: JONATHAN B. ORLEANS, ESQ. ALEX V. HERNANDEZ, ESQ.

KRISTEN GALLES, ESQ. Equity Legal 10 Rosecrest Avenue Alexandria, Virginia

22301

FOR THE DEFENDANT:

WIGGIN AND DANA, LLP 400 Atlantic Street P.O. Box 110325 Stamford, Connecticut 06911-0325
BY: MARY A. GAMBARDELLA, ESQ.

(CONTINUED)

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 2 of 149 448
PROSKAUER ROSE 1585 Broadway New York, New York, 10016
BY: EDWARD A. BRILL, ESQ. SUSAN D. FRIEDFEL, ESQ. REBECCA BERKEBILE, ESQ.
Viktoria V. Stockmal, RMR, CRR Court Reporting Services 119 Poverty Hollow Road Newtown, CT 06470 (203) 470-0335

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 3 of 149 449

INDEX

EXAMINATION

Witness Name

Page

JEFFREY WEBB Cross By Ms. Friedfel ................................. 451 Re-Direct By Ms. Galles .............................. 456

JACK McDONALD Direct By Mr. Orleans ................................. 458 Cross By Mr. Brill .................................... 527 Re-Direct By Mr. Orleans ............................. 544

MARY ANN POWERS Direct By Mr. Hernandez .............................. 550

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 4 of 149 450

1

(RECONVENED AT 1:45 P.M.)

2

THE COURT: My apologies for the delay.

3

MS. FRIEDFEL: Your Honor, we decided to mark

4

the document that was disclosed to us earlier today, I

5

believe that's Exhibit GM?

6

THE COURT: GM?

7

MS. FRIEDFEL: I think so. I'm just going to

8

show a copy to the witness.

9

MS. GALLES: Your Honor, just for the record,

10

we renew our objection in case, you know -- that the

11

prior objection doesn't carry over, so --

12

THE COURT: Your objection on privilege

13

grounds?

14

MS. GALLES: Yes, yes.

15

THE COURT: That's fine. All right. Do you

16

have another objection to the document?

17

MS. GALLES: Well obviously, it's hearsay.

18

But she's welcome to try to overcome that. I mean, it's

19

an e-mail.

20

THE COURT: Okay. Are you objecting on --

21

MS. GALLES: Yes, we are objecting on the

22

privilege and the grounds of hearsay.

23

MS. FRIEDFEL: May I proceed?

24

THE COURT: Sure.

25

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 5 of 149 451

1

J E F F R E Y

W E B B,

called as a witness for

2

the Plaintiff, having been previously duly sworn by the

3

Court, testified futher as follows:

4

CROSS-EXAMINATION

5

BY MS. FRIEDFEL: (CONT'D.)

6

Q. Mr. Webb, could you look at page 4 of the document I

7

just showed you, Exhibit GM?

8

A. Page 4?

9

Q. Yes, it says "4 of 5" at the top right corner. I

10

don't know if it's actually the fourth page. I think it

11

says -- it appears that the document is page -- paginated

12

2 of 5, 3 of 5, 4 of 5.

13

A. Oh, okay. All right.

14

Q. I'm sorry. I don't know --

15

A. Not the actual fourth page, but the paginated

16

version. Okay, got it.

17

Q. If you look at that e-mail, it appears to be an

18

e-mail from Terry Lakowski (ph.) to yourself, Bill Boggs

19

(ph.), Greg Web, Bill Seeley, and Jonathan White; is that

20

right?

21

A. Yes.

22

Q. Terry Lakowski is an attorney that you retained

23

regarding Title IX and other issues; is that correct?

24

A. That's correct.

25

Q. And she says in this e-mail: "I spoke to Karen

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 6 of 149 452

1

Morrison this morning" --

2

THE COURT: Well, it's not in evidence yet

3

because there's an objection.

4

MS. FRIEDFEL: Okay.

5

THE COURT: So before we -- well, in general,

6

I would like to get the document in before it's contents

7

are put into the record.

8

MS. FRIEDFEL: Okay.

9

THE COURT: So are you offering the document

10

or --

11

MS. FRIEDFEL: Yeah, I mean, I was offering

12

the document to show --

13

THE COURT: Well, okay. The objection is

14

hearsay.

15

MS. FRIEDFEL: Correct.

16

THE COURT: I already ruled on the privilege.

17

So how do you get around the hearsay objection.

18

MS. FRIEDFEL: The hearsay objection? I'm

19

not offering this for the truth of what the attorney told

20

them about her communications. I'm not saying --

21

offering it for the truth of what Karen Morrison did or

22

did not say, but more just to the fact that Karen

23

Morrison -- I'm sorry, that Ms. Lakowski was having

24

communications with Karen Morrison on behalf of Varsity

25

Brands about the issues that are discussed in the

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 7 of 149 453

1

document.

2

THE COURT: Okay. Well okay, you got a

3

couple things. You have two levels of hearsay. You got

4

the document, itself, and you've got the statement in the

5

document.

6

MS. FRIEDFEL: Okay.

7

THE COURT: It doesn't sound to me like you

8

really want the document as much as you want the subject

9

matter. So maybe you don't need the document.

10

MS. FRIEDFEL: I'm happy to question him for

11

that -- without mentioning the document, itself.

12

THE COURT: All right.

13

BY MS. FRIEDFEL:

14

Q. Mr. Webb, did Ms. Lakowski have communications with

15

Karen Morrison on behalf of Varsity Brands?

16

MS. GALLES: Objection, foundation.

17

THE COURT: If you know.

18

BY THE WITNESS:

19

A. I don't know for sure.

20

Q. Was Karen Morrison at the -- work at the NCAA?

21

A. I don't know Karen Morrison.

22

Q. You don't know her. Do you know if she works at the

23

NCAA?

24

A. I don't know that.

25

Q. You received this e-mail from your attorney; right?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 8 of 149 454

1

A. Apparently so.

2

Q. And you didn't ask her who Karen Morrison was?

3

A. No, I did not.

4

Q. It didn't concern you about who she was

5

communicating with on behalf of your company?

6

A. No. During most of this time I was traveling and

7

I'm primarily just copied on this. This, primarily,

8

would have been to Bill Boggs, John White, you know, to

9

be honest with you, I don't --

10

Q. Do you know whether or not Varsity Brands has had

11

communications with the NCAA about cheer becoming an

12

emerging sport?

13

A. About six years ago.

14

Q. About six years ago. So you don't know, you were

15

completely unaware until right now, when I showed you

16

this e-mail --

17

A. Yes, that's correct. I don't recall seeing this

18

e-mail.

19

Q. And you had no knowledge that your company was

20

communicating with the NCAA --

21

A. No, I did not ask Ms. Lakowski to do that, no. The

22

last time -- no.

23

Q. Ms. Lakowski is here in the courtroom right now;

24

right?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 9 of 149 455

1

Q. There's a dispute about this document whether or not

2

it was privileged and whether or not it comes into

3

evidence; is that right? Or whether --

4

A. Yes.

5

Q. I'm sorry, whether or not it would be produced?

6

A. Yes.

7

Q. And you didn't talk to her at all about the contents

8

of the document?

9

A. No, I asked her what was in the document and she

10

said it was about a conversation --

11

MS. GALLES: No, you can't -- sorry. Sorry.

12

MS. FRIEDFEL: Withdrawn, your Honor. I'm

13

finished with the witness.

14

THE COURT: Okay. Redirect?

15

REDIRECT EXAMINATION

16

BY MS. GALLES:

17

Q. Mr. Webb, I just want to ask you about document FM,

18

which is the USA Cheer document that Ms. Friedfel

19

mentioned to you or showed you.

20

A. FM.

21

Q. F as in Frank, M as in Mary. It's the USA Cheer

22

items. I'm sorry, F as in Frank, N as in Nancy.

23

A. Oh, okay, thank you.

24

Q. I would like to direct you to the last page of that

25

document.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 10 of 149 456

1

A. Okay.

2

Q. When was USA Cheer incorporated?

3

A. I believe the actual incorporation was in January of

4

this year.

5

Q. January of --

6

A. 2010.

7

Q. So USA Cheer, Ms. Friedfel asked you several

8

question relating to the reference to sport within the

9

USA Cheer --

10

A. Yes.

11

Q. -- articles. Are those references about Cheer as

12

sport, do they pertain to Cheer as it exists today or

13

Cheer as you hope or expect it may be in the future?

14

A. The documents? Are you -- I'm sorry, could you ask

15

the question again.

16

MS. FRIEDFEL: I just object, before the

17

witness answers. We object to the question as leading.

18

THE COURT: She's going to ask it again. I'm

19

sure --

20

MS. GALLES: Rephrase it, because he didn't

21

even understand it.

22

MR. BRILL: You didn't do very well.

23

MS. GALLES: Yeah.

24

BY MS. GALLES:

25

Q. Mr. Webb; and again, you previously testified that

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 11 of 149 457

1

you are the president of USA Cheer?

2

A. Yes.

3

Q. When -- so when the articles for USA Cheer were

4

filed, were the references to sport in the articles --

5

see now you flustered me. Just joking.

6

A. Okay. Try again.

7

Q. We'll try one more time. Okay.

8

Mr. Webb, the USA Cheer articles of incorporation,

9

do they reflect cheer as it is today?

10

A. It addresses side line cheerleading and its place

11

and the fact that it's important to keep it as it is, but

12

the actual -- the actual intent is to also provide it lot

13

of latitude based on where cheer develops in the future.

14

Q. So it is an aspirational document about where you

15

think cheer might go?

16

A. It is at least partially aspirational. And again,

17

designed to give as much latitude as possible to include

18

not only what exists in cheerleading today, but where it

19

may go, in which direction it may develop. From a

20

national standpoint and internationally.

21

MS. GALLES: I have no further questions.

22

THE COURT: Sir, you are excused. Thank you.

23

MR. ORLEANS: Your Honor, as soon as Mr.

24

Webb --

25

THE WITNESS: Sorry.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 12 of 149 458

1

MR. ORLEANS: Take your time. No problem.

2

Your Honor, the plaintiff's call Jack McDonald to the

3

stand.

4

THE COURT: Please remain standing.

5

J A C K M c D O N A L D,

called as a witness on

6

behalf of the Plaintiff, having been duly sworn by the

7

Court, testified as follows:

8

DIRECT EXAMINATION

9

BY MR. ORLEANS:

10

Q. Good afternoon, Mr. McDonald.

11

A. Good afternoon, John.

12

Q. Do you mind if I call you Jack?

13

A. Yes.

14

Q. You do mind?

15

A. O for 1.

16

Q. I'm comforted to know I'm not the only nervous

17

person in this the room right now.

18

Jack, you are the athletic director for Quinnipiac

19

University?

20

A. Yes.

21

Q. How long have you been in that position?

22

A. Just finishing 15 years.

23

Q. You testified in the preliminary injunction hearing

24

thin case; didn't you?

25

A. Yes, I did.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 13 of 149 459

1

Q. As athletic director, you are responsible for the

2

overall administration of Quinnipiac's intercollegiate

3

athletic program?

4

A. Yes, and the recreation program.

5

Q. And the recreation program as well?

6

A. Yes.

7

Q. And do your responsibilities include oversight of

8

compliance with NCAA rules?

9

A. Yes.

10

Q. And how about Title IX compliance as well?

11

A. Yes.

12

Q. Do your responsibilities include oversight of

13

financial matters within the athletic department?

14

A. Yes.

15

Q. And use of facilities?

16

A. Yes.

17

Q. And your responsibilities include general oversight

18

from the administrative perspective of the teams;

19

correct?

20

A. Yes.

21

Q. And of the coaches?

22

A. That's correct.

23

Q. And you report to Dr. Thompson who testified

24

earlier; correct?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 14 of 149 460

1

Q. You've been reporting to him since around the middle

2

of 2009?

3

A. July of '09.

4

Q. I'd like to start by talking with you about the

5

National Competitive Stunts and Tumbling Association. Do

6

I have the name right?

7

A. Yes.

8

Q. And for convenience, I'll refer -- try to refer

9

to it as the NCSTA; all right?

10

A. Yes.

11

Q. What is that organization?

12

A. It's a governing body that was started at

13

Quinnipiac, announced our intent to add competitive cheer

14

in the spring of '09; and we discovered that there was

15

five or six institutions that were also already offering

16

competitive cheer or intended to; so we got together as a

17

group in the summer of '09 to start planning to have a

18

national governing body.

19

Q. Now you just referred to competitive cheer. When

20

you -- in March of '09, when Quinnipiac announced that it

21

would eliminate certain sports, including women's

22

volleyball, you announced that you would elevate

23

cheerleading to varsity status, wasn't that the

24

announcement?

25

A. I forget the exact terminology in the press release,

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 15 of 149 461

1

but there was clearly an intent to add competitive cheer.

2

Q. And prior to this past year, the 2009-2010 year, the

3

cheerleaders at Quinnipiac were sideline cheerleaders;

4

correct?

5

A. That's all we had, yes.

6

Q. And they were not treated or held out as varsity

7

athletes before this past year; correct?

8

A. No.

9

Q. And at the time you made the announcement -- and

10

when I say you, I mean the university. I don't

11

necessarily mean you, personally. But at the time that

12

the announcement was made, Quinnipiac had had some

13

communication with the University of Maryland; right?

14

A. Yes.

15

Q. About -- specifically on the subject of competitive

16

cheer?

17

A. That's correct.

18

Q. But at that time, there was no organization of

19

schools offering cheer as a varsity athletic endeavor?

20

A. No, there was not.

21

Q. And at the time that you made the announcement in

22

March, there was no agreement among the schools to create

23

such an organization; was there?

24

A. Not in March of '09.

25

Q. In fact, it wasn't until after the preliminary

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 16 of 149 462

1

injunction hearing in this case that the group of schools

2

that are now in the NCSTA began to talk about forming a

3

governing body; is that correct?

4

A. I'm not sure when that began, John, but it certainly

5

began right after the announcement of elevating the sport

6

to varsity.

7

Q. Who are the members, currently, of the NCSTA?

8

A. Well, clearly, Quinnipiac, University of Maryland,

9

Baylor University, Fairmont State, University of Oregon,

10

and we've recently added UMass Dartmouth. I may be

11

missing one.

12

Q. There are seven members now?

13

A. Yes, I think so, yes.

14

Q. Have there been other members who have dropped out

15

along the way?

16

A. No.

17

Q. And didn't the group meet -- Withdrawn.

18

You've been involved in the creation of this

19

organization from the very beginning; haven't you?

20

A. Yes.

21

Q. And by now I mean you, personally, you have

22

personally --

23

A. Yes.

24

Q. -- played a role, have you not?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 17 of 149 463

1

Q. And you serve on the governing board of the NCSTA?

2

A. We haven't called ourself that yet, but there's

3

about five or six administrators that we've been talking

4

regularly.

5

Q. So there is not formally a governing board at this

6

time?

7

A. Not yet. But we certainly have a group making a lot

8

of decisions.

9

Q. And that's a group of administrators from the

10

various schools?

11

A. Yes.

12

Q. And the group met at the University of Maryland, was

13

it in November of 2009?

14

A. Well, our first -- we had a few conversations

15

before -- that was September was we call it the summit.

16

Q. The Cheer Summit?

17

A. Correct. But prior to that, to plan for that and

18

just literally schedule when, where and how much we're

19

going to talk about, we had a call or two in mid, late

20

summer of '09.

21

Q. And then you had the summit in September; correct?

22

A. That's correct.

23

Q. And then there was an announcement that was made in

24

January of 2010; correct?

25

A. There was an announcement made. The exact date I'm

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 18 of 149 464

1

not familiar with.

2

MR. ORLEANS: Let's see if I can make this

3

work.

4

BY MR. ORLEANS:

5

Q. Calling your attention to Plaintiff's Exhibit No.

6

43. Can you see it okay from there?

7

A. Yes.

8

Q. Because there's paper copy in the book?

9

A. No, I can see it perfectly.

10

Q. Okay. Do you recognize this, Jack, as a print from

11

the Quinnipiac University web site?

12

A. Yes.

13

Q. And the head line is: "University's announce

14

formation of National Competitive Stunts and Tumbling

15

Association," release date January 28, 2010; correct?

16

A. That's correct.

17

Q. And it lists the current members at that time. Now

18

it lists Fort Valley State as a member. Is Fort Valley

19

State still a member now?

20

A. I don't think they're still a member now.

21

Q. And the club team at Ohio State is not a member; is

22

it?

23

A. I don't know if Ohio State was ever officially part

24

of this group. At the time it might have been a

25

prospective member.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 19 of 149 465

1

Q. But it's not currently a member; is it?

2

A. No.

3

Q. And this press release issued by the Quinnipiac

4

Sports Information Department?

5

A. Yes.

6

Q. And it includes -- you see the highlighted line

7

there: "The goal of the NCSTA is to usher stunts and

8

gymnastics into NCAA emerging sports status and

9

eventually a NCAA fully sanctioned varsity sport with a

10

NCAA sponsored national sponsorship"; is that accurate?

11

A. Yes, it is.

12

Q. Why is this organization called the National

13

Competitive Stunts and Tumbling Association rather than

14

the national competitive cheer association?

15

A. I think there's been significant discussion since

16

our announcements about the actual name of our sport and

17

the name of our governing body so as not to confuse fans

18

and athletes and coaches with what has traditionally been

19

side line cheer. So we had a lot of discussions and long

20

ones about what would be the name of our sport and what

21

would be the name of our governing body. We had a

22

conference call with the athletic directors from many of

23

these institutions in November to talk about the name of

24

the sport and sort of as an agreement to begin the

25

governing of the sport, we come up with a national

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 20 of 149 466

1

governing body name of NCSTA, but the institutions were

2

allowed to call the sport competitive cheer. But

3

basically, that's how we started at this point.

4

Q. In fact, there was some disagreement among the

5

various institutions about what the sport should be

6

called; wasn't there?

7

A. Yes.

8

Q. And currently Quinnipiac calls the sport competitive

9

cheer?

10

A. That's correct.

11

Q. I think Oregon calls it competitive stunt and

12

tumbling?

13

A. Something similar to the governing body name, yes.

14

Q. And the various institutions are allowed to call it

15

what they want; is that correct?

16

A. Certainly, obviously, what they want, but pretty

17

much it's competitive cheer or the name Oregon is using.

18

Q. I'm sorry if I asked you this already, but back in

19

March 2009, there was not a plan to organize a group like

20

NCSTA; was there?

21

A. In my mind, there was. I've been experienced for

22

many years in our Division I status, we actually formed

23

leagues before for some other sports at Quinnipiac. I've

24

been very actively involved in NCAA governance on sport

25

committees, championship cabinets, knowing full well that

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 21 of 149 467

1

for our sport to be recognized, these things needed to

2

happen.

3

Q. But you hadn't started working on it at that point,

4

I guess would be --

5

A. We started working on it the day we announced the

6

sport.

7

Q. At that time, you -- Withdrawn.

8

Let me rephrase.

9

In March of 2009, when you announced the elimination

10

of volleyball and other sports, you did not anticipate

11

that the varsity cheerleaders at Quinnipiac would have to

12

stop cheering at basketball games; did you?

13

A. I'm pretty sure by that point we knew that the

14

student athletes beyond competitive cheer would no longer

15

be on sideline cheer -- cheerleading.

16

Q. You had not, in March of 2009, developed a

17

competition format for competitive cheer; had you?

18

A. No.

19

Q. And you hadn't developed a scoring system for

20

competitive cheer?

21

A. The scoring system was coming with the formation of

22

the group.

23

Q. So the scoring system is something that's been

24

worked on through the NCSTA?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 22 of 149 468

1

Q. And I presume the competitive format as well?

2

A. Yes.

3

Q. In March of 2009, did you know about the process at

4

the NCAA for becoming an emerging sport?

5

A. Through the rise of other sports to the emerging

6

sport program, I was aware of how it happens and the

7

committees and the people involved.

8

Q. So did you know what -- and again, I'm talking about

9

March of 2009 now, did you know what NCAA committee you

10

had to be in touch with in order to begin that process?

11

A. I probably couldn't tell you the name of it, but I

12

knew there was a process that exist.

13

Q. You knew there was a process that existed?

14

A. Yes.

15

Q. To become -- to be recognized as an emerging sport?

16

A. Yes.

17

Q. Were you aware at that time that there was a process

18

for seeking a determination letter from the Office of

19

Civil Rights?

20

A. Yes.

21

Q. Now would it be fair -- Withdrawn.

22

The NCSTA, as we stand here today, is not

23

incorporated; is it?

24

A. No.

25

Q. And it has no staff, no employees of its own;

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 23 of 149 469

1

correct?

2

A. That's correct.

3

Q. It receives staff support from the various

4

organizations --

5

A. That's correct --

6

Q. -- from various institutions?

7

A. It's is very common in a lot of our sports.

8

Q. And it doesn't have -- I think you said it doesn't

9

after formal board of directors; correct?

10

A. We certainly have a group of people making

11

decisions.

12

Q. But the question was does it have a formal board of

13

directors?

14

A. No.

15

Q. It doesn't have a set of bylaws; does it?

16

A. Bylaws are being worked on.

17

Q. So they are in process now?

18

A. Yes.

19

Q. And does it have a committee structure?

20

A. Again, five or six of us, we are the decision makers

21

and --

22

Q. Are there sub committees to your group?

23

A. Not quite yet.

24

Q. So would you disagree with me if I referred to it as

25

still a work in process in many ways?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 24 of 149 470

1

A. Almost -- yes, yes.

2

Q. You would disagree?

3

A. I would say the work in progress is almost done.

4

Q. Do you have a web site yet?

5

A. No.

6

Q. You are planning to have one, though, right?

7

A. Yes.

8

Q. And within the last month, the group agreed on the

9

roster sizes -- the maximum roster size and the travel

10

roster size for the coming year; correct?

11

A. Yes.

12

Q. There are no schools in the Northeast Conference,

13

other than Quinnipiac, that are part of NCSTA; is that

14

right?

15

A. That is correct.

16

Q. In fact, other than Quinnipiac, there are no schools

17

in Connecticut that are part of NCSTA?

18

A. At this point, correct.

19

Q. And there is only one other school in New England,

20

that being UMass Dartmouth, that is part of the NCSTA?

21

A. That is correct, at this point.

22

Q. Other than UMass Dartmouth, the closest NCSTA member

23

is the University of Maryland in College Park; is that

24

right?

25

A. That's correct.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 25 of 149 471

1

Q. Let me show you Plaintiff's Exhibit 41.

2

MR. ORLEANS: How do you work the up and

3

down? I'm trying to make it a little smaller so we can

4

get a little more of it.

5

BY MR. ORLEANS:

6

Q. Can you read it that the size, Jack, or is that

7

too small now?

8

A. Yes. A little larger would help, --

9

Q. Let me see if I can do better.

10

A. That's fine.

11

Q. You can't just quite get the whole document in.

12

Do you recognize this document as the 2009 and '10

13

schedule and results for the Quinnipiac competitive cheer

14

team?

15

A. Yes.

16

Q. And you'll see that I've highlighted a couple of the

17

events. The All Girl Collegiate Competitive Cheer event

18

Friday, February 5th at Kennesaw State University in

19

Georgia. That was the first competition ever held uses

20

the NCSTA meet format; correct?

21

A. That's correct.

22

Q. And also use the NCSTA scoring system; right?

23

A. That's correct.

24

Q. That was in February of this year?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 26 of 149 472

1

Q. And also in February of this year, on February 28th,

2

at Quinnipiac, you had a meet with Quinnipiac, Maryland,

3

UConn, Western Connecticut and Babson; correct?

4

A. That's correct.

5

Q. And that one also used the NCSTA meet format; am I

6

right?

7

A. Yes.

8

Q. And of all the competitions that the Quinnipiac

9

University competitive cheer squad was in, in 2010, those

10

are the only two that used the NCSTA meet format; am I

11

right?

12

A. Yes, you are.

13

Q. Now the meet format that was used this past spring

14

in 2010 is being revised somewhat for the 2010-2011

15

season; is it not?

16

A. That's correct.

17

Q. And the NCSTA is planning its first -- its first

18

national championship to be held next spring in 2011;

19

right?

20

A. That's correct.

21

Q. And all of the NCSTA schools will participate in

22

that meet; will they not?

23

A. Yes.

24

Q. So there's -- the regular season doesn't result in

25

anybody being eliminated from post season competition,

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 27 of 149 473

1

this year at least?

2

A. That's correct.

3

Q. In -- when I say "this year," I mean the coming year

4

2010-2011.

5

Not much suspense about who's going to qualify for

6

the championship, I guess this time?

7

A. There are other sports that have regional

8

championships and in a similar format. The suspense will

9

be significant once the student athletes get there.

10

MR. ORLEANS: I want to take just a minute

11

and, your Honor, I'm conscious of time and will try not

12

to spend too much time on this. But I would like to go

13

through Plaintiff's Exhibit 98. For this one, it might

14

be helpful actually if you took out the paper, because

15

it's -- it's this notebook right here. The one on the

16

bottom.

17

BY MR. ORLEANS:

18

Q. Can we make that work?

19

A. We're making it. Yep.

20

Q. This is a collection of e-mails that -- and minutes

21

that relate to the NCSTA. And I would just like to go

22

through it and have you identify for the record so that

23

the judge knows what we've got here.

24

The first couple of pages feature an e-mail chain

25

among you, Kelly Cunningham, Nancy Post and Renee

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 28 of 149 474

1

Baumgartner. Can you just say who those people are?

2

MR. BRILL: Can you give the Bates numbers

3

for each of those.

4

MR. ORLEANS: It starts D 15458, Exhibit 98.

5

MR. BRILL: I have it.

6

BY MR. BRILL:

7

Q. Can you just explain to Judge Underhill who those

8

three --

9

A. Starting to the top this was from me on Monday,

10

April 12th, which was a few days after we met in Daytona.

11

Kelly Cunningham is the assistant athletic director for

12

compliance in Maryland. Nancy Post is the associate

13

athletic director, and Sieman (ph.) was administrator at

14

Baylor who just -- they are adding competitive this

15

years. Renee Baumgartner is the senior administrator and

16

associate athletic director at Oregon. And this really

17

was to set up -- setting up a meeting with Karen Morrison

18

at the NCAA.

19

Q. And this is April 12th, 2010 and you're suggesting

20

to Kelly, Renee and Nancy that there be a conference call

21

with Karen Morrison of the NCAA; correct?

22

A. That's correct.

23

Q. And the acronym CWA there refers to the Committee on

24

Women's Athletics?

25

A. That's correct.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 29 of 149 475

1

Q. And that's the committee with the primary

2

jurisdiction over emerging sport status at the NCAA; am I

3

right?

4

A. That's correct.

5

Q. Now if we can go to the next e-mail in the chain.

6

This starts at 15522.

7

Do you see that one?

8

A. I think -- my number at the bottom doesn't seem to

9

coordinate with what you just said. 15459?

10

MR. ORLEANS: Oh, no.

11

THE WITNESS: Is that right?

12

MR. ORLEANS: No, that is not right. Oh,

13

I -- it's separated by a yellow sheet. Here we go.

14

THE WITNESS: Oh, it's separate e-mail.

15

MR. ORLEANS: The first one is a three page

16

chain, but I'm done with that one and now I'm on to the

17

next chain.

18

THE WITNESS: Okay.

19

BY MR. ORLEANS:

20

Q. 15522, still part of Exhibit 98, is dated April

21

27th, 2010 and it's an e-mail from you to Renee

22

Baumgartner; right?

23

A. That's correct.

24

Q. It says, "Notes from meeting in Dayton," but I

25

think you meant Daytona.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 30 of 149 476

1

A. That's correct.

2

Q. That's a reference to an NCSTA meeting you had in

3

Daytona Beach, Florida?

4

A. Yes.

5

Q. When members of the NCSTA were at the NCAA college

6

nationals; right?

7

A. That's correct.

8

Q. And you say: "Renee, here you go, I would consider

9

these drafts and not final."

10

And what's the "these"? Is that minutes of the

11

meeting?

12

A. That's probably the notes on the next page.

13

Q. Your notes.

14

A. Trying to he -- you know, again, there were four or

15

five of us at the meeting and we reviewed, again

16

re-reviewed our, you know, bylaws, procedures, policies.

17

Q. And you say: "I also sent along what Nancy sent us

18

today."

19

If you look at the list of attachments,

20

Mr. McDonald, one of the attachments is NCSTA outline of

21

competitive cheer.docx and another attachment is NCSTA

22

meeting April 2010. Do you see those two attachments?

23

A. I'm looking at them.

24

Q. If you go one page, the next page that we see is

25

headed: "National Competitive Stunts and Tumbling

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 31 of 149 477

1

Association, Outline of competitive cheer"; is this the

2

document from Nancy Post?

3

A. John, I'm not familiar with which one of these is

4

from whom.

5

Q. Let me just suggest that you go through one, two,

6

three pages and you'll see one that's headed, NCSTA

7

meeting.

8

A. Yes.

9

Q. So let me ask you now, having seen that, does that

10

refresh your recollection at all, Mr. McDonald as --

11

A. I'm going to be not sure, but I think the

12

second one headed, NCSTA meeting, was from me.

13

Q. Okay. So that would be your notes of the meeting

14

in --

15

A. Right.

16

Q. -- Daytona in April?

17

A. That's correct.

18

Q. It appears that at that meeting you discussed a

19

number of matters relating to the plans for the NCSTA;

20

would that be --

21

A. Yeah, --

22

Q. -- a generalization?

23

A. Regarding the organization of the sport.

24

Q. If you go to the last page of your notes, it's Bates

25

number D 15528. You see the heading there, "Roman 4,

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 32 of 149 478

1

NCAA emerging sport status"?

2

A. Right.

3

Q. And it says, "Timeline for submission, spring

4

2011"?

5

A. That's correct.

6

Q. Is that still the plan, that you will submit an

7

application --

8

A. Some time between now and then, yes.

9

Q. Now backing up just a sec to the Nancy Post

10

document, the Outline of competitive cheer, what was the

11

purpose of that document?

12

A. I think in the -- both Nancy and I were probably

13

coordinating taking notes together. I had asked her to

14

make sure that, you know, what I wrote is similar to what

15

was discussed and approved and voted on.

16

Q. Let me just ask you then about the section entitled,

17

"Minimum competitions." It says, "Teams will compete

18

annually in a minimum of six competitions"; is that still

19

the expectation for NCSTA members?

20

A. I believe we revised that to six to eight is -- but

21

that's what we discussed in April.

22

Q. In April. And in April, you discussed that half of

23

those would have to use the NCSTA format?

24

A. Yes.

25

Q. And also, that any competition must include at least

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 33 of 149 479

1

one collegiate opponent?

2

A. Yes.

3

Q. I don't have anything further on that collection.

4

So if you go to the next separator page.

5

A. Okay.

6

Q. The next e-mail is dated April 29, 2010 from you to

7

the add -- a group of NCSTA administrators; correct?

8

A. I think I might have missed something, John.

9

Q. Are we getting there?

10

A. I'm looking at an e-mail dated May 10th.

11

Q. Let's see if we missed one.

12

A. Sorry.

13

Q. Or if there's a problem with -- here you go.

14

A. Oh. Okay, thanks.

15

Q. Sure.

16

So 15547 is an e-mail dated April 29th from you to

17

Baumgartner, Cunningham, Post, Kristi Kiefer at Fairmont

18

State; is she an athletic administrator at Fairmont

19

State?

20

A. Yes.

21

Q. And the subject is "Today's Minutes" and the first

22

attachment listed is: "NCSTA conference call April 28th,

23

2010"; do you see that?

24

A. Yep, yes.

25

Q. And your message is: "First draft, good call today,

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 34 of 149 480

1

we're inching closer."

2

So are you the author, then, of the notes that

3

follow?

4

A. Again, yes, I was the author usually subject to

5

approval by the group.

6

Q. Now this is -- these notes appear to be notes of a

7

conference call with Karen Morrison -- with a number of

8

the NCSTA administrators and with Karen Morrison from the

9

NCAA; correct?

10

A. That's correct.

11

Q. And in that call you discussed the required contents

12

of an emerging sport proposal to the Committee on Women's

13

Athletics; is that right?

14

A. That's correct.

15

Q. And in the middle of the page there is a listing of

16

the things that Ms. Morrison told you should be included?

17

A. That's correct.

18

Q. And one of the items in that list is an

19

interpretation from OCR; correct?

20

A. That's correct.

21

Q. And that's not something that the NCSTA has yet;

22

correct?

23

A. That's correct.

24

Q. And that's -- Withdrawn.

25

Do you have a letter of support from each NCAA

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 35 of 149 481

1

division at this point?

2

A. I don't know what you mean by --

3

Q. I'm just reading from the list of items that ought

4

to be included that you got from Ms. Morrison, right

5

under interpretation from OCR it says, "one letter of

6

support from each NCAA division"?

7

A. You know, John with all the talk, I'm not familiar

8

with that term, nor do I know what it means.

9

Q. Okay. Fine.

10

But Ms. Morrison did tell you that that

11

interpretation from OCR was an important point; didn't

12

she?

13

A. Yes, she did. And we certainly have put that as

14

priority one and there's a significant effort undergoing

15

now regarding a national inter because of the national

16

nature of the sport.

17

Q. If you could move to the next e-mail chain after the

18

yellow separator page, you should see page D 15565?

19

A. Correct.

20

Q. May 10th, 2010, e-mail from you to Kelly Cunningham

21

and others?

22

A. Correct.

23

Q. Is everybody on this list associated with an NCSTA

24

school?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 36 of 149 482

1

Q. And you say: "I have attached what I think we

2

talked about today"; and the attachment is agenda and

3

minutes from a conference call on May 10; correct?

4

A. Yes.

5

Q. And you authored this document; didn't you?

6

A. Yes. Again -- again, the authoring and then it gets

7

edited if there's comments.

8

Q. I understand. But this is not an edited version; is

9

it? This is the version that you first sent to everyone?

10

A. John, I --

11

Q. Since it came from your e-mail?

12

A. Yeah, it probably is. If it came from my e-mail,

13

then this is not edited yet.

14

Q. And looking then at the first page of the agenda and

15

minutes, it indicates in Roman I, discussion of a

16

national championship. There were some concerns -- I'm

17

paraphrasing -- but there were some concerns among the

18

coaches about having the NCSTA national championship the

19

same weekend as the NCA in Daytona?

20

A. Yes.

21

Q. But ultimately, I know that you -- that the group

22

did decide to hold its national championship in Oregon on

23

the same weekend as the NCA championship in the spring of

24

2011; correct?

25

A. That's correct.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 37 of 149 483

1

Q. Also, at this call on May 10th, it appears that

2

there was discussion about holding a coaches meeting at

3

the University of Maryland on May 18th and 19th; is that

4

right?

5

A. Yes.

6

MR. ORLEANS: And let me just interrupt for

7

one second here.

8

Excuse me, your Honor. This doesn't have a

9

sticker on it, but this is a copy of FG; is it not? Just

10

trying to save a little time.

11

BY MR. ORLEANS:

12

Q. Mr. McDonald, showing you a document that I will

13

represent to you is a copy of Defendant's Exhibit FG, I'm

14

trying to save you the trouble of plowing through those

15

books.

16

A. That's fine.

17

Q. Do you agree that this is the cover page, at least,

18

of the recommendations that came out of that coaches

19

meeting at the University of Maryland?

20

A. Yes.

21

Q. So the coaches did meet and came up with a set of

22

recommendations that they made to the administrators?

23

A. Yes.

24

Q. And that was on May 18th and 19th?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 38 of 149 484

1

Q. Returning now to the agenda and minutes of May 10th.

2

At Roman V there's a reference to you having asked about

3

getting some is approval from OCR. Is that accurate? Is

4

that a subject that you raised on this call?

5

A. Yes, I did.

6

Q. And it appears that the decision was that Oregon

7

would take the lead on that; is that right?

8

A. Yes, as I said earlier, we wanted a national inter

9

because of the national nature of the sport.

10

Q. There was also an issue about coaches who own

11

or work for cheer clubs; correct?

12

A. That's correct.

13

Q. And that was a subject that had come up with our

14

deposition of Coach Powers; right?

15

A. I'm not sure I was there for your deposition, but --

16

Q. It's an -- let me -- let me ask the question a

17

little differently. At Quinnipiac, one of the assistant

18

coaches has an interest in a private cheer club; correct?

19

A. Correct. As an NCAA compliance overseer of, you

20

know, all coaches we have to be watch -- careful as to

21

where they have other employment, vis-a-vis, being a high

22

school coach, running a golf club and coaching a team, so

23

very similar to those kinds of question that is we need

24

to be aware of.

25

Q. It would be a violation of NCAA recruiting rules for

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 39 of 149 485

1

a college coach who had not passed the recruiting exam to

2

be using the position at another entity to recruit;

3

wouldn't it?

4

A. It really has nothing to do with the recruiting

5

exam. It's more other employment, are you involved with

6

prospective student athletes. So the recruiting exam has

7

nothing to do with this agenda item.

8

Q. Apart from the recruiting exam, it would be a

9

violation of NCAA rules, would it not, if a college coach

10

were using a position at a high school or a club, a

11

sports club to talk to and recruit student athletes?

12

A. I'm not saying what's unusual -- is it a violation,

13

but it's important that we knew what the policies were.

14

And our cheer coaches knew what they were so that they

15

could stay in line with NCAA policies.

16

Q. And at this time in May, Coach Powers, the head

17

competitive cheer coach at Quinnipiac, had not yet passed

18

the NCAA recruiting exam; am I correct?

19

A. I know she's passed it, John. The actual timeline

20

of when these events occurred, I'm not familiar with.

21

Q. Do you know whether she had passed it before May 1st

22

of this year?

23

A. I think it was in May.

24

Q. You think it was in May of this year?

25

A. Yeah. And I think, just so you know, the exam is

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 40 of 149 486

1

for off campus recruiting, not for on campus recruiting.

2

Q. Understood.

3

If we could move to the next set of pages. It's

4

actually a single page. It's an e-mail from Coach Powers

5

to you, dated May 19, 2010; correct?

6

A. 15422?

7

Q. 15422. This is Coach Powers' reporting in to you on

8

returning from the meeting at the University of Maryland

9

we talked about a moment ago; isn't it?

10

A. Yes.

11

Q. Move on to the next one.

12

This is a document pertaining to the NCSTA

13

conference call on May 25th, 2010.

14

MR. BRILL: What's the Bates number on that,

15

please.

16

MR. ORLEANS: D 15859. I'm sorry. Does the

17

copy that we gave you not correspond to what I'm doing?

18

MS. FRIEDFEL: No, it doesn't.

19

MR. BRILL: You skipped one, I think.

20

MR. ORLEANS: Because I was going to

21

apologize if --

22

MS. FRIEDFEL: No, no need.

23

MR. ORLEANS: -- if we messed up the books.

24

BY MR. ORLEANS:

25

Q. All right. Jack, looking at the May 25th, 2010

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 41 of 149 487

1

document, there's no cover e-mail for this one which is

2

either an oversight on my part or it may be that there

3

wasn't one; but do you recognize this as the notes from

4

the NCSTA conference call on May 25th?

5

A. Yes, I do.

6

Q. And you participated in that call?

7

A. Yes, I did.

8

Q. Are you the author of these notes or was it someone

9

else?

10

A. No, I was not. Kelly Cunningham -- I think this

11

meeting or one of the previous meetings I was cut short,

12

so I asked someone else to take the notes.

13

Q. But you were a participant?

14

A. Yes.

15

Q. And did you review these?

16

A. Yes.

17

Q. And are they accurate, as far as you know?

18

A. Yes, as far as I know. They are accurate and pretty

19

good and show good progress.

20

Q. If you look at the second page under Roman Numeral

21

II, it looks as though you -- the group has increased --

22

decided to increase the minimum number of NCSTA meets

23

from three to four for each participating school; is that

24

correct?

25

A. That's correct.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 42 of 149 488

1

Q. And if you would go to page five of those minutes.

2

And Roman V, updates. It appears that Oregon is not or

3

as of May 25th, a month ago, was not in a position to

4

seek OCR review immediately and advised the group that

5

that review by OCR would be sought at some later date; is

6

that right?

7

A. Yes. That's accurate what it says. I'm not sure --

8

this is clearly an important process, but --

9

Q. I beg your pardon?

10

A. This is clearly an important item, so --

11

Q. Yeah. Was that an accurate statement of what

12

occurred?

13

A. Yes. Yes.

14

Q. And as we sit here today, a month -- not quite a

15

month after the May 25th call, has anyone from NCSTA

16

taken a step to seek OCR review?

17

A. This is still at the University of Oregon.

18

Q. Okay, all right. If the University of Oregon had

19

taken a significant step to seek OCR review, you would

20

expect to know about it; wouldn't you?

21

A. Oh, absolutely.

22

Q. Then do you have D 15867 there? It would be a

23

couple pages past where we are.

24

A. E-mail? Yes.

25

Q. Yes. It starts with, "Begin forwarded message"?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 43 of 149 489

1

A. Yes.

2

MR. ORLEANS: Is that also part of what

3

defense counsel has?

4

MR. BRILL: Yes, thank you.

5

BY MR. ORLEANS:

6

Q. This is an e-mail from Kelly Cunningham to a group

7

of NCSTA affiliated administrators and coaches; correct?

8

A. That's correct.

9

Q. And it says: "Attached are the minutes and update

10

of recommendations from our call."

11

And if you then move two pages to D 15869 there is a

12

document headed NCSTA conference call, June 10, 2010; are

13

you there?

14

A. 15869?

15

Q. Yes.

16

A. Yes.

17

Q. I'll ask you, are these the notes or minutes from an

18

NCSTA conference call that occurred on June 10th, 2010?

19

A. Yes, they are.

20

Q. And you participated in that call?

21

A. Yes, I did.

22

Q. And you reviewed these notes and they are accurate;

23

are they not?

24

A. Yes.

25

Q. Now attached to the notes is a document that is

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 44 of 149 490

1

headed, "Report of the NCSTA," and it appears to be a

2

list of what are called action items. They are actually

3

also referenced in the minutes of the meeting; right?

4

A. That's correct.

5

Q. I just want to make sure I'm characterizing it

6

accurately.

7

So among the decisions that were made on June 10th,

8

was the decision to limit the regular season travel squad

9

to 28 student athletes; correct?

10

A. That's correct.

11

Q. And moving down that page to item 4, there's a

12

decision to limit the post season team competition squad

13

to 24 athletes plus four alternates; correct?

14

A. That's correct.

15

Q. And on the next page, Bates number D 15872, there

16

was a decision to seek to establish competitive cheer as

17

an individual sport rather than a team sport; correct?

18

A. That's correct.

19

Q. And that's within the NCAA differentiation between

20

team and individual sport?

21

A. Effective length of the playing season, things like

22

that.

23

MR. ORLEANS: Your Honor, I hope I didn't

24

take too much time with those. I just wanted to make

25

sure you were aware of the contents of that set of

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 45 of 149 491

1

documents.

2

THE COURT: Okay.

3

BY MR. ORLEANS:

4

Q. Now in this past season, Jack, the spring 2010

5

season I'll call it -- well, do you recall when the

6

Quinnipiac cheer team had its first competition in the

7

academic year just finished?

8

A. Yes, we had an inaugural event in the first week of

9

December.

10

Q. The first week of December?

11

A. Yes.

12

Q. Was that a competition or --

13

A. Sort of an exhibition program, get the campus aware

14

of our new sport and it was a very good opportunity for

15

us to see competitive cheer for the first time.

16

Q. So I think I probably then should refer to it as the

17

2009-2010 season. In the 2009-2010 season, the

18

Quinnipiac team competed against sideline squads; did it

19

not?

20

A. A variety of different teams, yes.

21

Q. And competed against -- we know you competed against

22

Maryland which bills itself as a varsity squad, right?

23

A. Yes.

24

Q. And that's a competition only team?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 46 of 149 492

1

Q. But you also competed against sideline teams and

2

club teams; did you not?

3

A. That's correct.

4

Q. And that will also be true in the coming year; will

5

it not?

6

A. That's correct.

7

Q. And it's also the case that in the 2010-2011 year,

8

not all of Quinnipiac's competitions will be in the NCSTA

9

format?

10

A. That's correct. If I could add that --

11

Q. There's no question. I'm sorry, Jack.

12

A. That's fine.

13

Q. I'm sure your lawyers are going to ask you some

14

questions?

15

A. No, that's fine.

16

Q. If you will just confine yourself to answering my

17

questions, I would appreciate it.

18

With respect to the plan by NCSTA to submit a

19

proposal to the Committee on Women's Athletics for

20

emerging sport status, you need ten schools to sign on to

21

a proposal; correct?

22

A. That's correct.

23

Q. And you don't have ten yet; do you?

24

A. Not yet.

25

Q. Changing the subject a little bit, now talking about

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 47 of 149 493

1

the EADA reports. You are involved in the submission of

2

Quinnipiac's EADA reports; aren't you?

3

A. Yes.

4

Q. And in fact, you're listed on the reports as the

5

responsible officer, I think?

6

A. Yes.

7

Q. And you're aware that OCR doesn't allow schools to

8

count cheerleading as a varsity sport when submitting

9

their EADA data, right?

10

A. We don't have cheerleading. It's competitive cheer,

11

I mean, so --

12

Q. This is what I wanted to get clear?

13

A. Yes.

14

Q. You were here in court yesterday, right?

15

A. Yes.

16

Q. And you saw and heard the testimony --

17

A. Right.

18

Q. -- about the EADA instructions?

19

A. Correct.

20

Q. Which include an instruction that in order to count

21

cheerleading for EADA purposes, a school must have

22

obtained a determination letter from OCR; right?

23

A. Yes.

24

Q. And you're aware of that instruction in the --

25

A. As it relates to cheerleading, yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 48 of 149 494

1

Q. And so I take it then that it is Quinnipiac's

2

position that it's offering something different and

3

therefore that rule doesn't affect you?

4

A. I think that's something we need to answer -- get

5

answered.

6

Q. Have you sought an OCR determination letter for

7

Quinnipiac?

8

A. Again, the national group, NCSTA is certainly

9

working on that as a group.

10

Q. So NCSTA is working on it but hasn't sought it yet;

11

correct? It's a yes or no.

12

A. No.

13

Q. I'm not correct?

14

A. No, we haven't sought it yet.

15

Q. Thank you.

16

A. Sorry.

17

Q. And Quinnipiac has not sought an OCR determination

18

on its own; has it?

19

A. No.

20

Q. To your knowledge, has any school in the NCSTA

21

sought a determination letter from OCR?

22

A. I know Maryland has sought an answer and their

23

answer has been it's up to the institution to define and

24

support the event -- the sport as a sport; but that's not

25

something that Quinnipiac or the national body could use.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 49 of 149 495

1

Q. I'm going to go to Exhibit 145. I'm anticipating an

2

objection.

3

MS. FRIEDFEL: Very clairvoyant.

4

BY MR. ORLEANS:

5

Q. I would like to show you, Jack, a document that's

6

been marked as Plaintiff's Exhibit 145. Do you recognize

7

this as an EADA report from the University of Maryland?

8

MR. BRILL: Objection, your Honor. This

9

document is hearsay. The part that's not showing --

10

MR. ORLEANS: I'll be glad to show it.

11

MR. BRILL: -- contains a statement by

12

Maryland with respect to alleged advice to them by the

13

Office of Civil Rights. We don't know the circumstances

14

under which that legend was put on there, what advice was

15

given to them by the Office of Civil Rights; and this

16

document was just added to the exhibit list a day or two

17

ago. I can say that I, personally, have spoken to the

18

attorney at length, director of University of Maryland

19

about this and there is a long story here which we were

20

prepared to take their depositions in Maryland to get on

21

the record had this been raised as an issue. But the

22

document --

23

We have no objection to this going in for the

24

top portion of the document; but it -- it's clear hearsay

25

to say that the Office of Civil Rights requested

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 50 of 149 496

1

something from them. Because we don't know the

2

conversations that were had, we don't know what

3

representations were made to the OCR or exactly what OCR

4

said to them or why. And frankly, if it comes in for the

5

truth of that, then we would ask for leave to continue

6

the file to take depositions of the Maryland --

7

responsible Maryland officials; because -- and I'm

8

representing this to the Court, what I can say is that it

9

was not what Mr. Orleans is presenting it to be.

10

MR. ORLEANS: Well, your Honor, with respect

11

to the hearsay objection --

12

MR. BRILL: I'm sorry, I left out there's

13

also a bunch of other EDEA reports. I don't know if they

14

are going to be offered. But there was no -- at least

15

this is last year's report. Before the NCSTA was formed.

16

What we got was a package of EADA reports for a group of

17

the NCSTA schools, most of which, the vast majority of

18

which didn't even compete in varsity competitive cheer

19

last year. And whatever was said last year under the

20

circumstances that existed last year really don't have

21

relevance -- I mean, even if this were not hearsay, it

22

doesn't reflect conversations that OCR has been having or

23

decision that is it might make based on the new format

24

and the new organization.

25

MR. ORLEANS: Your Honor --

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 51 of 149 497

1

MR. BRILL: Any slight relevance is far

2

outweighed by the prejudicial suggestion that OCR has

3

given an opinion to Maryland which frankly is simply not

4

the case.

5

MR. ORLEANS: Your Honor, with respect to the

6

hearsay objection, the entire collection of documents are

7

government records. I will represent to the Court that I

8

downloaded these reports from the Office of Civil Rights

9

web site where they are available to the public. These

10

are reports that are required to be submitted by

11

institutions that receive federal funds. They are filed

12

with the Department of education Office of Civil Rights

13

and they are available to the public on the web site.

14

MR. BRILL: And --

15

MR. ORLEANS: Insofar --

16

MR. BRILL: I don't dispute that.

17

MR. ORLEANS: Can I finish? I waited for

18

you.

19

MR. BRILL: I'm sorry.

20

MR. ORLEANS: Insofar the objection is a

21

hearsay objection, I think that the government records

22

exception disposes of that argument.

23

Insofar as what it's being offered for, the

24

documents are being offered to show that Maryland has not

25

received a determination that competitive cheer may be

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 52 of 149 498

1

counted. I'm not trying to offer any evidence about any

2

other conversations Maryland may or may not have had with

3

the Office of Civil Rights. I don't know about those.

4

And the documents -- the remainder of the EADA

5

reports which are contained in the exhibit are being

6

offered to show that in -- and it's all limited to

7

2008-2009 because these reports are filed in October of

8

2009 and we don't have reports yet for the current year.

9

But I would offer the document simply to show that none

10

of the schools now in the NCSTA at that time, for

11

whatever probative value that has, listed cheerleading or

12

competitive cheer as varsity sports on their EADA

13

reports.

14

MR. BRILL: Your Honor, I don't object to

15

that document for that limited purposes as long as

16

there's no suggestion that the statements about what was

17

requested by the OCR are accepted for the truth. We

18

would -- in fact, we don't dispute that as of October

19

15th, 2009 or indeed through today that Maryland has not

20

received a letter from the Office of Civil Rights

21

advising it that it can count competitive cheer as a

22

sport. That's not disputed here. What I do dispute is

23

admitting a document to show that there was advice or

24

request from the Office of Civil Rights not to include

25

it.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 53 of 149 499

1

And as far as the rest of the NCSTA membership,

2

all those documents are completely irrelevant to the

3

extent the schools weren't even claiming to be

4

participating in competitive cheer during that period of

5

time.

6

THE COURT: Mr. Orleans, we seem to have

7

double hearsay. The report is a government report, but

8

the statements in the notes appear to be hearsay

9

statements.

10

MR. ORLEANS: I see the point, your Honor.

11

Wouldn't that be true of most government records? The

12

information has to be reported to the government from

13

somewhere. And the exception doesn't go that far?

14

THE COURT: Well, this is --

15

MR. ORLEANS: Cover the second layer?

16

THE COURT: I think it's different because --

17

for two reasons: One, presumably the data is data that

18

the participants are required to provide to the

19

government so there's a duty to collect it. Which gives

20

it some credence. Whereas, the statement in the note

21

is -- doesn't fall, doesn't appear to fall within that --

22

the scope of that duty. What's more, the fact that it

23

mentions a request suggests that it's repeating an out of

24

court statement as opposed to merely pulling the data

25

required from the report.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 54 of 149 500

1

MR. ORLEANS: Your Honor, I see where you're

2

going and with that in mind, I will withdraw the offer of

3

the document and accept Mr. Brill's proposed stipulation

4

that Maryland, that the University of Maryland has not

5

received a determination letter from OCR.

6

MR. BRILL: Yes, we would agree to that.

7

THE COURT: Very well.

8

BY MR. ORLEANS:

9

Q. I'm sorry if I asked you this already, Jack, but it

10

is the case, isn't it, that Quinnipiac has never in the

11

past reported competitive cheer as a varsity sport on its

12

EADA submission?

13

A. No.

14

Q. No, it has not?

15

A. No, it has not. I'm sorry.

16

Q. I keep asking the questions in an awkward way. I

17

apologize.

18

I think you heard Mr. Thompson testify earlier that

19

the cheer squad was not held to its expense budget in its

20

first year of varsity operation?

21

A. Having had many other sports start and evolve in

22

Division I, its -- there's no question that it's an

23

evolving process. But there are certain policies that

24

are adhered to, but frankly, coaches and our financial

25

people did a great job supporting them in the first year.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 55 of 149 501

1

Q. So you did hear that testimony?

2

A. Yes, I did.

3

Q. And that would explain how that squad was able to

4

fly to competitions in Georgia and Florida on a $50,000

5

travel -- on a $50,000 expense budget; right?

6

A. That's correct.

7

Q. Now you would agree, wouldn't you, that for a

8

Division I coach, recruiting is very important?

9

A. Yes.

10

Q. And you heard Dr. Lopiano say yesterday that

11

arguably it's the most important thing that a head coach

12

does, at least after instruction?

13

A. Yes.

14

Q. And with respect to competitive cheer, even though

15

it's not an NCAA sport, you are following NCAA rules; is

16

that right?

17

A. Yes.

18

Q. So certainly, for the year that is coming, the

19

2010-2011 academic year, recruiting is by and large over;

20

is it not?

21

A. I wouldn't say that's done at all until they the

22

first day of classes in September.

23

Q. You are saying recruiting continues right through

24

the summer?

25

A. It sure does, in terms of people and -- this is I

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 56 of 149 502

1

would say, definitely in competitive cheer, but certainly

2

in all sports.

3

Q. Accepted students' deposits were due to be paid to

4

Quinnipiac by May 1st, correct?

5

A. There's no question.

6

Q. So some coaches with holes in their rosters may

7

continue to recruit through the summer to try to fill

8

some holes; right?

9

A. It's very possible.

10

Q. I want to talk a little bit about the roster

11

management process, implementation at Quinnipiac.

12

That's something that Dr. Thompson is in charge of;

13

right?

14

A. That's correct.

15

Q. But you're also involved?

16

A. Yes.

17

Q. You work closely with him on that?

18

A. Yes, I do.

19

Q. And Dr. Thompson testified that he took that very

20

seriously?

21

A. Yes, he did.

22

Q. And that he expected the coaches to hit their

23

numbers; correct?

24

A. Yes, he did.

25

Q. So did you expected the coaches to hit their

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 57 of 149 503

1

numbers?

2

A. Yes.

3

Q. And that is at least in part because QU wants to

4

maintain Title IX compliance on the proportionality test;

5

correct?

6

A. That's correct.

7

Q. So -- and in order to do that, you really can't let

8

the men's squads get any larger than their targets or let

9

the women's squads get smaller than their targets; is

10

that right?

11

A. Basically, yes.

12

Q. And I take it that after the evidence that was

13

presented at the preliminary injunction hearing which

14

suggested that there might have been some manipulations,

15

the name of the game was, you know, was no more games

16

with drops and adds, get to the target number and stay

17

there, is that a fair characterization?

18

A. Yes.

19

Q. In the summer of 2009, last summer, did any of the

20

coaches express concerns to you about the fact that they

21

didn't get their targets until after the recruiting

22

season was essentially done?

23

A. No.

24

Q. No?

25

A. They had been aware about roster numbers in general

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 58 of 149 504

1

anyway, so they knew their -- the numbers with important.

2

It wasn't like a roster management just happened. They

3

were very close all the time.

4

Q. Didn't any of the coaches tell that you they were

5

taken by surprise by their roster numbers?

6

A. There was some concern by an athlete or two. But I

7

immediately let them know they needed to make a request

8

to Mark.

9

THE COURT: You said by "an athlete or two,"

10

did you mean "a coach or two" or --

11

BY THE WITNESS:

12

A. No, a coach about an athlete or two.

13

THE COURT: Oh, I see.

14

BY MR. ORLEANS:

15

Q. Excuse me just a moment, your Honor. Sorry.

16

Coaches who get roster targets that are higher than

17

the number of athletes they've recruited have to hold

18

tryouts or take walk-on's; correct?

19

A. Could you repeat that question again.

20

Q. Coaches who get roster targets that are bigger,

21

bigger numbers, higher, than the number of athletes that

22

they've recruited for their squads have to have tryouts

23

or walk-on's or some way to fill those slots; right?

24

A. Yes.

25

Q. And at Quinnipiac, is it more often the case that

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 59 of 149 505

1

women's teams have to fill out their rosters by holding

2

tryouts or allowing walk-on's?

3

A. I don't know if it's more men or women.

4

Q. This is Plaintiff's 86. Let me try to get this so

5

you can see all of it.

6

I don't remember if this one is already in evidence.

7

86?

8

THE CLERK: It's in.

9

MR. ORLEANS: That's in already? Okay.

10

BY MR. ORLEANS:

11

Q. Jack, this is a document -- the cover page actually

12

is an e-mail to you from Dr. Thompson. It's dated

13

September 1, 2009. And this is the attachment. It

14

appears to be to show the roster sizes for this year that

15

we've just completed, 2009-2010. Let's start with men.

16

There's a column for the final plan, there's a column for

17

the preliminary plan. I guess that was an earlier

18

version?

19

You need to answer verbally. Sorry.

20

A. Yes.

21

Q. And then you got a column showing the difference and

22

a column showing the NCAA average squad size. And then

23

the final column for the men that's highlighted shows the

24

comparison to the NCAA average squad size. Correct?

25

A. That's correct.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 60 of 149 506

1

Q. And I see that the Quinnipiac men's -- Quinnipiac

2

baseball is four -- the target is four less than the NCAA

3

average squad size; correct?

4

A. That's correct.

5

Q. Soccer is three smaller; correct?

6

A. Yes.

7

Q. Lacrosse is three smaller?

8

A. Yes.

9

Q. Cross country is two smaller?

10

A. Yes.

11

Q. And ice hockey is two larger?

12

A. Correct.

13

Q. Did it cause you any concern that so many of your

14

men's -- your targets for men's teams were just a little

15

smaller than the NCAA averages?

16

A. I think Dr. Thompson mentioned this morning that

17

each one of those decisions on a number was after lengthy

18

discussion with each of the coaches.

19

Q. And he also mentioned that the NCAA average squad

20

sizes were taken into account; didn't he?

21

A. Yes.

22

Q. My question you to is, did it cause you any concern

23

that most of your men's squad sizes were a little bit

24

lower than the NCAA averages?

25

A. No.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 61 of 149 507

1

Q. Okay. And now let's look at the women's. I can't

2

move it because we have to be able to see what the sports

3

are. You got the same basic setup for the women;

4

correct?

5

A. Yes.

6

Q. And we can see that for women's basketball, the team

7

is three larger than the NCAA average; right?

8

A. Correct.

9

Q. For field hockey it's two larger. For soccer it's

10

one larger. For tennis it's one larger. For lacrosse

11

it's two. For cross country it's two. For ice hockey

12

it's one. And for softball it's one. Was I -- I did

13

read all those correctly?

14

A. Yes, you did.

15

Q. And let's just talk about indoor track and outdoor

16

track briefly. For indoor track, the squad size is seven

17

smaller than the NCAA average; correct?

18

A. Correct.

19

Q. But the NCAA average includes teams that enter field

20

events which Quinnipiac doesn't do?

21

A. That's right.

22

Q. And the same for the outdoor track?

23

A. Correct.

24

Q. My question is, did it cause you any concern that

25

the Quinnipiac women's teams targets were consistently

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 62 of 149 508

1

just a little bigger than the NCAA average squad size?

2

A. For the same reason as the men, no.

3

Q. And now let me show you Exhibit 142. Now the left

4

column is under men and under women, the left column is

5

the target for the upcoming year; correct?

6

A. That's correct.

7

Q. Do you recognize the document as the targets for the

8

coming year?

9

A. Yes.

10

Q. And we can see that your basketball team is slated

11

to be -- your men's basketball team is slated to be

12

larger than the NCAA squad -- average squad size and the

13

same for the women's team; correct?

14

A. Yes.

15

Q. And your men's ice hockey team is scheduled to be

16

larger than the NCAA average squad size; correct?

17

A. That's correct.

18

Q. And those are basketball and ice hockey are your

19

sports of emphasis?

20

A. Yes.

21

Q. Men's baseball is going to be two smaller than the

22

NCAA average; right?

23

A. Yes.

24

Q. Soccer is going to be five smaller?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 63 of 149 509

1

Q. Tennis is right at the average. Lacrosse is going

2

to be four smaller than the NCAA average?

3

A. Correct.

4

Q. Cross country is going to be two smaller than the

5

NCAA average?

6

A. Correct.

7

Q. Did it cause you any concern that your men's teams

8

are consistently set up just a little bit smaller than

9

the NCAA average?

10

MR. BRILL: Objection, your Honor.

11

Misstating the evidence.

12

THE COURT: Lacrosse is --

13

MR. BRILL: Two of the teams are larger and

14

one is the same.

15

MR. ORLEANS: I'll amend the question. I

16

think he's answered it, but I'll amend the question to

17

say many of your men's teams are smaller the NCAA

18

average? And the answer is.

19

BY THE WITNESS:

20

A. Am I concerned, is that the question.

21

Q. Yeah, that's the question?

22

A. For the reasons already stated, no.

23

Q. And then on the women's side, the basketball team is

24

three larger than the average, the field hockey team is

25

one larger?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 64 of 149 510

1

A. Yes.

2

Q. The soccer team is one smaller than the average.

3

Tennis is one larger, lacrosse is three larger, cross

4

country is seven larger than the national average. Ice

5

hockey is three larger than the national average.

6

Softball is one smaller than the national average. And

7

volleyball is one smaller than the national average.

8

Now with respect to the women's squad sizes,

9

obviously, some are larger and some are smaller. With

10

respect to the ones that are larger, slated to be larger

11

than the national average, did it cause you concern that

12

they were slated to be larger than the national

13

average?

14

A. No.

15

Q. You've increased the prospective size of indoor and

16

outdoor track from 30 to 35 as against NCAA average squad

17

sizes of 38 and 37 for indoor and outdoor respectively;

18

right?

19

A. Yes.

20

Q. But you're still not entering field events, are you?

21

A. No.

22

Q. You heard Dr. Thompson's testimony about his

23

interaction with Dave Clark the coach of the women's

24

soccer team?

25

A. Yes, I did.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 65 of 149 511

1

Q. Did Dr. Thompson discuss that issue with you before

2

he gave -- before he made a decision?

3

A. Most all the time, it's I think Dr. Thompson, myself

4

and the coaches involved are part of the same e-mail

5

chain. Many times I will -- coach will request it to me,

6

I will send it to Mark to say that, you know, I support

7

this or I don't. And Mark ultimately makes the final

8

decision, but I'm always aware of both the request and

9

the decision.

10

Q. So you knew that Coach Clark thought that 27 was not

11

a manageable number for his soccer squad?

12

A. Yes.

13

Q. And that he wanted a roster of 22 to 24?

14

A. Correct.

15

Q. And -- but that he said he would work with what the

16

school needed; correct?

17

A. That's correct.

18

Q. Let me show you -- I will move these e-mails as

19

quickly as I can. This is an e-mail, this is Plaintiff's

20

Exhibit 88. And it's an e-mail back and forth between

21

you and Carolyn Robin who is the same person as Carolyn

22

Martin; correct?

23

A. Correct.

24

Q. And on February 15th, 2010, Coach Martin wrote to

25

you about her desire to drop some -- drop three athletes

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 66 of 149 512

1

from her cross country roster and add three athletes to

2

train with the team for the spring; correct?

3

A. This is men's cross country or --

4

Q. This is men's cross country. Right. I'm trying to

5

move quickly, but what she says is she lost Rich Klauber,

6

he transferred?

7

A. Correct.

8

Q. And her two graduating seniors Dan Martin and Tyler

9

Dinnan, she would like to be able to replace with two

10

other athletes to train with us; right?

11

A. That's correct.

12

Q. So she asked you whether it would be possible to add

13

three athletes so that we can better prepare next year's

14

team; right?

15

A. That's correct.

16

Q. And your response was, "I'm assuming that your

17

numbers will stay the same if Mark approves this"; right?

18

A. Yes.

19

Q. So you thought, you believed when you sent that,

20

that the three athletes added to practice for the spring

21

after the competitive season wouldn't count as

22

participants for Title IX purposes; right?

23

A. I'm assuming that if all was cleared, that they

24

would not -- they would be part of the add or drop

25

process that gets approved by Tracey Flynn and ultimately

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 67 of 149 513

1

Mark.

2

Q. And was it your assumption that if you dropped

3

someone and added someone, that with a net gain of zero,

4

that that wouldn't increase the number of participants

5

who had to be counted?

6

A. Well again, because this is a sport that ended and

7

cross country now had a non-traditional season in the

8

spring, so that -- so it's a tad different than just

9

dropping and adding in the middle of a season. But

10

ultimately, what that e-mail showed was the communication

11

in support of the roster policies.

12

Q. But I take it then that the answer to -- my question

13

was whether you thought that dropping three and adding

14

three would increase the number of participants that had

15

to be reported and I take it that the answer is you

16

thought that it would not increase that number?

17

A. That's correct.

18

Q. And similarly, since this is a multi-page, can you

19

get your hands on Plaintiff's Exhibit 90?

20

A. Is this the same one?

21

Q. If it's got numbers, is 90 in here?

22

A. Yes.

23

Q. Great.

24

Okay?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 68 of 149 514

1

Q. Exhibit 90 is an e-mail chain between you and is it

2

pronounced "Danny"?

3

A. Yes.

4

Q. And Danie Caro?

5

A. Yes.

6

Q. And Danie Caro is the coach of the women's lacrosse

7

team; right?

8

A. That's correct.

9

Q. So go to the back, the last page first and we'll

10

work our way up. Do you recall the exchange that's

11

reflected in these e-mails?

12

A. Yes.

13

Q. If I can paraphrase, it appears that Coach Caro is

14

asking you about a student who was studying abroad in the

15

fall, this is in September that coach writes to you:

16

"I've got a student that's studying abroad. I would like

17

to add her to the roster when she gets back. Am I going

18

to have to drop someone in order to stay at my number?"

19

Right?

20

A. Yes.

21

Q. And you wrote back that you were in Maryland and you

22

wanted to know if the student coming back from your --

23

was on scholarship?

24

A. That's correct.

25

Q. And you said that if she's on scholarship she's

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 69 of 149 515

1

going to count. But if she's not on scholarship, she's

2

not going to count, right? Well, let me withdraw that.

3

I want to be fair.

4

You said, you think if she's on scholarship, she'll

5

count?

6

A. That's right.

7

Q. And so I take it that what you thought was that if

8

she was not on scholarship, she wouldn't count?

9

A. I'm not sure what I meant at the time. But it

10

clearly was sort of looking for more information to help

11

both Tracey and Mark make a decision for this question.

12

Q. If you go then to the first page -- she wrote back

13

you to on September 14th, Coach Caro wrote back: "She's

14

a non-scholarship player"; right?

15

A. That's correct.

16

Q. And then if you go to the first page of the exhibit,

17

you then said: "My hunch is that if she was not on the

18

roster for the first date of competition, and she was not

19

on athletic aide, she wouldn't count"; right?

20

A. That's what I said, yes.

21

Q. So that was your belief at that time?

22

A. That was my hunch.

23

Q. Do you recall whether you ever had that confirmed or

24

not?

25

A. I don't. This clearly, again, went to the same

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 70 of 149 516

1

review process.

2

Q. Showing you Exhibit 91. This is an e-mail from

3

Coach Clark on September 17th of 2009 about player who

4

wanted to quit the team asking if he had to replace her

5

to keep his roster at 27 or could he continue without a

6

27th player. Right?

7

A. Yes.

8

Q. And the e-mail was sent to Tracey Flynn and to you?

9

A. Yes.

10

Q. Right? And Ms. Flynn then responds later that day,

11

if you can't stop someone from quitting, "You hit your

12

target number as of the first day of competition. You

13

met your obligation"; see that?

14

A. Yes.

15

Q. Is that an accurate statement of the policy of the

16

athletic department at that time?

17

A. It's an interpretation from Tracey, yes.

18

Q. Let me talk just a minute about how you count and

19

report runners. Prior to this year, Quinnipiac had

20

women's cross country, indoor and outdoor track and also

21

had men's cross country, indoor and outdoor track; right?

22

A. That's correct.

23

Q. And when you did your EADA reports, you treat -- for

24

purposes of whether you were going to use duplicated or

25

unduplicated counts -- do you understand what I mean by

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 71 of 149 517

1

duplicated and unduplicated counts?

2

A. Yes.

3

Q. For purposes of your EADA reports, you would treat

4

the men's and women's cross country and track programs

5

the same; wouldn't you?

6

A. That's correct.

7

Q. So even -- your reporting may had varied from year

8

to year whether it was duplicated or unduplicated, but it

9

was always the same for the men's and women's teams; is

10

that right?

11

A. That's correct.

12

Q. But now that you have a men's cross country program

13

but no men's track, but you have women's cross country,

14

indoor and outdoor track, you are going to multiple count

15

some of the women but you're not going to multiple count

16

any of the men; am I right?

17

A. That's correct.

18

Q. So if I can go back for a min -- you haven't filed

19

the 2009-2010 EADA report yet; have you?

20

A. No.

21

Q. And that will be filed in October?

22

A. That's correct.

23

Q. So if we can just look at the women's -- the female

24

runners for the year just ended. There are 18 cross

25

country runners; right?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 72 of 149 518

1

A. Yes.

2

Q. And they are all required by their coach to run

3

indoor and outdoor track; are they not?

4

A. I don't know the answer to that.

5

Q. Do you know that they all do run indoor and outdoor

6

track?

7

A. I couldn't say for sure.

8

Q. You couldn't say for sure. Okay. Let's just -- I'm

9

going ask you to accept, I just want to do a quick little

10

math exercise with you. I'm going to represent to you

11

that all of the cross country runners run indoor and

12

outdoor track. Those 18 girls are going to count for 54

13

participation slots; right?

14

A. 18 times 3?

15

Q. 18 times 3, that's right. And if you similarly

16

assume that of the 30 indoor and outdoor track athletes,

17

18 on each squad are cross country runners and the other

18

12 run only indoor and outdoor track, and that's 12 more

19

girls who are going to count for 24; right?

20

A. Again, there are many athletes that might go

21

overseas, student teaching, nursing. I would say that

22

you're -- I'm not sure that's exactly true, not all the

23

same people. You might not have all 18 running indoor

24

and outdoor track.

25

Q. That information is part of the record as to who

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 73 of 149 519

1

actually ran and who actually -- in fact, you could have

2

a girl who, due to -- who was on the roster for cross

3

country, indoor and outdoor track and receiving a

4

scholarship, say, so that she counts. And if she were

5

injured, but receiving aide, she might never run at all

6

and she would still count three times; right?

7

A. I'm not sure. Again, I'll defer to Tracey in terms

8

of the exact how these -- that special occurrence counts.

9

But to say that all same 18 in cross country

10

automatically run indoor and outdoor track, I don't know

11

if that's true.

12

Q. Am I correct that at Quinnipiac there are no

13

multiple sport athletes, other than the female runners?

14

A. There may be one or two athletes that may try a

15

second sport, but --

16

Q. There was one girl who was on the ice hockey team

17

for most of the year and then went to field hockey,

18

right?

19

A. Right, right.

20

Q. Are there any others you are aware of?

21

A. There's none I'm aware of. But I'm not going to say

22

it doesn't happen.

23

Q. You are not aware of somebody who plays soccer in

24

the fall and softball in the spring?

25

A. I'm not aware, but I wouldn't say it doesn't happen.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 74 of 149 520

1

Q. And you'd agree with me, wouldn't you, that there's

2

more difference between, for example, playing soccer in

3

the fall and softball in the spring on the one hand than

4

there is between running the 800 meters indoors and the

5

800 meter outdoors?

6

A. That's a matter of opinion.

7

Q. And Quinnipiac doesn't have an outdoor track;

8

correct?

9

A. No.

10

Q. And the Quinnipiac indoor track is not suitable for

11

competition?

12

A. No.

13

Q. No, it is not or no --

14

A. No, it isn't. Sorry. Tricked me again.

15

Q. That's because I asked the questions in the

16

negative.

17

Does Quinnipiac have plans to construct an outdoor

18

facility?

19

A. Not at this time.

20

Q. Does Quinnipiac have plans to improve its indoor

21

facility?

22

A. Not at this time.

23

Q. So there's no plan at this time to make the indoor

24

facility suitable to host competitions?

25

A. No.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 75 of 149 521

1

MR. ORLEANS: May I just have a moment, your

2

Honor. I'm almost finished.

3

THE COURT: Fine.

4

BY MR. ORLEANS:

5

Q. Jack, let me just show you a copy of Plaintiff's

6

Exhibit 147. This is an e-mail from you to Rick Seeley;

7

correct?

8

A. Yes, it is.

9

Q. And it's dated April 7th of this year. It says:

10

"This is helpful. It might be good we meet with all to

11

review this so all are aware."

12

And the attachment --

13

MR. BRILL: Your Honor, I'm not sure when I'm

14

supposed to jump in to object. I'll make my objection

15

now. This is hearsay. It's being offered for the truth

16

of the contents. It's a letter sent by Mr. Seeley making

17

out-of-court statements; and in fact, the plaintiffs had

18

Mr. Seeley on their witness list. They asked to speak to

19

him. And after speaking to him they took him off the

20

witness list. They can't now put in the statements by an

21

out-of-court declaration. It's rank hearsay.

22

THE COURT: Well --

23

MR. ORLEANS: May I respond?

24

THE COURT: Sure.

25

MR. ORLEANS: Your Honor, defense counsel

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 76 of 149 522

1

represented not three and a half hours ago that the

2

defense is going to be calling Mr. Seeley in any event.

3

But it's not hearsay. It's an admission. Mr. Seeley is

4

a coach. We've been told he's an administrator. He's an

5

employee of the university. He is speaking here in

6

connection with his function for the university. And the

7

statement by Mr. Seeley, therefore, is not hearsay.

8

MR. BRILL: Your Honor, he is not -- he does

9

not represent the university for purposes of binding the

10

university. In fact, the plaintiff's took the position

11

when they asked to speak to the coaches, they told us

12

that their position was that coaches were not -- that

13

they didn't have to get our permission to speak to the

14

coaches as officials of the university, but they, as a

15

courtesy, asked us if we objected. In fact, they,

16

themselves, approached a coach, Coach Fairchild, and

17

spoke to her and called her as a witness in this very

18

case without permission of the university. Coaches not

19

sufficiently lie in the organization to be somebody that

20

binds university. They are an employee of the university

21

three, four, five levels down from the top of the

22

university.

23

In any event, Mr. Seeley will be here and if

24

there's -- if he could be cross examined at that time

25

about statement that is he may have made in the e-mail,

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 77 of 149 523

1

that's appropriate. But he can't be -- I don't --

2

obviously, your Honor has to make a ruling, but it seems

3

to me there's no basis for admitting it on the grounds

4

that its an admission against its interest by the

5

university.

6

THE COURT: It seems to me it's hearsay, but

7

as a practical matter, if he's coming and he's going to

8

be available for him to be examined on at that time, I

9

wonder why it can't be used now. In other words, do you

10

want to have plaintiff recall Mr. McDonald at that point

11

to ask him about the document after it comes in?

12

MR. ORLEANS: I only have a couple questions,

13

your Honor. I -- we, certainly, admit it conditionally

14

to it being linked up, assuming Mr. Seeley will admit

15

it's his statement, then I think the problem will be

16

solved.

17

MR. BRILL: I guess we will proceed on that

18

base. I'm not sure that cures the hearsay problem, but I

19

agree with the practicalities of recalling

20

Mr. McDonald.

21

THE COURT: I'm going to allow this

22

examination and if it turns out that the document doesn't

23

come in for some reason, then I'll strike it. So it's

24

not admitted, but you can use it.

25

MR. ORLEANS: Okay.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 78 of 149 524

1

BY MR. ORLEANS:

2

Q. Mr. McDonald, really I just want to ask you if you

3

received this communication from Mr. Seeley?

4

A. Yes, I did.

5

Q. And this was prompted by his request to -- or

6

withdrawn.

7

This was prompted by his notification to you and

8

Tracey Flynn that he would -- that there were six girls

9

who would not be returning to play hockey next year;

10

correct?

11

A. That's correct. And I -- any time there is a

12

student athlete that's been asked -- the scholarship

13

won't be renewed or they're quitting, it's really

14

important that I and Tracey know who they are and why

15

it's happening.

16

Q. And did you ask him to provide some kind of detailed

17

explanation --

18

A. That's what the e-mail said.

19

Q. This is his explanation?

20

A. This is the response to that.

21

Q. You were here yesterday. Do you recall Mr. --

22

Dr. Thompson being shown a letter to Robin Sparks from

23

you -- excuse me, with an envelope?

24

A. The campus envelope.

25

Q. Yeah, the campus envelope?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 79 of 149 525

1

A. Yes.

2

Q. Did you send out the roster target letters to the

3

coaches on or about June 9th?

4

A. Yes.

5

Q. And the exhibit that we saw was a copy of the letter

6

that went to Coach Sparks; correct?

7

A. Correct.

8

Q. It is true, isn't it, that there is currently a

9

schedule of volleyball competitions set for the fall?

10

A. Yes.

11

Q. And you have returning students by which I mean

12

students who have already -- who were coming as

13

sophomores or juniors or seniors who are on the

14

volleyball team; correct?

15

A. Yes.

16

Q. And who are receiving athletic scholarships?

17

A. Yes.

18

Q. And the school is committed to maintaining the

19

scholarships for those kids regardless of what happens;

20

isn't it?

21

A. Yes.

22

Q. That's how you've treated other athletes on other

23

teams that were eliminated?

24

A. Yes.

25

Q. And you also have freshmen coming to Quinnipiac in

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 80 of 149 526

1

the fall who were recruited by Coach Sparks and are

2

coming with athletic scholarships to play volleyball;

3

correct?

4

A. Yes.

5

Q. But I think that you told me previously that you

6

weren't -- you don't know what the university's policy is

7

going to be as far as honoring scholarships of those

8

kids?

9

A. We have made sure Coach Sparks informs the

10

prospective student athletes with exactly what's

11

happening with volleyball.

12

Q. As far as you know, Coach Sparks has informed anyone

13

that she recruited to come to enter as a freshmen in the

14

fall that the future of the volleyball team is uncertain,

15

right?

16

A. Yes.

17

Q. You didn't tell her she needed to tell the students

18

that their scholarships might be withdrawn; did you?

19

A. I forget exactly what was said about that, but we

20

wanted to have her and the prospective student athletes

21

and the families be aware of what's happening.

22

Q. And by be aware of what's happening, you mean be

23

aware that the program might be eliminated; correct?

24

A. That's correct.

25

MR. ORLEANS: Nothing further for this

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 81 of 149 527

1

witness, your Honor.

2

THE COURT: All right. Why don't we take a

3

ten minute recess and come back for cross. We will be

4

doing any direct through this witness?

5

MR. BRILL: Yes. Although not much of one.

6

THE COURT: All right. Fair enough. We will

7

stand in recess until 3:45.

8

(RECESS At 3:35 P.M.)

9

(RECONVENED AT 3:47 P.M.)

10

MR. BRILL: Jack, I'm going to try to make

11

this as quick and painless as possible, but there's a few

12

things I want to go over.

13

CROSS-EXAMINATION

14

BY MR. BRILL:

15

Q. You were shown Exhibit 1 during your direct

16

examination. I put part of it on the screen here and

17

call your attention to the highlighted portion. Were you

18

aware at the time Coach Martin was requesting an increase

19

in the roster for next year that she was planning to

20

expand the number of atheletes that included sprinters as

21

well as a high jumper?

22

A. She has talked about that possibility. I'm not

23

aware of this specific e-mail. But --

24

Q. I see.

25

A. But...

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 82 of 149 528

1

Q. Now when the decision was made to eliminate the

2

volleyball team last spring, what, if any, was the budget

3

concern that the University had with respect to the

4

volleyball team?

5

A. The major reason as we testified last time was that

6

we were hoping to have a new facility built for

7

volleyball and some intermural basketball and volleyball

8

activities. The current Burt Kahn Court is going to be

9

used more by student activities and campus events and

10

special events that the campus wants to hold because our

11

current special events facility is being turned into a

12

student center. So it's a little bit of a domino effect.

13

The University was planning to build a third field house

14

gymnasium for volleyball and the economy just brought

15

that to a halt.

16

Q. There was no suggestion that the operating budget

17

for the competitive cheer team was less than the

18

operating budget would have been for the volleyball team;

19

was it?

20

A. No.

21

Q. And just skipping over to a few topics, you were

22

asked about some rules changes that were being made with

23

respect to the NCAA -- NCSTA competition format for next

24

year?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 83 of 149 529

1

Q. Is that unusual for sports to be changing rules from

2

one season to another?

3

A. As athletic administrator, we probably get no less

4

than maybe five to ten rule award policy changes per

5

sport of our 18 sports. It's very common for the coaches

6

to change things like the three point line in basketball.

7

It's very common. We just changed no icing in ice hockey

8

during a penalty a month ago. So it's very common for --

9

as an athletic administrator to see and approve or argue

10

with policy changes.

11

Q. You were also asked about the championship format

12

for the NCSTA. For the NEC conference championships, are

13

there any sports in which every team in the conference is

14

eligible to participate --

15

A. There's many. All of the six track and fields for

16

men and women. Men's and women's golf. I might be

17

missing some others, but there are many of them that all

18

of the conference members are eligible to participate.

19

Q. And I'm not sure you testified to this, but in

20

addition to the meeting of the administrators of the

21

NCSTA, did the coaches also meet throughout the year?

22

A. They did meet at the summit in September of '09 with

23

us administrators; but frankly, since then, they've

24

either been on a conference call with the administrators

25

or they have met on their own. They have been very

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 84 of 149 530

1

diligent and they have been meeting weekly as coaches and

2

then they would then formulate a list of proposals and

3

discussion points that the administrators would then have

4

a call to approve, discuss and move forward.

5

Q. And were those recommendations, for the most part,

6

reflected in the exhibits that --

7

A. Most everything we've seen today is as a result of

8

proposals by the coaches to the administrators.

9

Q. Have you been involved in the formation of

10

conferences with respect to other sports in the course of

11

your career?

12

A. A few times. As everybody knows, Quinnipiac was

13

Division II until 1995. For example, when we went

14

Division I in 1998, we didn't have a conference for our

15

ice hockey program. And nor did we have a women's ice

16

hockey program. So in 1998, I was deeply involved in the

17

formation of a men's ice hockey conference, UConn,

18

Fairfield, Army, Holy Cross, so that we could have a

19

conference for men's ice hockey at Quinnipiac. And all

20

of the discussions that we just had regarding the NCSTA,

21

I used my experience both with that as well as my NCAA

22

committee experience to help the NCSTA get going.

23

So women's ice hockey team, which we added in

24

1998, also came on as a sport without a conference and we

25

had to find it a conference. We had to find it a

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 85 of 149 531

1

schedule. And very similar to the schedule we see here

2

today for competitive cheer, so that was a two year

3

process to get women's ice hockey up and running.

4

Men's lacrosse was a sport without a conference

5

for probably my whole ten years in Division I. We've

6

recently found a conference for it. But that, too,

7

needed leadership, committee conference affiliation. So

8

I was also deeply involved with that.

9

Q. And then some of those sports that you mentioned you

10

compete against schools that are outside of the New

11

England area?

12

A. Yes. We find that the men's lacrosse, particularly

13

men's lacrosse and men's, women's ice hockey take us

14

into, shall we say, markets that the northeast conference

15

does not. Ice hockey traditionally is a, you know, New

16

York to Boston kind of markets, because the ECAC would

17

play Harvard and Dartmouth and Brown and Princeton. So

18

we kind of got the northeast covered pretty well. Men's

19

lacrosse and women's lacrosse, particularly men's

20

lacrosse as an independent in the early days, that brings

21

us to the New York to Washington, D.C. market so we can

22

play schools look Loyola and Maryland and like that.

23

So my experience with all of these other sports

24

that we sort of elevated or started at Quinnipiac, really

25

helped in the formation of the competitive cheer NCSTA.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 86 of 149 532

1

Q. Now as Mr. Orleans pointed out, some of the teams

2

that are other members of the NCSTA are located quite a

3

distance from Quinnipiac. Has the University considered

4

whether that could be an advantage or disadvantage in

5

terms of entering into this sport?

6

A. I think as I just said, our experience with ice

7

hockey, but particularly our past league in men's

8

lacrosse we played Ohio State, we played Notre Dame,

9

University of Denver, we played Air Force Academy, that

10

got Quinnipiac into a whole new world of demographics and

11

markets not only for the athletic department it but for

12

the entire University. Now with the success of that,

13

having the opportunity to go to Maryland and go to Oregon

14

and go to Bailor, is only going to help Quinnipiac

15

tremendously in terms of our being seen all over the

16

country.

17

Q. I would say you're playing with the big boys, except

18

I guess it's the big girls?

19

A. Big boys and girls, yes.

20

Q. Now you were asked a question about men's -- about

21

men's squads being larger and women's squads being, I may

22

have this backwards, but any efforts to keep men's squads

23

smaller and women's squads larger during the roster

24

management process. Do you recall that?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 87 of 149 533

1

Q. Did the same principals apply in the opposite

2

direction, in other words, men's squads couldn't be

3

smaller than the target numbers and women's squads

4

couldn't be larger?

5

A. I think we -- through the discussions with Mark and

6

through the policies and vetting with the coaches, we

7

just picked and all agreed -- I mean all, meaning the

8

coaches, myself and Mark Thompson on what the number

9

would be. There was no sort of blanket attempt to make

10

all the men's smaller or all the women higher.

11

Q. You were asked questions about tryouts and walk-ons.

12

In your experience in college athletics, is it common for

13

teams, even with teams with many recruited athletes, to

14

have tryouts and walk-ons?

15

A. Yes. Men's ice hockey holds an open and fair

16

tryout. Clearly our numbers might sometimes prohibit

17

that. But when possible, we like to give tuition paying

18

parents and their student athletes a fair and open tryout

19

for as many sports as possible.

20

Q. I would like to direct your attention to Exhibit 88

21

that you were questioned about by Mr. Orleans.

22

I believe this is an e-mail about adding three men

23

to the --

24

A. Oh, yes.

25

Q. -- cross country team during the spring.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 88 of 149 534

1

A. Yes.

2

Q. It's -- incidentally, Did the men's cross country

3

team compete at all during the spring of 2010?

4

A. No.

5

Q. You were asked about whether you felt you had to

6

report these three athletes when they were added to the

7

team. Do you recall that question?

8

A. Yes.

9

Q. Is it your understanding that there's any reporting

10

required to either the EADA or to -- under the EADA or to

11

the NCAA of any athletes other than those that are on the

12

roster as of the first day of competition?

13

A. No.

14

Q. And could you look at Exhibit 91, please, that you

15

were asked about by Mr. Orleans. And looking at that

16

document, this was the one where the coach, I think it

17

was the women's --

18

A. Soccer.

19

Q. -- soccer coach asked if she had to maintain the

20

roster at 27?

21

A. Yes.

22

Q. But wasn't she, in fact, asking to add a player to

23

the team?

24

A. He --

25

Q. He, yeah.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 89 of 149 535

1

A. Ask that question again? I'm --

2

Q. Well, there was a portion of the e-mail that Mr.

3

Orleans didn't point out to you and what was it that the

4

coach was asking for?

5

A. "I would like to add another keeper, if possible,

6

but need clarification what I can and cannot do in this."

7

Q. Another keeper being a goal keeper?

8

A. Yes.

9

Q. Can you take a look at Exhibit EW, please, this is

10

one that we haven't looked at before. it's a Defendant's

11

Exhibit, so I'm not sure if you have one of the books

12

next to you.

13

A. Schedules or statistics?

14

Q. Yes. Can you identify those documents?

15

A. I'm looking on this top page is field hockey

16

statistics.

17

Q. Just in general, you don't have to go through them

18

one by one, do these represent the final season

19

statistics for various sports at Quinnipiac?

20

A. Without looking at each one individually, it looks

21

like most of them are the final season, yes.

22

Q. And who maintains that information?

23

A. These are maintained by the sports information staff

24

who take stats at each game and the software sort of

25

accumulates, statistics, names, bats, hits, home runs,

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 90 of 149 536

1

saves, goals, whatever that sport keeps as a record.

2

Q. And would these records indicate any athlete that

3

participated in any one of those sports during the

4

season?

5

A. Yes.

6

Q. Now you were asked about a lot of documents relating

7

to the NCSTA, I'm not going to go through all of that

8

again with you, but I would like you to look at Exhibit

9

ET because there's one or two e-mails that Mr. Orleans

10

did not ask you about.

11

THE COURT: Same book. ET.

12

MR. BRILL: ET.

13

THE WITNESS: I start at EQ.

14

THE COURT: keep --

15

THE WITNESS: There we go. Okay. "Season of

16

competition."

17

MR. BRILL: I'm sorry, it's FT. It's either

18

a typographical error or my eyesight is going back. FT.

19

BY MR. BRILL:

20

Q. If you would look at the beginning of that document,

21

I think starts with Bates number 13358 through 3360.

22

A. Yes.

23

Q. And does this reflect the discussion that took place

24

at the administrators meeting in September?

25

THE COURT: All right, wait a minute. I'm --

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 91 of 149 537

1

FT is 13365.

2

MS. FRIEDFEL: I think they are in a

3

different order.

4

MR. BRILL: 133 --

5

MS. FRIEDFEL: Here. This is strange. Okay.

6

The document must have been replaced, your Honor. It

7

didn't get replaced in mine.

8

THE WITNESS: It looks like this was an

9

e-mail I sent that I pasted with the minutes of the

10

September meeting at the bottom of it. If this is the

11

one to Colleen Morgan.

12

MR. BRILL: 13365 through 13367.

13

THE WITNESS: Oh, okay.

14

MR. BRILL: Is that correct?

15

THE COURT: That's what I have.

16

MR. BRILL: I have an old version of it in my

17

notebook. I apologize, your Honor.

18

BY MR. BRILL:

19

Q. And -- are your notes an accurate summary of what

20

took place in that September --

21

A. I am not looking at 13365, but I do see the same

22

meeting minutes.

23

THE COURT: Just leave -- where's the first

24

page? You have the old one.

25

MR. BRILL: Oh.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 92 of 149 538

1

THE WITNESS: This is what you're referring

2

to.

3

MR. BRILL: Yes. Okay, we will change the

4

Bates number in the original -- we can. But it's the

5

same document. For some reason, there's two different

6

versions of it.

7

BY MR. BRILL:

8

Q. You are looking at a document, Mr. McDonald, that

9

is -- that has an e-mail dated November 17th, 2009 from

10

you to a number of individuals?

11

A. Yes.

12

Q. And this attaches the unofficial minutes of a

13

meeting that was held at University of Maryland in

14

September?

15

A. Yes.

16

Q. Was that the so-called cheer summit?

17

A. Yes.

18

Q. And on the next page, can you just go through very

19

briefly the items that are listed and tell us whether

20

decisions were made on those --

21

A. Under the term; "competitive cheer policies"?

22

Q. Yes.

23

A. Yes. To the development of any sport at NCAA sport

24

or really any sport, the things listed here, like, length

25

of season, maximum number of coaches, number of contests,

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 93 of 149 539

1

equivalencies, roster size, the floor surface, the

2

recruiting season, these are basically the components of

3

how you build a sport. So we at the cheer summit a

4

discussion of what are we going going to do, are we going

5

to be fall or spring or fall and spring. So we, as a

6

group of administrators and the coaches were there, had

7

very good discussions regarding, okay, this is sort of

8

the very beginnings of the components of a competitive

9

cheer program.

10

Q. And the decisions that were made at that meeting

11

with respect to those items, did those decisions apply

12

during the 2009-2010 season?

13

A. Some of them did. Yes. There was some refinement

14

as you've seen in some of the discussions today, some of

15

these things may have changed a bit. But this was the

16

beginning of -- really the beginning of the competitive

17

cheer as a varsity sport.

18

Q. In particular, did the length of season apply?

19

A. Yes.

20

Q. Did the number of contests apply?

21

A. It did.

22

Q. Why don't you go through the test and tell us

23

quickly of those items applied during the '09-10 season?

24

A. Most of these were designed after -- I know the

25

length of the season was to mirror the basketball season

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 94 of 149 540

1

which was usually the NCAA we use 122 or 132 days, so

2

that's sort of where we started from. I'm pretty sure we

3

were within that number. Most sports are. Maximum of

4

coaches, three paid, one volunteer. Most of us weren't

5

there. But number of contests, we had eight.

6

THE COURT: That's the minimum number.

7

BY THE WITNESS:

8

A. Minimum number of -- I'm sorry. The other line. I

9

have number of contest, Monday after Thanksgiving.

10

Q. It says, "Minimum number of contests, eight"?

11

A. Right.

12

Q. "First day of competition, Monday after

13

Thanksgiving"?

14

A. 12 euqivalencies was the scholarship number; roster

15

size, 35; competition surface, normal cheer mats;

16

certified trainer, all practices and competitions. So

17

these -- this, again, is our very, very first meeting.

18

But we then as a group agreed that this would be our

19

starting benchmark.

20

Q. Now Jack, there were some questions about off-campus

21

recruiting and Coach Martin -- I'm sorry, Coach Powers'

22

certification. Was she able to do any recruiting during

23

the '09-10 year without an off-campus recruiting

24

certification?

25

A. Coach Powers did a significant amount of recruiting

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 95 of 149 541

1

on campus. As we all know cheer, cheer leading, dancing

2

is a very, very popular item throughout everywhere around

3

the country, every time a university had an admissions

4

open house, sophomore, junior open house, the amount of

5

student athletes that she dealt with during those events,

6

because of the public awareness of Quinnipiac's new

7

varsity sport, she did quite a bit -- not to mention

8

visits by families to see her specifically, so she did

9

quite a bit of recruiting this past year on campus.

10

Q. Did you make the decision to promote coach powers to

11

a head competitive cheer coach?

12

A. Yes.

13

Q. And on what did you base that decision?

14

A. Well, 10 to 12 years of success as an athletic

15

department employee. She was part time sideline cheer

16

coach helping coordinating the spirit groups, helped us

17

with midnight madness. There was no better person to

18

take us to the next level of her competitive cheer.

19

Q. And did you make the decision to promote Caroline

20

Martin to head cross country and track and field coach

21

last summer?

22

A. Yes, I did. As I mentioned earlier, she was all New

23

England runner. Phenomenal success as an assistant coach

24

to both -- both the men's and women's teams, won eight or

25

nine conference championships. So when Shawn Green left,

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 96 of 149 542

1

the search, in my mind, was done.

2

Q. How does her salary compare to the salary of the

3

other coaches of the other teams?

4

A. Caroline's salary, two answers to that question:

5

One is it was the same as what Coach Green had, the

6

former cross country and track and field coach; it's a

7

also a little more than the other coaches because she's

8

coaching four sports for as many as nine or ten months.

9

Q. It's -- when you say a little bit more, can you give

10

us a range like 10 percent, 50 percent --

11

A. It's probably 30 or 40 percent more.

12

Q. And when coach Green was here, how many coaches --

13

first of all, was he the head coach also for all six

14

teems?

15

A. He was the head coach of five of the six track and

16

cross country sports. We had another person named Ed

17

O'Connor who was the head coach of men's cross country

18

and he was here as long as I was here. He has since

19

moved on to another role on campus. So we had a pooling

20

of six part time assistant coaches, but Shawn Green was

21

technically the head coach of five of the six track and

22

cross country sports. But in reality, for me, as

23

administrator, he managed the entire program.

24

Q. And what is the general practice, if there is one,

25

among Division I schools as to how many coaches there are

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 97 of 149 543

1

for men's and women's cross country and track and field

2

when a school has six teems?

3

A. Many, if not all, have a director of men's and

4

women's track and field and cross country. It's very,

5

very common, then they may have assistant coaches for

6

sprints and jumps and throws and distances. But it is

7

very, very common to have one person that manages your

8

track and field, cross country athletes.

9

MR. BRILL: I don't have anything further on

10

either cross or direct of this witness.

11

THE COURT: All right. Redirect?

12

MR. BRILL: I'm sorry, your Honor, I

13

forgot -- there was one exhibit I didn't get to. I

14

apologize.

15

THE COURT: That's all right.

16

MR. BRILL: I didn't get to the end of my

17

notebook. The most important exhibit.

18

BY MR. BRILL:

19

Q. Can you look at Exhibit FW, please. Can you

20

identify that?

21

A. Yes, this is -- is this the graphics page, the

22

branding page?

23

Q. Yes.

24

A. This is part of a conference call that was held last

25

Monday, I think the 14th. Actually, it was pretty

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 98 of 149 544

1

exciting to get this and see this. This really shows the

2

work of a branding company to help the NCSTA in our

3

branding, logos, potential uniforms, graphics, web pages.

4

It was pretty exciting to see, you know, almost a year's

5

worth of work come in to see --

6

Q. How did this come about? Did the --

7

A. One of the previous conference calls, May-June, we

8

all agreed that we would invest, I think, $8,000 into

9

having a company design this branding image for the

10

NCSTA.

11

MR. BRILL: Thank you.

12

REDIRECT EXAMINATION

13

BY MR. ORLEANS:

14

Q. Jack, do you still have the page with the notes from

15

the September meeting?

16

A. Do we have -- is that --

17

MR. HERNANDEZ: I'm a little confused because

18

you don't have the same page number that we do. We have

19

it as FT. It's the notes from the September cheer summit

20

that you were asking him about. But --

21

MR. BRILL: I think it's the same notes, but

22

for some reason the Bates number is different.

23

MR. ORLEANS: Okay.

24

THE WITNESS: FT, right?

25

MR. ORLEANS: It's the one you were looking

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 99 of 149 545

1

at that has your notes from the --

2

THE WITNESS: We were referring to some

3

pasted minutes from the cheer summit. Yeah.

4

MR. ORLEANS: Okay. Right.

5

BY MR. ORLEANS:

6

Q. I just wanted to ask you, at the time of the Cheer

7

Summit in September at the University of Maryland, when

8

you were talking about the length of the season, you were

9

counting 132 days back from the final championship event,

10

parens, NCA. So at that point, you were planning that

11

the NCA event in Daytona would be your championship

12

event?

13

A. That was for this past year.

14

Q. Okay. Well, at that time, -- there's nothing in

15

these notes about a plan for any other championship

16

format; is there? That's a yes or no?

17

A. Nothing that -- no, no.

18

Q. Nothing in the notes?

19

A. No.

20

Q. Can you go to EW, please, which Mr. Brill asked you

21

about. And you testified that these show the -- these

22

are end of season results and statistics for the various

23

Quinnipiac sports teams; right?

24

A. Yes.

25

Q. And I think that what you said was they show

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 100 of 149 546

1

everyone who participated. Do you remember that?

2

A. Yes.

3

Q. And by participated, you mean got in a game; right?

4

A. Correct.

5

Q. So we're not arguing about the definition of

6

participant under EADA or Title IX. All you meant by

7

your testimony was this is going to show every athlete

8

that got in a game or a competition?

9

A. That's correct.

10

Q. Now you testified with respect to a number of sports

11

that Quinnipiac competes outside the immediate geographic

12

area; right?

13

A. Yes.

14

Q. And that's good because it helps you to market the

15

school outside the local area?

16

A. Yes.

17

Q. You mentioned, I think, lacrosse and hockey?

18

A. Particularly lacrosse, but hockey, yes, a little

19

bit. They are outside the northeast conference.

20

Q. But you do have lacrosse rivals that are within

21

Connecticut; do you not?

22

A. Yes.

23

Q. And you do have hockey rivals that are within

24

Connecticut?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 101 of 149 547

1

Q. And you also testified that there are a number of

2

NEC sports in which all the members of the conference get

3

to participate in the championship tournament?

4

A. Yes.

5

Q. Name those sports again, please?

6

A. Let's say all the six track and cross Country, three

7

for men, three for women, the two golf championships, I

8

think their bowling championship we don't sponsor it

9

but --

10

Q. I just wanted an example. If the Quinnipiac women

11

win the NEC cross country, they qualify to move on to

12

some sort of regional or national event; do they not?

13

A. Cross country is a tad different. You could use

14

golf or tennis is a better example.

15

Q. Okay.

16

A. That's not a function of the NEC or Quinnipiac, it's

17

the way NCAA runs their regionals. But let's just say in

18

golf or tennis they all participate in the tennis

19

championships, all 12 schools, in the winter, advance to

20

the NCAs.

21

Q. And the winner advances to an NCAA regional or

22

national championship?

23

A. Regional, usually.

24

MR. ORLEANS: Thank you, nothing further.

25

THE COURT: I have three quick questions.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 102 of 149 548

1

Looking at FT, the minimum number of

2

contests, eight, what was the number of contests that

3

Quinnipiac competitive cheer participated in during its

4

last year? That is 9-10. It was less than eight.

5

THE WITNESS: I'm not sure. I don't want to

6

say without knowing for sure. I would -- I don't know.

7

It's near that number.

8

THE COURT: I vaguely recall another document

9

where we --

10

THE WITNESS: I know there's a refinement of

11

that policy in a most recent meeting we had that said six

12

to eight. Somewhere -- we had that in part of the

13

coach's recommendations from not too long ago.

14

THE COURT: I thought --

15

MR. BRILL: The coach will be testifying

16

next. He can clarify this for the Court rather than

17

taxing the memory of this witness.

18

THE COURT: All right.

19

THE WITNESS: Thank you, Ed.

20

THE COURT: With respect to the running

21

sports, you mentioned that it's common for a single

22

person to manage all of the teams? Do you --

23

THE WITNESS: Yes.

24

THE COURT: Do you mean coach all the

25

teams.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 103 of 149 549

1

THE WITNESS: Coach, manage, direct with a

2

series of assistant coaches on the staff.

3

THE COURT: And it's common at Quinnipiac or

4

common in the NEC or common across the country.

5

THE WITNESS: It's common across the country

6

to be a director men's, women's, cross country, track and

7

field with assistant coaches to assist you in the

8

different --

9

THE COURT: Subdivisions.

10

THE WITNESS: Disciplines, yeah.

11

THE COURT: And looking at FW, who -- what's

12

the company that prepared that? Was that Nike?

13

THE WITNESS: I think it might have been.

14

Well, it's from a company out of Oregon; so everything in

15

Oregon has a swish on it.

16

THE COURT: Swishes on all the upper

17

right-hand corners.

18

THE WITNESS: Yeah, I'm not exactly sure of

19

the name of the company, but it was done and coordinated

20

with the Oregon administration.

21

THE COURT: Okay.

22

MR. BRILL: Can I ask one clarifying

23

question, your Honor?

24

THE COURT: Sure.

25

MR. BRILL: With respect to the minimum

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 104 of 149 550

1

number of competitions as eight, was that eight NCSTA

2

competitions or eight total.

3

THE WITNESS: No, I think we talked somewhere

4

there was eight total, and again, excuse me for being a

5

little bit foggy, and there was a statement in one of our

6

minutes that maybe half of them needed to be NCSTA.

7

MR. BRILL: Thank you.

8

THE COURT: Okay.

9

MR. ORLEANS: Thank you, your Honor.

10

THE COURT: Sir, you're excused. Thank you.

11

THE WITNESS: Thank you.

12

MR. HERNANDEZ: Plaintiffs call coach Mary

13

Ann powers.

14

THE COURT: Ma'am, please remain standing.

15

MARY ANN

P O W E R S, called as a

16

witness on behalf of the Plaintiff, having been duly

17

sworn by the Court, testified as follows:

18

DIRECT EXAMINATION

19

BY MR. HERNANDEZ:

20

Q. Coach Powers, good afternoon.

21

A. Good afternoon.

22

Q. I would like to start by asking you about Quinnipiac

23

University's competitive cheer program.

24

A. Okay.

25

Q. As I understand it, as of March 2nd, 2009, there was

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 105 of 149 551

1

no competitive cheer program; is that correct?

2

A. That's correct, but we were a sideline team that did

3

compete.

4

Q. And how long have you been a cheer coach at

5

Quinnipiac University?

6

A. This is my 12th year.

7

Q. Did you first begin as a sideline cheer coach in

8

1999 at Quinnipiac?

9

A. 1998.

10

Q. I'm sorry, 1998.

11

A. Correct.

12

Q. And when did the sideline cheer team begin competing

13

against other schools?

14

A. Almost within that first year.

15

Q. And then, of course, we'll jump to March of 2009.

16

A. Okay.

17

Q. On March 3rd, 2009, were you told that Quinnipiac

18

University was now going to treat competitive cheer as a

19

varsity sport?

20

A. They told me that they were making competitive cheer

21

a varsity sport, Yes.

22

Q. Can you tell Judge Underhill about how you were

23

notified that you were going to be the competitive -- the

24

head competitive cheer coach?

25

A. I wasn't notified that I was going to be the head

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 106 of 149 552

1

competitive cheer coach. I was notified that competitive

2

cheer program had been elevated to varsity status.

3

Q. Now before -- who told you that they were going to

4

do that?

5

A. I received a phone call and I was on my way into

6

work, because Quinnipiac is my part time job and they

7

asked me if I could come down to the university. I was

8

called by Bill Mecca.

9

Q. Did you go down to the university?

10

A. I could not.

11

Q. Because you were on your way to your other job?

12

A. Yes, I was. I was on my way to my full-time job.

13

Q. Did they eventually notify you that cheer was going

14

to be made a varsity sport?

15

A. They asked me if -- I couldn't come down, they would

16

be calling me back again. Then I was called back by

17

Billy Jack and Tracey Flynn, I believe.

18

Q. Did they have you on speakerphone or something like

19

that?

20

A. I wasn't sure of that, but at one point I pretty

21

much knew that I was. I didn't know while I was talking.

22

Q. Were you driving at the time?

23

A. No, I hadn't quite left for work.

24

Q. What were you told?

25

A. I was told by Jack that he had something very

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 107 of 149 553

1

important to tell me, that he had had a very hard day, a

2

day that nobody really wants to quite go through, that he

3

had had three coaches in his office and that he had to

4

cut -- he had to tell three coaches that the programs

5

were being let go. And I asked what's that have to do

6

with me; and he said, well, the final call of the day, at

7

least I get to make one good one. And he said we're

8

making competitive cheer a varsity sport.

9

Q. Now before they notified you that they were going to

10

make competitive cheer a varsity sport, did anyone in the

11

athletic department consult with you about the prospect

12

of making competitive cheer a varsity sport?

13

A. I believe in 2003, Maryland had sent a packet, they

14

were doing press release kits when they made competitive

15

cheer a varsity sport in Maryland. They had spent press

16

kits out to everyone and we did receive one. And Jack

17

had reviewed it with me.

18

Q. And were any decisions made in 2003, after you

19

received the University of Maryland package?

20

A. No. He just said that he would like to think at

21

some point this might happen. He was going to keep a

22

close eye on it. I'm trying to remember what he said. I

23

think he might have called the university.

24

Q. And between that meeting with Jack in 2003 and March

25

3rd of 2009, were you consulted again about making

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 108 of 149 554

1

competitive cheer a varsity sport?

2

A. It was mentioned here and there that, you know, it

3

would be hopeful in the future. We're just going to keep

4

on looking at it and seeing where it's going. But it

5

wasn't -- there were brief conversations, at best.

6

Q. And were any plans about making competitive cheer a

7

varsity sport discussed in the fall of 2008?

8

A. No. Not -- with me?

9

Q. With you.

10

A. No.

11

Q. And then how about January-February of 2009. Were

12

there any discussions with you about the prospect of

13

making competitive cheer a varsity sport?

14

A. No, no conversations, no.

15

Q. And then on March 3rd, 2009, you get the big news?

16

A. Yes.

17

Q. So I take it that there were no discussions with you

18

about practice facilities for competitive cheer before

19

they announced it would become a varsity sport?

20

A. I don't understand the question.

21

Q. Well, you said there were no discussions with you

22

before cheer became a varsity sport?

23

A. I didn't say there was none. I think I said there

24

were few but they were brief. Basically, they were

25

looking at it, hang on, we're watching where this is

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 109 of 149 555

1

going.

2

Q. Okay. Let's break it down to January-February of

3

2009. Were there any discussions with you about where a

4

competitive cheer team would hold practices?

5

A. No.

6

Q. Were there any discussions in January-February of

7

2009 about what competitive cheer uniforms might look

8

like?

9

A. No.

10

Q. And in March of 2009, when you were told that you

11

would be the competitive cheer coach, varsity competitive

12

cheer coach, was there any discussion about whether you

13

had passed the NCAA recruiting test?

14

A. In what --

15

MS. FRIEDFEL: Objection, your Honor. I

16

think he's mischaracterizing her testimony. I don't

17

think she said that she was made the varsity coach in

18

March of 2009.

19

MR. HERNANDEZ: I'll rephrase the question.

20

MR. HERNANDEZ:

21

Q. In March of 2009, they told you competitive cheer

22

would become a varsity sport; correct?

23

A. Correct.

24

Q. Did you have any discussions with members of the

25

athletic staff about your status as far as whether you

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 110 of 149 556

1

had taken or passed the NCAA recruiting exam?

2

A. In March?

3

Q. Yes.

4

A. No.

5

Q. Did there come a time when you learned that

6

Quinnipiac University was going to hire a head coach for

7

competitive cheer?

8

A. There came a time several weeks later where they

9

told me that they were, quite frankly, looking for me for

10

the job. They felt confidently that I was the person

11

that belonged in that position.

12

Q. At the meeting where they told you that they were

13

going to make competitive cheer a varsity sport, at that

14

time, did they give you any indication that they were

15

looking at you to be the head coach?

16

A. No. You know, that meeting was just I think it was

17

probably -- it's my guess that it was an emotional day

18

for everybody. It was day's end. I had to be at work

19

and I had to be there quickly. I was emotional because

20

I -- it was a total surprise to me and to think that my

21

sport possibly could have reached this point. They

22

didn't -- they had emotions going because three sports

23

were cut, not just one.

24

Q. Now between March 3rd of 2009, when you learned the

25

competitive cheer would become a varsity sport and when

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 111 of 149 557

1

they told you that they wanted you to be the head coach

2

for varsity competitive cheer, had there been any

3

discussions with you about making that happen? About

4

making you the head coach?

5

A. From what date are you asking me?

6

Q. From March 3rd, 2009, when they told you it's going

7

to become a varsity sport, all right, and two weeks later

8

when they asked you to be the head coach, was there any

9

discussion in those two weeks about your becoming the

10

head coach for varsity competitive cheer?

11

A. As I think I just stated, they said they felt I was

12

a natural fit for them.

13

Q. Okay.

14

A. But it wasn't announced to me on the date that they

15

made the announcement that the sport was chosen.

16

Q. Okay. Do you know if the University solicited

17

applications for a head coach for competitive cheer?

18

A. I don't know that, no.

19

Q. Let me show you what's been received as Plaintiff's

20

Exhibit 82. Do you recognize this?

21

A. It looks like that is my employee contract.

22

Q. Well, I see you don't have your glasses on.

23

A. No, I don't. I'm like this. I'm sorry.

24

THE COURT: It's --

25

THE WITNESS: Oh, competitive --

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 112 of 149 558

1

THE COURT: Take that book and look at 82.

2

THE WITNESS: I'm glad I gave you all a good

3

laugh.

4

BY THE WITNESS:

5

A. Okay.

6

Q. Do you recognize Plaintiff's Exhibit 82?

7

A. It's a position announcement for a head coach --

8

head coach for competitive cheer.

9

Q. Okay. And do you recall if the position

10

announcement for head coach competitive cheerleading was

11

posted anywhere in the university?

12

A. I don't know.

13

Q. Were you given a copy of Plaintiff's Exhibit 82?

14

A. No.

15

Q. Let me just go over some of these things. It

16

appears that Quinnipiac University was looking for a head

17

coach of competitive cheerleading who had successful

18

cheerleading coaching experience, college level

19

preferred. And you had that; correct?

20

A. I believe so.

21

Q. And he were also looking for experience in

22

recruiting; correct?

23

A. It looks like that's what they're looking for, yes.

24

Q. Now had you had any experience in recruiting student

25

athletes for a Division I athletic program?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 113 of 149 559

1

A. Well, I couldn't have had experience recruiting

2

athletes in a Division I program as pertains to sport

3

because we had never been declared that, but certainly,

4

over my years as a coach what had happened as this

5

program grew and became a competitive force to be

6

reckoned with at the national level, the kids that we

7

were getting hundreds of requests a year about our

8

program and I started having to ask for skill set videos

9

to be sent to me and whatnot. So a lot of the kids who

10

came were looking for their academics most certainly

11

first, but they were hoping for the opportunity to be on

12

a cheerleading team and compete on the team.

13

Q. Okay. Now before March of 2009, had you had any

14

experience in doing off-campus recruiting?

15

A. Had I had -- before March 2009? No.

16

Q. Now it appears they were also looking for, under

17

responsibilities, someone with experience in team

18

management including NEC and NCAA rules and regulations.

19

A. Okay.

20

Q. Now before you were made head competitive

21

cheerleading coach, had you had any experience in team

22

management including NEC and NCAA rules and regulations?

23

A. Not adhering NEC and NCAA ruling regulations, no.

24

But I think to management of the team and of all the

25

other spirit groups at the same time, most certainly.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 114 of 149 560

1

Q. Okay.

2

Now then, did there come a time when you learned how

3

many athletes would be on your first year's competitive

4

cheer team? And by first year, I mean 2009-10 academic

5

year?

6

A. I learned of my roster size right after the -- right

7

after the case last year.

8

Q. When you say right after the case last year, does

9

that mean right after the --

10

A. Well, it means, first of all, I don't believe the

11

contract came forth in my employment -- my official

12

employment as head coach until the middle of June -- I

13

mean the middle of July. However, it was that the point

14

meetings started coming fast and furious, I can't give

15

you an exact date, but I know it was predicated on what

16

had been set forth, the roster size had been set forth by

17

what the Court, I believe, had decided which was a team

18

size of 30.

19

Q. Okay. And what is your understanding as to what

20

role, if any, the Court played in setting the roster size

21

of 30?

22

A. I don't -- I didn't know why they had -- I had

23

thought the other universities that were sponsoring

24

competitive cheer, they were at 36. But I think they

25

were -- I -- I think they named it, they thought that was

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 115 of 149 561

1

a significant amount.

2

Q. You wanted 36; is that correct?

3

A. I didn't ask for 36. I asked for 32, so that I

4

wouldn't leave two athletes out of team position.

5

Q. Okay.

6

A. However, I did believe in the future to -- to

7

certainly have a level playing field up against Oregon

8

and Maryland and Bailor, knowing they would have 36, I

9

was hoping it would be allowed for me to have those

10

numbers, yes.

11

Q. Did you ask Mr. Thompson or Dr. Thompson, rather, if

12

you could have 32?

13

A. Yes, I did.

14

Q. Going forward?

15

A. Yes, I did.

16

Q. And what did Dr. Thompson tell you?

17

A. He told me that the roster size was set at 30 for

18

right now and we would revisit the situation in the

19

future.

20

Q. And did Dr. Thompson tell you why the roster number

21

was set at 30?

22

A. I didn't question him. I just accepted what he

23

said.

24

Q. Did he mention something about the Court ruling in

25

this case setting the roster number at 30?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 116 of 149 562

1

A. I -- you know, I'm not sure that he said that. I

2

just --

3

Q. Okay.

4

A. When he said 30, I just went with what he said.

5

Maybe I assumed it was by the Court ruling, but that's

6

-- how I thought a roster size -- that was our roster

7

size had been reported to the papers at 40; and when I

8

received my roster size at 30, that came from, I think

9

Jack first and then I went to Mark and questioned could I

10

have 32 so two teammates wouldn't be out of position.

11

What Mark said, if I think I'm answering your question

12

correctly, is that the roster size was set at 30 and

13

it -- I don't know that he mentioned the Court ruling. I

14

think he possibly did. I'm not -- I'm not quite sure.

15

Q. Now I guess what I'm trying to figure out is why

16

earlier you mentioned that you believed that the roster

17

size for varsity competitive cheer was set at 30 by Court

18

ruling or Court order. If I understood you correctly.

19

Where did you get that idea from?

20

A. That the roster size -- that's maybe just maybe an

21

assumption on my part.

22

Q. Okay.

23

Did there come a time when you were presented with a

24

letter that you were asked to sign which certified that

25

30 student athletes for competitive cheer was a

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 117 of 149 563

1

reasonable roster number?

2

A. Yes.

3

Q. And I took this out of order.

4

MR. HERNANDEZ: Do you know the exhibit

5

number for the whole thing just so I can refer to it.

6

MR. ORLEANS: For the roster size letters?

7

MR. HERNANDEZ: For the record I'm --

8

BY MR. HERNANDEZ:

9

Q. Coach Powers, I'm putting up on the screen an

10

exhibit number which number we will determine shortly.

11

Do you recognize that letter?

12

A. I do. But I really need to get closer because I

13

don't have my distance glasses on.

14

MR. ORLEANS: For the record, your Honor, it

15

should be Exhibit BO, roster sizes for 2009-2010.

16

THE WITNESS: BO? Okay, yep.

17

BY MR. HERNANDEZ:

18

Q. Do you have BO roster target letter dated July 22nd,

19

2009 to you from Jack McDonald in front of you there?

20

A. Yes, I do.

21

Q. And you recognize this letter?

22

A. Yes, I do.

23

Q. Now did you have any input into the roster target

24

number of 30 that's reflected in Exhibit BO?

25

A. No, I did not.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 118 of 149 564

1

Q. So you were told what your roster number was going

2

to be for that team; correct?

3

A. That's correct.

4

Q. And again, you thought it maybe should be a little

5

bit higher?

6

A. I felt that at least it should be at 32 because two

7

females were not going to have the opportunity to

8

participate the way as a coach I hoped that they could.

9

Q. When you were presented with Exhibit BO, had you

10

been told what your budget was going to be for '09-10?

11

A. I was told that my budget was going to be around

12

$50,000; but because we were a new sport, I needed to

13

speak to administrators when I needed something and they

14

were going to see to it that the needs of the team were

15

filled.

16

Q. Now had you had any experience in budgeting funds

17

for a competitive team before?

18

A. My team was never competitive before, so no, I would

19

not have had any experience.

20

Q. And when you were a sideline cheer team that

21

competed, how often would you travel?

22

A. Again, the mission statement for sideline cheer at

23

the time was to be -- to support the athletic -- the

24

men's and women's basketball teams primarily first. So

25

the ability to travel, do you mean locally, regionally?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 119 of 149 565

1

We were allowed to -- we were allowed to compete as long

2

as it did not interfere with the men's and women's

3

basketball program schedules.

4

Q. It would cost money to travel; correct? If you were

5

competing?

6

A. They were usually a bus trip, one or two towns over.

7

We didn't do much travel outside of that except for the

8

Daytona trip in 2005 down in Florida.

9

Q. And money for traveling by bus, did you have a

10

budget set aside for that? When you were a sideline

11

team.

12

A. It didn't happen often, maybe once or twice a year.

13

I'm sure they wanted to ensure the team's safety, so yes,

14

once or twice a year. And around 2007-8 we travelled a

15

little more by bus.

16

Q. My question is were you given a budget for that

17

travel?

18

A. My sideline team had a budget, Yes.

19

Q. Where did that money come from?

20

A. We had a budget. And I had to adhere to what was in

21

that budget and so I was allowed to use budget money for

22

the bus.

23

Q. Okay. Well, all right. You received the money from

24

the University; correct?

25

A. Correct.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 120 of 149 566

1

Q. And there were some instances where you would raise

2

money through the sideline cheer team for travel; is that

3

fair to say?

4

A. There was times I would raise money?

5

Q. Yeah, did you ever sponsor events to raise money for

6

travel?

7

A. I sponsored an event for -- since 2004, at the

8

university.

9

Q. Okay. So there have been occasions where you raised

10

money for a team. Aside and apart from what the

11

University gave you?

12

A. I -- as I said, from 2004 until recently, I've held

13

an event yearly that's brought in over 110 competing

14

teams.

15

Q. Now then, you signed Plaintiff's Exhibit BO on

16

August the 3rd 2009; is that correct?

17

A. Correct.

18

Q. And at that time you were agreeing that as head

19

coach of the competitive cheer team you confirmed that

20

"30 student athletes on the competitive cheer team is a

21

reasonable roster number that represents a genuine

22

opportunity for Division I experience for each team

23

member and that I have a sufficient budgetary allocation

24

to support this number"; correct?

25

A. I was agreeing I -- I kind of am a stubborn person.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 121 of 149 567

1

I did express interest in two more athletes, but I

2

agreed.

3

Q. Now then, do you know if the NCAA recognizes

4

competitive cheer as a varsity sport?

5

A. No, it does not.

6

Q. Was the University able to purchase insurance for

7

the competitive cheer team for its competitions?

8

A. Do you mean starting this year or do you mean --

9

Q. Correct --

10

A. -- when we were sideline cheer.

11

Q. For 2009-2010?

12

A. We had to purchase insurance for the competitive

13

team, yes.

14

Q. Were you able to obtain that insurance through the

15

NCAA?

16

A. No. The NCAA only insures sideline cheer. But only

17

for sideline material, not competitive material.

18

Q. And were you able to secure insurance for the

19

varsity competitive cheer team for the calendar year

20

2009-10?

21

A. Yes.

22

Q. And where did that insurance come from?

23

A. That came out of my budget, as far as I understand.

24

If you want the name of the company, I don't quite

25

remember it.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 122 of 149 568

1

Q. Do you remember how much that insurance cost?

2

A. I think it was around 3,000-and some-odd dollars.

3

Q. Did competitive cheer have an assigned locker room

4

in its first year, 2009-10?

5

A. No.

6

Q. Were you given any assistant coaches to help you

7

out?

8

A. I was given -- I have two assistants and volunteer

9

coach.

10

Q. Who were the two assistant coaches?

11

A. My two assistant coaches were Marie Kashuba and

12

Cheryl Thomes.

13

Q. I suspect the court reporter will ask you to spell

14

Ms. Kashuba's name?

15

A. K-A-S-H-U-B-A.

16

Q. And may as well go ahead and spell the other name as

17

well?

18

A. T-H-O-M-E-S.

19

Q. And who was your volunteer coach?

20

A. Toni Corvi.

21

Q. And just for the record, Toni, is that a male or --

22

A. No, it's a female. T-O-N-I. I'm sorry.

23

Q. That's all right. And Corvi, is that spelled

24

C-O-R-V-I?

25

A. Correct.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 123 of 149 569

1

Q. Do you know if Ms. Kashuba, Ms. Thomes or Ms. Corvi

2

have taken the NCAA recruiting exam?

3

A. No, I'm the only coach on staff that has taken the

4

NCAA test.

5

Q. And you passed that recently?

6

A. Yes, I have.

7

Q. Congratulations?

8

A. Thank you, very much.

9

Q. When did you take the test?

10

A. June 10th.

11

Q. That was just a couple weeks ago?

12

A. Yes, it was.

13

Q. So you are now able to recruit off campus; correct?

14

A. Correct. I don't think I'm going to have to do a

15

lot of it, though.

16

Q. And for the very first year of competitive cheer,

17

2009-10, other than the freshmen, other than the incoming

18

freshmen, were the members of the competitive cheer team

19

former sideline cheer members?

20

A. Some of them were, yes.

21

Q. How many of them were former sideline cheer people?

22

A. How many of them?

23

Q. Yeah.

24

A. For 09-10?

25

Q. Correct.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 124 of 149 570

1

A. I think around 16.

2

Q. And how many were incoming freshmen?

3

A. I believe 13.

4

Q. That comes out to 29; correct?

5

A. I had a graduate student on the team.

6

Q. Would that be Ms. Pacheco?

7

A. Yes, it would.

8

Q. When did Ms. Pacheco join the team?

9

A. Somewhere in early November.

10

Q. Early November?

11

A. Yeah, I think so. I think it was late October,

12

early November.

13

Q. Did you hold tryouts for this new varsity team?

14

A. I did.

15

Q. When were those held?

16

A. The first -- well, I didn't actually end up holding

17

the tryout, I'm sorry to renege on that, I held a clinic

18

to look at skill sets. But after two days it was pretty

19

clear amongst the pool of young ladies who had come to

20

the tryout who would fit position needed for the athletes

21

and who had the skill sets in tumbling.

22

Q. And when was this clinic held?

23

A. I want to say the very first week of September.

24

Q. And so as of early September, you pretty much knew

25

who was going to be on your squad; is that correct?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 125 of 149 571

1

A. Correct.

2

Q. Except for Ms. Pacheco, she came in in November?

3

A. Well, we -- one of our athletes did leave the team

4

on October 9 -- October 11th. And so I did need to find

5

another athlete before our first contest report date.

6

Q. That turned out to be Ms. Pacheco?

7

A. Yes.

8

Q. Ms. Pacheco, she was a graduate student; is that

9

correct?

10

A. Yes, she was.

11

Q. Ms. Pacheco had previously been a sideline

12

cheerleader; correct?

13

A. I guess you could say that, yes.

14

Q. Well, that's my understanding. You're smiling.

15

A. No, no I'm just thinking it through. You know she

16

was a sideline cheerleader, but we were competing and she

17

was a gymnast that had nowhere to go like many of the

18

girls in our sport, so the reason she had joined the team

19

a few years back was because as a former gymnast with a

20

specialty in floor, she was hoping to compete. So she

21

did sideline cheer so that she could have the competitive

22

part of it.

23

Q. Okay. And so in October you lost somebody from your

24

30 person roster, correct?

25

A. Correct.

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1

Q. And you were aware that Ms. Pacheco was a graduate

2

student on campus?

3

A. I was aware because she came to me and asked me if

4

there was any positions left when we had 30. And I told

5

her no, we had 30. And she said if anything ever

6

happens, I would really love the opportunity to compete.

7

Q. And was she given some financial assistance?

8

A. She was given a $5,000 scholarship.

9

Q. This woman who quit, had she received any

10

scholarship money?

11

A. No, she did not.

12

Q. So the woman who quit, you did not consider to be a

13

scholarship-worthy athlete?

14

A. I guess I did not.

15

Q. Okay.

16

A. That's fair to say.

17

Q. But after you lost this non-scholarship-worthy

18

athlete, she was replaced by MS. pacheco --

19

A. Mm-hm.

20

Q. -- to fill your 30th slot; correct?

21

A. Correct.

22

Q. And you understood that you were expected to reach

23

that 30 person target roster management number; correct?

24

A. Correct.

25

Q. And in connection with securing Ms. Pacheco as a

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 127 of 149 573

1

member of your new team, you decided to award her a

2

partial $5,000 scholarship?

3

A. Correct.

4

Q. Is there an intramural competitive cheer activity at

5

Quinnipiac?

6

A. No.

7

Q. Do you have scholarship funds available to you as

8

the head coach?

9

A. Yes.

10

Q. In 2009-10, how many full-time scholarships were

11

available to you?

12

A. Six.

13

Q. And did you use all six of those scholarships?

14

A. For 2009-10?

15

Q. Yes.

16

A. No, I did not.

17

Q. Did you consider payments that you made out of the

18

scholarship funds to be stipendize?

19

A. I do believe I couched it that way. I gave

20

scholarships that I felt reflected a lot of things; and

21

that I had to look to strategically recruiting in the

22

future without having had the ability to recruit before.

23

So we tried to put skill sets on a grid and we're hoping

24

to have the athletes pick up their skills just a little

25

bit more, especially in some of their tumbling skills;

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 128 of 149 574

1

but the other goal was to every single year raise the bar

2

and get those kids up so that we were giving them more

3

money.

4

Q. As I understand it, a Fulbright Scholarship is

5

around $47,000, correct?

6

A. Correct.

7

Q. 47,500, correct?

8

A. Correct.

9

Q. But who's counting. And you had six of those to

10

give out?

11

A. Not six. It was not recommended that I use six that

12

year, not at all.

13

Q. My question was you had six available you to,

14

correct?

15

A. I had six available, correct.

16

Q. How many people actually received these stipendize

17

as you referred to them?

18

A. I think you just said it was a stipend. I think you

19

just said it was a stipend. I said my goal was to have

20

the kids reach a certain level and keep on seeing that

21

they were elevated to a little bit more money every

22

single year.

23

Q. Okay.

24

And how many people received --

25

A. Ten.

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1

Q. -- payments?

2

A. Ten for 2010.

3

Q. How big were these payments?

4

A. Some were as high as 9,000 and some were as low as

5

3,000.

6

Q. Do you know, in total, how much money was paid out

7

to those ten female student athletes?

8

A. I would really have to have the sheet of paper in

9

front of me and look through It.

10

Q. Did the payments amount to a full scholarship?

11

A. Above a full scholarship.

12

Q. Did it amount to two full scholarships?

13

A. Just a little under, I believe, or maybe about one

14

and a half, actually.

15

Q. So 47,500 times one and a half is about what you

16

paid out; is that --

17

A. I think around 65,000.

18

Q. Fair enough. Okay.

19

I would like to talk to you about the schedule for

20

2009-10.

21

A. Sure.

22

Q. I think you mentioned that you held a clinic in

23

September of 2009; correct?

24

A. I held a two day clinic and was supposed to hold a

25

tryout on the day after the final clinic, but we made our

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 130 of 149 576

1

final cuts on the Thursday prior to the Friday -- tryout.

2

Q. And you began training, fair to say?

3

A. We were ready to enter our pre-season. We had

4

declared a 132 day season that year as our season length

5

for the sport. So we were already in the midst of

6

pre-season and when he -- the NCSTA was working on how to

7

determine how we were going to use those eight hours

8

while we were in pre-season.

9

Q. As I understand it, the NCSTA first held its very

10

first cheer summit in September of 2009; is that correct?

11

A. Correct.

12

Q. Did you attend that summit?

13

A. Yes, I did.

14

Q. Who else attended that summit on the part of

15

Quinnipiac University?

16

A. Cheryl Thompson and Jack McDonald.

17

Q. When you were training in the fall of 2009, had the

18

NCSTA made a determinations to how many practice hours

19

were appropriate?

20

A. No, the -- we were making our practice hour choice

21

based on the rules by the NCAA not by the NCSTA. We were

22

trying to follow compliance rules as any sport on campus

23

would.

24

Q. Did there come a time when you had your first date

25

of competition?

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1

A. Yes, we did.

2

Q. When was that?

3

A. Our first date of competition was December 5th. But

4

two days prior to that there was inaugural event held at

5

the university.

6

Q. What was the inaugural event?

7

A. The inaugural event was something Jack has done when

8

he, for instance, he brought women's hockey on to campus,

9

he holds a ribbon cutting ceremony and it's basically to

10

have the school community, their parents, people involved

11

and want to see the kids, we actually did a little mini

12

exhibition, come and watch and see the team and welcome

13

them to varsity status.

14

Q. How long did this -- did you call it an exhibit

15

or --

16

A. I said, the team exhibited their skills.

17

Q. Exhibited their skills. How long did this

18

exhibition last?

19

A. I think it started around 6:30 and it was over by 8.

20

Q. And by exhibition, I take it there was no

21

competition?

22

A. No, no competition on December 3rd.

23

Q. When was the first date of competition?

24

A. December 5th.

25

Q. Who did you compete against?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 132 of 149 578

1

A. I believe Stony Brook and Babson College.

2

Q. And where was that competition held?

3

A. At the Hartford Convention Center.

4

Q. And you have a ring binder upo -- your Honor, would

5

this be a good time to break for the day?

6

THE COURT: Well, I can go another 15 minutes

7

or so.

8

MR. HERNANDEZ: Okay. That's fine.

9

THE COURT: I think it would be useful to

10

finish the witness if we can.

11

BY MR. HERNANDEZ:

12

Q. If you can go to Plaintiff's Exhibit 41. It's in

13

one of your ring binders there. Do you recognize

14

Plaintiff's Exhibit 41?

15

A. Yes, I do.

16

Q. What is Plaintiff's Exhibit 41?

17

A. This looks to be our season schedule.

18

Q. And I believe you mentioned that your first date of

19

competition was Saturday, December 5th at the Hartford

20

Civic Center; is that correct?

21

A. Correct.

22

Q. And are there different meet and competition formats

23

for competitive cheer?

24

A. There are different -- for competitive cheer?

25

Q. Okay. Let me rephrase the question. In 2009-10

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 133 of 149 579

1

competitive season for varsity competitive cheer --

2

A. Okay.

3

Q. -- did you compete under different meet formats?

4

A. Every -- we competed under different score sheets

5

and different scoring systems.

6

Q. And are there different organizations that run

7

competitive cheer events?

8

A. Different organizations? There's many different

9

organizations, yes, in our sport.

10

Q. And is Spirit Unlimited one of those organizations?

11

A. Yes, they are one of those organizations.

12

Q. And what types of competitive cheer organizations

13

competed at the Spirit Unlimited event?

14

A. I think the event was mainly all star, which is

15

competitive cheer. I think the bulk of that was all star

16

teams; and then they had a collegiate division and I

17

honestly can't tell you if they had a high school,

18

because I honestly don't know. We were scheduled to go

19

in the afternoon and I didn't pay attention to what the

20

morning schedule was.

21

Q. And what are all star teams?

22

A. All star teams are teams that compete only there is

23

no cheerleading, yet they are called cheerleaders, nobody

24

seems to know why.

25

Q. What age groups do those cover?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 134 of 149 580

1

A. Those cover the age groups of I want to say two and

2

a half to level six teams are 18 and over. There's no

3

age limit.

4

Q. Okay. And this event at the Hartford Civic Center

5

on December 5th, what time did that start?

6

A. I don't know what time it started. I just know that

7

we competed I want to say around the eleven o'clock -- if

8

I remember correctly, it was anywhere between 11 and 1.

9

I can't remember by bus or by the time we arrived warmed

10

up, had our warm-up area and then competed.

11

Q. Were there non-collegiate organizations competing at

12

that event?

13

A. Not collegiate?

14

Q. Yeah. The all star --

15

A. It was mainly competitive -- it was mainly

16

competitive cheer teams there. Except -- there was a

17

collegiate division, though.

18

Q. And were there any young kids, I think you said they

19

start around two and a half years old. What were the

20

youngest ages there?

21

A. Well, when these competition companies hold

22

sessions, sometimes as you're arriving, the earlier

23

session is clearing out. So there's thousands of

24

competitive kids going in and out the door and their

25

parents. So I just am walking into a warm-up area and

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 135 of 149 581

1

I'm not focusing on, you know -- I'm focusing on my team,

2

getting them warmed up, getting them ready to compete. I

3

don't know. But I'm sure there's many, many, many teams

4

there.

5

Q. The Spirit Unlimited competition, what is Exiter

6

Unlimited?

7

A. Exiter Unlimited is a competition company.

8

Q. It's -- all right. And does Spirit Unlimited follow

9

the NCSTA scoring format?

10

A. Probably in the team routine, which is very

11

important -- well, you know, a good amount of the skill

12

sets in the team routine I'm sure are quite similar. But

13

not the -- the meet format and the scoring system the way

14

you assess skills and the points awarded to that are two

15

different things.

16

Q. Okay.

17

Does Spirit Unlimited follow the same scoring

18

systems as the NCSTA?

19

A. No.

20

Q. Different way of scoring?

21

A. Different way of scoring.

22

Q. Babson, is Babson a member of the NCSTA?

23

A. No.

24

Q. Stony Brook, are they a member of the NCSTA?

25

A. No.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 136 of 149 582

1

Q. Were either Babson or Stony Brook varsity collegiate

2

competitive cheer teams?

3

A. No.

4

Q. What sorts of teams were they if they --

5

A. They are collegiate teams that are much like

6

Quinnipiac was in years prior, A sideline team that are

7

just becoming teams that are competing quite a bit; and

8

they compete a lot of the same skill sets in stunting and

9

tumbling that we do. On that score sheet, we are scored

10

on the same skill sets.

11

Q. So they are both sideline teams that compete, is

12

that fair to say?

13

A. They are sideline teams that compete the same skill

14

sets.

15

Q. And drawing your attention to the January 16th

16

competition, was there a competition held at Sacred Heart

17

University in Fairfield, Connecticut?

18

A. There was supposed to be one and we arrived.

19

Q. Did you compete at that event?

20

A. I can't say that we did. We were there as we were

21

supposed to be. The bus was ordered. We were on the

22

docket to compete against two other teams and they both

23

scratched the night prior.

24

Q. Who were the other teams?

25

A. I don't know. They didn't list them on a web site.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 137 of 149 583

1

I don't know who the other teams were to be there.

2

Q. And do you know if those schools were varsity

3

collegiate competitive cheer teams?

4

A. No, they were not. They were sideline cheer teams

5

that compete.

6

Q. The Sacred Heart Pioneer Cheer and Dance Challenge,

7

what organization sponsored that event?

8

A. Sacred Heart University Cheerleading.

9

Q. Did they use the NCSTA scoring system?

10

A. No, they did not. But they were supposed to and

11

this wanted to compete against us last year at Quinnapiac

12

on January 30th.

13

Q. My question was on January 16th, Did they use the

14

NCSTA format?

15

A. Oh, I'm sorry, no. I misunderstood.

16

Q. So your answer was --

17

A. No, they did not use the NCSTA.

18

Q. Drawing your attention to the next competition,

19

February 5th, 2010, was that an all-girl, collegiate

20

competitive cheer held at Kennesaw State University,

21

Kennesaw, Georgia?

22

A. Yes, it was.

23

Q. How did you get Kennesaw, Georgia?

24

A. We flew.

25

Q. How many people did you fly?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 138 of 149 584

1

A. We flew 34 people.

2

Q. 34?

3

A. Mm-hm.

4

Q. That sounds expensive. How much did that cost?

5

A. I think about $18,000 for our hotel and airfare.

6

Q. $18,000 for a single competition in Georgia?

7

A. No, it was a three-day competition. We were -- we

8

competed on Friday, on Saturday and on Sunday.

9

Q. Okay, so that was $18,000 for one trip for 34

10

people?

11

A. Yes, it was.

12

Q. Now, who did you compete against at the Kennesaw

13

State University competition?

14

A. The University of Maryland, the University of Oregon

15

and Georgia.

16

Q. As I understand it, University of Maryland,

17

University of Oregon are members of the NCSTA?

18

A. Yes, they are.

19

Q. Were they members of the NCSTA in February of 2010?

20

A. In February of 2010? Yes.

21

Q. And what about Georgia?

22

A. Georgia's coach had been on some conference calls in

23

the late summer as he had heard of the governing body

24

being formed for us for competitive cheer and he was

25

hoping to have his administrators pick up the sport and

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 139 of 149 585

1

they had expressed interest. So we did come on a few

2

conference calls. But then later on -- and he -- the

3

reason he's on the schedule is because he had professed

4

an interest in competing in the NCSTA format and with our

5

teams.

6

Q. And do you know if Maryland, Oregon or Georgia

7

considered their competitive cheer squads varsity teams?

8

A. Georgia considers them an all-girl compete club team

9

and Maryland and Oregon consider themselves varsity

10

program.

11

Q. What is an all-girl compete team?

12

A. That's all they do is compete. That's what all

13

stars is. There's over 300 -- 300,000 kids in the United

14

States doing competitive cheer.

15

Q. And was the all-girl collegiate competitive cheer at

16

Kennesaw State, was that held under NCSTA scoring?

17

A. Yes, it was.

18

Q. Drawing your attention to Cheer Sport Nationals,

19

February 6th, in Atlanta, Georgia --

20

A. Okay.

21

Q. What is Cheer Sport?

22

A. Cheer Sport is, again, a competition company that I

23

believe they said that over 856 teams competed with over

24

750 of them being compete only teams that has varied

25

divisions. One includes special needs teams. One

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 140 of 149 586

1

includes -- the majority are all star compete kids. And

2

they do hold a collegiate division.

3

Q. These are -- these events are basically one day

4

apart; right?

5

A. Yes.

6

Q. The Ken saw and the Cheer Sport?

7

A. Yes.

8

Q. Did you score -- did you get a score at the all-girl

9

collegiate competitive cheer competition?

10

A. You mean, Cheer Sport? Do you mean --

11

Q. You competed on February 5th --

12

A. I know but you are calling it the all-girl

13

competitive -- are you talking about Kennesaw, the day

14

prior?

15

Q. Correct.

16

A. The Kennesaw -- the NCSTA meet format, did they have

17

a score?

18

Q. Yes.

19

A. Yes.

20

Q. Did that -- you competed against some of the same

21

schools the next day on February 6th; correct?

22

A. We did.

23

Q. And that would include Maryland and Oregon; correct?

24

A. Correct.

25

Q. Was there a ranking on the February 6th competition?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 141 of 149 587

1

When you came in?

2

A. The February -- that would be the Cheer Sport

3

competition, which the cessation of that was February

4

7th.

5

Q. Yes.

6

A. Yes, I believe we came in sixth.

7

Q. My question to you was was your position, did you

8

advance -- were you seeded in any way as a result of how

9

you sport on February 5th when you competed on February

10

6th?

11

A. They are two separate companies. I mean -- they are

12

two different formats.

13

Q. Okay. So can I take it that the Cheer Sport

14

Nationals was not held under NCSTA scoring policies?

15

A. No, different scoring policy.

16

Q. And so irregardless of how you did at Kennesaw

17

State, you didn't actually advance vis-a-vis the other

18

schools when you competed the next day?

19

A. No, they are two separate competitive -- they were

20

two separate competitions.

21

Q. I think I understand.

22

Now then you proceeded to compete on February 7th;

23

correct?

24

A. That was the second day part of the cheer

25

sport event.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 142 of 149 588

1

Q. And the schools that competed that the event, how

2

many of them were non-NCSTA schools?

3

A. Oregon, Maryland, Fairmont, Quinnipiac were the

4

NCSTA schools at the Cheer Sport. And then the majority

5

of the rest were all-girl competitive only club teams. I

6

think there were only two sideline cheer leagued teams

7

that compete competitive skills.

8

Q. And the sideline cheer teams, Did they compete

9

against you at either of these events?

10

A. The sideline cheer teams competed the same skills

11

that we competed against us, yes.

12

Q. Now then, your next competition, February 13th, at

13

Nonnewag High School, what competitive format was used

14

for that?

15

A. It was a -- it was based on two and a half minute

16

routine. I can't tell you whether they used an NCA score

17

sheet or -- probably An NCA score sheet.

18

Q. And NCA stands for what?

19

A. National Cheerleader Association.

20

Q. And that is different from the NCSTA organization;

21

correct?

22

A. Yes, it is.

23

Q. Were there any varsity competitive cheer teams,

24

other than Quinnipiac, that competed on February the

25

13th?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 143 of 149 589

1

A. No, there were not.

2

Q. Yours was the only one?

3

A. Ours was the only one.

4

Q. What kinds of teams were the other organizations

5

that you competed against?

6

A. Well, Central Connecticut State University is a

7

sideline team that competes -- we met up against them

8

several times this year, so they compete quite often.

9

Eastern Connecticut State University is a sideline

10

cheerleading team that competes quite often. Western

11

Connecticut State University, I think we saw them almost

12

everywhere we competed this year in a lot of places; and

13

Westfield State is a CO-ED competitive only team under

14

varsity status at Westfield state.

15

Q. By co-Ed you mean boys and girls were on their team?

16

A. Men and women, yes.

17

Q. WCSU, Western Connecticut State University, you said

18

you saw them everywhere, but do you know what kind of

19

organization they are?

20

A. WCSU?

21

Q. Yeah.

22

A. They are a sideline cheerleading team that competes

23

quite often.

24

Q. Fair enough. Drawing your attention to the next

25

event, February the 28th, was that a Quinnipiac all star

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 144 of 149 590

1

competitive cheer challenge?

2

A. Okay.

3

Q. Was that hosted by Quinnipiac University?

4

A. Yes, it was.

5

Q. And was this a competition?

6

A. It was a two-day competition.

7

Q. And what are the schools that competed that the

8

competition?

9

A. On Saturday I ran an reason event down at Burt Kahn

10

gymnasium with high schools. We partner with Make-a-wish

11

for part of our positive play and I think we had 60 high

12

schools competing on day one, on Saturday. Connecticut

13

high schools are allowed to compete six times during

14

their season. They can pick four events -- they can pick

15

four schools they to have do their league and then their

16

state championships. So all the high schools in

17

Connecticut are allowed to compete at least six times.

18

So we host a tournament and we had tremendous response to

19

that tournament every single year. And on Sunday, we

20

hosted a all star event with a collegiate division. So

21

the second day was a collegiate division and all star --

22

which are compete-only teams.

23

Q. And what were the all star teams that competed at

24

that event on February the 28th?

25

A. What were they?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 145 of 149 591

1

Q. Yeah. What were their names. Where did they come

2

from?

3

A. That day we had Connecticut Spirit All Stars, we had

4

Extreme All Stars, we had Northeast Tropics, we had

5

Liberty, we had Cheer Extreme, we had USA Wild Cats, we

6

had -- they were from a lot of places. I don't remember

7

all the programs that were there. Quite a bit.

8

Q. Were there any -- other than Quinnipiac University,

9

were there any collegiate varsity competitive cheer teams

10

that the event?

11

A. Yes, we had a collegiate division, but we divide it

12

had two ways. We did compete in meet format in our home

13

court against the University of Maryland; and the other

14

collegiate teams, I believe Babson competed against UConn

15

in the two and a half minute routine.

16

Q. And how long was the routine that you competed in

17

against University of Maryland?

18

A. Well, it's the new meet format, so it's a little bit

19

different. It's got the two and a half minute routine

20

that everybody loves and then we have chosen to bring new

21

elements into that meet format that take all the skills

22

that are involved in the two and a half minute routine

23

and allow -- the ran we have chosen to do this is to give

24

statistics for post season honors to our athletes in the

25

future; and because when you're watching a two and a half

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 146 of 149 592

1

minute routine, it's an amazing thing to see, the

2

athleticism, but when you break down the skill sets and

3

you look at the athletes and what they do best as in a

4

basket toss around, you can really see the strength and

5

reflexes of each and every player. So it's just really

6

different. We have a compulsory round where you are

7

looking at apples to apples. Maryland has to execute a

8

pyramid and we execute the same one. And the fans get it

9

because there's realtime scoring. Okay, so we have

10

different events with different heats; and it's more than

11

just two and a half minutes, although the two and a half

12

minute part is amazing and fun, but the skill set in the

13

two and a half minutes are all broken down so that we can

14

add a little bit more to the athletes and their team

15

position; and to the fan experience.

16

Q. February the 28th, was that held under NCSTA scoring

17

rules?

18

A. Yes, it was.

19

THE COURT: Mr. Hernandez, why don't we break

20

here.

21

MR. ORLEANS: Okay.

22

THE COURT: For the day. I want to spend a

23

moment discussing with counsel kind of where we are.

24

MS. FRIEDFEL: Can the witness be excused?

25

THE COURT: The witness can be excused.

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 147 of 149 593

1

MR. ORLEANS: I would expect tomorrow morning

2

we will finish with Coach Powers and then the defendant

3

will examine Coach Powers and we've been told that that

4

may take some time.

5

MS. FRIEDFEL: It may take less. I didn't

6

know they would go through this in as much detail.

7

MR. ORLEANS: It will be our intention to

8

call Dr. Amanies, our last expert. I don't actually

9

think she'll be terribly lengthy. I don't know about the

10

cross. But -- and after Dr. Amanies our final witness

11

will be Coach Sparks. And at that point, the plaintiffs

12

will be done. It's my understanding that the defendant

13

intends to call, after Coach Sparks -- after they have

14

cross-examined Coach Sparks, intends to call Tracey Flynn

15

the compliance officer and Coach Seeley. I'm confident

16

that we'll be finished by the end of the day on Thursday,

17

actually, the way things are going.

18

THE COURT: Okay. I can't remember if I

19

warned everybody about a break at three o'clock on

20

Wednesday.

21

MR. ORLEANS: No. You did not.

22

THE COURT: Okay.

23

MR. ORLEANS: How long will that break be?

24

Are we finishing early on Wednesday or does

25

that mean a break and come back on Wednesday, your Honor?

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 148 of 149 594

1

THE COURT: Ordinarily, I would say done for

2

the day. If we need to come back, I can probably be back

3

by 4:30 or 4:35. I apologize, it's a continuing

4

obligation I have every Wednesday; and I meant to mention

5

that to counsel and I apologize if I hadn't.

6

MR. BRILL: If we finish with Coach Powers,

7

Coach Sparks should not be a very lengthy witness, I

8

don't think.

9

MR. ORLEANS: I don't anticipate.

10

MR. BRILL: And Dr. Amanies, in view of this

11

morning's ruling, will certainly be less than two hours

12

if you -- possibly considerably less. There's no reason

13

why we shouldn't finish all three witnesses tomorrow and

14

assuming Thursday is a full day, then there should be no

15

problem finishing testimony on Thursday.

16

THE COURT: Good.

17

MR. BRILL: The question we talked about is

18

closing argument. I don't know. My suggestion at that

19

point, if we can finish the evidence on Thursday, then

20

let's come in from 9 to 11 on Friday and you'll each have

21

an hour.

22

MR. ORLEANS: That will be more than enough

23

time for me, your Honor. I don't anticipate taking an

24

hour.

25

THE COURT: I would be surprised if either of

Case 3:09-cv-00621-SRU Document 175 Filed 07/21/10 Page 149 of 149 595

1

you did, but I would have up to an hour.

2

MR. BRILL: Any time he doesn't use, I'll be

3

happy to.

4

THE COURT: So that sounds like it's going to

5

work.

6

MR. ORLEANS: I think we'll be okay.

7

THE COURT: Okay. I'm going to take a very

8

brief recess and take up the Made Stone matter when --

9

thank you.

10

(CONCLUDED AT 5:21 P.M.)

11

C E R T I F I C A T I O N

12

I hereby certify that the above and foregoing

13

is a true and correct of the transcript of the

14

stenographic notes of the proceedings, at the trial in

15

the above-entitled cause, heard before THE HONORABLE

16

STEFAN R. UNDERHILL, U.S.D.J., held at Bridgeport,

17

Connecticut, on the 22nd day of June, 2010.

18

Dated this 23rd day of June, 2010.

19

20

___________________________________

21

VIKTORIA V. STOCKMAL

CRR, RMR

22

23

24

25

 
 Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 1 of 12 447

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - X

:

STEPHANIE BIEDIGER, ET AL

:

: No. 3:09cv-621 (SRU)

: 915 Lafayette Boulevard

vs.

: Bridgeport, Connecticut

:

: June 22, 2010

QUINNIPIAC UNIVERSITY

:

:

- - - - - - - - - - - - - - - - X

BENCH TRIAL - AFTERNOON SESSION B E F O R E:
THE HONORABLE STEFAN R. UNDERHILL, U. S. D. J.

A P P E A R A N C E S:

FOR THE PLAINTIFF:

PULLMAN & COMLEY 850 Main Street P.O. Box 7006 Bridgeport, Connecticut 06601-7006
BY: JONATHAN B. ORLEANS, ESQ. ALEX V. HERNANDEZ, ESQ.

KRISTEN GALLES, ESQ. Equity Legal 10 Rosecrest Avenue Alexandria, Virginia

22301

FOR THE DEFENDANT:

WIGGIN AND DANA, LLP 400 Atlantic Street P.O. Box 110325 Stamford, Connecticut 06911-0325
BY: MARY A. GAMBARDELLA, ESQ.

(CONTINUED)

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 2 of 12 448
PROSKAUER ROSE 1585 Broadway New York, New York, 10016
BY: EDWARD A. BRILL, ESQ. SUSAN D. FRIEDFEL, ESQ. REBECCA BERKEBILE, ESQ.
Viktoria V. Stockmal, RMR, CRR Court Reporting Services 119 Poverty Hollow Road Newtown, CT 06470 (203) 470-0335

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 3 of 12 449

INDEX

EXAMINATION

Witness Name

Page

JEFFREY WEBB Cross By Ms. Friedfel ................................. 451 Re-Direct By Ms. Galles .............................. 456

JACK McDONALD Direct By Mr. Orleans ................................. 458 Cross By Mr. Brill .................................... 527 Re-Direct By Mr. Orleans ............................. 544

MARY ANN POWERS Direct By Mr. Hernandez .............................. 550

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 4 of 12 450

1

(RECONVENED AT 1:45 P.M.)

2

THE COURT: My apologies for the delay.

3

MS. FRIEDFEL: Your Honor, we decided to mark

4

the document that was disclosed to us earlier today, I

5

believe that's Exhibit GM?

6

THE COURT: GM?

7

MS. FRIEDFEL: I think so. I'm just going to

8

show a copy to the witness.

9

MS. GALLES: Your Honor, just for the record,

10

we renew our objection in case, you know -- that the

11

prior objection doesn't carry over, so --

12

THE COURT: Your objection on privilege

13

grounds?

14

MS. GALLES: Yes, yes.

15

THE COURT: That's fine. All right. Do you

16

have another objection to the document?

17

MS. GALLES: Well obviously, it's hearsay.

18

But she's welcome to try to overcome that. I mean, it's

19

an e-mail.

20

THE COURT: Okay. Are you objecting on --

21

MS. GALLES: Yes, we are objecting on the

22

privilege and the grounds of hearsay.

23

MS. FRIEDFEL: May I proceed?

24

THE COURT: Sure.

25

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 5 of 12 451

1

J E F F R E Y

W E B B,

called as a witness for

2

the Plaintiff, having been previously duly sworn by the

3

Court, testified futher as follows:

4

CROSS-EXAMINATION

5

BY MS. FRIEDFEL: (CONT'D.)

6

Q. Mr. Webb, could you look at page 4 of the document I

7

just showed you, Exhibit GM?

8

A. Page 4?

9

Q. Yes, it says "4 of 5" at the top right corner. I

10

don't know if it's actually the fourth page. I think it

11

says -- it appears that the document is page -- paginated

12

2 of 5, 3 of 5, 4 of 5.

13

A. Oh, okay. All right.

14

Q. I'm sorry. I don't know --

15

A. Not the actual fourth page, but the paginated

16

version. Okay, got it.

17

Q. If you look at that e-mail, it appears to be an

18

e-mail from Terry Lakowski (ph.) to yourself, Bill Boggs

19

(ph.), Greg Web, Bill Seeley, and Jonathan White; is that

20

right?

21

A. Yes.

22

Q. Terry Lakowski is an attorney that you retained

23

regarding Title IX and other issues; is that correct?

24

A. That's correct.

25

Q. And she says in this e-mail: "I spoke to Karen

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 6 of 12 452

1

Morrison this morning" --

2

THE COURT: Well, it's not in evidence yet

3

because there's an objection.

4

MS. FRIEDFEL: Okay.

5

THE COURT: So before we -- well, in general,

6

I would like to get the document in before it's contents

7

are put into the record.

8

MS. FRIEDFEL: Okay.

9

THE COURT: So are you offering the document

10

or --

11

MS. FRIEDFEL: Yeah, I mean, I was offering

12

the document to show --

13

THE COURT: Well, okay. The objection is

14

hearsay.

15

MS. FRIEDFEL: Correct.

16

THE COURT: I already ruled on the privilege.

17

So how do you get around the hearsay objection.

18

MS. FRIEDFEL: The hearsay objection? I'm

19

not offering this for the truth of what the attorney told

20

them about her communications. I'm not saying --

21

offering it for the truth of what Karen Morrison did or

22

did not say, but more just to the fact that Karen

23

Morrison -- I'm sorry, that Ms. Lakowski was having

24

communications with Karen Morrison on behalf of Varsity

25

Brands about the issues that are discussed in the

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 7 of 12 453

1

document.

2

THE COURT: Okay. Well okay, you got a

3

couple things. You have two levels of hearsay. You got

4

the document, itself, and you've got the statement in the

5

document.

6

MS. FRIEDFEL: Okay.

7

THE COURT: It doesn't sound to me like you

8

really want the document as much as you want the subject

9

matter. So maybe you don't need the document.

10

MS. FRIEDFEL: I'm happy to question him for

11

that -- without mentioning the document, itself.

12

THE COURT: All right.

13

BY MS. FRIEDFEL:

14

Q. Mr. Webb, did Ms. Lakowski have communications with

15

Karen Morrison on behalf of Varsity Brands?

16

MS. GALLES: Objection, foundation.

17

THE COURT: If you know.

18

BY THE WITNESS:

19

A. I don't know for sure.

20

Q. Was Karen Morrison at the -- work at the NCAA?

21

A. I don't know Karen Morrison.

22

Q. You don't know her. Do you know if she works at the

23

NCAA?

24

A. I don't know that.

25

Q. You received this e-mail from your attorney; right?

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 8 of 12 454

1

A. Apparently so.

2

Q. And you didn't ask her who Karen Morrison was?

3

A. No, I did not.

4

Q. It didn't concern you about who she was

5

communicating with on behalf of your company?

6

A. No. During most of this time I was traveling and

7

I'm primarily just copied on this. This, primarily,

8

would have been to Bill Boggs, John White, you know, to

9

be honest with you, I don't --

10

Q. Do you know whether or not Varsity Brands has had

11

communications with the NCAA about cheer becoming an

12

emerging sport?

13

A. About six years ago.

14

Q. About six years ago. So you don't know, you were

15

completely unaware until right now, when I showed you

16

this e-mail --

17

A. Yes, that's correct. I don't recall seeing this

18

e-mail.

19

Q. And you had no knowledge that your company was

20

communicating with the NCAA --

21

A. No, I did not ask Ms. Lakowski to do that, no. The

22

last time -- no.

23

Q. Ms. Lakowski is here in the courtroom right now;

24

right?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 9 of 12 455

1

Q. There's a dispute about this document whether or not

2

it was privileged and whether or not it comes into

3

evidence; is that right? Or whether --

4

A. Yes.

5

Q. I'm sorry, whether or not it would be produced?

6

A. Yes.

7

Q. And you didn't talk to her at all about the contents

8

of the document?

9

A. No, I asked her what was in the document and she

10

said it was about a conversation --

11

MS. GALLES: No, you can't -- sorry. Sorry.

12

MS. FRIEDFEL: Withdrawn, your Honor. I'm

13

finished with the witness.

14

THE COURT: Okay. Redirect?

15

REDIRECT EXAMINATION

16

BY MS. GALLES:

17

Q. Mr. Webb, I just want to ask you about document FM,

18

which is the USA Cheer document that Ms. Friedfel

19

mentioned to you or showed you.

20

A. FM.

21

Q. F as in Frank, M as in Mary. It's the USA Cheer

22

items. I'm sorry, F as in Frank, N as in Nancy.

23

A. Oh, okay, thank you.

24

Q. I would like to direct you to the last page of that

25

document.

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 10 of 12 456

1

A. Okay.

2

Q. When was USA Cheer incorporated?

3

A. I believe the actual incorporation was in January of

4

this year.

5

Q. January of --

6

A. 2010.

7

Q. So USA Cheer, Ms. Friedfel asked you several

8

question relating to the reference to sport within the

9

USA Cheer --

10

A. Yes.

11

Q. -- articles. Are those references about Cheer as

12

sport, do they pertain to Cheer as it exists today or

13

Cheer as you hope or expect it may be in the future?

14

A. The documents? Are you -- I'm sorry, could you ask

15

the question again.

16

MS. FRIEDFEL: I just object, before the

17

witness answers. We object to the question as leading.

18

THE COURT: She's going to ask it again. I'm

19

sure --

20

MS. GALLES: Rephrase it, because he didn't

21

even understand it.

22

MR. BRILL: You didn't do very well.

23

MS. GALLES: Yeah.

24

BY MS. GALLES:

25

Q. Mr. Webb; and again, you previously testified that

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 11 of 12 457

1

you are the president of USA Cheer?

2

A. Yes.

3

Q. When -- so when the articles for USA Cheer were

4

filed, were the references to sport in the articles --

5

see now you flustered me. Just joking.

6

A. Okay. Try again.

7

Q. We'll try one more time. Okay.

8

Mr. Webb, the USA Cheer articles of incorporation,

9

do they reflect cheer as it is today?

10

A. It addresses side line cheerleading and its place

11

and the fact that it's important to keep it as it is, but

12

the actual -- the actual intent is to also provide it lot

13

of latitude based on where cheer develops in the future.

14

Q. So it is an aspirational document about where you

15

think cheer might go?

16

A. It is at least partially aspirational. And again,

17

designed to give as much latitude as possible to include

18

not only what exists in cheerleading today, but where it

19

may go, in which direction it may develop. From a

20

national standpoint and internationally.

21

MS. GALLES: I have no further questions.

22

THE COURT: Sir, you are excused. Thank you.

23

MR. ORLEANS: Your Honor, as soon as Mr.

24

Webb --

25

THE WITNESS: Sorry.

Case 3:09-cv-00621-SRU Document 176 Filed 07/21/10 Page 12 of 12 458

1

MR. ORLEANS: Take your time. No problem.

2

Your Honor, the plaintiff's call Jack McDonald to the

3

stand.

4

THE COURT: Please remain standing.

5

J A C K M c D O N A L D,

called as a witness on

6

behalf of the Plaintiff, having been duly sworn by the

7

Court, testified as follows:

8

DIRECT EXAMINATION

9

BY MR. ORLEANS:

10

Q. Good afternoon, Mr. McDonald.

11

A. Good afternoon, John.

12

Q. Do you mind if I call you Jack?

13

A. Yes.

14

Q. You do mind?

15

A. O for 1.

16

Q. I'm comforted to know I'm not the only nervous

17

person in this the room right now.

18

Jack, you are the athletic director for Quinnipiac

19

University?

20

A. Yes.

21

Q. How long have you been in that position?

22

A. Just finishing 15 years.

23

Q. You testified in the preliminary injunction hearing

24

thin case; didn't you?

25

A. Yes, I did.

 
 Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 1 of 132 596

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - x

STEPHANIE BIEDIGER, ET AL vs.
QUINNIPIAC UNIVERSITY

: No. 3:09cv-621 (SRU) : 915 Lafayette Boulevard : Bridgeport, Connecticut : : June 23, 2010 :

- - - - - - - - - - - - - - - - x

BENCH TRIAL

B E F O R E: THE HONORABLE STEFAN R. UNDERHILL, U. S. D. J.

A P P E A R A N C E S:

FOR THE PLAINTIFFS:

PULLMAN & COMLEY 850 Main Street P.O. Box 7006 Bridgeport, Connecticut 06601-7006
BY: JONATHAN B. ORLEANS, ESQ. ALEX V. HERNANDEZ, ESQ.

KRISTEN GALLES, ESQ. Equity Legal 10 Rosecrest Avenue Alexandria, Virginia

22301

FOR THE DEFENDANT:

WIGGIN AND DANA, LLP 400 Atlantic Street P. O. Box 110325 Stamford, Connecticut 06911-0325
BY: MARY A. GAMBARDELLA, ESQ.

(CONTINUED)

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 2 of 132 597
PROSKAUER ROSE 1585 Broadway New York, N. Y. 10016
BY: EDWARD A. BRILL, ESQ. SUSAN D. FRIEDFEL, ESQ. REBECCA BERKEBILE, ESQ.
Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604
Tel: (917)703-0761

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 3 of 132 598
I N D E X WITNESSES: MARY ANN POWERS Continued Direct Examination by Mr. Hernandez......599 Redirect Examination...............................662 Cross Examination by Ms. Friedfel..................615 Recross Examination................................675 ROBIN L. SPARKS Direct Examination by Mr. Orleans..................682 Redirect Examination...............................722 Cross Examination by Mr. Brill.....................710
-0-

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 4 of 132 599

1

(9:10 O'CLOCK, A. M.)

2

THE COURT: Good morning, everyone. I apologize

3

for the delay.

4

MR. HERNANDEZ: Good morning, Your Honor.

5

THE COURT: Ready to go?

6

MR. HERNANDEZ: Yes, Your Honor.

7

THE COURT: Ma'am, you're still under oath.

8

M A R Y

A N N

P O W E R S,

called as a

9

witness on behalf of the Plaintiff, having been previously

10

duly sworn by the Court, testified as follows:

11

CONTINUED DIRECT EXAMINATION

12

BY MR. HERNANDEZ:

13

Q. Coach Powers, the NCAA recruiting test that you

14

recently passed, that allows you or permits you to begin

15

recruiting off campus end of August, is that correct?

16

A. I believe for juniors, on July 1st and in August,

17

yes.

18

Q. So, in other words, it doesn't become effective it

19

doesn't kick in until July 1st as far as you know?

20

A. Well, for the time you have made contact off campus.

21

Q. I'm sorry?

22

A. For the time that you have made contact off campus.

23

Q. And, Coach, we talked about a number of competitions

24

that you did this competitive year just past, 2009, 2010.

25

I'd like to ask you about the availability of trainers on

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 5 of 132 600

1

those trips. Did the university provide you with any

2

trainers to accompany the team?

3

A. Our final trip, yes, they came with us.

4

Q. Okay, so only on one trip?

5

A. On one trip, yes.

6

Q. Is that the Daytona trip?

7

A. Yes, it is.

8

Q. Okay. We'll talk about that in a second. Now, what

9

about during your practices, do you have trainers

10

available to you then?

11

A. Yes, I do.

12

Q. All right. And are they physically present during

13

the practices?

14

A. They are in and out. We practice on court four in

15

our rec center which abutts the trainers' door. So when

16

they bring in the water station, they have a

17

walkie-talkie. But they are a step away so they come in

18

and out of practice, yes.

19

Q. So physically they are close by during your

20

practices?

21

A. Extremely close by.

22

Q. Got you. I think you sort of mentioned in passing

23

that your team competed under various different scoring

24

systems, including NCSTA scoring systems?

25

A. Correct.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 6 of 132 601

1

Q. All right. The nonNCSTA, nonNCSTA competitions, how

2

long are the routines that they compete in?

3

A. They are anywhere from, depending on the company, two

4

minutes and 15 seconds and two minutes and 30 seconds.

5

Q. Okay. And the NCSTA competitions; how long were

6

those routines?

7

A. If we were to go on a head on competition, for

8

instance, us against the University of Maryland, it would

9

probably be about a -- with a half time, about two hours.

10

Q. Okay, and is that split evenly one hour for each

11

team?

12

A. No. There's a fence with heat, and so event number

13

one would be the compulsory round and then there would be

14

the partner stunt round and then I think it's the

15

compulsory basket and basket toss and there's a half time,

16

and we follow the other rounds, to conclude with the team

17

routine.

18

Q. The team routine, is that two and-a-half or --

19

A. Two minutes 30 seconds, correct.

20

Q. That's the two minutes 30 second routines. Is that

21

similar to the two minute 15 seconds to two minutes 30

22

second routines that are done in the nonNCSTA programs?

23

A. They're significant. The skill sets, skills being

24

evaluated are the same skill sets, however, we have

25

removed some of those subjective scores from the score

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 7 of 132 602

1

sheet.

2

Q. All right. I think you mentioned in passing that

3

that two and-a-half minute routine under NCSTA scoring is

4

a very popular part of the competition, is that correct?

5

A. I think it's, I think it's an exciting part of the

6

competition. It's when you see the whole, you know 24

7

members out there and there's a lot going on.

8

Q. Okay, and that's the most entertaining part, you

9

think, of the competition?

10

A. Actually I think it's, I don't know if I'd use the

11

word entertaining. I think people enjoy watching it but I

12

don't know that anymore. Once we've shown the components

13

being broken down by the different skill sets in each

14

sheet the appreciation of the positions of each athlete

15

has certainly changed, at least what fan bases have told

16

me, the way that they've looked at the sport.

17

Q. Okay. I just want to finish running through your

18

schedule from this year past.

19

A. Okay.

20

Q. And get an idea from you as to what these were like.

21

Was there a competition on March 6th known as the All New

22

England Open?

23

A. Yes.

24

Q. That was held in East Haven, Connecticut?

25

A. East haven.

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1

Q. Where in East Haven?

2

A. East Haven high school.

3

Q. Did high school teams compete in that event?

4

A. Yes, they did.

5

Q. How many high school teams competed?

6

A. I can only guess. I wouldn't have an approximation

7

for you.

8

Q. Fair enough. And at this event were there any

9

All-Star teams competing?

10

A. Not at this competition, no.

11

Q. All right. How many other colleges or university

12

teams competed?

13

A. I think there were five or six in total.

14

Q. Do you recall the names of those schools?

15

A. I think Eastern Connecticut State University,

16

Western, I want to say Curry, another team from I think

17

the upper northeast. I really don't recall.

18

Q. Okay. And of the other --

19

A. And Central connecticut State University.

20

Q. Central Connecticut. And of the other college teams

21

that competed, how many of those were varsity teams?

22

A. Just Quinnipiac University.

23

Q. Just Quinnipiac?

24

A. Yes.

25

Q. Okay. What status, what status, for lack of a better

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 9 of 132 604

1

word, did the other collegiate teams have?

2

A. Sideline cheerleading teams that competed.

3

Q. Were there any club teams that competed?

4

A. Not at that competition, no.

5

Q. Okay. All right. And what scoring format was used

6

at this All New England Open?

7

A. The one, I believe, that models the NCA score sheet.

8

Q. And again NCA is the National Cheerleading

9

Association?

10

A. Yes, I think there's a big difference in there

11

because they don't have a crowd response on that score, so

12

there's no crowd. Actually NCA and UCA score sheets are

13

the only ones that have a crowd response on it. All the

14

others do not have crowd response scores.

15

Q. Okay.

16

A. It's Varsity Brands that holds the crowd responses to

17

that score sheet.

18

Q. Now, was there an event on March 20th, the USA

19

Wildcat and dance challenge?

20

A. Yes.

21

Q. That was held at the New England Field House?

22

A. Yes.

23

Q. Is that -- where is the New England Field House?

24

A. It's down, it's by Southern Connecticut State

25

University up Crescent Street.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 10 of 132 605

1

Q. And what kinds of teams competed at this March 20th

2

event?

3

A. There was a small high school division but mainly

4

competitive All-Star programs.

5

Q. Okay. And again, competitive All-Star, those are

6

teams that come from private gyms, is that correct?

7

A. Yes, there's no sideline cheer, they solely compete.

8

Q. Okay. And were there any college varsity competitive

9

cheer teams at this event?

10

A. There was UConn's club program there.

11

Q. Okay. But that was a club program, not varsity?

12

A. No.

13

Q. So, I take it that Quinnipiac University was the only

14

varsity level collegiate team?

15

A. Yes.

16

Q. What scoring format was used at the USA Wildcat Dance

17

challenge?

18

A. A scoring format that assessed skills only and had no

19

sideline elements on that score sheet.

20

Q. Okay. And the next event, Saturday, March 27, the

21

NECA championship, what does the NECA stand for?

22

A. NECA, I believe it's New England Cheerleaders

23

Association.

24

Q. What scoring system was used at the March 27th event?

25

A. Again, one that only assesses skills, no sideline

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 11 of 132 606

1

components.

2

Q. All right. Was that held under the NCSTA scoring

3

system?

4

A. No.

5

Q. And do you recall which schools competed at the New

6

Hampshire event?

7

A. The University of New Hampshire, again I think Curry,

8

and I think there was one more but I'm not sure. UMass.

9

Dartmouth was supposed to but they scratched the night

10

prior.

11

Q. So we're talking about four college teams?

12

A. Yes.

13

Q. And these are two and-a-half minute routines?

14

A. Yes. A lot of these competition companies do hold a

15

partner stunt round and, much like what is in our format

16

however, so they award scores to just a team in a singular

17

skill set so they do offer that as part of their

18

competition.

19

Q. But otherwise we're talking two and-a-half minute

20

competition routines?

21

A. Correct.

22

Q. And what what sort of category were the other schools

23

in that competed?

24

A. University of New Hampshire is a sideline cheer team

25

that competes.

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1

Q. Okay.

2

A. Same with Curry and, as I said, I think I had four

3

teams, UMass -- Dartmouth would be because they are

4

varsity status at the school if they had been there.

5

Q. But they scratched for this event?

6

A. Yes, they did.

7

Q. Then I think the next event is the NCA College

8

Nationals, it goes to the next page?

9

A. Yes.

10

Q. What is, again NCA is National Cheerleaders

11

Association?

12

A. Correct.

13

Q. And looks like there were two events, is that

14

correct?

15

A. It's a 12 day event you have to qualify for finals.

16

Q. Okay, and this is the Daytona Beach event that you

17

were referring to?

18

A. Yes, it is.

19

Q. All right. How many people from Quinnipiac

20

University travel to Daytona for this event?

21

A. Thirty-four.

22

Q. Thirty-four?

23

A. Yes.

24

Q. How many days did you stay?

25

A. Part of the package is for a, I want to say four

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 13 of 132 608

1

night, three day stay.

2

Q. Okay. Do you know offhand how much it costs

3

Quinnipiac University to send the competitive cheer team

4

for this four night, three day event?

5

A. I'm going to say upwards of 30,000.

6

Q. 30,000?

7

A. Yes.

8

Q. All right. Now, how much was your annual budget?

9

A. I think it was established that a starting point was

10

50,000 but because we were a new sport they were going to

11

look to make sure that all of our needs were met as long

12

as I went to administration with what those needs would

13

be.

14

Q. So Quinnipiac university is putting some financial

15

resources behind your team?

16

A. My thought process is they put it behind every team.

17

Q. Did the 30,000 come out of the 50,000?

18

A. No, it came out of the tournament budget.

19

Q. I'm sorry?

20

A. The tournament budget.

21

Q. Tournament budget. Is that a separate budget from

22

the cheer budget?

23

A. Yes, it is.

24

Q. The first round -- well, let me just back up a bit.

25

What scoring system was used at the Daytona event?

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1

A. The scoring system that Varsity Brands employs where

2

they have a crowd response as part of its course is where

3

it's got an 110 percentage. The score sheet comes to a

4

total of 110 points and ten points is for crowd response

5

and the other hundred points are for skill sets.

6

Q. I see. Just so we're clear, I know we heard from

7

Mr. Webb yesterday about Varsity Brands' theory and

8

philosophy of cheerleading. Could you just explain for

9

the court what you mean by crowd response, a crowd

10

response element?

11

A. You have to use poms and signs and props and

12

megaphones and actually try to engage the crowd to respond

13

back to you in a cheer.

14

Q. Okay. Did you say poms?

15

A. Pompoms, shake your pompoms.

16

Q. Okay. Those are the paper things, different colors?

17

A. Yes.

18

Q. That shake around? Now, did all of the Quinnipiac

19

university competitive cheer athletes have pompoms during

20

that event?

21

A. Actually to participate in the event we don't use

22

pompoms because we're not in sideline cheer. We had to

23

purchase a set of three.

24

Q. Okay. A set of three pompoms?

25

A. Three sets of poms.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 15 of 132 610

1

Q. And how many are in a set?

2

A. Well, there's two. One --

3

Q. Okay. So there were three people with pompoms out,

4

during the routine?

5

A. Yes.

6

Q. Is there like a minimum number of athletes with

7

pompoms who have to be out on the floor?

8

A. No, they just, they just award you more points for

9

the amount of programs you use to engage the crowd.

10

Q. Okay.

11

A. They sell pompoms and megaphones and so they put it

12

into the format, I think.

13

Q. Just so I'm clear, if you had bought more sets of

14

pompoms would your score have been higher?

15

A. It's the use of them and how you create that material

16

for the crowd.

17

Q. Okay. Now, you said that there were also signs.

18

What -- what do you mean by that?

19

A. B-O-B-C-A-T-S, let's go Bobcats, you know, signs,

20

hold them up.

21

Q. So we're talking big cardboard --

22

A. Yes.

23

Q. -- signs with letters on them, that sort of thing?

24

A. Uh huh. (Affirmative.)

25

Q. All right. And does Quinnipiac University have a set

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 16 of 132 611

1

of signs for its competitive cheer team?

2

A. I've had signs left over from 12 years of having

3

signs.

4

Q. And those signs would have been from your sideline

5

cheer days, is that correct?

6

A. Actually I had purchased some new signs this year for

7

that event.

8

Q. Got you. Okay. And you also said that part of the

9

competition also involves megaphones, is that correct?

10

A. Well, you have the choice to use a megaphone.

11

Q. Okay, but you're not required to use a megaphone?

12

A. Well, if you want to make the score, you're

13

encouraged by Varsity Brands to use as many props as you

14

can to get the score in that category.

15

Q. Okay. And did your competitive cheer team do any

16

exhibition events in this past year?

17

A. We did December 3rd, we exhibitioned. It was an

18

inaugural event welcoming us to varsity status. And we

19

exhibitioned on January 14th for the Walter Camp

20

Foundation for positive play.

21

Q. What is the Walter Camp foundation?

22

A. I believe athletes are brought into downtown New

23

Haven to work with the community. They are receiving post

24

season honors in football at that point. And they are

25

here for a few days to receive their post season honors

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 17 of 132 612

1

and they do positive play actually within the community.

2

Q. Okay. Now, when you say football players, are these

3

football players from the region --

4

A. No, collegiate football players.

5

Q. Excuse me?

6

A. Collegiate football players from all, from all over

7

the country.

8

Q. Collegiate football players from around the country.

9

A. Yes.

10

Q. And what is the Walter Camp Foundation dedicated to?

11

A. You know, I'm not quite sure.

12

Q. Where, where did you do this exhibition?

13

A. At the New Haven Field House.

14

Q. All right. What time of day was that?

15

A. I think we went out at around 11:00 o'clock in the

16

morning, I think.

17

Q. Eleven a. m.?

18

A. Yes.

19

Q. What were some of the other events or entertainment

20

for the Walter Camp Foundation?

21

A. Well, a lot of coaches and former athletes talk to

22

the inner city school kids about the importance of staying

23

in school and their experiences as collegiate athlete and,

24

you know, it was really to encourage those elements of

25

those kids that athletics could make a difference in their

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 18 of 132 613

1

lives.

2

Q. Now, the college football players at this event, were

3

they from Connecticut, from the region, or --

4

A. I think they were from across the nation.

5

Q. All across the country?

6

A. I do believe so, yes.

7

Q. So basically in the Walter Camp Foundation you had

8

college football players from across the country come into

9

New Haven and your competitive cheer team put on an

10

exhibition at this event?

11

A. Yeah, our cheer team put on an exhibition. I know

12

they felt strongly that for all the females coming from

13

the grammar school, it would encourage them to stay

14

involved in athletics because they could someday be a part

15

of the sport.

16

Q. Okay. The competition, was that -- I'm sorry, I said

17

competition. That exhibition, how long was the exhibition

18

that you put on?

19

A. Probably about seven or eight minutes.

20

Q. Okay. Was that similar to the crowd response routine

21

that you did?

22

A. No, we did no crowd response for that. We wanted to

23

exhibit the skill set and strength needed in our sport for

24

young ladies and their guidance.

25

Q. One of the events that you sponsored, did that

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 19 of 132 614

1

involve a dance off among the coaches?

2

A. Yes.

3

Q. Which event is that?

4

A. That was the February 26 and -7 event.

5

Q. Was that the one that was hosted by Quinnipiac?

6

A. Yes.

7

Q. Okay. And what was the dance off, what was involved

8

there?

9

A. The dance off was for Make a Wish. I had conceived a

10

concept on the part of positive play for any athletes to

11

engage the coaches to have a dance off with our mascot.

12

We received a dollar a vote. Each coach -- each team

13

could nominate their coach and pay a dollar a vote to have

14

their coach come down and dance with Boomer and all the

15

proceeds went to Make a Wish Foundation.

16

Q. And who is Boomer?

17

A. Boomer is our mascot.

18

Q. Boomer the Bobcat?

19

A. Boomer the Bobcat.

20

Q. That's a guy basically in a big Bobcat uniform?

21

A. Yes.

22

Q. One of these big sports hats?

23

A. Yes.

24

Q. And the -- which, which coach won?

25

A. I believe in the high school division -- gosh, the

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 20 of 132 615

1

coach from Branford. They had brought in a significant

2

amount of -- I think they brought over 2,000-dollars for

3

the coach, the kids collected over 2,000-dollars across

4

the Branford community to have that coach win that for

5

Make a Wish.

6

And I couldn't tell you at the All-Star event who

7

won. I believe his name was Ryan Spevich (ph)?

8

Q. And I've just got to know: Who won, the coach or

9

Boomer the Bobcat?

10

A. I think the coach won in one and Boomer won in the

11

other.

12

Q. Go Boomer.

13

A. Yes.

14

Q. Thank you, Coach.

15

A. You're welcome.

16

THE COURT: Redirect? Or cross, whatever you're

17

doing.

18

CROSS EXAMINATION

19

BY MS. FRIEDFEL:

20

Q. Good morning, Coach Powers?

21

A. Good morning, Susan.

22

Q. Now, you testified yesterday you're the head coach of

23

the varsity competitive cheer team, right?

24

A. Correct.

25

Q. To whom do you report?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 21 of 132 616

1

A. I report to Jack McDonald and Bill Mecca.

2

Q. And Jack McDonald is the athletic director?

3

A. He is the athletic director, correct.

4

Q. And Bill Meccas is?

5

A. He is the associate athletic director.

6

Q. And you're coaching position is a full-time position,

7

is that correct?

8

A. Yes.

9

Q. I'm going to ask you a couple questions about how

10

your team worked this year. How many athletes did you

11

have on the team?

12

A. Thirty.

13

Q. Thirty, okay. I'm going to direct you to Exhibit E M

14

in the binder. It's in the third defendant binder.

15

A. (Pause)

16

Q. E as in Ellen, M as in Marianne.

17

MR. ORLEANS: Just want you to move the

18

microphone over a bit so we can hear you better.

19

A. E M?

20

Q. Yes, E M. And if you turn to the page that's marked

21

at the bottom corner, D 15100 to 15102?

22

A. I can't possibly find my place here. Okay.

23

Q. What is that document?

24

A. This document is the amount of scholarships that are

25

award to my team.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 22 of 132 617

1

Q. Okay. This is your squad list?

2

A. It's my squad list as well, yes.

3

Q. What was your first date of competition this year?

4

A. This year was December 5th.

5

Q. And how many athletes were on your roster the first

6

date of competition?

7

A. Thirty.

8

Q. Thirty. And were Katrina Lennon and Nicole Manzo on

9

the roster on the first date of competition?

10

A. No.

11

Q. Was Alissa Pacheco on your roster the first date of

12

competition?

13

A. Yes

14

Q. And were there any changes to your roster between the

15

first date of competition and the end of the year?

16

A. No.

17

Q. I'm also going to show you Plaintiff's Exhibit 42.

18

This is going to be in a different binder.

19

A. Okay.

20

Q. What's that document?

21

A. This is the roster I believe that appears on the

22

website.

23

Q. Now, I just want to point out, if you look at the

24

squad list, you'll see that indicates that Caitlyn

25

Armstrong is listed as enrolling in the fall of 2009. But

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 23 of 132 618

1

if you look at this document here, Exhibit 42, it lists

2

her as a junior. Could you just tell the court which one

3

is the right --

4

A. Caitlyn will be a senior this year so she was a

5

junior last year.

6

Q. All right. And the same question about Marina

7

Polcara and Kimberly Severino?

8

A. Okay.

9

Q. It lists them as enrolled in 2009 on the squad list

10

but here it lists them as sophomores; which one is

11

correct?

12

A. Kim Severino and Marina Polcara are sophomores this

13

year.

14

Q. I just want to make it clear because there was an

15

inconsistency, looks like. So it appears -- is there a

16

mistake on the squad list?

17

A. Yes.

18

Q. Where it says --

19

A. Yes, clerical error.

20

Q. Now, did the athletes on your team play particular

21

positions?

22

A. Every athlete has their own position, yes.

23

Q. What are those positions?

24

A. Main base, a support base, a back spot and a flyer.

25

Q. And what do those different positions do?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 24 of 132 619

1

A. The flyer is the girl you would typically see in

2

pyramid and in the partner stunts up in the air. The back

3

spot is the back of the stunt. I tell the kids in that

4

position they are the steering wheel of the stunt. They

5

have to be extremely tall for that position and extremely

6

strong. And the main and the support base.

7

When we put them together we have to use a height

8

inclusionary method so that when they are in an extended

9

stunt they are able to hold it when they meet together to

10

unify that flyer up the air, so we base that on their

11

height and on their strength.

12

Q. And on Plaintiff's Exhibit 42, that indicates their

13

different positions?

14

A. Yes.

15

Q. Is that right?

16

A. It does.

17

Q. You've had lot of questions about your recruiting

18

tests and I want to talk a little bit about recruiting

19

during the 2008, 2009 year; that would be last year before

20

the team became varsity. Did you have prospective

21

students contact you regarding their interest in

22

participating in cheer?

23

A. Every year I had over 100 asking me about the

24

competitive aspect of the program, yes.

25

Q. And how did you respond to those inquiries?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 25 of 132 620

1

A. I would ask them to send me a videotape of their

2

skill sets. I would talk to their coaches. When they

3

came for visits on campus they would meet with me. I had

4

developed a bio sheet that I would send out to them.

5

Q. And did you identify which of those 100 kids who

6

contacted you were those with the greatest skills through

7

what you're discussing?

8

A. Yes, most certainly.

9

Q. And did you make any efforts to get those kids with

10

the best skills to come to Quinnipiac?

11

A. Yes.

12

Q. What did you do?

13

A. I told them that first of all academics are primary

14

and it was a wonderful school to be at and that they could

15

have the best of both worlds; they could be competing in

16

something they loved and going to a great institution

17

academically.

18

Q. And you testified yesterday that several members of

19

the competitive cheer team for 2009, '10 had been members

20

of the '08-'09 sideline cheer that competed, correct?

21

A. Yes.

22

Q. How many of those?

23

A. I would say 15 or 16.

24

Q. And how did you decide which members of the sideline

25

team were going to be members of the competitive cheer

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 26 of 132 621

1

team in '09, '10?

2

A. Even on the onset of being on the support, I mean

3

being on the traditional cheerleading sideline team, their

4

goal had always been to come later to Quinnipiac to

5

compete. We had gone down to NCA nationals for five years

6

and had been a powerhouse, in the top five and six every

7

single year, and the word had spread about this program.

8

You know, that had, you know, I have a lot of kids that

9

are P T and O T and we have the major that they want but

10

also a sport that they want. So it wasn't, it was --

11

Q. So I guess my question is, you had a squad of I

12

think -- I don't know, how many was on the sideline squad

13

in '08-'09 approximately?

14

A. How many? I think we started about 28.

15

Q. Okay, and then -- so but did you make a decision as

16

to how many of those kids were going to be able to be on

17

your competitive squad in '09, '10?

18

A. The coaches sat down and formulated a grid on their

19

skill sets, weaknesses they had about recruiting in the

20

foreseeable future. So, yes, we based it on their skill

21

sets, cheerleader skill sets.

22

Q. And did Quinnipiac have a sideline cheerleading squad

23

this year, 2010?

24

A. Yes, it did.

25

Q. Did you coach that squad?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 27 of 132 622

1

A. No, I did not.

2

Q. Did you run the try outs for that squad?

3

A. No, I did not.

4

Q. Were any members of the '09-'10 varsity competitive

5

cheer squad on the sideline squad?

6

A. No, they were not.

7

Q. Did the '09-'10 varsity competitive cheer team do any

8

sideline cheerleading?

9

A. Only at the Varsity Brands event where we had to

10

compete for a crowd response score.

11

Q. Just that 45 seconds?

12

A. Just that 45 seconds, yes.

13

Q. And there was, there were no other teams there, you

14

weren't cheering for another team, right? You were

15

clearing for a score, is that correct?

16

A. Correct.

17

Q. Now, were your athletes subject to certain

18

requirements based on their status as a varsity team?

19

A. They were subject to both, they are subject to the

20

benefits, yes, so therefore the requirements as well for

21

being a student athlete.

22

Q. Were they subject to the same requirements as all the

23

other varsity athletes at Quinnipiac?

24

A. Yes, they were.

25

Q. And what were those requirements?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 28 of 132 623

1

A. Compliance, following compliance rules, compliance --

2

we decided to that they would follow these same guidelines

3

for, you know, their schedule for the week. How much they

4

could practice, post seasonal -- I mean pre-season

5

workouts, determine schedule by that. They had to be drug

6

tested. They had to have an academic, they had to

7

participate in power hours for academics as they come in

8

as freshmen or, if they fell below the mark, as upper

9

classmen.

10

Q. And what are power hours?

11

A. It's what our student athletes have to do. We try to

12

keep them academically in good standing and like to see

13

them come in with a 3.0. So you don't know how your

14

freshmen are going to fare with that, so they come in

15

knowing they have to dedicate six hours until the end of

16

the first semester when they prove they can get the 3.0

17

GPA.

18

Q. So six hours of sort of mandatory study time?

19

A. Mandatory study, yes.

20

Q. And Mr. Hernandez questioned you a little bit about

21

your exhibition at the Walter Camp Foundation and you said

22

that was part of your positive play?

23

A. Positive play, yes.

24

Q. Are all the varsity teams required to participate in

25

some sort of varsity -- positive play?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 29 of 132 624

1

A. Yes, I believe Jack McDonald developed that. We

2

believe that student athletes are privileged and they

3

should give back to the community.

4

Q. So your positive play is your community service?

5

A. It's our community service, yes.

6

Q. And you also did your event -- at your event you did

7

the fundraiser for the Make a Wish Foundation, is that

8

right?

9

A. Yes.

10

Q. And Mr. Hernandez asked you some questions about your

11

dance off with Boomer the Bobcat?

12

A. Uh huh.

13

Q. At basketball games, does Boomer the Bobcat appear at

14

half time?

15

A. Yes, he does.

16

Q. Yeah? Okay. And with respect to your athletes were

17

they required to have any clearance from the sports

18

medicine staff?

19

A. Yes, they were.

20

Q. And that's the same as all other varsity athletes?

21

A. As all the rest of the athletes, correct.

22

Q. Now, with respect to your practice time, you said

23

that you were -- your team was subject to the same roles

24

rules as all the OPM teams with respect to how much time

25

you can practice. And what are those rules?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 30 of 132 625

1

A. Well, during your pre-season, we're allowed only

2

eight hours, until we reach that mark where we're going to

3

declare the date of the onset of our season. So in

4

pre-season, we, they are allowed to not train as a team.

5

I can work with them individually on skills and they have

6

to strengthen and condition.

7

We had talked about, because of our sport, that we

8

have to always think about safety employed. We dedicated

9

our eight hour week to four hours dedicated to separate

10

skill instruction and two hours to strength on the floor

11

and -- four, I think we divide it four and four, strength

12

and conditioning and floor stunts.

13

Q. And at some point did your limitation from the eight

14

hour practices change?

15

A. I think it was in October 9th that we were allowed,

16

we entered the onset of our declared season and then we

17

were allowed up to a 20 hour week, but that's to include

18

competition -- date of competition is a three hour

19

immediate assessed to the 20 hour week. Strength and

20

conditioning hours are formulated to that team meeting,

21

individual instruction and practice time. They have to

22

have a dedicated day off which could be a travel day but

23

on that travel day you're not allowed to engage them in

24

any aspect of the sport at all, not even showing a video.

25

Q. And you said that that change happens at the

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 31 of 132 626

1

beginning of your defined season?

2

A. Yes.

3

Q. Your championship season?

4

A. Yes, it does.

5

Q. And how long is your championship season?

6

A. We had 132 days this year.

7

Q. And that was counted back from where?

8

A. I believe from the October 9th date.

9

Q. So it went forward from October 9?

10

A. We had considered the Daytona trip our post season.

11

You know, that was our final. That was our final, so we

12

counted back up to that date.

13

Q. And who made the designation as to what the defined

14

season was going to be?

15

A. We wanted to see how Maryland could operate with

16

that. They had already set a standard in place. Oregon

17

had been working with their team for I think several

18

months before I had that opportunity. And we established

19

it by having some phone conferences together.

20

Q. So when you say "we," it wasn't a decision that just

21

Quinnipiac made, you made that?

22

A. No, I made it in conjunction with Maryland, Oregon,

23

the administration at Baylor. We had decided that the

24

formulation of the time of the season would be, you know,

25

it was going to be formulated with, the same as

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 32 of 132 627

1

basketball.

2

Q. You modeled it after the basketball season?

3

A. Yes, we did.

4

Q. Now, were there any rulings that pertained to varsity

5

teams at Quinnipiac that the university did not require

6

the competitive cheer to comply with?

7

A. No, we had to follow the rules of all the other

8

teams.

9

Q. Now, did your athletes receive the benefits that

10

other varsity athletes at Quinnipiac received?

11

A. Yes, they did.

12

Q. And you're smiling?

13

A. They just -- it was an incredible experience for them

14

this year.

15

Q. And what are those benefits?

16

A. Like trainers, strength and conditioning coach,

17

scholarships. Dedicated set time for their practice.

18

Funny, they didn't see the power hours as anything but

19

good for them. They really managed their time management,

20

anytime they had the opportunity to be involved in

21

positive play.

22

So all of those things collectively, and not have to

23

do double duty as sideline cheer and the ability to

24

compete, this was truly their love, they could focus on

25

that and have such a great positive experience on their

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 33 of 132 628

1

own, in their sport.

2

Q. And did your athletes get uniforms?

3

A. Yes, they did.

4

Q. Were those uniforms numbered?

5

A. Yes, they were.

6

Q. And so each athlete got their own number and it was

7

their number for the season?

8

A. Early in our conference calls with -- Oregon's coach

9

had worked with Nike an developing a new uniform for the

10

sport and we felt it was very -- it was going to bring us

11

into NCAA status. We wanted to give these kids post

12

season honors and All-American status, and by team

13

position we assessed their numbers so that we could

14

develop in various events we talked about the scoring

15

system, we were able to give those kids post season

16

honors.

17

Q. Did they get practice gear?

18

A. Yes, they did.

19

Q. And did they get travel bags?

20

A. Yes, they did.

21

Q. And did they get their shoes provided?

22

A. Yes, they did.

23

Q. And those were all provided by the university?

24

A. All provided, yes.

25

Q. What is the Student Athlete Advisory Council?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 34 of 132 629

1

A. SAAC, that's part of the NCAA. It's where the

2

student athletes have a voice in how rules and regulations

3

possibly affect them in their membered institutions.

4

Q. Does Quinnipiac have a Student Advisory Council?

5

A. Yes.

6

Q. And who are the members of that?

7

A. Each team picks two members from their sport to be on

8

SAAC.

9

Q. And did your athletes have representatives on SAAC?

10

A. Yes, I picked two amazing young ladies for us.

11

Q. And did the team get coverage from the Sports

12

Information Department?

13

A. Yes, we did.

14

Q. If you'll look at Exhibit F F in the defendant's

15

binder?

16

A. Where are we?

17

THE COURT: The next book, book three binder.

18

THE WITNESS: Okay.

19

MR. HERNANDEZ: No objection, Your Honor.

20

BY THE WITNESS:

21

A. F?

22

Q. F F?

23

A. Okay.

24

Q. What are these documents?

25

A. These are releases.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 35 of 132 630

1

Q. And these --

2

A. Releases to our website.

3

Q. Okay. This is, what, some, just some examples of

4

what sport information provided for your team, is that

5

right?

6

A. For every, for every time we competed they wrote for

7

there a sport, yes.

8

Q. So they wrote a release before the game?

9

A. I would call them after the cessation of the contest

10

and let them report in our scores.

11

Q. So they would report after you competed?

12

A. I would report to my SID.

13

Q. And do they also sometimes report in advance --

14

A. Yes, they do.

15

Q. -- of a meet? Now, are there any types of

16

recognition that the university gives to varsity athletes?

17

A. At year's end we, the team select MVPs and scholar

18

athletes of the year.

19

Q. Are there also athletes of the month?

20

A. Yes, there are.

21

Q. Were your athletes eligible to receive those awards?

22

A. Yes, they were.

23

Q. And did your athletes receive any?

24

A. Student athlete of the month?

25

Q. Well, just in general, any of the awards.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 36 of 132 631

1

A. One of my juniors received the junior scholar athlete

2

of the year award, 3.96 in her major.

3

Q. So the scholar --

4

A. Of the year was a competitive cheer candidate, yes.

5

Q. But that award is for student athletes who receive a

6

certain GPA?

7

A. Yes.

8

Q. And you testified you had an operating budget from

9

the university for 2009, 2010, right?

10

A. Yes.

11

Q. And what is a team operating budget supposed to

12

cover?

13

A. Team equipment, travel, team lodging. Team travel,

14

team lodging, their meal stipends, equipment.

15

Q. Okay.

16

A. Everything we need to make the sport work.

17

Q. Does it include scholarships?

18

A. Yes, it does.

19

Q. Your operating budget?

20

A. Not our operating budget, no.

21

Q. Does it include coaching salaries?

22

A. No.

23

Q. And was your operating budget administered by the

24

Athletics Department?

25

A. As far as I believe, yes.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 37 of 132 632

1

Q. And how much was -- you testified I think your

2

operating budget was initially set at 50,000?

3

A. Correct.

4

Q. And were all of your expenditures expected to come of

5

that; were you limited to that 50,000?

6

A. No, I was told ahead of time that because we were a

7

new sport that if we needed to, we had to develop a new

8

logo, we needed all new equipment, that we would be able

9

to exceed that and they would -- with permission I could

10

see to what they needed.

11

Q. And how much did you end up spending this year if you

12

recall?

13

A. I think -- there was a, there was some clerical

14

errors in the report, some were charged to the wrong

15

account, but do I include the tournament play --

16

tournament play is shown back to our budget, so I don't

17

know if that effectively reflects in our budget.

18

Q. Let's just say all together how much did you spend on

19

operating expenses for the team this year?

20

A. 130.

21

Q. 130,000?

22

A. Uh huh. (Affirmative.)

23

Q. Thank you. And did the university provide you with

24

scholarships to use in recruiting?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 38 of 132 633

1

Q. And how many of those scholarships were you provided?

2

A. I started with six.

3

Q. Six. And did you award scholarships to any of your

4

athletes in the 2009-2010 academic year?

5

A. Yes, I did.

6

Q. And how many did you choose to award in '09, '10?

7

How many athletes did you choose to give athletic

8

scholarships to?

9

A. I believe I gave ten.

10

Q. And would it help you to refer to the squad lists

11

that I think you said has your scholarship information?

12

A. Probably.

13

Q. That was in Exhibit E M?

14

A. So it's not in this book -- E?

15

Q. E as in egg. And it was D 15100 to 15102.

16

A. I don't know if I have the right place here. Got

17

you.

18

Q. So how many of your athletes received scholarship

19

funds this year?

20

A. We're talking '09, '10?

21

Q. Yes, during the academic year that just concluded.

22

A. Thirteen.

23

Q. Thirteen. Okay. Now, it looks on the squad list

24

like there were 14 athletes who got scholarship dollars,

25

is that --

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 39 of 132 634

1

A. Well --

2

Q. -- correct?

3

A. I must be clear, Katrina Lennon did not accept the

4

award and did not come out on the squad.

5

Q. You offered her the award?

6

A. Yes.

7

Q. And when did she respond to your offer?

8

A. She responded in the summer, late summer, when she

9

found out that she was not going to return and join the

10

team.

11

Q. So she was not going to join the team. And it seems

12

to indicate that the change in status is Q, August 25, is

13

that about -- does that indicate she was not part of the

14

team, that she had decided not to join that team as of

15

that date?

16

A. Yes.

17

Q. And how did you determine to whom you were going to

18

award scholarships for this year?

19

A. I based it on skill sets with the hope of obviously

20

as a coach seeing them not be, you know, be kids who are

21

off my bench and would be in good academic standing and,

22

as I said, I based it on skill sets.

23

Q. So you awarded it to the strongest athletes that you

24

had coming in?

25

A. Yes, I did. Yes, I did.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 40 of 132 635

1

Q. And did you renew the scholarships for those athletes

2

who were going to continue to be on the team next year?

3

A. Yes, I did.

4

Q. And did you award any scholarship money to any

5

athletes who were on the team this year, who are going to

6

be on the team next year but who didn't have the

7

scholarship money this year?

8

A. Yes, I did.

9

Q. And about how many of those?

10

A. I awarded five of my freshmen, my freshmen from last

11

season.

12

Q. So the kids who were freshmen this year but didn't

13

have scholarship money who going to have some next year?

14

A. Correct.

15

Q. And how many athletes from the '09, '10 team are

16

guaranteed a spot for the '10, '11 team?

17

A. I have to count.

18

(Pause)

19

Eighteen.

20

Q. Eighteen. And how many spots are you going to have

21

for the '10, '11 team?

22

A. I'm told 36.

23

Q. Thirty-six. So that leaves 18 spots. So did you do

24

any recruiting this year?

25

A. Yes, I have.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 41 of 132 636

1

Q. For athletes for next year?

2

A. Yes.

3

Q. How did you go about doing that recruiting?

4

A. Actually I didn't have to go off campus. I just,

5

being one of six varsity programs in the country I was

6

flooded with females, and so I asked them to send me

7

videos or, you know, that's -- my evaluation was by seeing

8

the video that they send to me.

9

Q. About how many kids contacted you this year about

10

being on the team next year?

11

A. Next year? Well over 150.

12

Q. And you contacted them and you communicated with

13

them?

14

A. I sent them a bio sheet which listed the skill sets

15

for me to determine. It asked a lot of information, asked

16

for coaches' contact number, asked for --

17

Q. I think I can help you with that. If you look at

18

Exhibit F H.

19

A. Same book?

20

A. Different book.

21

THE COURT: Should be the same book.

22

THE WITNESS: Am I just not good at this or

23

what?

24

THE COURT: No, actually it's in that --

25

THE WITNESS: Okay, yes.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 42 of 132 637

1

BY MS. FRIEDFEL:

2

Q. What's that document?

3

A. That is the document that when a prospective student

4

athlete emails me, I send it to them. You get that many

5

emails, you just can't spend -- I could spend my whole

6

time doing this. So I would ask them for their skill sets

7

on this bio sheet, their GPAs, their SAT scores, their

8

team position.

9

Q. And you said you'd get a video and you would review

10

that?

11

A. Well, I would review this first and if they did not

12

have the skill sets that I would entertain recruiting for,

13

I would let them know that. I would just thank them for

14

thinking of Quinnipiac University competitive cheer, and

15

then ones who had the skill sets I would request a video.

16

Q. And did you do anything else to follow up apart from

17

requesting a video?

18

A. Our sport shows up on YouTube a lot, especially when

19

the All-Star rolls around. I could literally track them

20

through this and I could follow them through the year.

21

Q. So you track some kids you had an particular interest

22

in?

23

A. Yes, you can follow them in a routine. You can see

24

how strong their tumbling is, how strong an athlete they

25

were in their position. I didn't have to go off campus;

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 43 of 132 638

1

they came to me.

2

Q. And did you make efforts to get the kids you thought

3

had the best skills skills to come to Quinnipiac?

4

A. Yes, I did.

5

Q. Are you going be awarding scholarships to any of the

6

kids that are coming in next year?

7

A. Yes, I am.

8

Q. How many scholarship offers did you put out?

9

A. I offered 13 and I believe I'm getting 10 of the 13

10

that I offered.

11

Q. And approximately how many dollars in scholarships,

12

or -- you can either put it in dollars or put it in terms

13

of total full scholarships, are you going to be dispensing

14

next year?

15

A. I awarded up to five.

16

Q. Five. Now, you said that you think you're getting

17

back ten -- ten of the scholarship kids have committed?

18

A. Yes.

19

Q. Is that right? So, that comes, if my math is right,

20

you said you had 18 returning students plus ten new

21

scholarship athletes, that gets you to 28 and then there

22

are eight spots left?

23

A. But I also rostered, I believe -- three athletes

24

without scholarships. I roster them through a skill set.

25

Q. So you guaranteed spots to three incoming students?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 44 of 132 639

1

A. Yes.

2

Q. So 31, so you've got five left?

3

A. Yes.

4

Q. And how do you plan to fill those five spots?

5

A. I'm going to offer walk-on try outs.

6

Q. And who do you anticipate is going to participate in

7

those walk ons?

8

A. I had 35 to 40 requests from the incoming students

9

that want to try out for those walk-on positions.

10

Q. And how many -- are any of the members of your

11

'08-'09 team going to have to participate in that try-out

12

next year?

13

A. Yes, they are.

14

Q. How many?

15

A. Eight.

16

Q. Eight. And that's -- why is that?

17

A. The skill set of the Freshmen coming in, you know,

18

especially in standing, running, tumbling, which is huge

19

in our sport, they are not quite there unfortunately.

20

Q. So the athletes you have coming in are just that

21

strong that they --

22

A. Yes.

23

Q. -- that they potentially are greater strength than

24

the athletes, some of the athlete on the current team?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 45 of 132 640

1

Q. And so in total, you said you had about I think, I

2

believe you said you had 35 that you -- walk-ons that are

3

going to try out next year from the beginning, from the

4

incoming class, is that right?

5

A. For four to five positions, yes.

6

Q. And how many -- do you have a sense of how many of

7

these kids have the skills that might be necessary to be

8

considered?

9

A. Too many of the skills to be considered. It's going

10

to be tough.

11

Q. So it's going to be a very competitive try-out?

12

A. Yeah, I'm going to have to really think about my

13

positions, first and foremost.

14

Q. And is it your intent to do off campus recruiting in

15

the coming year for 2010, 2011?

16

A. Yes.

17

Q. I'm sorry, to do recruiting during '10, '11 for '11,

18

'12?

19

A. Yes, I don't know how much I have to do, honestly.

20

They just start hitting me hard on the emails and their

21

coaches are too, so --

22

Q. Okay. Their coaches, meaning the kids?

23

A. The coaches from their, either their All-Star compete

24

gyms that they are in or from their high school coaches.

25

The participation numbers in this sport are at the high

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 46 of 132 641

1

school level and at the All-Star compete only level. They

2

are not cheerleaders. It's huge numbers.

3

Q. Now, Mr. Hernandez took you through your competition

4

schedule in pretty significant detail so we don't need to

5

go through all that, but you talked a little bit about --

6

I do want to show you -- excuse me. I do want to show you

7

some of your score sheets, so if we can look at Exhibit

8

F B?

9

A. Okay.

10

Q. Before we get to that, all of the teams against whom

11

you competed were teams from colleges, is that right?

12

A. Correct.

13

Q. Now, if you'll look through Exhibit F B, can you tell

14

us what these documents are?

15

A. This is the first competition we entered at the

16

Hartford Center.

17

Q. Just flip through them. I just want a general

18

description of what this set is.

19

A. We have our first -- this looks like the NCSTA form.

20

Q. You don't hae to identify each one. Just these are

21

your score sheets from your meets?

22

A. Yes, these are our score sheets from our meets.

23

Q. Now, other than the NCSTA meet which we're going to

24

talk about separately, what were the general categories on

25

which your team was judged in these non NCSTA meets?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 47 of 132 642

1

A. They are generally judged on both standing tumbling,

2

running tumbling, partner stunts, pyramids, basket tosses,

3

jumps and dance.

4

Q. And if you turn to Exhibit 12311 -- not exhibit, I'm

5

sorry, page 12311 of Exhibit F B. It's toward the back.

6

They are not actually -- I put them in chronological order

7

so it's a little bit hard --

8

A. Okay.

9

Q. It's about 3-quarters of the way through.

10

A. (Pause)

11

Q. And can you identify this score sheet?

12

A. Yes, this is the National Cheerleader Association

13

score sheet.

14

Q. Is this, where it says 45 second crowd cheer, is that

15

the crowd response portion you were talking about earlier?

16

A. Yes, it is.

17

Q. And this shows that that has a maximum value of

18

eleven points on the score sheet?

19

A. Yes.

20

Q. And the total number, if I have my math right, is

21

110, right?

22

A. Correct.

23

Q. And this is the only competition -- is this the only

24

competition in which you were judged on that criteria?

25

A. As far as the grants competition, yes.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 48 of 132 643

1

Q. But the only varsity grant competition you competed

2

in was the NCA College Nationals, correct?

3

A. Correct.

4

Q. Now, who were your competitors at that event?

5

A. Well, it changed two weeks before the season, before

6

we went down there, but our competitors ended up being

7

University of New Hampshire, Kennesaw, Townsend, UMass,

8

Amhurst and Providence College.

9

Q. And who did you anticipate your competitors were

10

going to be when you scheduled to go to that event?

11

A. The teams that had typically been in All-Girl B 1 for

12

the history of this championship.

13

Q. And who were those teams?

14

A. Maryland, Louisville, N C State, Providence, UMass,

15

Michigan, Illinois, Florida, a lot. Kennesaw. All the

16

ones that were broken down into the division they created

17

two weeks prior.

18

Q. So if you look at F J, Exhibit F J?

19

A. Uh huh.

20

Q. What are these documents? Are these the --

21

A. These are the day two finals of the final standings.

22

Q. From the NCA?

23

A. Right.

24

Q. And the documents indicate, the first page is

25

All-Girl 1 and that's the division you competed in?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 49 of 132 644

1

A. The brand new division they developed, yes.

2

Q. And the next one is All-Girl 1 A?

3

A. Yes.

4

Q. So when you planned to go to this competition, was it

5

your understanding that these things that are now 1 and

6

1 A were going to be combined and it was going to be one

7

division?

8

A. I actually asked that question last year. If they --

9

Q. When --

10

A. It was my understanding we would all be part of it.

11

Q. Right, that was going to be one division?

12

A. One division.

13

Q. All right. And when did you find out that that was

14

going to change?

15

A. Two weeks prior to the competition.

16

Q. So when you scheduled this event, your plan was to be

17

competing against University of Maryland and University of

18

Oregon, is that right?

19

A. All of these teams, correct.

20

Q. And Maryland and Oregon are varsity teams, is that

21

right?

22

A. Correct.

23

Q. And the NCA college national championship is run by

24

Varsity Brands, right?

25

A. Yes, it is.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 50 of 132 645

1

Q. And that's Jeff Webb's company?

2

A. Yes, it is.

3

Q. All right. Let's talk about something near and dear

4

to your heart now. The NCSTA meet format.

5

A. Okay.

6

Q. What does a -- let's turn to Exhibit 44 in the

7

plaintiff's exhibit binder.

8

A. Am I going to need this one again?

9

Q. I don't think so. Forty-four?

10

A. Okay.

11

Q. What's that document?

12

A. This is a document about how we're developing the

13

NCSTA extension meet format.

14

Q. Approximately when was this document finalized?

15

A. I think this document was -- we just recently had an

16

additional meeting down in Maryland so I don't know if

17

this is the newest one, to tell you the truth. We've been

18

working on scoring system and a meet format all year long,

19

so I believe this is probably before we were at Kennesaw

20

meet finalized. Sometime in January.

21

Q. So this was the -- was this the format that you

22

competed in in Kennesaw in --

23

A. Yes.

24

Q. -- in February? So this document describes that

25

format?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 51 of 132 646

1

A. Yes, it does.

2

Q. Okay. And can you tell the court what a NCSTA meet

3

consists of?

4

A. An NCSTA meet consists of six different events. One

5

would be the team routine -- one would be the team routine

6

and then there would be five additional events to that,

7

all with separate heats. There would be a compulsory

8

event, there would be partner stunt event, there would be

9

a tumbling event, a basket toss event and the team routine

10

event.

11

Q. And are there different heats or rounds within each

12

of those events?

13

A. There's different heats in each of those events, yes.

14

In the compulsory event, for instance, there's 40 points

15

accessed in the compulsory round and there is a partner

16

stunt event, a tumble event, a basket event and a pyramid

17

event.

18

Q. So, within the compulsory round, there is a component

19

for each of these events?

20

A. Yes, there is.

21

Q. Then you said there's also a sort of separate round

22

for each of these events, is that right?

23

A. Yes.

24

Q. And that's an optional round?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 52 of 132 647

1

Q. And how does the -- what are the requirements for the

2

compulsory round? Let's start there.

3

A. The requirement in the compulsory round, every team

4

is basically, it's apples to apples. We decide to use the

5

compulsory round to use progression in our sport but we

6

all exhibit the same skill. For instance, in the basket

7

round, we all do a basket as our skill. It compares

8

apples to apples.

9

We all do a four two one pyramid round. We all do

10

the same pyramid using the same amount of athletes on the

11

floor. In the tumbling round we do basic standing

12

tumbling which is eight athletes the floor doing standing

13

tucks to hand spring tucks to toe backs to hand spring

14

layouts.

15

Q. And does the whole team compete in each one of these

16

rounds and events?

17

A. No, you pick your best athletes by their position and

18

their skill set and you'll put them in your heats.

19

THE COURT: How many athletes compete?

20

THE WITNESS: Well, every heat has a different

21

amount of athletes but we travel with 28.

22

THE COURT: Okay. I'm looking at the rules,

23

Exhibit 44, and it says the pyramid event up to 20

24

athletes, tumbling event --

25

THE WITNESS: We've had revisions.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 53 of 132 648

1

THE COURT: -- requires eight. Time event, up

2

to 36. I'm trying to get a sense how many Quinnipiac

3

cheer team members actually compete in that particular

4

meet.

5

THE WITNESS: Between 24 and 28.

6

THE COURT: Okay.

7

BY MS. FRIEDFEL:

8

Q. Mary Ann, let's just clarify. You said there were

9

revisions; the 24 to 28 rule, when does that come into

10

play?

11

A. The 24 rule, after our meeting down in Maryland in

12

May we had to vote whether the team routinely would be 24

13

athletes in the team or 28 and it was voted 24.

14

Q. Okay.

15

A. So --

16

Q. So for this year though was there a limitation on the

17

number of athletes who could compete?

18

A. No.

19

Q. On the team?

20

A. No.

21

Q. Okay. We're going to show, with the court's

22

permission, a little -- this is some excerpts that we took

23

out of a video of the Kennesaw meet that we've been

24

talking about. So --

25

THE COURT: How do you want to mark that?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 54 of 132 649

1

MS. FRIEDFEL: It's marked, I have a DVD I can

2

give you but it's marked as Exhibit F E.

3

THE COURT: F E.

4

MS. FRIEDFEL: Yes.

5

(Pause)

6

THE WITNESS: I don't know if you can make that

7

any bigger because that's far for me.

8

MS. FRIEDFEL: No, no, no, it's going to be

9

bigger. Don't worry about it.

10

(Video played)

11

BY MS. FRIEDFEL:

12

Q. Now, what is this?

13

A. The introduction of the athletes. They do their warm

14

up in our meet in front of the crowd.

15

Q. (Pause)

16

Which round is this?

17

A. This is the compulsory round, the compulsory partner

18

stunts round.

19

Q. Is that Quinnipiac?

20

A. Quinnipiac is in the far left, correct.

21

Q. (Pause)

22

Which round was that?

23

A. That is the compulsory basket.

24

Q. (Pause)

25

How about this one?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 55 of 132 650

1

A. The option the pyramid.

2

Q. That's Quinnipiac?

3

A. That's Quinnipiac, yes.

4

Q. (Pause)

5

What was that one?

6

A. The compulsory basket.

7

Q. (Pause)

8

Which round was that?

9

A. That was the compulsory tumble. It's not over yet.

10

There's more to it than that.

11

Q. (Pause)

12

Now, all the different teams seem to be doing the

13

same things?

14

A. It's the compulsory round in tumbling.

15

Q. So each team does the same?

16

A. Each team does the same thing in the compulsory

17

round, yes.

18

Q. (Pause)

19

Which round is this?

20

A. This is the optional tumble. This -- you can't beat

21

that one.

22

Q. (Pause)

23

Which event is this?

24

A. This the team routine.

25

(Video ends)

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 56 of 132 651

1

MR. HERNANDEZ: Your Honor, could we have an

2

indication from counsel as to what was excerpted? I think

3

she mentioned it was an excerpted video. Just let us know

4

what has been taken out.

5

MS. FRIEDFEL: The full meet took several hours

6

and we didn't think the court wanted to watch several

7

hours. We just took samples. You have, you have the full

8

video because we produced it so you should know what the

9

excerpts are. There should be no question about what we

10

put in and took out.

11

BY MS. FRIEDFEL:

12

Q. And these events, this event is scored, is that

13

right?

14

A. Yes.

15

Q. The NCSTA meet?

16

A. Yes.

17

Q. How many judges are there?

18

A. There will be five officials in the meet format.

19

Q. And what are their roles?

20

A. The head judge is in charge of any discrepancies in

21

the score and for execution. We have two execution

22

officials, one production official and one value official.

23

Q. And are there certain difficulties applied to the

24

different skills?

25

A. Well, what we do is we have a predetermined value

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 57 of 132 652

1

which is based on difficulty. So, our software's being

2

developed right now but even issued manually, we enter our

3

skill set ahead of time and each had a difficulty value

4

assessed to them. So when you're watching a different

5

round in a different heat in a different event, those --

6

it's real time scoring. The scoring is up as much like in

7

gymnastics and in figure skating. There will be a score

8

that's based on difficulty that is immediately attached

9

and predetermined and goes up on the board.

10

Q. And then what is the secondary part of the --

11

A. The official can, the other officials judge the

12

execution and every single heat has a different skill set

13

so they would be -- their execution, their judging would

14

be things like, in the basket round they might be judging

15

the height of the basket, the aerial maneuvers done in the

16

basket. In the partner stunt round it may be flexibility,

17

looking at the strength of the bases, looking at was there

18

a miss on it, a bobble on it. Was there stability in the

19

stunt. Flyer's body position; flyers have to be

20

completely flexible in the sport.

21

So those judges are only judging the execution of the

22

stunt because the difficulty value has already been

23

awarded to that.

24

Q. And just to draw your attention in Exhibit 44, just

25

want to draw your attention to page 0875 -- something.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 58 of 132 653

1

Unfortunately the bate numbers were cut off?

2

THE COURT: Yes, 0875.

3

MS. FRIEDFEL: Is that it? Okay.

4

BY MS. FRIEDFEL:

5

Q. Does that page go through all of the -- or tell me

6

what this describes?

7

A. This describes the various events and rounds. So we

8

have the stunt, the basket tosses, the pyramid and the

9

tumbling, where execution is scored and how you assess,

10

how the judge would look and base that score based on the

11

skill executed.

12

Q. And the next page where it says stability, what is

13

that?

14

A. Stability is making sure that the flyer holds good

15

body position, that it stays in the air, that there's no

16

falls to the ground, there's no miss. How the base

17

players match up to each other to hold that skill steady.

18

Q. And the next category is height?

19

A. Uh huh. On this you see that average, so this was

20

usually probably applied to baskets or a transition in a

21

pyramid or in a partner stunt. If there's little

22

clearance over the base's head they are going to get an

23

average score in there which would fall in the five to six

24

range because the bases quite frankly weren't doing their

25

job. They weren't using their arms to load that flyer

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 59 of 132 654

1

through and give her what she needs to get, make full

2

extension on that.

3

Q. The next page goes through a few more categories?

4

A. Yep. There's elements in the meets that some -- in

5

the team routine, for instance, synchronization is key, to

6

have all these five partners stunt groups hitting those

7

things at the exact same time.

8

Technique. Technique situation in a basket toss, for

9

instance, would be does the flyer remains set when the

10

bases dip. Does she not dip -- does she dip when they

11

dip? She should not. If she does, she's going to take

12

several feet off that basket.

13

The flexibility. The flexibility would be on their

14

body positions. We have certain, the flyers and partner

15

stunts have certain body positions up in the air, much

16

modeled after ice skating and gymnastics.

17

Q. And if you look at the next few pages, does that

18

illustrate the flexibility positions?

19

A. Yes, it does, on each skill, on all varied skill sets

20

of the flyer.

21

Q. And were these materials distributed to the judges in

22

advance of your competition?

23

A. We had officials training prior to the Kennesaw meet

24

and prior to every meet there was skill training, judging

25

training of the officials involved.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 60 of 132 655

1

Q. Now, if we go -- I'm sorry to flip you back but in

2

F B?

3

A. Again it's not this book. Okay.

4

Q. It's bate stamp 1692 to, I think you said earlier you

5

saw the score sheets from Kennesaw?

6

A. What was the page on that?

7

Q. I think it's 621932.

8

THE COURT: It's toward the front. It's about

9

eight pages in. There you go.

10

THE WITNESS: Okay.

11

BY MS. FRIEDFEL:

12

Q. What is that?

13

A. This is the scoring sheet for, these are Quinnipiac

14

scores as reflected, and I believe this would be the

15

Kennesaw meet.

16

Q. And that goes through each team and each event?

17

A. Yes, it does. The team event scores of each team

18

that we competed against, yes.

19

Q. All right. And if you continue the other page, does

20

that include the scores of each of the events for each of

21

the teams?

22

A. Yes, it does.

23

Q. All right. Now, we're going to go to Exhibit F G, as

24

in George.

25

A. Okay.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 61 of 132 656

1

Q. What's this document?

2

A. This is the document upon our final meet, our last

3

meeting down in Maryland.

4

Q. This is a report of the coaches meeting or somebody

5

else?

6

A. It's a report of -- we've made, where as we -- as we

7

propel this sport forward, we realized there are things we

8

can do better, and we have a road ahead of us to work on,

9

so that was a meeting that reflected, these are the notes

10

of everything we worked on prior to going there and when

11

we got back, Maryland's coach put together what we had

12

worked on and done in Maryland.

13

Q. I just want to highlight a few things in here. Well,

14

first of all, I should say the document is titled

15

Recommendations. Were the coaches' recommendations that

16

are contained in the document adopted or --

17

A. Well, we had our, we each had different duties that

18

were assigned to us, and we went down there to discuss

19

things and to, to table things, to vote on them, things we

20

know we can vote on as coaches that applied to scoring,

21

and then there are certain things that our administration

22

votes on.

23

So there's a conference call preceding our meeting

24

with our administrators on certain things that had to be

25

voted on; for instance, travel team size for the next

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 62 of 132 657

1

coming season.

2

Q. That was something that the administrators need to

3

decide?

4

A. It had to be recommended what we were going to do.

5

We had to make a decision on what was the best amount of

6

kids to put in a team routine, and we had to know it was

7

would between 24 and 28. The final number decided for

8

budget travel was 24.

9

Q. That was the number for the team routine?

10

A. That's the number for team routine.

11

Q. Okay. And are there any -- is there anything in this

12

document that you're aware of that has not been adopted?

13

A. I know there's still some things that have been

14

tabled, like injury during a routine, how -- we attempted

15

to take a vote on that. If there was an injury during the

16

team routine, would there be time assessed to that squad.

17

And I think it pretty much won, there was a four to two

18

vote on it, but we're still working on the challenges of

19

that.

20

Q. But pretty much everything else in here has been

21

adopted for the '10, '11 year?

22

A. For the most part.

23

Q. Okay. I just want to highlight a few things. You

24

mention the software program; you don't have a software

25

program for your statistics this year?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 63 of 132 658

1

A. We had a scoring system but not a software program.

2

A software program is going to help us in many ways with

3

our statistics for the season and with our realtime

4

scoring. So on the night before, 48 hours before my team

5

competes, I can get into that software and to my athletes

6

competing in the Sanction format and then in every event,

7

in every heat of every event, enter their skills and it

8

computes those predetermined values on the skills, are in

9

the system.

10

So it's just going to make realtime scoring that much

11

easier and then it's going to be able to determine stats

12

during the year. I can track my athletes for

13

determination of -- for all -- we're going to name --

14

4 percent kids in the sport are going to be named to

15

All-American status.

16

Q. So you're going to maintain statistics on each

17

individual athlete?

18

A. Yes, I am.

19

Q. How is that going to work?

20

A. Well, for instance, if one of my players was involved

21

in 17 events, in varied heats, and she had 15 hits, she

22

had the opportunity to have 17 hits but she only had 15,

23

if she scores in the top 4 percent against the another

24

universities employed in the meet format, she might be

25

eligible for All-American status.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 64 of 132 659

1

Q. And that software, is that going to be ready for the

2

'10, '11 season?

3

A. I think it's ready right now. I think our

4

administrators probably have had a phone call on the

5

shared cost of that.

6

Q. Have you developed your schedule for 2010, '11 yet?

7

A. Yes, I have.

8

Q. And is this page 15831, does this reflect your

9

schedule for next year?

10

A. This reflects the schedule of the meet formats.

11

Q. The NCSTA?

12

A. The NCSTA for meets, yes, the varsity programs.

13

Q. Looks to to me like you have five regular season

14

meets scheduled, is that right?

15

A. We actually are adding one more onto that, a home

16

meet on that.

17

Q. What is home meet?

18

A. We have been approached by both the University of New

19

Hampshire and Rutgers to compete in meet format with us.

20

Q. So you're going to host a NCSTA meet?

21

A. We believe that for the growth of the sport it's

22

necessary, and so many teams from various universities

23

want to compete in this format. So Rutgers University and

24

New Hampshire have approached me, I've talked to Central

25

Connecticut's coach too, as well, so we're talking about

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 65 of 132 660

1

putting together a meet in January to add to the schedule.

2

Q. So you'll have six NCSTA regular season meets?

3

A. Six regular NCSTA regulars meets and then the post

4

season, national championship at Oregon.

5

Q. And so there's going to be a national championship

6

for the NCSTA?

7

A. At the University of Oregon.

8

Q. At the University of Oregon.

9

Q. What's the format of that going to take?

10

A. How is that formulated to the girls or --

11

Q. Well, how is it going to be structured?

12

A. In the NCSTA meet format.

13

Q. And is that going to be a tournament?

14

A. It's going to be -- the travel day would be

15

Wednesday. Thursday would be the practice and the display

16

round. Friday, there will be two heats to get by and then

17

five supported by three, the winners of that will move on.

18

On Saturday and Sunday will be finals. But we're also

19

going to have an event final on the morning --

20

Q. Slow down.

21

A. I'm sorry.

22

Q. At the end of the teams -- poor Susan can't type that

23

fast. At the end of the tournament for the brackets you

24

were talking about, those were going to the whole team

25

competing in the meet format, is that right?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 66 of 132 661

1

A. Yes.

2

Q. Okay. And at the end of that, the winner of that

3

would be -- well, they would be the national champion, is

4

that right?

5

A. Yes.

6

Q. That would be the whole team.

7

A. Yes.

8

Q. And is there a way for individuals to have --

9

A. Yes. On the morning of finals for the national

10

championship, there will be an event final with all the

11

various heats and the four top scores in every single heat

12

can move on into the event finals.

13

Q. And so that there will be an event final for each --

14

A. There will be a national championship for a partner

15

stunt group, there will be a national championship for a

16

tumbling pass, there will be a national championship for

17

basket toss group.

18

Q. And who's going to be eligible to compete in those

19

individual stunt championships?

20

A. For this season, only NCSTA teams and in the

21

foreseeable future, it will allow other teams. We're

22

hoping as we -- obviously we gained other teams, they

23

might not qualify for the national championship but they

24

can qualify for an individual round.

25

Q. So, the intent -- I just want to make sure I

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 67 of 132 662

1

understand. The intent is to allow, even if in the

2

future, if a team may not be nationally ranked, an

3

individual athlete or an individual small group of

4

athletes could become nationally ranked?

5

A. Correct.

6

MS. FRIEDFEL: I don't think I have anything

7

else, Your Honor.

8

THE COURT: Okay. Redirect?

9

REDIRECT EXAMINATION

10

BY MR. HERNANDEZ:

11

Q. Ms. Powers, where does the competitive cheer team

12

practice?

13

A. Where do we practice? We practice this year at

14

three, dependent upon what is going on at the university,

15

at three different places but mainly court four of the Rec

16

Center.

17

Q. Is that the same as the Burt Kahn court?

18

A. No -- well, it's in the same building but Burt Kahn

19

is the old gymnasium and the Rec Center is adjunct to

20

that.

21

Q. Okay. And do you do any work in the Burt Kahn

22

courts?

23

A. We have practiced in Burt Kahn.

24

Q. How many times did you practice there?

25

A. I don't even know that I can give you a -- maybe this

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 68 of 132 663

1

season, maybe ten or 12 times.

2

Q. Ten or 12 times. Is there a new sound system in the

3

Burt Kahn court?

4

A. I don't know.

5

Q. You don't know. I think you mentioned earlier that

6

one of the goals of the NCSTA is to get recognition by the

7

NCAA, is that correct?

8

A. That's our mission statement, yes.

9

Q. Okay. And are you also seeking recognition by the

10

NEC, the Northeast Conference?

11

A. We have got to garner more performance in the area

12

for that.

13

Q. But is that something that you would like to have

14

happen?

15

A. I would love for that to happen. I would love for

16

everybody to pick this sport up.

17

Q. Okay. And so I take it that you think that

18

recognition by the NCAA is important for your sport?

19

A. Most certainly.

20

Q. Okay. And if your proposed sport were accepted by

21

the NCAA, that would enhance the status of competitive

22

cheer, would you agree?

23

A. I would think so.

24

Q. All right. And would you agree that would also

25

enhance the status of your competitive cheer athletes?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 69 of 132 664

1

They could say, hey, we're NCAA recognized now?

2

A. Maybe that's a question for them. I think it's been

3

a hope for them for a long time to be recognized just as

4

athletes, period, in this sport. I mean this week I got

5

phone calls from my kids upset that the media has

6

portrayed the Dallas Cowboy cheerleaders in the media and

7

that's not what they are and not what they do.

8

So, to be recognized as an NCAA athlete but, more

9

importantly, on our campus the recognition that they've

10

gotten, the pride they feel to be on this team and honored

11

by their university and being student athletes, it's been

12

an incredible experience for each and every single one of

13

them.

14

Q. And the same would be true about NEC status; that

15

would enhance the --

16

A. I've never even thought about that. It's never

17

been -- I've never even entertained that.

18

Q. Okay. The NCSTA rules as I understand it, in

19

different events, and putting up a copy of Exhibit 44,

20

bate stamp number 869, that's the second page of the

21

exhibit.

22

Do you understand that in the pyramid event you can

23

have up to 20 athletes?

24

A. We can have up to 24 athletes in the pyramid event.

25

Q. Up to 24 now, so that's changed?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 70 of 132 665

1

A. That's changed, yes.

2

Q. What's the fewest number of athletes you can have for

3

that event?

4

A. What would be the fewest number?

5

Q. Uh huh.

6

A. Guess that's up to the coach on every single team. I

7

don't know why they'd use fewer.

8

Q. Okay, so -- and is that event a necessary part of the

9

presentation or competition?

10

A. The pyramid?

11

Q. Yes.

12

A. Exceptionally, yes.

13

Q. Okay, and so what I'm hearing is at least for the

14

pyramid event, under NCSTA rules a school can field up to

15

24 athletes but as few as -- how many can you --

16

A. You really can't build the structures you saw on that

17

tape without having the athletes on the floor with --

18

including the spotting.

19

Q. But it's, ultimately it's up to the coach to decide

20

how many athletes?

21

A. Because we have to hit three body structures. We

22

have to do three body structures for the 30 points in that

23

round. I can't imagine us using less than 24 now and

24

getting a good -- when we talk about that predetermined

25

difficulty score, you're just not going to get the

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 71 of 132 666

1

difficulty score without those kind of athletes engaged in

2

that.

3

Q. I'm referring to the rules right now; as far as the

4

rules are concerned, you could go with fewer than 24?

5

A. You know, I don't know that. That's a good question.

6

I will certainly have to go return to my colleagues and

7

ask that.

8

Q. Okay. So you'd agree that that's -- no pun

9

intended -- it's up in the air at this point?

10

A. No, I wouldn't agree with that. I might not know

11

that, I left Maryland's conference early, but I would

12

never understand why another coach would use less than 24

13

athletes in that event.

14

Q. You'd agree the rules don't say you have to have no

15

fewer than X number of athletes?

16

A. I'm saying I don't know that.

17

Q. Okay. The tumbling event -- all right, sorry.

18

Team event, optional, says teams may use up to 36

19

athletes.

20

A. Correct.

21

Q. Can you use fewer than 36 athletes?

22

A. The team event has changed for this year. The team

23

event is 24 athletes.

24

Q. Okay. And do you know if the rule says that they can

25

use up to 24 athletes?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 72 of 132 667

1

A. The rule says that we can use 24 athletes in team

2

events, yes.

3

Q. Up to 24?

4

A. Yes.

5

Q. Okay. So you can show up with fewer than 24?

6

A. Nobody would. I'm trying to -- again, possibly if

7

things are reestablished, but there are 24 in the event.

8

Q. I'm trying to understand a little bit more about

9

money that was paid out in '09, '10. And I think at your

10

deposition you referred to them as stipends, these

11

payments?

12

A. Yes, I did.

13

Q. You refer to them as stipends?

14

A. I did.

15

Q. What do you mean by stipends?

16

A. I didn't mean that. I think I established that

17

yesterday I didn't mean that. It was the award. My

18

roster size is large and the first year of scholarships I

19

only awarded one and-a-half, so that in future I could

20

recruit strategically so that was also with the thought

21

process of every single year if I, for instance, gave an

22

athlete an award that was maybe five or 6,000-dollars, by

23

the time she was a senior that would be elevated upon her

24

progress in the sport.

25

Q. Are any of the competitive cheer athletes required to

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 73 of 132 668

1

compete in any other sports as a condition of being

2

competitive cheer athletes?

3

A. I'm not sure I understand your question.

4

Q. All right. For example, do you require competitive

5

cheer athletes to compete in any other sports?

6

A. Do I?

7

Q. Yes.

8

A. They can't.

9

Q. The answer is no?

10

A. The answer is no.

11

Q. I think you mentioned that you've been doing some

12

recruiting via email and videos, correct?

13

A. Correct.

14

Q. And you're recruiting high school students?

15

A. I'm recruiting -- well, they are all coming from high

16

school but you mean from high school programs? Is that

17

what you're asking?

18

Q. Correct.

19

A. I'm recruiting both. The high school numbers in the

20

sport I think are reported at 200,000 kids participating

21

in high school cheer. But in the All-Star program there

22

are a lot more training in those programs because they

23

don't know what sideline cheer is, so they have gymnastic

24

instructors, and also those gyms are opening up their gyms

25

to teaching gymnastic instruction for the sport of cheer

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 74 of 132 669

1

to high school students. So we are seeing a good balance

2

there. But I'm recruiting from both, All-Star and high

3

school.

4

Q. Okay. As I understand it, the NCSTA sponsors only

5

collegiate competitive cheer events, is that correct?

6

A. Yes.

7

Q. So, in other words, the NCSTA does not have any high

8

school level competition?

9

A. No.

10

Q. All right. What does --

11

A. I'm sorry, there has been, there's been professed

12

interest. Michigan high schools have been using a format

13

of this since in the State of Michigan they are a varsity

14

sport. High schools have approached Oregon's coach

15

because they want to pick up this format for head on

16

competition. And I was approached by New Hampshire asking

17

us if we'd speak to them about picking this form of

18

competition up. So we know that there's talk about high

19

schools looking to the format.

20

Q. Okay. And of the high school students who are

21

sending you emails, how many of them have competed under

22

the NCSTA format?

23

A. The high schools?

24

Q. Yes, the high school students who are sending you

25

emails of interest?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 75 of 132 670

1

A. They've competed in skill sets that are off the

2

format.

3

Q. And what does NCSTA propose to name this new sport

4

activity?

5

A. Currently it's competitive cheer.

6

Q. Okay. And is there some dispute over whether NCSTA

7

should use the word cheer?

8

A. There is, there is.

9

Q. There is?

10

A. Yes.

11

Q. And what's that all about?

12

A. I would say even media on it this week would prove

13

that, that there's a stereotype that just won't go away.

14

You know, there's -- that stereotype exists in this sport.

15

I think Mr. Webb called it classical cheerleading. It

16

hasn't been classical cheerleading for decades. These

17

sideline teams, that's not classical if you're doing it on

18

the sidelines. There's nothing classical about it.

19

Q. And just so we're clear, you use the term competitive

20

cheer, correct?

21

A. We use the term competitive cheer, correct.

22

Q. Does NCSTA, has it settled on competitive cheer as

23

the name of its sport --

24

A. We have a vote that it currently has been competitive

25

cheer but we still have not resolved the issue of whether

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 76 of 132 671

1

the name needs to change.

2

Q. Okay. So now, as I understand it, you're recruiting

3

high school student athletes to compete in, in a sport

4

that they have not competed in previously.

5

A. No. We're, we're not asking that.

6

Q. Okay.

7

A. The high school athletes are members of All-Star gyms

8

and there are 300,000 kids in this country competing those

9

skills. I don't think the format changes the skill set or

10

what they are trained for. They are trained in floor

11

gymnastics, they are trained in those stunts. So I don't

12

think the format changes the skill set.

13

And even when you go to different companies, for

14

instance, if you were to go to a cheer sport event, they

15

would do a tumbling round down there. Sean Johnson from

16

the, our Olympic medalist Sean Johnson is the spokesperson

17

for the sport. I mean I don't think that the skill set

18

changes because of the meet format.

19

I think the meet format, we developed it to speak to

20

an intercollegiate contest in a head-on between two

21

schools at the same time. But the team routine is a

22

favorite part of this sport and it's one that's highly

23

recognized and it has all the components of the team

24

routine in it broken down so you could see it better and

25

value it better.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 77 of 132 672

1

Q. And how many schools compete in the NCSTA format

2

within the Northeast Conference? Within the area covered?

3

A. We've been talking about that, we don't have that

4

answer since the varsity sports don't know whether they

5

are going to do that yet. And Maryland will be a bus trip

6

for us; they are the next closest.

7

Q. Is Maryland within the NEC, do you know?

8

A. No, Maryland's not within the NEC.

9

Q. They are not?

10

A. No.

11

Q. All right. So Maryland would be the closest school

12

where QU would compete in the NCSTA format?

13

A. You mean when we travel?

14

Q. Correct.

15

A. Unless, again, unless Dartmouth makes the decision

16

whether to compete in this format.

17

Q. Okay, but as of right now --

18

A. As of right now it's Maryland.

19

Q. -- Maryland is the closest?

20

A. Yes.

21

Q. What is the next closest?

22

A. Probably Fairmont.

23

Q. And where is Fairmont?

24

A. I think it's in West Virginia.

25

Q. West Virginia?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 78 of 132 673

1

A. Yes.

2

Q. I don't think anything is close in West Virginia.

3

A. You asked me what would be the next closest; I just

4

answered.

5

Q. It was a joke.

6

A. Okay.

7

Q. What about after West Virginia? I didn't say it was

8

a good joke.

9

A. Okay.

10

Q. What's the next closest after West Virginia?

11

A. I'm trying to think about --

12

Q. If you had the schedule, would that help?

13

A. Probably Oregon.

14

THE COURT: Georgia.

15

A. No, no. Pardon me. Baylor.

16

Q. Baylor, and that's in Texas?

17

A. Yes.

18

Q. Okay. All right, and what about Georgia?

19

A. Georgia is a club team. They are not a part of the

20

NCSTA.

21

Q. So they are not NCSTA?

22

A. No.

23

Q. So, in order of closest, it would be Maryland, West

24

Virginia and then Texas?

25

A. Correct.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 79 of 132 674

1

MR. HERNANDEZ: I have no other questions, Your

2

Honor.

3

THE COURT: All right.

4

MS. FRIEDFEL: Your Honor, may I ask a few more

5

questions? She's our witness but he called her first so

6

if I could have just a few redirect questions?

7

THE COURT: Sure, let me ask one first.

8

MS. FRIEDFEL: Sure, by all means.

9

THE COURT: Thank you.

10

You were describing the NCSTA championship

11

format and the tournament and so forth and it was unclear

12

to me whether teams other than NCSTA or college varsity

13

teams were going to be permitted into that championship,

14

either as a team or for individual or small group events.

15

THE WITNESS: Okay. I have had that, our

16

administrators -- that was an administrative vote. I

17

don't believe for the championship it is but I don't know

18

about the events. Are you talking for this coming season?

19

THE COURT: Right.

20

THE WITNESS: I don't -- they just had a

21

conference call last week and I don't know the answer on

22

the event, the event preceding the national championship.

23

THE COURT: Okay, so you talked about having

24

both, the possibility of individual or small group

25

rankings and so forth?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 80 of 132 675

1

THE WITNESS: Uh huh. (Affirmative.)

2

THE COURT: Would those folks proceed to the

3

NCSTA tournament in some way or is that --

4

THE WITNESS: That's what I think that the vote

5

was on.

6

THE COURT: So that's unclear.

7

THE WITNESS: I've not been made aware yet.

8

THE COURT: All right. But in terms of the

9

college teams actually participating in that championship,

10

it's only going to be --

11

THE WITNESS: This year, yes.

12

THE COURT: It's only going to be NCSTA --

13

THE WITNESS: This year, yes.

14

THE COURT: -- teams. Okay. Thank you.

15

RECROSS EXAMINATION

16

BY MS. FRIEDFEL:

17

Q. Earlier Mr. Hernandez asked you about your trainers

18

and whether you traveled with the trainers?

19

A. Yes.

20

Q. Were those trainers available at the meets that you

21

competed at?

22

A. Yes.

23

Q. So the meet provider provides trainers?

24

A. Oh absolutely.

25

Q. Okay. And in terms -- he asked you some questions

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 81 of 132 676

1

about where you practice and where you play. What do you

2

need in order to practice in terms of a facility?

3

A. What do we need? We need nine mats. We need nine

4

mats that roll up into cylinders. So, for instance, if

5

we're scheduled in the Rec Center and something's coming

6

in and the gym is available on that day, we can roll them

7

up -- they are attached with velcro, we can roll them up

8

and bring them down the hall, roll them down the hall,

9

bring them down the hall.

10

Q. So you can practice in the Rec Center and you can --

11

and you practice sometimes in Burt Kahn, is that right?

12

A. Yes, we do.

13

Q. And you're -- the competition that you held in

14

February, the big event, where was that held?

15

A. That was held day one down in Burt Kahn, and then day

16

two up at T D Bank.

17

Q. So you can compete at the T D Bank north center, the

18

way it's currently configured?

19

A. Yes, you just bring in nine mats.

20

Q. Okay, now --

21

A. You'll -- excuse me, you need a mat for the warm up

22

center as well. You have a warm up floor and then your

23

separated floor.

24

Q. But you don't have to do anything to the T D North

25

Center to reconfigure it in any way physically so you can

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 82 of 132 677

1

--

2

A. No, you put the mats down.

3

Q. And with respect to the number of athletes that

4

compete, you said that the new rule for the NCSTA is that

5

you travel with 28?

6

A. Uh huh. (Affirmative.)

7

Q. And you have 24 as the max on the team, right?

8

A. Right.

9

Q. Those other four athletes, do those four athletes get

10

to compete?

11

A. Actually yes, and I'm hoping to recruit for that a

12

little more strategically because in our tumbling round,

13

we have, for instance, an aerial, an aerial pass which is

14

going to really require a tumbler with really great front

15

tumbling skills, do arabians, punch runs. She might be in

16

some of the tumbling heat but might not be in the team

17

routine. There can be two of them in that position that

18

out of the 28, 26 -- it could be all 28 of them, I don't

19

know. They might all compete.

20

Q. So you can have specialist athletes who would compete

21

in the individuals versus others who would compete in the

22

teams?

23

A. Absolutely.

24

Q. Can you swap in some of the specialists into the team

25

if you need to?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 83 of 132 678

1

A. Absolutely.

2

MS. FRIEDFEL: I don't have any other questions.

3

THE COURT: Thank you, you're excused.

4

THE WITNESS: Thank you.

5

(Witness excused)

6

THE COURT: Why don't we take our morning break

7

until -- why don't we say until quarter after.

8

MR. ORLEANS: Your Honor, before we take the

9

break, let me just give the court some information on the

10

schedule that I hope will be welcome. The plaintiffs have

11

elected not to call Dr. Yiamouyiannis who was scheduled to

12

be our next expert. We advised defense counsel of that

13

last evening. So which means that after the break we'll

14

be calling Coach Sparks, and then the plaintiffs will be

15

through.

16

I've been informed, advised by defense counsel

17

that they would prefer then -- and we have no objection to

18

this because of the late notice -- they would prefer to

19

then to break for the day in order to call their witnesses

20

tomorrow. But I thought the court might like to know that

21

in terms of planning your own time.

22

THE COURT: That's great. I can get something

23

done.

24

MR. ORLEANS: This counts as getting something

25

done, Your Honor, doesn't it?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 84 of 132 679

1

THE COURT: I guess so. Who are your witnesses?

2

MR. BRILL: Tomorrow it will be Tracy Flynn who

3

is the compliance officer. And Rick Seely will be very

4

short. He's the woman's ice hockey coach.

5

THE COURT: Okay. Let me ask whether either

6

side might want to call the track coach.

7

MR. BRILL: The track coach. You have her

8

deposition, Your Honor, because she gave birth just a

9

couple weeks ago.

10

THE COURT: Oh, that's right. All right.

11

MR. BRILL: Unfortunately she can't leave a

12

newborn just like a week and-a-half, two weeks old.

13

MS. FRIEDFEL: That wouldn't be nice at all.

14

MR. BRILL: Could I mention one other thing,

15

Your Honor?

16

THE COURT: Where do I find her deposition?

17

That's what you want handed up.

18

MR. BRILL: Yes.

19

THE COURT: All right, I have it right here.

20

Thank you. I haven't read it yet obviously.

21

MR. BRILL: May I mention one other thing, Your

22

Honor? I told Mr. Orleans this morning that in light of

23

their decision not to call Dr. Yiamouyiannis, that there's

24

about ten page excerpt from her deposition and three

25

questions from her report that we'd like to offer. They

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 85 of 132 680

1

are not really, it's really not the expert opinion

2

portion. It's the testimony as to the facts with respect

3

to the NCAA rules on emerging sports. Actually responsive

4

to the question that Your Honor had asked the other day

5

about whether a men's squash team counts and so on. They

6

had designated her as an expert on this, she submitted a

7

report on this, we relied on that testimony being in the

8

record. And, in fact, I think the law is very clear that

9

once she gives her report and is deposed, it's just like

10

any other witness. Since she apparently is unavailable,

11

it's pretty clearly admissible and we just handed those

12

short excerpts to the plaintiffs so they can see what

13

we're talking about.

14

THE COURT: Well, is the plaintiff offering her

15

report?

16

MR. ORLEANS: I had not believed, Your Honor,

17

that we could offer her report without making her

18

available to testify.

19

THE COURT: Well, is there any objection to

20

doing that?

21

MR. BRILL: Absolutely.

22

MR. ORLEANS: I anticipated that.

23

THE COURT: Okay.

24

MR. ORLEANS: And I have not yet had an

25

opportunity to review the segment of her report or the

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 86 of 132 681

1

segment of her deposition transcript that defense counsel

2

would like to introduce so I'd like to respond to that a

3

little later on after I've had a chance to look at it.

4

THE COURT: Okay.

5

MR. ORLEANS: We may or may not object to the

6

defense proposal on that.

7

THE COURT: All right. Well --

8

MR. ORLEANS: Okay.

9

THE COURT: Well, good. All right, we'll see

10

you at 11:15.

11

MR. ORLEANS: Thank you, Your Honor.

12

(Whereupon a recess was taken from 11:00

13

o'clock, a. m. to 11:20 o'clock, a. m.)

14

THE COURT: Quick question on the schedule. Is

15

it counsel's anticipation that the defense case will

16

finish early enough tomorrow to do your arguments at the

17

end of the day tomorrow?

18

MR. BRILL: Well, yes and no. Finishing early,

19

yes. Being prepared for the argument, I think I'd rather

20

have until Friday morning but -- we'll do whatever the

21

court would like. I think it would be a better argument,

22

Your Honor, if we had another day to go through the

23

transcript and get prepared for it.

24

THE COURT: Okay.

25

MR. ORLEANS: Whatever the court wants is fine

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 87 of 132 682

1

with us, Your Honor.

2

MR. BRILL: But -- I'll be flexible also, Your

3

Honor.

4

THE COURT: All right. I'm happy to do it on

5

Friday. That's fine.

6

MR. ORLEANS: Thank you.

7

THE COURT: Okay.

8

MR. ORLEANS: Ready to go, Your Honor?

9

Plaintiff calls Robin Sparks.

10

R O B I N

L.

S P A R K S,

called as a

11

witness, one of the Plaintiffs, having been duly sworn by

12

the Clerk, testified as follows:

13

THE COURT: State your name, spell your last

14

name please.

15

THE WITNESS: Hi. It's Robin Sparks,

16

S-P-A-R-K-S.

17

DIRECT EXAMINATION

18

BY MR. ORLEANS:

19

Q. Ms. Sparks, you are the coach for the Quinnipiac

20

University volleyball team?

21

A. I am.

22

Q. And other than the fact that you're back on the stand

23

in Judge Underhill's courtroom this morning, are you aware

24

of anything else special about today?

25

A. Today is the anniversary of Title IX, the 38th

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 88 of 132 683

1

anniversary.

2

Q. How did your volleyball team do this year?

3

A. We won four more matches than we probably should have

4

given everything we went through last year, but I was

5

really proud of them, for what we went through.

6

Q. How many competitions did you engage in?

7

A. You know, I'm not going to say I remember what our

8

loss record was to tell you exactly how many competitions,

9

but around 30.

10

Q. And when you refer to "everything that you went

11

through this year," aside from the, whatever stress and

12

trauma there may have been associated with the lawsuit,

13

what other things did you go through that affected the

14

team's performance?

15

A. Well, we lost most of our recruiting class last year

16

so I did my very best to find athletes really late last

17

summer and that was a problem. We also ended up facing

18

injuries and illness and the like. We had to compete with

19

seven people a couple of times this year because of that.

20

Q. Now, I'll come back to some of the issues about

21

recruiting in the summertime but what's your outlook for

22

2010, 2011?

23

A. We're going to have most athletic team that

24

Quinnipiac has probably ever seen. I'm really excited

25

about the athletes who committed to come in thus far.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 89 of 132 684

1

Q. And since you testified at the preliminary injunction

2

last year, have you received any recognition or awards?

3

A. I have.

4

Q. Would you describe that briefly for the court,

5

please?

6

A. I attended the NCAA Women Coaches Academy which the

7

NCAA does in conjunction with a foundation. I can't

8

remember the name of the foundaton, but it's three days

9

with coaches of every level and every sport and it's just

10

for women. We get training in legal issues, ethical

11

issues, how to deal with press, just lot of coaching

12

issues. And I was awarded the Judy Sweet and most

13

inspirational award by the fellow coaches who were there.

14

Q. Who's Judy Sweet?

15

A. She's the first woman president of the NCAA.

16

Q. Now, at the time that you testified last year, in May

17

of 2009, did you have a written employment contract with

18

Quinnipiac?

19

A. I did.

20

Q. And what were the essential terms of that contract?

21

A. It was from July 1 --

22

MR. BRILL: Objection, Your Honor. This is a

23

document that should be put in evidence. I don't know

24

where this is going but --

25

MR. ORLEANS: I just wanted to get into the

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 90 of 132 685

1

record the fact it was a one year contract. I think that

2

was established.

3

MR. BRILL: I didn't know where you were going

4

but if there's some issue about the conference --

5

MR. ORLEANS: No, no no.

6

BY MR. ORLEANS:

7

Q. And would you have accepted your position at

8

Quinnipiac University as volleyball coach back when you

9

first took the job if you didn't have a written contract?

10

MR. BRILL: Same objection, Your Honor. She

11

can't say what she would have done in a hypothetical

12

circumstance.

13

THE COURT: Well, I'll allow it. It's not

14

necessarily a hypothetical. I'll allow it.

15

BY THE WITNESS:

16

A. Absolutely not.

17

Q. Do you have an understanding of whether other

18

volleyball coaches in the northeast conference generally

19

have written employment contracts?

20

A. Yes, they do.

21

Q. Let me call your attention -- and I'm correct that

22

you no longer have a written employment contract with

23

Quinnipiac?

24

A. Correct.

25

Q. Let me call your attention to the month of June 2009,

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 91 of 132 686

1

if I could. In June 2009, did you attend a meeting with

2

Dr. Thompson?

3

A. There was an all staff meeting where he was

4

introduced as being the new person in charge of athletics.

5

Q. Okay. And what was the purpose of that meeting?

6

A. I think it was for Mr. Thompson to introduce himself

7

to everybody. We had to go around the room and introduce

8

ourselves to him. It was really the first time many of us

9

had seen him.

10

Q. And did Dr. Thompson speak at all to the -- well,

11

withdrawn.

12

Who else attended besides you and Dr. Thompson?

13

A. Every coach, every trainer. It was the entire

14

athletics and recreation department.

15

Q. Okay. And did Dr. Thompson address at all the

16

general subject of the Title IX lawsuit and the

17

preliminary injunction?

18

A. Yes.

19

Q. He did. And did he say anything in particular that

20

has stuck with you?

21

A. Yes. He started off by saying he knew that no one

22

had done anything wrong at Quinnipiac, even though it may

23

not look kosher to the outside world.

24

Q. And from the time of that meeting -- well, withdrawn.

25

Did he say anything about roster management?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 92 of 132 687

1

A. That there would be roster targets developed and he

2

would be in contact with coaches I think for their input.

3

Q. Okay. And from the time of that meeting until the

4

end of July, did you have any communications with -- any

5

conversations, excuse me, with Dr. Thompson about your own

6

roster target?

7

A. No.

8

Q. In that same period of time, from around the

9

beginning of June until the end of July, did you have

10

communications with Jack McDonald about your roster

11

target?

12

A. Yes.

13

Q. Okay. And would you describe the communications that

14

you had with Mr. McDonald concerning your own roster

15

target for volleyball?

16

A. Well, Jack and I met to do my review for the year, my

17

employment review. It was actually a really nice meeting,

18

I have to admit. And we talked about, you know, not about

19

the case by any means. I think we both like each other

20

and expressed that. But we did talk about how difficult

21

it was going to be, you know, what number would be

22

reasonable for me. And he and I had agreed that ten would

23

be -- and I told him I would continue to work because I

24

would like to get to at least 12 because you need six on

25

the side, but that ten at that time, I was confident I

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 93 of 132 688

1

could have ten kids by that time.

2

Q. Okay. And since you're talking about the efforts

3

that you were making to recruit in July, in order to get

4

to 12 athletes at that point, how does a coach go about

5

recruiting at that time of the year?

6

A. Well, as soon as we received the preliminary

7

injunction, I started almost immediately. I had to -- I

8

sent emails to every club director that I knew in the

9

country and many that I didn't know. I sent emails to the

10

junior college conferences that were most talented, I

11

guess the best way, the most competitive junior college

12

conferences to say do you have any athletes who are still

13

not committed to Quinnipiac. I also contacted people who

14

I knew were very involved in the community, in the

15

junior's community, who also were very helpful and, you

16

know, saying I don't know anybody but let me use my

17

network. It was really kind of amazing how many people

18

were trying to help me identify anybody available.

19

Q. At that point in the summer, haven't most kids who

20

have graduated from high school and are planning to attend

21

college in the fall already decided where they are going

22

to go?

23

A. Yes.

24

Q. And in particular, haven't most athletes at that

25

point, Division I athletes, already made a commitment to a

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 94 of 132 689

1

school?

2

A. Yes.

3

Q. So you're looking -- well, so what are you looking

4

for?

5

A. I started with just trying to find some names to find

6

athletes who might still be available. Once I did

7

identify somebody, then I had to find out what were their

8

grades like, you know, were they capable of being admitted

9

at Quinnipiac University. I also had to find out could

10

they afford it. That's, you know, it's too late to get

11

financial aid at that point. You can get some but, you

12

know, financial aid deadlines are much earlier, so it made

13

it incredibly challenging to try to find anybody.

14

Q. As a varsity coach, if you could find someone who was

15

athletically capable and academically capable and could

16

pay, were you confident, even though all admission

17

deadlines were long past, that the admissions office would

18

let the person in?

19

A. Yes, I was.

20

Q. And were you successful in finding anybody last

21

summer, in the summer of 2009?

22

A. I ended up finding one athlete who I was able to

23

attract in Florida. Other than that, I found a local

24

athlete who was going to go play Division III but was

25

happy to come in and help us out. And then the other

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 95 of 132 690

1

athletes I found were on campus. They just happened to be

2

kids at Quinnipiac.

3

Q. The two -- you mentioned two that you found who were

4

on campus that you were able to recruit. Did either of

5

those two stick with the team through the year?

6

A. One finished the year but has since transferred out.

7

And one did not.

8

Q. Did she -- was she cut or did she quit?

9

A. She quit.

10

Q. Okay. And did you then in the fall hold tryouts or

11

try to recruit on campus?

12

A. In the fall, yes.

13

Q. And did any, did you find any kids at that point who

14

you put on the roster?

15

A. One athlete I tried to add in. She was, she had the

16

build, she didn't really have the skill yet but I thought

17

we could register her a year, work with her and maybe get

18

her up to speed but she, after a few weeks, decided it

19

wasn't for her.

20

Q. Okay. Now, you've passed the NCAA recruiting test,

21

haven't you?

22

A. For the current year, yes.

23

Q. Is it something you have to take every year?

24

A. You have to take it every year to start recruiting on

25

August 1st.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 96 of 132 691

1

Q. So each time you pass it, it's good from August 1st

2

to July 31st?

3

A. Correct.

4

Q. Is that right? Okay. So that if you were to take

5

the test, you need take the test sometime between now and

6

July 31st, is that correct? Take and pass it?

7

A. I can -- I can recruit off campus through July July

8

31st. If I'm going to recruit off campus starting in

9

August I will have to have passed the test. So if I don't

10

take it until, I don't know, for some reason September, I

11

wouldn't be able to recruit off campus for August until I

12

passed it.

13

Q. But you can recruit off campus until July 31st

14

because you already passed it for the current year, right?

15

A. Correct.

16

Q. And, again, while we're talking about recruiting, do

17

you get email inquiries from students about playing

18

volleyball for Quinnipiac?

19

A. Yes.

20

Q. What kind of quantity are we talking about?

21

A. Hundreds. I actually, I actually pay for a database

22

to help me with it so that I can just send questionnaires

23

to the athletes, they can key in the information

24

themselves so that I don't have to spend the time. But

25

per year, to quantify it, you know, at least 500.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 97 of 132 692

1

Q. And do they send you videotapes?

2

A. Yes, some.

3

Q. And do you still find it valuable to go off campus to

4

recruit?

5

A. Invaluable, yes.

6

Q. And why? What's the value of going off campus?

7

A. Videotapes only show the very best. You know, I

8

actually joke sometimes with athletes that if I ever see

9

them make a mistake, they should be on the national team

10

because they are perfect. I need to see them actually in

11

a game situation. To see their skills is great, but to

12

see how they react to their teammate when they make a

13

mistake, how they treat their coach, I actually like to

14

see how they treat their parents. Because that synergy

15

and how they act in stressful situations is really

16

important to a team because it's really neat to toss a

17

ball and watch somebody hit a ball a lot of time when

18

there's no one around them or in front of them, but in

19

stress how do they react? But nobody is going to send you

20

a tape that shows you their worst side.

21

Q. Now, I got off track a little bit. We were talking

22

about your -- you described your communications with

23

Mr. McDonald concerning your roster target last summer.

24

And I think you said that you had discussed ten as a

25

target and you had said you would try to get to 12, is

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 98 of 132 693

1

that correct?

2

A. Yes.

3

Q. All right. Did there come a time in July of 2009

4

when Mr. McDonald distributed roster letters to the

5

coaches at a staff meeting?

6

A. Correct.

7

Q. And were all the coaches present at that meeting?

8

A. I'm going to say probably not because it's very rare

9

that all the coaches are present at meetings, but quite a

10

few.

11

Q. And did people actually open the letters and see what

12

their targets were?

13

A. Yes.

14

Q. At that meeting?

15

A. Yes.

16

Q. And what was your target?

17

A. Fourteen.

18

Q. And have you had any warning that your target would

19

not be ten and not be 12 but would be 14?

20

A. No.

21

Q. Do you recall the reactions of any of the other

22

coaches --

23

A. Yes.

24

Q. -- when they opened their letters? What do you

25

recall?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 99 of 132 694

1

MR. BRILL: Objection, Your Honor. She's going

2

to testify about what other coaches said about their

3

roster targets. It's hearsay.

4

MR. ORLEANS: I think I would rely on excited

5

utterance exception, Your Honor.

6

MR. BRILL: If she says Coach A said my roster

7

target is ridiculously high -- they've had access to all

8

these coaches for over a year and they chose not to depose

9

any of the coaches. They cannot get this in through --

10

I'm sorry, Your Honor, but it's upsetting to me to think

11

they are going to now try to get this evidence in through

12

the back door.

13

THE COURT: The question is what do you recall.

14

That doesn't call for any out-of-court statement. A sigh,

15

a rolling of the eyes, a you know, whatever. In other

16

words, she hasn't been asked what did Coach Smith say. So

17

let's find out whether the answer's going to be a

18

statement or the answer's going to be something other than

19

a statement. What do you recall, is the question.

20

MR. BRILL: And I'm sorry, can we just clarify

21

when this meeting was because I lost track of that.

22

MR. ORLEANS: July of 2009, and the roster

23

targets were handed out.

24

Your Honor, to be honest I am asking her to

25

report what other coaches said when they opened their

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 100 of 132 695

1

letters.

2

THE COURT: All right.

3

MR. ORLEANS: I don't want to be -- I'm not

4

trying to hide the ball here.

5

THE COURT: So you're saying it's excited

6

utterance.

7

MR. ORLEANS: You open a letter, you see your

8

target and the first thing that comes out of your mouth I

9

think is an excited utterance or a statement of existing

10

mental or emotional condition.

11

THE COURT: That's a bit of stretch but --

12

MR. ORLEANS: Well --

13

THE COURT: You know, lay a foundation.

14

MR. ORLEANS: State of mind.

15

THE COURT: Lay a foundation.

16

BY MR. ORLEANS:

17

Q. Now let's take it a bit at a time.

18

A. Okay.

19

Q. Do you recall that some of the coaches made comments

20

when they opened their roster letters?

21

A. Yes.

22

Q. And specifically which coaches do you recall?

23

A. Men's soccer coach.

24

Q. Okay, let's start with him, men's soccer coach. Was

25

he agitated?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 101 of 132 696

1

A. Yes.

2

MR. BRILL: Your Honor, that's a leading

3

question. Come on.

4

THE COURT: Yes, it is. Rephrase it.

5

MR. ORLEANS: Let me see if I can rephrase.

6

BY MR. ORLEANS:

7

Q. What was his --

8

THE COURT: Demeanor.

9

MR. ORLEANS: Thank you.

10

BY MR. ORLEANS:

11

Q. What was his demeanor?

12

A. He was angry.

13

Q. And did he raise his voice at all?

14

A. Yes.

15

Q. I withdraw the question, I don't mean to lead.

16

What was his tone of voice?

17

A. I think disgust would be the best -- I mean he was

18

disgusted by this situation.

19

Q. And did he make a statement?

20

A. Yes.

21

Q. What was that statement?

22

MR. BRILL: Objection, Your Honor.

23

THE COURT: Yes, I'm going to allow it. Go

24

ahead.

25

BY THE WITNESS:

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 102 of 132 697

1

A. He said, "I am not signing this letter."

2

Q. That's the women's soccer coach?

3

A. Men's soccer coach.

4

Q. Men's soccer coach. Did any of the other coaches

5

make comments when they opened their letters?

6

A. Yes.

7

Q. What other coach made a comment?

8

A. Women's soccer coach.

9

Q. And that would be Mr. Clark?

10

A. Yes.

11

Q. What was his demeanor?

12

A. I would say he was frustrated.

13

Q. How did you -- what indicated to you that he was

14

frustrated?

15

A. I remember looking at him and he kept looking and

16

just shaking his head when he was looking at the letter.

17

And then he started talking to some other people but --

18

Q. What was his tone of voice when he started speaking?

19

A. He's not someone who screams and yells so -- I think

20

frustrated. I think frustrated is probably, may be

21

different than demeanor or tone of voice but I would mean

22

this to just encompass it.

23

Q. What statement did he make that you heard?

24

MR. BRILL: Your Honor, I'm going object to this

25

and similar questions of every person.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 103 of 132 698

1

THE COURT: Fair enough, but it's not obvious to

2

me that these statements are being offered for their

3

truth. They are being offered to express state of mind.

4

MR. ORLEANS: Correct.

5

THE COURT: In other words, I'm not going to

6

sign this letter, well, it has no relevance if it's

7

offered for its truth. It does have a lot of relevance if

8

it's offered to show attitude, mental state, frustration,

9

whatever. So I don't think these are hearsay statements.

10

If they are -- in other words, if there comes

11

out a statement that is being offered for its truth, renew

12

your objection and we'll take it up. But it sounds to me

13

like this is not, it's just not hearsay because it's not

14

being offered for its truth. And to the extent that it

15

is, it seems to me so far we've had a foundation that

16

would support it, an excited utterance exception.

17

BY THE WITNESS:

18

A. I'm sorry, could you read the question?

19

Q. The question is what Mr. Clark said that you heard.

20

A. He said his number, this number doesn't work because

21

of the sub rules in soccer.

22

Q. The sub rules?

23

A. The substitution rules. I don't know --

24

MR. BRILL: I'm sorry, could I ask the court

25

reporter to read back the last question and answer? I was

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 104 of 132 699

1

distracted.

2

THE COURT: The "Question: The question is what

3

Mr. Clark said that you heard.

4

Answer: He said his number, this number doesn't

5

work because of the sub rules in soccer.

6

Question: The sub rules?

7

Answer: The substitution rules. I don't

8

know --"

9

MR. BRILL: Well, that is objectionable hearsay,

10

Your Honor. That's a statement about what he felt about

11

his number and frankly if this is coming in through this

12

witness I withdraw my prediction that the case is going to

13

finish tomorrow because I'm now going to call Mr. Clark

14

about what he really said and what he felt about his

15

roster.

16

THE COURT: Well, okay. I mean that's a

17

different issue. That doesn't change my ruling on

18

hearsay. The statement, this number doesn't work, does

19

not sound to me like it's being offered for the truth as

20

much as it's been offered to demonstrate an expression of

21

frustration. The number, the number is the number.

22

MR. BRILL: But are they going to argue that

23

means the soccer coach had a number that didn't work for

24

him because she testified that he said this number doesn't

25

work for me?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 105 of 132 700

1

THE COURT: He has a number that he doesn't

2

like. It's an indication of his state of mind. It's not

3

an indication of whether -- how does a number work or not

4

work? What's true or false about that statement?

5

MR. ORLEANS: Just for the record, he's the

6

women's soccer coach.

7

THE COURT: I'm sorry, whatever.

8

MR. ORLEANS: No, that's okay.

9

MR. BRILL: How does it work or not work?

10

THE COURT: What is true or false about the

11

statement this number doesn't work for me.

12

MR. BRILL: What's true or false about it is

13

his, is the effort to show that he was saying that he had

14

a number that didn't work for him. Right?

15

THE COURT: What does that mean? How is that

16

true or false? It's true or false only in the sense that

17

it's an indication of his state of mind. The statement

18

itself, if I say "holy cow" that's not true or false. The

19

cow isn't either holy or unholy. It's an expression of my

20

reaction to something.

21

MR. BRILL: Right but --

22

THE COURT: This is in the nature of a reaction.

23

It's not, he's not saying, because he can't say that a

24

number either works or doesn't work.

25

MR. BRILL: Well, that's where I'm losing --

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 106 of 132 701

1

THE COURT: He's either happy or unhappy with

2

his number. It's like holy cow. I don't think it's

3

hearsay. I'm going to overrule the objection.

4

MR. ORLEANS: Thank you, Your Honor.

5

BY MR. ORLEANS:

6

Q. Let me call your attention to the following month,

7

August 2009. During August 2009, did you have a

8

conversation with Carolyn Martin about her roster target?

9

A. Yes.

10

Q. Could you just describe the circumstances under which

11

you had this conversation?

12

A. She and I were walking down the hall, she had

13

recently very recently, I believe, been named the head

14

coach. We were talking about balancing coaching and

15

family and then we started, she started talking a little

16

bit about just the responsibilities and what you need to

17

do when you're coaching and it led into the situation she

18

was in at the moment.

19

Q. Okay. And did she say anything that indicated to you

20

what her state of mind was concerning her roster target?

21

MR. BRILL: Your Honor, this is not a state of

22

mind statement. We know what she testified to in her

23

deposition. This is not --

24

THE COURT: It's a yes or no. It's a yes or no

25

question. You can answer that question. Did she or did

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 107 of 132 702

1

she not say something to you indicating her state of mind?

2

THE WITNESS: Yes.

3

BY MR. ORLEANS:

4

Q. And what did she say?

5

THE COURT: Now it's time for your objection.

6

MR. BRILL: I object to this as hearsay.

7

THE COURT: Okay, all right.

8

MR. ORLEANS: I think it's a -- the statement --

9

I would make as an offer, Your Honor, that the statement

10

that Coach Sparks is about to relate begins with the words

11

"I don't know." And I'm offering it as a statement of

12

Coach Martin's mental condition or her state of mind, her

13

then existing state of mind. So to the extent that it's

14

hearsay I think that it comes in under that exception.

15

It's also in the same sense that Your Honor just

16

described, I think it's not offered for the truth of any

17

fact within it. It's offered as an indication of what

18

Coach Martin was thinking and feeling at that time and

19

what her, how she felt about the roster target that she

20

had been assigned.

21

THE COURT: Well, it's a bench trial. Let me

22

hear what the statement is. I'll either strike it or I

23

won't.

24

MR. BRILL: I only know what she testified to in

25

her deposition and it doesn't correspond how she's

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 108 of 132 703

1

describing it now.

2

THE COURT: Well, you're a step ahead of me; I

3

haven't seen the deposition.

4

MR. ORLEANS: Again, to be honest, I do not

5

recall whether I asked her at her deposition what she said

6

to Coach Sparks.

7

THE COURT: Okay, let's hear it and then we'll

8

take up a motion to strike.

9

MR. ORLEANS: Just so that's clear.

10

MR. BRILL: I wasn't talking about what Coach

11

Martin testified to, I'm talking about what Coach Sparks

12

testified to in her deposition.

13

THE COURT: All right, let's get the answer,

14

what did she say to you?

15

THE WITNESS: She said she didn't know how she

16

was going to get to 30 and has been joking she's going to

17

go to the cafeteria and put up a sign to find those

18

athletes.

19

MR. ORLEANS: I would offer the portion of the

20

statement "I don't know how I'm going to get to 30."

21

THE COURT: All right, and is there a motion to

22

strike?

23

MR. BRILL: Yes, Your Honor.

24

THE COURT: Okay. And why is that not a

25

statement of mental condition, her present sense, mental

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 109 of 132 704

1

condition?

2

MR. BRILL: I accept your ruling on that. That

3

was not what -- it was not what I expected the answer to

4

be so -- it's different from what she testified to in her

5

deposition.

6

THE COURT: All right, so we'll strike the

7

remainder and we'll permit the portion that's been

8

offered.

9

MR. ORLEANS: Okay.

10

MR. ORLEANS: May I have just a moment Your

11

Honor?

12

THE COURT: Sure.

13

(Pause)

14

BY MR. ORLEANS:

15

Q. Now, Coach Sparks, you never actually signed your

16

2009 roster letter, did you?

17

A. No.

18

Q. And if you could just briefly explain to the court

19

why you didn't sign it?

20

A. I believe they are manufacturing evidence for the

21

case and I refused to sign it.

22

MR. BRILL: Objection, Your Honor, move to

23

strike.

24

THE COURT: What's the objection?

25

MR. BRILL: Her belief that we're manufacturing

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 110 of 132 705

1

evidence?

2

THE COURT: Well, why -- okay.

3

MR. BRILL: I mean what is that evidence of?

4

THE COURT: It's evidence of why she didn't sign

5

the letter. There wasn't an objection to the question. I

6

don't understand why there's an objection to the answer.

7

In other words, she's answered why. Am I missing

8

something? Is the answer scandalous, 403? What is it

9

that you have a problem with the answer that you didn't

10

have a problem to the question?

11

MR. BRILL: Just the suggestion that there was,

12

that the university was manufacturing -- I'm sorry, the

13

university was not manufacturing evidence, Your Honor.

14

THE COURT: Okay, it's her view.

15

MR. BRILL: It's her belief, okay, I accept

16

that.

17

BY MR. ORLEANS:

18

Q. And do you recall a staff meeting in August or --

19

withdrawn.

20

Do you recall a staff meeting in August or September

21

of 2009 when Mr. McDonald made a comment about the

22

importance of signing the roster letter?

23

A. Yes.

24

Q. And what did he say?

25

A. He said we'd be in more trouble for not signing the

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 111 of 132 706

1

letters -- for not signing the letters than not meeting

2

our targets.

3

Q. Did you attend the Title IX training that

4

Dr. Thompson testified about that was conducted by

5

Quinnipiac for its coaches?

6

A. Yes.

7

Q. Who conducted that training for Quinnipiac?

8

A. Janet Judge.

9

Q. Is that the same Attorney Janet Judge who was in

10

court at the defense table during the preliminary

11

injunction hearing?

12

A. Yes.

13

Q. Did she say anything during the training about

14

whether or not Quinnipiac had done anything wrong?

15

A. Yes.

16

Q. Okay, and what did she say?

17

A. She said that cutting and dropping players around the

18

first day of competition was not proper, you cannot do

19

that.

20

Q. Now, let me draw your attention to April of this

21

year, April 2010. In April of 2010, did you attend a

22

staff meeting at which Dr. Thompson spoke about budget

23

issues and the Athletic Department?

24

A. Yes.

25

Q. Could you tell his Honor what Dr. Thompson said about

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 112 of 132 707

1

budget issues in the Athletic Department at Quinnipiac?

2

A. He came in and talked about how well he thought the

3

year had gone and the transition, he said the university

4

had one more tough year budget rise because there's like a

5

5 million-dollar debt payment and then there would be a

6

level amount of dollars and it was -- I don't understand

7

all the the details, but things would open up budgetarily

8

for the university. He said that the staff raises would

9

be back this year but everybody's budgets would be flat.

10

He also talked about the fact that the university had

11

put emphasis in different parts of it for excellence. I

12

don't know that he used that word but had spent a lot of

13

time talking about academics and doing a lot of work

14

there. They'd spent a lot of time on student services,

15

doing a lot of work there, and they were going to start

16

putting investment back into athletics so they were going

17

to start investing in facilities again, hopefully having

18

more looker room space, start upgrading facilities

19

outside, et cetera, et cetera. The plan, it was things

20

that Jack had talked about prior to everything getting

21

tight economically.

22

Q. Did he say anything about the status of the

23

university's endowment?

24

A. I'm not sure if he talked about the endowment then or

25

not.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 113 of 132 708

1

Q. Did -- was there some other occasion when he spoke

2

about the endowment?

3

A. The president spoke about the endowment at the Bill

4

Mecca golf tournament in front of everybody.

5

Q. Were you there?

6

A. Yes.

7

Q. What did the president say about the endowment at the

8

Mecca golf tournament?

9

A. The endowment is higher than it's ever been in the

10

history of the university right now.

11

Q. Are you aware whether or not the university has made

12

plans to establish a medical school?

13

A. Yes.

14

Q. Are you aware of any statements that have been made

15

by the president of the university about how the medical

16

school will be paid for?

17

A. Yes.

18

Q. What has he said about that?

19

A. They won't have to go into debt to do that.

20

Q. Okay. At that April meeting with Dr. Thompson, did

21

he make any statements about the rosters for 2010, 2011?

22

A. He talked about the process, yes.

23

Q. And what did he say about, at that point about

24

whether roster targets were known?

25

A. They were not known at that point.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 114 of 132 709

1

Q. So this is -- and this is in April?

2

A. Correct.

3

Q. Okay. And without relating anybody's specific

4

remark, what was the reaction among the coaches to the

5

news that the roster targets were not yet known?

6

A. I think frustration. You're recruiting. It's very

7

difficult to recruit when you don't know how many you're

8

supposed to have in the fall.

9

Q. And how did Dr. Thompson respond to any expressions

10

that the coaches may have made about that?

11

A. I think he was understanding and listened to that. I

12

think in general as coaches, we like to know two or three

13

years in advance what our numbers are going to be because

14

recruiting cycles are such that athletes are committing so

15

young now, you really need to know as you're doing

16

planning for your future. But he explained that we would

17

only ever know one year in advance but he thought he could

18

get it to us in like October of the year instead of

19

further, or as late as this year.

20

Q. Did Dr. Thompson say anything about the trend in

21

undergraduate admissions of men and women at Quinnipiac?

22

A. Yes.

23

Q. What did he say about that?

24

A. Coming up into the fall, that deposits were up in

25

health sciences and greatly reduced in business and --

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 115 of 132 710

1

Q. What was the significance of that?

2

A. The health science is predominantly women and that

3

businesses were more where men tend to go.

4

Q. And from your observation as a member of the

5

Quinnipiac community and a member of the faculty at

6

Quinnipiac, is Quinnipiac emphasizing health sciences?

7

A. Yes.

8

MR. ORLEANS: Just a moment, if your Honor

9

please?

10

(Pause)

11

MR. ORLEANS: I have nothing further at this

12

time, Your Honor. Thank you.

13

THE COURT: All right, cross?

14

CROSS EXAMINATION

15

BY MR. BRILL:

16

Q. Coach Sparks, you remember giving a deposition in

17

this matter on April 12th, 2010?

18

A. Yes.

19

Q. I'm going to hand the witness a copy of her

20

deposition transcript, Your Honor.

21

(Hands witness.)

22

Thank you. You remember I asked you about the -- to

23

testify to everything you remembered about that June,

24

early June meeting with Dr. Thompson at your deposition?

25

A. The June meeting?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 116 of 132 711

1

Q. Yes, the meeting in which you just said that

2

Dr. Thompson -- didn't you just testify that Dr. Thompson

3

told the coaches at that meeting June of 2009, that

4

Dr. Thompson told the coaches that Quinnipiac had done

5

nothing wrong?

6

A. Yes.

7

Q. You didn't testify to that in your deposition, did

8

you?

9

A. I don't remember you asking me specifically about the

10

June meeting.

11

Q. Well, let's look at your testimony.

12

MR. ORLEANS: Could we have a page reference,

13

please?

14

MR. BRILL: Yes, if I can get it. It's page

15

ten.

16

BY MR. BRILL:

17

Q. You attended just a -- is this a little out of focus

18

or just my eyes? Can you see that, Your Honor?

19

THE COURT: I can see it.

20

Q. You attended the June 3rd -- do you remember giving

21

this, do you have that in front of you?

22

A. Yes.

23

Q. "You attended the June 3rd, 2009, Athletic Department

24

meeting which is referred to in the email?

25

I believe so.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 117 of 132 712

1

And Dr. Thompson spoke at that meeting, is that

2

correct?

3

If he says he did, he must have. I mean I don't

4

remember dates specifically.

5

Well, do you remember a meeting in which Dr. Thompson

6

explained the new procedure for roster management to the

7

coaches?

8

Yes, I do.

9

And what did he say?

10

He just handed us numbers individually and said that

11

if we had problems to let us know.

12

Do you recall anything else that he said?

13

Oh geez, he would be following up with us to have

14

meetings and I don't recall anything else right now."

15

So you didn't remember this comment by Dr. Thomas in

16

April of your deposition, did you?

17

A. It looks like I confused two different meetings when

18

we were talking but we were talking, I mean you didn't --

19

it just didn't come up, no. I mean I know that he, you

20

know -- I was an incredibly nervous wreck, this is the

21

beginning of it and I know that as I sat back that we got

22

the numbers later. We didn't get the numbers at the

23

June 3rd meeting and -- so that's what it says.

24

Q. You don't remember getting your roster number at the

25

June 3rd meeting?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 118 of 132 713

1

A. No.

2

Q. Well, let's turn to page 11 of your deposition.

3

Actually before I put that up, Coach Sparks, you testified

4

that you told Jack McDonald that you wanted a roster

5

number of ten?

6

A. The way Jack and I had our meeting, Jack suggested

7

ten and I told him that I thought it was reasonable for me

8

to try to get to 12. I wasn't sure I could get there but

9

I was going to do my best.

10

Q. And was that before you got -- before the university

11

assigned any roster number to you?

12

A. Yes.

13

Q. Well, that's not what you testified to, was it?

14

"Didn't you testify that -- what was the initial

15

roster number that you were assigned?

16

I believe it was 15 or 14. It was a large number.

17

And did you object to the number or respond to it?

18

I had a meeting with Jack about it, yes."

19

This was after you got the roster number that you had

20

the meeting with Jack, right, that's what you testified

21

to?

22

MR. ORLEANS: Your Honor, I don't think this

23

contradicts her testimony. I think -- he's trying to

24

impeach with inconsistent testimony, I object.

25

MR. BRILL: She just testified that the meeting

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 119 of 132 714

1

with Jack about the roster number was before any roster

2

number was assigned.

3

Let's finish reading. The court can decide.

4

BY MR. BRILL:

5

Q. "What was said in that meeting?

6

He understood that it was going to be difficult for

7

me to achieve at that late a date. We agreed to -- I

8

thought it was reasonable for me to try to get to 12 and

9

he agreed."

10

Does that refresh your recollection that you were

11

assigned the roster number of 14 or 15 before your meeting

12

with Jack in which --

13

A. There were two meetings with Jack. The first time I

14

met with Jack is my staff review and we talked generally

15

about, you know, Jack brought it up and that was -- I

16

don't know, it was the end of the year, it was my staff

17

evaluation. The initial roster number was the letter I

18

got and that said 14.

19

Q. The initial roster number was the letter that you

20

got?

21

A. That's the way I took that to be is when, because

22

that was when we were told and they said you need to sign

23

something to say that that's what you've going to have.

24

Q. And you don't -- in any event, you didn't feel that

25

12 was an unreasonably large number, did you?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 120 of 132 715

1

A. But -- I was would love to have been able to tell you

2

I could get to 14. That would be great. The

3

circumstances we were in, when Jack first said ten I

4

thought at that time, look, I think I can get to 12, and

5

so that was my goal was to try to get to 12.

6

Q. And you did not think this was an unreasonably large

7

number, did you?

8

A. No.

9

Q. Now, with respect to your conversation with the track

10

coach, Coach Martin?

11

A. Uh huh. Yes, sorry.

12

Q. You don't know whether -- in fact, you suggested to

13

her that she talk to Jack if she had a problem with the

14

number that was assigned to her, didn't you?

15

A. Yes.

16

Q. And you don't know whether she had any conversation

17

with Jack about the roster number, do you?

18

A. She -- during the course of the conversation --

19

Q. No, after your meeting with her, you don't know

20

whether she had any conversation with Jack McDonald?

21

A. She told me during that meeting, like when we talked,

22

she had talked to Jack.

23

Q. Well, didn't you testify at your deposition on page

24

30, Coach Sparks, that "You don't know what if anything

25

she said to Jack McDonald or anybody else in the Athletic

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 121 of 132 716

1

Department about the roster size?

2

No.

3

Did you have any other conversations with the track

4

coach about the roster size?

5

Not that I recall."

6

A. Well, when we were talking, she was -- her

7

conversation was about how to get to the roster size, I'm

8

not sure she had a conversation about, I don't know what

9

they talked about in terms of the number part. She was

10

saying that she would like to add jumpers. And --

11

Q. This is what she told you?

12

A. Yeah, because she could get them to go practice at

13

the high school.

14

Q. But you suggested to her if she had problem, she

15

should go back to Jack or somebody else in the Athletic

16

Department, right?

17

A. I told her that she should stick with her integrity,

18

that we had to -- I hadn't gone through all this to have

19

coaches not be able to do, to stay within their integrity

20

for the program, their own program.

21

Q. But didn't you tell her to go back and talk to Jack?

22

A. Absolutely.

23

Q. And you don't know whether she did or she didn't?

24

A. I do not know after that.

25

Q. And at the meeting in June when Dr. Thompson spoke to

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 122 of 132 717

1

the coaches, he did tell the coaches, did he not, that it

2

was the university's intention for each team to have a

3

roster number that was a reasonable number that

4

represented genuine Division I experience for each member

5

of the team?

6

A. I'm not sure if that's exactly what he said but I'm

7

sure he said that the university intended for us to have

8

set roster numbers.

9

Q. That were genuine and reflected genuine Division I

10

experience?

11

A. He may have said that. I don't recall that part

12

specifically.

13

Q. Well, you did recall that in your deposition, right?

14

At the bottom --

15

THE COURT: If you're refreshing recollection

16

why don't we do that the right way.

17

MR. BRILL: Excuse me?

18

THE COURT: Are you refreshing recollection?

19

She says she doesn't recall.

20

MR. BRILL: Yes.

21

THE COURT: So show her the page, ask her if

22

that refreshes her recollection.

23

BY MR. BRILL:

24

Q. Does that refresh your recollection --

25

MR. ORLEANS: What page is it?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 123 of 132 718

1

A. "When do you remember him telling you that --"

2

THE COURT: No, you don't put it on the record,

3

you refresh her recollection.

4

MR. BRILL: Got it, Your Honor, I'm sorry.

5

BY MR. BRILL:

6

Q. Would you look at page ten at the bottom, page 11 at

7

the top, page eleven, and see if that refreshes your

8

recollection?

9

A. (Pause)

10

I said that -- you know, he says that a lot so he

11

probably did say that then.

12

Q. And that's what you testified to at your deposition?

13

A. Yes.

14

Q. Now, you testified that the men's -- checking my

15

notes -- the men's soccer coach made a comment, an

16

expression of unhappiness of some kind or frustration when

17

he opened his envelope?

18

A. Yes.

19

Q. Were all of the coaches in a room together when they

20

got these roster, these letters?

21

A. Yes.

22

Q. And you don't know whether the men's soccer coach was

23

frustrated because he had too many players or too few

24

players or for any other reason, correct?

25

A. I believe what he told me after that --

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 124 of 132 719

1

Q. No, I'm asking about at the time when he made this

2

utterance.

3

A. Well, he was frustrated because he said "I asked for

4

29 and it's only 23, I have injured players on

5

scholarship, they're going to count. I thought I was

6

going to get 29."

7

Q. And this is what he said during the meeting?

8

A. He was sitting next to me so he had asked for 29, he

9

expected his number to be 29.

10

Q. What experience as a Division I coach did you have

11

when you were hired?

12

A. I had not been a Division I coach.

13

Q. And when were you advised that you would no longer be

14

a, on an employment contract?

15

A. When was I advised? I actually e-mailed, I think, or

16

did I call -- Jack because I was out recruiting and I was

17

at the national championships and I didn't want to use my

18

Visa if I wasn't, I was no longer under contract, I didn't

19

want to break a rule, so I got in touch with Jack because

20

I had no contract and it was June 29th or 30th, and he

21

told me that no one was getting contracts, that I could

22

could use my Visa, that we would be getting NCAA

23

contracts.

24

Q. Now, at your deposition, Coach Sparks, I asked you a

25

series of questions about what you knew about any other

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 125 of 132 720

1

teams where you felt that, that a coach was, had an

2

inappropriate number, do you remember that?

3

A. Yes.

4

Q. And you didn't say anything at that time about a

5

conversation you had with a men's soccer coach, did you?

6

A. We didn't really have a long conversation. It was in

7

a staff meeting, but I remember we talked a lot about --

8

can you -- we talked a lot about the women's teams, I

9

recall that. If I didn't mention the men's soccer, then I

10

didn't mention but I know you asked me a lot if I had

11

conversations with coaches and --

12

Q. Well, that was a conversation with a coach, wasn't

13

it?

14

A. Well, he was announcing that to everybody so -- there

15

was a lot of talk going on at that time.

16

Q. Well, after -- do you remember that I asked you after

17

going through all, all the evidence you could recall

18

about --

19

MR. ORLEANS: Excuse me, page please?

20

MR. BRILL: Thirty-eight.

21

BY MR. BRILL:

22

Q. Do you remember I asked you on page 38, "With respect

23

to the men's teams do you have any reasons to question

24

whether these numbers of any cases are lower than they

25

should be," and you said, "Not at this moment"?

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 126 of 132 721

1

A. I didn't remember it then.

2

Q. You did not remember the conversation at that time?

3

And do you recall you testified -- I'm sorry, do you

4

recall -- with respect to the woman's soccer coach, do you

5

recall coach asking in a meeting whether he could lower

6

his, the squad number for the women's soccer team and have

7

some other team pick up an extra woman?

8

A. There was a discussion, yes, I recall that.

9

Q. And then Mark Thompson said in response that he would

10

not allow any horse trading between teams?

11

A. Yes.

12

Q. And that each team had to justify its own roster

13

number?

14

A. Yes.

15

Q. And he said if anyone had a problem to come and

16

discuss it with him, right?

17

A. I think that's what the email said.

18

Q. You think --

19

A. I think that's what the email said.

20

Q. So you don't know whether the soccer coach went to

21

talk to Dr. Thompson after that, do you?

22

A. No.

23

Q. And you have no reason to believe that the woman's

24

soccer roster number was too high other than that one

25

comment by the coach at the meeting you just testified to,

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 127 of 132 722

1

correct?

2

A. Correct.

3

Q. In terms of recruiting, how many volleyball, college

4

volleyball programs are there in the United States?

5

A. Division I or II or III or --

6

Q. Division I?

7

A. 336 -35? There's teams in transition from D II to D

8

I so I'm not sure they are classified. But 330-ish.

9

Q. How does Quinnipiac rank nationally?

10

A. This past year we were down, you know, with the

11

entire Northeast Conference, is one of the weakest

12

conferences in the country, so we were down in the bottom.

13

Q. So you're recruiting against all of these other

14

programs in the United States?

15

A. Absolutely.

16

MR. BRILL: I don't think I have anything else

17

for this witness, Your Honor.

18

THE COURT: All right. Any redirect?

19

MR. ORLEANS: Just very brief, Your Honor

20

REDIRECT EXAMINATION

21

BY MR. ORLEANS:

22

Q. Coach Sparks, you testified just a minute ago on

23

cross that you were told by Mr. McDonald that you would

24

receive a NCAA contract?

25

A. Yes.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 128 of 132 723

1

Q. And did you ever receive a NCAA contract?

2

A. No.

3

Q. To your knowledge is there such a thing as a NCAA

4

contract?

5

A. No, but I wasn't sure if, like if there's something I

6

didn't know about.

7

Q. But your employment did continue?

8

A. Yes.

9

Q. And Mr. Brill asked you about your conversation with

10

Coach Martin. And I think you testified on cross

11

examination that you had said to Coach Martin, I didn't do

12

this so that -- and I missed your answer to that question.

13

What was it that you said to Coach Martin?

14

A. She was --

15

Q. What did you say to her?

16

A. I told her that I didn't go through all of this,

17

meaning this.

18

Q. Meaning this lawsuit?

19

A. Bringing this lawsuit, to have to have coaches do

20

things that were against the integrity and the best for

21

their team.

22

Q. And how did she respond?

23

A. What she said or how --

24

Q. What did she say?

25

A. She said she understood but she was really excited to

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 129 of 132 724

1

get a head coaching job and she believed she had to do

2

what the university wanted her to do.

3

MR. ORLEANS: Nothing further, Your Honor.

4

THE COURT: All right. Thank you, you're

5

excused

6

(Whereupon the witness was excused.)

7

MS. FRIEDFEL: Your Honor, I just have a small

8

housekeeping matter. I have a copy of the DVD for the

9

court.

10

THE COURT: Very good.

11

MS. FRIEDFEL: Exhibit F E.

12

THE COURT: It's the DVD that corresponds to

13

F E?

14

MS. FRIEDFEL: Yes.

15

THE COURT: Very good. Thank you.

16

MR. ORLEANS: Your Honor, subject to some

17

housekeeping, the plaintiffs would rest at this time.

18

Mr. Brill and I have talked, we want to make

19

sure that we were all in agreement as to what exhibits

20

have been admitted and go through the list and make sure

21

that we offer up the ones that we haven't used if we

22

really would need them.

23

We want to make sure that the deposition

24

exhibits have been submitted with the depositions so that

25

Your Honor will know what the witnesses are talking about.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 130 of 132 725

1

We have this offer by the defendants of a

2

portion of Yiamouyiannis' report and deposition that I

3

need to review. So I would think tomorrow we'll be able

4

to address those things but we have no more witnesses to

5

call.

6

THE COURT: I was going to recommend that you go

7

over the exhibits because it's not unusual, especially in

8

this format, to realize -- I think Mr. Brill had a bad

9

experience yesterday -- to realize that an exhibit you

10

need to get in you haven't quite moved in yet.

11

Okay, so where are we in terms of defense

12

witnesses? You suggested the possibility of calling

13

another witness?

14

MR. BRILL: We have Tracy Flynn, we have Rick

15

Seely.

16

THE COURT: Right.

17

MR. BRILL: And I want to evaluate the testimony

18

this afternoon to see if I need to respond to any of her

19

testimony. If so, if it's only in for state of mind

20

evidence, I'm not sure it's necessary to respond to that,

21

but if there's anything more we think the court needs to

22

hear, we'll evaluate that this afternoon.

23

THE COURT: All right. Very good. So we'll see

24

you back here tomorrow at 9:00 o'clock. We'll stand in

25

recess.

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 131 of 132 726

1

MR. ORLEANS: Thank you, Your Honor.

2

(Whereupon the above matter was adjourned at

3

12:20 o'clock, p. m.)

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:09-cv-00621-SRU Document 177 Filed 07/21/10 Page 132 of 132 727
C E R T I F I C A T E
I, Susan E. Catucci, RMR, Official Court Reporter for the United States District Court for the District of Connecticut, do hereby certify that the foregoing pages are a true and accurate transcription of my shorthand notes taken in the aforementioned matter to the best of my skill and ability.
/S/ Susan E. Catucci __________________________
Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604
Tel: (917) 703-0761

 
 Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 1 of 121 728

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - x

STEPHANIE BIEDIGER, ET AL vs.
QUINNIPIAC UNIVERSITY

: No. 3:09cv-621 (SRU) : 915 Lafayette Boulevard : Bridgeport, Connecticut : : June 21, 2010 :

- - - - - - - - - - - - - - - - x

BENCH TRIAL

B E F O R E: THE HONORABLE STEFAN R. UNDERHILL, U. S. D. J.

A P P E A R A N C E S:

FOR THE PLAINTIFFS:

PULLMAN & COMLEY 850 Main Street P.O. Box 7006 Bridgeport, Connecticut 06601-7006
BY: JONATHAN B. ORLEANS, ESQ. ALEX V. HERNANDEZ, ESQ.

KRISTEN GALLES, ESQ. Equity Legal 10 Rosecrest Avenue Alexandria, Virginia

22301

FOR THE DEFENDANT:

WIGGIN AND DANA, LLP 400 Atlantic Street P. O. Box 110325 Stamford, Connecticut 06911-0325
BY: MARY A. GAMBARDELLA, ESQ.

(CONTINUED)

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 2 of 121 729
PROSKAUER ROSE 1585 Broadway New York, N. Y. 10016
BY: EDWARD A. BRILL, ESQ. SUSAN D. FRIEDFEL, ESQ. REBECCA BERKEBILE, ESQ.
Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604
Tel: (917)703-0761

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 3 of 121 730
I N D E X WITNESSES: RICK SEELEY Direct Examination by Mr. Brill..................735 Redirect Examination.............................768 Cross Examination by Mr. Orleans.................764 TRACEY FLYNN Direct Examination by Ms. Friedfel...............769 Redirect Examination.............................835 Cross Examination by Mr. Hernandez...............812
-0-

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 4 of 121 731

1

(9:10 O'CLOCK, A. M.)

2

THE COURT: Good morning. Sorry for the delay.

3

This doesn't count as a forfeit, does it?

4

MR. BRILL: What's that?

5

THE COURT: Are there forfeiture rules when you

6

start a contest late or --

7

MR. BRILL: You have two more minutes, Your --

8

Honor.

9

THE COURT: Good.

10

MR. ORLEANS: What was the tennis match we were

11

thinking of yesterday, 59 games without a result?

12

THE COURT: No, 118 games without a result.

13

MR. ORLEANS: 59-59, right.

14

MR. BRILL: Your Honor, just a few preliminaries

15

before we call our first witness this morning.

16

We are pleased to report that we have an

17

agreement with the plaintiffs with respect to the

18

Yiamouyiannis report and transcript. So, for the record,

19

we've agreed to put into evidence paragraphs 18 through 27

20

of her report, which is Plaintiff's Exhibit 115. That's

21

paragraphs 18 through 27. This is largely on the subject

22

of emerging sports, Your Honor, and there's no question

23

she's an expert on those areas.

24

THE COURT: Okay.

25

MR. BRILL: Secondly, we also agreed to put in

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 5 of 121 732

1

pages 171 through 183 of her deposition -- and I'll hand

2

up that as an exhibit -- with the understanding,

3

stipulation and understanding, so the court understands,

4

that when the Committee on Women's Athletics first

5

designated number of sports as emerging sports in 1994,

6

that the rules for designating an emerging sport were not

7

the same as they are today. So there's reference in here

8

to what happened in 1994. The court should just

9

understand that was under a different set of rules.

10

THE COURT: That's fine.

11

MR. ORLEANS: I'll confirm that's our agreement.

12

THE COURT: In terms of her deposition, let's

13

treat that as we did the other depositions. I'll take it

14

as a transcript but not as an exhibit.

15

MR. BRILL: All right. I don't have the cover

16

page on it, if Your Honor wants us to recopy it with the

17

cover page.

18

THE COURT: That's not necessary for me. It

19

will be obvious what it is.

20

MR. BRILL: You might have a little trouble

21

spelling her name but I think it's on her report. So --

22

THE COURT: Very good. Thank you.

23

MR. BRILL: I think I can actually spell it now

24

but I'm not going to try.

25

One other preliminary, Your Honor. I think we

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 6 of 121 733

1

have an agreement on this. On the Carolyn Martin

2

deposition she's the women's track coach, there were a

3

number of exhibits that were used at the deposition.

4

THE COURT: Right.

5

MR. BRILL: They were designated Exhibits A A

6

through B F and in those, those are the same as trial

7

Exhibits A A through B F and I believe -- I spoke to

8

Mr. Orleans this morning and it's my understanding that

9

the plaintiff does not object to the admission of any of

10

these exhibits.

11

MR. ORLEANS: That's true, Your Honor.

12

THE COURT: Very good, they are all full.

13

MR. BRILL: If I could just add a couple other

14

things.

15

MR. ORLEANS: Go ahead.

16

MR. BRILL: I just wanted to advise the court

17

that we will be filing this afternoon the brief that I

18

mentioned in response to the government's amicus brief,

19

and we hope and plan on -- or I should say that we plan

20

and hope to file our findings of fact and conclusions of

21

law so the court has them in advance of the argument

22

tomorrow.

23

THE COURT: Great.

24

MR. BRILL: Thank you.

25

THE COURT: Thank you.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 7 of 121 734

1

MR. ORLEANS: Your Honor, on our part, with

2

respect to the Samuel Seemes deposition that has been made

3

part of the record at the instance of the defendant, there

4

are two plaintiff's exhibits that are referenced in

5

Mr. Seemes' deposition transcript and they are already in

6

evidence but under different numbers, so I thought it

7

might be more convenient for the court and the clerk if I

8

handed up copies of those Seemes exhibits that could be

9

kept with the Seemes transcript so that the court would

10

have access to those with the exhibit stickers.

11

THE COURT: That's fine. Any problem with that?

12

MR. BRILL: Oh, no, Your Honor. You may want to

13

say for the record what the corresponding exhibit numbers

14

are.

15

MR. ORLEANS: And I could do that probably at

16

the next break but I can't do it right this instant.

17

MR. BRILL: I'm shocked. Shocked.

18

MR. ORLEANS: And, Your Honor, we also hope to

19

have filed by the end of the day today our trial brief and

20

our proposed findings of fact and conclusions of law.

21

THE COURT: Very good. Okay.

22

MR. BRILL: I'd like to call --

23

THE COURT: Just before you do that, let me

24

inquire whether plaintiff has had a chance to look over

25

the exhibits and determine whether there were any other

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 8 of 121 735

1

exhibits plaintiffs want to have admitted during their

2

case in chief.

3

MR. ORLEANS: There are, Your Honor, a few but I

4

haven't had a chance to talk about them with defense

5

defense counsel yet. Could we do that at the next break

6

and when we come back on the record after at the break, be

7

prepared to do that?

8

THE COURT: That's fine. I just didn't want to

9

overlook that.

10

MR. BRILL: Good morning. The defendant calls

11

Mr. Rick Seeley.

12

THE COURT: Sir, please remain standing and

13

raise your right hand.

14

R I C K

S E E L E Y,

called as a witness on

15

behalf of the Defendant, having been duly sworn by the

16

Court, testified as follows:

17

THE COURT: Please be seated, state your name

18

for the record and spell your last name, please?

19

THE WITNESS: Rick Seeley, S-E-E-L-E-Y.

20

THE COURT: Thank you.

21

DIRECT EXAMINATION

22

BY MR. BRILL:

23

Q. Good morning, Mr. Seeley.

24

A. Good morning.

25

Q. Are you currently employed by Quinnipiac University?

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 9 of 121 736

1

A. Yes, I am.

2

Q. And what is your position?

3

A. Head women's ice hockey coach.

4

Q. How long have you been so employed?

5

A. Two years.

6

Q. And do you have an employment contract?

7

A. Yes, I do.

8

Q. For what period of time? What's the period of time?

9

A. Five years.

10

Q. And can you tell us your prior work experience?

11

A. Prior to Quinnipiac I was head coach for the woman's

12

ice hockey team at Clarkson University for five years.

13

And before that, the head coach for women's ice hockey at

14

Manhattanville College for four years.

15

Q. Now, I want to take you to time last spring. And do

16

you recall an occasion when Mark Thompson spoke to a group

17

of coaches?

18

A. Yes, I do.

19

Q. Can you tell us what you recall about that meeting?

20

A. Well, I remember it was in the university club which

21

is the only time we've had a staff meeting there. We --

22

it was basically our introduction to him as our superior.

23

And at that point the roster numbers that we were expected

24

to have were proposed to us.

25

Q. Did you get them in writing?

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 10 of 121 737

1

A. Yeah, there was a sheet that listed every team.

2

Q. And do you recall anything else that Mr. Thompson

3

said about the roster numbers or the process of sending

4

roster numbers for the various teams?

5

A. That they were based on the national average. My

6

recollection of the meeting was more of an introduction of

7

him and just the general state, you know, of our

8

department that was good and basically moving forward.

9

Q. Did he say anything, did he tell the coaches anything

10

about what they ought to do if they had any questions

11

about their roster, proposed roster numbers?

12

A. He encouraged us all to set up a meeting with him.

13

Q. Now, at the time that you -- by the way, what was the

14

roster number that you received at that meeting?

15

A. At that meeting it was 27.

16

Q. And at that time what was the status of your

17

recruiting for the coming year?

18

A. I had 25 committed and I was in the process of

19

talking to a 26th.

20

Q. Okay. Now, did there come a time when you

21

communicated with the incoming players over, or with all

22

players that you expected to have on the team for the

23

2009, 2010 season?

24

A. Yes, I have the same process every year and basically

25

mid June I contact the freshmen and tell incoming

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 11 of 121 738

1

freshmen, tell them what's expected and then a couple

2

weeks later I send an email to the entire team.

3

MR. BRILL: Now, Your Honor, I'd like to mark a

4

document as an exhibit that Mr. Seeley gave to us this

5

morning but unfortunately there's some personal

6

information in here we need to redact before we can put it

7

in the court record, addresses and phone numbers and so

8

on. May I mark the exhibit and show it to them and then

9

substitute the redacted version?

10

THE COURT: Of course.

11

MR. BRILL: Thank you.

12

MR. ORLEANS: No objection.

13

MR. BRILL: I've given a copy to plaintiff's

14

counsel and can I proceed a provide a copy of the

15

unredacted version to the court?

16

(Hands Court.)

17

THE CLERK: G N.

18

MR. BRILL: G N, right. Let me show this --

19

BY MR. BRILL:

20

Q. (Hand witness) -- to Mr. Seeley. Can you identify

21

that document?

22

A. Absolutely. It's, this is, this the first email I

23

sent.

24

Q. Could I show this to the judge?

25

(Hand Court)

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 12 of 121 739

1

A. This is the email I sent to the incoming newcomers.

2

There's one transfer and I believe 12 or 13 freshmen,

3

so --

4

Q. And what's the second page?

5

A. The second page is the entire roster at that point.

6

Q. How many players are on that roster?

7

A. Twenty-six.

8

Q. And are those the 26 that you ended up eventually

9

having on the team for the year?

10

A. Yes.

11

Q. Same 26? And then I believe there's a letter -- I

12

don't have it in front of me but there's a letter?

13

A. This is the letter I sent to the freshmen.

14

Q. Okay. I just call the court's attention to -- if I

15

can just see that for a minute, Mr. Seeley, there's a

16

paragraph -- I'd actually like to call the court's

17

attention to the second paragraph in the letter.

18

And, Mr. Seeley, when you say in this letter that

19

there's a mix of incoming players, some of whom may make

20

an immediate impact and others who might need a year or so

21

to develop into solid contributors, can you describe for

22

the court what you were referring to in terms of the

23

incoming players?

24

A. Well, whether I bring in two or 13, there's going to

25

be a range of talent level. And here I've got some of the

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 13 of 121 740

1

best players in Canada coming and so they are the ones,

2

from a coache's standpoint, you know, will contribute

3

right away. There's others -- I mean you're recruiting

4

basically in three phases. You have your top group, you

5

have your solid and what you consider your bottom group

6

and we're all competing for the same players.

7

So the bottom level recruits are the kids that we

8

think have potential if they come in, work hard and

9

understand their role and they could develop into players

10

that are going to contribute. And that's basically what

11

I'm telling them, that they are, none of them should have

12

any expectations because there's a wide range where they

13

could end up in the program.

14

Q. And what was your experience at the other two schools

15

where you had served as coach before in terms of, you

16

know, how the roster turned over when you first arrived?

17

A. Well, it's pretty much my M O. I started two

18

programs and had taken over a third, but there's a lot of

19

turnover in the first couple of years.

20

Q. Why is that?

21

A. I'm a real disciplinarian and I expect total

22

commitment and good attitude and good work ethic. And

23

it's hard when you're starting or taking over a program

24

that traditionally didn't have that kind of discipline for

25

everyone to buy in. So traditionally there's, I derive

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 14 of 121 741

1

about ten players a year for my first two or three years.

2

Q. Did there come a time after this email to your 26

3

players that you had a conversation with Mr. Thompson

4

about the roster size?

5

A. Yeah, I believe sometime in the next few weeks,

6

because I hadn't had my meeting with Mark yet, so I

7

believe I contacted either him or his secretary through an

8

email and Mark immediately got back to me and suggested we

9

talk on the phone later that day.

10

Q. And what did you say and what did he say in that

11

conversation?

12

A. Well, he wanted to make it clear that there's going

13

to be an open ongoing dialogue about our roster number and

14

he wanted to make sure it fit well for the program. I

15

told him that at this point I did have 26 but it would be

16

impossible to recruit a 27th and 27 didn't make sense to

17

me.

18

Q. Why? Did you tell him why?

19

A. Yeah, because with 26 I have a spare at each position

20

in terms of someone who can replace someone who's injured

21

or someone who could develop.

22

Q. What do you mean by each position, Mr. Seeley, could

23

you explain?

24

A. In ice hockey there are five skating positions and

25

goal defending positions. So there's three floor

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 15 of 121 742

1

positions, left wing, right wing and center; two defensive

2

positions, right defense and left defense. With five

3

nondressers it gives me the ability to have a great

4

practice that's not disrupted. It gives me the

5

opportunity that if someone's not playing well or

6

someone's injured, the non dresser's just one player, you

7

know, one injury or one good week of practice away from

8

playing, but if you add a 27th player in there you're

9

spending all your time when you're planning practice

10

trying to fit that 27th player in there.

11

So after that conversation, which Mark was open to,

12

he contacted me the next day and said it makes sense and

13

he adjusted my number to 26.

14

Q. Now, Mr. Seeley, you've talked about 21 dressers --

15

was that the term you used?

16

A. Yes.

17

Q. Can you explain that?

18

A. The NCAA limits us to 21 dressing players for each

19

competition, so we have 18 skaters and three goalies that

20

are permitted to dress for a game.

21

Q. And what happens to the other players on the team who

22

don't dress?

23

A. This year we had them do video, we had them do game

24

breaker. They are all involved in the competition one way

25

or another.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 16 of 121 743

1

Q. Okay. Can I direct your attention to exhibit,

2

Defendant's Exhibit C B which should be in a book in front

3

of you -- C B?

4

THE COURT: Just a quick follow up. Are the

5

nondressers the same people throughout the year?

6

THE WITNESS: When you have a team like I had

7

prior to last year, our team only won three games so we're

8

not recruiting the best players in the world yet, although

9

we did have some that would be considered close to that.

10

But the lowest players were pretty consistent. There was

11

some movement but not a lot. I anticipate a lot more

12

movement this year because it's a lot more competitive

13

roster.

14

BY MR. BRILL:

15

Q. Could you look at Exhibit C B, Mr. Seeley, and tell

16

us if this is the email exchange you had with Mr. Thompson

17

that you just testified to?

18

A. Yes.

19

Q. Okay. Now, did there come a time when you received a

20

letter from Jack McDonald concerning your roster for the

21

coming year?

22

A. Yes, I did.

23

Q. And I'm going to direct your attention to Exhibit

24

B O. Let's see if that's in front of you as well. It's

25

probably in a different book. I think that's a

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 17 of 121 744

1

plaintiff's book --

2

(Pause)

3

Looking at Exhibit B O, can you tell us if that's a

4

copy of the letter that you got from Mr. McDonald in July?

5

A. No, this is Dan --

6

Q. I'm sorry, turn to -- all the letters are together in

7

one exhibit. Is there, look at page D 94. Or 94 --

8

actually the bates number is cut off but why don't you

9

look through and see if you can find the letter that was

10

sent to you.

11

A. Yes.

12

Q. What's the bates number on that, the bottom right

13

corner?

14

A. D 94.

15

Q. D 94?

16

THE COURT: Yes, it's cut off. I think it's 94

17

something.

18

MR. BRILL: Okay.

19

THE COURT: I see it.

20

BY MR. BRILL:

21

Q. But this is the letter you received from

22

Mr. McDonald?

23

A. Yes.

24

Q. And you signed it on July 30th?

25

A. Correct.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 18 of 121 745

1

Q. Did you -- now this letter is dated prior to your

2

conversation that you testified to with Mr. Thompson, but

3

do you recall either getting, do you recall whether you

4

got a letter after your conversation with Mr. Thompson?

5

A. I believe I did.

6

Q. Okay, and you signed it on July 30th?

7

A. Yes.

8

Q. And how soon after you got the letter did you sign

9

it, if you recall?

10

A. I honestly can't remember.

11

Q. Can you recall how you received the letter?

12

A. Through campus mail.

13

Q. Through campus mail?

14

A. Yes.

15

Q. In your office?

16

A. Yes.

17

Q. Now, let me call your attention to Exhibit E L.

18

Again that's in probably the first book that we were

19

looking at. I ask you to look through the pages of E L

20

and see if you can find a copy of the roster for the

21

women's ice hockey team. And I direct your attention to

22

bate number D 9130. I'm sorry, D 9135 and 37?

23

A. Yes.

24

Q. Is that your signature on 9137?

25

A. Yes, it is.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 19 of 121 746

1

Q. And was this the -- this is the roster for the

2

women's ice hockey team as of the first date of

3

competition for the 2009, 2010 season?

4

A. Yes, it is.

5

Q. Okay. Okay. Next I'd like to direct your attention

6

to Exhibit E W.

7

A. I don't believe it's in this book.

8

Q. Do you have the book there? And, again, this exhibit

9

includes documents relating to a number of teams but if I

10

can direct your attention to page D 0859 and ask you if

11

you recognize that as the end of season statistics for the

12

women's ice hockey team?

13

A. Yes, it is.

14

Q. And I guess it doesn't give your final won/loss

15

record here but what was your record for the year?

16

A. Nineteen, ten and eight. Actually that is at the

17

top.

18

Q. Okay. Now, if you look at the list of players and it

19

says G P, that I assume stands for Games Played?

20

A. Yes.

21

Q. And there's a handful of players, Kelsey Britton,

22

Kate Colucci and Jessica Puig. Is that how you pronounce

23

her name?

24

A. Yes.

25

Q. Who are only in a handful of games. Are these the

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 20 of 121 747

1

additional players who didn't dress for the most part that

2

you were mentioning before?

3

A. Yes, generally.

4

Q. And how would you describe their contributions to the

5

team in comparison to the other players?

6

A. Well, Kelsey Britton is one of our favorite players,

7

even though she doesn't dress. She was our team captain

8

this spring and will probably be one of our captains next

9

year and she probably won't dress a game. Her

10

contributions, she was the coaches award winner because

11

her contributions are endless. She the first there, the

12

last to leave. She promotes the team in every way and has

13

one of the best attitudes I've ever coached.

14

Q. Even though she doesn't dress for games for the most

15

part?

16

A. Right.

17

Q. Had you considered cutting her from the team to make

18

room for a more skilled player?

19

A. Never, never. She brings too much to the program.

20

For my program the attitude is just as important as the

21

skill.

22

Q. And what about Colucci and Puig?

23

A. They were brought in and when I recruit, I'm totally

24

upfront about, you know, obviously it was stated in that

25

letter there was a wide range, but when I recruit I tell

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 21 of 121 748

1

everyone they have to earn everything they get and these

2

two, they were the ones I was referring to. If you put in

3

the effort for a good year, you might be able to work your

4

way into the program if your attitude is great and your

5

work ethic is great. Kate Colucci started out that way

6

and we, we patted her on the back a lot in front of the

7

team and give her a promise but I think she interpreted

8

that as she should be playing now and so her attitude

9

changed pretty quickly.

10

Jessica Puig tried to stick it out and tried to

11

maintain a positive attitude but it just wasn't there at

12

the end of the year. So --

13

Q. Did anybody tell you you couldn't cut players from

14

the team during the season?

15

A. Absolutely not.

16

Q. Did you have any understanding about what the

17

procedure was if you wanted to either add a player or

18

delete a player from the squad?

19

A. My understanding was we had, we should run that

20

through Mark Thompson's office.

21

Q. And did you ever request during the season to cut

22

anybody and get any response?

23

A. Nope.

24

Q. You didn't. Okay. Did Puig and Colucci continue to

25

practice -- well, let me start did they ever practice with

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 22 of 121 749

1

the team?

2

A. They practiced everyday.

3

Q. And did there come a point when they stopped, either

4

one of them stopped practicing?

5

A. Jessica Puig, maybe with about two weeks left in the

6

season, we had probably about four weeks, we said,

7

Jessica, you're going to have to really improve your

8

effort. The team's outgrowing you and you're starting to

9

get in the way in practice. We thought she had the

10

ability to keep up. We just thought she was losing

11

interest and I think she loved the Quinnipiac experience

12

and was being drawn away from the hockey team. So we

13

basically said it's got to change in the next week or two

14

or we're going to go into the play-offs without you. Kate

15

Colucci was on the roster right to the end; practiced the

16

last day of practice.

17

Q. And incidentally, for the walk-ons or the

18

nonrecruited players on the team that you mentioned, did

19

they play hockey in high school or on an amateur basis

20

before you recruited them?

21

A. At this level every player is going to have a pretty

22

solid hockey background but they are varied. You know,

23

Kate Colucci comes from Rhode Island which isn't a hockey

24

hot bed but she was an all-state hockey player in Rhode

25

Island.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 23 of 121 750

1

Same with Jessica Puig in Illinois, she was all-state

2

in Illinois. That doesn't translate to being a great

3

player but it translates to having the potential to

4

contribute.

5

Q. I'd like to turn your attention to Plaintiff's

6

Exhibit 150 for a minute. I think it might be in one of

7

the other notebooks that's to your --

8

Q. Do you have Exhibit 150? This is headed Supplemental

9

Report of Donna Lopiano. Actually it's -- let me see.

10

MR. BRILL: Your Honor, I'm just trying to help

11

with the exhibits.

12

BY MR. BRILL:

13

Q. You'll see 150 is a series of charts that were

14

prepared by the plaintiff's expert witness, Dr. Donna

15

Lopiano. And I'd ask you just to, these pages are not

16

numbered unfortunately, but if you could find a page

17

referring to women's ice hockey, it may be a little hard

18

to see. The teams are labeled right at the bottom of

19

the -- right, these are the names of the various teams?

20

A. Yes.

21

Q. Okay. And you see that Dr. Lopiano under the column

22

Red Flag notes has, entered a note about six players here.

23

Now, you've already talked about Catherine Colucci?

24

A. Yes.

25

Q. And I believe you've already testified that it was

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 24 of 121 751

1

not correct that you were not allowed to cut until the end

2

of the season?

3

A. Right.

4

Q. Did you ever send an email that suggested that?

5

A. No.

6

Q. I don't think you talked about Christina Finoia.

7

A. No.

8

Q. Can you tell us about Christina Finoia's

9

participation at the time?

10

A. Sure. Christina was -- earlier I mentioned when I

11

talked to Mark Thompson I had 25 committed and I was

12

working on the 26th player. That was Christina Finoia.

13

She was an interesting case because I had, when I

14

arrived at Quinnipiac her father was the first person who

15

e-mailed me, welcomed me. He was involved with local

16

girls hockey and was trying to bring me up to date.

17

Q. You said when you first arrived several years ago as

18

the coach?

19

A. Yes. And basically wanted to know if we could work

20

together and how we're going to fix women's ice -- girls

21

ice hockey in Connecticut and so on. So we developed a

22

relationship and he coached the local team. On that team

23

was a goalie we were recruiting as our third string

24

goalie. So we went to one of the games.

25

So I was really impressed with the work ethic of one

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 25 of 121 752

1

of his players and when I talked him after he said "She's

2

my daughter and she's going to Quinnipiac," and I said,

3

"Oh. Does she always work this hard?" He said, "Yes,

4

it's a great characteristic of her."

5

So as a start we were deciding who, should we have

6

this player who potentially would only last a year but we

7

were having this debate because we did like the idea of

8

finishing out the roster at 26 so we had five lines --

9

Q. Why do you say that she would potentially only last a

10

year?

11

A. Because she was one of those, the program was going

12

to be growing pretty quickly. She was one who would have

13

to work really hard just to contribute in practice, but if

14

she could handle that role and I met with her and

15

basically told her that that might be the case, it might

16

be a one year thing and you might never play a game, but

17

the potential is you maybe by the end of the year you're

18

playing ten games and you'll have an experience you never

19

even considered. And she seemed really excited about this

20

possibility and so she was the 26th player. We rounded

21

things out.

22

Q. And these conversations were before you had any

23

discussions with Dr. Thompson or Jack McDonald about your

24

roster number for next year?

25

A. Right. I scouted their team in January, maybe early

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 26 of 121 753

1

February. But, you know, we were in that process and when

2

the roster number came up we went okay, well, then as long

3

as she's excited about the opportunity and understands

4

that it can go both ways, let's go with it.

5

Pretty soon after, playing time was an issue which

6

caught us off guard so all of sudden her attitude was

7

swaying and we went on a road trip and she was partying at

8

home breaking team rules. And we had a talk with her and

9

basically we had a couple more talks as we tried to work

10

through it and she made the statement, she basically

11

admitted she was not mature enough to handle the

12

responsibiity for this kind of opportunity. Her grades

13

were suffering at that point in time which is important in

14

our program.

15

So I suggested to her that we, let's stop practicing,

16

let's get our head on straight, let's adjust to college

17

life, let's get your grades up. I said I'd like to keep

18

you on the roster so if we run into injury problems like

19

we did the year before, we have someone who understands

20

the program a little bit already and has been here and

21

would that appeal to you? And she said yes and I said

22

"You understand that you're still, you have to still live

23

by our rules. You're still representing the hockey

24

program and the institution and the local community."

25

And she accepted that responsibility, her grades went

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 27 of 121 754

1

from failing grades to 3.4 or 3.5 and she was a model

2

citizen. We ended up not having injury problems, we

3

didn't have to call her back but, you know, that was

4

realistic compared to the year before.

5

Q. And Coach Seeley, how long into the season did she

6

stop practicing?

7

A. Well, if I consider the first day that we're allowed

8

to work out together, probably two and-a-half months

9

maybe, two months, two and-a-half months?

10

Q. And --

11

THE COURT: She didn't play in a game.

12

THE WITNESS: No.

13

THE COURT: She's not on your sheet of people

14

who played in a game?

15

THE WITNESS: No.

16

THE COURT: But you have 26 people listed as

17

people played in a game, 23 players and three goalies, so

18

who is it --

19

THE WITNESS: Could I just check that?

20

(Pause)

21

MR. BRILL: Well, one of the goalies is a woman

22

named Empty Net.

23

THE COURT: Oh, very good. I wasn't looking at

24

it, I just saw the name.

25

MR. BRILL: Empty Net did not do very well.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 28 of 121 755

1

(Laughter)

2

THE WITNESS: She was actually my starter the

3

year before.

4

THE COURT: That's when they put me in. All

5

right, got it. Okay. But Empty Net played ten games.

6

MR. ORLEANS: Maybe that says something about

7

the reliability of this result sheet.

8

THE WITNESS: Those were her numbers? Not bad.

9

(Laughter)

10

BY MR. BRILL:

11

Q. Okay, the next player down on the red flag list,

12

Coach Seeley, is Stacy Kmill?

13

A. Yes.

14

Q. Can you tell us the situation with Stacy Kmill?

15

A. Stacy was one of the, she was a sophomore this year

16

so she was one of the players I recruited when I first got

17

here in May of '08. So clearly it's after the recruiting

18

process, so anyone we recruited at that point was a bit of

19

a risk in terms of really understanding what they were

20

going to bring to the table.

21

Again, everything in my recruiting process is put on

22

the table in terms of potential opportunity and where

23

things can go. And Stacy has questioned us from day one

24

and felt that she wasn't being treated fairly and so her

25

attitude has progressively gotten worse over two years.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 29 of 121 756

1

So by the end of this year the three coaches just said it

2

looked like she wasn't going to be -- even though she was

3

a scholarship athlete, it looked like she was on the fifth

4

line in our depth chart which is a nondressing player.

5

And our opinion was she was a negative influence on a

6

dressing player. We talked to her captains and they

7

thought there was no way she could be a positive

8

contributing member as a nondresser. So we decided to

9

remove her from the program.

10

Q. She was a scholarship player?

11

A. Yes, full scholarship.

12

Q. She played 34 games if I'm reading this directly?

13

A. Yes, each year she was suspended for a game or two

14

for indiscretions, but other than that she dressed every

15

game.

16

Q. And what about the next red flag. Polci?

17

A. I'm not sure -- I don't have my glasses -- but why is

18

she referred to as red flag?

19

Q. What was the situation with --

20

A. Bree is just a great kid who worked hard, and her and

21

her family were more about status in terms of where they

22

worked in the program and at the end of the year we meet

23

with all our players and tell them what we thought of

24

their season, where we see them in the years to come, and

25

her and her family weren't happy with her position in the

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 30 of 121 757

1

program, even though we thought it was positive, and they

2

requested a release.

3

Q. She was on a scholarship?

4

A. Yes.

5

Q. And the family requested a release?

6

A. Yeah, we didn't cut her; she decided to leave.

7

Q. And let's look at the next red flag. We talked about

8

Jessica Puig, is that correct?

9

A. Yes.

10

Q. And I guess the last one is a woman named Carrie

11

Wilson?

12

A. Yes. Carrie, you know, we'll take responsibility as

13

coaches of not evaluating properly but, again, she was in

14

the program, full scholarship athlete, who just didn't

15

work hard, didn't live up to her advanced billing and her

16

playing time dwindled. I think you see she probably only

17

dressed a third to a half of the games and it was the same

18

situation. We explained where she fit in the program and

19

her and her family weren't happy with it and she requested

20

a release, I believe it was in December or January but she

21

still dressed for games after that.

22

Q. Through the end of the season?

23

A. Not through the end of the season. Because the last

24

game she dressed, Princeton, she got a concussion so she

25

wasn't eligible to play.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 31 of 121 758

1

Q. She was injured at that point?

2

A. Yes, she was still showing up for practice and

3

sitting in the stands but she couldn't participate.

4

Q. The players who did not dress for the team, the last

5

group of five or so, you mentioned that during the games

6

they had certain functions they would perform during the

7

practices; did they participate with the other players?

8

A. Everyone participated in their practices equally.

9

They were all expected to do the same things.

10

Q. Did they get the same access to medical facilities

11

and trainers?

12

A. Oh, absolutely.

13

Q. Did they have uniforms?

14

A. Everything was the same for -- because the

15

nondressers could change. It wasn't like we were treating

16

them differently. They all had to be ready to play at any

17

point and they were all treated the same. I chose at

18

times not to bring people on the road based on either

19

discipline or they didn't work hard enough during the week

20

of practice but we could travel with the whole roster.

21

Q. Did you advise the Athletic Department about your

22

decision to delete the number of women from the roster

23

after the end of the season?

24

A. Yes, I did.

25

Q. And what was the response -- who did you communicate

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 32 of 121 759

1

with?

2

A. Well, the first person that I let know is, and the

3

reason I did is a letter went out, an email went out

4

either from Tracey Flynn or Lyneene Richardson for the

5

entire roster and I emailed them saying this six won't be

6

on the team next year so other than having to get things

7

back from them, could you not include them on our roster

8

or in any correspondence.

9

Q. And was there further communication?

10

A. I believe they both accepted, told me they got the

11

email. Tracey said I would probably want to make Mark

12

Thompson aware of this group immediately.

13

Q. And did anyone ask you for an explanation?

14

A. Jack sent me an email, something along the line --

15

Jack McDonald, my A D -- saying we have to talk about

16

this. I emailed him back and said whenever you like. And

17

he asked if I could just pull an explanation together

18

because a few people in the department were concerned. My

19

interpretation was not because of roster numbers but

20

that's our Athletic Department, they want to make sure

21

that all, in my experience, all the athletes were taken

22

care of and I'm treating them properly. So I basically

23

just wrote a quick email to Jack explaining each of the

24

six individual's specific case.

25

Q. Now, let me just direct your attention to Plaintiff's

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 33 of 121 760

1

Exhibit 147. And I'm sorry for all the notebooks that are

2

arrayed around you but it should be here. 147, do you see

3

that? We can close some of these up.

4

(Pause)

5

And what is Exhibit 147, Mr. Seeley?

6

A. This is Jack's response to the email I sent.

7

Q. And then the next page, is that --

8

A. That's the email.

9

Q. And did you have a meeting to discuss the subject of

10

the six women who were removed from the team?

11

A. I ended up having a conversation with each of the

12

people Jack wanted to set up a meeting with, some on the

13

phone, some in person.

14

Q. And who was that?

15

A. Tracey Flynn, Lyneene Richardson and Sean Duffy, our

16

academic rep.

17

Q. And who is Lyneene Richardson?

18

A. She's the Assistant Athletic Director, oversees the

19

academics of student athletes.

20

Q. Now, I want to call your particular attention to the

21

second paragraph in your email in which you say, "In

22

general last printing we were caught off guard after the

23

recruiting season with an imposed roster number. While I

24

have no problem with it and will do whatever is in the

25

best interests of the department and institution, it left

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 34 of 121 761

1

us scrambling for bodies to fill the roster."

2

A. Well --

3

Q. I'm sorry, were you going to explain that statement?

4

A. Obviously based on the email I found in terms of my

5

correspondence with my team, that wasn't entirely

6

accurate. To say we were caught off guard, yeah, after

7

recruiting process if someone says here's the number and

8

that's not the exact number you have, you say how am I

9

going to change that, especially in any opinion in ice

10

hockey where it's hard to find people who can skate.

11

So --

12

Q. So the 27 caught you off guard; is that what you're

13

saying?

14

A. Right.

15

Q. But you, ultimately you ended up with 26?

16

A. Yeah, I was in a strong position at the time and, as

17

I said, it was just that initial feeling, but I didn't

18

check back -- this email to Jack was just in response to

19

his, so I wasn't checking facts and time and everything

20

else. I just was trying to give an explanation that

21

would, and I thought were fair explanations that would

22

make the other people in the office understand what I'm

23

trying to do with this program.

24

Q. I'm sorry, I didn't hear. Did you say at the time

25

you wrote this email to Jack you did or you did not check

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 35 of 121 762

1

back on the status of recruiting when you got the original

2

roster number?

3

A. I didn't. I just started writing the email.

4

Q. Okay. And did there come a time when you had to set

5

the roster for the upcoming year, 2010, 2011?

6

A. I don't understand the question.

7

Q. In other words, did there come a time in last spring

8

or at some point when you were, you had to start

9

assembling your roster for the upcoming year?

10

A. Right. I mean we're already working on our roster

11

for 2011, 2012 now, so it's an ongoing process. I went

12

into the process understanding that 26 was going to be my

13

number from now on.

14

Q. Did -- actually, and if you look back to the email

15

and I'm not sure that you have it in front of me (sic)

16

but -- in Exhibit C B, which is your July 24th email

17

correspondence with Mark Thompson, you say "We can easily

18

work with 26 as our roster number this season. We have an

19

exceptional recruiting class. We'll have 14 new student

20

athletes on campus this fall, bringing our roster total to

21

26."

22

And then you say, and this this is what I want to ask

23

you about: "I look forward with our experience with this

24

group and feel secure that we can discuss the pros and

25

cons of a roster this size again during the upcoming

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 36 of 121 763

1

season." Can you explain to the court what you meant by

2

discussing the pros and cons of a roster that size?

3

A. Well, Mark had, Mark Thompson in our conversation had

4

said that is an ongoing process and he wants to get

5

feedback from each of us and our experience with the

6

numbers that we were told to use. I hadn't had a roster

7

of 26 before and I made that clear to him, so I was

8

basically saying I'm not sure how this will be. But what

9

I realized, it's more about the character of the

10

individuals than the actual number at 26. And my

11

experience was 26 was great and that's what I want to keep

12

it at. So we didn't, we didn't talk -- I think we had a

13

general meeting at some point during the year but that was

14

maybe one question at a meeting and I just said the

15

number's great, let's keep it here.

16

Q. And do you have a roster now for the upcoming --

17

A. Yes, I do.

18

Q. -- season? And how many players do you have?

19

A. Twenty-six.

20

Q. And they are already recruited?

21

A. They've already got their first letter and they are

22

working on their summer program.

23

Q. Just a few more questions, Mr. Seeley.

24

Did you ever hear Jack McDonald make any comment to

25

the coaches that they would get in trouble if they didn't

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 37 of 121 764

1

sign the roster letters for this year?

2

A. Absolutely not.

3

Q. And do you recall a conversation last week with some

4

of the lawyers for the plaintiffs in this case?

5

A. Yes, I do.

6

Q. And did you say to them anything different than

7

you've just testified to?

8

A. No.

9

MR. BRILL: Nothing further.

10

THE COURT: All right. Cross?

11

CROSS EXAMINATION

12

BY MR. ORLEANS:

13

Q. Good morning, Coach Seeley.

14

A. Good morning.

15

Q. How are you?

16

A. Very well, thank you.

17

Q. I'm John Orleans. We met by telephone a couple weeks

18

ago, didn't we?

19

A. Uh huh. (Affirmative.)

20

Q. And counsel for Quinnipiac were also on that call,

21

weren't they?

22

A. Yes.

23

Q. Could I -- you testified a moment ago, I wanted to

24

make sure that I heard it, you had never carried a roster

25

of 26 before?

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 38 of 121 765

1

A. No, I hadn't.

2

Q. Your roster's previously been smaller than 26?

3

A. Twenty-four -- 23, 24.

4

Q. So always smaller than 26?

5

A. Yes.

6

Q. Okay. Could you look at Exhibit Number 148? You got

7

that --

8

A. Yes.

9

Q. -- handy? This is your, an email from you to Mark

10

Thompson on May 3rd, 2010, isn't it?

11

A. Yes, it is.

12

Q. Okay. And in this email you say that Mr., or

13

Dr. Thompson, "I'm pretty sure we can maintain our

14

assigned roster number, 26, for the next couple of

15

seasons," right?

16

A. Yes.

17

Q. Okay. Did you have a conversation with Robin Sparks

18

at some point in May about the size of the women's ice

19

hockey roster?

20

A. I don't remember specifically but she was in my

21

office, we had a conversation.

22

Q. Specifically on May 26th, do you recall having a

23

conversation with her?

24

A. I remember having a conversation. I don't remember

25

the date.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 39 of 121 766

1

Q. Okay. Do you remember in the conversation that you

2

had with her telling her that your roster target of 26 is

3

really too high?

4

A. I don't remember that.

5

Q. Do you remember telling her in your conversation with

6

her that the last three players on your team are really

7

bottom of the barrel D 3 players?

8

A. I'm not sure I used that terminology but this year

9

that turned out to be the case. I wouldn't say bottom of

10

the barrel Division III players; I would say bottom of the

11

barely Division I players.

12

Q. But you might have said three when you were talking

13

to Coach Sparks, you're not sure?

14

A. It's pretty consistent through any program not in the

15

top of the ten of the country that your bottom players

16

would be top level Division III players.

17

Q. Did you tell Coach Sparks although you plan for -- in

18

words or substance, I'm not trying to give you exact

19

words -- did you tell her in words or substance that

20

although you've planned for a roster of 26, for the next

21

few years you really expect 19 to be your number in the

22

long run?

23

A. Absolutely not. I can dress 21.

24

Q. And this year did you always dress 21?

25

A. No.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 40 of 121 767

1

Q. Sometimes you dressed fewer than 21?

2

A. Sure.

3

Q. Was it your understanding once you got your roster

4

number of 26 that you couldn't go below that?

5

A. For that year.

6

Q. For the year?

7

And if we could look, please, at Exhibit 147. You

8

wrote this and I'm looking specifically at the second

9

page, your message to Jack McDonald on April 6th?

10

A. Yes.

11

Q. You wrote this before you had any involvement in this

12

lawsuit, correct?

13

A. Correct.

14

Q. And Jack -- was it your understanding that Jack

15

McDonald asked you to write this because there was some

16

concern over the news that you had provided that you were

17

cutting six people from the roster?

18

A. Yes.

19

Q. And so at that time you wrote that the imposed roster

20

number had left you scrambling for bodies to fill the

21

roster?

22

A. I did write that.

23

MR. ORLEANS: Nothing further, Your Honor.

24

THE COURT: All right. Any redirect?

25

MR. BRILL: Just a few questions.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 41 of 121 768

1

REDIRECT EXAMINATION

2

BY MR. BRILL:

3

Q. Just to clarify, I believe, Mr. Seeley, you said that

4

you were told that you could not go below the number of

5

26?

6

A. No, I wasn't told that and I did want to expand on

7

that. We were told we'd have to go through Mark if we

8

wanted to add or drop anyone. So the number was imposed,

9

meaning we were told we want you to have 26 but it was

10

still left open there would be flexibility.

11

Q. And if there had been reason for you to cut somebody

12

from the team -- what would be a reason to cut somebody

13

from a team during the season?

14

A. Just, you know, breaking teams rules excessively.

15

Q. If somebody had seriously violated team rules and you

16

felt they shouldn't be on a team anymore, was it your

17

understanding that you could take that issue to

18

Mr. Thompson?

19

A. Absolutely.

20

Q. Now, under what circumstances would you dress less

21

than 21 for a game?

22

A. People weren't working hard enough. I mean generally

23

what I said the last half of the season, if I can't use

24

you in a game based on your work ethic during the week,

25

I'm not going to bother dressing you. Nothing to do with

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 42 of 121 769

1

skill level.

2

MR. BRILL: I don't have anything further, Your

3

Honor. Thank you.

4

THE COURT: Thank you, sir. You're excused.

5

THE WITNESS: Thank you.

6

(Witness excused.)

7

MR. BRILL: Your Honor, we'll substitute the

8

redacted version of those exhibits.

9

THE COURT: Yes, thank you.

10

MS. FRIEDFEL: We'd like to call Tracey Flynn.

11

THE COURT: Good morning. Please remain

12

standing and raise your right hand.

13

T R A C E Y

F L Y N N,

called as a witness on

14

behalf of the Defendant, having been duly sworn by the

15

Court, testified as follows:.

16

THE COURT: Please be seated, state your name

17

and spell your last name for the record.

18

THE WITNESS: My name is Tracey Flynn, F, as in

19

France, L-Y-N-N.

20

THE COURT: Could you just pull that mic around

21

a little? There you go. Thanks.

22

DIRECT EXAMINATION

23

BY MS. FRIEDFEL:

24

Q. Good morning, Tracey.

25

A. Good morning.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 43 of 121 770

1

Q. Are you employed by Quinnipiac University?

2

A. Yes, I am.

3

Q. What is your position?

4

A. My title is Associate Director of Athletics and

5

Senior Woman's Administrator.

6

Q. What are your responsibilities?

7

A. My general, my comprehensive responsibility is to

8

coordinate the NCAA rules compliance effort by our

9

university. And as a Senior Women's Administrator

10

designation that the NCAA requests from Division I

11

schools, and in that regard I mostly represent the

12

university at meetings at the conference level or perhaps

13

the national level that has to be ways that are requested

14

and asked to attend.

15

Q. How many years of experience do you have in

16

compliance?

17

A. I started in the early '90s, like 1991, '92. So 18

18

years or so, only it feels like 30 but it's been 18.

19

Q. I'm going to direct your attention to Exhibit E L

20

which should be in one of those binders there.

21

(Pause)

22

Could you tell us what these documents are?

23

A. Exhibit E L, the first page that I'm looking at is

24

what I recognize as NCAA squad list for women's basketball

25

dated October 26, 2009.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 44 of 121 771

1

Q. Okay. You just flip through the rest of the exhibit;

2

do these also appear to be NCAA squad lists for the other

3

teams?

4

A. Yes, they do.

5

Q. Do you prepare those documents?

6

A. I am one of the primary contributors to the

7

preparation and completion of this document, these

8

documents.

9

Q. And at what point in the year did you and your staff

10

start preparing these squad lists?

11

A. We start preparing these squad lists at about this

12

time right now. It's currently a work in progress on my

13

desk. So late -- early June, late June for the upcoming

14

year.

15

Q. Okay. And now is every name that's listed here a

16

person who is on the team as of the first date of

17

competition?

18

A. As I previously stated, this list has a first date of

19

competition, so yes. Everybody that we are aware of and

20

have been told that is on the team is included on this

21

list and tracked for all their information.

22

Q. Okay, but is every person that's on the list on the

23

team on the first date of competition?

24

A. No, not necessarily.

25

Q. Okay, and why would that be?

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 45 of 121 772

1

A. You may have somebody that was expected to be the

2

team and pre-season starts for men's soccer and they quit

3

during the pre-season period and they started practice so

4

they were on the list. We would be notified that they

5

quit during pre-season and we would so indicate that. We

6

didn't simply delete someone's name never to be seen again

7

on a roster. So there's a process in, associated with the

8

software to monitor those types of changes.

9

Q. Okay. So what would indicate to someone reading this

10

document whether or not the person was on the team as of

11

the first date of competition? You can pick a different

12

example of a squad list if this woman's basketball is not

13

helpful.

14

A. Would you repeat your question, please?

15

Q. I just would like you to explain to the court how, in

16

looking at a squad list, you would determine whether

17

somebody was on the team as of the first date of

18

competition.

19

A. I would keep my eyes on that change in status column.

20

So I would go down line by line. If I was looking at

21

another school's roster, squad lists similar to this, and

22

I would look at that change of status column, keeping in

23

mind that the words basketball case 10/26 was on or just

24

before the first date of competition. And I would look

25

and see what the change of status codes read and what the

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 46 of 121 773

1

dates were.

2

Q. Okay. So if you looked -- let's look at the field

3

hockey team which is actually the next list in the

4

exhibit.

5

A. I'm there.

6

Q. If we look at Veronica Clark in the change in status

7

column under the reason it says C R. Can you explain what

8

that stands for?

9

A. C stands for cut. R stands for the fact that she did

10

not participate in any contest. She did not play.

11

Q. So R is short for red shirt, is that right?

12

A. It's represents red shirt slash did not compete, so

13

if you were to look at the software where you're checking

14

that box, it does say red shirt/did not compete.

15

Q. And then it has a date there. Is that the date on

16

which the person was cut?

17

A. That's the date that the coach would have given me on

18

their change -- the change of status form she submitted

19

regarding Veronica Clark.

20

Q. So if the first date of -- do you know what the first

21

date of competition was for field hockey?

22

A. I'd have to look at their schedule. The change, the

23

squad list, we try to get everything accurate and

24

complete -- well, we have to have everything accurate and

25

complete by the first date of competition. And sometimes

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1

if we're waiting for the eligibility of a student to be

2

determined we'll wait right up until the first date of

3

competition. Sometimes we can get it completed because

4

all the information has come together the day or two

5

before the actual competition. But we certify that

6

everybody is ready to go and this is the first date of

7

competition.

8

I'd like to note that if we got the, if we had the

9

squad list two days, completed and all signed two days

10

before a competition and put this label and there was a

11

change, we'd go back and redo the squad list, reflect that

12

change and discard this first date -- that first, the

13

original first date of competition with a more recent

14

updated competition.

15

Q. So is it your understanding that Veronica Clark then

16

would not have been on the team on the first date of the

17

competition, is that right?

18

A. Correct. She was not going to have the opportunity

19

to play or be considered part of the team, yes.

20

Q. And we talked about the R for red shirt; under what

21

circumstances would you indicate an R in a change of

22

status column?

23

A. If a student has not competed prior to them leaving a

24

team, can be cut or quit or withdraw from the school, they

25

would get an R.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 48 of 121 775

1

An R would also, can also appear at the conclusion of

2

the season for our fall sports. At the conclusion of a

3

fall season, sometime thereafter, we'll take the entire

4

team roster and we'll submit it to the sport information

5

and say, according to your records, did this student

6

athlete compete, yes or no. Then we take that same roster

7

with that information and ask the coaching staff, did this

8

athlete compete, yes or no. When we get their feedback,

9

then the assistant compliance coordinator -- Bob Tipson

10

currently is assigned that responsibility -- he will go

11

through the sport information and coaching staff and say,

12

no, didn't compete. We check that box and then in

13

subsequent printings that student would be listed as a R.

14

Q. So an R could apply to a student who was on the team

15

for the whole season?

16

A. Correct.

17

Q. Is that right? And could also apply to a student who

18

was cut from the team before the season ever started, is

19

that right?

20

A. Correct.

21

THE COURT: Let me follow up a little bit. The

22

dates there for field hockey, there are four changes.

23

There were two adds two days before the report date, there

24

was a cut on the report date and there was a cut maybe two

25

weeks before the report date. Do those dates reflect the

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 49 of 121 776

1

date that you or someone in the athletic administration is

2

notified of a cut or does it reflect the date that the

3

coach actually cut the player?

4

THE WITNESS: I would have to look at the

5

individual change of status form. The coach typically

6

will tell us that that was the date, that as of that date

7

they were cut but to verify the accuracy because it's a

8

question involving quite -- potentially a number of

9

athletes. But it's -- typically the coach will, the form

10

says, you know, sport, student athlete, date of the add or

11

delete, reason for this change. Then they will say --

12

these are the columns on this form. Did they compete this

13

year, did --

14

MS. FRIEDFEL: I can help you out with this. We

15

have the forms.

16

THE WITNESS: There's only two columns left.

17

MS. FRIEDFEL: If you go to Exhibit E O, we can

18

show the court the forms.

19

THE WITNESS: Would you like me to find on

20

Exhibit E O a particular student athlete?

21

THE COURT: Well, maybe in just a moment. Let

22

me ask this.

23

THE WITNESS: Okay.

24

THE COURT: If the information that you had

25

showed that there were too many field hockey players as

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 50 of 121 777

1

compared to the roster management number, would you, for

2

example, with the two adds on 9/2/2009, if that having --

3

after only one cut prior to that. If you're now, if this

4

team is now one over its roster management number, would

5

someone contact the coach and say you're over, you need to

6

cut one and, therefore, Veronica Clark gets cut the day of

7

the report, or is that just a coincidence?

8

THE WITNESS: It could be either.

9

THE COURT: Okay.

10

THE WITNESS: Particularly in field hockey,

11

because it's a fall sport and they are getting ready for

12

their competition right around the time school starts,

13

they have a very, she'll have a very small window where

14

she'll hold a try-out and so that's why she may be looking

15

at a couple different players and deciding who she's going

16

to have on her team in that very -- finalizing the team,

17

including considering a try-out.

18

THE COURT: Okay.

19

THE WITNESS: Such as like if you look at

20

Frederica Mucci on that team, she wasn't recruited and by

21

just looking at this document I would say, and knowing

22

it's field hockey and it's at the very start of the school

23

year, she's getting close to the try-out and she's

24

decided that Frederica is someone she'd like to have on

25

the team and see how she might be able to contribute to

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 51 of 121 778

1

the team.

2

THE COURT: Okay. And with respect to her, she

3

seems to be the only player on the team that has N N after

4

her name. What do the Y and N's in those two columns

5

suggest?

6

THE WITNESS: The two N Ns? Frederica would

7

have been added to the team on the try-out process. As of

8

the first date of competition, she was still, she had just

9

joined the team and she was actually coming from, she was

10

coming from an international high school without knowledge

11

of the NCAA initial eligibility rules or to the degree she

12

needed. So she would have been applying for, to the

13

eligibility center to have her academic status verified.

14

So, on the first date of competition she's on

15

the team, she's practicing, but she has not met NCAA

16

regional eligibility standards yet, so we could put, no,

17

not eligible on this day for the fall semester.

18

THE COURT: So the eligibility, the two columns,

19

what does the F and S stand for?

20

THE WITNESS: Fall and Spring.

21

THE COURT: Got you, okay.

22

BY MS. FRIEDFEL:

23

Q. Now, on Exhibit E O, could you just explain quickly,

24

you described the report already, this is the document

25

that you asked the coached about?

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 52 of 121 779

1

A. Yes, it's a communication, it's meant to be a

2

communication tool and we've had it in place for a number

3

of years and it is a way, as I say, for coaches to let us

4

know that there's been a change on their team. Let us

5

know, meaning the compliance office.

6

Q. Now, on the top of the field hockey report there's a

7

sticker that says or appears to be a sticker that says for

8

2010 EADA report. What does that mean?

9

A. The squad list is done for NCAA purposes all school

10

year. My office looks very much like the witness stand

11

right now with all these notebooks because of all the

12

documentation that we do to support our compliance with

13

the variety of rules.

14

So something that I started recently, for years I've

15

been putting first date of competition labels, so if I'm

16

looking at a whole pile of white papers, for some reason

17

the notebook breaks when I drop it or something, I'll be

18

able to easily find again the first date of competition.

19

We have EADA reports that we use these documents to

20

refer to in completing part of the EADA report. We use

21

these documents, the first date of competition documents

22

that we use to complete an NCAA gender equity report. So

23

I actually, at sometime in the past fall, started to make

24

photocopy of the -- the first date of competition, the

25

official squad list. We made a copy and then put a

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 53 of 121 780

1

different label on it, so now I know these are the ones

2

I'm going to use for the 2010 EADA report.

3

And there's a third copy that has since been labeled

4

that says "To be used for the 2011 NCAA gender equity."

5

So it's just a way to easily identify what the document is

6

and the ones I'm going to be referring to and using to

7

support future reports.

8

Q. Okay. And are you responsible for gathering the

9

information as to who is participating on the teams for

10

the first date of competition in connection with the

11

university's EADA reporting?

12

A. Yes.

13

Q. And would you need any information other than what's

14

on these first date of competition squad lists to

15

determine who should be reported for the EADA purposes?

16

A. No.

17

Q. These are the documents you refer to --

18

A. Yes.

19

Q. -- when you're putting that information together?

20

A. Yes. In fact, for when preparing the EADA report and

21

NCAA gender equity report we have to follow revenue

22

distribution reports, sports sponsorship reports, et

23

cetera, et cetera. I actually converted a few years ago

24

to file folders that have brass tabs on either side, I

25

think I picked up from our health science department.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 54 of 121 781

1

That way if you drop the folder, hoping nothing will fall

2

out because now it's been hole punched into the file

3

folder. And I want to be able to, when I'm doing a

4

report, have somebody else, if they wanted to look at how

5

I came to the numbers or the number of games played or the

6

number of total grants given, I take the source document

7

that I used and, as you can see, I've labeled this one

8

2010 and that is kept as part of the working folder and

9

then the final report is in there.

10

And it kind of just goes back to probably something I

11

learned in seventh or eighth grade science, that when you

12

prove something scientifically, the scientific world

13

doesn't necessarily believe it until other people can

14

replicate it, so it's kind of the same thing. I want to

15

be able to demonstrate -- anybody else will be able to

16

come to the same numbers, additions, subtraction, that I

17

did through the use of the documents that I used as source

18

documents.

19

Q. Okay. If an athlete is unable to play for medical

20

reasons but they receive an athlete scholarship, would

21

they count for your EADA reporting?

22

A. Yes, as long as they have been on the team as of the

23

first date of competition but with that assumption that

24

they started off the year medically able to compete and

25

also had an athletic scholarship.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 55 of 121 782

1

Q. Okay, thanks. Now, we talked a little bit about the

2

add/delete forms a moment ago. Is there a procedure now

3

with respect -- for when a coach wants to make a change in

4

their roster?

5

A. Yes. The process has expanded, and that started this

6

past academic year and the form is still in use but an

7

additional step has been put in and that is to inform the

8

coach to inform Mark Thompson or discuss with Mark

9

Thompson about the addition or deletion of a student from

10

the team.

11

Q. And do you make any changes to the roster before you

12

get Dr. Thompson's approval of those changes?

13

A. I am fairly certain I have fully adopted that process

14

and complied with the request and -- am very supportive of

15

that. I mean there's times when coaches have sent me

16

change of status and I said have you sent this to Mark

17

Thompson or Vice President Thompson? And they'll go,

18

well, I like to be informal and I don't make the change

19

until I get the email, the written confirmation. I've had

20

coaches come in about concerns about an athlete maybe

21

hasn't been feeling well, has talked about quitting a

22

team, what should I do, you know, and how will that

23

maybe affect anything. I said I think, you know, what it

24

sounds like, for example, that sounds like a legitimate

25

concern, things happen in student's lives, but you really

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 56 of 121 783

1

should have a discussion with Vice President Thompson.

2

Q. If you look at Exhibit E N.

3

A. I have E N.

4

Q. What is that?

5

A. It's a change in status log. When a coach submits to

6

me a change in status form, it might have one athlete on

7

it, it might have several athletes on it, depending the

8

time of the year. Maybe during the fall when spring

9

sports are doing their tryouts, I may get a couple from

10

different coaches.

11

In addition to taking that change of status form and

12

going to the software and noting changes and updating, et

13

cetera, I also keep a running list of what the changes

14

are, and that's to support, so this document further

15

supports the communication process.

16

There are about 12 people that I will communicate

17

with or communicate a change in status, from our academic

18

person to the assistant compliance coordinator who are

19

just across the hall from me, but to let our registrar

20

know, let the athletic training staff know, let the two

21

full time staff members in sport and information.

22

There's also someone on that list from the, that

23

works with athletic association and development, and so I

24

would add their name to this change of status and then I

25

will either attach this to an email that there's a change

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 57 of 121 784

1

of status, subject roster change, please see the attached.

2

Or I might cut and paste that particular update or the

3

newest changes and make them aware of those changes.

4

And if you were to look the change of status forms in

5

E O, there's an electronic distribution box at the bottom.

6

It's like an Office Use Only portion and electronic

7

distribution is supported. It would be creating this log

8

and maintaining this log.

9

Q. So it's a log that you keep just to keep track of

10

things?

11

A. Right.

12

Q. Now, we talked about the EADA report a little bit and

13

you mention when I asked you about the scholarship

14

athletes, you said assuming they were on the team as of

15

the date, first date of competition?

16

A. Yes.

17

Q. You used the first date of competition as a guideline

18

for determining your numbers for EADA reporting?

19

A. Yes, I actually refer to it as a line in the sand.

20

Q. And why do you use that date?

21

A. When I look at the definition of a participant, which

22

is what the EADA is requesting, the EADA has a glossary of

23

terms and it says a participant is, and it lists three

24

reasons. And that's why I, to answer your question -- I

25

think I lost my train of thought.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 58 of 121 785

1

Q. So your understanding and with your years of

2

compliance experience, that the requirement for reporting

3

for the EADA is as of the first date of competition?

4

A. Yes, first date of competition in that definition.

5

Q. Okay. And have you ever calculated participation

6

numbers based on the first date of competition and then

7

nontraditional season for a sport whose championship

8

season is in the fall, for reporting purposes?

9

A. No.

10

Q. And have you ever heard of anybody doing that in the

11

compliance world?

12

A. No.

13

Q. And have you ever calculated participation numbers

14

based on whether an athlete was on a team for a full

15

semester?

16

A. No, it goes back to that, my line in the sand, that

17

first date of competition. So if your name is on there

18

and you're on the list and you're not a cut or a quit, if

19

it meets, if you meet one of these three definitions as of

20

the first date of competition, that's what I have used to

21

complete the numbers for the EADA report.

22

Q. When is the EADA report filed?

23

A. The EADA report is filed by the federal government

24

October 30th of the year after the completion, the

25

following academic year.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 59 of 121 786

1

Q. So for the '09-'10 year you'll file your report in

2

October of '10?

3

A. That is correct.

4

Q. So if you were asked to or if you needed to, you

5

could report all of the athletes who were on the team at

6

any point in the year, right? You'd have that information

7

available to you?

8

A. Yes.

9

Q. But it's not requested by any reporting agency, is

10

it?

11

A. No, it's -- again the first date of competition is

12

the benchmark from that glossary of terms, so that's,

13

that's what we do.

14

Q. Okay. Now, do you do a separate count of

15

participants for each of the sports that the university

16

sponsors?

17

A. Yes.

18

Q. And if an athlete is on more than one sport, how do

19

you count them?

20

A. Since I use the squad list for the first date of

21

competition for each sport, if their name appeared on two

22

sports, I would be counting them on the, from the first

23

squad list or the squad list from sport A, and if their

24

name was on the second squad list, squad number B sport, I

25

would count that as another participation opportunity.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 60 of 121 787

1

Q. And do you maintain that first date of competition

2

squad list for the women's cross country team?

3

A. Yes.

4

Q. Do you maintain a separate squad list for the women's

5

indoor track team?

6

A. Yes.

7

Q. And do you maintain a separate squad list for the

8

woman's outdoor track team?

9

A. Yes.

10

Q. Because those are three separate sports.

11

A. The NCAA has them as three different sports with

12

three different championships, three different schedules,

13

yes.

14

Q. Now, I want to show you Plaintiff's Exhibit --

15

THE COURT: Before we move from there, let me

16

follow up with some questions from Exhibit E N and E L.

17

E N, well -- about four pages in which is D 9073.

18

THE WITNESS: I'm there.

19

THE COURT: All right, there are three women's

20

field hockey players listed on 8/19. Two deletes and an

21

add.

22

THE WITNESS: Okay.

23

THE COURT: Now, it looks to me like the add

24

shows up on E L without any add indication, she's simply

25

on the list. The two deletes are simply not on the list.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 61 of 121 788

1

And the player listed as being cut effective 8/21 on E L

2

does not appear, at least I can't find her on E N. I'm

3

just trying to figure out how these two documents relate

4

to each other.

5

THE WITNESS: Okay. There is a question or do

6

you want me just to give my thoughts?

7

THE COURT: If you could just maybe explain why

8

the two folks deleted 8/19 don't show up as cuts or

9

deletes, where somebody effective 8/21 did, why the person

10

listed as cut 8/21 doesn't show up on the change of status

11

log and why the two deleted 8/19 -- well, I guess I just

12

asked that. Why the person added 8/19, doesn't show up as

13

an add. I'm just trying to understand, you know, how this

14

is working.

15

THE WITNESS: Okay. I don't have it in front of

16

me but as I'm looking at this, as I'm looking at this

17

change in status log, I'm thinking that perhaps that their

18

first day of practice for pre-season was 8/20. So if you

19

look at --

20

THE COURT: So that would be the first date in

21

effect that you would see who was on the roster?

22

THE WITNESS: Right.

23

THE COURT: So if they are cut before the first

24

date of practice, they are just not going to show up on

25

the roster?

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 62 of 121 789

1

THE WITNESS: I believe so.

2

THE COURT: And if they are added before the

3

first date of practice they are just going to show up on

4

the roster as if they are on the roster.

5

THE WITNESS: Correct.

6

THE COURT: All right. And then -- but what

7

about the woman who's cut 8/21?

8

THE WITNESS: It looks like it could be an

9

oversight on this particular page.

10

THE COURT: Okay. So she normally would be

11

listed on the change in status log?

12

THE WITNESS: Yes.

13

THE COURT: Okay. Okay, that's helpful. Thank

14

you. That's all I had.

15

BY MS. FRIEDFEL:

16

Q. Okay. Do you have Exhibit 150 there? It's going to

17

be at the very end of the plaintiff's last binder.

18

MR. HERNANDEZ: I'm sorry, which one are you on?

19

MS. FRIEDFEL: 150.

20

MR. HERNANDEZ: 150, thanks.

21

BY MS. FRIEDFEL:

22

Q. If you take a look at that, these are some spread

23

sheets that were provided by the plaintiff's expert, and I

24

want to turn your attention to the second page which is

25

men's basketball.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 63 of 121 790

1

A. I'm there.

2

Q. Okay, and you see where it says Kevin Baskin?

3

A. Yes.

4

Q. Under the reasons Ms. Lopiano stated, athletic aid,

5

practiced and received varsity benefits during entire

6

second semester. Is that an accurate statement to your

7

knowledge?

8

A. It is not an accurate statement.

9

Q. Why not?

10

A. Kevin Baskin was an early enrollee. He started his

11

collegiate career as a freshmen, not in September or

12

August semester, he started in January. He was, when he

13

came in he was not meeting NCAA initial eligibility

14

standards or when he was preparing to come in, and my

15

office had to file an initial eligibility waiver with the

16

NCAA staff.

17

In determining the totality of his circumstances,

18

they decided, as is their right, that he could in fact

19

receive athletic aid. He was precluded from practicing or

20

competing with the team. And he would have to, the

21

phraseology is sit a year or two semesters. So based on

22

that information and knowing that Kevin was going to get

23

an athletic scholarship, he did in fact start school with

24

us and continues to this day in summer school. But he was

25

never allowed to practice, never allowed to compete, can't

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 64 of 121 791

1

be in team meetings. There's a whole list of things in

2

the NCAA manual that qualifiers and non qualifiers can and

3

cannot do. Isn't allowed to travel with the team. He can

4

receive tutoring benefits which, in fact, he did. He can

5

not weight train or do conditioning with a team. He can

6

in fact lift on his own separate from the team.

7

But the intent of the waiver decision was to allow

8

him to start college and give him the financial aid in

9

order to do that, but for him to focus on his academics

10

for two semesters before he'll be loud to step on the

11

court with the team and practice.

12

Q. Okay. Thank you. If you look at the men's soccer

13

page? A few after that?

14

A. Yes, I'm there.

15

Q. Do you see that? If you'll look at the line for

16

Peter --

17

A. Karahalios.

18

Q. Thank you. If you see, you see the column there for

19

him that says red flag notes?

20

A. Yes.

21

Q. And Ms. Lopiano wrote "Played and received aid three

22

prior years but cut as senior, roster limit, question

23

mark." Did Mr. Karahalios receive aid at Quinnipiac?

24

A. He did not receive any athletic scholarship while

25

attending Quinnipiac.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 65 of 121 792

1

Q. Okay. And if you look at Plaintiff's Exhibit 11,

2

it's a separate binder, the first binder. You want to

3

turn to page D 320?

4

A. I'm there.

5

Q. And does that document show that whether Peter

6

Karahalios received athletic aid?

7

A. The NCAA squad list in fact shows that he does not

8

receive any athletic aid and the athletic grant column is

9

zero.

10

Q. What year is that for?

11

A. This is for 2007, 2008.

12

Q. Okay. And if you flip to the next exhibit which is

13

Exhibit 12 at page D 271?

14

A. Would you like me to find men's soccer?

15

Q. Yes. D 271 should be, if I have my numbers right,

16

should be men's soccer.

17

A. Yes.

18

Q. And is that the, what's that document?

19

A. It's the NCAA squad list for first date of

20

competition, 2008, 2009.

21

Q. And does that show whether Peter Karahalios received

22

aid in that year?

23

A. It shows that he did not receive athletic aid --

24

Q. Okay. Thank you.

25

A. -- that year.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 66 of 121 793

1

Q. And if we look back at Ms. Lopiano's chart in Exhibit

2

150, if you look down to -- we're going to the men's

3

tennis team, which is the next page.

4

A. Yes.

5

Q. You see under Vincent Corvari, there's a similar note

6

that says "Senior cut despite playing three previous years

7

on aid"?

8

A. I see that.

9

Q. And to your knowledge, did Vincent Corvari ever

10

receive athletic aid from Quinnipiac?

11

A. No, he did not receive athletic aid.

12

Q. Now, we can go to Exhibits 11 and 12 again and look

13

at those, the squad lists for tennis, just to confirm

14

that. It's in 11, it should be D 323.

15

A. In the 2007, 2008 school for the first date of

16

competition, Vincent Corvari was listed as having no

17

athletic aid, allowed on the squad list.

18

Q. If you look at Exhibit 12, D 274 -- wait. Before you

19

change that one, let's, if we look down -- trying to be

20

more efficient here -- on the men's tennis sheet, on

21

Ms. Lopiano's chart she also listed Zackary Tuckman as

22

playing prior years on aid.

23

Now, can you look in Exhibit 11, D 323, does that

24

show whether Zackary Tuckman -- Zackary Tuckman wasn't

25

actually on the team, was he?

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 67 of 121 794

1

A. Zak was a senior in high school that year.

2

Q. Let's see. Go to Exhibit 12.

3

THE COURT: I see it in '08.

4

BY MS. FRIEDFEL:

5

Q. You see it. Now, the judge asked you a question

6

about Frederica Mucci earlier on the field hockey team,

7

and if we look at Ms. Lopiano's chart on the next page, in

8

women's field hockey, she indicates under Frederica Mucci,

9

red flag, did not play, no aid, could have been cut before

10

first contest.

11

Now, Frederica Mucci was cut on October 15th, 2009,

12

is that right?

13

A. That's what the records say, yes.

14

Q. And is that -- do you believe that to be true?

15

A. I do know that to be true.

16

Q. And do you know why Frederica Mucci was cut

17

on October 15?

18

A. As I testified earlier, she joined the team as a

19

nonrecruited student athlete through the try-out process.

20

She's coming in as a freshman. I knew her to be, knew of

21

her as an international student, she had graduated from an

22

international high school. I mentioned earlier as well

23

that she, as of the first date of competition, was on the

24

team but had not yet been certified initially eligible by

25

the NCAA eligibility center, based on her status as a

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 68 of 121 795

1

nonrecruited athlete and the NCAA rules which give

2

non-recruited student athletes a period of 45 days in

3

which they can practice but not compete or a for a team,

4

it's a grace period while the NCAA determines their NCAA

5

eligibility, initial eligibility status. And during that

6

time it's often the non-recruited athlete who's been

7

registering with the eligibility clearing house,

8

contacting their high school or high schools to make sure

9

that their transcripts from these high schools are sent to

10

the eligibility center. And once all the documents are in

11

place, during that time there's a very long cue of people

12

waiting for final certification.

13

So Frederica was on the team, was practicing, doing

14

everything else I would expect a team member, power hours,

15

training room, if necessary. But her temporary

16

certification period ended on 10/15, and a couple days

17

before that, we already knew she hadn't yet been

18

certified, and her and the coach knew that as of 10/15,

19

she could have to cease all team activities, including

20

practicing until such time that she ultimately would be

21

certified eligible. 10/15 came, the grace period ended,

22

she needed to be cut from the team or cease practice so

23

she was cut, she was cut from the team. And as it turned

24

out, she never did complete or never did receive a final

25

certification.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 69 of 121 796

1

Q. So, she never received the certification so she

2

couldn't participate after the 15th of October?

3

A. Yes, any athletic related activities, and she did

4

not.

5

THE COURT: Could I ask about another field

6

hockey player? Veronica Clark. Veronica Clark, according

7

to Exhibit E N, page D 89270, was added to the field

8

hockey team 9/1/09. And according to D 8919, she's

9

deleted from the team, 9/4/09. So it looks like she was

10

on the team for three days. How was she treated, do you

11

know, in terms of whether she's counted a player?

12

THE WITNESS: I haven't done, I'm now in the

13

process for the EADA report for 2010. I haven't

14

officially done all that yet.

15

THE COURT: So this would be --

16

THE WITNESS: I would project that's a not

17

counting.

18

THE COURT: Oh, I see. This would be for the

19

year that you haven't reported yet.

20

THE WITNESS: Yes.

21

THE COURT: Got it.

22

THE WITNESS: But projecting that she would not

23

be a counter.

24

THE COURT: Okay.

25

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 70 of 121 797

1

BY MS. FRIEDFEL:

2

Q. So you don't plan to count Veronica Clark for totals

3

in participation of field hockey for the '09, '10 EADA

4

report?

5

A. I don't expect to.

6

Q. Okay. Just looking at Amanda Radwell who's also on

7

the field hockey list?

8

A. Yes.

9

Q. Stating that she quit January 26, 2010, is that

10

accurate?

11

A. It is not accurate. It's a clerical error by the

12

compliance office. I've looked into this, because if you

13

look at the first date of competition, squad list, it says

14

she quit on 8/21. And if you look at the squad list, the

15

set of squad lists that were produced on or printed on

16

5/26/2010.

17

Q. Is that Exhibit E M that you're referring to, those

18

squad lists from 5/26?

19

A. I actually don't know what the exhibit number is, I

20

just know the history.

21

Q. If you want to turn to Exhibit E M, you can -- I can

22

direct you to it.

23

A. So, E M is a set of squad lists that were run on

24

5/26. Let's find the field hockey.

25

Q. It's D 5105.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 71 of 121 798

1

A. Oh, if you were look at D 15096, which is where

2

Amanda Radwell's name appears on the 5/26/2010 squad list,

3

it says quit. Well, the codes are quit, red shirt,

4

1/26/2010. I had, since this happening, I had gone back

5

to look to see why she was a cut and a red shirt on the

6

initial squad list but yet a quit and a red shirt. And

7

she was, she quit the team during pre-season. Apparently

8

I put it as a cut on the squad list and at some point over

9

Christmas break, early second semester or, you know, early

10

January, the coach informed me that she wasn't a cut, she

11

in fact was a quit. So I went back to reflect that more

12

accurately, that she was still not on the team but that

13

she was a quit. So that was a software adjustment. The

14

software can and will automatically populate the date when

15

you put a code in and I did not pick up on the fact that

16

it switched the date from 8/21 to one -- January 26, 2010

17

which is the date I was going in and making the

18

adjustment. So that's why there's that discrepancy.

19

Q. So Amanda Radwell was not on the field hockey team?

20

A. No, she did in fact quit, left the team and did not

21

play in 2009, 2010.

22

Q. Okay. Now, if you want to look at Exhibit E V.

23

A. E Z?

24

Q. E V as in Victor.

25

A. I have E V.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 72 of 121 799

1

Q. And is that email correspondence that you had with

2

Rene Tersey (ph)?

3

A. Yes.

4

Q. And that confirms there that -- well, I guess it says

5

on the email, on August 21st, you wrote to Ms. Tersey,

6

referring to Amanda Radwell on the subject, "I did,

7

however, receive an email per our usual process notifying

8

me that Amanda had quit the team."

9

A. Can you refer to the -- document page?

10

Q. Yes, it should be D 15238, the first page of Exhibit

11

E V.

12

THE COURT: I see it.

13

A. I see it, okay, yes, I do see that.

14

Q. Okay. Now, looking back at Exhibit 150, the charts

15

from Ms. Lopiano's report, I just wanted to look at

16

women's soccer.

17

A. I'm there.

18

Q. And under Jannell Lopez (ph) she red flags her as a

19

fifth year senior at mid semester, who was added. Had

20

Jannell Lopez ever played soccer for Quinnipiac before?

21

A. Yes, she did.

22

Q. When did she play?

23

A. She was a member of the team her freshmen year in

24

college and she was also a member of the women's lacrosse

25

team her freshmen year, so she was on the fall women's

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 73 of 121 800

1

soccer team and her spring freshmen year, women's

2

lacrosse.

3

Q. Do you know the circumstances under which Jannell was

4

added to the women's soccer team?

5

A. In this given case, Jannell had, after her freshmen

6

year had continued with only one sport which was women's

7

lacrosse. And so in the '08, '09, Spring '09 women's

8

lacrosse season, she exhausted her eligibility.

9

Q. You can only play a single sport for four years?

10

A. Four years during a five year period. She was coming

11

back for the fall, she came back in the fall to complete

12

her degree. I think he's an occupational therapy major

13

and they need like 142 or so credits to graduate.

14

During the early part of the soccer season, the team

15

started to get beset with severe injuries and, in fact, I

16

think they lost three students to season ending knee

17

injuries. And at one point one of the injuries, I believe

18

the goalie lost, lost -- one of the goalies on the team

19

was lost to a knee injury which left Coach Hart with only

20

one goalie, and so that's not a good idea to go into any

21

given game with one goalie, and so he inquired if because

22

of the circumstances of the rash of injuries and no longer

23

having personnel, if he could add another player. And he

24

conferred with Mark Thompson and the answer apparently was

25

yes because then Jannell agreed to come back out and be

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 74 of 121 801

1

part of the team in the event that there was a need for

2

her to step in a game.

3

Q. Thank you. We're done with Dr. Lopez's charts. I do

4

want to ask you some more questions.

5

Do some sports have a championship season and

6

nontraditional season?

7

A. Yes.

8

Q. And which of Quinnipiac's sports fall into that

9

category?

10

A. That have a traditional and nontraditional?

11

Q. Yes.

12

A. It would be easiest if I said there are a few sports

13

that don't have.

14

Q. Okay. Which are the sports that don't have a

15

nontraditional season?

16

A. Men's and women's ice hockey, men's and women's

17

basketball. And then women's cross country doesn't have a

18

nontraditional season. Women's indoor track doesn't have

19

a nontraditional season. They just have the one season.

20

And women's outdoor track doesn't have a nontraditional

21

season.

22

Q. Okay. What about competitive cheer; do they have a

23

nontraditional?

24

A. Oh, competitive cheer, they are considered the

25

nonsegmented. We call them, refer to them as the winter

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 75 of 121 802

1

sport.

2

Q. That runs throughout two semesters?

3

A. Yes, it spans two semesters.

4

Q. Okay, and do you -- hold on, let's switch to E T,

5

actually.

6

A. E T.

7

Q. E T, phone home. You can take some of those off,

8

Tracey.

9

A. It looks like my desk. I have E T.

10

THE COURT: Go ahead.

11

SPEAKER-P:

12

BY MS. FRIEDFEL:

13

Q. What is this document?

14

A. I'm sorry, I didn't hear that.

15

Q. What is the document; what is E T?

16

A. Okay, it is called, as the label says, competition

17

used for the academic year 2009, '10. It's a document

18

that's generated by the NCAA compliance assisted software,

19

and it is a list of the athletes in the software, and of

20

particular note is the far right hand column where it

21

refers to participated flag.

22

Q. What does that participated flag mean?

23

A. I had made reference earlier in my testimony to the

24

fact that we solicit from both our sports information and

25

our head coaches the status of every player on their team

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 76 of 121 803

1

whether they competed in a contest or not during their

2

seasons. And when we gather that information we go back

3

to the software and there is a place to check yes,

4

participated in a varsity contest, red shirt, did not

5

participate. When you run this report it takes that

6

information and puts it in this format. So if you see

7

yes's, they competed in at least one contest. If you see

8

blanks, means they did not compete in a contest that year.

9

Q. And do you count a season of competition used if an

10

athlete -- or, I'm sorry, a participation flag if an

11

athlete competes in a competition in the nontraditional

12

season?

13

A. It depends on the sport that they are involved in.

14

Q. Okay, and what -- what's the difference?

15

A. The NCAA regulations say that any time a student

16

competes in a contest, they are charged with a season of

17

competition used. There is an exception to that bylaw

18

that says in the sports of men's soccer, women's soccer,

19

field hockey, women's volleyball and men's water polo,

20

that any play during their nontraditional season, if a

21

student didn't compete in the fall season but did compete

22

in a nontraditional season, in the spring, they do not get

23

charged with a season of competition.

24

Q. So, all of those sports that you just mentioned that

25

are exceptions to this rule with respect to nontraditional

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 77 of 121 804

1

season play, are those sports, are their championship

2

seasons in the fall semester?

3

A. Yes.

4

Q. And do the coaches of those teams sometimes use the

5

spring semester to look at different players?

6

A. I think each coach probably has their own set of

7

reasons what they are doing with the spring. The one that

8

you offer is most likely one of them. The way I'd thought

9

of it in my career is those sports that I mentioned, with

10

the exception of water polo because I never worked with

11

the water polo program, those coaches are using the spring

12

nontraditional season to prepare for next year. So you

13

typically do not have seniors that have exhausted their

14

eligibility, played their last game, had a senior day in

15

the fall. They typically do not play in the spring.

16

Q. So the seniors wouldn't play in the spring?

17

A. They typically do not.

18

Q. And do the coaches of those teams ever sometimes add

19

athletes for that nontraditional season?

20

A. Yes.

21

Q. And do you have an understanding of why they add

22

those athletes?

23

A. As I referred earlier in my testimony, using field

24

hockey as an example, having a try-out in the fall for

25

fall sports can sometimes be difficult given just working

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 78 of 121 805

1

with pre-season in your first official game, that's going

2

to count, is coming up and some sports will then take the

3

opportunity, such as a women's soccer, and I have had

4

these discussions over the years, he's given students that

5

came in and they didn't even know to try-out yet, he gives

6

them that opportunity to try out maybe in like February,

7

and if he thinks he's got some potential, he would keep

8

those young women on the team through the spring and give

9

them perhaps some game opportunity and then make a

10

decision as to whether he thinks that he would like to

11

continue to help them develop and bring them back next

12

year to be part of the championship segment or decides

13

that maybe it's not in their best interest, they are

14

really not going to be able to contribute in whatever

15

fashion. And so he may have discussions and ask them not

16

to come back or they may recognize that the level of

17

competition or the commitment is not something that they

18

feel they want to continue with and they may decide

19

themselves not to continue.

20

Q. So, for those sports would it be accurate to say

21

sometimes the coach uses that nontraditional season as an

22

extended try-out for the following year?

23

A. I think that would be fair.

24

Q. Just on this participation flag, I just wanted to ask

25

you on -- if you look down to page 15056.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 79 of 121 806

1

A. I'm there.

2

Q. If you look at Katrina Lennon and Nicole Manzo?

3

A. Katrina Lennon -- I see them.

4

Q. They both have quits next to their name in October

5

and August. Do you know when the competitive cheer's

6

first date of competition was?

7

A. Not exactly, but it was in early December, the first

8

week or so.

9

Q. So it was after these date these --

10

A. Correct.

11

Q. -- athletes had quit? And do you know why there's a

12

participation flag next to those?

13

A. Yes, I do. When the information was solicited from

14

sports information and the coaching staff, it appears that

15

coach wrote a yes.

16

Q. So it was a mistake is that --

17

A. It was clerical error.

18

Q. Okay. Now, I want to show you Exhibit B M.

19

THE COURT: How much longer do you think you

20

have with this witness? We ought to take a break at some

21

point.

22

MS. FRIEDFEL: Maybe 15, 20 minutes.

23

THE COURT: Why don't we break now. The court

24

reporter's been going for a couple hours, and I know

25

counsel wanted to spend sometime talking about exhibits

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 80 of 121 807

1

Why don't we take 20 minutes and come back at 11:30.

2

Stand in recess.

3

(Whereupon a recess was taken from 11:10

4

o'clock, a. m. to 11:35 o'clock, a. m.)

5

BY MS. FRIEDFEL:

6

Q. Tracey, could you look at Exhibit B M, B as in boy?

7

(Binders fall)

8

THE COURT: I knew it was going to happen sooner

9

or later. Tracey, luckily these are clipped so --

10

THE WITNESS: Yes.

11

(Laughter)

12

BY THE WITNESS:

13

A. I'm there.

14

Q. Okay. Can you tell us what this document is?

15

A. It's a list of, it's the Quinnipiac University roster

16

numbers 2009, 2010. It lists all of our varsity sports,

17

our intercollegiate sports by sex and it indicates the

18

athletes that are on the squad lists as of the first date

19

of competition. And then the number of athletes as of the

20

last date of competition in their championship season.

21

Q. And where was the information for these columns with

22

respect to the name of athletes on the first date of

23

competition and on the last date of competition and the

24

championship season derived from?

25

A. They would come from the NCAA squad lists that were

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 81 of 121 808

1

maintained during the 2009, 2010 academic year.

2

Q. And did you go through each of those squad lists and

3

confirm these numbers are accurate?

4

A. Yes, I did.

5

MS. FRIEDFEL: And the other information there,

6

just for the record, Your Honor, with respect to the

7

projected enrollment, I spoken with plaintiffs counsel and

8

they agree we don't have any dispute about that

9

information, so we wanted to enter this part.

10

BY MS. FRIEDFEL:

11

Q. During the '09-'10 academic year, were you aware of

12

any coach taking any steps to manipulate his or her roster

13

and the first date of competition?

14

A. No, on the contrary.

15

Q. On the contrary how?

16

A. I really have felt that throughout the course of

17

starting last summer through the course of the academic

18

year that our coaches have really taken strides to

19

understand and understand better the squad list process,

20

the change of status process, have had an opportunity to

21

confer with our vice president, Vice President Thompson on

22

roster sizes and have discussions and really feel our

23

coaches have been very conscientious of working within the

24

NCAA rules and the rules established by the university.

25

Q. Are you aware of any coach of a men's team cutting a

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 82 of 121 809

1

player before the first date of competition with the

2

intent of adding that player back to the team soon

3

thereafter?

4

A. During this past academic year, no, I have not seen

5

any of that.

6

Q. And are you aware of any coach of women's team adding

7

players before the first date of competition with the

8

expectation of them quitting soon thereafter?

9

A. No.

10

Q. And are you aware of any coach of a women's team

11

adding players before the first date of competition with

12

the intent of cutting them soon thereafter?

13

A. No.

14

Q. And have you ever heard Jack McDonald say that the

15

coaches would get in trouble if they didn't sign their

16

roster letters?

17

A. No.

18

Q. Just one last question. If I look at Exhibit E L --

19

I should have asked you this probably earlier, sorry. If

20

you would turn to page D 12233?

21

A. Would you repeat that exhibit number?

22

Q. Sure, it's Exhibit E L, page D 12233. I think I got

23

it right.

24

A. Could you tell me what the title of the document is?

25

Q. Sure. What I'm looking for is the competitive cheer

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 83 of 121 810

1

squad list.

2

MR. HERNANDEZ: It's the third from the back.

3

BY THE WITNESS:

4

A. Thank you. I have found it, thank you.

5

Q. And in the upper right hand corner, it says women's

6

cheerleading, is that right?

7

A. It does.

8

Q. Why does it say that?

9

A. There's a, when you're working with the sport in the

10

NCAA software there's a drop down menu and competitive

11

cheer wasn't a choice from the list and I used something

12

that somewhat referred to our competitive cheer team such

13

as women's cheer. I could have used men's polo or women's

14

rowing, but I chose that with full knowledge this would

15

probably be a question about ten minutes later.

16

Q. And this squad list doesn't refer to a cheerleading

17

team, does it?

18

A. It refers to a competitive cheer team.

19

Q. The varsity competitive cheer team at Quinnipiac?

20

A. That is correct.

21

MS. FRIEDFEL: Thank you. I don't have any

22

further questions.

23

THE COURT: Let me ask a couple before cross.

24

Could you turn please to Plaintiff's Exhibit 123. Trade

25

you --

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 84 of 121 811

1

THE WITNESS: Thank you.

2

THE COURT: If you go to the third page, top of

3

the page, it says QU indoor track. Maybe it's the second

4

page.

5

THE WITNESS: Yes.

6

THE COURT: And then there are names of athletes

7

and it looks like all the different competitions.

8

THE WITNESS: Yes.

9

THE COURT: There are several athletes starting

10

with Holly Banaian.

11

THE WITNESS: Banaian.

12

THE COURT: B-A-N-A-I-A-N. Who did not compete?

13

THE WITNESS: That is correct, from this

14

document.

15

THE COURT: Christine Donnelly, Caitlyn Kelly,

16

so forth. Were these athletes counted for purposes of the

17

numbers in Defendant's Exhibit B M we just looked at?

18

MR. BRILL: Your Honor, could I clarify

19

something before the witness answers?

20

THE COURT: Sure.

21

MR. BRILL: First of all, this is an exhibit to

22

Dr. Yiamouyiannis' report so it's not in evidence and

23

there is a similar exhibit attached to the deposition of

24

the track coach.

25

THE COURT: Okay.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 85 of 121 812

1

MR. BRILL: And she goes through each of these

2

athletes and explains the circumstances. I have no

3

objection to asking Ms. Flynn what she knows but it is

4

explained in great detail.

5

THE COURT: That's great. I have that

6

deposition but I have not read the testimony yet.

7

MR. BRILL: She goes through each athlete, if

8

they competed, if they didn't, what the circumstances

9

were, et cetera.

10

THE COURT: Excellent, thank you. Okay, that's

11

all I had.

12

CROSS EXAMINATION

13

BY MR. HERNANDEZ:

14

Q. Good morning, Ms. Flynn.

15

A. Good morning.

16

Q. Ms. Friedfel asked you about suspicious drops from

17

the roster right before the first date of competition and

18

then adds after the first date of competition for the

19

men's teams. And as I understand your testimony, you're

20

not aware of any of that happening in '09, '10, correct?

21

A. Correct.

22

Q. All right. And last year when you testified in this

23

courtroom, I believe you said that you found that

24

practice, to the extent that it happened, to be something

25

that you felt uncomfortable with, correct, when you

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 86 of 121 813

1

learned about it?

2

A. I can't precisely recall my testimony from last year.

3

Q. Okay.

4

A. I do recall at some point perhaps in my deposition

5

where you inquired into last year's court proceedings that

6

I had indicated that I felt I recognized something

7

happening with some rosters in '07, '08 -- '07, '08 that

8

were of concern to me.

9

Q. And did that include the dropping of male student

10

athletes before the first date of competition and then

11

adding them on after the first date of competition?

12

A. That's what I would have stated, yes.

13

Q. Okay. Now, you understand that the decision of the

14

court in this case found a problem with that practice as

15

well, correct?

16

A. (Pause)

17

Yes.

18

Q. Okay. And that's one of the things that Dr. Thompson

19

was brought in to make sure didn't happen, correct?

20

A. Yes.

21

Q. All right. As I understand your testimony, he's

22

been -- he's made it clear he's not going to put up with

23

that sort of thing, right?

24

A. I don't believe I said that precise -- that he made

25

that statement. I don't think I was asked about any

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 87 of 121 814

1

statements.

2

Q. I'm not asking you to quote him.

3

A. Okay.

4

Q. Has he cracked down to make sure that that sort of

5

thing doesn't happen?

6

A. I don't think I would characterize it as crack down.

7

I believe I've testified earlier today indicating that we

8

had expanded our change of status process to include Vice

9

President Thompson and that he was open to discussing and

10

wanted to know if a coach felt that there needed to be a

11

change in the roster, somebody was -- that he felt needed

12

to be cut or there was a circumstance that they wanted to

13

add somebody, or somebody was going to be quitting the

14

team, so he, this was an added element to that process and

15

I would say overseer.

16

Q. So there's added supervision to make sure that was

17

not happening, correct?

18

A. Yes.

19

Q. All right. And were -- let's talk about women's

20

running sports for a second, if we could. All right? Do

21

you know -- or running sports generally. Where do the

22

men's cross country athletes train, where do they

23

practice?

24

A. Men's cross country team practices on and around the

25

Quinnipiac University property.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 88 of 121 815

1

Q. And what about the women's cross country team; where

2

do they train and practice?

3

A. On and around the university property.

4

Q. So we're talking roads and trails and -- whatever's

5

available?

6

A. Well, I'll never see them on a trail because I'll

7

never be there, but I have been around town and will see

8

them out on the roads.

9

Q. Fair enough. Now, what about the women's indoor

10

track team, where do they train, where do they practice?

11

A. I don't keep up on practice venues per se, I believe

12

they practice at Yale University's track.

13

Q. Okay. And do you know how they get there?

14

A. I do not.

15

Q. All right. You don't know if the women indoor or

16

outdoor track athletes have to drive themselves to Yale to

17

practice?

18

A. I don't know for a fact, as a fact how they get

19

there.

20

Q. Okay. Now, again, Vice President Thompson, his focus

21

was on the add/drop practice at Quinnipiac University, is

22

that correct?

23

A. His focus was on the changing of rosters.

24

Q. Change of status forms?

25

A. Change -- any -- any change to a roster.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 89 of 121 816

1

Q. Okay. Did he ask you to assist him in keeping track

2

of the change in status forms?

3

A. I would not -- if someone asked me what his role was,

4

I would not answer it the way you've just asked that

5

question. I would not say he's asked me to help him keep

6

track of adds and deletes because, or change of status

7

because that's something I've already done or I already

8

did.

9

Q. Have you had these conversations with Vice President

10

Thompson about what role he expected you to play in his

11

new role monitoring the add/delete list?

12

A. There was at some point, and I can't recall when, but

13

there was expectation that the coaches were going to now

14

ask to confer with Vice President Thompson before a change

15

to be made or should be made and, you know, there have

16

been times when some coach would in fact give me a change

17

of status form and I'd ask if they had run it by and

18

discussed this with Vice President Thompson.

19

Q. My question was have you and Vice President Thompson

20

had any conversations about what role you were going to

21

play in his new administration of this process?

22

A. What stands out in my mind mostly is an email that he

23

sent me confirming or reiterating that coaches needed to

24

confer with him so I can't remember a specific

25

conversation, but I do remember an email message and I

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 90 of 121 817

1

think I was one of several people included on that email.

2

Q. Okay. Now, the, the add/delete process, that was, as

3

you understood it, the problem and the reason Vice

4

President Thompson was coming in to take over this role,

5

is that correct?

6

A. Yes, that would be correct.

7

Q. All right. And as far as making the target roster

8

management numbers that the coaches were required to make,

9

is it your understanding that the first date of

10

competition was the time that controlled when someone,

11

when a coach was considered to have made their number?

12

A. Could you repeat the question?

13

Q. Yes. The first date of competition.

14

A. Yes.

15

Q. That's an important date, correct?

16

A. Yes.

17

Q. All right. And it's an important date because you

18

consider the first date of competition to be the date on

19

which the coach either made or didn't make their target

20

roster management number, is that correct?

21

A. Yes.

22

Q. All right. Because that was the focus. The first

23

date of competition, correct?

24

A. That first date of competition is a big date for a

25

variety of reasons. And the first date, to answer your

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 91 of 121 818

1

question, is the reference that I'm familiar with with

2

EADA purposes and it is also the -- you know, for NCAA

3

purposes, who's academically and athletely eligible to

4

compete, so that first date of competition seems to be an

5

important benchmark for several different things that I do

6

in my job.

7

Q. Okay.

8

A. But it's not the only time that the vice president

9

wanted to know about any changes in the roster.

10

Q. Right. He's monitoring add/deletes and after the

11

first date of competition, too, correct?

12

A. Throughout the academic year, correct.

13

Q. But as far as the coaches are concerned, for a coach

14

to either make their number or not make their number, the

15

first date of competition, that's the important date,

16

right?

17

A. It appears to be a significant date for many of us,

18

yes. All of us.

19

Q. Okay. And that was communicated to the coaches,

20

right, that was the important date, first date of

21

competition?

22

A. (Pause)

23

Q. You understood the --

24

A. First, I think the coaches all understand the first

25

date of competition for the academic year is an important

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 92 of 121 819

1

date.

2

Q. All right. And that was communicated to the coaches

3

by Jack McDonald and by Vice President Thompson, correct?

4

A. I would -- I would agree with that.

5

Q. All right. The -- who is the Title IX coordinator at

6

Quinnipiac University?

7

A. Title IX coordinator is Sarah Steele. I don't know

8

her exact title but she is, I believe, at the assistant or

9

associate vice presidential level and I believe she works

10

under the Department or within the Department of Academic

11

Affairs.

12

Q. Okay. And what is your understanding of the role of

13

the Title IX coordinator, what is she supposed to do?

14

A. I have not seen her job description relative to that

15

role so I don't have an answer for you.

16

Q. Okay. As I understand it, you are the Senior Women's

17

Administrator, correct?

18

A. Senior Woman's Administrator.

19

Q. Thank you.

20

A. Yes.

21

Q. And also within the Athletic Department it's your

22

job, among other things, to keep track of the add/delete

23

list, correct?

24

A. It's my job to keep track of the status of our

25

student athletes and one of the mechanisms that I use to

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 93 of 121 820

1

do that and maintain the NCAA squad list is to keep a list

2

of the student athletes that are leaving or joining the

3

team.

4

Q. Perfect, thanks. And that also includes making sure

5

that students are academically eligible under the NCAA,

6

correct?

7

A. The add/delete list that you're referring to does not

8

take into consideration yet academic or athletic

9

eligibility of an athlete. Again, that's a supporting

10

document for the NCAA squad list. It's the NCAA squad

11

list and all the work done on the different parts of the

12

software, that is where we refer, maintain, monitor

13

academic and athletic eligibility.

14

Q. Right, that was my point. It's not just the

15

add/deletes, you have to keep track of a number of

16

different things, including the NCAA academic eligibility

17

and seasons used, correct?

18

A. Myself, and I have several assistant AD's that also

19

do -- contribute to that information.

20

Q. Okay. And as I understand the flow of information,

21

it comes from the coaches to you and then from you to,

22

it's shared with Vice President Thompson, correct?

23

A. What do you mean by flow -- what information are you

24

talking about --

25

Q. Add/deletes?

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 94 of 121 821

1

A. Add/deletes, yes, it is initiated by a coach.

2

Q. And after Mark Thompson became the vice president in

3

charge of monitoring this, as I understand it he sent you

4

an email about what he expected from you, correct?

5

A. Sometime after he became supervisor of the Athletic

6

Department, yes.

7

Q. How long after he became supervisor of athletics and

8

recreation did he send you this email?

9

A. I have no recollection of that. I know that the

10

email exists. I would say it's in the fall semester but I

11

do not have an exact recall.

12

Q. Fair enough. Fair enough. Take a deep breath, I

13

don't want you to get nervous.

14

A. I'm actually not nervous.

15

Q. All right. Now, then, is Vice President Thompson's

16

office in the Athletic Department?

17

A. No, it is not.

18

Q. Where is his office?

19

A. School of business.

20

Q. Okay. Did he ever pay a visit to you as the senior

21

woman's administrator and explain to you what he expected

22

from you in connection with his new monitoring of the, of

23

this process?

24

A. I don't recall Vice President Thompson ever visiting

25

my office to discuss anything such -- to discuss anything.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 95 of 121 822

1

Q. Okay. Ms. Steele, the Title IX coordinator at

2

Quinnipiac University -- by the way, did you know that

3

that, that Quinnipiac University by law is required to

4

have a Title IX coordinator?

5

A. I know that by law all colleges and universities are

6

expected to have someone designated as Title IX

7

coordinator.

8

Q. Okay. Now, after the court entered decision in May

9

of last year -- right?

10

A. Correct.

11

Q. Did you have any conversations with Ms. Steele about

12

how the university was going to handle Title IX compliance

13

going forward?

14

A. No.

15

Q. And did she ever send you any emails about what she

16

expected to you as the gatekeeper of this information, the

17

add/delete information?

18

A. No.

19

Q. And I take it obviously that if Vice President

20

Thompson didn't meet with you and she didn't meet with

21

you, that the three of you didn't get together and discuss

22

what was expected of you?

23

A. Correct.

24

Q. All right. So, again, the focus for the coaches is

25

the first date of competition, correct, for whether they

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 96 of 121 823

1

make their roster management number or not?

2

A. Yes.

3

Q. All right. Now then, I take it then that -- do you

4

know if Vice President Thompson, Ms. Steele, Mr. McDonald

5

or anyone associated with athletics at Quinnipiac

6

University undertook an examination, men's athletic

7

program, women's athletic program, to determine whether

8

equipment for the women's program and the men's program

9

was equal or close to being equal?

10

MS. FRIEDFEL: Objection, Your Honor. This is

11

going beyond the scope of my direct examination. We

12

didn't talk anything about equipment or resources for any

13

of the teams.

14

MR. HERNANDEZ: It's one of the proportionality

15

factors, Your Honor.

16

MS. FRIEDFEL: I don't believe it is actually.

17

THE COURT: Well, I'll allow it, at least some

18

of this. See where we go.

19

BY MR. HERNANDEZ:

20

Q. Was any study like that ever undertaken?

21

A. Not to my knowledge.

22

Q. All right. Can I take it that the same is true about

23

the scheduling of competitions?

24

A. I don't work directly with schedules -- I'm thinking

25

through my answer out loud.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 97 of 121 824

1

(Pause)

2

I don't know the answer to your question.

3

Q. All right. Do you know if any such examination or

4

comparison was made, men's program, women's program, with

5

respect to access to coaching, to coaches?

6

A. I don't know that that took place.

7

Q. Okay. And certainly no one consulted you about that?

8

A. No.

9

Q. All right. The coaches who had been dropping before

10

the first date, I'm talking about '07, '08, who had been

11

dropping before the first date of competition and then

12

adding athletes after the first date of competition, these

13

are the same coaches that you continued to rely on for the

14

first date of competition roster list, is that correct?

15

A. Correct. As I stated, we, the coach, head coach or

16

the coach, initiates. Presumably it's the head coach.

17

Q. Okay, and do you know if any procedures for

18

accountability were put in for any of the coaches, any of

19

the programs, to determine if there were athletes who were

20

practicing with the team showing up for practices, working

21

out, but who were not on the roster?

22

A. The one thing that comes to my mind is a few years

23

ago I wrote a program that the -- some software allows

24

that flexibility, so on any given day a coach anywhere

25

because it's a web based program, can pull up and see who

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 98 of 121 825

1

is on his or her team and whether they are eligible to be

2

at practice or not or competition or not.

3

Q. All right.

4

A. So all our coaches have that opportunity to know

5

who's eligible for practice and competition. It's

6

particularly of importance in the first few weeks of the

7

school year when sometimes people are medically waiting

8

for their insurance so we won't allow them to practice.

9

So that comes to my mind when you asked that question.

10

Q. And, again, it's up to the coach to do the checking;

11

no one's checking on the coach under that situation?

12

A. Correct.

13

Q. Okay. As I understand it, Coach Martin coaches four

14

teams, is that correct? Men's cross country, women's

15

cross country, women's indoor track, women's outdoor

16

track?

17

A. Yes.

18

Q. Are there any other coaches at Quinnipiac University

19

who have responsibility for four different teams?

20

A. No.

21

Q. The women's indoor and outdoor track teams, do they

22

have access to track and field facilities at Quinnipiac

23

University?

24

MS. FRIEDFEL: Your Honor, this is also -- we

25

didn't, this witness is not the track coach. She's not

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 99 of 121 826

1

here to testify about --

2

MR. HERNANDEZ: I'll withdraw the question, Your

3

Honor. Withdrawn.

4

BY MR. HERNANDEZ:

5

Q. The NCAA eligibility, academic and year of

6

competition used, that's information that you track

7

carefully, correct?

8

A. Yes.

9

Q. Is that information important to you in the role that

10

you play at Quinnipiac University?

11

A. Yes.

12

Q. Could you tell the court why it's important to have

13

that NCAA academic eligibility and year of competition

14

used? Why is that important for you to have that

15

information?

16

A. Academic eligibility, there's a variety of rules

17

based on year in college, et cetera, and a student athlete

18

has to meet those standards, be it university or NCAA, in

19

order to be eligible to compete. Participation is -- to

20

track participation is important because a student

21

athlete, every student athlete in Division I has five

22

years in which to complete or use four seasons of

23

competition. So it's good to keep a running total just to

24

make sure you know that they haven't exhausted their

25

eligibility and are getting ready to get on a bus for the

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 100 of 121 827

1

next year to go to a game.

2

Q. All right. And do student athletes have to submit

3

their names to the NCAA to do a check to make sure that

4

they are academically eligible and that they haven't used

5

up the five, more than five years of eligibility?

6

A. The NCAA, the student athletes do not to have submit

7

that they played or not played to the NCAA. The

8

monitoring of academic eligibility credits earned, credits

9

enrolled, percentage of degree requirement, grade point

10

average, is done inhouse on everyone's campus. And what I

11

mean by in house, it's campus based, and depending on what

12

school or variety of different people may be involved in

13

the process.

14

The only time that I can think of that students are

15

working with the NCAA on any kind of eligibility on a

16

regular and routine basis is when students are coming into

17

college and need to, to prove or need to have assessed

18

their initial eligibility standards.

19

Q. And under those circumstances they do go through the

20

NCAA?

21

A. They go through the NCAA eligibility much if --

22

eligibility -- eligibility center.

23

Q. Okay. And these NCAA requirements, would you agree

24

that in part they make sure that the different schools are

25

not cheating, they are not bringing in a ringer, for

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 101 of 121 828

1

example, with a grade point average of 1.1?

2

A. The initial eligibility center, formerly known as the

3

NCAA clearing house, was established so that if a student

4

was interested in going to some schools, that those six,

5

seven, three, twelve schools did not have to do an

6

assessment and perhaps interpret transcripts differently.

7

So the clearing house, now eligibility center, was

8

created to have standard practices, same set of eyes

9

looking at transcripts provided by a student.

10

I think certainly in the beginning of the NCAA

11

clearing house, there may have been times when one school

12

was able to say, hey, you can come here and meet the

13

eligibility standards and another school's assessment was

14

you can't. And that did -- that was a discrepancy and

15

certainly could be a competitive advantage.

16

Q. So you want to make sure that schools are on the same

17

level playing field?

18

A. With regards to initial eligibility standards, yes.

19

Q. And as far as the years of competition used, that

20

protects the student athletes as well, would you agree?

21

A. I don't know what you mean by protects.

22

Q. Well, it prevents a university, for example, from

23

having a student compete for seven years in a row? In

24

other words, they can't exploit an All-Star like an O. J.

25

Simpson or whatever for seven years.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 102 of 121 829

1

A. I'm sorry, I really don't know how to respond to that

2

question or statement.

3

Q. All right. Would you agree that the NCAA rules and

4

guidelines in part are there to protect the student

5

athletes?

6

A. In general, the NCAA manual is there to protect all

7

people associated with athletics, coaches, student

8

athletes, and support a competitive experience filled with

9

integrity, et cetera.

10

Q. So the NCAA rules, guidelines are important to make

11

sure that the schools are on the same level playing field?

12

A. Are given the same opportunities.

13

Q. Same opportunities. And the NCAA rules, guidelines,

14

they are there to make sure that the student athletes are

15

protected, correct?

16

A. Yeah, I guess you could characterize it as there's

17

rules there to protect them.

18

Q. Okay. Before 2009, 2010, did any of the members of

19

the women's competitive cheer team submit their names to

20

determine whether they were academically eligible under

21

the NCAA guidelines?

22

A. The competitive cheer members would not submit their

23

names to see if they were academically eligible. Student

24

athletes submit their names to the NCAA to determine if

25

they meet initial eligibility standards. In my world of

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 103 of 121 830

1

the NCAA, initial eligibility and academic eligibility are

2

two different things.

3

Q. Did any of the freshmen members of the 2009, 2010

4

competitive cheer team submit their names to determine by

5

the NCAA if they were academically eligible?

6

A. The NCAA does not have a mechanism for students who

7

are in competitive cheer to submit their names.

8

Q. Okay. Were any of the --

9

A. So the answer is no.

10

Q. No. Thank you.

11

Were any of the other members of the competitive

12

cheer team, that is non-freshmen, were any checks made

13

through the NCAA to determine whether they had used up

14

their years of eligibility?

15

A. As I previously stated, that the NCAA does not

16

check -- does not review seasons of competition in the way

17

that I think you're asking.

18

Q. Fair enough. Did you take any steps to determine

19

whether members of the women's competitive cheer team for

20

2009, 2010 have used up the years of their competitive

21

eligibility?

22

A. State the question one more time?

23

Q. Right.

24

A. Not rephrase, just restate it, if you would, please.

25

Q. If I can. I don't know if I can. Maybe we can have

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 104 of 121 831

1

it read back, how's that?

2

THE COURT: "Did you take any steps to determine

3

whether members of the women's competitive cheer team for

4

2009, 2010 had used up the years of their competitive

5

eligibility?"

6

THE WITNESS: I didn't have to take -- I took

7

mental steps. And there have not previously been a

8

competitive cheerleader, cheer team member, at any school

9

so they had not used any competitive season at the start

10

of the year. The only concern I would have on the seasons

11

used as a first year program would be had they been, are

12

they within their five year eligibility clock, and I did

13

check on that.

14

BY MR. HERNANDEZ:

15

Q. Okay. Do you know if the members of any other sports

16

team are required to practice off campus other than the

17

women's indoor and outdoor track team?

18

MS. FRIEDFEL: Objection, Your Honor. This is

19

again outside the scope of my direct. This witness

20

already testified that she doesn't keep track of the

21

venues of where teams are practicing.

22

THE COURT: Do you know the answer to that

23

question?

24

THE WITNESS: Going through the teams right

25

now --

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 105 of 121 832

1

(Pause)

2

I think I have an educated guess.

3

THE COURT: Well, I'll sustain the objection.

4

I have an educated guess too. Probably less

5

educated than yours.

6

(Laughter)

7

BY MR. HERNANDEZ:

8

Q. Now, I'd like to chat with you a bit about some of

9

the entries you made about red shirt, quit, that sort of

10

thing.

11

Correct me if I'm wrong but as I understand it, red

12

shirt, red shirting, means that you're not going to

13

compete but under the NCAA you can still practice, go to

14

the training rooms and work out, get medical facilities,

15

tutoring, all that sort of thing. You just defer, you're

16

going to use that fifth year. Is that what red shirting

17

means?

18

A. I don't know that red shirt automatically means

19

you're going to use that fifth year. It's -- I'm not

20

even -- I'm not even sure if the word red shirt is

21

actually in the NCAA manual. It could be.

22

But to answer your question, if someone does not play

23

and they are referred to as a red shirt, they in fact can

24

practice, travel with the team, stand on the sidelines in

25

their uniform at games, but never get called into a game.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 106 of 121 833

1

They have access to power hours, the training room,

2

visiting with our academic support monitor, et cetera.

3

Q. And presumably somebody who quits is not doing any of

4

those things, correct? They've walked away.

5

A. Typically someone, once they quit, are cut from a

6

team, they would no longer avail themselves of those

7

things, those services. Sometimes you may see somebody

8

that's quit a team but has an ongoing injury, may still be

9

working with the athletic training room, or if you no

10

longer have a sport, we may still give support

11

academically to an athlete.

12

Q. Okay.

13

MR. HERNANDEZ: If I could just have a moment,

14

Your Honor?

15

(Pause)

16

BY MR. HERNANDEZ:

17

Q. If you could look at the ring binders, Plaintiff's

18

Exhibits 89?

19

(Pause)

20

I have it here. This may help speed things up a

21

little bit. Do you have Plaintiff's Exhibit 89 there in

22

front of you?

23

A. Yes, I do.

24

Q. Do you recognize Plaintiff's Exhibit 89?

25

A. Can I take a moment?

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 107 of 121 834

1

Q. Sure.

2

A. (pause)

3

I recognize this.

4

Q. Is Plaintiff's Exhibit 89 an email chain that you

5

participated in?

6

A. Yes, it is.

7

Q. Okay. Drawing your attention to Plaintiff's Exhibit

8

92.

9

MS. FRIEDFEL: I'm sorry, what was the exhibit?

10

MR. HERNANDEZ: Ninety-two. Nine, two.

11

MS. FRIEDFEL: Thank you.

12

BY THE WITNESS:

13

A. Yes, I recognize this.

14

Q. Okay. And is that an email chain that you were also

15

party to?

16

A. Well, it looks like -- yes, it is a part of a

17

chain -- or I am the chain, yes, yes.

18

Q. And drawing your attention to Plaintiff's Exhibit 94,

19

nine, four.

20

A. Yes, I recognize this.

21

Q. Is Plaintiff's Exhibit 94 an email that you were

22

involved in?

23

A. I was part of this email chain.

24

Q. Okay. Thanks.

25

MR. HERNANDEZ: And we offer those as exhibits

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 108 of 121 835

1

obviously.

2

And I have no other questions.

3

THE COURT: All right. Redirect?

4

REDIRECT EXAMINATION

5

BY MS. FRIEDFEL:

6

Q. Can we take a look at the -- I want to compare B M

7

with A M, which is I think we may need to clarify

8

something.

9

MR. HERNANDEZ: Since I didn't refer to these

10

exhibits, I think Your Honor can anticipate my objection

11

as being beyond the scope of my examination.

12

MS. FRIEDFEL: You raised a question earlier

13

about some of the numbers so I just realized something

14

might need to be clarified.

15

THE COURT: I think -- let's see where it goes

16

but I'm inclined to allow it.

17

MS. FRIEDFEL: Thank you.

18

BY THE WITNESS:

19

A. So I'm at B M as well as A M.

20

Q. So they are going to be in two different binders --

21

THE COURT: Well, it's the same binder actually.

22

THE WITNESS: Luckily for us.

23

BY MS. FRIEDFEL:

24

Q. If you look at B M or women's indoor track, listed on

25

the chart for the first date of competition with a number

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 109 of 121 836

1

30?

2

A. Yes.

3

Q. Is that right? Now, if you look at A M could you go

4

through and count up and see how many people are on this

5

list as of the first date of competition? I seem to count

6

31 but could you check that?

7

A. This is a test, right?

8

Q. It's not a test. I mean I can short circuit this --

9

if anyone has objection --

10

A. I'm fine to do this.

11

Q. Okay.

12

(Pause)

13

THE COURT: I count 32 but I'm counting Empty

14

Net.

15

(Laughter)

16

(Pause)

17

THE WITNESS: Usually I do this with pencil or

18

pen in hand.

19

THE COURT: Here you go.

20

THE WITNESS: Oh, I'll be fine actually. Thank

21

you, though. I'd like to try it again.

22

BY MS. FRIEDFEL:

23

Q. Well, if we count up all the names on the list there,

24

I think Your Honor said there are 32, right?

25

A. Correct.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 110 of 121 837

1

Q. And the only person who's listed as having a

2

connection of a quit or quit is Jordan Smith, is that

3

correct?

4

A. That is correct.

5

Q. So, ordinarily if you were counting the first date of

6

competition, squad number, roster number, what would you

7

come up with based on this?

8

A. Thirty-one.

9

Q. Thirty-one. Now, do you know what the circumstances

10

are, were with Brittany Bower (ph) this year for the

11

indoor track?

12

A. Yes, well, actually it, it spanned the entire year.

13

She was diagnosed with a medical condition. She was on

14

the team last year, was coming back this year. She was

15

diagnosed with a medical condition, life altering medical

16

condition, and so she was on the team, she could travel

17

with the team, she could practice with the team when she

18

felt well enough to do so. And that's what I remember

19

about Brittany.

20

Q. So do you know whether she ever did practice with the

21

team in the indoor practice season?

22

A. I don't believe she did.

23

Q. Okay.

24

MS. FRIEDFEL: It might be better, Your Honor,

25

you'll read in the transcript of Carolyn Martin's

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 111 of 121 838

1

testimony that this athlete, she anticipated she would be,

2

might be better enough to be on the team, it turned out

3

she wasn't. But the change wasn't processed in time to

4

get her off the squad list and that's why we only counted

5

her as 30 because she wasn't actually on the team. I just

6

wanted to qualify that on the record.

7

THE COURT: Okay.

8

BY MS. FRIEDFEL:

9

Q. Mr. Hernandez asked you a couple questions about

10

whether you knew if an analysis had been done about the

11

equipment, the coaching and the scheduling for men versus

12

women. Do you know that any of those analyses have not

13

been done?

14

A. I don't know that any have, have or have not been

15

done.

16

Q. You just don't know one way or the other?

17

A. Correct.

18

Q. Okay. Do you have any reason to believe that any of

19

the coaches at Quinnipiac were practicing athletes were

20

not properly on their rosters at the time?

21

A. I have no reason to believe that. We work very hard,

22

in fact, to insure that that does not happen.

23

Q. And did the university take steps to insure that the

24

competitive cheer athletes were meeting academic

25

eligibility requirements?

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 112 of 121 839

1

A. Academic eligibility requirements, yes. They went

2

through the process that we have in place for all our

3

athletes to determine their academic eligibility, like are

4

they enrolled full-time. If yes, they can practice. If

5

they are going -- we applied all applicable NCAA rules to

6

our student athletes on the competitive cheer team.

7

One of the NCAA rules is to go from the fall

8

semester -- to go from competing in the fall semester to

9

competing in the spring semester, you have to have passed

10

a minimum of six credits so we do six credit check

11

mid-year and they were subjected to that rule.

12

Another rule is freshmen have to earn a minimum of 18

13

credits between the fall and the spring semester and

14

ultimately have to earn between -- 24 credits going into

15

the next school year. So our academic, our system AD for

16

academic support would go through the entire list of

17

freshmen to insure that all the freshmen had earned at

18

least 18 credits, because if they haven't earned 18

19

credits, there's nothing to do to remedy that situation

20

unless there's a mitigating circumstance which would

21

require us to file a waiver request.

22

If any student athlete in the freshmen year as of the

23

end of the spring semester, so two academic semesters, has

24

not earned 24 credits, she will begin alerting those

25

student athletes that you will need to go to summer school

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 113 of 121 840

1

because you are shy of your 24 credits. Competitive cheer

2

freshmen would be subjected to that.

3

Q. Okay, let me just ask a question. Apart from

4

actually submitting their names to the NCAA --

5

A. Eligibility Center.

6

Q. -- to the Eligibility Officer, were the competitive

7

cheer athletes required to comply with all of the other

8

regulations that are applied to the varsity athletes at

9

Quinnipiac?

10

A. Yes.

11

Q. And with respect to the seasons of competition and

12

use that Mr. Hernandez was asking you about, that's

13

tracked by sport, is that correct?

14

A. That is correct.

15

Q. So -- and the competitive cheer athletes would only

16

become ineligible to play if they had competed in

17

competitive cheer for more than four years or for four

18

years already?

19

A. Three years previous -- yes, yes.

20

Q. Right. So if they had competed in soccer, they would

21

still have, as long as they were within the five year

22

clock, they would still have eligibility to compete in

23

competitive cheer?

24

A. Yes. I think that the Jannell Lopez, women's soccer,

25

women's lacrosse example that we discussed earlier in my

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 114 of 121 841

1

testimony is a perfect example of that. She started

2

college five years ago, played women's soccer, or was on

3

the women's soccer team her freshmen year, was on the

4

women's lacrosse team and used eligibility for the, for

5

four years. She was still within her five year clock.

6

There was an emergency situation with soccer, she was able

7

to come back to the women's soccer team.

8

Q. Okay, thank you.

9

A. And be eligible to practice and compete.

10

MS. FRIEDFEL: Let me just confer for a moment,

11

Your Honor.

12

(Pause)

13

BY MS. FRIEDFEL:

14

Q. I just want to show you an exhibit -- actually maybe

15

I can do it without the exhibit. You were shown some

16

correspondence earlier with Dani Caro -- well, who's Dani

17

Caro?

18

A. Dani Caro was our women's lacrosse coach.

19

Q. And that correspondence was about her roster number

20

and the -- a student that was going to be studying abroad?

21

A. Correct.

22

Q. Do you know how her roster was handled in terms of

23

what her number was and how things were counted? Actually

24

let me ask you a more specific question.

25

A. Thank you.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 115 of 121 842

1

Q. Do you know if the student who was going to study

2

abroad was counted for the first date of competition

3

roster total?

4

A. As I mentioned earlier, we have not yet done the

5

official counting for EADA but if I had to do the report

6

this afternoon, I would not count her.

7

Q. Okay. And do you know if a student was cut because

8

she returned from study abroad for the spring?

9

A. I do not know that.

10

Q. Okay. Do you believe that to be the case, that there

11

was a specific swap?

12

A. I believe there was no such swap.

13

Q. Okay.

14

MS. FRIEDFEL: I don't think I have any other

15

questions, Your Honor.

16

THE COURT: All right. Thank you, you're

17

excused.

18

THE WITNESS: Thank you.

19

(Witness excused.)

20

MR. ORLEANS: Are you done?

21

MS. FRIEDFEL: I believe we are.

22

THE COURT: The defense is resting?

23

MS. FRIEDFEL: Yes, we're resting. We'll have

24

the discussion about exhibits but with respect to

25

witnesses we would rest.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 116 of 121 843

1

THE COURT: Okay.

2

MR. ORLEANS: Your Honor, on the housekeeping

3

side of things for the exhibits, this morning I had

4

mentioned the two exhibits to the deposition of Samuel

5

Seemes. I had given copies of those deposition exhibits

6

to your clerk. And I can report that deposition exhibit

7

Plaintiff's One either is or is contained within trial

8

Exhibit E M for cross referencing purposes.

9

Deposition Exhibit, Plaintiff's Two is contained

10

within Trial Exhibit E P.

11

The only other thing that I think would be

12

useful to do, and I don't know if you want to do this on

13

the record, Judge, is to go through both the plaintiff's

14

and the defense trial exhibit list and make sure that we

15

all agree what's in and what's not in.

16

THE COURT: Well, I definitely want to do that

17

and the only question is how to do it. I was just

18

conferring with my clerk to confirm our list and we can do

19

it a number of ways. My first thought was to have that

20

list typed up and emailed to both of you so that if you

21

think something's in that isn't on that list, then you can

22

bring it up. If you think something was not in that is on

23

that list, you can bring that up. And hopefully then by

24

return email you can tell us if you have any problems.

25

And that will be the list once we've figured out any adds

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 117 of 121 844

1

or deletes.

2

MR. BRILL: And you have authority over the adds

3

and deletes, Your Honor.

4

MR. ORLEANS: That's fine.

5

THE COURT: This will be as of the last day of

6

competition.

7

(Laughter)

8

MR. ORLEANS: That would be fine, Your Honor,

9

but before then we close the last day of competition,

10

there are a few exhibits on the plaintiff's list that I

11

don't think have been admitted yet but I've spoken with

12

defense counsel, I don't believe we have any disagreement

13

about them, so let me just get on the record that they are

14

going in.

15

THE COURT: Let's get those out of there.

16

MR. ORLEANS: Okay. Exhibit 25, the gender

17

equity manual, the NCAA gender equity manual, should be in

18

if it's not already in.

19

Exhibit 48, the users guide for the EADA website

20

data collection, if that's not already in, should be in.

21

THE COURT: All right, and there's agreement,

22

there's agreement to those?

23

MS. FRIEDFEL: Yes, I think 48 actually is

24

already in.

25

THE COURT: They might both be in.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 118 of 121 845

1

MR. ORLEANS: They may be. I'm working from the

2

list we've been keeping, Your Honor, so I don't know

3

whether they correspond to your list.

4

THE COURT: Sure.

5

MR. ORLEANS: Exhibit 52, the criteria for, the

6

NCAA criteria for emerging sports should be in.

7

THE COURT: Okay.

8

MR. ORLEANS: And there are a few at the end

9

that I think we agree are in. Numbers -- number 139, the

10

defendant's responses and objections to request for

11

admission.

12

140, set of amended responses and objections to

13

requests for admission.

14

And 141, an interrogatory response, should be

15

in. I honestly don't know whether the version of the

16

interrogatory response that we submitted has been verified

17

by someone for the defendant but I think we're in

18

agreement that it's truthful and accurate.

19

MS. FRIEDFEL: Yes, it's been verified. It was

20

just a question whether the verified copy is what is in

21

the exhibit.

22

THE COURT: Yes, my copy is not verified but,

23

you know, I'm not sure that that matters. It's submitted

24

by counsel as a judicial admission.

25

MR. ORLEANS: Yes and it's stipulated in.

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 119 of 121 846

1

That's all I have, Your Honor.

2

THE COURT: Okay. All right.

3

MS. FRIEDFEL: We don't have any specific

4

exhibits at this moment that when we can list. I don't

5

anticipate having any but we'll doublecheck that.

6

THE COURT: And we'll email, as I said, our

7

list. Who wants from each side?

8

(Mr. Orleans and Ms. Friedfel raising hand)

9

THE COURT: We'll get it to the two of you. And

10

again, if you check it as quickly as possible and let us

11

know if there's no issue, let each other know if there's

12

any issues as well.

13

MR. ORLEANS: We will.

14

THE COURT: It may well be you two can

15

stipulate, we don't agree whether it was in but there's no

16

problem being in, that's fine. And so the record will

17

remain open for that purpose until tomorrow.

18

MR. ORLEANS: That's fine.

19

MS. FRIEDFEL: Thank you, Your Honor.

20

THE COURT: All right. Let's talk briefly about

21

closings. We'll be here at nine. I'm basically going to

22

give each side an hour. If plaintiff wants to reserve

23

some time for what amounts to rebuttal, that's fine. Just

24

let me know. I'm likely to have some questions which

25

hopefully you'll save a little time for. It's going to be

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 120 of 121 847

1

helpful to me to focus in precisely on how you believe the

2

evidence supports your position. And so it's be going to

3

be helpful, frankly, to see the plaintiff's trial brief to

4

understand your view --

5

MR. ORLEANS: Yes, appreciate that.

6

THE COURT: -- your view of the case, and I will

7

have read both trial briefs. And if I get it soon enough

8

I will read the response to the amicus prior to the

9

argument. And hopefully, having carried it around for a

10

couple days I will read Carolyn Martin's deposition so I

11

don't keep asking those same questions. Any question or

12

concerns about tomorrow?

13

MR. ORLEANS: Can I let you know tomorrow

14

morning about whether we want to reserve time for

15

rebuttal?

16

THE COURT: Sure, that's fine. I do need to

17

leave pretty much at 11, so let's try and start right at

18

nine. I know I've been the hold-up lately but let's try

19

and start at nine and finish by 11 if we can.

20

MR. ORLEANS: I don't anticipate a problem with

21

that, Your Honor.

22

THE COURT: Okay, great. Thank you all. Unless

23

there's anything further, we'll stand in recess.

24

(Whereupon the above matter was adjourned at

25

12:40 o'clock, p. m.)

Case 3:09-cv-00621-SRU Document 178 Filed 07/21/10 Page 121 of 121 848
C E R T I F I C A T E
I, Susan E. Catucci, RMR, Official Court Reporter for the United States District Court for the District of Connecticut, do hereby certify that the foregoing pages are a true and accurate transcription of my shorthand notes taken in the aforementioned matter to the best of my skill and ability.
/S/ Susan E. Catucci __________________________
Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604
Tel: (917) 703-0761

 
 Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 1 of 88 849

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - x

STEPHANIE BIEDIGER, ET AL vs.
QUINNIPIAC UNIVERSITY

: No. 3:09cv-621 (SRU) : 915 Lafayette Boulevard : Bridgeport, Connecticut : : June 25, 2010 :

- - - - - - - - - - - - - - - - x

BENCH TRIAL

B E F O R E: THE HONORABLE STEFAN R. UNDERHILL, U. S. D. J.

A P P E A R A N C E S:

FOR THE PLAINTIFFS:

PULLMAN & COMLEY 850 Main Street P.O. Box 7006 Bridgeport, Connecticut 06601-7006
BY: JONATHAN B. ORLEANS, ESQ. ALEX V. HERNANDEZ, ESQ.

KRISTEN GALLES, ESQ. Equity Legal 10 Rosecrest Avenue Alexandria, Virginia

22301

FOR THE DEFENDANT:

WIGGIN AND DANA, LLP 400 Atlantic Street P. O. Box 110325 Stamford, Connecticut 06911-0325
BY: MARY A. GAMBARDELLA, ESQ.

(CONTINUED)

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 2 of 88 850
PROSKAUER ROSE 1585 Broadway New York, N. Y. 10016
BY: EDWARD A. BRILL, ESQ. SUSAN D. FRIEDFEL, ESQ. REBECCA BERKEBILE, ESQ.
Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604
Tel: (917)703-0761

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 3 of 88 851
I N D E X SUMMATIONS: MR. ORLEANS...................................856 MR. BRILL.....................................884 MR. ORLEANS (Rebuttal)........................930
-0-

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 4 of 88 852

1

(9:10 O'CLOCK, A. M.)

2

THE COURT: I get advantage of the fact that the

3

electricity was off a little while. Although it's

4

actually after 9:00 o'clock it says before nine, so I'll

5

take that. How is everyone this morning?

6

MR. BRILL: We're fine. I have a few

7

preliminaries I'd like to raise with the court before we

8

begin the arguments.

9

THE COURT: Sure. I want to make sure where we

10

are on the exhibits.

11

MR. BRILL: Well, there was -- I think we're in

12

agreement except for one exhibit which was defendant's

13

Exhibit G C, there were no, there was no objection to it

14

when it was, when I questioned Dr. Lopiano about it. This

15

is the book chapter that was authored by

16

Dr. Yiamouyiannis, and what happened was she never

17

testified but she did identify the book chapter at her

18

deposition. So there's really no dispute that it's

19

authentic and we believe it should be placed in the record

20

as, just as we did other portions of her report. That was

21

my first item. Perhaps Mr. Orleans --

22

MR. ORLEANS: I would like to be heard. We

23

haven't been getting daily transcripts so I honestly don't

24

remember if there was an objection asserted when that

25

exhibit was shown to Dr. Lopiano, but it is hearsay. At

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 5 of 88 853

1

the time if we didn't object it would have been because we

2

expected Dr. Yiamouyiannis to testify. Since she did not

3

testify, it seems to us that the article authored by her

4

which Dr. Lopiano I think testified that she hadn't read

5

and disagreed with, we don't think that the article should

6

be part of the trial record.

7

MR. BRILL: Well, we can cure the hearsay

8

objection by offering that portion of her deposition which

9

would be admissible under the federal rules.

10

THE COURT: Let me figure out whether there's a

11

real problem here. If it's not part of the trial record,

12

is there any dispute that I could look at an article like

13

this and glean from it whatever I wanted to glean from it?

14

MR. ORLEANS: I suppose not, Your Honor.

15

THE COURT: I mean, you know, I'm not sure it

16

matters whether it's in the trial record or out of the

17

trial order so I'm going go ahead and admit it. It was

18

used, I don't recall an objection, so --

19

MR. BRILL: The second issue, there's no

20

controversy, Your Honor. There were a number of exhibits

21

that were put into evidence that it turns out contain

22

personal information regarding student athletes and we've

23

agreed with Your Honor's permission to seal those

24

documents rather than to attempt to redact them.

25

THE COURT: Well, there's not really a need to

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 6 of 88 854

1

do that, I don't think. Trial exhibits are not docketed

2

in any way. They are --

3

MR. BRILL: Okay.

4

THE COURT: I mean they are here. I suppose

5

somebody could ask to see one in which case we would want

6

to redact it before it was shown to anyone in the public,

7

but it's not obvious to me that the trial exhibits need to

8

be redacted at this point in time. After a decision they

9

will be returned to the parties and would be available to

10

the Court of Appeals in the event that there's an appeal,

11

at which time it certainly is appropriate, I think, for

12

either side to redact any, you know, personal information.

13

I understand that to be an agreement of the party.

14

MR. ORLEANS: Yes, Your Honor.

15

THE COURT: Is that right? Yes.

16

MR. BRILL: Your Honor, I have one more issue.

17

This one is a bit more difficult and frankly it's a

18

situation I've never faced before and I'm not quite sure

19

what to do about it but I wanted to, I felt compelled to

20

bring it to the court's attention.

21

You may recall that Mr. Webb testified at the

22

very end of his direct testimony that in his opinion

23

cheerleading, including cheerleading competition, is not a

24

sport. That's on page 415 of the transcript. That

25

testimony was widely reported in the press and I

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 7 of 88 855

1

understand, of course, the fire storm of controversy, as a

2

result of which Mr. Webb has been issuing a series of

3

statements on his website and elsewhere which I regret to

4

say appear to directly contradict his court testimony, and

5

I felt it was necessary to bring this to the court's

6

attention.

7

I have his statements but, you know, I'm not --

8

the record the closed, I understand, but it seemed to me

9

the court needed to be aware of the fact in effect he's --

10

I'm not sure if I would say he's recanted his testimony

11

but he's put out public statements that I think I can

12

fairly say states the opposite of the testimony as it was

13

in court. I've handed out copies of these statements to

14

plaintiff's counsel.

15

MR. ORLEANS: Your Honor, I hadn't seen the

16

statements before this morning and I'm looking at them

17

myself. I have to say that I don't think that they

18

contradict his testimony. I think if you look at his

19

testimony in context and you read the entirety of his

20

public statements he's made, he's trying to walk a fine

21

line but I don't think he's contradicted himself in any

22

way.

23

What's more, the record is closed and I don't

24

think it's proper for the court to take notice of any

25

statements Mr. Webb made or may have made after he's off

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 8 of 88 856

1

the stand and no longer testifying in this case.

2

THE COURT: I would agree with that. I think

3

the record is the record. I mean, to be perfectly frank,

4

I'm not going to take whole hog what Mr. Webb or anybody

5

has to say. I'm going to evaluate it as I'm required to

6

do, and I don't think anybody's prejudiced by not opening

7

the record.

8

MR. BRILL: Thank you.

9

THE COURT: All right.

10

MR. ORLEANS: Good morning, Your Honor.

11

THE COURT: Good morning.

12

MR. ORLEANS: I'd like reserve ten minutes for

13

rebuttal, if rebuttal is necessary.

14

THE COURT: Sure.

15

MR. ORLEANS: Your Honor, it's the plaintiff's

16

contention in this case, in this action that Quinnipiac

17

University discriminates against women in the operation of

18

its athletic program by failing to provide them with

19

genuine varsity participation opportunities in proportion

20

to their share of the undergraduate population.

21

Now, let me take just a moment to say what this

22

case is not about, in our view. This case is not

23

volleyball players against cheerleaders. We're not making

24

a claim that competitive cheer or a team stunt and tumble

25

team can never be a legitimate sport, although we do claim

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 9 of 88 857

1

that it is not currently recognizable as a varsity sport.

2

It is not volleyball players against runners.

3

We believe that Quinnipiac ought to be required to beef up

4

its running program for women.

5

And it certainly is not an attempt to reduce

6

opportunities for men. We encourage Quinnipiac University

7

to increase the athletic participation opportunities for

8

all its student, both men and women, nor are we

9

criticizing the skills or the efforts of any athlete or

10

coach.

11

We are here because of Quinnipiac's failure to

12

take seriously its obligation of nondiscrimination against

13

its female student athletes. We believe that Quinnipiac

14

has demonstrated by its behavior since the preliminary

15

injunction was entered in this case that it is focused on

16

the appearance but not on the reality of gender equity and

17

Title IX compliance.

18

I'm going to try in my remarks to briefly

19

explain the five ways in which we believe that Quinnipiac

20

discriminates.

21

First, Quinnipiac discriminates by putting

22

ceilings on the sizes of men's rosters and floors under

23

the women's rosters.

24

Now, Dr. Thompson testified that he manages to

25

the numbers and, in general, they have tried to cloke this

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 10 of 88 858

1

floor and ceiling policy in the language of management

2

consulting. But, in fact, we believe that it was clear

3

from the evidence, both the documentary evidence and the

4

testimonial evidence, that for the men's teams the numbers

5

operate as ceilings and for the women's they operate as

6

floors.

7

Now, this chart -- this chart is derived from

8

Exhibit 142 which is the Quinnipiac's chart comparing the

9

sizes of its rosters for 2009, 2010, and for 2010, 2011

10

with the NCAA average squad sizes. And also from Exhibit

11

eight, which was admitted at the preliminary injunction

12

hearing and included a, it was a -- it was part of

13

Dr. Lopiano's report at that point and it included a

14

column showing the northeast conference average squad

15

sizes. So I took that column in order to show what I

16

would like to show now.

17

If you examine, if you compare the Quinnipiac

18

university squad sizes, both for the year just finished

19

and for the year to come, with the NCAA and NEC averages,

20

here's what we see.

21

Starting with the men, for basketball and for

22

hockey, for ice hockey, which are the favored sports at

23

Quinnipiac, the sport of emphasis, the sports with

24

prestige, the men get squad sizes that are larger than the

25

NCAA average, and in the case of basketball larger than

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 11 of 88 859

1

the NEC average.

2

For baseball, the squad size is smaller than

3

both NCAA and NEC. For soccer, the same. For tennis it's

4

equal to NCAA but smaller than NEC. For lacrosse it's

5

smaller than both significantly. For cross country, it's

6

smaller than both. And so clearly there's a consistent

7

pattern of setting the men's roster sizes below the

8

relevant benchmarks.

9

On the other hand, for the women, even the

10

favored sport of basketball, the roster is larger than

11

both NCAA and NEC. For field hockey, the same. For

12

soccer, you know, it's close. It's one smaller than

13

the -- in the year just finished it was larger, in the

14

year to come because the coach has been vocal, it's a

15

little smaller than the NCAA average, it's the same as the

16

NEC. In tennis it's larger than both. In lacrosse it's

17

larger than both. In cross country it's significantly, in

18

the year to come projected to be significantly larger than

19

both. In the year just finished in cross country, the

20

woman's squad was about the size of the NCAA but

21

significantly larger than the NEC. And for ice hockey,

22

it's larger.

23

Now, the tracks, because Quinnipiac does not

24

enter so many events and does not have field athletes, the

25

comparisons really aren't relevant. In softball, we're

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 12 of 88 860

1

close. This year we were the same as the NCAA or a little

2

larger than the NEC. For the coming year, again we have a

3

vocal coach in softball and the squad size is going to be

4

the same as the NEC.

5

In competitive cheer, there's no comparisons.

6

And in volleyball, for obvious reasons, it's a special

7

case but it's still projected in the coming year to be

8

just a little bit -- to be larger than the NEC average.

9

And we would submit, Your Honor, that it's quite

10

clear that these squad sizes in comparison to benchmarks

11

operate as ceilings for the men and floors for the women.

12

THE COURT: Is there anything wrong with that?

13

MR. ORLEANS: Yes. Dr. Lopiano, as Dr. Lopiano

14

testified, if you're not going to discriminate between men

15

and women, you should have the same policy for both men

16

and women. You can set, you could set a range, it seems

17

to me, for -- you could say that both men and women should

18

be within one or two of the average and give the coaches

19

some room to move within that. And none of this would be

20

a problem if you had an established record of compliance

21

with Title IX, if you had been expanding women's sports,

22

if you had been meeting the needs and abilities and

23

interests of your population. It's only when you get into

24

this situation where you're struggling desperately to

25

reach statistical proportionality that you start to misuse

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 13 of 88 861

1

roster management in this way.

2

THE COURT: Let me understand, is roster

3

management in and of itself a problem or is it a problem

4

only to the extent that it implies that the opportunities

5

for some of them, the women on an over sized roster, are

6

not genuine participation opportunities? In other words,

7

is it direct evidence of a problem or is it only an

8

indirect evidence of a problem?

9

MR. ORLEANS: Our contention is that the way

10

roster management is implemented at Quinnipiac is

11

discriminatory on its face. But to answer your question a

12

little more directly, it's certainly necessary for schools

13

to manage their rosters. We can't really contest that.

14

No school's in a position to simply say, you know, go out

15

and get as many athletes as you want and let the chips

16

fall where they may. They have to set some targets but

17

they have to set those targets and implement those targets

18

in a nondiscriminatory way that is accountable to the

19

needs of the sport, the needs of the coach, the needs of

20

the athletes, and the comparison to relevant benchmarks.

21

We do, we do contend that the quality of the

22

women's experience versus -- is less than the quality of

23

men's experience because the women's teams are inflated in

24

size and the men's teams are not. The men's experience is

25

compromised also because of the ceilings, but in

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 14 of 88 862

1

particular, as Your Honor observed at the preliminary

2

injunction stage, you know, we think it's imposition of

3

floors under the women's teams that operates the

4

disadvantage the women have in Title IX.

5

Is that in answer to your question?

6

THE COURT: Yes.

7

MR. BRILL: Jon, could I ask you to speak into

8

the mic? It's hard to hear you.

9

MR. ORLEANS: Yes.

10

MR. BRILL: Thank you.

11

MR. ORLEANS: So there was also evidence, Your

12

Honor, we would submit, that the coaches and the

13

administrators perceived the men's targets as ceilings and

14

the women's targets as floors. The coaches of the men's

15

teams were frustrated that their numbers were low, coaches

16

of the women's teams found it difficult to meet the

17

targets that were too high.

18

And as Dr. Lopiano testified and I just said

19

treating the men's teams and women's teams differently is

20

discriminatory on its face and we don't think the court

21

really has to go any farther than that in order to find in

22

favor of the plaintiffs.

23

Second, Your Honor, Quinnipiac discriminates in

24

the way take it counts runners in order to comply, in

25

order to appear -- again it's the appearance versus the

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 15 of 88 863

1

reality -- in order to appear to comply with Title IX

2

without actually doing so.

3

This is the multiple, the multiple count issue

4

and I want to say that the court doesn't need to find that

5

all running sports are one sport or that indoor and

6

outdoor are really the same sport, although that is a

7

contention that I'll address in a few minutes. The court

8

doesn't need to find, although we do contend it and I'll

9

address it in a few minutes, that there's anything less

10

than legitimate or genuine about the indoor and outdoor

11

track program for women. In order to see that the way

12

that Quinnipiac counts its male and female runners is

13

discriminatory, you don't really need to reach those

14

issues, I think.

15

What Quinnipiac is doing is exploiting counting

16

rules. And, you know, we know that the NCAA says you

17

count a kid as an athlete in each sport and that, that

18

cross country, indoor and outdoor track are different

19

sports for NCAA purposes. And we know that for EADA

20

purposes, the Office of Civil Rights says you count kids

21

multiple times if they are in different sports and

22

certainly in that sense if you've got a kid who plays say

23

soccer in the fall and softball in the spring.

24

But you have to interpret these rules and

25

regulations for Title IX purposes in light of the purpose

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 16 of 88 864

1

of Title IX, which is expanding genuine participation

2

opportunities for women and insuring that women get equal

3

participation opportunities as men. And it is simply, we

4

submit, obviously unfair, illegitimate, discriminatory to,

5

to multiple count female runners and single count male

6

runners. It's taking advantage of loopholes in the system

7

for purposes for which they were, for which those rules

8

were never intended.

9

Quinnipiac had -- let me put the chart back up

10

just so we have the numbers.

11

THE COURT: It will come. I think it's auto

12

focus.

13

MR. ORLEANS: There it is. In the current year,

14

2009, 2010, the year just finished, Quinnipiac had 13 male

15

cross country runners. Now, we should observe and I'm

16

sure Your Honor recalls the evidence, Quinnipiac before

17

this past year had indoor and outdoor track for men and

18

when Quinnipiac had indoor and outdoor track and cross

19

country for both men and women, it counted them the same,

20

and even if there were some differences in the sizes of

21

those rosters, you know, for statistical purposes there

22

was something of a wash, not a perfect statistical wash

23

but at least they were all being treated the same.

24

Now, in the current year, in the year just

25

finished, we have 13 men who counted as 13 men. We have

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 17 of 88 865

1

18 women who run cross country. They're required by their

2

coach to also run indoor and outdoor track which, not

3

coincidentally puts floors under the size of the indoor

4

and outdoor track squad. And so these 18 women count as

5

54. Then we have 12 more women who run track only. They

6

run both indoor and outdoor, so they count as 24. So we

7

end up with 30 women who count as 78.

8

For next year, we're going to, the proposal is

9

to increase the cross country squad, beyond any obvious

10

reasonable need, so that the 24 women running cross

11

country will count as 72 and the 11 additional women who

12

will run track only will count as 22 and we'll have 35

13

women who count as 94.

14

It's not -- it's not right. It's not fair.

15

It's not consistent with Title IX. It's an exploitation

16

of the rules. It's facially discriminatory because of the

17

way, the difference that it establishes between how men

18

are counted and women are counted, and it violates Title

19

IX.

20

Third, Quinnipiac discriminates by failing to

21

count its participants properly. Here we're relying on

22

the testimony of Dr. Lopiano and her, particularly her

23

supplemental report. There was a lot of testimony about

24

that, Your Honor is familiar with the exhibits, and her

25

conclusions, her conclusion page will be attached as an

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 18 of 88 866

1

exhibit to our trial brief which will be filed today. I

2

apologize for that, Your Honor. We had a bit of a glitch.

3

I think our proposed findings and conclusions are --

4

probably will be filed before we're done this morning,

5

emailed from the office. And when we get back to the

6

office, we have to finish fixing the trial brief and we

7

will promptly file it.

8

Dr. Lopiano in her supplemental report explained

9

in detail her approach to counting, and I think it's

10

appropriate here to point out, I think, a real difference

11

in the approach of the plaintiffs and the defendant. It

12

seemed to us that the defendant focused almost exclusively

13

on counting student athletes on the roster as of the first

14

day of competition, which is the standard for the EADA.

15

The EADA equaled -- the EADA takes a snapshot on the first

16

day of competition and asks that that information be

17

reported to the government. But Title IX is counting

18

participants across an entire season or an entire academic

19

year. And so Dr. Lopiano, who as the court knows is not

20

only recognized as an expert in Title IX but also was

21

herself an athletic director, looked at more than just the

22

first date of competition squad lists. She conducted an

23

exhaustive analysis of each team and each athlete. And,

24

as you'll recall, she laid out her reasons from the

25

perspective of an athletic director for counting or not

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 19 of 88 867

1

counting each athlete.

2

And there was a lot of attention paid during the

3

trial to the group of athletes that she described as red

4

flags. And frankly I think eight little bit of a red

5

herring. Those were athletes about whom Dr. Lopiano

6

concluded that she didn't have sufficient information to

7

be sure of her judgment whether this was someone who

8

should count or shouldn't count.

9

And she explained what her concerns were and

10

it's indicated on the carts. And the testimony that's

11

been presented, I think we would concede, resolved those

12

concerns about some of these athletes and showed that

13

Quinnipiac probably would be justified in counting them or

14

not counting them, whichever preferred to do with respect

15

to some of them and perhaps not with respect to others.

16

But even if the court were to decide that all of

17

the judgment calls that Dr. Lopiano made with respect to

18

the, quote/unquote, "red flagged athletes" were incorrect,

19

her column B would still be the best and most solid basis

20

for counting participants, and her column A would be an

21

even more conservative approach.

22

So I'm not going to spend the time here in the

23

oral argument putting those charts back up on the board.

24

The court has them and is familiar with them. But

25

Dr. Lopiano showed that even if Quinnipiac is permitted to

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 20 of 88 868

1

triple count its runners and even if it is permitted to

2

count competitive cheer, that absent volleyball in the

3

year just finished, there would have been -- and this is

4

column B I'm referring to -- there would be an equity gap

5

of 18 which was necessary, which clearly was sufficient to

6

support the volleyball team.

7

And under column A, even if Quinnipiac were

8

allowed to triple count its runners and even if it were

9

allowed to count competitive cheer without volleyball, the

10

equity gap would have been 11, again, enough to support

11

the volleyball team.

12

THE COURT: Is that the standard? The defendant

13

cites cases suggesting that it's not enough to show that

14

there are, there would be a gap large enough to support a

15

small team but, rather, there has to be a gap large enough

16

to support the average team for there to be a Title IX

17

violation.

18

MR. ORLEANS: Your Honor, our contention is that

19

the 1996 interpretation is pretty clear about this, that

20

where the gap is large enough to support a team, then the

21

university is obligated to offer that team. And in this

22

case, certainly we know what teams are at issue, so that

23

even if in some hypothetical set of circumstances the

24

university, a university could claim, well, you know, the

25

gap is very small and we shouldn't be required to invest

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 21 of 88 869

1

all those resources to establish a five person golf team

2

or something like that. That's not this case. This case,

3

we have a volleyball team, we have a coach, we have

4

scholarships, we have a schedule. So I don't think it's a

5

case, these circumstances are circumstances where the

6

defendant should be heard to say we're not obligated to

7

offer volleyball because it's a smaller team than the

8

average team.

9

I know that the defendant also makes some

10

contentions about what is substantial proportionality and

11

whether 2 percent is close enough or whether it has to be

12

farther apart, and our contention with respect to that

13

will be, look, if you are -- if you comply with Title IX

14

and you slide out of compliance because things do

15

fluctuate, you know, the gender proportion of the student

16

body may change, the team may have a bad recruiting year

17

or a good recruiting year, a school is entitled to be cut

18

some slack if it has shown in one way or another that it's

19

serious about nondiscrimination and needs some time to

20

adjust. But a school with an established record of

21

discrimination is not, we submit, entitled to be cut much

22

slack.

23

Now, on the counting issue for the coming year,

24

Quinnipiac wants to close its gap by adding six cheer team

25

members and six runners. We've already talked about how

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 22 of 88 870

1

the six runners would be counted as 16, and Quinnipiac

2

claims it will close its gap that way and will be entitled

3

to eliminate volleyball. For the reasons we've already

4

discussed that's completely improper, but we also contend,

5

as we have contended throughout the litigation, that it's

6

not enough to promise we'll be good in the future if

7

Quinnipiac is currently not in compliance. And plaintiffs

8

are entitled to an injunction to assure compliance in the

9

future, they are not entitled to cut an existing team and

10

make a promise they'll fix it some other way.

11

Now, fourth major contention. Let me address

12

competitive cheer. Just one moment, please.

13

(Pause)

14

Now, it's our contention that the new sport, new

15

activity, endeavor, whatever you want to call it, offered

16

by Quinnipiac, whether you call it cheerleading, whether

17

you call it competitive cheer, whether you call it

18

competitive stunt and tumble, it's a terrific opportunity

19

for a bunch of kids who want to do that, but it's not yet

20

a varsity sport for Title IX purposes.

21

The brief, the amicus brief of the United States

22

I think lays out very thoroughly the standards that the

23

government, that the OCR uses to address this question of

24

what's a sport for Title IX. And we suggest that it is

25

extraordinarily significant, Your Honor, that neither

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 23 of 88 871

1

Quinnipiac nor its new organization, the National

2

Competitive Stunt and Tumble Association, has gone to OCR

3

to request a determination letter. Here is the agency

4

that is primarily responsible for enforcing Title IX.

5

Here is an agency that has an established track record of

6

saying cheerleading does not qualify as a varsity sport.

7

And there's obviously, certainly since last

8

spring when we were here on the preliminary injunction,

9

there's controversy and question as to whether this new

10

activity counts as a varsity sport. But they haven't gone

11

there. They don't want to ask the government for an

12

opinion because they are afraid of the result. And, you

13

know, it would be appropriate we think, for this court not

14

necessarily to defer to the government, but certainly to

15

weigh heavily into the balance in Your Honor's

16

consideration the fact that Quinnipiac has not done the

17

very logical thing and gone to the OCR and asked for a

18

determination of whether this new endeavor is a sport.

19

Now, let me just say briefly why we think that

20

at this time competitive stunt and tumbling is not ready.

21

First of all, it's not recognized by the NCAA. There's a

22

well established process, you heard testimony about the

23

process for recognizing emerging sports at the NCAA.

24

Quinnipiac recognizes the emerging sport status is

25

desirable. The National Competitive Stunt and Tumbling

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 24 of 88 872

1

Association recognizes this an emerging sport status is

2

desirable but they haven't submitted a proposal yet. They

3

don't have the ten schools on board they need in order to

4

submit that proposal. They've engaged in conversation

5

with the NCAA, they are making a plan but they haven't

6

done it yet, they don't plan to do it until next spring

7

sometime and it's purely speculation to wonder when that

8

proposal might be acted on and when the NCAA eventually

9

will make a decision.

10

But since competitive cheer is not yet

11

recognized, the participants in the activity are deprived

12

of all of the benefits that come with competing in a NCAA

13

sport. Now, obviously Quinnipiac voluntarily follows some

14

of the NCAA rulings for those participants, but merely

15

following the rules does not encompass all of the benefits

16

that come from being part, as an athlete, from being part

17

of the NCAA and that's not true of any other athletes at

18

Quinnipiac.

19

THE COURT: Let me follow up a little bit. The

20

status as a NCAA sport or a NCAA emerging sport might

21

provide a presumption that a sport counts for Title IX

22

purposes. Is the converse necessarily true? Is the

23

absence of NCAA recognition conclusive or largely

24

conclusive of the Title IX inquiry or is the inquiry

25

independent of what the NCAA has or might do?

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1

MR. ORLEANS: Judge, I don't think we have any

2

basis to say that the absence of emerging sport, of the

3

emerging sport designation is itself conclusive. I can't

4

point to a rule or regulation or a case that says an

5

activity will never be treated as a sport unless the NCAA

6

has recognized it. But it certainly should weigh very,

7

very heavily in the balance, especially at this early

8

stage when there are only half a dozen schools that are

9

engaged in the activity, when they haven't decided what to

10

name the activity yet, when they haven't had a

11

championship yet.

12

With all of the other indicia, the lack -- the

13

failure to even apply for emerging sport status yet should

14

weigh heavily in your determination.

15

THE COURT: Is there anywhere in the record an

16

indication of other sports or activities that are not

17

counted for Title IX purposes that one might consider a

18

sport? I recall seeing an exhibit that listed, for

19

example, NCAA championship sports and then some sports

20

that were not championship sports. Is there any

21

indication -- let's take, and this is completely out of

22

the blue, I have no idea what the status is, but let's

23

take bowling, okay? Now, bowling it seems to me is a

24

sport potentially, it's potentially an intercollegiate

25

sport. Are there colleges that offer --

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 26 of 88 874

1

MS. GALLES: That is a recognized NCAA sport,

2

Your Honor.

3

THE COURT: Okay.

4

MS. GALLES: It has been for a few years.

5

THE COURT: All right. There is an example of

6

Ultimate Frisbee, very popular on college campuses, teams

7

travel around the country -- some call it a sport. Is

8

there any indication one way or the other whether, first,

9

it's recognized by the NCAA and, second, whether it's

10

counted for Title IX purposes?

11

MR. ORLEANS: I'm not, certainly not aware of

12

any school counting Ultimate Frisbee as a NCAA sport, but

13

my awareness or nonawareness is not really conclusive of

14

anything. I'm smiling because I think that a painting of

15

NCAA recognition would be contrary to the culture of

16

Ultimate Frisbee.

17

(Laughter)

18

THE COURT: Fair enough.

19

MR. ORLEANS: There's an anti-authoritarian cast

20

to that activity.

21

But I can't cite you a place in the record that

22

identifies other non-NCAA recognized activities that are

23

counted for Title IX purposes, if that's the question.

24

THE COURT: That's what I was looking for, yes.

25

Okay.

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 27 of 88 875

1

MR. ORLEANS: In any event, just to get back

2

then to the -- and do you have further questions along

3

that line?

4

To get back then to the reasons that we think

5

that competitive cheer is not ready for prime time yet,

6

obviously it's not the case that any other sports at

7

Quinnipiac University are not NCAA or NEC. I've already

8

made the point it's not recognized by OCR and that

9

Quinnipiac hasn't asked for that recognition, for that

10

recognition yet or that determination.

11

You heard some testimony on recruiting, and even

12

accepting Coach Powers' testimony that she gets a lot of

13

inquiries from kids who want to participate in this new

14

endeavor, obviously the inability up until this coming

15

August to go off campus to recruit is going to affect the

16

quality of the team and that in turn is going to affect

17

the quality of the experience for the athletes.

18

The lack of Northeast Conference recognition or

19

competition is going to affect the quality of that

20

experience. The team can't form rivalries. They can't

21

build a fan base. They don't have people traveling with

22

them to nearby schools.

23

The quality of the competition is inconsistent.

24

There are a few varsity teams nationwide, teams that treat

25

themselves as varsity. The competition that the

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 28 of 88 876

1

Quinnipiac squad faces includes sideline cheerleaders whom

2

compete occasionally. It includes club teams. There's no

3

other varsity sport at Quinnipiac University that faces

4

such an uneven quality of competition.

5

The rules of the competitions are inconsistent,

6

from event to event. In this past year, Quinnipiac had

7

only two meets in the new NCSTA format. That format has

8

since been changed and there are plans to have more meets

9

in that format next year, but those are only plans. And

10

in the meantime, there will be some number of meets in the

11

coming year that are under different rules. Some of those

12

contests include the traditional sideline crowd response

13

aspect; some of them don't.

14

Some of them include, are based purely on the

15

two and-a-half minute team routine which is similar to

16

what a sideline squad does. Some of them include the

17

individual event heats that are part of the NCSTA format.

18

But there's no consistency to it.

19

And as I believe Your Honor observed during the

20

trial, I may be incorrect about that, but I remember there

21

was some testimony about the size of the squad for the

22

team event and the NCSTA I think has recently established

23

the maximum at 24, but there is no minimum. Now, compare

24

that to other -- can you imagine a soccer team showing up

25

with seven or a basketball team showing with no out field?

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 29 of 88 877

1

This is -- it's evolving. It may get there some day but

2

it's not there yet.

3

The governing body, the NCSTA which you heard

4

testimony about is still in the process of being

5

organized. It's not incorporated. It has no staff. It

6

has no bylaws. Its committees are still being organized

7

and it's not recognized by anyone except the institutions

8

that are involved in it.

9

And it has yet to hold its first championship

10

event that is scheduled for next year.

11

Now, we would submit, Your Honor, that based on

12

all of these factors -- and you can run, you can compare

13

the list of factors that I've just run through with the

14

2008 OCR letter which is quoted heavily in the United

15

States' brief, and we think it's clear that the quality of

16

the experience of the competitive cheer athlete at

17

Quinnipiac just is not the same as the experience of other

18

athletes.

19

It's certainly not the experience of, similar to

20

the experience of the male athletes. And it's not fair to

21

the competitive cheer athletes or to the other women at

22

Quinnipiac to count this activity yet as a varsity sport

23

for Title IX purposes and allow Quinnipiac thereby to

24

escape its obligations to provide other sports for women.

25

Now, of course, if the court were to say that

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 30 of 88 878

1

competitive cheer doesn't count yet, that's not saying to

2

Quinnipiac don't pursue this. Quinnipiac ought to pursue

3

it. It's simply saying that, for present, it doesn't

4

count toward your Title IX obligations.

5

Now, finally, Your Honor, the fifth -- how am I

6

doing on time? What time did we start?

7

THE COURT: We started at nine, the clock on the

8

wall.

9

MR. ORLEANS: So, with my ten minute rebuttal I

10

have ten minutes left. This is taking my longer than I

11

expect and I apologize if I'm rambling on.

12

The fifth major contention that we wanted to

13

advance is that Quinnipiac discriminates by failing to

14

operate a genuine varsity women's track and field program.

15

Now, this is, again, not a, not a criticism of the coach,

16

not a criticism of the athletes, and it is not a statement

17

that in every case cross country track and field are one

18

sport. But if you read Coach Martin's deposition, you

19

know that she conceded during her testimony that the track

20

and field program is essentially operated as an adjunct to

21

cross country. It's a way to keep the cross country

22

runners in training throughout the year. It's not

23

necessary since the cross country runners could compete in

24

at least a limited number of track and field events in the

25

winter and spring, even if they weren't designated as a

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 31 of 88 879

1

separate team.

2

But in a variety of ways Quinnipiac shows that

3

it's not serious about operating a competitive track and

4

field program for its women. It has a barely adequate

5

practice facility for indoor. It has no practice

6

facilities for outdoor. It can't ever host an event

7

either indoors or outdoors. It doesn't recruit for any

8

events other than the distance events. All of the

9

scholarships available to runners go to the cross country

10

athletes. So all of the, all of the participants who run

11

only track are walk-ons.

12

Because the coach is responsible for four teams,

13

unlike any other coach at Quinnipiac, the female runners

14

don't get the same access to coaching that other varsity

15

athletes get. They don't ever have a realistic chance as

16

a track team to win a meet. Now, I know it's an

17

individual sport but there are team scores and part of the

18

experience, I would think, of being a varsity athlete is

19

having a chance to win. The girls who run track at

20

Quinnipiac never have a chance to win as a team.

21

The track teams at Quinnipiac compete only in

22

the minimum number of meets permitted by the NCAA rules if

23

you want to have it count as a team for Division I

24

purposes. There's no other team at Quinnipiac in any

25

sport that competes in only the minimum number of events.

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 32 of 88 880

1

There's no other sport at Quinnipiac where,

2

where the student athletes are required as a condition of

3

participating in sport A to also participate in sport B

4

and/or sport C. It's only the female cross country

5

runners who are required as a condition of being on the

6

cross country team to also participate in indoor and

7

outdoor track.

8

Based on all these factors, Your Honor, it seems

9

to us that the female track athletes at Quinnipiac do not

10

enjoy a varsity experience that is of the same quality as

11

other varsity athletes at Quinnipiac, including all of the

12

men. And we submit, we are cognizant of the fact that the

13

class was certified in this case and we represent a class

14

of current and prospective female athletes. We submit

15

that Quinnipiac ought to be required to invest in its

16

women's track program and to expand those opportunities

17

for women if it wants to count women's indoor and outdoor

18

track separately from cross country.

19

So, let me just say a word about remedy.

20

THE COURT: Before you get there, let me ask you

21

a question.

22

MR. ORLEANS: Sure, yes, Your Honor.

23

THE COURT: What it takes for plaintiffs to win

24

this case. There seems to be some difference of opinion

25

about whether it's a statistical exercise or a qualitative

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 33 of 88 881

1

determination, whether it's based upon a percentage

2

calculation, deviation from undergraduate enrollment

3

percentage or, as you suggested, that if the gap is large

4

enough to support another team. Give me some sense of the

5

plaintiff's position with respect to what it takes to win

6

and how you get there.

7

MR. ORLEANS: It's both a statistical and a

8

qualitative exercise. In order to -- you can't do the

9

statistical exercise, which is the counting, the

10

calculation of percentage without deciding who you count

11

and which sports count. And in order to do that, you have

12

to engage in the qualitative consideration of what's the

13

experience of the athletes like. So, although we did

14

think that particularly the first argument that I made,

15

Your Honor, the argument about floors and ceilings and the

16

roster management policy, that that is fasically

17

discriminatory and that if you find for us on that, we

18

think we win without having to go much further. But once

19

you get past that argument, I think that in order to do

20

the calculation you have to look at some of the

21

qualitative considerations. Is that --

22

THE COURT: All right.

23

MR. ORLEANS: Is that answering your question?

24

THE COURT: The way you sought to do that,

25

principally, not entirely but principally, is with what

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 34 of 88 882

1

I'll call more generalized arguments. You're not saying

2

that Jane Smith, who was the sixth fastest 800 runner on

3

the indoor track team and finished last in every event and

4

never got the coach's attention and whatever, whatever,

5

you're not saying that she shouldn't be counted; you're

6

really going on a more generalized approach and saying it

7

isn't, it can't be a real opportunity, a genuine

8

participation opportunity for at least some of the women

9

on the track teams.

10

MR. ORLEANS: One of our arguments, based on

11

Dr. Lopiano's searching --

12

THE COURT: Right.

13

MR. ORLEANS: -- gets to that level of

14

individual. But the arguments that I've made here today

15

are more generalized, yes.

16

THE COURT: I understand her red flags, there's

17

some evidence about individuals.

18

MR. ORLEANS: Right.

19

THE COURT: But principally you're arguing these

20

broader --

21

MR. ORLEANS: Yes, Your Honor.

22

THE COURT: -- items. All right, okay. So in

23

your view, as I understand it, if you win on ceilings,

24

floors, you think you win. And then if you, through any

25

of the other arguments, can demonstrate a gap large enough

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 35 of 88 883

1

to support the volleyball team, you believe you've won.

2

MR. ORLEANS: Yes, Your Honor.

3

THE COURT: All right. Remedy.

4

MR. ORLEANS: What I want to say about remedies

5

is simply the following. The defendant has suggested that

6

before the court enters any order, if the court is going

7

to find for the plaintiffs, that the defendant should be

8

allowed to submit a compliance plan and we don't think so.

9

We think that it's appropriate for the court immediately

10

to enter an order that puts Quinnipiac under supervision.

11

They've had a lot of time to comply. They've

12

had all of this year to get into compliance. Before the

13

preliminary injunction hearing in 1996 when they conducted

14

their NCAA certification self study, they identified

15

gender equity as a problem, and I believe that there was

16

testimony about that from Mr. McDonald at the preliminary

17

injunction hearing, although the study itself was never

18

admitted into evidence.

19

So they've had a long time to figure out how to

20

comply and they've failed to do that. We think that the

21

appropriate thing for the court to do by way of remedy is

22

to put Quinnipiac under the supervision of a magistrate

23

judge or special master, order them to maintain the

24

volleyball program for the foreseeable future and we can

25

work out the details from there.

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 36 of 88 884

1

THE COURT: Okay. Thank you.

2

MR. ORLEANS: Thank you very much, Your Honor.

3

MR. BRILL: May I have a short recess, Your

4

Honor, to use the restroom facilities?

5

THE COURT: Sure.

6

(Pause)

7

THE COURT: We've lost opposing counsel.

8

MR. BRILL: Oh well, if they don't want to

9

listen --

10

(Laughter.)

11

(Pause)

12

MR. BRILL: Thank you, Your Honor. Good

13

morning. If I could just begin argument with a few

14

personal words, Quinnipiac University appreciates the

15

dedication of the volleyball players, the plaintiffs in

16

this case, and understands their deep disappointment over

17

the decision last year to eliminate their team.

18

And it also regrets having to cut three men's

19

teams at the same time, affecting almost 30 male athletes.

20

But the other personal side to this story, Your

21

Honor, is the 30, soon to be 36, Quinnipiac athletes who

22

participate in competitive cheer. Coach Powers described

23

the feelings of those athletes, of those students being

24

treated as varsity athletes this year for the first time.

25

The tangible benefits that they received, the

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 37 of 88 885

1

scholarships, the training, of access to the weight room,

2

of uniforms, of academic support. And also the intangible

3

benefits that they felt. The respect that they had as

4

they walked across the campus as members of the varsity

5

team, the feeling of being members of that team, and the

6

feeling of having crowds cheering for them instead of

7

leading crowds and cheering for others. There could not

8

have been a more eloquent description of what Title IX is

9

all about than what that experience means for the

10

athletes.

11

I will address plaintiff's claims about roster

12

management issues, the proper counting, cross country and

13

track track and field in a few moments. But really, Your

14

Honor, there is only one issue in this case and it really

15

is this sport of competitive cheer that's on trial here,

16

notwithstanding what Mr. Orleans said. In fact, there

17

probably would be no trial at all or at least no serious

18

issue in my view if Quinnipiac and others had called this

19

sport something else.

20

The court's suggestion in its preliminary

21

injunction decision of group floor gymnastics, for

22

example, would have been one good possibility, but

23

cheerleading or even cheer seems to strike a raw nerve for

24

many people. It seems to conjure up images of classical

25

sideline cheerleaders with short skirts waving pompoms, as

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1

Jeff Webb described them, an imagine that plaintiffs

2

actually sought to play upon in their questioning of Coach

3

Powers. You may recall about how the team used some

4

pompoms in the one 45-second portion of one performance

5

during the year in which they were actually required by

6

Jeff Webb's company to use those pompoms, which by the way

7

he also sold to the participants.

8

But no one in this courtroom who saw the video

9

of that NCSTA meet and no one who has witnessed the team

10

in a NCSTA competition I don't think could ever confuse

11

competitive cheer, however titled, with sideline

12

cheerleading.

13

Unfortunately those people do not include

14

Dr. Lopiano, who expressed her unwaivering opinion that

15

competitive cheer is not a sport, even though she had

16

never seen a meet and she didn't think it was necessary to

17

do so during the entire year that she's been an expert in

18

this case.

19

Your Honor, I applaud Dr. Lopiano for her work

20

on behalf of women's athletics and I have no intention

21

whatsoever of belittling her accomplishments in any way.

22

She helped open the door to millions of young girls and

23

women to taste the thrill of victory and the agony of

24

defeat. But I say to this court, I implore this court,

25

don't close that door now to thousands of women, tens of

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 39 of 88 887

1

thousands of women of a new generation who aspire to

2

compete in a new sport -- and it is a new sport. The

3

sport of competitive cheer, however titled, clearly meets

4

any reasonable application of the OCR multi factor test

5

for determining what activities are a sport as expressed

6

both in the April 2000 seed letter and the 2008 Dear

7

Colleague letter. Indeed --

8

THE COURT: Let me jump in right there.

9

MR. BRILL: Yes.

10

THE COURT: Aren't there two levels of inquiry

11

that I have to go through? One, is this activity a sport

12

that qualifies for Title IX purposes and, two, if so, does

13

the Quinnipiac team qualify as a varsity squad, given its

14

organization activities, et cetera, et cetera?

15

In other words, I can imagine -- take any sport

16

you want, football, basketball, you know, tennis, you name

17

it, a sport that's clearly recognized by the NCAA, at a

18

particular university it wouldn't quite be there yet for

19

whatever reason, so it seems to me that logically I've got

20

to figure out maybe it's really three steps.

21

One, is it a sport per se. We've heard about

22

chess. It seems to me chess is not a sport. Two, is it a

23

sport for Title IX purposes. And three, is it a countable

24

sport at Quinnipiac given what Quinnipiac's status is.

25

MR. BRILL: Well, I think that's right although

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 40 of 88 888

1

I think the second and third question merge here because

2

Quinnipiac participates in this activity or sport no

3

different than the other organizations, the other schools

4

that are at this point also sponsoring varsity competitive

5

cheer teams. So it's not as if there would be some level

6

out there of competitive cheer that exists that Quinnipiac

7

is not meeting or is doing things differently. So in

8

effect I think it's the same analysis here.

9

THE COURT: Well, okay, but it seems to me that

10

that three step analysis applies not just to competitive

11

cheer but to women's outdoor track. And --

12

MR. BRILL: Well, yes, except with respect to a

13

sport that's governed by the NCAA, women's outdoor track,

14

for example, you have established rules that tell you

15

whether you have a track team or you don't have a track

16

team. And if you comply with those rules and you compete

17

the same way other NCAA teams compete, then --

18

THE COURT: Then there's a presumption --

19

MR. BRILL: There's a presumption you have a

20

team.

21

THE COURT: Right.

22

MR. BRILL: If I could -- I'm happy to answer

23

any of your questions Your Honor has as I go along. But

24

only two things have changed since Your Honor ruled in its

25

preliminary injunction decision and found that

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 41 of 88 889

1

Quinnipiac's cheer team would likely have all of the

2

necessary characteristics of a valid competitive sport.

3

Only two things really have changed since then.

4

First, the sport has progressed to a new level

5

with the formation last fall of the national competitive

6

cheer tumbling association, the NCSTA, by six schools that

7

sponsor or soon will sponsor varsity teams.

8

This NCSTA governing body has already adopted

9

many rules that govern competition this year, including

10

length of season, playing surphase, size of squads, et

11

cetera, and I refer Your Honor to Exhibit F T and transfer

12

pages 538 through 540 for discussion of these issues.

13

There are many more rules that have been adopted and will

14

be in place next year.

15

The NCSTA members will have to have a minimum of

16

half their competitions against other collegiate teams in

17

the NCSTA format, and Quinnipiac already has six NCSTA

18

competitions scheduled for next year, which frankly is

19

more than -- many varsity sports recognized by the NCAA or

20

otherwise only require six, sometimes five competitions to

21

constitute a legitimate season. We already have six for

22

next year scheduled under the NCSTA format. And there's a

23

national championship that's now scheduled for next spring

24

at Oregon.

25

Mr. Orleans, you know, makes an issue about the

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 42 of 88 890

1

NCSTA still not being incorporated and it doesn't have a

2

formal board of governors. These things are typical for a

3

sport that's starting up. Competitive cheer and the NCSTA

4

are far along, much farther than many other sports I think

5

would be at this point in terms of formality of the

6

governing organization. And it's clear that certainly the

7

schools that have adopted the sport as a varsity sport are

8

looking to the NCSTA as the governing body and that body

9

has actually been functioning and these schools are

10

following the rules and accepting them as the governing

11

organization.

12

THE COURT: Are you aware of any sport not

13

recognized as an emerging sport -- let he put it this way.

14

Any up and coming sport or any nation sport not recognized

15

as an emerging sport by the NCAA that has been counted for

16

Title IX purposes?

17

MR. BRILL: Well, certainly there are many

18

sports that are not recognized by the NCAA that are

19

counted for Title IX purposes. And I'm going to get to

20

that, Your Honor. But if you look at -- this is -- this

21

is Exhibit 105, page 66.

22

These, these are men's latest statistics on

23

men's participation and the non-championship sports,

24

archery, badminton, equestrian, rowing, rugby, sailing and

25

squash are not NCAA recognized championship sports,

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 43 of 88 891

1

there's no emerging sports category for men, but schools

2

self report their participation in these sports to the

3

NCAA. And, of course, they are free to count them for the

4

Title IX purposes.

5

Now, Dr. Lopiano in fact testified here

6

confirming her testimony in the U C Davis case. In that

7

case the school had three varsity, three varsity women

8

wrestlers, and wrestling is not a woman's emerging sport

9

or championship sport.

10

THE COURT: Right. Okay, but, all right, let's

11

get back to the chart you just showed. That distinguishes

12

between championship sports and non-championship sports.

13

So there isn't, for example, a national NCAA championship

14

in rowing but there is, as I recall the figures, thousands

15

of men in the country who row competitively at the varsity

16

level. That's not really what I'm talking about. What

17

I'm trying to figure out is, is there, is there a sport

18

that has not traditionally been recognized by the NCAA as

19

a sport and you can look at the alumnus for especially the

20

Winter Olympics, you know, moguls. Now maybe there's a

21

NCAA mogul competition that I'm not aware of, you know, et

22

cetera, just -- the question really is are there sports,

23

men or women's sports that you're aware of that have not

24

been recognized by the NCAA in some way, championship,

25

nonchampionship, emerging, that are nonetheless counted

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 44 of 88 892

1

for Title IX purposes.

2

MR. BRILL: Well, certainly the OCR letter

3

itself makes clear that the multifactor test only applies

4

to sports that are not recognized by the NCAA as an

5

emerging sport or championship sport.

6

THE COURT: Okay, but --

7

MR. BRILL: I can't, the only sport I can think

8

of off the top of my head would be, for example, women's

9

wrestling, as Dr. Lopiano testified, and those wrestlers

10

didn't even compete against other college teams, they

11

competed in open competitions. And her testimony in Davis

12

which she confirmed here is that that was a recognizable

13

sport. And if you read the Mansurian decision you'll see

14

that the, you know, Dr. Lopiano's position and the

15

plaintiff's position was that that counted for Title IX

16

participation purposes.

17

And there may be others but the point is that

18

NCAA recognition is not a sine qua non of a new sport. In

19

fact, logically it couldn't be, Your Honor, because when a

20

sport -- there's a period of time between the existence,

21

development of a sport and its recognition as an emerging

22

sport. And once it gets to being recognized as an

23

emerging sport then the multi factor test doesn't apply.

24

THE COURT: Here's what I'm trying to get at.

25

Mansurian was a fairly unique case.

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1

MR. BRILL: Fairly what?

2

THE COURT: Unique case.

3

MR. BRILL: Yes.

4

THE COURT: Correct me if I'm wrong, it didn't

5

involve the same kind of counting that we're worried about

6

here. It was more of a discrimination claim by individual

7

athletes who had been kicked off the wrestling team after

8

participating as wrestlers. And the question was had they

9

been discriminated against on the basis of their gender or

10

not, whereas here we're trying to figure out whether a

11

university's overall athletic program is in or out of

12

compliance with Title IX. And so I understand Mansurian.

13

Really, what I'm trying to get at is there

14

guidance out there, are there cases out there that you can

15

point to that are similar to this situation where a

16

university is claiming we're in compliance with Title IX

17

because we're counting these athletes as varsity athletes,

18

notwithstanding that their sport is very new, not yet

19

established, et cetera.

20

MR. BRILL: I'm not aware of any cases like that

21

and I'm not aware of any court cases frankly applying the

22

OCR standards at all in determining what's a sport.

23

THE COURT: I was afraid of that.

24

(Laughter)

25

MR. BRILL: Your Honor, if -- competitive cheer

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1

so easily meets so many of the factors in the eight part

2

test, even if I can't come up with another example,

3

competitive cheer so easily meets so many of the factors

4

in the multi part test that I think there would be little

5

question, frankly, about the outcome here except for the

6

second new thing which is the amicus brief that was filed

7

by the government.

8

THE COURT: Well, that raises the question Mr.

9

Orleans brought up which is if it's so clear, why did the

10

university not seek OCR's blessing?

11

MR. BRILL: Your Honor --

12

THE COURT: And I'm not looking for strategy.

13

I'm just trying to get a sense of whether this is

14

important --

15

MR. BRILL: Well, there's a lot of confusion

16

here and if I can say this, until the government's brief

17

was filed -- let me back up a bit.

18

Certainly the general understanding of the

19

university community was that OCR would not give a

20

declaratory judgment in effect as to whether something was

21

a sport. The University of Maryland had tried repeatedly

22

to get a ruling and they kept getting back letters saying

23

you have to decide on your own if you meet the

24

multi-factor test.

25

They, since 2003 there's been -- this isn't on

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1

the record but you're asking me what happened, this is

2

what happened. Dr. Lopiano at the time of the preliminary

3

injunction hearing testified that there's no requirement

4

to go to OCR first and so the general understanding was

5

that you did your best to interpret the rules, and if you

6

were comfortable that you complied with the test, then

7

went ahead and treated something as a sport.

8

For the first time for this coming year, OCR

9

added this instruction for the EADA report for the coming,

10

for the 2009-2010 year which is not to be filed until

11

October, but frankly on its face it was ambiguous. First

12

sentence said the sport has to be, the activity has to be

13

primarily devoted to competition. And the second sentence

14

said don't count cheerleading or dance unless we tell you

15

in advance you can. And people shrugged and said we don't

16

know what this means.

17

And the OCR has now said as of Monday in their

18

amicus brief that, yes, the letter is required if you're

19

going to count cheerleading, and that includes competitive

20

cheer, and that, that report is due in October.

21

And Mr. McDonald testified that the NCSTA, even

22

several months ago, had decided that the best approach

23

would be to make a national approach to OCR rather than

24

having each school go to the regional office and, in fact,

25

in the NCAA gender equity guide there's a discussion about

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1

competitive cheer and it indicates that there's some

2

uncertainty now about whether competitive cheer is a sport

3

or isn't, and that there's no set answer and that

4

different regional offices might have different views.

5

And, therefore, the decision of the NCSTA was to raise

6

this on a national level and take it to OCR.

7

But frankly, OCR has now, I believe, punted the

8

issue back to this court because it has said we have no

9

firm position on competitive cheer, it's up to the court

10

to make a decision based on the evidence and you should

11

apply the multi factor test that we've set out in our

12

letters. In fact, they've repeatedly emphasized in their

13

brief that an overall determination requires consideration

14

of all of the factors.

15

Now, to the extent that the government's brief

16

suggested that one or two or three of those factors

17

deserve extra weight, special emphasis, we believe for the

18

reasons stated in our brief that the government's brief

19

does not deserve deference from the court.

20

THE COURT: I reviewed your response.

21

MR. BRILL: I won't review what's in the brief

22

but I will just say that I would like to respond to a few

23

specific points.

24

New sports are not been fully formed. They do

25

not arrive with a full slate of varsity teams, post season

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 49 of 88 897

1

competition and NCAA conference governance, and OCR has

2

never said those are all required before you can count

3

something as a sport. In fact, as I said, the multi

4

factor test doesn't even apply once you have all those

5

things.

6

Dr. Yiamouyiannis, we put in a few pages from

7

her deposition, Your Honor, and if you read it, you've

8

seen that she was deeply involved with emerging sports

9

during her ten years at the NCAA, and she agreed in her

10

deposition that any rule that limited varsity teams to

11

competing against other varsity teams when a sport is

12

starting up would obviously make it much more difficult to

13

expand opportunities for women in college athletics, and

14

to the extent that the government is saying that's a

15

requirement, it's completely contrary to every

16

understanding of a new sport or even an emerging sport.

17

You know, it only takes, to apply for an

18

emerging sport, you need 20 schools that have either

19

varsity teams or club teams. Now, competitive cheer,

20

there's already six schools that have varsity teams and,

21

according to Mr. Webb's document, there's something like

22

12 compete only in clubs that participate in his

23

competitions and that doesn't include all the sideline

24

cheer teams that actually OCR itself has described as club

25

compeitions.

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1

If you look, if I can show, just put up on the

2

board for a minute the list of emerging sports that are

3

now recognized by the NCAA, and you can see that the right

4

hand column has the total number of schools for all

5

divisions. Archery, badminton, rugby and synchronized

6

swimming have less than ten teams total in all divisions.

7

And so obviously, as Dr. Lopiano and Dr. Yiamouyiannis

8

conceded, they are competing largely against club teams,

9

not against other varsity teams, even when they get

10

recognized as an emerging sport. It makes no sense to put

11

more of an obligation on competitive cheer or some other

12

sport that hasn't yet been recognized as an emerging

13

sport.

14

THE COURT: Help me understand that. My

15

understanding of the testimony in the case was that, or

16

the record in the case was that to be an emerging sport,

17

there had to be ten varsity --

18

MR. BRILL: No.

19

THE COURT: No?

20

MR. BRILL: No. The requirement is you have to

21

have 20 teams actually competing intercollegiately either

22

at the varsity or club level. They could actually, all 20

23

could be club teams. Dr. Yiamouyiannis testified to that.

24

But in order to -- the other essential is you have to have

25

ten letters of intent from the presidents of the

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1

institutions that they are intending to sponsor the sport

2

as a varsity sport.

3

THE COURT: All right. So what you just showed

4

me where there are less than ten, there are at least ten

5

schools who have said you may not be varsity today but

6

we're going there.

7

MR. BRILL: Exactly.

8

THE COURT: I got you.

9

MR. BRILL: The other -- and actually bowling is

10

another example. I think Your Honor mentioned bowling

11

earlier. Bowling was one of the first emerging sports

12

recognized for women in 1994, and for many years there

13

were two, three, four, less than five schools that had

14

varsity bowling teams. They were competing against club

15

teams. Now bowling has become a championship sport.

16

But if someone had said from the outset you

17

can't count this sport unless you're only competing

18

against varsity teams, bowling wouldn't be where it is

19

today.

20

THE COURT: I'm not sure that's true. I think

21

there's two issues here. Issue one is are we going to

22

support the team, are we going to give it scholarships and

23

coaching status and so forth in hopes that we bring the

24

sport along. The other is do we today count it for Title

25

IX purposes. And so I think those are distinct inquiries

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 52 of 88 900

1

and they may be related but I think they are distinct, and

2

so to say that, you know, you're never going to be able to

3

count for Title IX if you don't count it early, I'm not

4

sure that's right.

5

MR. BRILL: No, my point was a slightly

6

different one, Your Honor. My point was in response to

7

the government's argument that you can't satisfy the

8

multifactor test unless you're only competing against

9

other varsity teams, and I'm saying that has never been

10

the case.

11

THE COURT: Fair enough.

12

MR. BRILL: And I understand your point but as a

13

practical matter here, if Your Honor says that

14

Quinnipiac -- competitive cheer in general or Quinnipiac

15

is not a sport for purposes of Title IX, as a practical

16

matter that's, I think it's going to put an end to it

17

because if you consider the resources that are required

18

for this sport, coach testified that the budget for last

19

year was 130 or 140,000-dollars, the operating budget, you

20

have six scholarships that are approximately, you know,

21

costs the school about 200,000-dollars each over the

22

course of four years, and so on. You can't expect a

23

school to put these resources and to continue this as a

24

club team, nonvarsity team and then try to comply with

25

Title IX by supporting another team of 30 women athletes.

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 53 of 88 901

1

THE COURT: Well, okay --

2

MR. BRILL: We have to allocate our resources in

3

a way that makes sense to the university and complies with

4

Title IX. Now --

5

THE COURT: Right. But the principal purpose of

6

committing those resources presumably is not to comply

7

with Title IX. Presumably the purpose is to provide this

8

opportunity for women and/or to bring the sport along and

9

be a pioneer in the sport, et cetera, et cetera. You

10

know, Title IX isn't the ultimate goal. It may be the

11

focus of this litigation but it shouldn't be the ultimate

12

goal in how a university allocates its athletic resources.

13

I hope it isn't.

14

MR. BRILL: Well, obviously we have to allocate

15

our resources in light of the requirements of Title IX,

16

but the university here has made a decision for many

17

reasons that in a time when there were limited pledge of

18

resources that we wanted to be a pioneer in this sport

19

which seemed to comply with all of the attributes of a

20

sport under OCR guidelines, to enable the university to do

21

really several things.

22

One was that Quinnipiac had an opportunity to be

23

a major national player in a new sport compared to

24

continuing or putting resources in other sports where they

25

would never get to that level. And it's a regional school

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 54 of 88 902

1

that doesn't usually compete with schools from Oregon,

2

Maryland, Baylor and so on, and this is a major

3

opportunity for the university in that respect.

4

THE COURT: But my point is, I really have two

5

points -- one, that major opportunity exists whether the

6

sport is counted for Title IX purposes or not. You'll be

7

out there as a pioneer whether these athletes count toward

8

Title IX or not. That's point one.

9

Point two is in terms of the resources, the

10

university committed a lot of resources, I'm sure, I

11

haven't seen the numbers, to its sideline cheer. If those

12

athletes, if those cheerleaders traveled to an away game,

13

they bought uniforms, et cetera, it wouldn't the same

14

commitment, I understand, but the point is no one ever

15

thought sideline cheerleaders were going to count toward

16

Title IX and yet there was some commitment of resources to

17

support sideline cheer while Quinnipiac had it. So,

18

again --

19

MR. BRILL: Well, the marginal, the marginal

20

cost -- you have a sideline cheer team, the marginal cost

21

would be fairly negligible, just the travel expenses for

22

the two or three competitions that they engaged in, they

23

had a part-time coach, no scholarships, they didn't have

24

access to facilities, weight room and so on.

25

I don't want to belabor this point, but if the

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 55 of 88 903

1

university had infinite resources as Robin Sparks

2

suggests, well, you're putting up a medical school so why

3

don't have you continue volleyball and so on, in the ideal

4

world Quinnipiac would sponsor every sport that we could

5

think of, but we have to make choices and this is the

6

choice that was made, Your Honor. And I don't think it's

7

realistic to think that if we're wrong, that we're

8

nevertheless going to be continue to be able to devote

9

resources into continuing this sport as some kind of club

10

sport while, you know, while waiting for it to be

11

recognized as a sport under the OCR guidelines.

12

In the real world, Your Honor, schools will

13

devote resources to the sports that will count for

14

purposes of Title IX because they don't have unlimited

15

resources. It's not that they are -- it's nothing

16

nefarious but it's just as if, in any other aspect of the

17

university there may be, you know, a program that's

18

accredited or not accredited and so on and you have to

19

decide, you can't have every program for every purpose and

20

every possible student. You have to decide where to put

21

your resources.

22

THE COURT: Well, fair enough. But there's --

23

we can get off this but it seems to me at the time the

24

university committed resources to the competitive cheer

25

team, there was and today there still is substantial doubt

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 56 of 88 904

1

whether that team is going to count for Title IX purposes.

2

So a decision was made by somebody, not knowing that it

3

was going to count for Title IX purposes, to commit these

4

resources, and either that was something they intended to

5

do regardless of Title IX or until Title IX or whatever,

6

but the point is there was no guarantee when those

7

resources were committed that this was going to count.

8

MR. BRILL: I accept that, although Your Honor

9

did say in the preliminary injunction certainly that it

10

was likely it would be found to comply.

11

Let me just say one word about post season

12

competition. Again, it makes no sense to suggest, as the

13

government does, that the school can't have a sport, a new

14

sport, unless and until there's an NCAA championship, when

15

even the sports that rise to the level of emerging sports

16

don't have NCAA championships until many years after they

17

become emerging sports. It just, it doesn't work.

18

Let me go on to -- I may want to come back to

19

competitive cheer, Your Honor, but let me make sure I

20

touch on some of the other issues.

21

First of all, on track and field, there's really

22

been nothing new put before the court other than what was

23

presented at the preliminary injunction hearing and

24

there's been nothing presented to change the court's

25

opinion that -- in fact, I think, that decision has now

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 57 of 88 905

1

been confirmed by the government's brief because the

2

government has been scrutinizing this case for months.

3

They've been in touch with counsel, they've reviewed

4

the -- obviously reviewed the preliminary injunction

5

decision which is cited in their brief. They reviewed the

6

record in the case. They know full well that plaintiffs

7

have argued that track and field is improperly counted and

8

I mean it's impossible to believe that if the OCR had any

9

question about that whatsoever, they would not have raised

10

it in their amicus brief as an issue for the court.

11

THE COURT: Let me press you on the requirement

12

that cross country runners run indoor and outdoor track.

13

MR. BRILL: You know, I can't recall Coach

14

Martin's exact testimony but I know that she said that it

15

was a nonissue for her because every cross country runner

16

that she's ever recruited wanted to run indoor and outdoor

17

track, and that's what she expected, but there's no one

18

ever that didn't want to run indoor and outdoor track.

19

They come here with the expectation that they'll be able

20

to run cross country and indoor and outdoor track.

21

THE COURT: Well, if that's true then you

22

wouldn't need to require it.

23

MR. BRILL: It's not as if there's a formal

24

requirement. I think she was asked about it at her

25

deposition and she explained that, I think she may have

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 58 of 88 906

1

said it's something that I require but not in any formal

2

way.

3

She was responding to the intention that these,

4

you know, the athletes that she's recruiting in her view

5

always wanted to do this and it was something she expected

6

of them as well. It's never been a case where someone

7

said, well, I want to run cross country but not indoor

8

outdoor track.

9

THE COURT: Well, let's assume for a minute that

10

the coach of one of the women's fall sports required her

11

athletes to run outdoor track in the spring to get in

12

shape. And there's a high school, Central High School in

13

Bridgeport, Connecticut, won a state basketball

14

championship and the coach requires all the team members

15

to run cross country. But why? Because they are on the

16

basketball team, to get in shape. Now they are not what I

17

would call real cross country runners, they are certainly

18

the tallest team out there but they are not the fastest.

19

You know, obviously that's not the situation we

20

have here but you can understand the concern that is

21

raised if a coach is requiring participation on outdoor

22

track as a form of conditioning as opposed to a form of

23

true participation.

24

MR. BRILL: And I agree with that 100 percent,

25

Your Honor. If there was a basketball team who was being

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 59 of 88 907

1

required to run cross country, that's a completely

2

different situation. If you read Dr. Seemes, I don't know

3

if you read Mr. Seemes' report. He is the head of USA

4

Coaches Association and coached track for many years. It

5

is standard virtually in every school that cross country

6

runners run track and field, indoor, outdoor.

7

THE COURT: I understand.

8

MR. BRILL: And I think to get hung up on the

9

word "requirement" that she may have used in her

10

deposition doesn't really change the fact that there's

11

nothing unusual about this. It's the common practice.

12

What they are running, you know, they are taking

13

the opportunity to run distance races and some of the, you

14

know, some of these women may, they may be champion ten

15

thousand meter runs. Many of them are. I think

16

Quinnipiac had several 5,000 meter, 10,000 meter runners

17

who went to, I think some of them went to the NCAA

18

regionals or certainly went to the New England Regional

19

Tournament and they are legitimately participating in the

20

track season as talented athletes just as in the cross

21

country season.

22

THE COURT: No doubt about it. But the

23

combination of a requirement to participate and a roster

24

number significantly higher than average raises a concern

25

about whether all of those athletes are getting a genuine

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 60 of 88 908

1

participation opportunity. Are they receiving sufficient

2

coaching or the same level of coaching? And is this

3

simply cross country continued? Is the coach focusing on

4

the cross country runners to the exclusion or the

5

detriment of the other runners? Now, we don't have a lot

6

of evidence on that but --

7

MR. BRILL: Well, I would say --

8

THE COURT: -- that's the concern.

9

MR. BRILL: So I would say this, Your Honor.

10

Plaintiffs withdrew the testimony of Dr. Yiamouyiannis.

11

THE COURT: Right.

12

MR. BRILL: So it's not before you but there's a

13

reason they, I would state there's a reason they withdrew

14

it and they can't substitute suspicion and speculation for

15

evidence. The evidence before you in Coach Martin's

16

deposition, when you read it, and she has the results from

17

everything, is that each of these women received

18

individual coaching, they each received training, they are

19

part -- they are assistant coaches and voluntary coaches,

20

they were separated out for the different events in

21

training between the distance runners and the shorter

22

distance runners and into three or four groups during the

23

indoor outdoor seasons, and every single woman on that

24

team participated fully in the track programs.

25

There's nothing unusual about the size

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 61 of 88 909

1

incidentally of the cross country team which was not at

2

all the largest in the conference. And, in fact -- and

3

the track team was only 30. It's hard to compare because

4

Quinnipiac did not compete in most field events and it

5

didn't have very short distance sprinters.

6

But the evidence is it was Coach Martin and

7

you'll read this in her deposition as well as Mark

8

Thompson's testimony, it was Coach Martin who wanted more

9

runners on their team for next year. This was not

10

something that the university foisted upon her. And

11

Dr. Thompson went back to her and said are you sure that

12

you -- you know, how are you going to give these women

13

genuine opportunities, and she explained to him her plans,

14

who she had recruited. She had now a sprinter, she had a

15

high jumper. She had, she said if we want to get up to

16

the next level of competition, the schools we're aspiring

17

to compete against have more cross country runners than we

18

do. More runners means more competition for the team.

19

And he accepted her explanation and, in fact, gave

20

additional resources to her.

21

So, you know, the cross country teams in the

22

Northeast Conference range from something like seven to 30

23

in size, and the track teams from 14 or 15 up to the 50s.

24

There's no -- to say something is above average is

25

meaningless. You can't draw any conclusions from that.

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 62 of 88 910

1

Dr. Lopiano admitted that.

2

And, you know, putting aside the issue of this

3

requirement, there's nothing unusual -- in fact, let me

4

put it differently. The NCAA clearly counts track as

5

three sports. It has forever. The EADA form requires you

6

to, you know, to count them separately. It gives up the

7

option of combining one box but the athletes are counted

8

multiple times.

9

The book chapter from Dr. Yiamouyiannis that we

10

just put into evidence instructs that -- who's an expert

11

on Title IX -- instructs that athletes for cross country,

12

indoor track and field and outdoor track and field be

13

counted separately, and there's no evidence that any

14

single woman athlete was ever compelled or required to,

15

you know, to run in -- cross country athlete was somehow

16

required to run track against the desire of that athlete

17

to participate in those sports. So I think that that

18

distinction is really meaningless.

19

And the comparisons that they made to other

20

sports like swimming or tennis that have different seasons

21

and different surfaces, may have some logical weight but

22

the truth is that it's the governing bodies that have

23

recognized track and field and cross country as separate

24

sports and they haven't done this with respect to these

25

other sports and there's -- the OCR, you know, the OCR has

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 63 of 88 911

1

never said that you only count these sports separately as

2

long as you have men's and women's teams.

3

And I recognize -- obviously Mr. Orleans says

4

it's unfair because you're getting, you're counting these

5

women two or three times, but that's the way the rules are

6

set up. And they work both ways. If we had a school that

7

had a, if the school had men's and women's track teams and

8

had more men than women count -- you know, couldn't not

9

count the men because it would give an advantage to the

10

men athletes or, to put it another way, they couldn't take

11

less of a count on the men in order to reduce the

12

proportionality obligation with respect to the women. If

13

they had more men track and field athletes and they had to

14

count them three times, that would increase the need for

15

more women athletes in other sports. And so it works both

16

ways and that's the rule.

17

THE COURT: Yes, the testimony was that it's

18

extremely rare to have a two sport athlete except in this

19

context. Would it be a sensible thing for the court to

20

do, to count the number of men athletes and the number of

21

women athletes by name rather than by roster position as a

22

check on whether there has been compliance with Title IX?

23

MR. BRILL: No, that would be completely

24

contrary to OCR's guidance, as Dr. Yiamouyiannis explains

25

in her report. There's both a duplicated count and an

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 64 of 88 912

1

unduplicated count that's contained in the EADA forms.

2

The so called unduplicated count, which Your Honor is

3

referring to, is used for certain purposes such as

4

determining whether scholarships are proportionally

5

awarded and for other purposes.

6

The duplicated counts specifically is used for

7

determining proportionality in participation for prong

8

one. It would be revolutionary to now say, and contrary

9

to OCR guidance to say you use an unduplicated count of

10

athletes for purposes of proportionality. It would --

11

frankly, as Coach Seemes, Mr. Seemes testified in his

12

deposition, it would have profound effects on the track

13

and field programs throughout the United States, for the

14

same reason -- I mean let's be blunt -- for the same

15

reason that we're talking about the effect on competitive

16

cheer.

17

Because if schools are only going to count, if

18

the rules are changed, then there's going to be a real

19

world impact on that and resources that are devoted to

20

track and field, both indoor and outdoor, if they don't

21

count the same way, then schools have to decide how they

22

are going to allocate their resources. If OCR wants to

23

change the rules then, you know, they have the opportunity

24

to change the rules, but everybody's playing by the rules

25

that are in place.

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 65 of 88 913

1

I want to talk for a minute about roster

2

management. And Mr. Orleans said first of all that

3

there's something nefarious about roster management the

4

way it's used at Quinnipiac.

5

First of all, we don't have caps and we don't

6

have minimums. That's clear from Dr. Thompson's

7

testimony. Even when -- there are a number of instances

8

where women's, the coaches of women's teams wanted to add

9

athletes and he wouldn't let them, either at all or

10

without justification. The volleyball team, the women's

11

softball team and for the next year, the lacrosse coach,

12

all wanted more athletes and he turned that down.

13

THE COURT: Well, I understand that argument.

14

On the other hand, if you have a mandatory number, then

15

doesn't that number serve as both a floor and a ceiling?

16

MR. BRILL: Yes, it's a number but it's the same

17

for men and for woman. Your Honor --

18

THE COURT: It's the same except if the, if the,

19

if the target number is consistently higher than squad

20

averages for women and consistently lower than squad

21

averages for men, then the practical effect of having that

22

number is that it's a floor for women and ceiling for men,

23

isn't it?

24

MR. BRILL: No, I don't think so. I think that,

25

as Dr. Lopiano said in her report, it is, it is acceptable

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 66 of 88 914

1

to add women to existing teams for purposes of roster

2

management as long as the additional women have the same

3

quality participation opportunity as men and women. And

4

that roster management can satisfy prong one as long as

5

the men's teams are not depressed to the point where

6

there's no real participation opportunity and women's

7

teams are not increased to the point where the women on

8

those teams don't have a viable participation opportunity

9

which she says means coaching, competition and uniforms,

10

et cetera.

11

There's nothing wrong with saying if the NCAA

12

average for a certain team is, let's say 20, roster

13

management -- if a school is going to actually comply with

14

proportionality, there has to be a control over the

15

rosters. Otherwise you could never be sure if each coach

16

could have more or less.

17

Now, I just want to say something about the

18

women's teams though. If that, if that NCAA average is

19

20, if we had 40, the numbers might suggest that there's

20

some padding or inflation going on, but if the coach -- if

21

Dr. Thompson says, you know, I'd like you to carry two

22

more, as long as you confirm to me that you can really

23

provide an opportunity for those two more women and you

24

have the resources for them and they'll have a

25

participation opportunity, then the numbers mean nothing

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 67 of 88 915

1

because averages are only averages.

2

And in the NEC conference, as we saw, some

3

schools -- the range of an average may be 15.6 but the

4

people on the schools can range from five to 35 and the

5

question is go behind those numbers. You can't stop at

6

the averages. And look at the -- I mean look at what they

7

are complaining about.

8

I mean frankly it's almost at the point where

9

it's -- it's almost to the point where it's silly, Your

10

Honor, because no school could ever have effective roster

11

management to comply with prong one if you can't have some

12

deviation from the averages and that can be a little

13

deviation up for the women and deviation down for the men,

14

as long as the men's teams are not diluted of the

15

participation to participate and the women's teams have

16

the ability to provide participation opportunities.

17

I think Coach Seeley's testimony was the best

18

example because he said I don't want 27 but I've already

19

recruited 25 athletes and I have a 26th that I've been

20

talking to, and okay, I'll do 26. And it turned out, he

21

found that to be a perfect number for him. Now, without,

22

without roster management maybe he would have had 24 or

23

25, but he took that 26th athlete and everybody on that

24

team had a fair opportunity to participate during the year

25

and he's having 26 next year. He says it's a terrific

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 68 of 88 916

1

number and he's got even higher quality of recruits.

2

So I don't know what a school's supposed to do

3

if you can't have some flexibility in the averages that

4

what he's basically saying is, you know, every, every team

5

has to be either at the exact average at the conference of

6

the NCAA or has to be up or down by same amount. If you

7

look at this chart, you know, this is the final chart,

8

roster comparison primarily against average.

9

There are three -- I think seven or eight men's

10

teams were either at or above the NCAA average. And on

11

the women's teams -- sorry. The difference, in one case

12

the difference was three athletes, that was the women's

13

basketball coach, who asked, pleaded for more members of

14

the team.

15

THE COURT: Yes, I understand the numbers. We

16

got off on this because I was taking a little bit of issue

17

with your suggestion that we don't have floors and

18

ceilings. I think as a practical matter we do and that's

19

the only point I'm making. If you have a mandatory

20

number --

21

MR. BRILL: It's not a floor or ceiling, Your

22

Honor. Here's the difference. A floor means your number

23

is 15 but have as many as you want above the floor. And a

24

ceiling means, you know, your number is X and you can go

25

below that. But Dr. Thompson didn't allow men to go lower

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 69 of 88 917

1

or women to go higher without some justification. He had

2

to find that that number --

3

THE COURT: Right.

4

MR. BRILL: -- was a genuine number.

5

THE COURT: Right. But let's face it, when the

6

men's numbers are consistently low and it's a hard number,

7

as a practical matter it's a ceiling. And when the

8

woman's numbers are high, as a practical matter it's a

9

floor. Because the coaches, a woman's coach who's been

10

told take on more athletes than ideal, isn't going to want

11

to take on more athletes than the mandatory number. It's

12

just not going to happen. They are already at a number --

13

MR. BRILL: But it did happen, Your Honor. It

14

happened in three cases that we know of and Dr. -- I mean

15

we had the lacrosse coach who wanted 36 athletes instead

16

of 30 on the women's team and he said no. And you have

17

the softball coach that wanted 21 instead of 20 and he

18

said not unless you can justify it. So there is a

19

difference.

20

And the difference is that we're not just saying

21

have a number because it's a number, but this number was

22

established after a three month process in which he had to

23

assure himself that each number represented a genuine

24

opportunity for the athletes on the team. In fact, Coach

25

Sparks said he kept saying that over and over again and he

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 70 of 88 918

1

sent email after email.

2

THE COURT: I understand the evidence.

3

MR. BRILL: Now, Your Honor asked about the are

4

we looking at specific athletes here or -- what time did I

5

begin?

6

THE COURT: You've got like ten minutes left.

7

MR. BRILL: Okay. About what level of inquiry

8

is appropriate here. And they had the year to pore over

9

in the minutest detail every athlete on every team at

10

Quinnipiac University. Week by week throughout the

11

season, we sent the plaintiffs at the court's request

12

weekly results of every competition. They had the squad

13

lists at the beginning of the season, they had the final

14

squad list. They had the opportunity to depose coaches.

15

They had the opportunity to speak to the compliance

16

officer and the coaches.

17

And at the end of the day, what they came up

18

with is where they start, which is ceilings and caps.

19

It's all about ceilings and caps. There's no knowing --

20

certainly there's not a single piece of evidence, as

21

frankly there was at the preliminary injunction hearing,

22

of any roster number that was manipulated to produce a

23

false number by adding and then deleting athletes.

24

And when I asked Dr. Lopiano repeatedly what

25

evidence she had, what evidence she could point to about

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 71 of 88 919

1

anything that she disagreed with in the numbers, her only

2

response was, well, you have floors for women's teams and

3

caps for men's teams. And that's inherently unfair,

4

although her own report as well as the NCAA gender equity

5

guide both say there's floors for men's teams, floors for

6

women's teams and caps for men's teams are okay. That is

7

a permissible way to manage rosters as long as the result

8

is a fair opportunity to both the men and the women.

9

So you can't stop the inquiry, question of

10

whether they are -- even if you view our process as caps

11

and floors, which I don't think is fair, that's not the

12

end of the inquiry. You have to show some actual

13

deprivation of participation opportunities which there's

14

been no evidence of whatsoever, notwithstanding the waving

15

of the red flags and so on. No evidence.

16

And when I asked Dr. Lopiano is that the best

17

answer that you can give to my question, she admitted that

18

was, that was all she had. Which was nothing. And

19

there's simply no evidence of that kind of roster

20

manipulation. And the plaintiffs have the burden here.

21

You know, we are not -- it's not up to us to come and put

22

on evidence from 20 coaches or 400 athletes to parade to

23

the stand and say yes, I had a genuine opportunity. The

24

plaintiffs have the burden of showing there were athletes

25

that didn't have participation opportunities, that because

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 72 of 88 920

1

the women's basketball team has 18 or because the track

2

team has 30, that somehow there were athletes on that team

3

that didn't practice or didn't participate or didn't in

4

some way receive the full benefits of being on those

5

teams.

6

And there's no evidence in the record of that,

7

Your Honor. They failed, totally failed in carrying their

8

burden of proof, unless somehow the roster process itself

9

is going to be held to be improper, and frankly, I have to

10

say that it's hard to imagine what more Quinnipiac could

11

have done in response to the findings that came out in the

12

preliminary injunction hearing, what more Quinnipiac could

13

have done to set up a roster management process that could

14

would be genuine, fair, compliant with the law, and

15

produce a result that did provide genuine opportunities

16

for the athletes in every team while insuring

17

proportionality.

18

If someone could suggest to me a way to suggest

19

proportionality without some control over the rosters, I'd

20

like to hear it because it doesn't work. And the answer

21

is not that Quinnipiac has to keep adding teams and keep

22

adding teams and keep adding teams. You know, Title IX

23

works both ways also, and unless you have some control

24

over the roster, if you're talking about prong one

25

compliance, if you have too many women's teams, then the

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 73 of 88 921

1

men are going to be complaining. So you have to maintain

2

that proportionality on both sides.

3

I just want to answer quickly a few of the

4

points that Mr. Orleans made. And there's never been a

5

finding, contrary to what he said, there's no established

6

record of discrimination here. None. This court did not

7

find discrimination in this preliminary injunction

8

decision.

9

The court did not inquire into practices prior

10

to 2008, 2009. What the court said was on the record

11

reviewing the practices roster management that you didn't

12

have confidence that Quinnipiac would be complying with

13

prong one in 2009, 2010, but Quinnipiac was not, was not

14

relying on prong one prior to this past year and there's

15

been no finding that it did not comply or it did comply or

16

did not comply with any other prongs prior to this year,

17

so there's no issue of any established record of

18

discrimination here at all.

19

With respect to competitive cheer, if I can come

20

back to that for a minute, the fact is that -- the fact,

21

as I said, if it's not recognized by the NCAA which was

22

Mr. Orleans' first point, is a nonissue. If we were

23

recognized by the NCAA then the multi-factor test would

24

not apply.

25

Recruiting to me is a complete red herring. The

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 74 of 88 922

1

suggestion that somehow the team isn't able to obtain the

2

athletes that it needs, you heard the coach, you saw the

3

videos, you saw the quality of athletes that are on this

4

team. Recruiting takes place. It doesn't necessarily --

5

was not off campus recruiting last year but athletes were

6

recruited and women on this team were not picked up in the

7

cafeteria, as Dr. Lopiano may have suggested in her report

8

would be the case.

9

These are highly skilled gymnasts who, in fact,

10

Coach testified when she needed another athlete on the

11

team for this year, there was a, I think a graduate

12

student who had been an elite gymnast who wanted to

13

participate on the team. So there is no shortage of

14

trained and skilled athletes.

15

You know, the fact that the NEC conference

16

doesn't recognize the sport, again, this is going to be

17

the case in every sport. The athletic director, Jack

18

McDonald, testified he developed women's ice hockey and

19

lacrosse here without any conference sponsorships and he

20

put together schools in order to start participating in

21

those sports with Quinnipiac.

22

So, these are all, you know -- look, if

23

competitive cheer met every single factor on the check

24

list, and the NEC conference recognized it and the NCAA

25

sponsored a championship, then we wouldn't be here.

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 75 of 88 923

1

Obviously it doesn't, but the question is what's a fair

2

overall view of all these factors? And what are the most

3

important factors and why are those factors the most

4

important? And we think it's the athleticism, the

5

competitive nature, the fact that the -- internally,

6

administratively, this sport is treated as a varsity

7

sport, these athletes are treated as varsity athletes,

8

just like all other athletes at the university, and that

9

it furthers the purpose, most importantly, of Title IX.

10

It furthers the purpose of Title IX to expand

11

opportunities for women, to expand opportunities by

12

developing new sports, which if Your Honor takes a look at

13

the OCR 2008 letter, the OCR says this is the intent of

14

these factors. When we're looking at a sport that's not

15

recognized by the NCAA and we have to decide if it's a

16

sport for purposes of Title IX, we want to take a flexible

17

approach. We want to expand opportunities for women.

18

Now, you heard testimony that I think there's

19

something like 150,000 women, girls and women, just in the

20

last six months who participated in All-Star cheer

21

competitions. So we know that there's an enormous

22

interest in this sport. Coach Powers testified that she's

23

received calls from three, four, five, high school

24

federations already wanting to adopt the NCSTA meet

25

format.

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 76 of 88 924

1

This sport is taking off in an enormous way, and

2

a decision by this court that fails to recognize it is, I

3

think, is going to, if not a death knell, a substantial

4

obstacle to what would otherwise be an extraordinary new

5

opportunity for athletic participation for tens of

6

thousands of women. And it's not volleyball against

7

competitive cheer, I agree with you. But the issue before

8

Your Honor frankly is, you know, is competitive cheer

9

going to be recognized as a sport.

10

As we said in our brief, even if, frankly even

11

if it's not, the issue is compliance this year and

12

Dr. Lopiano with all of her calculations and permutations

13

and columns, at the end of the day, whether you look at

14

column A or column B, if you include cheer and if you

15

include track as the NCAA looks at it and as the EADA

16

looks at it, she says you're right there. She had no

17

dispute. So we really don't have to quarrel over her

18

methods of accounting. You're right there.

19

Now, frankly I don't understand how you could

20

not look at volleyball for this year because we had a

21

volleyball team and the issue is current compliance. For

22

next year, Your Honor has the projections for next year

23

and the numbers show that Quinnipiac will be in compliance

24

without the volleyball team for next year. And that's the

25

relevant inquiry, not whether you subtract out the

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 77 of 88 925

1

volleyball team for this year. But no court, as we say in

2

our brief, has ever held that a gap of 2 percent or less

3

has not satisfied -- not a gap but a differential of

4

2 percent or less, has failed to satisfy the prong one

5

requirements. And if you, even if Your Honor were to hold

6

that competitive cheer does not count for this year, the

7

difference is about two and-a-half percent which, again,

8

no court has ever been as low as two and-a-half percent.

9

And I would suggest to Your Honor that with these

10

circumstances that -- if you feel that competitive cheer

11

isn't there yet, we're not there yet, there's no question

12

we're going to be there next year, just as you said last

13

year at the preliminary injunction hearing, you had to

14

predict what would be likely for the coming year, last

15

year we didn't have the NCSTA, we didn't have the six

16

other varsity teams. We didn't have the majority of our

17

competitions for this year in the NCSTA format.

18

We will next year. There's going to be a

19

national championship. I mean every factor, every factor

20

next year, there is off campus recruiting, every single

21

factor, even if you viewed it as a check list of the OCR

22

letter, will be met. And I would suggest to you that even

23

if you find that we're not quite there now, that you

24

should take into account the fact that, based on, based on

25

the evidence, there is every reason to believe that, that

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 78 of 88 926

1

competitive cheer will certainly meet the criteria for

2

next year, and given that and this a two and-a-half

3

percent differential for this year is, you know, is less

4

than any court has ever found to be a violation that we

5

ought to be, that Your Honor should find that Quinnipiac

6

has substantiallily proportionally teams for this year and

7

that there's no reason -- therefore, we're not in

8

violation for this year and that there's no reason to

9

believe that we're going to be in violation next year

10

because, even without volleyball, competitive cheer will

11

most assuredly be a sport. Thank you, Your Honor.

12

THE COURT: Thank you.

13

Before you go, let me quickly follow up. Using

14

a percentage method, what percentage is substantial?

15

MR. BRILL: No court has ever found anything

16

less than 5 percent to be not substantial. I think it

17

does depend on the size of the school. I would think

18

something around between three and five percent would be

19

the borderline. But I don't think two or two and-a-half

20

percent -- I think two, two and-a-half percent is clearly

21

substantial compliance.

22

THE COURT: And is that true even if the gap in

23

athletes is -- would be sufficient to support the

24

volleyball team?

25

MR. BRILL: Yes. This notion came out of

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 79 of 88 927

1

nowhere. I mean have there's no court that looks at this

2

from the gap standpoint that I'm aware of. And, secondly,

3

it's a complete misinterpretation of the OCR guidance. As

4

the court in -- I forget the name of the case -- in

5

Virginia said, what the OCR said in the 1996 guidance was

6

that if you, if the gap was small enough that it would not

7

support a team, then that was a basis for finding that a

8

school was in compliance but they didn't say the converse.

9

And when they, when they defined what they meant by the

10

gap, they said you look to the average size of the women's

11

team in that school. At Quinnipiac, the average size of

12

the team, just eye balling the squad size, would be 20, in

13

the low 20s probably. So the OCR never said, well, you

14

can't eliminate a team because automatically that's going

15

to result in a gap the size of the team that's being

16

eliminated.

17

THE COURT: Okay. And did you want to comment

18

on the plaintiff's view about remedy? You mentioned

19

compliance --

20

MR. BRILL: Well, it's a class action, Your

21

Honor, and I believe that the case law is it doesn't -- I

22

mean this case has been going on one year. That's not

23

very long compared to the Brown case, for example, and it

24

is up to -- every court has said if you bring a class

25

action, it's up to the university to decide how it intends

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 80 of 88 928

1

to comply and reach proportionality.

2

The court doesn't say -- it's not up to the

3

court say, well, I want you to have a volleyball team with

4

12 people and you want to put some sprinters on your track

5

team and maybe you've got a few too many people on this

6

team and that team and while you're at it, why don't you

7

add a women's rugby team.

8

What these cases say is, okay, Quinnipiac, or

9

okay, Brown, we're sorry, you're not in compliance with

10

prong one. We want you to come back with a plan, the

11

plaintiffs will have an opportunity to comment on the

12

plan, the class members who are going to be affected

13

should have an opportunity to comment on the plan and then

14

the court has to decide if the plan is adequate or the

15

plan isn't adequate.

16

But out of the blue, there's no basis now for

17

specific remedy other than to say, you know, make sure

18

you're in compliance with Title IX. I mean, frankly, if

19

the only reason, putting aside track and field for a

20

minute and I talked just about competitive cheer, if the

21

court says that competitive cheer is not a team for

22

purposes of Title IX, then -- and it says that two

23

and-a-half percent gap puts us out of compliance for this

24

year, then we have to decide how we're going to get back

25

into compliance.

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 81 of 88 929

1

It's not obvious, you know. It may require

2

either putting, cutting another men's team or adding

3

another women's team. Simply putting the volleyball team

4

back in place doesn't necessarily -- when I add up the

5

numbers I don't think that would necessarily result in

6

compliance.

7

So it's a complicated, it's a complicated issue

8

that involves balancing of -- question of teams being

9

eliminated, teams being added, rosters being adjusted and

10

so on, and there are many other people who are affected

11

other than the main plaintiffs. I mean the track athletes

12

have a, have an interest here in what happens. So, yes I

13

think there would need to be an opportunity for

14

compliance.

15

Could I make one final comment. And that is in

16

the Colorado State case, I don't recall the sport that was

17

involved, it may have been women's softball, the court

18

said there that -- there was a permanent injunction

19

requiring the school to maintain that particular team but

20

at the same time it said but once you get into, once you

21

get into compliance with Title IX, that obligation

22

evaporates because its always going to be the decision of

23

the school to decide how it complies.

24

So Your Honor can say, okay, we're not in

25

compliance now and I want you to maintain the volleyball

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 82 of 88 930

1

team at least for another year, but get once we get into

2

compliance, then we don't have to maintain the volleyball

3

team or any other team.

4

THE COURT: I understand.

5

MR. BRILL: Thank you very much.

6

THE COURT: Thank you. Mr. Orleans?

7

MR. ORLEANS: Before I begin, I'm going try to

8

be as brief as I can. Were there particular questions

9

that the court wanted to ask of me? Or do you want to

10

just react as I go?

11

THE COURT: Let me react.

12

MR. ORLEANS: All right, I'm going to try. I'm

13

going start with working from the end.

14

THE COURT: I was going to say that's what's

15

fresh in my mind and I'd be interested in your response to

16

that.

17

MR. ORLEANS: With respect to the remedy, Your

18

Honor, as far as I know, in every case, every class action

19

case where the plaintiffs were members of a team that was

20

dropped, the court has started by ordering the

21

reinstatement of that team and whatever else needs to

22

happen in terms of shaping a remedy and having a hearing

23

for the class or giving the class an opportunity to weigh

24

in and giving the university an opportunity to devise a

25

compliance plan, I believe that every court that has faced

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 83 of 88 931

1

that situation has started by ordering the reinstatement

2

of the team from which the plaintiffs were drawn.

3

And there was a second point I wanted to make

4

about the remedy and it has slipped my mind. If it comes

5

back to me, I'll come back to it.

6

With respect to the issue of points of

7

substantial compliance percentage gap, I think the thing

8

that you have to keep in mind is that, you know, a gap of

9

2 percent at Ohio State where there might be thousands of

10

athletes is a different number of athletes that would

11

support the different team than a gap of 2 percent in a

12

small school where there are only a couple of hundred

13

athletes. So, and that's why the 1996 clarification

14

focuses, contrary I think to what defense counsel

15

suggested, focuses not on percentages but on whether,

16

whether the gap between actual and required number of

17

women would be enough to support a team.

18

THE COURT: Yes, although I think that argument

19

cuts both ways. At a small school, you know, the

20

fluctuation is going to have a more dramatic impact.

21

MR. ORLEANS: True.

22

THE COURT: So --

23

MR. ORLEANS: Okay.

24

THE COURT: I understand. I understand.

25

MR. ORLEANS: So, Your Honor asked about why

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 84 of 88 932

1

Quinnipiac had not gone to OCR and I think that in his

2

response defense counsel made a comment about OCR not

3

giving advisory opinions. I want to read to the court

4

from Exhibit 109 which is the 2008 Dear Colleague letter,

5

the penultimate paragraph.

6

"OCR remains available to provide technical

7

assistance on this issue to recipients on a case by case

8

basis. If you have further questions regarding the

9

application of Title IX to athletics programs or seek

10

technical assistance, please contact the OCR enforcement

11

office serving your state or territory."

12

So there is of course no actual evidence in the

13

record about what happened at Maryland five or six years

14

ago but certainly two years ago in 2008, OCR was inviting

15

schools with questions about this to seek assistance.

16

And further on that point, it just is not true,

17

I don't think, that the brief of the United States somehow

18

pushes off on the court the responsibility to make this

19

decision. I think the brief assumes that the issue is

20

before the court and that the court will decide, but I

21

don't think there's any statement in the United States

22

brief that, you know, we don't want it, the court must

23

decide this for us, and if it were presented to us we

24

would punt. That's not the way I read the U. S. brief.

25

And, as I said earlier, I think it is appropriate to weigh

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 85 of 88 933

1

heavily and balance the fact that the Quinnipiac and NCSTA

2

have not gone to OCR.

3

The theme of defense counsel's argument was that

4

it's really competitive cheer that's on trial and we just

5

dispute that very strongly, Your Honor. It's a false

6

choice. There's certainly no reason that Quinnipiac could

7

not honor its commitment to the competitive cheer squad

8

members and continue its effort to build this new activity

9

into a legitimate varsity sport.

10

It is a resource allocation issue. And you know

11

what? There's a cost to being a NCAA Division I athletic

12

program. If you want the prestige and the status and the

13

marketing opportunities and the recruiting opportunities

14

that come with being Division I, I think as an

15

institution, you have to be prepared to devote the

16

resources do that and you can't necessarily do it on the

17

cheap.

18

There was sort of an implicit threat there at

19

the end of Mr. Brill's remarks that, gosh, if the court

20

were to find they are not in compliance with Title IX, we

21

might have to cut more men's teams, they can't cut more

22

men's teams, not if they are going to stay in Division I.

23

So, they may have to reexamine their, some of

24

their resource allocation decisions. We think that they

25

ought to honor their commitment to competitive cheer and I

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 86 of 88 934

1

mentioned along those lines, there are a lot of schools in

2

the country that offer scholarships to their sideline

3

cheerleaders.

4

So there's certainly plenty of room for

5

Quinnipiac, as Your Honor suggested in some of your

6

questioning, to serve the needs and interests and

7

abilities of its students for legitimate athletic and

8

educational reasons, quite apart from the issue of Title

9

IX compliance. And if it does that, if it focuses on

10

that, it will find itself in Title IX compliance because

11

it will be providing the opportunities for women that it

12

is required to provide. Thank you.

13

THE COURT: All right, thank you all.

14

(Pause)

15

THE COURT: I have a lot of work to do. And as

16

I've told counsel I'm not going to even be here for some

17

period of time, so I want give you a good estimate of when

18

I can have a decision. It will be a matter of weeks not

19

days, but weeks not months. And I understand the time

20

pressures that are involved with the upcoming academic

21

year and it's my intention to get a decision to you as

22

quickly as I can consistent with an obligation, I think a

23

very heavy obligation, to carefully review the record and

24

consider these issues carefully.

25

So I will tell you it's my hope to have a

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 87 of 88 935

1

decision to you by the middle of July. Whether that is

2

possible, frankly I don't know, but that is my hope and my

3

goal.

4

And I want to thank both sides for a very

5

efficient presentation of the case. I had concerns

6

obviously that we could hear this matter in the time

7

available and I very much appreciate the efforts you've

8

gone to to cooperate with each other and to present the

9

case, as I said, efficiently.

10

What's important to me, I think, is to get the

11

record established and now to have some time to carefully

12

review it.

13

And, as I say in every case, best of luck to

14

everyone.

15

And we're going to stand in recess.

16

(Whereupon the above matter was adjourned at

17

11:25 o'clock, p. m.)

18

19

20

21

22

23

24

25

Case 3:09-cv-00621-SRU Document 179 Filed 07/21/10 Page 88 of 88 936
C E R T I F I C A T E
I, Susan E. Catucci, RMR, Official Court Reporter for the United States District Court for the District of Connecticut, do hereby certify that the foregoing pages are a true and accurate transcription of my shorthand notes taken in the aforementioned matter to the best of my skill and ability.
/S/ Susan E. Catucci __________________________
Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604
Tel: (917) 703-0761

 
 Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated; and ROBIN LAMOTT SPARKS, individually,

X CIVIL ACTION NO: 3:09-CV-00621 (SRU)

Plaintiffs,

against

QUil\TNIPIAC UNIVERSITY,

Defendant. X

JOHN McDONALD declares, under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the

following is true and correct:

1. I am Director of Athletics and Recreation at Quinnipiac University, and submit this declaration in support of Quinnipiac' s proposed Compliance Plan.
2. As indicated in the proposed Compliance Plan, Quinnipiac plans to add a varsity women's golf team in 2010-11, and a varsity women's rugby team in 2011-12. Quinnipiac has taken significant steps towards establishing both of these teams, which are described below.

3. I have hired John O'Connor, who previously had been the coach of Quinnipiac's men's golfteam, as coach ofthe women's golfteam. Because of this experience, he is familiar with the University's athletics program and with the two golf courses where the team will practice and play (the New Haven Country Club and the Laurel View Country Club). This

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 2 of 29
experience will allow Jolm to "hit the ground running" with the women's golf team for the 201011 season. I am also going to hire an assistant coach for the women's golf team.
4. The women's golf team will have an operating budget of approximately $70,000 and the coach will have two full scholarships to distribute to attract athletes to our University. The coach will start recruiting athletes for the 20 11-12 season very shortly. The budget and scholarship allocation for women's golf is very similar to the budget and scholarships the men's golf team received before it was eliminated in 2009.
5. The University recently distributed a survey to assess whether students were interested in joining a women's golfteam. Twenty two students responded that they were interested in joining the team. Almost all of the students had played golf before, and several of the students were on their high school golf teams. One student was the captain of her high school golf team. (A copy of the survey results is attached as Exhibit A.)
Rugby
6. I am in the process of conducting a nation-wide search for a qualified women's rugby head coach. The University posted an announcement regarding this position, and I have been working with USA Rugby (the national governing body for the sport) to find qualified candidates. Several very promising candidates have expressed interest in this job, and I am in the process of interviewing these candidates. I expect that we will select a coach within the next two to four weeks. Once we hire a coach, we will expect him or her to immediately begin recruiting students for the 2011-12 season. The University will also hire a part time assistant coach.
2

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 3 of 29
7. The women's rugby team will practice and play in the Alumni House and Field, which is located behind the University's baseball field.
8. The women's rugby team will have an operating budget of approximately $100,000, and the coach will be able to distribute up to six full scholarships to recruit the best athletes. The budget is comparable to that of Quinnipiac' s women's lacrosse team, which has a similar squad size.
9. The University recently distributed a survey to assess whether students were interested in joining a women's rugby team. Fifty one students responded that they were interested in joining the team. Several ofthe students had experience playing rugby, and the other students all were athletes who played other sports, like basketball, softball, track, hockey and soccer. (A copy of the survey results is attached as Exhibit B.)
10. I have had a number of communications with representatives of USA Rugby in connection with our planning to begin a varsity women's rugby program, and I received written materials describing the facilities, equipment, and estimated costs for beginning a varsity team, as well as recruiting and competition possibilities. (A copy of information material I received from USA Rugby is attached as Exhibit C.) As described by USA Rugby, many college rugby athletes are cross-over athletes, who did not previously have experience playing rugby, but were athletes in other sports, such as soccer, softball, basketball and track. The skills athletes develop in these other sports are easily transferrable to rugby.
11. There are currently four varsity rugby teams at NCAA institutions- three of which compete in the Northeast within reasonable travelling distance of Quinnipiac: Eastern Illinois University, West Chester University (located in eastern Pennsylvania), Bowdoin College
3

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 4 of 29

(located in Maine) and Norwich University (located in Vennont). There are also over 50 women's rugby club teams in the New England Regio~ with 11 teams at Connecticut schools, including Central Connecticut State University, Yale University, University of Connecticut, Connecticut College, Southern Connecticut State University, University of Hartford, and Western Conne(..1icut State University. TIJ.e scheduling of competition for the varsity team in 2011-12 will be decided by the coach, including the number ofmatches with other varsity teams and club teams.
Cross-Country
12. There are 24 women on the cross-country team this fall. (A copy ofthe roster is attached as Exhibit D.) The team has competed in three meets to date, placing first at a meet on September 4, placing second at a meet on September 11, and placing frrst at a meet on September 18. (Copies ofthe meet results are attached as Exhibit E,) Twenty two athletes have competed in at least two ofthe three meets; the only two athletes who have not competed are scholarship athletes who are injured.
Participation Polic_y,
13. Quinnipiac has notified its coaches and student athletes in writing of its policy that no student is required to participate in one sport in order to participate in a different sport.

JOHNMC NALD

DATE

4

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 5 of 29
Exhibit A

Questionaire Responses: Would You Like To Play Women's Golf For Quinnipiac?

Dates: 01/01/2000 12/31/2012

Questionaire lD: 90009

#

Answer 10 IP Address

Date

First Name Last Name QU EmaH

1 205425861

"'" ·- · 9/12/2010 10:42 Erin

Malley

2 205425909

9/12/2010 11:31 Amanda Lubin

3 205425914

9/12/2010 11:47 Caroline Quirk

4 205425884

9/12/2010 11:55 Emily

Vincent

5 205425933

9/12/2010 12:24 Bonnie

Braley

6 205425935

9/12/2010 12:26 Madeline finke!

7 205425936

9/12/2010 12:26 Devon

Gibney

8 205425904

9/12/2010 12:38 Elizabeth Emanuelson

9 205425960

9/12/2010 13:23 Amy

Hutchinson

10 205425992

9/12/2010 14;20 Brianne Tansey

11 205426001

9/12/2010 14:29 Jennifer Forlenza

12 205426068

9/12/2010 15:09 Catherine Tobin

13 205426252

9/12/2010 18:06 Stephanie Alwardt

14 205426513

9/12/2010 21:00 Emily

Tibbetts

15 205428148

9/13/2010 22:33 early

Kaplan

16 205428100

9/13/2010 22:58 Meohan Moore

17 205428313

9/14/2010 0:38 Kelsey

Rayla

18 205429738

9/15/2010 12:25 Haley

Blatz

19 205430821

9/16/2010 10:35 Amy

Wayman

20 205433019

9/18/2010 10:21 Emily

Soto

21 205434787

9/19/2010 17:51 Lauren

Racine

22 205436160

9/20/2010 14:38 Ashley

Carter

22 Records Listed.

Your QU Class Have You Played Golf Before?

Sophomore Hiqh Schoo! Boys Golf Team

Junior

Yes

Freshman

yes

Freshman

Yes

Junior

no

Junior

yes

Junior

yes

Freshman

Yes

Junior

yes

Senior

Yes

Freshman

Yes

Sophomore Yes- Team captain of hiqh school team

Freshman

Yes

Junior

Yes

Junior

yes

Sophomore Yes

Freshman

Yes

Freshman

A little bit. Never on a team.

Senior

Yes

Junior

No

Freshman

yes

Sophomore yes

Your Handicap

Please List Other Sports You Have Played

not sure

Hiqh school softball and cheer!eadinQ

Not sure

lacrosse, soccer, volleyball, track

N/A

tennis

28 Basketball, Softball. Powderpuff Fottball

N/A

field hockey, track, ski club

unknown

softball, basketball. tennis

14 QU womens lacrosse, field hockey, ice hockey

29 Field Hockey, Softball

32 sailinq

18 ice hockey, soccer

16 Fencinq

10HAuq Basketball, track, and swirnminq

N/A

Soccer, Basketball

12 Field hockey, soccer, tennis

idk

softHbalt tennis

40 Soccer, track, and lacrosse

I have never kept track Soccer, Track & Field, Cross Country

Tennis

none

soccer, basketball

None

None

20 hiqh school soccer and track

80 Hockey and volleyball.

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 6 of 29

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 7 of 29
Exhibit B

Ouestlonalre Responses: Would You Uke To Play Women's Ruqby For Quinnlplac?

Dates: 01/01/2000 • 12/31/2012

Questlonaire ID: 89910

#

Answer ID IP Address

1 205425763

2 205425844

3 205425847

4 205425771

5 205425780

6 205425788

7 205425796

8 205425800

9 205425803

10 205425906

11 205425907

12 205425915

13 205425886

14 205425897

15 205425937

16 205425903

17 205426011

18 205425979

19 205426005

20 205426107

21 205426054

22 205426060

23 205426120

24 205426061

25 205426129

26 205426074

27 205426222

28 205426236

29 205426237

30 205426238

31 205426254

32 205426352

33 205426795

34 205426890

35 205427144

36 205427226

37 205427529

38 205427873

39 205427904

40 205428012

41 205428332

42 205428381

43 205429455

44 205431009

45 205431033

46 205432468

47 205432707

48 205433004

49 205435711

so 205435906

51 205436994

51 Records listed.

Date

First Name Last Name QU Email

9/12/2010 9:18 Katie

Wood

9/12/2010 9:29 Katie

Wood

9/12/2010 9:47 Lindsay Nolan

9/12/2010 9:48 kayla

qreen

9/12/2010 10:21 Lauren

Dufour

9/12/2010 10:51 Shannon Gienty

9/12/201011:03 Ryan

Dyer

9/12/201011:08 Kelly

O'Connor

9/12/2010 11:19 Alysha

Andrews

9/12/2010 11:24 Kristina Urn

9/12/2010 11:27 Marissa Harper

9/12/201011:47 Alyssa

Caqqiano

9/12/2010 11:59 Taylor

Healey

9/12/2010 12:26 Bonnie

Braley

9/12/2010 12:27 Elicia

Fortier

9/12/2010 12:37 Chelsea True

9/12/2010 12:49 katelvnn lucvk

9/12/2010 13:49 Morqan Farra

9/12/2010 14:34 Heather Anderson

9/12/2010 14:35 Annette Wiecha

9/12/2010 14:38 Nora Kate O'Brien

9/12/2010 14:55 Katie

Partin

9/12/2010 14:56 Katie

Bliss

9/12/2010 14:56 allison

rozovskv

9/12/2010 15:17 Molly

Mahoney

9/12/2010 15:21 Kristin

McAteer

9/12/2010 17:15 Jordan

Berardi

9/12/2010 17:39 Meoan

Haves

9/12/2010 17:41 Sara

Mckersie

9/12/2010 17:42 Jesse

Macera

9/12/2010 18:11 Lauren

Pollseno

9/12/2010 19:23 Elizabeth Pinzon

9/13/2010 9:20 jessy

miele

9/13/2010 10:39 Meohan McGrail

9/13/2010 12:06 Samantha Pskowskl

9/13/2010 13:45 Jacqueline Ully

9/13/2010 17:06 Shyiesha Smith

9/13/2010 20:53 EmHy

Machado

9/13/2010 21:07 Amanda Frost

9/13/2010 21:14 Breanne Sullivan

9/14/2010 1:52 Lauren

Vachon

9/14/2010 8:56 Amelia

Houqhton

9/15/2010 0:41 Meoan

Prestridqe

9/16/2010 12:46 Rachel

Nash

9/16/2010 13:05 Elaine

Severo

9/17/2010 16:11 Kimberly Barile

9/17/2010 19:46 Krvstin

Orrico

9/18/2010 9:35 Jacqueline Madear!e

9/20/2010 10:32 Julia

Hvoslef

9/20/2010 11:44 Christina Casinel!i

9/20/2010 23:24 Alexandra Smith

Your QU Class Have You Played Ruohy Before?

Junior

No

Junior

No

Sophomore No

Freshman

no

Sophomore no

Sophomore Not competitively

Sophomore No

Freshman

Yes

Junior

No

Senior

Yes

Freshman

neverf

Sophomore recreatlonally

Sophomore No

Junior

no

Freshman

Yes

Sophomore no

freshman

no

Sophomore No

Senior

Yes

Freshman

No

Freshman

No

Sophomore no

Junior

no

Freshman

no

Sophomore no

Junior

No

Junior

no

Grad/Law

no

Sophomore No

Sophomore no

Sophomore no

Sophomore no

Grad/Law

yes

Junior

no

Sophomore No

Freshman

no

Sophomore no

Junior

no

Junior

No

Freshman

No

Freshman

No

Freshman

no

Sophomore No

Senior

No

Junior

no

Junior

No

Sophomore No

Junior

No

Sophomore No

Senior

No

Senior

no

Please Ust Other Sports You Have Played Field Hockey, Basketball, Track and Field Field Hockey, Basketball, Track and Fieldm Softball, and Soccer Soccer, Basketball, Softball basketball and volleyba;; swimminQ, track (throwinq) Soccer for 12 years, basketball for 12, and Softball for 6 Track and field field hockey Field Hockey, Basketball, Lacrosse Basketball, Softball, Field Hockey volleyball, ski racinQ, softball, soccer soccer, lacrosse Field Hockey field hockey, track, ski club In hiqh school I also played ice hockey and softball cross country, track, ice hockey, recreational softaball, soccer, skiinq, snowboardinq etc cross country, basketball, soccer SwimminQ, Softball, Tennis, Basketball Field Hockey, Basketball, Softball Softball Ice Hockey(15 years), field hockey, soccer, softball, lacrosse field hockey field hockey, lacrosse field hockey, lacrosse, tennis track and field, cross country Lacrosse, Soccer soccer, basketball, softball BasketbalL softball, lacrosse, javelln/shot put, volleyball Volleyball and ice hockey soccer, basketball, softball field hockey and lacrosse soccer, softball, volleyball soccer,mma,ruqby at UMass Amherst and csu Chico, basketball,track,dance basketball, soccer, lacrosse, field hockey, softball Track&Fie!d, Soccer, Basketball lee hockey, sal!inQ, cross country, and track and Meld basketball Field Hockey, Gymnastics, Track Volleyball, Basketball, Track+iurd!es and Shotput/Discus Field Hockey, lee Hockey, Crew Varsity basketball, varsity volleyball and varsity track (shotput and discus} qymnastlcs Soccer, track, volleyball Soccer Ice Hockey and soccer Soccer, Lacrosse, Basketball Soccer, Basketball, Lacross, Track Field Hockey, Basketball, Softball, Lacrosse Softball, Cross Country, Track Soccer cross country, track, lacrosse, basketball

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 8 of 29

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 9 of 29
Exhibit C

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 10 of 29
Dear Athletic Director McDonald, Thank you for contacting USA Rugby and it was a pleasure to speak with you. As Quinnipiac University moves forward in expressing interest in new sports for the future, USA Rugby will be an ideal source for information on Women's NCAA Rugby. Today, as NCAA institutions proactively seek additional avenues to provide additional athletic participation, USA Rugby invites you to take a moment to consider rugby as an option. As an Emerging Sport, Women's NCAA rugby brings a combination of elements to areas including:
v Affordability
v Flexibility v Opportunity to house a 30 student-athlete roster v Resources for recruited student-athletes
Through this packet you will gain: • Budget statistics and long term plans for the future growth of women's rugby at Quinnipiac University • How Quinnipiac University can make history and shape the future of women's rugby in the NCAA • How Quinnipiac can be a leader in participating in the first D-1 women's rugby match in the NCAA
We at USA Rugby hope you will join us in our quest for the expansion NCAA rugby. Sincerely,
Kristin Richeimer

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 11 of 29
our athletic
As USA Rugby assists NCAA institutions with information about Women's NCAA Rugby, there are a few crucial elements below we would like to highlight as we build solid relationship with administrators and athletic departments.
• USA Rugby operates as a resource. Our job is to provide information requested to assist your administration to implement a solid, sustainable rugby program which can have an immediate impact in shaping D-1 Women's NCAA Rugby.
• As the National Governing Body for rugby in the United States, we are not a direct branch of enforcement of Title IX, rather an organization with trained, knowledgeable staff to assist institutions interested in adding Women's NCAA Rugby. While we highlight women's rugby as an ideal answer to compliance or gender equity for those who inquire, we realize that many institutions like Quinnipiac are adding opportunity for expansion of athletic offerings.
• At no time will your information or inquiries on women's NCAA Rugby be shared outside of the Emerging Sports Department at USA Rugby. Our organization is well aware that inquiries can be short or long term in scope and we respect your process and timeline.
• Those schools with interest in the process of adding are only shared with other NCAA administrators for purposes of providing evidence of conference and regional growth. Your permission must be granted for us to share any information with other NCAA athletic directors and administrators.
• USA Rugby is capable of providing statistical and budgetary information including coaching candidacy information, scheduling, travel, equipment, start-up and much more. Please don't hesitate to contact us for more information in each area.
• In October 2009, Rugby Sevens and Golf were added into the Olympics for women and men in 2016 and 2020. While Rugby Sevens is a separate discipline, there is ample opportunity and expectation that the Olympic inclusion will increase awareness of rugby in the US and varsity programs will be premier training ground for female Olympic athletes.
• We recognize that Quinnipiac University has continually demonstrated leadership locally and nationally in its commitment to athletics and providing student-athletes opportunity for character and life skills development.
• We are pleased to provide you with the following information and can be contacted at anytime in the event you have further questions. We also encourage contact with current athletic directors and administrators who currently field women's varsity rugby programs in the NCAA which can be provided at your request.

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 12 of 29

Quinn I

.
I

.
I

YOUR INVESTMENT OPPORTUNITY
Committing to the addition of a new sport at any NCAA institution is a serious investment for all parties involved.
When a prospective studentathlete considers the possibility of investing their future in Quinnipiac academics and athletics, it is the responsibility of the institution to assist the student-athlete in identifying whether or not Quinnipiac is the right fit.
Mirroring this philosophy, USA Rugby is committed to operating its campaign for women's varsity rugby with the same care and research.

Training and match balls Cones Tackle & blocking bags Head gear & shoulder pads Mouth guards
Note: While some equipment will need to be replaced after a few years, serum sled and field equipment will last longer than 10 years.
Game Practice Facility, (can be a typical phase-in project) Field Playing Area, 130 X 75 yd
Sprinkler System, Office Facility, Scoreboard, Team Benches Flag Pole, Spectator Seating, Fence Enclosure, Equipment Storage, Locker Room Development, Public Address System Goal Post Pads

The Emerging Sports Initiative does not extend this campaign to institutions in which the addition of Women's NCAA Rugby would not be of the utmost benefit to the institution and athletic department. The sport must "fit" the institution rather than requiring the institution to fit the sport.
BUDGET
Among of the top three most attractive elements of adding Women's NCAA Rugby is affordability. Precise budget allocation for rugby is strictly an administrative determination, however rugby serves as an affordable yet productive option.
Typically, for minimum start-up costs, the estimate is around $20,000-$25,000 with the ability for steady growth during the developmental years in terms of travel and coaching staff.
Fellow D-1 women's rugby program at Eastern Illinois University began in 2002 with $27,000 devoted to the program and now operates over $130,000 yearly. The items below should be considered guidelines and examples, we recognize that each institution will have it's own budget range for each sport, especially new additions.
PRACTICE & GAME EQUIPMENT COSTS
Serum-sled Warm-ups Practice and game jerseys Shorts, socks, cleats

COACHING STAFF
Current Salary Ranges: Head Coach (Part-time - Full-time) Mid range full time $40,000 - $50,000 1 Head Coach , 1 Volunteer Assistant Obviously, coaching staff composition depends on many administrative factors for producing a competitive program.
FEMALE ENROLLMENT
In adding women's rugby, your administration will find themselves in an advantageous position, having created 25-30 student-athlete opportunities at the lowest per athlete cost--comparable to roster sports half its size for half the cost.
MARKETING AND FAN BASE Along with the increased awareness and interest that Olympic inclusion is expected to bring, collegiate rugby recently generated television audience with the first major network televised event on NBC.
While this was a men's rugby sevens event, the viewership was reported by NBC Sports as surpassing the NCAA Lacrosse Championships the previous weekend in the same time slot. This bodes extremely well for the development of interest by viewers in collegiate rugby.
On September 15, 2007, the first women's NCAA game was

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 13 of 29

played between the D-1 women's team of Eastern Illinois University and the D-11 squad at West Chester University.
The match-up warranted attention from USA Today, and ESPN drawing in over 1200 fans to the small town of Charleston, IL.
The Adidas-sponsored historical contest drew great exposure for both institutions, their conferences, its members and the NCAA.

• West Chester University rugby currently uses Philadelphia and metro area club HS teams as a prime recruiting base for rugby student-athletes and cross-over athletes make up 20% of the roster.
• Yearly preseason averages 40 female athletes with a roster of 25-30 with a traveling side
Both methods of recruiting have proved fitting and successful for both varsity programs.
Many of these athletes, along with crossover HS varsity athletes from other sports have the desire and ability to compete at a Division I institution. NCAA rugby at Quinnipiac could provide the opportunity these high school student-athletes so desire.

Additionally, Quinnipiac, would be presented the opportunity to play the first all D-1 NCAA Women's Rugby game, should the institution add rugby as a varsity sport.
RECRUITING
Technical skills from soccer, softball, basketball and track are easily transferrable to rugby techniques.
There are always going to be athletes who just miss the opportunity to compete at the intercollegiate level in their primary sport, but still possess the interest, ability and dedication to perform as a rugby student-athlete.
Thus, the available pool of interscholastic student-athletes within the Northeast region is abundant. In conjunction with the intercollegiate expansion, the initiative has approached various state high school athletic associations regarding possible implementation of rugby at the interscholastic levels.

INTERNATIONAl RECRUITING With the race for tuition dollars at it's most competitive, international students are often sought after as full paying students.
In Canada, especially the Ontario Province, the high school talent pool is outstanding as girls' rugby is an official interscholastic sport with over 350 schools sponsoring a team.
Canadian student-athletes could initially provide the talent pool to fill the highly skilled positions on the rugby field which include only two to four positions in a starting line up of 15.
This approach would be an administrative choice as the talent pool within the United States is sufficient to provide all the necessary athletic and skill abilities.

Promotion of interscholastic girls' rugby becomes increasingly more powerful in Connecticut and neighboring states with an add of Women's NCAA Rugby at Quinnipiac.

In addition, recruiting cross-over athletes from other sports is ideal for completing a full roster of student-athletes, while the high school initiative develops.

Example: Eastern Illinois University - Undergraduate enrollment 12,000

Roster of 22 consists of former high school track, basketball, tennis, volleyball and soccer student-athletes
• Small town environment and 0.8 scholarships available divided among 15-20 prospects

WHAT TYPE OF COMPETITION SCHEDUlE?
With the flexibility of an Emerging Sport, Quinnipiac could reach a minimum 9 game schedule (max 11) in the first season by competing in a possible 8 NCAA cross-divisional match-ups with 1-2 club teams scheduled.

Due to geographic location which is limited to rural southeast Illinois, there is limited opportunity available averaging 1 walk-on per semester
Example: West Chester University - Undergraduate enrollment 12,800

Again, schedule is an administrative decision and contingent upon budget allocation. An 11-game maximum or 9game minimum schedule is achieved with schedule arrangement.

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 14 of 29

All interested institution's must keep in mind that future NCAA rugby programs for 2011, '12, and '13 can be factored into their varsity schedules.
As USA Rugby adheres to a strict confidentiality policy with each institution, we would not be able to release an institution's plans for adding without permission from the institution itself but we are happy to facilitate this process, if desired.

USA Rugby for a full list.
FAQ NCAA BYLAWS & WOMEN'S RUGBY Q. How long is the season? A. Length of an institution's playing season in women's rugby shall be limited to a 132 day season which may consist of two segments. Women's NCAA rugby is a fall sport.

COMPETITION SETUP In the event that your institution opts for a mixed varsity and club schedule, tournament participation is not recommended.
Keep in mind that men's intercollegiate football commits to one game a week in order to maintain student-athlete physical health and to achieve maximum team performance.
It is highly recommended that women's rugby be considered under the same guidelines as it is a full contact sport.
Tournament play may consist of 2-4 games in a weekend in the club structure with modified match length. With this setup almost 1/3 of the institution's schedule will be exhausted in one weekend.

Q. How many contests is my program permitted according to NCAA bylaws?
A. Max limitation of season allows for 11 contests in any one year of competition for both the institution as well as the student-athletes other NCAA sport legislation also dictates exceptions for post-season play and national team participation.
Q. Is there a championship available?
A. Yes. USA Rugby hosts a club championship with participation available by varsity teams competing through regional qualification channels. In the future, with the addition of more varsity teams, an all varsity championship sponsored by USA Rugby is feasible.

The model of single game competition per week is recommended and encouraged as the safest route for protecting the student-athlete's health & safety, also regarding Bylaw 17's 11 contest limit.
POSSIBLE SCHEDULE AND NCAA BYLAWS
Eastern Illinois University NCAA Division I (2 games) 1 home, 1 away
West Chester University NCAA Division II (2 games) 1 home, 1 away Norwich University NCAA Division Ill (2 games) 1 away game, 1 home Bowdoin College NCAA Division Ill (2 games) 1 away game, 1 home
With mixed competition of both varsity (8) and club (2) teams.
**The above possible schedule merely serves to imply a majority varsity schedule with other NCAA programs. In the interest of budget, a list of competitive club teams for more feasible traveling schedules is available. Please contact

Of course, the goal is to achieve 40 team membership for full NCAA championship status.
SAFETY. SAFETY, SAFETY The CSMAS noted that as a collision sport, the injury risk and medical resources necessary to support the sport probably would be at least comparable to other collision sports such as soccer. Rugby meets the required criteria for establishment of an Emerging Sport.
"The committee believes that each member institution has a responsibility to manage the sport of rugby as it does all of its varsity sports.
The "culture" surrounding a particular sport often changes dramatically when it becomes a varsity sport due to the guidelines imposed by the NCAA and the institution."
FUNDRAISING OPPORTUNITIES There are significant ways that a varsity rugby program can provide resources and funding back to the institution. There are numerous examples of club and varsity men's and women's programs that have generated multi-million dollar alumni fundraising campaigns to support the development of dedicated rugby facilities etc.

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 15 of 29

Please feel free to contact us at any time for additional contacts and best practices.

OVERVIEW
While most of the information above focuses on the development of an NCAA rugby program, the educational and collegiate experience of our rugby student-athletes is the main objective for the addition of these programs.

The beneficiary of these opportunities and NCAA Rugby will be the student-athletes who are on their final journey before embarking on their career objectives.

I would like to thank you for taking the time to review this information and would welcome the opportunity to discuss possible plans to develop an intercollegiate Bobcat Women's Rugby program.

For more information please contact the USA Rugby Direc-

tor of Membership, Kristin Richeimer

at

kricheimer@usarugby.org, 303.539.0300 ext 103

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 16 of 29
Exhibit D

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 17 of 29 Women's Cross Country- Roster- Quinnipiac University's Official Athletics Site- Quinn... Page 1 of 1

Women's Cross Country - 2010 Roster

Season 2010-11

Malloy, Kelly Zielinski, Valerie Airoldi, Abigail Beam, Katherine Cyr, Ashley Donadio, Hannah Faust, Amanda Faust, Brianna Faust, Christina Hammerton. Kaitl~nn HumQhre~s, Jill Kell~. Kaitlin Lanning. Julie Massa. Patt~ Morelli. Rachel Newcomb, Kelly Pallotta, Paige Roche Moraan Santandreu, Martha Soja, Jessica Sorrell. Kell~ Stevens. Kristen Szarkowicz, Andrea White. Becca
<< Previous Season

Click on arrows to sort by chosen column. Yr.

5-4

Fr.

5-5

Fr.

5-4

So.

5-5

Jr.

5-9

Fr.

5-6

Jr.

5-5

Fr.

5-4

Fr.

5-5

Fr.

5-10 So.

5-6

So.

5-2

Jr.

5-5

Jr.

5-2

So.

5-4

Jr.

5-6

Fr.

5-4

So.

5-2

Jr.

5-4

Jr.

5-9

Fr.

5-4

Sr.

5-8

Sr.

5-10 So.

5-1

So.

Sewell, N.J. (Bishop Eustace Prep) Hackettstown, N.J. (Mt. Olive) South Royalton, Vt. (Potter's House) South Windsor, Conn. (South Windsor) Trumbull, Conn. (Trumbull) Killingworth, Conn. (Haddam-Killingworth) Macungie, Pa. (Emmaus) Macungie, Pa. (Emmaus) Macungie, Pa. (Emmaus) Campbell Hall, N.Y. (Washingtonville) Burlington, Conn. (Burlington) Weymouth, Mass. (Fontonne Academy) Victor, N.Y. (Victor) Clifton Park, N.Y. (Shenendehowa) Philadelphia, Pa. (Saint Basil Academy) Toms River, N.J. (Toms River North) Westbrook, Conn. (Amity Regional) Clifton Park, N.Y. (Shenendehowa) Hamburg, N.Y. (Nardin Academy) Simsbury, Conn. (Simsbury) Lebanon, Conn. (Lyman Memorial) Succasunna, N.J. (Roxbury) Watertown, Conn. (Watertown) Natick, Mass. (Natick)

http://www.quinnipiacbobcats.com/SportSelect.dbml?SPSID=97157&SPID=11944&DB_... 9/21/2010

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 18 of 29
Exhibit E

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 19 of 29
file:///C!/Documents%20and%20Settings/jeacohen/Desktop/stony%20brook%20cc%20womans%20results.htm

Just in Time Racing - Contractor License

HY-TEK's Meet Manager

Stony Brook University XC Invitational - 9/4/2010

Stony Brook University

Last Completed Event

Event 2 Women 4100 Meter Run CC

==================================================================================

Name

Year School

Avg Mile

Finals Points

==================================================================================

1 Hayley Green

JR Stony Brook

5:45.4 14:39.77

1

2 Patricia Barry

JR Stony Brook

5:53.1 14:59.57

2

3 Maria Jangsten

4 Andrea Szarkowicz

£::_ -'

Christina

Faust

6 Kristen Stevens

7 Brianna Faust

8 Jessica Soja

JR Manhattan College
so Quinnipiac u FR Quinnipiac u SR Quinnipiac u FR Quinnipiac u FR Quinnipiac u

6:07.9 15:37.17

3

6:08.6 15:39.02

4

6:09.4 15:40.93

5

6:09.6 15:41.43

6

6:09.8 15:42.03

7

6:13.0 15:50.16

8

9 Meg han Hayes 10 Julie Lanning

FR Manhattan College
JR Quinnipiac u

6:15.3 15:55.95

9

6:15.7 15:57.00 10

11 Page Price 12 Martha Santandreu 13 Chelsea Hanson

JR Stony Brook
JR Quinnipiac u so Ion a

6:17.0 16:00.35 11 6:18.9 16:05.17 12 6:20.0 16:08.09 13

14 Chelsea Brisman

SR Ion a

6:20.4 16:09.04 14

15 Courtney Veilleux

FR Iona

6:21.0 16:10.45 15

16 Leanne Skrabacz

SR Stony Brook

6:21.4 16:11.45 16

17 Jelena Rankovic

SR Manhattan College

6:22.7 16:14.92 17

18 Carolina Cortes

SR Stony Brook

6:23.3 16:16.39 18

19 Chelsea Borbolla 20 Kelly Newcomb

SR Ion a
FR Quinnipiac u

6:23.8 16:17.71 19 6:24.1 16:18.36

21 Elizabeth Rosenberger 22 Kelly Malloy

FR Manhattan College
FR Quinnipiac u

6:27.3 16:26.51 20 6:27.7 16:27.54

23 Kaitie Kelly 24 Meghan Marro

JR Quinnipiac u so Manhattan College

6:30.1 16:33.65 6:30.5 16:34.62 21

25 Hannah Donadio 26 Abigail Airoldi

JR Quinnipiac u so Quinnipiac u

6:30.6 6:31.0

16:35.01 16:36.03

27 Valerie Zielinski

FR Quinnipiac u

6:36.3 16:49.42

28 Jill Fauser 29 Rachel Morelli

JR Stony Brook
JR Quinnipiac u

6:36.6 16:50.37 22 6:38.6 16:55.34

30 Robin Lynn 31 Erin Brady

FR Stony Brook
so Iona

6:39.2 16:56.79 23 6:40.2 16:59.38 24

32 Lindsey Smith

FR Iona

6:50.1 17:24.64 25

33 Stephanie Dufort 34 Kaitlynn Hammerton

JR Manhattan College
so Quinnipiac u

6:58.2 17:45.29 26 7:06.6 18:06.59

35 Leigh Mazzella

FR Iona

7:19.2 18:38.86 27

36 Shannon Christie

FR Ion a

7:26.5 18:57.47

Team Scores

=================================================================================

Rank Team

Total

1

2

3

4

5 *6 *7 *8 *9

file:i//Cf/Documents%20and%20Settings/jeacohcn/Desktop/stony%20brook%20cc%20womans%20results.htm (I of 2) [9/4/20 I0 5:3 l :4 l PM]

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 20 of 29
file:I/1Ci/Documents%20and%20Settings/jeacohen!Desktoplstony%20brook%20cc%20womans%20results.htm

=================================================================================

1 Quinnipiac University

30

4

5

6

7

8 10 12

Total Time: 1:18:33.57

Average:

15:42.72

2 Stony Brook University

48

1

2 11 16 18 22 23

Total Time: 1:18:07.53

Average:

15:37.51

3 Manhattan College

70

3

9 17 20 21 26

Total Time: 1:20:49.17

Average:

16:09.84

4 Iona

85 13 14 15 19 24 25 27

Total Time: 1:21:44.67

Average:

16:20.94

file:///Ci/Documents%20and%20Settings/jeacohen/Desktop/stony%20brook%20cc%20womans%20results.htm (2 of 2) [9/4/20 I0 5:31 :41 PM]

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 21 of 29

l
Mgt.

CCSU Cross Country Invitationa
Stanly Park New Britan, CT USA
09/11/2010 - 12:00 PM Weather: Sunny
Results by: The Last Mile Race
www.thelastmileracing.com Phone: 860-456-4451

================================================== ==============================================
***** Official Results *****
================================================== ==============================================

Place TmPl No. Name

School

Time Pace
----- ---- ---- ------------------ ----------------
----- -----

1

1 281 MaryKate Champagne Providence Colla

17:31 5:38

2

2 287 Roecker Sam

Providence Colla

17:43 5:42

3

3 123 White Becca

Quinnipiac

17:57 5:47

4

4 351 Kimberly *DeLoreto Sacred Heart Uni

18:03 5:49

5

5 284 Rebecca FfrenchO'C Providence Colla

18:07 5:50

6

6 132 Perron Emma

Providence Colla

18:11 5:51

7

7 263 Jennifer Nelson

Monmouth Univers

18:14 5:52

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 22 of 29

8
18:18
9
18:20 10
18:27 11
18:28 12
18:31 13
18:32 14
18:33 15
18:36 16
18:38 17
18:40 18
18:42 19
18:45 20
18:47 21
18:47 22
18:59 23
19:00 24
19:01 25
19:02 26
19:02 27
19:05 28
19:11

8 119 Stevens Kristin QUINNIPIAC

5:54

9 398 Christine Vogel UCONN

5:54

10 323 Faust Amanda

Quinnipiac

5:57

11 286 Sara Graney

Providence Colla

5:57

12 275 Kinsella Megan

Mount St. Mary's

5:58

13 124 Faust Brianna

Quinnipiac

5:58

14 289 Schumacher Arnie

Providence Colla

5:59

15 393 Cassandra Hunter UCONN

5:59

16 207 MARTHA REYNOLDS Bryant

6:00

17 381 Alasia Griebel

Souhern Connecti

6:01

18 126 Faust Christina Quinnipiac

6:01

19 397 Jeanne Theleen

UCONN

6:03

20 73 Beam Katie

Quinnipiac

6:03

21 218 Elizabeth Eberhard Central Connecti

6:03

22 391 Stephanie Ellis UCONN

6:07

23 396 Christine Meagher UCONN

6:07

24 283 Christina Conley Providence Colla

6:08

25 291 Soja Jessica

Quinnipiac

6:08

26 260 Kelsey Maher

Monmouth Univers

6:08

27 280 Smith Colleen

Mount St. Mary's

6:09

28 215 Katherine Bossarde Central Connecti

6:11

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 23 of 29

29 19:16
30 19:19
31 19:24
32 19:26
33 19:27
34 19:31
35 19:33
36 19:34
37 19:34
38 19:34
39 19:35
40 19:35
41 19:36
42 19:36
43 19:37
44 19:37
45 19:38
46 19:38
47 19:38
48 19:38
49 19:39

29 208 MEGAN ROBERTSON 6:12
285 Murphy Erin 6:13 30 201 EIMEAR BLACK 6:15 31 266 Juliet Smith 6:16 32 355 Megan Papp 6:16
288 Laura Isabelle 6:17 33 333 Brittney Lane 6:18
65 Lanning Julie
6:18 180 Morelli Rachel
6:18 296 Newcomb Kelly
6:18 34 250 Christine Altland 6:19 35 271 Franke Kathryn 6:19 36 253 Marissa Felicetti 6:19 37 364 Olivia Civardi 6:19
173 Santandreu Martha 6:19 38 390 Allison Cooper 6:19 39 386 Jaclyn Sullivan 6:19 40 392 Brittany Heninger
6:19 41 327 Alyssa Selmquist 6:20 42 262 Lucia Montefusco 6:20
282 Arianna Colella
6:20

Bryant Providence Colla Bryant Monmouth Univers Sacred Heart Uni Providence Colla Sacred Heart Uni Quinnipiac Quinnipiac Quinnipiac Monmouth Univers Mount St. Mary's Monmouth Univers Sacred Heart Uni Quinnipiac UCONN Souhern Connecti UCONN Sacred Heart Uni Monmouth Univers Providence Colla

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 24 of 29

50 19:40
51 19:44
52 19:46
53 19:47
54 19:47
55 19:48
56 19:50
57 19:53
58 19:54
59 19:57
60 19:59
61 20:02
62 20:03
63 20:04
64 20:06
65 20:06
66 20:07
67 20:07
68 20:09
69 20:11
70 20:11

43 228 Elizabeth Crowley College of the H

6:20

44 216 Nicole Coiteux

Central Connecti

6:21

45 360 Michelle Navarro Sacred Heart Uni

6:22

46 383 Kelsey Proctor

Souhern Connecti

6:22

47 332 Brittany Llobell Sacred Heart Uni

6:22

48 221 Megan MacBryde

Central Connecti

6:23

49 379 Megan Carroll

Souhern Connecti

6:23

50 274 Joson Stephanie Mount St. Mary's

6:24

51 213 Amanda Asaro

Central Connecti

6:25

66 Kelly Katie

Quinnipiac

6:25

329 Brianna Castrogiva Sacred Heart Uni

6:26

367 Samantha *Troy

Sacred Heart Uni

6:27

52 252 Amanda Eller

Monmouth Univers

6:28

389 Caitlin Cannon

UCONN

6:28

293 Donadio Hannah

Quinnipiac

6:28

292 Pallotta Paige

Quinnipiac

6:29

328 Acosta Johanna

Providence Colla

6:29

254 Lyndsy Horn

Monmouth Univers

6:29

53 231 Elizabeth Fullerto College of the H

6:29

267 Erin Szulewski

Monmouth Univers

6:30

259 Emily MacEwen

Monmouth Univers

6:30

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 25 of 29

71 20:16
72 20:20
73 20:21
74 20:22
75 20:23
76 20:26
77 20:28
78 20:29
79 20:29
80 20:32
81 20:39
82 20:39
83 20:45
84 20:46
85 20:49
86 20:51
87 20:58
88 20:59
89 21:00
90 21:03
91 21:03

295 Airoldi Abby

Quinnipiac

6:32

268 Nicole Wojciechows Monmouth Univers

6:33

54 237 Allison Hunter

College of the H

6:33

331 Brigid Paddock

Sacred Heart Uni

6:34

290 Malloy Kelly

Quinnipiac

6:34

261 Macey Marko

Monmouth Univers

6:35

55 278 Scott Desiree

Mount St. Mary's

6:36

56 225 Katelyn Andree

College of the H

6:36

294 Zielinsi Valerie Quinnipiac

6:36

57 248 Vicki Tiedeman

College of the H

6:37

345 Erin *McPherson Sacred Heart Uni

6:39

70 Hammerton Kaitlyn Quinnipiac

6:39

67 Humphreys Jill

Quinnipiac

6:41

354 Mary St. Thomas

Sacred Heart Uni

6:41

178 Masa Patty

Quinnipiac

6:42

251 Alex Casares

Monmouth Univers

6:43

58 243 Sarah Mellea

College of the H

6:45

347 Erin O'Shea

Sacred Heart Uni

6:45

59 229 Kerry Dunne

College of the H

6:46

242 Katherine Marrone College of the H

6:47

297 Cyr Ashley

Quinnipiac

6:47

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 26 of 29

92 21:04
93 21:06
94 21:07
95 21:13
96 21:17
97 21:18
98 21:18
99 21:23
100 21:25
101 21:28
102 21:29
103 21:34
104 21:34
105 21:40
106 21:44
107 21:47
108 21:50
109 21:58
110 22:00
111 22:11
112 22:14

60 270 Earley Megan 6:47
353 Lauren Gruchala 6:48
230 Allison Fimognari 6:48
339 Dana Troy 6:50
258 Stacey Lepes 6:51 61 277 Praydis Christina 6:52
265 Mackenzie Roche 6:52
344 Elizabeth Corvese 6:53
245 Martha Quinn 6:54 62 378 Charlene Boria 6:55
241 Kathleen Kasper 6:55
269 Clark Molly 6:57
257 Kaitlyn Kramer 6:57 63 204 LAUREN GANIM 6:59 64 380 Sarah Grenier 7:00
232 Mary Fullerton 7:01
376 Teresa Gagliostro 7:02
358 Melissa Santoro 7:05
234 Emma Healy 7:05
362 Moira Hilt
7:09 279 Skidmore Dianne
7:10

Mount St. Mary's Sacred Heart Uni College of the H Sacred Heart Uni Monmouth Univers Mount St. Mary's Monmouth Univers Sacred Heart Uni College of the H Souhern Connecti College of the H Mount St. Mary's Monmouth Univers Bryant Souhern Connecti College of the H Sacred Heart Uni Sacred Heart Uni College of the H Sacred Heart Uni Mount St. Mary's

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 27 of 29

113 22:17
114 22:20
115 22:21
116 22:23
117 22:23
118 22:31
119 22:33
120 22:40
121 22:51
122 23:03
123 23:14
124 23:16
125 23:20
126 23:31
127 23:36
128 23:46
129 23:46
130 23:54
131 24:24
132 25:02
133 25:46

65 382 Katelyn Morrell

Souhern Connecti

7:11

256 Kristen Kearns

Monmouth Univers

7:12

337 Catherine Westby Sacred Heart Uni

7:12

326 Alexandra Smith Sacred Heart Uni

7:13

66 222 Rebecca Palmer

Central Connecti

7:13

343 Elizabeth *Brombac Sacred Heart Uni

7:15

334 Caitlin Clark

Sacred Heart Uni

7:16

67 219 Nicole Frantz

Central Connecti

7:18

246 Katherine Rochford College of the H

7:21

68 206 EMILEIGH GILFOY Bryant

7:25

377 Kiara Bonilla

Souhern Connecti

7:29

224 Larkin Sarah

Unattched

7:30

366 Samantha Gillis

Sacred Heart Uni

7:31

214 Shayna Bartell

Central Connecti

7:35

238 Abigail Hynes-Hous College of the H

7:36

69 203 KAITLYNN CAMPBELL Bryant

7:39

324 Alessandra Pacheco Sacred Heart Uni

7:39

240 Stephanie John

College of the H

7:42

211 Bousquat Sara

Unattched

7:51

370 Tara Thomas

Sacred Heart Uni

8:04

350 Justine Ameye

Sacred Heart Uni

8:18

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 28 of 29
9/11/2010 1:05PM

Case 3:09-cv-00621-SRU Document 196-1 Filed 09/27/10 Page 29 of 29

QU cc 2010 womens oversall.txt

QUINNIPIAC UNIVERSITY INVITATIONAL Hamden, Ct september 18, 2010

WOMEN'S 5K RESULTS

Place Tmpl No. Name

Yr school

Time

================== ================ -----

1 1 35 Rebecca white

so Quinnipiac

18:13

2 2 18 Amanda Faust

Fr Quinnipiac

18:41

3 3 19 Brianna Faust

Fr Quinnipiac

18:53

4 4 20 christina Faust Fr Quinnipiac

19:03

5 5 15 Katie Beam

Jr Quinnipiac

19:05

6 6 31 Jessica so~a

Fr Quinnipiac

19:07

7 1 47 Kristen Ma oney Jr Stonehill

19:08

8 7 33 Kristen stevens sr Quinnipiac

19:10

9 1 84 Clare Kane

Fr Yale

19:12

10 2 44 Lynley Joynt

so Stonehill

19:13

11 8 34 Andrea szarkowicz so Quinnipiac

19:15

12 9 24 Julie Lanning

Jr Quinnipiac

19:20

13 3 48 caroline McBride so Stonehill

19:24

14 10 29 PaiTe Pallotta

so Quinnipiac

19:24

15 4 37 Jil Alves

Jr Stonehill

19:26

16 5 55 Stephanie wilson so Stonehill

19:34

17 11 28 Kelly Newcomb

Fr Quinnipiac

19:36

18 6 40 Lindsay Booth

sr Stonehill

19:37

19 12 30 Martha santandreu Jr Quinnipiac

19:38

20 7 52 Amanda Tripodi

sr Stonehill

19:39

21 8 39 chelsea Bishop

Fr Stonehill

19:40

22 9 50 Emily Regan

Fr Stonehill

19:44

23 13 23 Kaitie Kelly

Jr Quinnipiac

19:51

24 10 38 sarah Biggers

Fr Stonehill

19:55

25 2 79 wendy Dewolf

Fr Yale

19:59

26 14 17 Hannah Donadio

Jr Quinnipiac

20:04

27 15 27 Rachel Morrell

Jr Quinnipiac

20:08

28 11 41 Jordan campbell Fr Stonehill

20:13

29 16 25 Kelly Malloy

Fr Quinnipiac

20:19

30 12 43 Jessica Jarrard so Stonehill

20:21

31 17 22 Jill Humphre)s

so Quinnipiac

20:24

32 18 14 Abigail Airo di Jr Quinnipiac

20:25

33 19 21 Kaitlynn Hammerton so Quinnipiac

20:31

34 13 49 Alexis Monahan

so Stonehill

20:33

35 20 26 Patty Massa

so Quinnipiac

20:37

36 3 83 Kristin Johnson Jr Yale

20:39

37 4 81 Phoebe Gaston

so Yale

20:47

38 14 42 Maura Ferrarini Jr Stonehill

20:53

39 21 36 valerie Zielinski Fr Quinnipiac

20:59

40 22 16 Ashley Cyr

Fr Quinnipiac

21:19

41 15 45 MO11 y Kall a

Fr Stonehill

21:42

42 16 46 Jesse Kilpatrick so stonehill

21:54

43 17 51 Christina Scanlon Fr Stonehill

21:54

44 5 85 celia Stockwell sr Yale

22:56

Page 1

Page 1

 
 Case 3:09-cv-00621-SRU Document 225-2 Filed 12/22/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated; and ROBIN LAMOTT SPARKS, individually,

X CIVIL ACTION NO: 3:09-CV-00621 (SRU)

Plaintiffs,

against

QUINNIPIAC UNIVERSITY,

Defendant. X

MARK A. THOMPSON, PhD declares, under penalty of perjury, pursuant to 28 U.S.C. § 1746,

that the following is true and correct:

1. I am the Senior Vice President for Academic and Student Affairs at Quinnipiac University, and I submit this declaration in support ofQuinnipiac's Motion to Lift the Court's Injunction.

Roster Sizes and Undergraduate Enrollment

2. In 2011-12, Quinnipiac has and/or plans to have 314 female athletes (65.01 %) and 169 male athletes (34.99%). A chart detailing how many male and female athletes participated and/or plan to participate in varsity athletics in 2011-12 is attached hereto as Exhibit A. The numbers reflected in this chart are the actual number of athletes on each team as of the first date of competition for all teams other than acrobatics and tumbling and outdoor track and field,

8922/60224-002 current/26031 052v2

12/15/2011 6.16 pm

Case 3:09-cv-00621-SRU Document 225-2 Filed 12/22/11 Page 2 of 5

which have not yet completed their first date of competition. The numbers for these two teams are the approved roster numbers.
3. The undergraduate population in 2011-12 was comprised of3,735 women (62.37%) and 2,253 men (37.63%).
4. In 2010-11, without counting acrobatics and tumbling athletes, Quinnipiac had 264 female athletes (61.54%) and 165 male athletes (38.46%).
5. The undergraduate population in 2010-11 was comprised of 3,700 women (63.15%) and 2,159 men (36.85%).

Women's GolfTeam
6. Quinnipiac added a varsity women's golf team that began competing in the 201011 academic year.
7. Quinnipiac employs a women's golf coach; the golf coach conducts off-campus recruiting for the team; the University provides scholarships to aid in recruiting golf athletes; the golfteam competes against other collegiate varsity teams; the golf team practices for competitions; and, the University provides athletes on the golf team with the many benefits that come with being a varsity athlete at the University (e.g., power hours, medical assistance, training, community service).

Women's Rugby Team 8. Quinnipiac added a varsity women's rugby team that began competing in the
2011-12 academic year.

2
8922/60224-002 current/26031 052v2

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Case 3:09-cv-00621-SRU Document 225-2 Filed 12/22/11 Page 3 of 5

9. Quinnipiac hired a rugby coach and created a women's rugby team in the 2010-11 academic year, so the team could begin practicing and competing in scrimmages against other collegiate teams as preparation for competition as a varsity team in 2011-12.

10. The University provided scholarships to aid in recruiting rugby athletes for the 2011-12 academic year; the rugby team competes against other collegiate varsity and club teams; the rugby team practices for competitions; and, the University provides athletes on the rugby team with the many benefits that come with being a varsity athlete at the University (e.g., power hours, medical assistance, training, community service).

11. Although there are currently only five varsity rugby teams in the NCAA, Quinnipiac competed in a significant number of matches against these varsity teams and had other matches against well-established club teams that provide formidable competition.

Women's Track and Field Teams
12. On September 24, 2010, Quinnipiac notified its coaches and all student athletes, including the women's cross country, indoor track and field and outdoor track and field teams, in writing of its policy that no student is required to pmiicipate in one spmi in order to pmiicipate in a different sport. Quinnipiac reminded all coaches ofthis policy in its 2011-12 Athletics & Recreation Staff Policy Handbook.

Acrobatics and Tumbling

13. During 2011-12, the A&T team will compete exclusively under the wellestablished rules created by the National Collegiate Acrobatics and Tumbling Association ("NCATA").

3
8922/60224-002 currenU26031 052v2

12/15/20116·16pm

Case 3:09-cv-00621-SRU Document 225-2 Filed 12/22/11 Page 4 of 5

14. The NCATA has by-laws and enforcement mechanisms for ensuring teams follow the rules set forth by the NCATA. Furthermore, the NCATA has partnered with USA Gymnastics such that all NCATA meets are sanctioned by USA Gymnastics.

15. The A&T team competes exclusively against collegiate varsity teams that are members of the NCATA.

16. rules.

Quinnipiac' s team participates in a progressive championship under NCATA

17. Mary Ann Powers, the coach of Quinnipiac' s A&T team, conducted off-campus recruiting for the 2011-12 season.

DATE~ I

4
8922/60224-002 current/26031 052v2

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Case 3:09-cv-00621-SRU Document 225-2 Filed 12/22/11 Page 5 of 5

EXHIBIT A 2011-12 Athletic Participation*

Male Participants

Basketball

18

Baseball

31

Field Hockey

Soccer

25

Tennis

10

Lacrosse

44

Cross Country

13

Ice Hockey

28

Indoor Track and Field

Outdoor Track and Field Softball

Volleyball

Golf

Acrobatics & Tumbling

Rugby Total

169 (34.99%)

Female Participants
15
22 24
11
30 24 27 33 35 16 14
11
32 20 314 (65.01 %)

These numbers include three athletes on the men's lacrosse team who have exhausted their eligibility under NCAA rules (and therefore do not pmticipate on the team), but are still receiving athletic scholarships from Quinnipiac. These numbers also include one female athlete who receives an athletic scholarship from the ice hockey team, but no longer participates on that team - she is also a member of the women's golf team, and counts as a member of that team as well .

5
8922/60224-002 current/26031 052v2

12/15/2011 6:16pm

 
 Case 3:09-cv-00621-SRU Document 274 Filed 06/25/12 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER, :

ERIN OVERDEVEST, KRISTEN

:

CORINALDESI and LOGAN RIKER,

:

individually and on behalf of all those similarly :

situated; and ROBIN LAMOTT SPARKS,

:

individually,

:

PLAINTIFFS

:

:

v.

:

:

QUINNIPIAC UNIVERSITY,

:

DEFENDANT

:

Class Action Case No. 3:09-CV-621(SRU)
June 25, 2012

SUPPLEMENTAL STIPULATIONS OF FACT
1. QU did not survey its students or otherwise assess their interests and abilities before deciding to offer rugby as a varsity sport.
2. Currently, only the men’s and women’s basketball and ice hockey teams practice and compete at the TD Bank Center on a regular basis. The acrobatics and tumbling team hosts all of its home competitions at the TD Bank Center.
3. Currently, only the men’s and women’s basketball and ice hockey teams regularly use the weight room and exercise facility at the TD Bank Center.
4. Currently, only the men’s and women’s basketball and ice hockey teams regularly use the training facility at the TD Bank Center.
5. Currently, only the men’s and women’s basketball and ice hockey teams have permanent locker rooms assigned at the TD Bank Center.
6. As compared to athletic facilities at other Division I institutions, the TD Bank Center is a top-of-the-line facility.
7. Plaintiff’s Exhibit 204 is a chart prepared by Jack McDonald describing athletics facilities at Quinnipiac. The chart contains the following inaccuracies: the baseball competition venue is not a turf field; the women’s cross country team shares a locker room; the women’s indoor track team shares a locker room; the women’s outdoor track team shares a locker room; the rugby team shares a locker room; the women’s soccer team shares a locker room; the women’s softball team shares a locker room; the men’s and women’s tennis assistant coaches do not have their own offices; the rugby field’s width does not violate any rules and is suitable for competitions.

Case 3:09-cv-00621-SRU Document 274 Filed 06/25/12 Page 2 of 4
8. Kristopher Czaplinski, a former assistant volleyball coach at Quinnipiac, was called to Jack McDonald’s attention as a potential interim volleyball coach by a member of the volleyball team after Coach Sparks was dismissed.
9. Jack McDonald told Coach Czaplinski that he did not have to give up his current job when he accepted the position as interim volleyball coach, provided that he could be present by the beginning of the team’s practice each day. This allowance was made only for the period while Coach Czaplinski was serving as the interim coach, which was outside of the volleyball team’s traditional season in the 2011-12 academic year. Quinnipiac is currently undertaking a search for a full time volleyball coach.
10. In 2006, Jack McDonald conducted an investigation of potential varsity sports Quinnipiac might add, as shown in Exhibit KD. These sports included women’s rugby and what was known at the time as competitive cheer.
RESPECTFULLY SUBMITTED, THE PLAINTIFFS
By: /s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440) Alex V. Hernandez (ct08345) Pullman & Comley 850 Main Street Bridgeport, CT 06604 (203) 330-2129 (phone) (203) 576-8888 (fax) jorleans@pullcom.com ahernandez@pullcom.com
Kristen Galles (pro hac vice) Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 (703) 683-4491 (phone) (703) 683-4636 (fax) kgalles@comcast.net
Sandra J. Staub (ct28408) Legal Director ACLU Foundation of Connecticut 330 Main Street Hartford, CT 06106 (860) 471-8471 (phone) (860) 586-8900 (fax) staub@acluct.org Attorneys for the Plaintiffs

Case 3:09-cv-00621-SRU Document 274 Filed 06/25/12 Page 3 of 4
THE DEFENDANT, QUINNIPIAC UNIVERSITY
By: /s/ Edward S. Brill_____________ Edward A. Brill Federal Bar No. phv015747 Susan D. Friedfel Federal Bar No. phv03585 1585 Broadway New York, NY 10036 Tel: 212.969.3000 Fax: 212.969.2900 ebrill@proskauer.com sfriedfel@proskauer.com Attorneys for the Defendant

Case 3:09-cv-00621-SRU Document 274 Filed 06/25/12 Page 4 of 4 CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of June, 2012, a copy of the foregoing SUPPLEMENTAL STIPULATIONS OF FACT was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF.
/s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440)
ACTIVE/73061.1/JORLEANS/3152375v1

 
 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated, and ROBIN LAMOTT SPARKS, individually, Plaintiffs,
v.
QUINNIPIAC UNIVERSITY, Defendant.

No. 3:09-cv-621 (SRU)

RULING ON DEFENDANT’S MOTION TO LIFT INJUNCTION

TABLE OF CONTENTS
I. Introduction……………………………………………………………………………..1 II. Findings of Fact………………………………………………………………..............4
A. Women’s Golf……………………………………………………………………...5 B. Women’s Acrobatics and Tumbling (Formerly Competitive Cheer)…………........5 C. Women’s Rugby…………………………………………………………………..14 D. Women’s Indoor and Outdoor Track……………………………………………..19 E. Quinnipiac’s Counting of Athletic Participants…………………………………...22 III. Standard of Review…………………………………………………………………26 A. Standard for Modifying or Dissolving Injunctions……………………………….26 B. Title IX: Statutory and Regulatory Background…………………………………30
1. The Statute……………………………………………………………………...30 2. The Regulations………………………………………………………………...30 3. The Policy Interpretation………………………………………………………33
a. The Three-Part Test………………………………………………………..35 b. The Levels-of-Competition Test…………………………………………..37 4. The Policy Clarifications………………………………………………………38 a. Substantial Proportionality (Prong One of the Three-Part Test)…………..39
i. “Participants” Defined………………………………………………...40 ii. “Participation Opportunities” Defined………………………………..42 b. Equivalent Competition (Prong One of the Levels-of-Competition Test)...48 c. Summary…………………………………………………………………..57 IV. Conclusions of Law………………………………………………………………….60 A. Substantial Proportionality (Prong One of the Three-Part Test)………………….61 1. Countable “Participation Opportunities”……………………………………..61 a. Women’s Golf……………………………………………………………..61 b. Women’s Acro…………………………………………………………….63
i. Recognition by the NCAA or Other Authorities………………….64 ii. Intrinsic Factors………………………………………………….66 iii. Extrinsic Factors…………………………………………………67 iv. Conclusion………………………………………………………...69 c. Women’s Rugby…………………………………………………………...70 i. Recognition by the NCAA or Other Authorities………………….70 ii. Intrinsic Factors………………………………………………….72 iii. Extrinsic Factors…………………………………………………72 iv. Conclusion………………………………………………………...76 d. Women’s Indoor and Outdoor Track……………………………………...79 i. Runners Who Were Injured and Did Not Compete………………..80 ii. Runners Who Quit the Team and Did Not Compete…………….....82 2. Calculating “Substantial Proportionality”…………………………………….84 B. Equivalent Competition (Prong One of the Levels-of-Competition Test)………....86 C. Equitable Considerations…………………………………………………………...91 V. Conclusion…………………………………………………………………………….96

I. Introductio n The year 2012 marked the fortieth anniversary of the sex discrimination statute known as
Title IX. See Education Amendments of 1972, Pub. L. No. 92-318, Title IX, §§ 901-907, 86 Stat. 235, 373-375 (codified at 20 U.S.C. § 1681, et seq.). Born of congressional concerns about “‘massive, persistent patterns of discrimination against women in the academic world,’” McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 286 (2d Cir. 2004) (quoting 118 CONG. REC. 5804 (1972) (statement of Sen. Bayh)), the law prohibits educational institutions that receive federal funds from engaging in sex-based discrimination in the programs and activities they sponsor, including athletics. In the two score years since its enactment, Title IX has marshaled significant change in public attitudes about, and opportunities for, women in sport. Yet despite that progress, “Title IX has not ended the long history of discrimination against females in sport programs; many educational institutions continue to place male sport programs in a position of superiority.” Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 916 (7th Cir. 2012). Indeed, this case demonstrates that, even forty years later, Title IX still has promises to keep.
In March 2009, defendant Quinnipiac University (“Quinnipiac” or the “University”) announced plans to trim its athletics budget for the 2009-10 academic year by, inter alia, eliminating its women’s volleyball team and creating a new varsity women’s sport: competitive cheerleading.1 Shortly thereafter, the plaintiffs, members of the Quinnipiac women’s volleyball team and their coach,2 filed suit alleging that Quinnipiac’s proposed actions violated Title IX and
1 The University also decided to cut the men’s golf and track teams, and employed an aggressive roster management program for its remaining teams.
2 Plaintiffs Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, and Logan Riker were varsity volleyball players, and plaintiff Robin Lamott Sparks was their coach.
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the regulations promulgated to enforce it.3 Although the plaintiffs asserted multiple theories under Title IX, the case was bifurcated so that plaintiffs could proceed to trial on their primary claim first: that Quinnipiac discriminated on the basis of sex in its allocation of athletic participation opportunities.
Following a bench trial in June 2010, I concluded that Quinnipiac discriminated on the basis of sex during the 2009-10 academic year by failing to provide genuine athletic participation opportunities in numbers substantially proportionate to its female undergraduate population. Biediger v. Quinnipiac Univ., 728 F. Supp. 2d 62, 64 (D. Conn. 2010). That conclusion was principally based on two subsidiary determinations. First, I determined that the University’s competitive cheerleading team did not qualify as a varsity sport for purposes of Title IX and, therefore, its members could not be counted as athletic participants under the statute. Id. at 99101. Although I indicated that “[c]ompetitive cheer may, some time in the future, qualify as a sport under Title IX,” I ultimately concluded that the activity was, at present, “too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation

The plaintiffs have since withdrawn all claims asserted on behalf of Sparks, individually. See Stipulation of Dismissal of the Claims of Robin Lamott Sparks (doc. # 284).
3 On May 22, 2009, I granted the plaintiffs’ motion for a preliminary injunction, holding that the manner in which Quinnipiac managed its varsity rosters—by setting artificial ceilings for men’s varsity teams and floors for women’s varsity teams—deprived female athletes of equal athletic participation opportunities. See Biediger v. Quinnipiac Univ., 616 F. Supp. 2d 277 (D. Conn. 2009). Thereafter, on May 20, 2010, I certified the following class of plaintiffs seeking injunctive relief, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure:

All present, prospective, and future female students at Quinn ipiac University

who are harm ed by and want to

end Quinnipiac U niversity’s sex

discrimination in: (1) the allocation of athletic participation opportunities; (2)

the allocation of athletic financial assistance; and (3) the allocatio n of

benefits provided to varsity athletes.

Biediger v. Quinnipiac Univ., No. 09cv621 (SRU), 2010 WL 2017773, at *8 (D. Conn. May 20, 2010).
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opportunities for students.” Id. at 64. Second, although cross-country, indoor track, and outdoor track are treated as separate sports, I determined that Quinnipiac could not count all female runners who participated in cross-country, indoor track, and outdoor track three separate times. Quinnipiac’s practice of requiring female cross-country runners to participate on the indoor and outdoor track teams, and its treatment of track essentially as an adjunct of cross-country, demonstrated that certain cross-country runners who were injured or red-shirted during the indoor and outdoor track seasons should not be counted under Title IX because their experiences on the track teams did not amount to genuine athletic participation opportunities.4 Id. at 107-08.
Having found Quinnipiac in violation of Title IX, I permanently enjoined the University from continuing to discriminate against its female students by failing to provide equal athletic participation opportunities. Id. at 114. Because cutting then-current women’s varsity teams would only exacerbate the problem, I also ordered that Quinnipiac not eliminate its women’s volleyball team, at least until the University implemented changes sufficient to bring it into full compliance with Title IX. Id. That decision, and the legal framework it adopted, was later affirmed on appeal. See Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012).
Quinnipiac has now moved to lift the injunction pursuant to Federal Rule of Civil Procedure 60(b). Quinnipiac claims that changes to its athletics program over the past two years have brought the school into statistical compliance with Title IX and, as a result, the injunction should no longer have prospective application. A bench trial on Quinnipiac’s motion was held in June 2012. Based on the trial testimony, the parties’ stipulations, and the admitted exhibits, the following constitutes the court’s findings of fact and conclusions of law pursuant to Federal Rule
4 I also found that, based on the evidence produced at trial, Quinnipiac was no longer engaged in the same roster manipulation that spurred my preliminary injunction order. Biediger, 728 F. Supp. 2d at 110.
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of Civil Procedure 52(a). For the reasons explained below, Quinnipiac’s motion to lift the
injunction (doc. # 225) is DENIED.
II. Findings of Fact
Quinnipiac University is a private, coeducational institution located in Hamden,
Connecticut. Quinnipiac is a member of the National Collegiate Athletic Association
(“NCAA”5), and belongs to the NCAA’s most competitive athletic division: Division I.6 The
University competes in the Northeastern Conference (“NEC”), a regional intercollegiate athletics
organization to which ten other Division I schools belong. When this case commenced in 2009,
Quinnipiac sponsored seven men’s varsity teams—baseball, basketball, cross-country, ice
hockey, lacrosse, soccer, and tennis—alongside twelve women’s varsity teams—basketball,
competitive cheerleading, cross-country, field hockey, ice hockey, indoor track and field,
lacrosse, outdoor track and field, soccer, softball, tennis, and volleyball.
5 Founded in 1906, the NCAA is the largest organization of intercollegiate athletic programs in the nation, with more than 1,100 member schools. See Expert Report of Judith Sweet, at 3 (Pls.’ Ex. 202) (“Sweet Report”). The NCAA establishes rules and policies that govern most aspects of its members’ varsity athletic programs, including recruitment, scholarship allocation, and competitive scheduling. The association currently sponsors national championships in nineteen men’s sports as well as twenty women’s sports, and has adopted official rules of play for each of those sports. See id.
6 Generally speaking, the NCAA’s membership is divided into three separate competitive divisions: Division I, Division II, and Division III. Division I represents the highest level of varsity athletic competition, and schools must undergo a rigorous certification process in order to join its ranks. For example, Division I schools must meet the NCAA’s minimum requirements in the number of sports sponsored for men and women, the number of athletic scholarships awarded, the process for recruiting athletes, and the amount of financial resources committed to the school’s overall athletics program. See Sweet Report at 4. Division II and III schools are subject to fewer requirements and commit fewer resources to athletics. Accordingly, Division II and III teams compete at a lower level of competition. Id. Lastly, some smaller four-year colleges that lack the resources for NCAA membership, but still wish to offer intercollegiate athletics, join the National Association for Intercollegiate Athletics (“NAIA”), which functions as a separate governing organization for approximately 350 institutions. NAIA schools, however, typically compete at a substantially lower level than NCAA Division I schools. Id.
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In response to this court’s July 21, 2010 decision, Quinnipiac implemented the following changes to its athletic program: (1) the addition of a varsity women’s golf team; (2) the further cultivation of competitive cheer as a developing sport, having renamed the activity “acrobatics and tumbling”; (3) the addition of a varsity women’s rugby team; and (4) the adoption of a written policy that no student athlete would be required to join additional teams in order to participate in her sport of choice—or more specifically, that women’s cross-country athletes would no longer be required to participate in women’s indoor and outdoor track. The scope and effect of those changes are examined in some detail below.
A. Women’s Golf Quinnipiac created a varsity women’s golf team in the 2010-11 academic year. The plaintiffs do not seriously challenge the quality of athletic participation opportunities that women’s golf provides—and for good reason. Golf is a full-fledged NCAA-championship sport, and is universally recognized as providing a legitimate intercollegiate varsity experience. Moreover, as established at trial, Quinnipiac’s golf team appears to enjoy all the trappings of a varsity sport: the team is led by an experienced coach who receives an operating budget from the University; the coach conducts off-campus recruiting; the University provides scholarships to aid in recruiting athletes; the team competes against other collegiate varsity teams; the team practices for competitions; and the University provides athletes on the team with myriad other benefits that come with being a varsity athlete, such as academic support, medical assistance, training, and opportunities for community service. B. Women’s Acrobatics and Tumbling (Formerly Competitive Cheer) Throughout the 2010-11 and 2011-12 academic years, the University has continued to develop its competitive cheerleading program, which, as noted above, has now been
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denominated “acrobatics and tumbling” (“acro”). To fully understand and evaluate what acro
has become, discussion of its background and origin will be helpful.
In years past, Quinnipiac sponsored a women’s sideline cheerleading team that performed
at men’s basketball games and occasionally entered competitions against other schools.
Following the 2008-09 academic year, however, Quinnipiac decided to transform its traditional
cheerleading team into a new women’s varsity sport for the exclusive purpose of competition, a
sport it aptly named: “competitive cheer.” As I explained in a previous ruling:
Competitive cheer is an outgr owth of traditiona l s ideline che erleading. Competitive cheer teams use m any of th e m oves and tec hniques tha t sidelin e cheer squads have developed over the decad es, and their ro utines look like m ore athletic an d aerob atic sideline cheer orchestrations. But where as side line cheerleaders prim arily work to entertain audiences or solic it crowd reaction at other teams’ games or s chool functions, competitive cheer team s strictly engage in sport. Participants do not perfor m for a crowd’s approval or involvem ent – they compete to win.
Biediger, 728 F. Supp. 2d at 78. Thus, in contrast to traditional sideline cheerleading,
competitive cheer “emphasize[s] the more gymnastic elements of sideline cheerleading, such as
aerial maneuvers, floor tumbling, and balancing exercises, to the exclusion of those activities
intended to rally the watching audience.” Id.
To encourage the development of competitive cheer, Quinnipiac helped create a nascent
intercollegiate organization, the National Competitive Stunt and Tumbling Association
(“NCSTA”), with seven other schools: the University of Maryland, Fairmont State University,
the University of Oregon, Azusa Pacific University, Baylor University, Fort Valley State
University, and Ohio State University. Five of these schools—Quinnipiac, Maryland, Fairmont
State, Oregon, and Azusa Pacific—sponsored varsity competitive cheer squads for the 2009-10
academic year; the other three were planning to sponsor a varsity team in the near future. The
NCSTA was formed independent of the NEC or any other athletic conference.
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Following a series of organizational meetings, the NCSTA eventually defined the sport’s four positions: flyers, who are thrown in the air and perform various spins and flips; back spots, who provide support and are responsible for directing groups on a team; and main and support bases, who are responsible for supporting and lifting flyers. In addition, the NCSTA developed an initial set of rules for its competitions. A team’s score is a composite of six discrete events: the stunt, tumble, pyramid, basket toss, partner stunt, and team events. The scoring system is based on pre-determined start difficulty values, a system akin to gymnastics. Teams select the routine that their players will perform in each event, and whether the teams meet that score depends on the quality and accuracy of their execution. Final scores are determined by a panel of judges.
Despite its athletic elements and embryonic organizational structure, competitive cheer/acro is not recognized as a sport by the NCAA. Nor does the NCAA recognize competitive cheer/acro as an “emerging sport,” a provisional designation that allows a university to count the activity toward NCAA revenue distribution and minimum sports sponsorship requirements. NCAA Manual §§ 20.02.4-.02.5 (Def.’s Ex. JX).7 Furthermore, the Department of Education has not recognized competitive cheerleading/acro to be a sport, and schools reporting their athletic participation data under the Equity in Athletics Disclosure Act
7 The NCAA adopted the “emerging-sport” designation in the early 1990s to encourage the growth and development of new intercollegiate sports for women. A school’s sponsorship of an emerging sport counts toward membership minimums and revenue distribution requirements. Although the NCAA does not sponsor a national championship for emerging sports, teams must still abide by many of the same NCAA regulations that apply to full-fledged NCAAchampionship sports. Moreover, once an emerging sport has shown sufficient growth, the sport may be upgraded to NCAA-championship status. But, on the other hand, if an emerging sport fails to add enough varsity teams over the course a ten-year provisional period, it may lose its emerging-sport status altogether. See Sweet Report at 10-12.
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(“EADA”)8 are instructed not to report their cheerleading rosters unless they have received a letter from the Department of Education’s Office of Civil Rights determining that their cheer squads are legitimately engaged in sport. See Dep’t of Educ., Office of Postsecondary Educ., The User’s Guide for the Equity in Athletics Act Web-Based Data Collection (2009), at 19, 21, attached as Ex. L to Expert Report of Donna Lopiano (Pls.’ Ex. 201). To date, the agency has never issued a letter counting cheerleading or acro as a varsity sport.
Following a bench trial in June 2010, this court joined that near-uniform consensus, concluding that Quinnipiac’s competitive cheerleading program was not—at least not yet—an intercollegiate varsity sport for purposes of Title IX. Apart from the lack of recognition by the NCAA and other authorities, my determination was based on the structure, administration, team preparation, and competitive schedule of the cheer program. Specifically, I identified three pivotal shortcomings that distinguished cheer from every other Division I varsity team sponsored by the University: (1) the head coach’s inability to engage in off-campus recruiting; (2) the team’s erratic regular season, which was marred by inconsistency in terms of the rules of play and the quality of opponents, including events against club and even high-school teams; and (3) the team’s perfunctory post-season competition, which consisted of an open invitational tournament that did not rank, seed, or exclude teams on the basis of their regular season record, and imposed new rules of competition not followed during the regular season. Biediger, 728 F. Supp. 2d at 99-100. As I stated in that decision, “[a]lthough I have only identified three areas where the University falls short, those areas are highly important, if not essential, to the experience of participating on an intercollegiate varsity team.” Id. at 100 (emphasis added).
8 The EADA is a law separate from Title IX that requires an educational institution receiving federal funding and participating in intercollegiate athletics to report its athletic participation data for men and women to the Department of Education. 20 U.S.C. § 1092(g).
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Unfortunately, Quinnipiac mistook my narrow ruling for a three-point blueprint for
turning its budding competitive cheer team into a fully-blossomed intercollegiate varsity sport.
The University spent the last two years tweaking its cheer—now “acro”—program to remedy
each of the specific elements I previously identified as deficient. As a result of recent changes,
which I will examine below, Quinnipiac now argues that the team not only has a new name, but
new prospects for recognition as an intercollegiate sport as well.
To Quinnipiac’s credit, a number of its efforts over the past two years have been successful.9 First, the acro team’s head coach, Mary Ann Powers, began off-campus recruiting
for the first time in June 2010 and continued to do so throughout the 2010-11 and 2011-12
seasons. Trial Tr. at 315-30. Although the NCAA does not recognize acro as a varsity sport,
Coach Powers nevertheless tailored her recruitment efforts to NCAA standards. Those efforts
paid off, and the talents of several recruited athletes were added to the ranks of Quinnipiac’s
team. Id.
Second, the acro team’s regular season benefited from more consistency in the rules of
play and the quality of opponents. Since July 2010, the NCSTA has changed its name to the National Collegiate Acrobatics and Tumbling Association (“NCATA” 10), and has developed
9 Consistent with factual findings from my previous decision, the evidence at trial generally showed that Quinnipiac continues to provide the acro team with benefits similar to those provided to other varsity teams, including: (1) an operating budget and coaching staff roughly equivalent to other varsity teams; (2) eligibility for awards and recognition; (3) equipment, medical treatment, strength and conditioning training, academic support, community service, and publicity on par with other varsity teams; and (4) regular practice regimens consistent with other teams’ schedules. Moreover, despite the fact that the NCAA does not recognize acro as a varsity sport, the team still followed applicable NCAA rules, such as requiring all participants to be cleared by Quinnipiac’s medical staff before competing and following practice time restrictions. For example, team practice was limited to eight hours in the off-season and twenty hours during the regular season, including competitions.
10 It was the governing body’s decision to change its name to the NCATA that prompted - 9 -

into a more cohesive governing body with its own set of bylaws, rules, and policies. See
NCATA Bylaws Code and Conduct (Def.’s Ex. IA); NCATA Rules and Policies (Def.’s Ex. IB);
NCATA Code of Points (Def.’s Ex. IC). The NCATA has also partnered with USA Gymnastics,
which now sanctions all NCATA competitive events. As a result of this improved structure, for
the 2010-11 and 2011-12 seasons, all of acro’s meets were governed by a consistent set of rules under the NCATA format.11 Further, during both seasons, acro competed solely against collegelevel varsity opponents.12 See Trial Tr. at 339-42.
Third, the opportunity for a genuine post-season championship improved in the past two
years. During the 2010-11 and 2011-12 academic years, Quinnipiac’s acro team participated in a
progressive-style championship under the same NCATA rules that governed regular season play.
Although the NCATA championship remains an open invitational in which every acro team in
the country participates, teams are now seeded according to their regular season records. See id.
at 249-51.
But despite these incremental improvements in structure, administration, and scheduling,
crucial elements of Quinnipiac’s acro program remain unchanged and continue to distinguish the
Quinnipiac to retitle its cheer program “acrobatics and tumbling.” 11 Under the NCATA’s revised rules, two to four teams compete in each meet, which
consists of six discrete events: (1) compulsories; (2) acro; (3) pyramid; (4) toss; (5) tumbling; and (6) the team event. Teams submit their skill sequences a week prior to the meet. For each heat, the maximum score is ten, and the combination of heat scores will result in the overall score for the event. The combination of event scores results in the meet totals. See NCATA Code of Points (Def.’s Ex. IC); Trial Tr. at 230-34.
12 In 2010-11, the team participated in five discrete regular-season events, which were scored as six different competitions, as well as a national championship sponsored by the NCATA. Trial Tr. at 343-44. In the 2011-12 season, the team participated in six regular-season events, which were scored as ten competitions, prior to heading to the national championship. Id. at 344; A&T Competition Schedule – 2011-12 (Def.’s Ex. IG). Quinnipiac’s acro program scored no overall wins this past season, but the team did take home the top score in the pyramid
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team from other Division I varsity sports. First and foremost, the NCAA still has not recognized acro—or any other cheer-
derivation—as an intercollegiate varsity sport. And without that recognition, acro lacks what every other varsity men’s team sponsored by Quinnipiac enjoys: the chance to participate in an NCAA-sponsored championship. Id. at 397. Judith Sweet, the plaintiffs’ sports administration expert, testified credibly that the experience NCAA championships provide is considered “the top of the mountain” by student athletes, and championships sponsored “by other organizations don’t have the same financial resources, and the quality of experience is not the same.” Id. at 438; see also Expert Report of Judith Sweet, at 11 (Pls.’ Ex. 202) (“Sweet Report”).
Second, the NCATA’s recent efforts to win NCAA recognition for acro as an emerging sport have proved fruitless. In December 2010, the NCATA submitted its first emerging-sport proposal to the NCAA’s Committee for Women’s Athletics (“CWA”), the organization responsible for determining whether a newly-developed sport receives provisional recognition as an emerging sport. See Trial Tr. at 267-68; NCATA Emerging Sport Submission (Def.’s Ex. IE). But the NCATA’s proposed format ignited a schism of sorts within the competitive cheer community, which has since splintered into two competing factions with two very different visions of the sport. One faction, led by the NCATA and its membership, has rallied behind the acro format, which emphasizes the gymnastic elements of cheer. The other faction, led by a forprofit entity known as USA Cheer, has put forward a rival format called “STUNT,” which places greater emphasis on the performance-based aspects of traditional cheerleading competitions. See Trial Tr. at 259-60, 275-76; 293-95. Tensions mounted, and in a direct challenge to acro’s viability, STUNT submitted its own emerging-sport proposal to the CWA using its preferred

event final. Trial Tr. at 390.

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format.13 Confronted with competing proposals for cheer-based sports, the CWA held both
proposals in abeyance and instructed the NCATA and STUNT to resolve their differences and resubmit a joint proposal. See id. at 283, 293-95. Unfortunately, the two sides failed to reach an agreement, and in 2011, both the NCATA and STUNT once again submitted competing emerging-sport proposals. Id. at 295; NCATA Emerging Sport Supplemental Submission (Def.’s Ex. ID).
As a result of that discord, acro’s prospects of qualifying as an NCAA emerging sport in the foreseeable future have dimmed considerably since 2010. The ongoing rivalry between the NCATA and STUNT means that the structure of this nascent sport will remain in flux, as some schools adopt one format while others adopt the competing format. Moreover, under NCAA rules, before a putative sport can be recognized as an emerging sport, there must be at least twenty collegiate-level varsity or competitive club teams in existence. See Criteria for Emerging Sports, attached as Ex. 6 to Sweet Report.14 But due, in part, to competition from STUNT, there are currently too few teams operating under the NCATA’s format to support acro as an emerging sport. During the 2011-12 academic year, only six universities sponsored acro teams: Azusa Pacific University, Baylor University, Fairmont State University, the University of Maryland, the University of Oregon, and Quinnipiac. See Trial Tr. at 227. One of those schools—Maryland— has decided to cancel its acro program at the end of the season. Id. In 2012-13, the five
13 STUNT also sponsors its own national championship, separate from acro. See Trial Tr. at 941.
14 Moreover, before the CWA will even consider an emerging-sport proposal, at least ten NCAA-member schools must submit letters of commitment, signed by the president and athletic director, stating that the school already sponsors or intends to sponsor a team in that sport. See Criteria for Emerging Sports, attached as Ex. 6 to Sweet Report.
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remaining schools as well as two others—the University of Massachusetts Dartmouth and Plymouth State University—are expected to sponsor acro programs, bringing the total to seven. Id. at 228. Even looking ahead to 2013-14 and beyond, only three additional schools— Alderson-Broaddus College, Kennesaw State University and Shorter University—have provided letters of commitment, bringing the total to ten.15 Id. at 228, 287-88. With so few programs in existence, there is uncertainty whether acro will be recognized as an emerging sport any time soon.
Third, although Quinnipiac’s acro team competed exclusively against collegiate varsity opponents over the past two seasons, there was significant variation in the declared division level among those opponents. In the 2011-12 academic year, for example, Quinnipiac competed against five different teams (i.e., every other acro team in existence). Of those teams, three belonged to NCAA Division I (Baylor, Maryland, and Oregon); one belonged to NCAA Division II (Fairmont State); and one belonged to the NAIA (Azusa Pacific). See A&T Competition Schedule – 2011-12 (Def.’s Ex. IG); Trial Tr. at 346-47. Of Quinnipiac’s ten regular-season competitions, only six were against fellow NCAA Division I opponents. Put differently, forty percent of Quinnipiac’s regular-season meets were against teams below their declared division level. By comparison, one-hundred percent of Quinnipiac’s men’s teams competed one-hundred percent of the time against fellow Division I teams; not one men’s varsity team played a single regular-season game against below-division opponents. See Lamar Daniel Rebuttal Report, at 67 (Def.’s Ex. HZ).
Lastly, although Coach Powers recruited some athletes off campus, recruitment strategies for a developing sport like acro differ from recruitment strategies for established varsity sports.
15 According to Quinnipiac, there are no acro club teams in existence at the present time. - 13 -

Because no high school in the country—or indeed the world—currently sponsors an acro program, see Trial Tr. at 278, 367, Coach Powers’ recruiting efforts were limited to seeking out student-athletes with a patchwork of skill sets derived from diverse athletic backgrounds, including cheerleading, gymnastics, acrobatics and other sports. Id. at 315, 323-25, 327-29. None of these athletes, however, had any experience competing under the acro format. Thus, unlike every men’s sport at Quinnipiac, Coach Powers was unable to recruit athletes for acro based on their mastery of the specific sport for which they were being recruited. Rather, the coach could only infer whether a recruited athlete’s training in other sports prepared her to compete effectively in acro.
C. Women’s Rugby In the 2011-12 academic year, Quinnipiac began sponsoring a new varsity women’s rugby team. Although Quinnipiac’s team is new, the sport of rugby has been played for about 175 years. Rugby combines elements of football, track, and soccer into a high-intensity sport in which players attempt to move the ball forward, but—somewhat counter-intuitively—are only permitted to pass the ball backwards or sideways. See Trial Tr. at 571. Rebecca Carlson was hired as Quinnipiac’s head coach for rugby in October 2010, and immediately went to work recruiting athletes and preparing the program for its first competitive season, scheduled to commence in less than a year. Id. at 572. Carlson testified that one of the most attractive elements of rugby is the large roster size a single team can support, making the sport much cheaper for a university to sponsor. Id. at 673. Thus, part of her preparations included sending campus-wide emails and hosting a series of informational meetings to spread the word about women’s rugby. Over the course of the year, Carlson met with approximately
See Tr. of Closing Arg. (June 28, 2012) at 54. - 14 -

sixty female students who expressed interest in playing varsity rugby. See id. at 573-76. But after putting these students’ athletic abilities to the test in a series of open tryouts, Carlson eventually whittled down the number of participants by more than half. Id. at 576-577; see also First Date of Competition Squad Lists 2011-12 (Def.’s Ex. HO).
Carlson became NCAA-certified to recruit off campus in February 2011, and conducted some off-campus recruiting in the months that followed. To that end, she traveled to observe top-ranked high school rugby club teams, and contacted high school coaches for information about various athletes in other sports with skills transferable to rugby. Trial Tr. at 580. Those efforts yielded moderate success: Carlson recruited three rugby players for the 2011-12 academic year, two of whom ultimately joined Quinnipiac’s team. Id. at 581-82. Quinnipiac also allocated a total of six scholarships to the team, though less than one-third of those funds were actually awarded to rugby athletes in 2011-12. Id. at 584. The remainder was reserved for future recruits.
Apart from Quinnipiac, only four other colleges in the country sponsor varsity women’s rugby: Bowdoin College, Eastern Illinois University, Norwich University, and West Chester University. Id. at 572. Just one of those institutions—Eastern Illinois—is designated as Division I.16 As a result, the rugby team spent most of its inaugural season playing club teams, rather than varsity opponents. Generally speaking, club teams operate at a lower level of competition and receive less institutional support than do varsity teams. See Sweet Report at 4. Club teams typically receive little or no funding from a school’s athletic program, and must seek out alternative sources of support from student government or recreation departments to supply
16 The other colleges are designated as follows: Bowdoin College (Division III), Norwich University (Division III), and West Chester University (Division II). Trial Tr. at 572.
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coaching, equipment, and training. Id. During the 2011-12 regular season, Quinnipiac’s rugby team competed in a total of ten matches. See Rugby 2011-12 Competition Schedule (Def.’s Ex. JP). Six of those matches were against collegiate club teams. Only four were played against varsity teams. Id.
Women’s rugby is currently recognized by the NCAA as an “emerging sport,” which means that the NCAA does not sponsor any post-season competition, but the sport is otherwise subject to many of the same structural and administrative requirements as full-fledged NCAAchampionship sports. See Sweet Report at 10. Moreover, schools sponsoring women’s rugby may count their teams toward membership minimums and revenue distribution under NCAA regulations. Id.
But women’s rugby’s future within the NCAA is, at best, uncertain. Under NCAA rules, emerging-sport status is merely a provisional designation, and an emerging sport can lose that status if it fails to garner enough support from member institutions. Specifically, an emerging sport risks removal from the list if, after a period of ten years, it fails to add enough varsity teams to make adequate progress toward promotion to NCAA-championship status. Id. at 12; see also NCAA Manual § 20.02.4.2 (Def.’s Ex. JX) (“A sport shall no longer be considered an emerging sport once the sport has been established as a championship sport. Further, an emerging sport is limited to a 10-year time period to become a championship sport unless it can be demonstrated that steady growth has occurred during that time.”). The NCAA’s initial list of emerging sports, released in the early 1990s, originally included nine sports: crew, ice hockey, team handball, water polo, synchronized swimming, archery, badminton, bowling, and squash. Of those sports, more than half have been removed from the list due to lack of growth, including team handball,
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synchronized swimming, archery, badminton and squash.17 See Sweet Report at 10. Rugby was added to the emerging-sports list in 2002, and has therefore reached the
sunset of its ten-year provisional period. Yet despite ten years on the list, a meager five schools—including Quinnipiac—currently sponsor rugby as a varsity women’s sport. Quinnipiac, moreover, is the only Division I school that has added varsity women’s rugby since the sport was added to the list. Id. at 13. By way of comparison, women’s squash was stripped of its emerging-sport status when it reached the ten-year mark in 2011, even though forty-eight schools sponsored varsity teams. Id. Similarly, synchronized swimming was removed when, after ten-years, eleven schools sponsored teams.18 With only five varsity teams in existence, rugby appears to be in serious danger of losing its emerging-sport status in the very near future. Id.
Moreover, no school in the NEC—the regional conference in which every other Quinnipiac team, except acro, competes—sponsors women’s rugby. See Trial Tr. at 625-27. Therefore, Quinnipiac’s team competes in a separate regional league known as the Metropolitan New York Rugby Football Union (“Metro NY”), which operates under the auspices of USA Rugby, the sport’s national governing body.19 Id. at 587-89. Although Quinnipiac’s women’s
17 Women’s crew, ice hockey, water polo, and bowling have since been promoted to NCAA-championship sports after meeting minimum sponsorship requirements. See Sweet Report at 10.
18 Badminton was removed from the list despite sponsorship by fifteen schools, and archery was removed with eight schools participating. After adding no new varsity teams over ten years, team handball was removed as well. See Sweet Report at 13.
19 Coach Carlson testified, however, that USA Rugby has since divided its former territorial units into what it now calls conferences. Thus, beginning in the 2012-13 academic year, Quinnipiac’s rugby team will compete in a conference known as the “Tri-State Conference.” Trial Tr. at 588.
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rugby team is designated a varsity team, every other team competing in Metro NY is a collegiate club team. Indeed, not one other varsity team participates in Quinnipiac’s competitive region. Id. at 590.
Although the NCAA does not sponsor any post-season contests in women’s rugby, USA Rugby sponsors its own national collegiate championship. Id. at 567, 663-64. To qualify, teams must first win their regional playoffs, such as the Metro NY regional. From there, a team must win the conference championship—here, USA Rugby’s Northeast Conference—to qualify for the national tournament. Id. at 604. Although Quinnipiac qualified for the playoffs this past season, the rugby team did not compete, apparently for two reasons. First, as a result of an ice storm, Metro NY decided to cancel the playoffs for the 2011-12 season, and instead sent the highest ranking team—which was not Quinnipiac—to the conference tournament. Id. at 605. But even in the absence of ice, Quinnipiac’s team had already decided to skip the regional playoffs—and, as a result, to forgo any chance at competing for USA Rugby’s national championship. Due to Quinnipiac’s competition schedule, participating in the Metro NY regional playoff would have precluded the team from competing in matches against two of the four other varsity rugby teams currently in existence: Eastern Illinois and West Chester. Id. at 605. Carlson testified that her team could not give up those crucial varsity games. Id.
Quinnipiac has since altered its schedule for future seasons to avoid similar conflicts, but it remains to be seen whether Quinnipiac’s rugby team will ever compete in the regional playoffs, even in years to come. According to Coach Carlson, the current format of the regional and conference tournaments—a format in which teams play a series of matches over three consecutive days—is simply too unsafe for her players. Id. at 606, 663-65. Carlson testified that, for safety reasons, she will not allow her players to compete in any regional or conference
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post-season tournaments so long as those tournaments are structured as back-to-back competitions in a single weekend. Id. at 606, 666.
D. Women’s Indoor and Outdoor Track During the 2010-11 and 2011-12 seasons, Quinnipiac continued to field four running teams: men’s cross-country, women’s cross-country, women’s indoor track, and women’s outdoor track. All four teams are coached by Carolyn Martin, who was promoted to the headcoaching position in 2009. As head coach, Martin is responsible for, inter alia, training her athletes, preparing them for meets, managing the teams’ budgets and operations, and recruiting team members. Historically, Quinnipiac has emphasized cross-country over its other running sports, and this past year, the University’s women’s cross-country team won its seventh NEC title. See id. at 517. Quinnipiac cross-country meets and practices are conducted on campus, but the University has neither an indoor nor an outdoor track for competition. Instead, indoor and outdoor track athletes must compete off campus at a local high school. The University’s indoor track team practices on a track in the school’s recreation center, but the outdoor track team practices off campus. The NCAA recognizes cross-country, indoor track, and outdoor track as three different sports for purposes of athletic eligibility. NCAA Manual § 14.2.3.3 (Def.’s Ex. JX). Each sport imposes its own set of rules and each competes for its own separate championship. Furthermore, the sports have distinct competitive seasons; cross-country competes in the fall, indoor track in the winter, and outdoor track in the spring. Coach Martin, however, has traditionally required her female cross-country athletes—even those who suffered injuries during prior seasons—to join the ranks of the indoor and outdoor track teams as well. On that basis, I previously
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concluded that Quinnipiac could not double or triple count, for purposes of Title IX, injured or red-shirted cross-country athletes who were forced to sign up for indoor and outdoor track but did not—and physically could not—compete in any track events. Biediger, 728 F. Supp. 2d at 106-07. Quinnipiac’s compulsory participation policy smacked of roster manipulation, and “raise[d] questions as to whether simultaneous participation on the women’s cross-country, indoor track, and outdoor track teams at Quinnipiac represented three genuine athletic opportunities, or whether cross-country runners’ mandated participation on the indoor and outdoor track teams was simply a form of alternative off-season training for the cross-country runners, one that allowed Quinnipiac to inflate the rosters of its women’s indoor and outdoor track teams.” Biediger, 691 F.3d at 99.
In the 2010-11 academic year, however, Quinnipiac implemented a new policy: “No student is required to participate in one sport in order to participate in a different sport.” Notice to Athletes Re: Requirement (Email from J. MacDonald), at 2 (Def.’s Ex. HK). Thus, in accordance with that policy, Coach Martin no longer mandates that her cross-country athletes participate in track, too. See Trial Tr. at 511, 793.
Although Martin no longer requires that her cross-country runners join track, many of her athletes continue to do so, even when pre-season injuries might preclude those athletes from actually competing in track meets. According to Martin, running sports have the highest rate of injury among all intercollegiate sports. Id. at 532. Therefore, if an athlete is injured in one running sport (such as cross-country), it is not Martin’s practice to cut that athlete from other teams (such as indoor or outdoor track) if the athlete still wishes to participate. Id.
According to Quinnipiac’s roster count, during the 2011-12 seasons, thirty-two female athletes participated in indoor track and twenty-nine participated in outdoor track. See Lamar
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Daniel Expert Report, at 28-31 (Def.’s Ex. HY). Of those runners, approximately seven indoor track athletes and eight outdoor track athletes did not compete during the regular season due to injury. Moreover, a total of three indoor track players quit the team shortly after the start of the team’s regular competitive season, without participating in a single track event. Id. at 28-29.
Martin testified that, during the indoor and outdoor track seasons, all of the athletes listed on the team rosters practiced, even if they were not scheduled to compete in an upcoming meet. Trial Tr. at 529-30. Injured players were responsible for participating during practice—although, depending on the severity of injury, their practice time often consisted of physical therapy, strength training, conditioning, and other rehabilitative exercises, rather than running. Id. at 53033. All of the athletes, however, were expected to attend team meetings and competitive events. All track team participants were also entitled to coaching, equipment, and other athletic benefits, such as travel and per diem costs for away meets, as well as scholarship aid.
According to Martin’s recollections, all of the injured track team members regularly practiced with the team, even though they did not compete. See id. at 536-54. Quinnipiac’s athletic department, however, failed to keep any written record of attendance at team practices, despite an NCAA requirement to maintain such records. See id. at 840; 905-07. Therefore, there is no documentary evidence whatsoever to corroborate Martin’s testimony concerning her memory of individual participation rates.20
Martin also testified that injured runners regularly attended track competitions. That testimony was corroborated—at least to some degree—by Martin’s score sheets for each track
20 There is reason to doubt Martin’s memory. During trial, Martin testified that it was “hard for [her] to recall all the athletes” and that “it’s hard to keep track of everything” related to coaching four different running teams over the course of the academic year. Trial Tr. at 778. Indeed, without some written record, I think it unlikely that anyone could recall with accuracy individual players’ practice-participation rates over the course of an entire season.
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event, which indicated whether individual runners were injured or redshirted during the meet. See Martin Spreadsheets (Def.’s Ex. JL).
E. Quinnipiac’s Counting of Athletic Participants The University currently sponsors seven men’s varsity athletic teams and fourteen women’s varsity athletic teams, including, inter alia, women’s volleyball, women’s crosscountry, women’s indoor track, women’s outdoor track, women’s golf, women’s rugby, and women’s acro. Dr. Mark Thompson, Quinnipiac’s Senior Vice President for Academic and Student Affairs, is responsible for the operation of the athletics department and supervises the University’s roster management program. Since 2009, Thompson has maintained oversight for setting roster targets for Quinnipiac’s varsity teams and ensured that coaches adhere to those targets. Coaches seeking to add or remove athletes from their teams for any reason must first seek approval from Thompson. Lamar Daniel, the defendant’s Title IX expert, submitted a report in which he analyzed the total number of “participants” in Quinnipiac’s athletic program in 2011-12. Purporting to rely on agency interpretations and practices under Title IX, Daniel defined “participants” as: (1) those individuals whose names appear on the NCAA official eligibility lists at the time of the first competition; (2) those individuals whose names are added to the NCAA official eligibility lists after the first competition during the season; (3) those individuals who practice and/or compete during the regular season; (4) those individuals who receive athletic financial assistance who are red-shirted21 for medical or other reasons but have eligibility remaining;
21 A “red-shirt” refers to an athlete taking advantage of the NCAA regulation permitting an athlete to remain on a team but not compete for a year without losing a year of athletic eligibility. See NCAA Manual § 14.2.1 (Def.’s Ex. JX) (requiring Division I athletes to complete four years of eligibility within five years). An athlete may red-shirt a year because of
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(5) those individuals who left the team for disciplinary or other reasons but continue to receive athl etic f inancial assis tance and ar e elig ible to com pete under NCAA rules; [and]

(6) those individuals who enroll and/or practice during the nontraditional seasons22 only if they receive athletic financial assistance.

Lamar Daniel Expert Report, at 4 (Def.’s Ex. HY). Conversely, Daniel explained that

“participants” are not:

(1) those who are fifth-year students whose eligibility has expired but still receive athletic financial assistance;

(2) those who are medically exempt, i.e., who receive athletic financial assistance but cannot participate because of career-ending injuries;

(3) those who enroll and/or practice during the nontraditional season unless they receive athletic financial assistance for the period; [and]

(4) those who try out and quit or are cut prior to the first contest of the regular season.

Id. Applying this definition, Daniel examined Quinnipiac’s squad lists for 2011-12 and verified

the participant count through interviews with the head coaches of each varsity team sponsored by

the University. Id. Daniel’s results are summarized in the following table.

SPORT MALE
Acro NA Baseball 31 Basketball 16 Field Hockey
Golf NA Ice Hockey
Lacrosse 44 Rugby NA

PARTICIPANTS
NA 28

FEMALE PARTICIPANTS
36 NA 15 22 11 27 30 28

injury or in order to conserve a year’s eligibility while practicing and improving his or her skills.
22 A sport’s “nontraditional” season is the season in which a sports team practices and plays, but in which no championship competition is held in the sport. See Lamar Daniel Expert Report, at 4 n.3 (Def.’s Ex. HY).
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Softball NA

16

Soccer 25

26

Tennis 11

11

Cross-country 13

24

Indoor Track

NA

32

Outdoor Track

NA

29

Volleyball NA

14

TOTALS

168

321

Id. at 2.

According to Quinnipiac, in the 2011-12 academic year, the University had an

undergraduate enrollment of 5,988 students, of which 2,253 (or 37.6%) were male, and 3,735 (or

62.4%) were female. Comparing those enrollment statistics with the calculations summarized

above reveals that Quinnipiac’s total number of athletic participants included 168 male athletes

(or 34.4%) and 321 female athletes (or 65.6%). The University’s counting, if accurate,

demonstrates that Quinnipiac’s athletic participation rates for 2011-12 were not only

proportional to the University’s female undergraduate enrollment, but were in fact over-weighted in favor of women by approximately three percentage points.23 Id. at 4-5.

23 Quinnipiac also submitted raw numerical data regarding its enrollment for the 2010-11 academic year, without any accompanying expert analysis. According to those estimates, 5,869 students were enrolled in the University’s undergraduate program in 2010-11, of which 2,159 (or 36.85%) were male, and 3,700 (or 63.15%) were female. Based on the varsity rosters for the first day of teams’ competitions, 161 male athletes and 303 female athletes participated during the academic year. Using those first-day-of-competition figures, in 2010-11 male athletes made up 34.7%, and female athletes 65.3%, of the University’s varsity athletes.
Although I have taken these additional statistics into consideration, I base my decision on the participation count from the 2011-12 academic year, partly because experts on both sides focused their analysis on the 2011-12 numbers, and because “[n]umbers from the current or most recent, complete competitive season provide the most representative quantification of participation opportunities presently offered.” Cohen v. Brown Univ., 879 F. Supp. 185, 203-04 (D.R.I. 1995), rev’d in part on other grounds, 101 F.3d 155 (1st Cir. 1996).
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Daniel also analyzed the competitive schedules within Quinnipiac’s varsity athletics program for 2011-12. The charts below provide the total number of competitive events and the division level of opponents for men’s and women’s teams.
Men’s Teams

MEN’S TEAMS
Baseball 52 Basketball 29 Cross-country Ice Hockey Lacrosse 17 Soccer 17 Tennis 22

NCAA DIVISION I
7 0 34

NCAA DIVISION II 0 0
0 0 0 0

NCAA DIVISION III 0 0 0 0 0 0 0 0

NAIA
0 0
0 0 0 0

CLUB
0 0 0 0 0 0 0

TOTALS

178

0

0

0

0

TOTAL EVENTS
52 29 7 34 17 17 22
178

Women’s Teams

WOMEN’S TEAMS
Acro Basketball 29 Cross-country Field Hockey Golf 10 Ice Hockey Lacrosse 15 Rugby Soccer 17 Softball 53 Tennis 24 Indoor Track Outdoor Track Volleyball 25

NCAA DIVISION I 6 2
7 0 18
33
3 1
7 0 7 0

NCAA DIVISION II
0
0 0 0 0
0 0 0
0

NCAA DIVISION III 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

NAIA
0 0 0 0 0 0 0 0
0

CLUB
0 0 0 0 0 0 0 6 0 0 0 0 0 0

TOTALS

254

3

0

2

6

TOTAL EVENTS
10 29 7 18 10 33 15 10 17 53 24 7 7 25
265

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See Lamar Daniel Rebuttal Report, at 6-7 (Def.’s Ex. HZ). As can be seen above, Quinnipiac’s men’s teams played all of their regular season contests against Division I opponents. Only women’s teams—specifically, acro and rugby—played against teams ranked below Quinnipiac’s declared division level. Nonetheless, on the basis of these statistics, Daniel opined that the University is now in compliance with Title IX.
The plaintiffs’ competing Title IX expert, Dr. Donna Lopiano, submitted a report of her own in which she challenged Daniel’s calculations. See Expert Report of Donna Lopiano (Pls.’ Ex. 201). Lopiano argues that Daniel’s methodology for counting “participants” under Title IX conflicts with agency regulations. Specifically, Lopiano contends, inter alia, that: (1) acro athletes should not be counted as participants because the acro program still does not qualify as an intercollegiate-level varsity sport under the statute; (2) rugby athletes similarly should not be counted because the rugby team, though clearly engaged in “sport,” is currently operating at a club, rather than varsity, level of competition; and (3) two- and three-sport runners—i.e., athletes who participated in cross-country, as well as indoor track and/or outdoor track—who did not actually compete in multiple sports should not be double- or triple-counted.24 Moreover, Lopiano argues that Daniel failed to appropriately assess the levels of competition that Quinnipiac offers its male and female athletes program-wide. In Lopiano’s view, if the proper methodology is applied, Quinnipiac’s 2011-12 athletic program still fails to meet Title IX’s gender-equity requirements. III. Standard of Review
A. Standard for Modifying or Dissolving Injunctions I begin with a brief overview of the law of injunctive remedies, and the standards
24 Lopiano also challenges Daniel’s counting of two rugby athletes, since neither was cleared to compete under NCAA rules until the last competition of the season. See Trial Tr. at
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governing their modification. Generally speaking, “[a]n injunction is an equitable remedy issued under established principles which guide courts of equity.” Sierra Club v. U.S. Army Corps of Eng’rs, 732 F.2d 253, 256 (2d Cir. 1984). Injunctions come in two basic varieties: preliminary and permanent. A preliminary injunction (including a temporary restraining order), as the name suggests, is issued to preserve the status quo while the parties await a final determination on the merits. Id. A permanent injunction, in contrast, is issued only after a merits hearing, and generally “may not be changed in the interest of the defendants if the purposes of the litigation as incorporated in the decree have not been fully achieved.” Id. (citing United States v. United Shoe Machinery Corp., 391 U.S. 244, 248 (1968)).
Injunctive decrees are creatures of equity, and equity governs their dissolution. See United States v. Eastman Kodak Co., 63 F.3d 95, 101 (2d Cir. 1995) (“[T]he power of a court to modify or terminate a consent decree is, at bottom, guided by equitable considerations.”). For preliminary injunctions, the decision whether to modify or dissolve the order “involves an exercise of the same discretion that a court employs in an initial decision to grant or deny a preliminary injunction,” Weight Watchers Int’l, Inc. v. Luigino’s, Inc., 423 F.3d 137, 141 (2d Cir. 2005), and that “discretion is measured by whether the requested modification effectuates or thwarts the purpose behind the injunction.” Sierra Club, 732 F.2d at 257 (citing Chrysler Corp. v. United States, 316 U.S. 556, 562 (1942)). For permanent injunctions, however, Federal Rule of Civil Procedure 60(b)(5) provides that the final order may be vacated or modified on “just terms” when “applying [the order] prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5). The Rule supplies “a means by which a party can ask a court to modify or vacate a judgment or order if ‘a significant change either in factual conditions or in law’ renders
909. - 27 -

continued enforcement ‘detrimental to the public interest.’” Horne v. Flores, 557 U.S. 433, 447
(2009) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992)); see also In re
Joint E. & S. Dists. Asbestos Litig., 237 F. Supp. 2d 297, 316 (E.D.N.Y. 2002) (Rule 60(b)(5) is
“based on the historic equitable power of the court to modify its decree in light of changed
circumstances”). The burden to prove such “significant change” rests with the party requesting
relief. See Rufo, 502 U.S. at 383 (“[A] party seeking modification . . . bears the burden of
establishing that a significant change in circumstances warrants revision of the decree.”). In
addition, the moving party generally must show that there has been good-faith compliance with
the order and that it is “unlikely that the [enjoined party] would return to its former ways” if the
order is dissolved. Bd. of Educ. of Oklahoma City Pub. Schs. v. Dowell, 498 U.S. 237, 247
(1991). However, once “a durable remedy has been implemented, continued enforcement of the
order is not only unnecessary, but improper.” Horne, 557 U.S. at 450.
The injunction at issue in this case is a permanent injunction, though not necessarily one
intended to remain effective in perpetuity.25 Thus, in order to obtain relief from the injunction
25 The injunction order had two main components: (1) “Quinnipiac University and its officers, agents, servants, and employees are permanently enjoined from discriminating against female students on the basis of sex by failing to provide equal athletic participation opportunities”; and (2) “Quinnipiac University shall not eliminate its women’s volleyball team.” Injunction Order (doc. # 180), at 1. The order stated that “[t]his injunction shall remain in force pending further court order.” Id. In the accompanying memorandum of decision, however, I indicated that, although Quinnipiac “must commit to sponsoring the women’s volleyball team during the 2010-11 season,” the University “is not obligated to continue sponsoring the team beyond that point . . . so long as any decision to eliminate women’s volleyball is accompanied by other changes that will bring the University into compliance with Title IX.” Biediger, 728 F. Supp. 2d at 114.
Thus, although the injunction in this case was issued after a trial on the merits, the component of that order enjoining elimination of the volleyball team was arguably more provisional than it was permanent. That, in turn, raises the question whether the standard for modifying preliminary, rather than permanent, injunctions should apply. Cf. Sierra Club, 732 F.2d at 257 (“[T]he fact that a hearing was held does not transform [the injunction’s] provisional status from one designed to maintain the status quo into a permanent edict. . . . The injunction
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order, Quinnipiac must demonstrate the inequity of the order’s continued enforcement in light of
significantly-changed circumstances. See Fed. R. Civ. P. 60(b)(5); Horne, 557 U.S. at 447; see
also Sierra Club, 732 F.2d at 256 (“[A] court may modify a final or permanent injunction only
where conditions have so changed as to make such relief equitable, i.e., a significant change in
the law or facts.”).
Here, “significant change”—change sufficient to implement a “durable remedy” and
justify dissolution of the injunction—means achieving genuine compliance with Title IX, both
now and for the foreseeable future. See Horne, 557 U.S. at 447, 450; Dowell, 498 U.S. at 247;
see also Evans v. Fenty, 701 F. Supp. 2d 126, 171 (D.D.C. 2010) (“[A]t a minimum, a ‘durable’
remedy means a remedy that gives the Court confidence that defendants will not resume their
violations of plaintiffs’ constitutional rights once judicial oversight ends.”). Thus, before
analyzing Quinnipiac’s current athletic program, I pause to review the statutory and regulatory
framework governing Title IX athletics cases. Much of the relevant law was fully discussed in
was issued as a temporary ‘hold’ in activity . . . [and, t]herefore, the district court need only have applied the same discretion as it had originally, and not require proof of a significant change in circumstances.”).
In my view, however, under the circumstances presented here, there is no meaningful difference between these standards. Under either standard, the heart of this case is whether Quinnipiac’s recent changes to its athletic program are enough to bring the University into full and lasting compliance with Title IX. Thus, even assuming, arguendo, that the order enjoining elimination of the volleyball team was, as a technical matter, more like a preliminary—rather than a permanent—injunction, the discretionary determination whether to dissolve that order would still be guided by the same fundamental inquiry: Has Quinnipiac demonstrated a “significant change” in the manner in which it allocates genuine varsity athletic participation opportunities to women so that the injunction is no longer warranted? See, e.g., Favia v. Indiana Univ. of Pennsylvania, 7 F.3d 332, 344 (3d Cir. 1993) (addressing motion to modify a preliminary injunction in a Title IX case by analyzing whether the defendant-university had “me[t] its burden of demonstrating a ‘significant’ change in facts”) (emphasis added). For this reason, I will apply the “significant-change-in-circumstances” standard to Quinnipiac’s motion, despite the fact that—at least with respect to volleyball—the injunction in this case, although “permanent,” was never expected to be of indefinite duration.
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my previous decision, see Biediger, 728 F. Supp. 2d at 87-94, which the Second Circuit has since
affirmed, see Biediger, 691 F.3d at 96-108. I apply that same analysis here. But Quinnipiac’s
motion also raises several novel questions under Title IX—questions for which prior decisions
supply few, if any, answers. In those instances, I turn to agency regulations, and the canon of
administrative law, for appropriate guidance.
B. Title IX: Statutory and Regulatory Background
1. The Statute
Title IX provides, in relevant part: “No person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).26 The statutory language is bold and aspirational, but Title IX’s particulars
have mostly been defined by subsequent agency regulations and interpretations. See Cohen v.
Brown Univ., 991 F.2d 888, 893 (1st Cir. 1993) (stating that Title IX “sketches wide policy lines,
leaving the details to regulating agencies”). Thus, it is to those regulations that I now turn.
2. The Regulations
The Department of Education (“DOE”), the agency tasked with enforcing Title IX, has established a bipartite regulatory framework for intercollegiate athletics,27 which requires
26 The term “program or activity” is defined as “all of the operations of . . . a college, university or other postsecondary institution.” 20 U.S.C. § 1687(2)(A). It is undisputed that Quinnipiac is such a “program or activity” that receives federal funding and, therefore, is subject to Title IX’s prohibitions.
27 The Department of Health, Education, and Welfare (“HEW”) first promulgated regulations pursuant to Title IX. See generally Cohen, 991 F.2d at 895 (describing history of federal regulation of athletics programs under Title IX). HEW was later separated into the Department of Health and Human Services (“HHS”) and the Department of Education (“DOE”), and DOE simply replicated those same regulations when it took over enforcement authority for Title IX. Id.
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funding recipients to provide members of both sexes (1) equal athletic financial assistance (scholarships), see 34 C.F.R. § 106.37(c)28; and (2) equal athletic opportunity, see 34 C.F.R. § 106.41(c).29
The equal-athletic-opportunity requirement under section 106.41(c) is further subdivided into two component parts: “effective accommodation” and “equal treatment.” Biediger, 691 F.3d at 92. The effective-accommodation component bases Title IX compliance, in part, on

28 Section 106.37(c) provides, in relevant part:

(1) To the extent th at a recip ient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.

(2) Separate athletic scholarships or grants-in-aid for members of each sex may be provided as part of separate athletic teams for members of each sex to the exten t consistent with this paragraph and § 106.41.

34 C.F.R. § 106.37(c). 29 Section 106.41(c) provides, in relevant part:

Equal Opportunity. A recipient which ope rates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for m embers of both sexes. In determ ining whether equa l opportunities are available the Director will consider, among other factors:

(1) W hether the sele ction of sports and lev els o f com petition ef fectively accommodate the interests and abilities of members of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity.

34 C.F.R. § 106.41(c).

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whether “the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” 34 C.F.R. § 106.41(c)(1). In contrast, the equaltreatment component, derived from 34 C.F.R. § 106.41(c)(2)-(10), requires “equivalence in the availability, quality and kinds of other athletic benefits and opportunities provided male and female athletes.” Mansourian v. Regents of Univ. of California, 602 F.3d 957, 964-65 (9th Cir. 2010) (internal quotation omitted). “Effective accommodation claims thus concern the opportunity to participate in athletics, while equal treatment claims allege sex-based differences in the schedules, equipment, coaching, and other factors affecting participants in athletics.” Id. at 965; see also Boucher v. Syracuse Univ., 164 F.3d 113, 115 n.1-2 (2d Cir. 1999) (distinguishing effective-accommodation claims from equal-treatment claims). Notably, “‘an institution may violate Title IX solely by failing to accommodate effectively the interests and abilities of student athletes of both sexes’” even if athletic benefits are provided on an equal basis, and vice versa. Mansourian, 602 F.3d at 965 (quoting Kelley v. Bd. of Trs., 35 F.3d 265, 268 (7th Cir. 1994)).
Thus, as applied to intercollegiate athletics, the DOE’s Title IX regulations provide for a triumvirate of compliance-related claims: (1) “scholarship” claims; (2) “effectiveaccommodation” claims; and (3) “equal-treatment” claims. With respect to the instant motion, however, we are concerned only with effective accommodation under section 106.41(c)(1). The plaintiffs’ equal-treatment and scholarship claims will be tried separately at a later date.
The regulations set forth above were promulgated according to specific congressional delegation, see Cohen, 991 F.2d at 895 (citing Education Amendments of 1974, Pub. L. No. 93380, § 844, 88 Stat. 612 (1974)), and therefore the “‘degree of deference is particularly high.’” McCormick, 370 F.3d at 288 (quoting Cohen, 991 F.2d at 895). Moreover, the requirement of
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section 106.41(c)(1), that courts consider whether the “selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes” when assessing gender equity in athletics, is a reasonable interpretation of Title IX, to which I must defer. See Biediger, 691 F.3d at 96-97.
3. The Policy Interpretation In 1979, the DOE published a policy interpretation, which the department’s Office of Civil Rights (“OCR”) continues to enforce. See Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413 (Dec. 11, 1979) (the “1979 Policy Interpretation”). Reflecting the agency’s tripartite approach to Title IX compliance issues, the policy interpretation is divided into three separate sections: (1) Athletic Financial Assistance (Scholarships); (2) Equivalence in Other Athletic Benefits and Opportunities; and (3) Effective Accommodation of Student Interests and Abilities. 44 Fed. Reg. at 71,414-71,418. With respect to the effective-accommodation requirement under section 106.41(c)(1), the policy interpretation provides, in relevant part: “[i]n effectively accommodating the interests and abilities of male and female athletes, institutions must provide both the opportunity for individuals of each sex to participate in intercollegiate competition, and for athletes of each sex to have competitive team schedules which equally reflect their abilities.” 44 Fed. Reg. at 71,418 (emphasis added). Thus, the OCR measures effective accommodation by reference to two separate gender-equity benchmarks: (1) equity in athletic opportunities; and (2) equity in levels of competition. Id. Whether a university meets these dual obligations is determined under two distinct tests, which have come to be known as (1) the “three-part” test; and (2) the “levels-ofcompetition” test. Id. Funding recipients must satisfy both tests to comply with Title IX’s mandates. See McCormick, 370 F.3d at 301 (“[T]he three-part test relates to participation
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opportunities, and a second, two-part test relates to the competitive schedules and opportunities
for men’s and women’s teams.”); Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 829 (10th
Cir. 1993) (“In addition to assessing whether individuals of both sexes have the opportunity to
compete in intercollegiate athletics, the OCR also examines whether the quality of competition
provided to male and female athletes equally reflects their abilities.”), cert. denied, 510 U.S.
1004 (1993); Cohen v. Brown Univ., 809 F. Supp. 978, 991 (D.R.I. 1992) (“Thus, in determining
compliance under § 106.41(c)(1), a court must conduct a two step analysis. First, it should apply
the three-part test, and second, it should apply the two questions on competitive opportunities. A
violation of § 106.41(c)(1) can occur in either one of these two steps, or in both.”), aff’d, 991 F.2d 888 (1st Cir. 1993).30
The first test—the “three-part test”—was the subject of my prior decision, see Biediger,
728 F. Supp. 2d at 87-88, and “most Title IX litigation has centered around application of this
test.” McCormick, 370 F.3d at 300. Because I previously concluded that Quinnipiac failed this
first test, there was never any need to address the second test. See Biediger, 728 F. Supp. 2d at
111-14. Here, however, the plaintiffs contend that, even if Quinnipiac can demonstrate
compliance under the “three-part” test, the University’s current athletic program, assessed as a
30 The 1979 Policy Interpretation also provides a host of other factors that the OCR will consider when determining overall compliance with Title IX’s effective-accommodation requirement. For example, the interpretation states that the OCR will consider how an institution determines the athletic interests and abilities of its students, how it selects the sports it offers, and will make an ultimate determination of compliance based, in part, on whether “disparities in individual segments of the program with respect to benefits, treatment, services or opportunities are substantial enough in and of themselves to deny equality of athletic opportunity.” 1979 Policy Interpretation, 44 Fed. Reg. at 71,418. Because I conclude that Quinnipiac has failed to prove compliance with Title IX on the basis of the three-part and/or levels-of-competition tests— or, at the very least, failed to demonstrate a “significant change” in the manner in which it allocates athletic participation opportunities among its male and female students—I need not pass on whether an alleged failure to satisfy these other factors constitutes an independent violation of Title IX.
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whole, independently fails under the “levels-of-competition” test. Therefore, the resolution of

this motion requires that I interpret and apply both tests.

a. The Three-Part Test

The three-part test assesses whether a university has met its obligation to “effectively

accommodate the interests and abilities of members of both sexes” in one of three ways:

(1) W hether intercollegiate level part icipation opportunities for m ale and female students are provided in nu mbers substantially proportionate to their respective enrollments; or

(2) W here the m embers of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is dem onstrably responsive to the developing interest[s] and abilities of the members of that sex; or

(3) W here the m embers of one sex are underrepresented among

intercollegiate athletes, and the ins titution cannot show a continuing practice

of program expansion such as that

cited above, whether it can be

demonstrated that the interests and a bilities of the members of that s ex have

been fully and effectively accommodated by the present program.

1979 Policy Interpretation, 44 Fed. Reg. at 71,418. These three “prongs” establish three separate

safe harbors; a school complies with this facet of the effective-accommodation requirement if it

succeeds in meeting any one of them. Biediger, 691 F.3d at 93; Cohen, 991 F.2d at 897. In this

case, Quinnipiac relies solely on the first prong, contending that, because it provides athletic

participation opportunities for women in numbers substantially proportionate to its

undergraduate female enrollment, the interests and abilities of its female athletes are effectively

accommodated. The University does not argue, and has never argued, that it meets this aspect of Title IX’s mandate by satisfying the second or third prongs of the three-part test.31

31 In fact, Quinnipiac has vigorously opposed any discovery concerning its pre-2009 practices with respect to women’s sports—discovery that would be essential to litigate one or both of the latter two prongs. See Def.’s Mem. of Law in Opp’n to Pls.’ Mot. to Compel, at 2-9
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From a defendant’s perspective, relying exclusively on prong one—and forgoing proof
under prongs two and three—has certain advantages. Compliance under prongs two and three
typically requires an extensive evidentiary record concerning a school’s past gender-equity
practices, history of program expansion for women, and assessment of athletic interests over
time. Prong one, in contrast, permits a university to demonstrate gender equity arithmetically,
based on its current athletic program alone. As one court put it, “a university which does not
wish to engage in extensive compliance analysis may stay on the sunny side of Title IX simply
by maintaining gender parity between its student body and its athletic lineup.” Cohen, 991 F.2d
at 897-98. Thus, as a matter of litigation strategy, singular reliance on prong one allows a
defendant-university concerned about its prior gender-equity record to avoid intrusive discovery on—and public testimony about—the school’s history of sex discrimination in athletics.32
But putting all your eggs in prong one’s basket is also a risky strategy. Under prongs two
and three, for example, heightened scrutiny of a school’s history of program expansion and
accommodation of athletic interest is counterbalanced, to some degree, by increased flexibility in
the type and quantity of athletic activities that schools may count toward Title IX compliance.
See Mansourian v. Regents of Univ. of California, 816 F. Supp. 2d 869, 921 (E.D. Cal. 2011)
(noting that prong two “provides institutions flexibility in choosing which teams they add”)
(doc. # 244). 32 Indeed, when it comes to histories of gender discrimination in athletics, it is safe to
assume that most colleges have skeletons in their closets, because few if any institutions provided female students athletic opportunities on par with their male counterparts at the time of Title IX’s enactment. See 1979 Policy Interpretation, 44 Fed. Reg. at 71,419 (“Participation in intercollegiate sports has historically been emphasized for men but not women. Partially as a consequence of this, participation rates of women are far below those of men. During the 197778 academic year women students accounted for 48 percent of the national undergraduate enrollment (5,496,000 of 11,267,000 students). Yet, only 30 percent of the intercollegiate athletes are women.”).
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(quotation omitted); Cohen, 991 F.2d at 898 (prongs two and three “recognize that there are circumstances under which, as a practical matter, something short of . . . proportionality is a satisfactory proxy for gender balance”). In this regard, however, prong one is much less forgiving. Pursuant to OCR rules, as explained more fully infra, when calculating “substantial proportionality” under prong one, not every purported athletic activity counts as an “intercollegiate level33 participation opportunity” and not every purported athlete necessarily counts as a “participant.” See 44 Fed. Reg. at 71,418 (emphasis added). Thus, although compliance with prong one typically involves a less-extensive analysis, the requirement that each claimed “participation opportunity” provide a genuine intercollegiate-level experience is no less stringent. See Biediger, 691 F.3d at 105 (counting only “the number of genuine varsity athletic participation opportunities” when assessing substantial proportionality under prong one) (emphasis added); Cohen, 879 F. Supp. at 201-02 (“Because a positive showing on prong one terminates the inquiry, providing a ‘safe harbor’ for the institution, . . . logic suggests that ‘substantially proportionate’ must be a standard stringent enough to effectuate the purposes of the statute.”); see also Beasley v. Alabama State Univ., 966 F. Supp. 1117, 1124 (M.D. Ala. 1997) (“The test of such substantial proportionality is, however, stringent.”).
b. The Levels-of-Competition Test After providing the three-part test for effective accommodation, the 1979 Policy Interpretation goes on to state that:
33 The Policy Interpretation expressly differentiates between so-called “club” teams and intercollegiate “varsity” teams, stating that, “under this Policy Interpretation, club teams will not be considered to be intercollegiate teams except in those instances where they regularly participate in varsity competition.” 44 Fed. Reg. at 71,413 n.1. However, application of the Policy Interpretation is not limited to intercollegiate athletics alone, because “its general principles will often apply to club, intramural, and interscholastic athletic programs, which are also covered by the regulation.” Id. at 71,413.
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Compliance with this provision o f the regulation will also be assessed by examining the following:
(1) W hether the com petitive schedules for m en’s and wom en’s team s, on a program-wide basis, af ford proportionally similar num bers of m ale and fem ale athletes equivalently advanced competitive opportunities; or
(2) Whether the institution can demonstr ate a history and continuing practice of upgrading the co mpetitive opportunities available to the histo rically disadvantaged sex as warranted by developi ng abilities among the athletes of that sex. 44 Fed. Reg. at 71,418.34 In this case, however, Quinnipiac’s decision to forgo evidence on its
historical allocation of athletic opportunities means that the first prong again provides the only
avenue through which the University may claim compliance with Title IX’s levels-of-
competition requirement. Quinnipiac does not—and cannot—claim compliance with the second
prong.
The Second Circuit has held that courts owe the 1979 Policy Interpretation—and the two-
step effective-accommodation analysis described above—a high degree of deference. See
Biediger, 691 F.3d at 96 (“[T]he 1979 Policy Interpretation of § 106.41(c) is entitled to a
particularly high degree of judicial deference[.]”) (internal quotation omitted); see also
McCormick, 370 F.3d at 300 (applying the 1979 Policy Interpretation’s three-part test for
determining whether high school districts provided female students with equal athletic
opportunities). I will apply that level of deference here.
4. The Policy Clarifications
Over the past two decades, the OCR has published multiple letters clarifying the scope
and effect of the three-part test, and the “substantial-proportionality” prong in particular.
34 The interpretation also provides that “[i]f comparisons of program components reveal that treatment, benefits, or opportunities are not equivalent in kind, quality or availability, a finding of compliance may still be justified if the differences are the result of nondiscriminatory
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Unfortunately, the same cannot be said of the levels-of-competition test. What follows summarizes the relevant OCR guidance on both the three-part and levels-of-competition tests, with the caveat that the OCR’s guiding light shines mostly on the former, and not the latter.
a. Substantial Proportionality (Prong One of the Three-Part Test) In 1996, the OCR published a letter clarifying the meaning of the first prong of the threepart test: “[w]hether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.” Dep’t of Educ., Office for Civil Rights, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test, at 1 (Jan. 16, 1996) (the “1996 Clarification”). The OCR explained that it analyzes “substantial proportionality” in two steps. First, the agency determines “the number of participation opportunities afforded to male and female athletes in the intercollegiate athletic program.” Id. at 2-3. Once all athletes (or “participants”) engaged in countable intercollegiatelevel varsity sports (i.e., “participation opportunities”) are tallied, the second step involves calculating whether the number of participation opportunities is substantially proportionate to the gender demographics of the university. 1996 Clarification at 4. Substantial proportionality does not require exact proportionality. Rather, whether a school satisfies prong one is determined on a case-by-case basis, which involves assessing the percentage of female athletic participants relative to female enrollment, taking into account “the institution’s specific circumstances and the size of its athletic program.” Id. One proxy for gauging whether an athletic program is “substantially” proportionate is to calculate whether the number of additional women needed to achieve exact proportionality would be insufficient to form a viable varsity team. Id. So, for example, if a school has five fewer female athletes than needed to reach exact proportionality,
factors.” 1979 Policy Interpretation, 44 Fed. Reg. at 71,415. - 39 -

the OCR would find the athletic program to be substantially proportional because no varsity team
can be sustained with so few participants.
The OCR’s stated methodology under prong one raises two definitional questions: (1)
who counts as a “participant”?; and (2) what activities qualify as “participation opportunities”?
Over the years, the OCR has offered the following additional guidance.
i. “Participants” Defined
The 1996 Clarification defines “participants” as student-athletes:
a. Who are receiving the institutionally-sponsored support normally provided to athletes com peting at the institu tion involved, e.g., coaching, equipm ent, medical and training room services, on a regular basis during a sport’s season; and
b. W ho are participating in organized practice sessions and other tea m meetings and activities on a regular basis during a sport’s season; and
c. W ho are listed on th e eligibility or squad lists maintained for each sport; or
d. Who, because of injury, cann ot m eet a, b, or c above but continue to receive financial aid on the basis of athletic ability.
Id. at 3 (quoting 44 Fed. Reg. at 71,415).35 Generally speaking, “all athletes who are listed on a
team’s squad or eligibility list and are on the team as of the team’s first competitive event are
35 The 1996 Clarification states that this four-part definition of “participant”—which the OCR uses for purposes of determining the total number of “participation opportunities” under prong one—is taken directly from the 1979 Policy Interpretation. That statement, while technically accurate, is somewhat misleading. The policy interpretation does provide this definition, but not in the context that the OCR suggests.
As noted above, the 1979 Policy Interpretation is divided into three separate sections, tracking three different areas of regulatory compliance: (1) “Athletic Financial Assistance (Scholarships)” (Part A), see 34 C.F.R. § 106.37(c); “Equivalence in Other Athletic Benefits and Opportunities” (Part B), see 34 C.F.R. § 106.41(c)(2)-(10); and “Effective Accommodation of Student Interests and Abilities” (Part C), see 34 C.F.R. § 106.41(c)(1). The three-part test—of which the substantial-proportionality requirement is a part—appears under the “Effective Accommodation” section (Part C). See 44 Fed. Reg. at 71,417-71,418. But that section—which
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counted as participants.” Id. Moreover, “an athlete who participates in more than one sport will
be counted as a participant in each sport in which he or she participates.” Id. Lastly, participants
include “athletes who do not receive scholarships (e.g., walk-ons), those athletes who compete
on teams sponsored by the institution even though the team may be required to raise some or all
of its operating funds, and those athletes who practice but may not compete.” Id. (emphasis
added). According to the OCR,
investigations reveal that these at hletes receive num erous benefits and services, such as training and prac tice tim e, coaching, tutoring services, locker room facilities, and equipm ent, as well as im portant non-tangible benefits derived from being a m ember of an interco llegiate athle tic te am.
is meant to interpret the regulation codified at section 106.41(c)(1)—never defines the terms “participation opportunities” or “participant.” See id. Instead, the definition of “participant” that the OCR references in the 1996 Clarification is lifted from an entirely different section of the policy interpretation—the section addressing “Athletic Financial Assistance (Scholarships)” (Part A), which, in turn, is meant to interpret an entirely different regulation codified at section 106.37(c). See id. at 71,415. Curiously, the OCR adopted that definition for use outside of its intended context and without any explanation for doing so.
But an explanation is sorely needed, because this seemingly mismatched definition of “participant,” when applied to prong one, can sometimes produce anomalous results. Of particular concern is the inclusion of subpart “d” in the OCR’s four-part definition. See 1996 Clarification at 3. Take, for example, an injured athlete who was never listed on the squad list, never practices—let alone competes—with her team, and never receives any other benefits of varsity participation, but who nevertheless receives some amount of financial aid for athletic ability. Under subpart “d” of the OCR’s definition, this individual apparently counts as a “participant” for purposes of substantial proportionality, despite the fact that she gets nothing close to a “genuine” varsity experience.
This peculiar outcome calls into question the persuasiveness of the OCR’s attempt to transplant the definition of “participant” from one distinct compliance area to another. Indeed, it might make perfect sense to count our hypothetical athlete as a “participant” for purposes of assessing allocation of scholarships (notably, the purpose for which this definition was originally supplied), but it makes little sense, in my view, to do the same when assessing allocation of participation opportunities. Quite simply, a “participant” for one purpose is not necessarily a “participant” for another.
Despite my reservations, however, for purposes of this case I will continue to defer to the OCR’s definition of “participant.” The Second Circuit has specifically endorsed the OCR’s definition of “participant” for purposes of prong one, see Biediger, 691 F.3d at 93, albeit without addressing the curious mixing of definitional sources. I urge the OCR to clarify the definition of “participant” or explain its inclusion of language from the scholarship section of the regulations.
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Because these are signif icant benefits, and because receip t of these benefits

does not depend on their cost to the

institution o r whether the athlete

competes, it is necessary to count all athletes who receive such benefits w hen

determining the num ber of athletic opportunities provided to m en and

women.

Id.

In a letter accompanying the 1996 Clarification, however, the OCR emphasized that, for

an athlete to be counted as a “participant,” he or she must be afforded a participation opportunity

that is “real, not illusory”; that is, an athletic experience that offers benefits equivalent to those

provided other bona fide varsity athletes. See Letter from Norma V. Cantú, Assistant Secretary

for Civil Rights, Dep’t of Education, at 4 (Jan. 16, 1996) (the “1996 OCR Letter”).

ii. “Participation Opportunities” Defined

In 2008, the OCR published another letter describing what it considers to be countable

“participation opportunities.” The OCR explained that, for an athletic activity to be counted in

the substantial-proportionality analysis, the activity must take place in the context of an authentic

varsity “sport.” Letter from Stephanie Monroe, Assistant Secretary for Civil Rights, Dep’t of

Education, at 1-2 (Sept. 17, 2008) (“2008 OCR Letter”).

To determine whether an athletic activity qualifies as a varsity “sport” for Title IX

purposes, the OCR “considers several factors related to an activity’s structure, administration,

team preparation, and competition.” Id. First, the OCR considers whether the sport is

recognized by an intercollegiate athletic organization, such as the NCAA or the NAIA, and

whether the activity is subject to the “organizational requirements” promulgated by that

organization. Id. at 2. If so, then the OCR will presume that the sport can be counted as a

genuine “participation opportunity” under Title IX. Id. If that presumption does not apply, or if

the presumption has been effectively rebutted “by evidence demonstrating that the institution is

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not offering the activity in a manner that satisfies” those organizational requirements, the OCR
will then consider a multitude of factors that bear on whether an activity amounts to a varsity
“sport.” Id. Those factors include the following:
I. Program Structure and Administration: . . . .
(A) W hether the operating budget, s upport services (including academ ic, sports medicine and strength and conditioning support) and coaching staff are administered by the athletics departm ent or another entity, and are provided in a manner consistent with established varsity sports; and
(B) W hether the par ticipants in th e activ ity ar e elig ible to rece ive a thletic scholarships and athletic awards (e.g., vars ity awards) if available to athletes in establish ed vars ity sports ; to the exten t that an in stitution re cruits participants in its a thletics progr am, whether p articipants in the a ctivity ar e recruited in a manner consistent with established varsity sports.
II. Team Preparation and Competition: . . . .
(A) Whether the practice opportunities (e.g., number, length and quality) are available in a m anner cons istent with es tablished v arsity spor ts in the institution’s athletics program; and
(B) W hether the regular s eason com petitive oppo rtunities d iffer quantitatively and/or qualitatively fro m established varsity sports; whether the team competes against intercollegiate or interscholastic varsity opponents in a manner consistent with established varsity sports;
When analyzing this factor, the following may be taken into consideration:
1. Whether the number of competitions and length of play are predetermined by a governing athletics organization, an athletic conference, or a consortium of institutions;
2. Whether the competitive schedule reflects the abilities of the team; and
3. W hether the activity has a define d season; whether the season is determined by a governing athletics organi zation, an athletic conference, or a consortium.
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(C) If pre-s eason and/o r post-se ason com petition exists f or the activ ity, whether the activity provides an opportunity for student athletes to engage in the pre- season and/or post-se ason c ompetition in a m anner consisten t with established varsity sports; for exam ple, whether state, national and/or conference championships exist for the activity; and
(D) W hether the prim ary purpose of th e activity is to provide a thletic competition at th e intercollegiate or interscholastic varsity levels rather than to support or promote other athletic activities.
When analyzing this factor, the following may be taken into consideration:
1. Whether the activity is governed by a sp ecific set of rules of play adopted by a s tate, nation al, or conferen ce or ganization and/or consistent with established varsity sports, which incl ude objective, standardized criteria by which competition must be judged;
2. W hether resourc es f or the a ctivity ( e.g., practice and com petition schedules, coaching staff) are based on the competitive needs of the team;
3. If post-season co mpetition opport unities are availab le, whether participation in post-season competition is dependent on or related to regular season results in a manner consistent with established varsity sports; and
4. W hether the selection of team s/participants is bas ed o n f actors re lated primarily to athletic ability.
Id. at 2-4 (footnote omitted).
Whether an activity is a “sport” will depend on the facts specific to the institution and
will be decided based on the totality of those factors. Id. at 2, 4. Moreover, the OCR has
emphasized that schools retain flexibility in choosing their path toward compliance:
It is OCR’s policy to encourag e com pliance with the T itle IX athletics regulations in a flexible m anner that expands, rather than lim its, student athletic opportunities. . . . Expandi ng interscholastic an d inte rcollegiate competitive athletic opportunities through new sports can benefit studen ts by creating and stim ulating student interest in athletics, taking advantage of athletic opportunities sp ecific to a particular com petitive reg ion, and providing th e opportunity for access to a wi de a rray of competitive ath letic activities.
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Id. at 4. But, as I stated in my previous decision, “permitting universities space to cultivate new athletic opportunities for women does not do away with the fundamental requirement that, for an athletic opportunity to count under Title IX, it must be genuine, meaning that it must take place in the course of playing an actual ‘sport’ and it must allow an athlete to receive the same benefits and experience that she would receive if she played on another established varsity squad.” Biediger, 728 F. Supp. 2d at 91 (emphasis added).
All of this can be distilled into the following rule. Under prong one, the term “participation opportunities” means the total number of “participants”—as defined in the 1996 Clarification—engaged in genuine intercollegiate-level varsity “sports.” Whether a particular athletic activity qualifies as a “sport” (so that “participants” in that activity may count for purposes of prong one) depends on both intrinsic and extrinsic factors, as outlined in the 2008 OCR Letter. Intrinsic factors concern the inherent sport-like qualities of the activity, such as (1) whether the purpose of the activity is athletic competition; (2) whether competition is judged by a set of rules and objective criteria; (3) whether participants are selected on the basis of athletic ability; (4) whether the number of competitions and length of play are determined by a governing athletics organization; (5) whether the activity has a defined season; and (6) whether post-season competition, if available, is dependent on regular season results. Extrinsic factors, in contrast, concern how the putative sport is administered by the university, including (1) whether the budget, support services, and coaching are provided in a manner consistent with established varsity sports; (2) whether participants are eligible for scholarships and awards; (3) whether participants are recruited in a manner consistent with other varsity sports; (4) whether practice opportunities are consistent with other varsity sports; (5) whether competitive opportunities differ quantitatively or qualitatively from established varsity sports, including competition
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against other varsity opponents; (6) whether the competitive schedule reflects the abilities of the team; (7) whether the team participates in pre-season or post-season competition in a manner consistent with other varsity sports; and (8) whether resources for the activity are based on the competitive needs of the team. Intrinsic factors bear on whether an activity is capable of providing athletes a genuine varsity participation opportunity, while extrinsic factors bear on whether a particular school’s program is organized and administered in a way that actually provides athletes a genuine varsity participation opportunity. Accordingly, even if an athletic activity possesses, in the abstract, all of the intrinsic attributes of an authentic “sport,” it may nonetheless be offered in such a manner that its participants do not receive a genuine varsity experience on par with other bona fide varsity athletes; that is, the activity, as administered, lacks the extrinsic attributes of an intercollegiate varsity sport.36
Prior to the 2008 Dear Colleague Letter, the OCR issued two missives concerning the agency’s standards for distinguishing “sports” from “extracurricular activities” for purposes of Title IX. The first, dated April 11, 2000, included the following passage:
Certain school activities in which stu dents are engaged may be activities that require a considerable amount of athleticism , but not every athletic activity qualifies as a sport. Consisten t with earlie r policy sta tements, there is a presumption by OCR that drill teams, cheerleading and other like activities are extracurricular activities and are not considered sports or part of an institution’s athletic program within the meaning of the Title IX regulation.
Letter from Mary Frances O’Shea, National Coordinator for Title IX Athletics, Office for Civil Rights, Dep’t of Education, to David V. Stead, Executive Director, Minnesota State High School
36 That, in effect, is what the OCR means when it says that the presumption in favor of counting NCAA-recognized sports “can be rebutted by evidence demonstrating that the institution is not offering the activity in a manner that satisfies the factors [listed].” 2008 OCR Letter at 2 (emphasis added).
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League, at 3 (Apr. 11, 2000) (“April 2000 OCR Letter”) (emphasis added).37 The OCR added that, although cheerleading and cheer-like activities are presumed not to be countable intercollegiate-level sports, any decision about a particular school’s program would be made on a case-by-case basis. Id.
In a second later, dated May 24, 2000, the OCR clarified that “the term cheerleading . . . includes both competitive and sideline cheer; other like activities would include all extracurricular activities similar to drill teams and cheerleading, such as danceline, skateline, and pep squads.” Letter from Mary Frances O’Shea, National Coordinator for Title IX Athletics, Office for Civil Rights, Dep’t of Education, to David V. Stead, Executive Director, Minnesota State High School League (May 24, 2000) (“May 2000 OCR Letter”). It added that in every case where the OCR had evaluated whether a cheerleading or drill team constituted participation in a sport, the agency concluded it was not and that team members could not be counted as “participants” under Title IX. Id. To date, the OCR has never held a varsity cheerleading—or cheer-derivative—program to be a sport for Title IX purposes.
The interpretive guidance described above, including the 1996 Clarification and accompanying letter, the April and May 2000 OCR Letters, and the 2008 OCR Letter, are owed substantial deference. See Biediger, 691 F.3d at 96-97 (“We here conclude that the 1996 Clarification, the accompanying 1996 OCR Letter, and the 2000 and 2008 OCR Letters are
37 The OCR’s position in 2000 that cheerleading is presumptively not a sport is consistent with a policy first announced by HEW in 1975, in which HEW ruled cheerleading to be an extracurricular activity, and not a varsity sport, for purposes of Title IX. See Letter from Peter E. Holmes, Office for Civil Rights, to Chief State School Officers, Superintendents of Local Educational Agencies and College and University Presidents, at 3 (Nov. 11, 1975) (“However, drill teams, cheerleaders and the like, which are covered more generally as extracurricular activities . . . , are not a part of the institution’s ‘athletic program’ within the meaning of the regulation.”).
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likewise entitled to substantial deference under Auer v. Robbins, 519 U.S. 452, 461 (1997),

because they reflect reasonable agency interpretations of ambiguities in its own regulation, and

there is no reason to think that the agency’s interpretations do not reflect its ‘fair and considered

judgment on the matter in question.’”) (quoting Mullins v. City of New York, 653 F.3d 104, 113-

14 (2d Cir. 2011)); see also Mansourian, 602 F.3d at 965 n.9 (noting that other circuits “have

held that both the [1979] Policy Interpretation and the [1996] Clarification are entitled to

deference,” and citing cases in support). As I noted in my previous decision:

The 2008 OCR Letter correctly recognizes that an intercollegiate sport is defined

not only by the activity’s

athletic elem ents, but also by its structure,

administration, and the com petition it fosters. Put differently, the OCR factors

appropriately weigh not only the physical nature of the activity itself, but also

how the experience of participating in that activity compares to the experience of

participating on other varsity sports teams. That inquiry is reasonable, persuasive,

and entirely consistent with OCR’s goal of ensuring not only that female students

are offered equal athletic participation opportunities, but that those participation

opportunities are real, and not illusory.

Biediger, 728 F. Supp. 2d at 93. I will continue to defer to the OCR’s interpretations, and will

use their methodology for determining whether an activity may be treated as an intercollegiate-

level sport under Title IX.

b. Equivalent Competition (Prong One of the Levels-of-Competition Test) Under prong one of the levels-of-competition test,38 a university has effectively

accommodated women’s athletic interests and abilities when “the competitive schedules for

men’s and women’s teams, on a program-wide basis, afford proportionally similar numbers of

male and female athletes equivalently advanced competitive opportunities.” 44 Fed. Reg. at

71,418. For ease of reference, I call this prong the “equivalent-competition” requirement.

38 As noted above, Quinnipiac has chosen, as a matter of litigation strategy, to rely solely on the first prong of the levels-of-competition test to demonstrate its compliance with this aspect of Title IX.
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Although the OCR has published considerable guidance on the meaning and purpose of the three-part test, the agency has offered almost no additional direction on the levels-ofcompetition test. Indeed, in the thirty-three years since the Policy Interpretation was promulgated, the OCR has never, to my knowledge, issued any official policy clarifying the significance of this test or how it should be applied. But the dearth of published guidance does not mean that the OCR has abandoned the equivalent-competition requirement. On the contrary, the OCR has reiterated time and again that effective accommodation is assessed under both the three-part and levels-of-competition tests. See 1996 Clarification at 2 (stating that, in addition to the three-part test, the “OCR also considers the quality of competition offered to members of both sexes in order to determine whether an institution effectively accommodates the interests and abilities of its students”); Russlynn Ali, Assistant Secretary for the Office for Civil Rights, Dep’t of Education, Dear Colleague Letter, at 2 n.9 (Apr. 20, 2010); Brief of the United States as Amicus Curiae, at 7 n.4, Biediger v. Quinnipiac Univ., 728 F. Supp. 2d 62 (D. Conn. 2010) (No. 09-cv-621).
Still, from all accounts, the levels-of-competition test is seldom used today and rarely if ever litigated. The test’s dormancy in recent years is attributed not to regulatory inertia, but to evolving NCAA standards on competitive scheduling among member schools. In the late 1970s and early 1980s, before the NCAA standardized the process, women’s athletics programs competed at disparate division levels among various athletic conferences. See Lamar Daniel Rebuttal Report, at 5 (Def.’s Ex. HZ). During that period, the levels-of-competition test was an essential and frequently-invoked component of the OCR’s regulatory arsenal. Today, however, the NCAA imposes strict procedures governing the competitive schedules of men’s and women’s NCAA-championship sports, permitting only limited competition below declared division levels.
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Id. As a result, modern NCAA rules have all but eliminated the problem that the levels-ofcompetition test was designed to address—at least among schools that offer both sexes the full panoply of NCAA-championship sports.
But where, as here, a sizable percentage of a school’s athletics program includes nonNCAA-championship sports, the levels-of-competition test is once again in play—and I must determine the proper way to apply it. In the absence of official sources clarifying the scope of this test, I must turn to the only interpretive compass at my disposal: the OCR’s internal investigator’s manual. See Valerie Bonnette & Lamar Daniel, Office for Civil Rights, Title IX Athletics Investigator’s Manual (1990), attached as Ex. H to Expert Report of Donna Lopiano (Pls.’ Ex. 201) (the “Investigator’s Manual” or “Manual”).
The Investigator’s Manual, which was issued in 1990 to replace an earlier 1980 version, is an internal agency document that was not subject to public notice and comment and was never formally published. It is not an official interpretation of either Title IX or the 1979 Policy Interpretation; rather, the Investigator’s Manual was designed merely to assist OCR personnel in conducting investigations and compliance reviews in the field. See, e.g., McCormick, 370 F.3d at 293 n.14 (“The Investigator’s Manual is an internal agency document designed to aid in agency investigations of intercollegiate and interscholastic athletics programs.”). As a result, the Investigator’s Manual is not entitled to the same level of deference accorded the regulations, the 1979 Policy Interpretation, or even the OCR policy letters, but instead is merely “entitled to respect” to the extent that it has “the power to persuade.” Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (stating that “[i]nterpretations contained in policy statements, agency manuals, and enforcement guidelines . . . lack the force of law” and do not warrant Chevron deference); see also Oregon v. Gonzales, 546 U.S. 243, 268 (2006) (stating that, under so-called Skidmore
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deference, an agency’s interpretation merits deference depending on the “‘thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control’”) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); United States v. Mead Corp., 533 U.S. 218, 235 (2001) (stating that a non-binding agency interpretation “may therefore at least seek a respect proportional to its power to persuade . . . [and] may surely claim the merit of its writer’s thoroughness, logic, and expertise, its fit with prior interpretations, and any other sources of weight”) (internal quotation omitted). Indeed, the Second Circuit has previously indicated that the value of the Investigator’s Manual is limited to its persuasive power. See McCormick, 370 F.3d at 293 n.14 (“We rely on [the Investigator’s Manual] here to the extent that it provides a persuasive explanation of the Policy Interpretation.”) (emphasis added); see also Cohen, 809 F. Supp. at 988 (recognizing that the Investigator’s Manual does “not carry the force of law or establish controlling standards,” but concluding that it is, to some extent, an important guide “in unraveling the requirements of the athletic regulation”); Beasley v. Alabama State Univ., 3 F. Supp. 2d 1325, 1335 n.8 (M.D. Ala. 1998) (stating that “some measure of deference should be accorded to the Investigator’s Manual, which reflects OCR’s interpretation of its own regulations”); but see Ollier v. Sweetwater Union High Sch. Dist., 858 F. Supp. 2d 1093, 1110 (S.D. Cal. 2012) (recognizing that the “Policy interpretation by the OCR is entitled to deference by the Court,” but merely taking “judicial notice” of the Investigator’s Manual). However, insofar as there are inconsistencies between the Manual and the Policy Interpretation, the Policy Interpretation must control. See Roberts v. Colorado State Univ., 814 F. Supp. 1507, 1511 (D. Colo. 1993) (noting “minor inconsistencies do exist between the Policy Interpretation and the Investigator’s Manual”), rev’d in part on other grounds, 998 F.2d 824 (10th Cir.
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1993)).39 With this guidance in mind, I turn to address the Manual’s description and explanation
of the levels-of-competition test.
As noted above, prong one of the levels-of-competition test assesses “[w]hether the
competitive schedules for men’s and women’s teams, on a program-wide basis, afford
proportionally similar numbers of male and female athletes equivalently advanced competitive
opportunities.” 44 Fed. Reg. at 71,418 (emphasis added). The Investigator’s Manual provides
the following methodology for assessing compliance with this requirement:
COMPARE the num ber of com petitive events f or each tea m at the ins titution’s declared co mpetitive level. USE the a ttached char t f or this co mparison. DETERMINE the overall percentage of m en’s and women’s events below the declared division level or cl assification. If this an alysis resu lts in relativ e equivalence, then the second factor [prong two], as discussed below, need not be considered. If there is a significant difference in the number of competitive events for m en and wom en at the institution’s dec lared com petitive leve l, ASK the appropriate institution for an explanati on. If there is an y concern that the explanation is not satisfactory, consider the second factor.
Investigator’s Manual at 26 (emphasis added).40
In the broadest sense, I find persuasive—and will defer to—the Manual’s general
methodology for measuring the competitiveness of a team’s schedule based on the declared
division level of opponents at each competitive event. Given the inevitable disparities that exist
39 It bears mentioning that, in other contexts, some of the Manual’s directives have been expressly rejected by subsequent OCR “Dear Colleague” Letters. See Mary Frances O’Shea, Assistant Secretary for the Office for Civil Rights, Dear Colleague Letter: Bowling Green State University (July 23, 1998), available at http://www2.ed.gov/about/offices/list/ocr/docs/bowlgrn.html (addressing rules governing athletic scholarships and noting “the confusion caused by the manual’s inclusion of a statistical test” that was irrelevant in determining compliance standards for scholarship allocation).
40 The Manual does not define what constitutes a “significant difference,” but goes on to caution that, because the “Policy Interpretation permits nondiscriminatory differences in men’s and women’s athletics programs,” investigators should “[a]sk the appropriate institution representative for an explanation of any disparities found” before issuing any violation findings. Investigator’s Manual at 26.
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from year to year, relying on an opponent-team’s division level as a proxy for its competitive prowess is a reasonable interpretation of the regulation.
But I am otherwise unpersuaded by the Manual’s approach to determining proportional similarity under the levels-of-competition test—an approach that, in my view, directly conflicts with the plain language of the 1979 Policy Interpretation. Indeed, even a cursory comparison of the text of the equivalent-competition prong and the Manual’s stated methodology reveals significant inconsistency. Although the test itself expressly calls for a proportional comparison of athletes to competition level, the Manual calls for a proportional comparison of events to competition level. In this respect, the Manual’s approach cannot be squared with the controlling language of the Policy Interpretation.41 Cf. Cohen, 809 F. Supp. at 994 (noting that the levels-ofcompetition test assesses whether “the competitive opportunities in th[e] program are proportionate to the number of men and women athletes currently participating”) (emphasis added). The Manual’s approach may provide a reasonable shorthand for investigators in the field, but it is ultimately unpersuasive as the appropriate legal analysis for the court.
Thus, although I will defer to the Manual’s general methodology, in order to give effect to the plain language of the Policy Interpretation, the analysis must also take into account the proportionate number female athletes afforded equivalently-advanced competitive opportunities. To that end, I must modify slightly the Manual’s approach. Rather than compare the percentage of events below the declared division level among men’s and women’s teams, I will compare the
41 The testimony of the plaintiffs’ sports-management expert, Dr. Donna Lopiano, reinforces my position. Lopiano expressly disagreed with the Manual’s approach, and testified that, with respect to the levels-of-competition test, “it’s the number of athletes that experience that competition, not the number of competitions that count.” Trial Tr. at 861-62.
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percentage of “competitive opportunities” afforded to male and female athletes below their declared division level.42
This modified analysis proceeds in four steps.43 First, I will calculate the total number of “competitive opportunities” afforded to the members of each team at their declared division level. To do so, I will simply multiply the number of team “events” against division-level opponents by the number of participants on each team involved. Second, I will calculate the number of “competitive opportunities” below the declared division level. That similarly requires multiplying the number of team “events” against non-division-level opponents by the number of participants on each team involved. For example, assume a Division I women’s volleyball team has ten participants and plays in a total of ten events. Seven events are against Division I opponents and three events are against Division II opponents. That yields a total of seventy competitive opportunities at the declared division level, and thirty competitive opportunities at the non-division level.
Next, I will add up the total number of division-level and non-division-level competitive opportunities across all teams for each sex, and determine what percentage of overall competitive opportunities were played against opponents below the school’s declared division level. The final step involves comparing the overall percentage of below-division-level competitive
42 Alternatively, Lopiano has also suggested an entirely different and somewhat more qualitative approach to assessing levels of competition that she developed independently. See Expert Report of Donna Lopiano, at 28-35 (Pls.’ Ex. 201). That alternative methodology, however, has no basis in any published OCR guidance of which I am aware, and therefore I decline to adopt it on the current record.
43 This modified approach to assessing equivalent competition was suggested by defendant’s own expert, Lamar Daniel, in response to the concerns I raised at trial regarding the apparent inconsistencies between the Manual and the Policy Interpretation. See Competition Test – Alternative Application, attached as Ex. B to Def.’s Post-Trial Brief (doc. # 275).
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opportunities for male athletes versus the percentage of below-division-level competitive

opportunities for female athletes on a program-wide basis.

For example, assume a school sponsors four teams at the Division 1 level: (1) women’s

softball; (2) women’s volleyball; (3) men’s soccer; and (4) men’s baseball. Assume further that

the number of participants on each team and the number of competitive events among division

levels are as follows:

Women’s Teams
Softball 30

# of participants

Division I competitions
10

Division I competitive opportunities
300

NonDivision I competitions
0

NonDivision I competitive opportunities 0

Volleyball 10

7

70

3

30

Totals

370 (92.5%)

30 (7.5%)

Men’s Teams

# of

Division I Division I

participants competitions competitive

opportunities

Soccer 20

15

Baseball 25

49

300 1,225

NonDivision I competitions
0

NonDivision I competitive opportunities 0

1

25

Totals

1,525 (98.4%)

25 (1.6%)

Given these hypothetical statistics, a total of 7.5 percent of women’s competitive opportunities were below the school’s declared division level. Compare that with men, for whom only 1.6 percent of competitive opportunities were below division level. On a proportional basis, that amounts to a difference of approximately 6 percent.
Neither the 1979 Policy Interpretation nor the Investigator’s Manual specify a threshold percentage that will constitute a violation of the equivalent-competition requirement; that is, when a school fails to provide “proportionally similar numbers of male and female athletes
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equivalently advanced competitive opportunities.” 44 Fed. Reg. at 71,418. According to
Quinnipiac, a disparity of less than 5 percent does not raise serious compliance concerns,
particularly if the school can point to nondiscriminatory reasons for the disparity. The
University finds support for that proposition not in any official OCR guidance, but in an
unauthorized treatise published by one of the original co-authors of the Investigator’s Manual.
See VALERIE BONNETTE, TITLE IX AND INTERCOLLEGIATE ATHLETICS, at 57-58, excerpt attached
as Ex. B to Lamar Daniel Rebuttal Report (Def.’s Ex. HZ) (“Bonnette Treatise”). But that
treatise—which the OCR has never endorsed and which does not even purport to represent the views of the agency—is not entitled to deference.44
In my view, in the absence of specific OCR guidance on point, the phrase “proportionally
similar,” as used in the first prong of the levels-of-competition test, should be given a
construction roughly analogous to the phrase “substantial proportionality,” as used in the first
prong of the three-part test. According to the OCR, “substantial proportionality” does not
require exact proportionality; rather, determinations are made on a case-by-case basis, taking into
account “the institution’s specific circumstances and the size of its athletic program.” 1996
44 Although not entitled to deference, the Bonnette Treatise does lend support to my position that the Manual’s methodology for assessing compliance with the levels-of-competition test conflicts with the plain language of the Policy Interpretation. The treatise states, in relevant part:
The analysis for percen tages of events at the s ame competitiv e leve l does not identify specifically whether “proportionally similar numbers” of male and female participants are prov ided equivalent com petitive opportunities, per the language of the Polic y Inte rpretation. However, th is an alysis is suf ficiently acc urate f or compliance determinations. The numbers of female and male participants may be calculated where the analysis suggested here indicates significant differences.
Bonnette Treatise at 58 (emphasis added). Thus, even Bonnette acknowledges that the Manual’s approach—the purpose of which was merely to guide investigators in making surface-level compliance determinations in the field—differs from what the Policy Interpretation expressly
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Clarification at 4. That same basic standard should apply here as well. Thus, in keeping with OCR guidance in other areas, I conclude that whether a university’s program-wide competitive schedule violates the equivalent-competition prong of the levels-of-competition test should be determined on a case-by-case basis, taking into account the totality of the circumstances. Like the OCR, I will not endeavor to specify a numeric threshold at which a violation occurs. However, for purposes of this case, I will accept Quinnipiac’s own suggestion that, at the very least, an unjustified disparity of over 5 percent constitutes a violation.
c. Summary To summarize, compliance with Title IX’s “effective-accommodation” requirement is determined by two separate tests: (1) the three-part test; and (2) the levels-of-competition test. In the case at bar, Quinnipiac relies exclusively on the first prong of both tests. Prong one of the three-part test assesses whether Quinnipiac provides substantially proportionate athletic participation opportunities for its female students. Substantial proportionality is determined in two steps. The first step involves determining which of the University’s putative varsity athletic participation opportunities should be counted for Title IX purposes. Whether an athletic participation opportunity will be counted depends on whether it affords an athlete a genuine opportunity to participate in a varsity sport. To be a genuine participation opportunity, an athlete must participate in a legitimate “sport,” which is assessed by considering the set of factors set forth in the 2008 OCR Letter. That includes the presumption in favor of NCAA sports being recognized as intercollegiate sports, as well as the presumption against recognizing cheerleading and its derivatives as sports for Title IX purposes. Moreover, even if an athlete participates on a varsity team in a bona fide “sport,” that athlete’s participation

requires.

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will be counted under Title IX only if the quality of his or her experience is on par with the experience of other varsity athletes. Thus, whether an athlete counts will hinge not only on whether he or she is on a roster list, practiced with a team, or competed in games over the course of the academic year; it will also be decided by examining the totality of the circumstances surrounding his or her participation. Once all of the genuine athletic participation opportunities are counted, the second step of the test is to compare the percentage of athletic participation opportunities provided to women to the percentage of women enrolled as undergraduates. Whether there is a substantial proportionality between Quinnipiac’s female athletes and female students will depend not just on a statistical figure but also on other facts specific to Quinnipiac, such as whether any shortage in female athletes is large enough to sustain an independent women’s varsity team that the University is not presently sponsoring.
Prong one of the levels-of-competition test examines, on a program-wide basis, whether the competitive schedules for men’s and women’s teams provide “proportionally similar” numbers of male and female participants equivalent competitive opportunities. Proportional similarity is determined in four steps. The first step involves calculating the total number of “competitive opportunities” at the declared division level. That calculation, in turn, requires multiplying the number of competitive events against division-level opponents by the number of participants on each team competing in those events. The second step involves a similar calculation of the number of “competitive opportunities” below the declared division level, which requires multiplying the number of competitive events against non-division-level opponents by the number of participants on each team competing in those events. The third step is computing the total number of division-level competitive opportunities and the total number of non-division level competitive opportunities across all teams for each sex, and determining what
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percentage of those opportunities were played against non-division-level opponents. The final step is a comparison of the overall percentage of below-division-level competitive opportunities among the men’s teams versus the women’s teams.
A few other general points bear brief mention. First, it is worth repeating that, apart from my previous decision—and the appeal before the Second Circuit—no other court has addressed the OCR’s test for assessing genuine varsity participation opportunities, and precious few have interpreted Title IX’s effectiveaccommodation requirement more generally. Moreover, the unique procedural circumstances of Quinnipiac’s motion make application of that small universe of Title IX cases all the more challenging. Most—if not all—prior cases have involved a plaintiff seeking to prove a violation of Title IX. Here, however, we encounter a defendant, previously found in violation of Title IX, seeking to prove compliance. That shift in burden of proof—and the equitable lens through which I must view that proof—alters the analysis in significant ways, because evidence sufficient to prove a violation is sometimes qualitatively different from evidence sufficient to prove compliance. See Neal v. Bd. of Trustees of California State Univ., No. Cv-F-97-5009, 1997 WL 1524813, at *13 (E.D. Cal. Dec. 26, 1997) (“The Policy Interpretation presents ways in which plaintiffs may show that a school has violated Title IX; it does not speak to ways by which an institution can show compliance with Title IX.”). In the usual case, if the plaintiff’s proof falls short in certain particulars, the defendant-university wins through operation of the burden of proof. That no longer holds true here. Quinnipiac must now show affirmatively that its athletic program offers genuine varsity participation opportunities, and equivalent athletic competition, for its female population.
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Second, I note from the outset that frequent reference will be made throughout this

opinion to NCAA rules and bylaws. This is so because the OCR has often relied, as a practical

matter, on the self-regulating forces of NCAA guidelines in shaping its approach to Title IX’s

mandates in the context of intercollegiate athletics. Over the past two decades in particular, a

certain symbiosis has developed between NCAA directives and OCR enforcement measures.

But I must emphasize that NCAA regulations and Title IX ultimately serve very different

purposes. The NCAA is principally concerned with fairness among institutions, while Title IX is

concerned with fairness between the sexes. Therefore, compliance with NCAA regulations is not

compliance with Title IX—and vice versa. Nothing in this opinion should be interpreted as

suggesting otherwise.

IV. Conclusions of Law

Quinnipiac moves to lift the July 2010 permanent injunction, claiming the injunction is

no longer warranted because the changes outlined above have brought the University into

compliance with Title IX’s effective-accommodation requirement. First, Quinnipiac argues that

women’s golf, acro, rugby, and track provide female athletes with genuine varsity participation

opportunities, and that the University allocates those and other athletic opportunities in numbers

substantially proportionate to its undergraduate population, in compliance prong one of the three-

part test. Second, Quinnipiac argues that the competitive schedules provided for female athletes

are proportionally similar to those provided for male athletes, in compliance with the first prong

of the levels-of-competition test. I address each of those arguments below. After assessing the

University’s current status under Title IX, I turn to address the crucial—and ultimately

dispositive—inquiry under Rule 60(b)(5): whether Quinnipiac has demonstrated “significant

change” in its allocation of athletic opportunities for women so that continued enforcement of the

injunctive order is no longer equitable.

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A. Substantial Proportionality (Prong One of the Three-Part Test) Prong one of the three-part test assesses whether Quinnipiac provides substantially proportionate athletic participation opportunities for its female students. As noted above, substantial proportionality is determined in two steps. First, I must determine whether the University’s proffered varsity athletic opportunities may be counted under Title IX. For present purposes, that determination turns on whether the University’s three newly-sponsored sports— golf, acro, and rugby—and its revised policies concerning indoor and outdoor track offer the women on those teams genuine athletic opportunities on par with other Division I varsity sports. Second, once all varsity participation opportunities are tallied, I must compare the percentage of athletic opportunities provided to women to the percentage of women enrolled as undergraduates. I structure my analysis along those lines.
1. Countable “Participation Opportunities” In the 2011-12 academic year, Quinnipiac sponsored the following sports: men’s baseball, basketball, cross-country, ice hockey, lacrosse, soccer, and tennis; and women’s acro, basketball, cross-country, field hockey, golf, ice hockey, indoor track, lacrosse, outdoor track, rugby, soccer, softball, tennis, and volleyball. For purposes of this motion, there is no dispute that the following sports provide countable participation opportunities: baseball, basketball, cross-country, ice hockey, lacrosse, soccer, softball, tennis, and volleyball. Thus, my analysis will focus on whether the following sports “count” for purposes of Title IX: (1) women’s golf; (2) women’s acro; and (3) women’s rugby. Further, I must also determine whether certain multisport runners on the women’s indoor and outdoor track teams should be counted as participants under the statute.
a. Women’s Golf
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Women’s golf is recognized as a full-fledged NCAA-championship sport, and is therefore subject to the presumption that the activity provides genuine varsity participation opportunities countable for purposes of Title IX. Moreover, the plaintiffs do not seriously challenge whether Quinnipiac’s golf program provides the eleven female athletes listed on the team’s roster genuine varsity opportunities. Thus, I will count the golf team’s eleven studentathletes as “participants” under the statute.
But before turning to consider the other proffered changes to Quinnipiac’s athletic program, one additional point must be made with respect to golf. Quinnipiac has argued that, by adding golf, it is entitled to replace the fourteen participation opportunities provided by women’s volleyball with the eleven participation opportunities that golf now supplies. In Quinnipiac’s view, the elimination of volleyball is justified regardless of whether acro, rugby, or any other putative varsity opportunity counts for purposes of Title IX. That argument, however, fails to persuade.
Under the terms of the permanent injunction, Quinnipiac may not eliminate volleyball— or any women’s team for that matter—unless it has otherwise reached full compliance with Title IX. In 2010, this court found that Quinnipiac’s participation count missed the mark on proportionality by 3.62 percent—a deficit of thirty-eight participation slots. See Biediger, 728 F. Supp. 2d at 111-12. By adding golf to its varsity lineup, Quinnipiac narrowed that gap by less than a third.
Further, substantial proportionality is measured on a program-wide basis, not sport by sport. Thus, the fact that golf was added to narrow the participation gap does not mean that golf can “replace” volleyball. Cf. Barrett v. West Chester Univ. of Pennsylvania State Sys. of Higher Educ., No. 03-cv-4978, 2003 WL 22803477, at *9 (E.D. Pa. Nov. 12, 2003) (rejecting the
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argument that defendants “simply replaced the participation opportunities in gymnastics with those of the future women’s golf team” by stating “even if the golf team were to provide as many female participation opportunities as did the gymnastics team, there is still a significant disparity in proportionality”). Indeed, the issue in this case is not whether Quinnipiac may swap golf for volleyball, but rather whether Quinnipiac has made sufficient changes to its athletic program as a whole to justify, as an equitable matter, lifting the injunction to permit the University to eliminate an existing women’s NCAA-championship sport. The addition of golf, therefore, does not, by itself, justify the elimination of volleyball.
b. Women’s Acro Acro (formerly competitive cheer) is not recognized by the NCAA as either a championship sport or an emerging sport. Thus, unlike golf, acro is not entitled to any presumption in favor of it being considered a sport under Title IX. Instead, Quinnipiac bears the burden of proving, by a preponderance of the evidence, that its acro program satisfies the factors listed in the 2008 OCR Letter. But that burden is even weightier than it may at first appear. Not only must Quinnipiac prove that acro possesses the intrinsic and extrinsic attributes of an intercollegiate-level varsity sport, the University must also overcome the OCR’s presumption against treating cheer-based activities as “sports” under Title IX. And it must do so in the shadow of this court’s previous decision, rendered only two years ago and more recently affirmed by the Second Circuit, that this very same athletic activity—though, then, called by a different name—did not (yet) qualify as a varsity sport for purposes of Title IX. Nevertheless, consistent with the OCR’s policy, I turn to the set of factors that the agency uses to determine whether an activity is a sport, and examine whether, on the facts of the 201112 season, Quinnipiac’s acro team was a team whose members may be counted as athletic
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participants under Title IX. For purposes of this opinion, I will assume that Quinnipiac’s acro program for the 2011-12 season continued to satisfy all of the factors that I previously determined its predecessor—competitive cheer—satisfied in the 2009-10 season. That is a safe assumption, because the evidence at trial generally indicated that the acro team’s budget, benefits and services, coaching staff, scholarships and awards, and practice opportunities were all provided in a manner consistent with established varsity sports. Further, I have no doubt that the acro team’s purpose is to compete athletically at the intercollegiate level, and that its members were selected for—and remain dedicated to—that purpose. Indeed, I continue to be impressed and inspired by the athleticism, skill, and commitment to excellence that these student-athletes demonstrate.
As explained below, however, the incremental changes Quinnipiac has made to its cheer—now acro—program over the past two years are not enough to qualify the activity as an authentic varsity “sport” for purposes of Title IX. Quinnipiac has not overcome the presumption against treating this activity as a countable athletic participation opportunity under prong one.
i. Recognition by the NCAA or Other Authorities To determine whether a putative sport qualifies as an intercollegiate-level participation opportunity for purposes of Title IX, the OCR first considers whether knowledgeable athletic organizations and authorities recognize the activity to be a legitimate varsity sport. See 2008 OCR Letter at 2; April 2000 OCR Letter at 2; see also Brief of the United States as Amicus Curiae at 16 (“OCR focuses not on the national availability and popularity of the activity, but rather on the recognition of the activity as a sport by those knowledgeable organizations and associations. As such, the court’s first inquiry should be whether [the activity] has been recognized as part of an intercollegiate athletic organization.”). As indicated at trial, however,
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neither the NCAA nor the OCR currently recognizes acro as a sport. In my view, lack of recognition is sufficient to tip the balance against treating an athletic
endeavor as an authentic varsity “sport” for purposes of prong one. True, recognition by the NCAA is not, in itself, a requirement of Title IX.45 But where, as here, a school chooses to sponsor an athletics program at the highest level of competition (NCAA Division I), and offers all of its male athletes the opportunity to participate in NCAA-championship sports, the lack of NCAA recognition for a single women’s sport within that program raises a significant genderequity issue if the school hopes to count that unrecognized sport toward compliance with Title IX. So long as Quinnipiac chooses to hold itself out as a Division I institution, providing a full slate of NCAA-recognized sports for men, equity demands that it do the same for women.
The circumstances of acro’s failure to win recognition as an emerging sport are also significant. This is not a case in which a putative sport simply has yet to be considered by the NCAA or other officials with expertise in college athletics. On the contrary, the NCAA’s CWA—the undisputed authority on intercollegiate sports for women, and the source from which the OCR’s presumption in favor of recognized emerging sports arises—has specifically reviewed the NCATA’s emerging-sport proposal and determined that, due to its ongoing rivalry with STUNT, the competing factions within cheer-based sports must first compromise their differences before recognition can be awarded. Accordingly, the CWA has, in effect, determined that neither acro nor STUNT is ready to be recognized on its own as an emerging sport, at least
45 Indeed, under the statute, universities are not “required” to offer intercollegiate athletics at all. The only requirement imposed by Title IX is that, if a school chooses to offer athletics, it must do so on a nondiscriminatory basis. See Cohen, 991 F.2d at 906 (“Title IX does not require institutions to fund any particular number or type of athletic opportunities—only that they provide those opportunities in a nondiscriminatory fashion if they wish to receive federal funds.”).
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until the internal divisions within the former competitive-cheer community are resolved. Under

the circumstances, I see no reason for this court to interfere with the CWA’s judgment on matters

squarely within its realm of expertise. So long as acknowledged authorities in intercollegiate

athletics decline to recognize acro as an authentic varsity sport, courts should hesitate before doing otherwise.46 For this reason alone, I conclude that Quinnipiac has failed to overcome the presumption against treating acro as a varsity “sport” for purposes of Title IX.47

ii.

Intrinsic Factors

Even putting aside the lack of recognition by the NCAA, Quinnipiac has failed to prove

that acro satisfies certain “intrinsic” factors that the OCR has identified as fundamental to

intercollegiate varsity sports, such as: whether competition is judged by a consistent set of rules;

whether the number of competitions and length of play are determined by a governing athletics

organization; whether the activity has a defined season; and whether post-season competition is

dependent on regular season results.

The evidence showed that the NCATA has indeed become better organized over the past

two years, and has adopted a consistent format for regular season competitions. But the ongoing

rift between the NCATA and STUNT means that, at least for now, the rules, competitive format,

and structure of cheer-based sports will remain in flux, as some teams gravitate toward one

46 Indeed, plaintiffs’ Title IX expert, Donna Lopiano, testified that, until the NCAA recognizes acro as a sport, and until Quinnipiac asks for and receives a determination letter from the OCR stating that its acro program qualifies as an intercollegiate varsity sport, the University should not be permitted to count acro as a varsity sport for Title IX purposes. Trial Tr. at 855. Quinnipiac, in contrast, proffered no expert testimony concerning acro’s status as a varsity sport.
47 In reaching this conclusion, I do not mean to disparage or discourage non-varsity athletic opportunities for women. The experience of participating on a club or intramural team— particularly in the context of a new and innovative sport—is undoubtedly a challenging and meaningful one. The issue in this case, however, is only whether Quinnipiac’s varsity athletics program offers equal opportunity to women.
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iteration of the sport while others gravitate toward competing iterations. Until some reconciliation is reached or one of the alternatives becomes widely adopted, acro’s format will be subject to modification. No other varsity team sponsored by Quinnipiac risks training under a competitive format that is subject to change as rival factions battle over how the sport ultimately will be defined.
The NCATA has also introduced a post-season competition format that ranks teams based on regular season results. But, due to the extraordinarily small number of schools sponsoring acro, the NCATA’s national championship remains open to each and every acro team in the country. There is currently no progressive playoff system or entrance qualification, such as a minimum win tally over the course of the season. Nor, as a practical matter, is a playoff system feasible at this early stage in acro’s development. With so few teams in existence, the NCATA’s growth strategy requires that it extend invitations to its national tournament to every acro team in existence. This, too, differentiates acro from other varsity sports sponsored by Quinnipiac. No other team receives an automatic bid to nationals; a free pass that dilutes the experience compared to legitimate post-season competition.
iii. Extrins ic Factors With respect to the “extrinsic” factors identified in the 2008 OCR Letter, Quinnipiac has come closer to meeting its burden of proof. By “extrinsic” factors, I mean those factors that bear on whether an athletic activity is administered by the university in manner consistent with bona fide varsity sports, including: whether participants are recruited in a manner consistent with other varsity sports; whether competitive opportunities differ quantitatively or qualitatively from established varsity sports; whether the competitive schedule reflects the abilities of the team; and whether the team participates in pre-season or post-season competition in a manner consistent
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with other varsity sports. Over the past two years, Quinnipiac’s acro program has seen discernible improvements
with respect to each of these factors. But Quinnipiac’s program still falls short in certain particulars. I address the most significant shortcomings below.
First, although Coach Powers conducted some off-campus recruiting during the 2011-12 academic year, her recruitment strategies for acro differed from established varsity sports. Unlike the coaches of every other varsity team sponsored by the University, Powers could not recruit athletes based on their mastery of acro’s specific competitive format, because no high school in the country currently sponsors an acro program of its own. Instead, Powers was forced to scout athletes from the ranks of myriad other sports, hoping that skills honed in those sports would be transferable to acro. And while coaches in established varsity sports may, from time to time, recruit athletes from disparate athletic backgrounds, for Powers this exception became the rule. Powers had no choice but to draw her recruits from a pool of student-athletes who had never before competed in the sport of acro. As a result, Powers could only know by inference and guesswork what other coaches knew for sure: whether a particular athlete competes effectively in the sport for which she is being recruited. For these reasons, recruitment for acro differed both quantitatively and qualitatively from every other varsity sport in the University’s athletics program.
Second, despite a newly-implemented competitive schedule that consisted solely of collegiate varsity opponents, there are still far too few acro programs in existence to provide genuine intercollegiate competition on the varsity level. In 2011-12, for example, there were only six teams—including Quinnipiac—nationwide. No men’s varsity team plays such a tiny universe of opponents. And although Quinnipiac competed against each and every extant acro
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team during the 2011-12 season, there was significant variation in the declared division level

among those opponents. Out of Quinnipiac’s ten regular-season competitions, only six involved

fellow NCAA Division I competitors; the remaining events were contested against NCAA

Division II teams, or even NAIA teams. That fact further distinguishes acro from every men’s

team sponsored by the University; not one men’s team played a single regular-season game

against non-Division I opponents.

iv.

Conclusion

In its 2008 Letter, the OCR made clear that the inquiry into whether an athletic activity

qualifies as an intercollegiate varsity “sport” is based on the totality of the circumstances and

should be analyzed on a case-by-case basis. Furthermore, the balancing of factors identified in

that letter must be performed with an eye towards whether the participants in a putative sport are

receiving genuine athletic participation opportunities equivalent to the opportunities provided to

athletes in other established varsity sports. Based on the 2011-12 season, I find that acro still

lacks the organizational structure that distinguishes extracurricular athletic activities from

intercollegiate varsity sports for purposes of Title IX. In particular, I find the lack of recognition

by the NCAA, the ongoing rivalry with STUNT, the sport’s unconventional recruiting

difficulties, and the team’s inadequate regular-season and post-season competition sufficient to

conclude that Quinnipiac’s acro program cannot be considered—at least not at this stage in its

development—an intercollegiate-level varsity “sport” under Title IX.

One final note. It bears repeating that Quinnipiac has chosen, as a matter of litigation

strategy, to rely exclusively on prong one of the three-part test to establish its conformity with

Title IX’s effective-accommodation requirement. Accordingly, my conclusion that Quinnipiac

may not count its acro program toward compliance with Title IX is confined to the analysis

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under prong one—the only prong in which an assessment of substantial proportionality in
“intercollegiate level participation opportunities” is required. 44 Fed. Reg. at 71,418. I need
not—and do not—decide today whether, under different circumstances, a university’s
sponsorship of a varsity-level acro program could count toward compliance under prongs two or
three.48
c. Women’s Rugby
The status of Quinnipiac’s women’s rugby team presents a closer question. Rugby is
recognized by the NCAA, and is therefore subject to the presumption that participants on the
rugby team count for purposes of Title IX. The issue here is whether that presumption has been
effectively rebutted by the evidence presented at trial. To make that determination, I must return
to the set of extrinsic and intrinsic factors identified in the 2008 OCR Letter.
i. Recognition by the NCAA or Other Authorities
48 As a practical matter, Quinnipiac’s decision to rely exclusively on prong one was most likely motivated by necessity, rather than strategy. Generally speaking, a defendant-university is unlikely to satisfy prong two’s requirement of demonstrating a “history and continuing practice of program expansion” for women where, as here, the university recently sought to eliminate an existing varsity women’s sport. See 1996 Clarification at 7 (“In the event that an institution eliminated any team for the underrepresented sex, OCR would evaluate the circumstances surrounding this action in assessing whether the institution could satisfy part two of the test.”). For similar reasons, it is unlikely that a defendant-university could demonstrate, for purposes of prong three, that the interests and abilities of female students have been “fully and effectively accommodated by the present program” where, as here, the university has sought to eliminate, over its athletes’ objections, an existing varsity women’s sport. See Russlynn Ali, Assistant Secretary for the Office for Civil Rights, Dep’t of Education, Dear Colleague Letter, at 5 (Apr. 20, 2010) (“[I]f an institution recently has eliminated a viable team for the underrepresented sex from the intercollegiate athletics program, OCR will find that there is sufficient interest, ability, and available competition to sustain an intercollegiate team in that sport and thus there would be a presumption that the institution is not in compliance with Part Three.”); see also Ollier v. Sweetwater Union High Sch. Dist., 604 F. Supp. 2d 1264, 1274 (S.D. Cal. 2009) (“[W]hen a viable team is eliminated, unmet interest is strongly suggested.”). Thus, under the circumstances, Quinnipiac probably had little choice but to rely solely on prong one to demonstrate compliance.
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The OCR’s threshold inquiry is whether the activity under consideration has been recognized as an authentic varsity sport by intercollegiate athletic organizations, such as the NCAA. As noted above, the NCAA currently recognizes rugby as an emerging sport, and as a result of that recognition, the OCR will presume that Quinnipiac’s rugby program provides female athletes the opportunity to participate in an intercollegiate varsity “sport” for Title IX purposes. But in the context of this case, that presumption has lost much of its force, because rugby has reached the outer limit of its ten-year provisional period as an emerging sport without adding a sufficient number of varsity programs nationwide to qualify for advancement to NCAA-championship status. Only five schools in the country, including Quinnipiac, currently sponsor varsity women’s rugby—far fewer than the number of sponsoring-schools previous emerging sports enjoyed when they were nevertheless stripped of their status for lack of growth. Having failed to rally enough support among NCAA-member institutions, rugby risks losing recognition as an emerging sport in the very near future.
In light of rugby’s precarious position within the NCAA, the usual presumption based on NCAA recognition is weakened in this case; rugby may be recognized today, but not tomorrow. Moreover, because the equitable inquiry under Rule 60(b)(5) is forward-looking, see Fed. R. Civ. P. 60(b)(5) (“[T]he court may relieve a party or its legal representative from a final judgment, order, or proceeding [if] . . . applying it prospectively is no longer equitable.”) (emphasis added), the fact that rugby has little prospect of retaining NCAA recognition going forward is particularly relevant here. Accordingly, I conclude that, under the unique circumstances of this case, the presumption in favor of counting Quinnipiac’s rugby program for Title IX purposes is entitled to considerably less weight. With that in mind, I turn my attention to the remaining factors under the 2008 OCR Letter.
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ii. Intrin sic Factors

Rugby, which has been played in its current form for more than a century, plainly

possesses the intrinsic qualities of an authentic sport. Without a doubt, rugby’s purpose is

athletic competition, its contests are governed by a uniform set of rules, its players are selected

for their ruthless athleticism, and its competitive season and length of play are all well settled.

Moreover, USA Rugby—the sport’s national governing body—sponsors an annual post-season

tournament in which member teams compete based on their regular-season results. Indeed, the

plaintiffs concede that rugby is unquestionably a “sport,” and that collegiate rugby is, at the very least, capable of providing genuine athletic participation opportunities.49 At issue is whether

Quinnipiac administers its rugby program as an intercollegiate-level sport on par with other

varsity sports offered by the University. See 1979 Policy Interpretation, 44 Fed. Reg. at 71,418

(assessing proportionality of “intercollegiate level participation opportunities” for purposes of

prong one) (emphasis added). In other words, whether Quinnipiac may count its rugby athletes

for Title IX purposes depends on whether the school’s rugby program is conducted in a manner

that satisfies the various extrinsic factors outlined in the 2008 OCR Letter.

iii.

Extrinsic Factors

Quinnipiac’s rugby program, at least as it was organized and administered in the 2011-12

season, lacked the extrinsic qualities required to provide its female athletes with participation

opportunities on par with other Division I varsity sports.

True, Quinnipiac afforded its newly-minted rugby team many of the same benefits that

established varsity teams receive, such as professional coaching, support services, practice

49 Indeed, Lopiano testified: “[R]ugby absolutely is a sport. The question is whether it’s being conducted as a Division I varsity level program.” Trial Tr. at 859.
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opportunities, scholarships and awards, and an annual budget tailored to the needs of the team.
Those benefits are no doubt integral to the development, support, and maintenance of a
successful intercollegiate varsity team, and they certainly represent a significant investment on behalf of the University.50
But varsity sports, at their core, are all about competition. For this reason, when
assessing varsity programs under Title IX, the OCR places considerable emphasis on factors
related to team competition, such as: (1) whether competitive opportunities differ quantitatively
or qualitatively from established varsity sports, including “whether the team competes against
intercollegiate or interscholastic varsity opponents in a manner consistent with established
varsity sports”; and (2) whether the activity provides an opportunity for athletes to participate in
pre-season or post-season competition in a manner consistent with other varsity sports, including
“whether state, national and/or conference championships exist for the activity.” 2008 OCR
Letter at 3 (emphasis added); Biediger, 728 F. Supp. 2d at 100-01 (citing Brief of the United
States as Amicus Curiae at 19-20). As I stated in my previous decision, “[w]hom a team plays
against, how often the team plays, under what conditions competitions are held, and how a
champion is eventually selected are all essential to the varsity experience; a team’s regular and
post-season scheduling defines the quantitative and qualitative scope of competition and creates
the reason for which team members practice and train during the year.” Biediger, 728 F. Supp.
50 Coach Carlson also recruited athletes for rugby in a manner that was generally consistent with other varsity sports, but only two recruits actually joined the team as a result. The vast majority of rugby’s participants were culled directly from the student body after a series of meetings and open tryouts. Although I am somewhat skeptical that a fully-competitive Division I varsity team can be created in a single season based on an open call and a pair of recruits, this factor does not weigh heavily in my analysis. Quinnipiac has, at the very least, demonstrated that Coach Carlson’s methods of recruitment for rugby—for example, off-campus scouting of high school rugby athletes—were generally equivalent in kind to the recruitment strategies of established varsity sports.
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2d at 101. During the 2011-12 season, however, Quinnipiac’s women’s rugby program fell short
on each of those crucial elements.
First, rugby’s competitive schedule differed both quantitatively and qualitatively from
other varsity sports. Every other Quinnipiac varsity team—including acro—played a full
schedule of varsity competitors. The rugby team, in contrast, played not only some, but a majority of its regular season against non-varsity club teams.51 Such diminished competitive
opportunity is inconsistent with a varsity program at an NCAA Division I institution. As I stated
before, the “[t]wo basic features of any other collegiate varsity program are the application of a
uniform set of rules for competition and the restriction of competition to contests against other
varsity opponents.” Id. at 99-100 (emphasis added). Rugby may have satisfied the former requirement, but it has not satisfied the latter.52
In my view, for purposes of prong one, Quinnipiac’s rugby team does not presently
provide female athletes with genuine “intercollegiate level participation opportunities,” 44 Fed.
Reg. at 71,418 (emphasis added), equivalent to other Division I varsity teams. That will not
change until, at the very minimum, a majority of its competitions are scheduled against varsity-
level opponents. See id. at 71,413 n.1 (distinguishing “intercollegiate” teams from club or
intramural teams); see also Cohen v. Brown Univ., 101 F.3d 155, 173 (1st Cir. 1996) (endorsing
51 Moreover, of the four other varsity women’s rugby teams at the college level, only one is designated Division I: Eastern Illinois. Thus, even if Quinnipiac provided its rugby team with a full varsity schedule, the team would have but a single competitor in the entire country at the University’s declared division level.
52 The University argues that, despite spending most of its regular season competing against non-varsity club teams, rugby’s competitive schedule still “reflect[ed] the abilities of the team,” 2008 OCR Letter at 3, because Quinnipiac’s team ended the 2011-12 season with a relatively mediocre win-loss record. In my view, however, win-loss records make poor proxies for measuring competitive opportunity under Title IX. A team’s win-loss record is a function not only of the strength of competition, but innumerable other factors, such as injuries, scheduling
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the view that “intercollegiate” teams, for purposes of prong one, are those that “regularly participated in varsity competition”) (emphasis added). So long as the University offers every other varsity team a full array of varsity competitors, it must do substantially the same for rugby—at least if it hopes to count its rugby program toward compliance with prong one. Anything less violates not only the spirit but the letter of the Policy Interpretation.
Second, the rugby team lacked the opportunity to participate in any post-season competition in 2011-12, let alone participate “in a manner consistent with established varsity sports.” 2008 OCR Letter at 3. Neither the NCAA nor the NEC—the regional athletic conference to which every other established varsity team at Quinnipiac belongs—sponsors postseason contests in women’s rugby. As a result, the rugby team was consigned to a separate regional division sponsored by USA Rugby: Metro NY. But even within that division, Quinnipiac’s team could not avail itself of post-season opportunities. An ice storm forced the cancelation of last year’s Metro NY regional play-offs and, for reasons that were not addressed at trial, the regional tournament was never rescheduled. Coach Carlson, however, testified that, even if the playoffs had gone forward as planned, and even if the team’s schedule did not pose any additional conflicts, due to the tournament’s grueling consecutive-game-day schedule, she would not—and will not—permit her players to participate in the Metro NY regional for fear of their safety. That decision effectively forecloses any chance of the team competing for USA Rugby’s national championship, at least until Metro NY modifies the tournament’s format.
Although I commend Carlson for protecting her athletes’ welfare, the very fact that the Metro NY regional is structured in a way that invites such safety hazards demonstrates that USA Rugby—or women’s rugby in general—is not yet sufficiently organized within Quinnipiac’s
conflicts, and even luck. Therefore, this factor receives little weight in my analysis. - 75 -

competitive region to offer post-season opportunities on par with the NEC or NCAA-sponsored regional or conference tournaments that other teams enjoy. It is difficult to imagine the men’s hockey team, for example, declining to participate in post-season tournament play because the NEC or NCAA failed to structure its contests in compliance with basic player-safety standards. If Quinnipiac is serious about sponsoring women’s rugby as a Division I varsity sport, it should not tolerate its team competing in a region in which post-season championships are, in the Coach’s estimation, too dangerous to win.
Moreover, even if Quinnipiac’s rugby team were permitted to participate in post-season tournaments, the team’s regional and conference post-season competition would consist entirely of club teams. No other school in the Metro NY region sponsors a varsity team. Nor do any schools in USA Rugby’s Northeast Conference. Indeed, the only point at which Quinnipiac would encounter varsity opponents during the post-season is at the national championship itself—assuming one of the four other varsity teams in existence wins their conference tournament and therefore qualifies for nationals. On that basis, rugby is unlike any other established varsity team at Quinnipiac: all other teams—with the exception of acro—compete in NEC and NCAA-sponsored tournaments against a full slate of varsity competitors.
iv. Conclusion As noted above, the determination whether an athletic activity qualifies as an intercollegiate varsity sport for purposes of Title IX is based on the totality of the circumstances and should be analyzed on a case-by-case basis. This case, however, involves procedural—as well as factual—circumstances that are somewhat unique. Although rugby is currently recognized by the NCAA as an emerging sport, I have concluded that the rebuttable presumption that normally arises from that recognition does not carry the usual force in this case, given the
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uncertainty surrounding rugby’s future within the NCAA. Accordingly, I must weigh the various factors under the 2008 OCR Letter to determine whether, on balance, the plaintiffs have successfully rebutted that less-forceful-than-usual presumption. And although plaintiffs generally bear the burden of proof on that issue, I am mindful that, to succeed on its motion to lift the injunction, Quinnipiac bears the ultimate burden of proving its compliance with Title IX.
Considering the totality of the circumstances, I conclude that, on the basis of the 2011-12 season, Quinnipiac should not be permitted to count its nascent rugby program among the University’s intercollegiate-level varsity sports for purposes of prong one. Although rugby is unquestionably a “sport” (that is, it has all of the intrinsic qualities of a sport), the manner in which Quinnipiac’s rugby program was administered in its inaugural season ultimately deprived female participants of the competitive opportunities essential to a genuine varsity experience. Specifically, I find that the rugby team’s majority club competition in the regular reason, the absence of any potential varsity competition in the regional and/or conference post-season, and the team’s inability to compete for a regional, conference, or national championship due to safety concerns with the regional tournament’s current format are sufficient, in the aggregate, to overcome the presumption in favor of counting rugby’s participants for Title IX purposes.53
I also find unpersuasive Quinnipiac’s argument that, by declining to count participants in an emerging sport—like rugby—for prong-one purposes based on the lack of available varsity competition, my decision today conflicts with OCR policies in favor of expanding athletic opportunities for women. I recognize that emerging sports, by definition, require an incubation period in which to grow and develop, and that during that period first-generation varsity teams
53 Because I have concluded that the rugby team as a whole cannot be counted toward compliance with prong one, I need not decide whether the two individual rugby athletes challenged by the plaintiffs qualify as “participants” under the statute.
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will inevitably spend a portion of their regular seasons competing against club teams to round
out their schedules. But even assuming that, under those circumstances, participants in emerging
sports can never be counted for purposes of prong one—a conclusion I do not reach today—it
does not follow that emerging sports count for nothing under Title IX. On the contrary, it seems
all but certain that sponsorship of emerging sports could count toward compliance under prongs
two or three.
Under prong two, for example, the OCR has explained that “an institution has flexibility
in choosing which teams it adds for the underrepresented sex, as long as it can show overall a
history and continuing practice of program expansion for members of that sex.” 1996
Clarification at 6 n.3. Schools that sponsor emerging sports—even those for which a majority
varsity schedule is lacking—are no doubt expanding opportunities for female athletes for prongtwo purposes.54 Alternatively, under prong three, schools comply with Title IX’s mandate when
“the interests and abilities of [the female] sex have been fully and effectively accommodated by
the present program.” 44 Fed. Reg. at 71,418. So long as sponsorship of emerging sports
contributes to full and effective accommodation of athletic interests and abilities, emerging
sports will count toward compliance with prong three as well. Thus, although I conclude that
participants in Quinnipiac’s rugby program may not be counted for purposes of prong one—the
only prong under which Quinnipiac claims to be compliant—my decision by no means precludes
54 Indeed, among the hypothetical examples provided in the 1996 Clarification, the agency’s only mention of emerging sports comes in the context of prong two. See 1996 Clarification at 7 (“Institution C is currently implementing a plan to add a varsity women’s team in the spring of 1996 that has been identified by a regional study as an emerging women’s sport in the region. The addition of these teams resulted in an increased percentage of women participating in varsity athletics at the institution. Based on these facts, OCR would find Institution C in compliance with part two because it has a history of program expansion and is continuing to expand its program for women in response to their developing interests and abilities.”) (emphasis added).
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the possibility that, under different procedural circumstances, a school’s sponsorship of women’s rugby would count for purposes of prongs two or three.
d. Women’s Indoor and Outdoor Track Cross-country, indoor track, and outdoor track are recognized by the NCAA as separate championship sports, and athletes in each of those sports are therefore presumptively countable as participants under Title IX. Moreover, as demonstrated at trial, the fundamental problem that precipitated my previous decision to deduct certain multisport runners from Quinnipiac’s counting of indoor and outdoor track participants has apparently been resolved. As a result of the University’s newly-implemented policy on multisport athletes, Coach Martin no longer requires female cross-country athletes to participate in track as well. Accordingly, because “an athlete who participates in more than one sport will be counted as a participant in each sport in which he or she participates,” 1996 Clarification at 3, multisport athletes on Quinnipiac’s three separate women’s running teams can now be duly counted three separate times, so long as those athletes meet the definition of “participant” in each of those sports. In light of the above, the plaintiffs’ arguments with respect to track have become more nuanced at this stage in the litigation. The plaintiffs no longer assert that the University’s crosscountry, indoor track, and outdoor track programs should not be considered separate sports. Rather, they challenge Quinnipiac’s method of counting specific track athletes as “participants” for Title IX purposes. The plaintiffs target two categories of runners in particular. First, they contend that certain injured or red-shirted multisport runners who did not actually compete in track should not be double- or triple-counted under the statute. Second, they argue that a number of multisport athletes who quit the track team less than half-way through the regular season without competing in a single track event similarly should not be counted. I address each of
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those contentions separately. i. Runners Who Were Injured and Did Not Compete
First, the plaintiffs argue that approximately a dozen multisport runners who were injured during the indoor or outdoor track season and did not compete in any track events should not be counted as track participants. The OCR defines “participants” as athletes who are (1) receiving “‘institutionally-sponsored support’” (i.e., coaching, equipment, medical and training room services) on a regular basis; and (2) “‘participating in organized practice sessions and other team meetings and activities on a regular basis’”; and (3) “‘listed on the eligibility or squad lists maintained for each sport.’” 1996 Clarification at 3 (quoting 44 Fed. Reg. 71,415). Moreover, an athlete who, “‘because of injury,’” cannot meet the above criteria will still be counted as a participant if she “‘continue[s] to receive financial aid on the basis of athletic ability.’” Id. (quoting 44 Fed. Reg. 71,415) (emphasis added).
Notably, the definition of participant makes no mention of competition, and official OCR guidance provides that the agency will, in fact, count as participants “those athletes who practice but may not compete.” Id. In my view, that narrow expansion of the participant-universe is reasonable and necessary so that so-called “benchwarmers”—athletes who practice and train just as hard as starters, yet unfortunately never get to play—are properly counted. But where, as here, a school seeks to count an injured runner as a participant in a sport like track—a sport in which there are effectively no benchwarmers,55 and for which common injuries preclude athletes from competing or even running at all—a more searching inquiry may be needed to ensure that the athlete’s varsity experience is “real, not illusory.” 1996 OCR Letter at 4.
55 Coach Carlson testified that track meets are usually structured as open invitationals in which virtually any runner—including coaches or other unaffiliated athletes—may compete. See Trial Tr. at 546-47; 554-57.
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In the case at bar, there is no dispute that the non-competing injured runners in question were listed on the squad lists for indoor and/or outdoor track and received institutionallysponsored support. Therefore, Quinnipiac may overcome the plaintiffs’ challenge by demonstrating that those athletes either (1) regularly “participat[ed] in organized practice sessions and other team meetings and activities”; or (2) “receive[d] financial aid on the basis of athletic ability.” 1996 Clarification at 3 (internal quotation marks omitted). Because only one of the challenged runners received a scholarship for track,56 the remaining runners may only be counted as track participants if the University can show, by a preponderance of the evidence, that those runners practiced and attended team activities on a regular basis.
Determining whether individual runners with disparate injuries of varying severity participated regularly and meaningfully in organized practice sessions and other activities over the course of the season is necessarily a fact-intensive inquiry. Here, however, I lack a sufficient factual record to make that determination. For reasons left unexplained at trial, during the 201112 season, Quinnipiac failed to keep any record whatsoever of attendance at track team practices, despite an NCAA requirement to do so.57 As a result, the only evidence presented by either party on athlete-specific practice-participation rates was the testimony of Coach Martin, who
56 Approximately four of the challenged track athletes received athletic aid for crosscountry, but did not receive aid for indoor or outdoor track. To the extent Quinnipiac seeks to count these athletes as participants in track based solely on their scholarships in cross-country, I disagree. In my view, a multisport athlete must independently meet the definition of “participant” in each sport for which the University seeks to count her. Athletes are not automatically countable in one sport merely because they receive athletic aid in a different sport.
57 Obviously, keeping practice records is not, in itself, a requirement of Title IX. But it is no less obvious that keeping practice records during the 2011-12 season was going to be a requirement for proving compliance with Title IX at the trial in this case.
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struggled—quite understandably—to recall the athletes’ individual circumstances.58 Moreover, neither party came forward with any corroborative evidence—such as medical records or testimony from the athletes themselves—concerning the nature or severity of each runner’s injuries, or the physical limitations they suffered as a result. Based on my review of this limited record, it appears that some, though not all, injured runners were able to meaningfully participate in practice sessions and other activities on a regular basis. But without more information, drawing distinctions between individual athletes to determine which runners should or should not count as track participants is simply impracticable.
Although Quinnipiac bore the burden of proof—and ultimately should bear the risk—on this issue, because the number of challenged athletes is relatively small and including them in the participation count does not affect the outcome of this case, for purposes of this motion, I will assume without deciding that injured runners who did not actually compete nonetheless regularly participated in practice sessions and other team activities. Based solely on that assumption, and only for this limited purpose, I will count those athletes as participants for Title IX purposes.
ii. Runners Who Quit the Team and Did Not Compete The plaintiffs’ second challenge involves a far less complex factual determination. The plaintiffs argue that Quinnipiac should not be permitted to count three indoor track athletes who quit the team before having a chance to compete in any track events. As explained below, I agree with that assessment.
58 Although Quinnipiac failed to submit any written record of individual practiceparticipation rates, with respect to attendance at track competitions and events, the University did submit Coach Martin’s score sheets, which indicated whether individual runners were injured or red-shirted during each meet. Therefore, there is at least some—albeit minimal—evidence to corroborate Coach Martin’s testimony that injured runners attended track meets on a regular basis.
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Under the plain language of the 1996 Clarification, to qualify as a “participant” for
purposes of Title IX, a student-athlete must, inter alia, “participat[e] in organized practice
sessions and other team meetings and activities on a regular basis during a sport’s season.”
1996 Clarification at 3 (emphasis added). Moreover, at least one court has held that, to be
included in the participant count, an athlete must participate on the team for a majority of the
season. See Cohen, 879 F. Supp. at 192 (“A team member who participated for the majority of
the season should be acknowledged as a participant.”) (emphasis added).
Here, indoor track’s competitive season began with the team’s first event on December 3,
2011 and continued through the final event on March 5, 2012. See Trial Tr. at 523-26. One
athlete, however, quit the team by December 9, 2011; two others followed suit by January 11,
2012. None of those runners competed in a single track event. Although Coach Martin testified
that, according to her recollection, all three participated in practice sessions in the weeks leading
up to the semester break, no practice records exist to verify her memory.
In my view, in the absence of records documenting individual participation at practices,
Quinnipiac has failed to demonstrate that these athletes, who quit the team less than half-way
through the regular season without competing in a single track event, participated in track “on a
regular basis.” 1996 Clarification at 3. Therefore, I conclude that these three athletes cannot be counted as participations under the statute.59
59 That result is unchanged by the fact that one of those three runners received financial aid based on athletic ability. First, the athlete in question received aid not for indoor track, but for cross-country. As explained supra note 56, athletes do not automatically count as participants in one sport merely because they receive athletic aid in a different sport. Second, even if that runner did receive financial aid for indoor track, she still would not count as a track participant on that basis alone. Under the OCR’s four-part definition of participant, only athletes who, “because of injury,” fail to meet the other three criteria will be counted as a participant based on the athletic scholarship they receive. 1996 Clarification at 3 (emphasis added). The runner at issue here, however, failed to meet the other criteria not because of injury, but because
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2. Calculating “Substantial Proportionality” Having analyzed which women’s teams sponsored by the University count for purposes of prong one, I will now apply the formal, two-step process that the OCR uses to determine whether a school provides substantially proportional athletic participation opportunities. First, I will count the total number of participants; second, I will determine whether that total is substantially proportional to the University’s undergraduate female population. Based on the analysis above, I conclude that a total of sixty-seven women must be removed from Quinnipiac’s tally of female athletes during 2011-12. Those sixty-seven women represent the thirty-six athletes in acro, twenty-eight athletes in rugby, and three indoor track runners who quit the team less than half-way through the regular season and did not compete in a single track event. Quinnipiac’s roster count shows that 321 female athletes and 168 male athletes participated on varsity teams during the 2011-12 academic year. As noted above, sixty-seven female athletes must be removed from Quinnipiac’s count, which leaves 254 female athletes. That completes the first step of the analysis. The second step is to compare the proportion of women properly counted as Quinnipiac’s varsity athletes to the proportion of women in the University’s undergraduate population. The University’s enrollment data showed that, in the 2011-12 academic year, 62.4 percent of Quinnipiac’s undergraduates were women. Under the Title IX count, however, only 60.2 percent—254 female athletes out of 422 total athletes—of Quinnipiac’s varsity athletes were female. That results in a 2.2 percent disparity. The OCR has not established a threshold statistical figure for determining whether a

she quit the team prematurely.

- 84 -

school offers participation opportunities substantially proportional to its enrollment, but instead examines each school on a case-by-case basis. 1996 Clarification at 4. Some courts, however, have indicated that a disparity below two percentage points is proof that an educational institution falls within the substantial proportionality safe harbor. See Equity in Athletics, Inc. v. Dep’t of Educ., 675 F. Supp. 2d 660, 682-83 (W.D. Va. 2009) (finding no case in which a disparity of two percentage points was held to constitute a lack of substantial proportionality). Thus, a 2.2 percent disparity represents, at least in numerical terms, a very close case indeed.60
The OCR was clear in its 1996 Clarification, however, that raw numbers are only part of the analysis for whether the participation of women in a school’s varsity program is proportional to enrollment. In addition to calculating statistical disparity, the OCR also considers whether natural fluctuations in enrollment contributed to the lack of proportionality, and whether the number of athletic participation opportunities needed to achieve exact proportionality would be sufficient to sustain a viable athletic team. 1996 Clarification at 4.
Quinnipiac, however, introduced no evidence at trial to suggest that natural fluctuations in enrollment—or unanticipated drops in female athletic participation—were to blame for any disparity in athletic opportunities. On the contrary, Quinnipiac carefully selected its teams’ roster targets, and the evidence showed that the University continued to take steps to ensure that its roster targets were met over the course of the year.
Moreover, the 2.2 percent disparity represents a shortfall of approximately twenty-five
60 Although the calculations above reveal a disparity of only 2.2 percent, it must be remembered that I have already given Quinnipiac the benefit of the doubt by assuming that, for purposes of this motion, the dozen or so injured track athletes challenged by the plaintiffs participated regularly and meaningfully in organized practice sessions, and therefore count as “participants” under the statute. Accordingly, the 2.2 percent figure is a particularly generous one, because gaps in the evidence have been resolved in Quinnipiac’s favor.
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female athletes.61 Twenty-five additional athletes would almost certainly be enough to sustain a new, independent varsity team. In 2011-12, the average women’s squad size was approximately twenty-three players. Moreover, if the injunction is lifted, Quinnipiac plans to eliminate the women’s volleyball team and thus subtract those players from its athletics program. Because women’s volleyball required a mere fourteen players to compete this past season, the shortfall of twenty-five participation opportunities is clearly enough to support an independent varsity squad; namely, a restored women’s volleyball team for the upcoming season. On this basis, I conclude that the 2.2 percent disparity demonstrates that, in the 2011-12 academic year, Quinnipiac failed to allocate athletic participation opportunities in numbers substantially proportionate to its undergraduate female population. Accordingly, the University has not yet brought itself into compliance with Title IX’s effective-accommodation mandate.
B. Equivalent Competition (Prong One of the Levels-of-Competition Test) Having determined that Quinnipiac failed to satisfy prong one of the three-part test for effective accommodation, I now turn to consider whether Quinnipiac independently fails the levels-of-competition test. Put differently, even assuming, arguendo, that the analysis above is in error—and all of Quinnipiac’s acro, rugby and track participants should count toward compliance with Title IX—I must nevertheless determine whether Quinnipiac violated the effective-accommodation mandate by failing to provide equivalently-advanced competition for its female athletes. Prong one of the levels-of-competition test examines, on a program-wide basis, whether
61 The total number of additional female athletes needed to achieve exact proportionality was calculated in the following manner. In order for the 168 male athletes to represent 37.6 percent of the University’s varsity athletes, there would have to be 447 total athletes, or 279 female athletes. The difference between the exactly proportional 279 female athletes and the 254 female athletes currently countable under Title IX is 25.
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the competitive schedules for men’s and women’s teams provide “proportionally similar”

numbers of male and female athletes equivalent competitive opportunities. That determination

turns on the four-step analysis I outlined above—an analysis that is summarized by the tables

that follow.

Men’s Teams

Men’s Teams
Baseball Basketball Crosscountry Ice Hockey Lacrosse Soccer Tennis

# of Participants
31 16 29 13
28 34
44 25 17 11

Division I competitions
52 7
17 22

Division I competitive opportunities
1612 464 0 91
952 0
748 425 0 242

NonDivision I competitions
0 0
0 0

NonDivision I competitive opportunities
0 0 0
0
0 0 0

% below declared division level 0%
0% 0%
0%
0% 0% 0%

TOTALS

178

4534

0

0

0%

Women’s Teams

Women’s Teams
Acro Basketball Crosscountry Field Hockey Golf Ice Hockey Lacrosse

# of Participants
36 15 29 24 22 18 11 27 33 30

Division I competitions
6 7
10 15

Division I competitive opportunities
216 435 0 168
396 0
110 891 0
450

NonDivision I competitions
4 0
0
0

NonDivision I competitive opportunities
144 0 0
0
0 0
0

% below declared division level 40% 0% 0%
0%
0% 0%
0%

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Rugby

28

3 84

Soccer

26

17

Softball 16 53

Tennis 11

24

Indoor 32 7

Track

Outdoor 29

7

Track

Volleyball 14 25

TOTALS

254

442 848 0 264 224 0
203
350 0
5081

7 196

0

0

0

0

0

0

0

0

0

11

340

70% 0% 0% 0% 0%
0%
0%
6.3%

As shown in the first table above, during the 2011-12 academic year, zero percent of the competitive opportunities Quinnipiac provided to male athletes were against non-Division I opponents. Or, put differently, 100 percent of Quinnipiac’s male varsity athletes played 100 percent of their competitive schedule against Division I varsity opponents.
Compare that calculation with the women’s over-all program. As shown in the second table above, a total of 6.3 percent of the competitive opportunities Quinnipiac provided to female athletes were against non-Division I or non-varsity opponents. Because male athletes did not play a single regular-season contest against opponents ranked below the University’s declared division level, that results in a 6.3 percent overall disparity in equivalently-advanced competitive opportunities for female athletes.
That disparity is a direct consequence of the irregular competitive schedule of the women’s acro and rugby teams during the 2011-12 season. Acro, for example, played four out of ten regular-season contests against below-division-level teams, two against NCAA Division II teams, and two against non-NCAA teams sponsored by the NAIA. Rugby’s schedule, by comparison, was even more anomalous. Out of ten regular season matches, the women’s rugby team played only three against Division I varsity opposition, and all three were against the same—and, indeed, the only—Division I varsity competitor: Eastern Illinois. Only one other
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match was played against a varsity opponent, but that team was ranked Division II. The majority of rugby’s competitions—a total of six matches—were played against non-varsity club teams.
The OCR has not specified a threshold percentage that will constitute a violation of the equivalent-competition requirement. Nevertheless, a disparity of 6.3 percent is above the 5 percent threshold that Quinnipiac’s own expert suggested would result in a finding of noncompliance. Moreover, the significance of the 6.3 percent disparity comes into greater clarity when two additional facts are considered. First, rugby’s competitive schedule not only contained discrepancies in division levels among opponents, but discrepancies in their varsity status as well. Thus, while a 6.3 percent disparity may appear to be—in strictly quantitative terms—a relatively modest difference, the fact that Quinnipiac offered female rugby athletes a majority club schedule while offering its male athletes a full varsity schedule at the highest division level demonstrates—in qualitative terms—a particularly egregious disparity in opportunity. Second, it bears mention that acro and rugby—the only teams competing against below-division-level opponents—represent two of the four largest rosters among all women’s teams sponsored by the University.62 As a result, an exceptionally large percentage of female athletes were affected by Quinnipiac’s inequitable allocation of competitive opportunities: during the 2011-12 academic year, 20 percent of all female athletes had team schedules in which 40 percent or more of their regular-season competitions were against non-Division I or non-varsity opponents. On that basis, I have little trouble concluding that Quinnipiac’s athletic program, viewed program-wide, failed to provide proportionally-similar numbers of male and female athletes equivalentlyadvanced competitive opportunities in the 2011-12 academic year.
62 Based on Quinnipiac’s calculations, acro boasts the largest number of participants of any women’s sport (thirty-six), followed only by indoor track (thirty-two), outdoor track (twenty-nine), and rugby (twenty-eight).
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To refute that conclusion, Quinnipiac puts forward two arguments—neither of which is convincing.
First, Quinnipiac contends that there are legitimate, nondiscriminatory reasons for the 6.3 percent discrepancy in competitive opportunities between the sexes. In Quinnipiac’s view, acro and rugby, by virtue of their status as new and emerging sports, have yet to develop a sufficient number of varsity teams nationwide to provide a full array of Division I varsity competition. Building on that premise, the University argues that the acro and rugby teams’ irregular competitive schedule should be excused.
That argument, however, proves too much. The very fact that Quinnipiac chose to add women’s acro and rugby to its athletic lineup when it knew or should have known that those sports lacked—at least at this stage in their development—Division I and/or varsity competition on par with men’s varsity sports demonstrates that the University continues to treat its female athletes differently. Rather than add an established NCAA-championship sport—or recommit to sponsoring volleyball, an existing NCAA-championship sport—Quinnipiac took a risk on its women’s athletics program and chose to sponsor acro, an unrecognized sport, and rugby, an emerging sport. That gamble does not insulate the University from the equivalent-competition requirement, nor does it excuse the 6.3 percent disparity in competitive opportunities for female athletes.63
The University’s second argument is even less convincing. According to Quinnipiac, the levels-of-competition test must be applied flexibly to sports like acro and rugby to give effect to
63 A different conclusion might result if Quinnipiac had added acro or rugby in response to requests or petitions by its student body to add those sports to the University’s varsity lineup. But that is not the case at bar. On the contrary, the evidence showed that Quinnipiac did nothing to survey the athletic interests among current or prospective students, but instead chose to sponsor acro and rugby for economic or strategic reasons, including the sizeable rosters of
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the OCR’s policy of encouraging new athletic opportunities for women. In Quinnipiac’s view, a literal application of the equivalent-competition requirement would have a chilling effect on new and emerging sports, as schools will refuse to sponsor them for fear of falling out of compliance with Title IX.
Again, I am not persuaded. The fact that Quinnipiac’s athletic program fails the levelsof-competition test does not mean that other athletic programs sponsoring new or emerging sports will fail that test. Due to Quinnipiac’s carefully-selected squad sizes under its current roster management plan, one-fifth of the University’s female athletes participate in unrecognized or emerging sports. It is unlikely that other universities would attempt to sponsor Division I athletics programs with such a large percentage of new and developing sports. Moreover, Quinnipiac has chosen to rely, as a matter of litigation strategy, solely on prong one of the levelsof-competition test. Although I need not decide the issue today, it would appear that, under different circumstances, a defendant-university offering new and/or emerging sports in its athletic program could satisfy the levels-of-competition test by relying on prong two and demonstrating a history and continuing practice of upgrading competitive opportunities for the underrepresented sex.
Accordingly, I conclude that, on the basis of prong one of the levels-of-competition test, Quinnipiac has failed to bring itself into compliance with Title IX’s effective-accommodation mandate for the 2011-12 academic year.
C. Equitable Considerations Having examined Quinnipiac’s current athletic program in some detail, and having determined that the University failed to comply with Title IX by providing women with
female athletes that both teams could support. - 91 -

nondiscriminatory athletic opportunities, I turn to address the fundamental inquiry under Rule 60(b)(5): whether Quinnipiac has demonstrated a “significant change” in its treatment of female athletes so that continued enforcement of the injunction is no longer equitable. See Fed. R. Civ. P. 60(b)(5); Sierra Club, 732 F.2d at 256 (“[A] court may modify a final or permanent injunction only where conditions have so changed as to make such relief equitable, i.e., a significant change in the law or facts.”).
To place the matter in perspective, it helps to reiterate what Quinnipiac is seeking to achieve through this motion. This is not a case in which a defendant is seeking merely a declaration of compliance with Title IX so that it may escape judicial oversight. Rather, Quinnipiac has made no secret of the fact that it seeks to lift the injunction so that it can move forward with its plans to eliminate an existing women’s NCAA-championship sport: women’s volleyball. Thus, in weighing the equities, I am mindful that, as a practical matter, a decision to lift the injunction is a decision to permit a defendant, which was recently adjudged in violation of Title IX, to eliminate varsity participation opportunities for women.
That being said, Quinnipiac has generally made a good faith, if at times misguided, attempt to comply with the injunction and bring itself into statistical compliance with Title IX. A prime example of that good-faith effort is the addition of varsity women’s golf—a full-fledged NCAA-championship sport that clearly offers its participants a genuine varsity experience. Yet rather than simply recommit to women’s volleyball or bring other NCAA-championship sports to campus, the University doubled down on its plan to eliminate volleyball, and staked its compliance with Title IX on an as-yet unrecognized sport as well as an emerging sport in imminent danger of losing that recognition. Throughout this litigation, Quinnipiac has proclaimed itself a “pioneer” in women’s sports by choosing to cultivate acro and rugby as new
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and emerging sports for women. But by relying today on sports that do not yet provide genuine varsity participation opportunities, Quinnipiac has taken a prong-two approach to solving a prong-one problem.
As noted above, in order to obtain relief from a permanent injunctive order, the defendant must demonstrate the inequity of enforcing that order prospectively in light of significantlychanged circumstances. Here, however, Quinnipiac has shown neither a significant change in its allocation of athletic opportunities, nor that inequity would result from continued enforcement of the injunction.64 At most, the University has shown that it has made some progress toward the goal of effective accommodation, but those modest adjustments over the past two years have brought only incremental improvements in gender equity, not full and lasting compliance with Title IX. By the measure of both the three-part and levels-of-competition tests, Quinnipiac remained in violation of the statute’s effective-accommodation mandate during the 2011-12 academic year. And although disparities of 2.2 percent and 6.3 percent, respectively, under those two tests appear to be—at least in strictly statistical terms—relatively modest differences, the fact that the University plans to eliminate the volleyball team altogether means that those disparities would only increase if the injunction were lifted. Accordingly, Quinnipiac’s proffered changes to its athletics program are insufficient to warrant dissolution of the permanent injunction. The equities weigh in favor of keeping the injunction in force for the foreseeable future.
64 Indeed, Quinnipiac has not made any credible showing that continued sponsorship of the volleyball team poses an unfair or unusually onerous burden. The principal reason Quinnipiac has given for wanting to eliminate the volleyball team is a need to free the volleyball practice space for other activities. See Tr. of Closing Arg. (June 28, 2012) at 11-15. That goal could be achieved by finding practice space for volleyball off campus, as the University does with the track and golf teams.
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Moreover, it bears mentioning that, at this juncture, two-thirds of the plaintiffs’ Title IX claims against Quinnipiac have yet to be litigated; the plaintiffs’ scholarship and equal-treatment claims are scheduled for trial later this year. Although the injunction was issued specifically to remedy Quinnipiac’s failure to comply with the effective-accommodation requirement, it is beyond cavil that a defendant may violate Title IX by failing to comply with any of the core regulatory requirements under the statute. See Mansourian, 602 F.3d at 965; Kelley, 35 F.3d at 268. Indeed, the plaintiffs’ still-pending equal-treatment claim arises out of the very same regulatory provision as the effective-accommodation claim at issue here. See 34 C.F.R. § 106.41(c). An effective-accommodation claim is but one side of the equal-athletic-opportunity coin under section 106.41(c). See Biediger, 691 F.3d at 92 (“Title IX claims of sex discrimination in athletics fall into two categories based on the § 106.41(c) factors to which the claims are addressed: effective accommodation claims focus on § 106.41(c)(1), and equal treatment claims focus on § 106.41(c)(2)-(10).”). Thus, it would be premature to lift the injunction at this stage and permit Quinnipiac to eliminate the volleyball team before full compliance with Title IX has been demonstrated. For this reason, too, the equities favor keeping the injunction in place, at least until the University’s overall compliance with Title IX can be fully assessed at trial. Cf. Cohen, 991 F.2d at 906 (“[T]he district court has broad discretionary power to take provisional steps restoring the status quo pending the conclusion of a trial.”).
That raises the question of remedies going forward. As Quinnipiac is undoubtedly aware, district courts are empowered to order specific relief—such as the addition of women’s teams, or the elimination of men’s teams, as determined by the court—in Title IX cases, particularly where, as here, a defendant’s own remedial efforts have proven insufficient. See Cohen, 991 F.2d at 906-07 (noting that “the district court has the power to order specific relief if the
- 94 -

institution wishes to continue receiving federal funds,” and stating that “specific relief [is] most useful in situations where the institution, after a judicial determination of noncompliance, demonstrates an unwillingness or inability to exercise its discretion in a way that brings it into compliance with Title IX”) (citing Franklin v. Gwinnett Cnty. Public Schs., 503 U.S. 60, 70-73 (1992)); Roberts, 998 F.2d at 833 (noting, in dicta, that in a Title IX class action, an “appropriate remedy for violation might be to enjoin [the university’s] conduct of men’s varsity competition until defendant presented a plan that would bring [the university] into compliance with Title IX”). Here, however, I do not believe such drastic measures are warranted. Although Quinnipiac still has a ways to go, I am confident that the University is making substantial progress toward Title IX compliance. The inquiry, therefore, is whether it is onerous or inequitable to keep the injunction—and the volleyball team—in place while Quinnipiac’s newlysponsored acro and rugby programs develop.
“Ultimately, Title IX provides institutions with flexibility and choice regarding how they will provide nondiscriminatory participation opportunities.” 1996 OCR Letter at 4. Quinnipiac has chosen to meet its statutory obligation by adding, inter alia, an emerging sport and an as-yet unrecognized sport. I applaud Quinnipiac for breaking new ground in women’s sports, and investing so heavily in new opportunities for female athletes. But having made that choice, Quinnipiac must now follow through with it. As demonstrated at trial, the acro and rugby teams still need to grow and mature before those teams can offer female students athletic opportunities on par with the opportunities Quinnipiac already offers its male students. Determining when and whether those two new teams have ripened into authentic Division I varsity programs—thereby bringing the University into full compliance with Title IX—will require assessment over time, at least more time than two short years. Cf. Frew v. Suehs, 775 F. Supp. 2d 930, 936 (noting that,
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even where a defendant has recently achieved compliance with a decree, “assessment over time is the most reliable way in which to judge whether the Decree’s objectives have been achieved”); Evans, 701 F. Supp. 2d at 172 (denying motion to lift injunction, stating “it is simply too soon to tell whether [structural changes] will result in improved outcomes for the plaintiffs, and, if so, whether the improvements will be sustained absent judicial involvement”). As the developmental process for acro and rugby unfolds—a process of Quinnipiac’s own choosing— the University should not be permitted to eliminate existing NCAA-championship sports for women.
For the above reasons, I conclude that it is neither inequitable nor unduly burdensome for Quinnipiac to continue to sponsor the volleyball team while its newly-formed acro and rugby teams evolve toward genuine Division I varsity status. Because achieving Title IX compliance will require additional progress over a period of years, Quinnipiac’s motion to lift the injunction must be denied. Once acro and rugby reach parity with other Division I varsity teams—or, in the interim, if Quinnipiac supplements its current athletic program with other full-fledged NCAAchampionship sports for women—the University may renew its motion to lift the injunction. V. Conclusion
In sum, Quinnipiac has failed to demonstrate a significant change in the quantity and/or quality of athletic participation opportunities provided to its female students. Accordingly, Quinnipiac’s motion to lift the injunction (doc. # 225) is DENIED.
It is so ordered. Dated at Bridgeport, Connecticut, this 4th day of March 2013.

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/s/ Stefan R. Underhill Stefan R. Underhill United States District Judge

 
 Case 3:09-cv-00621-SRU Document 307 Filed 04/26/13 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDE VEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER,

)

individually and on behalf of all those

)

similarly situated;

)

)

Plaintiffs,

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

)

Defendant.

)

Case No. 3:09-CV-621(SRU) April 26, 2013

JOINT MOTION FOR ORDER: (1) PRELIMINARILY APPROVING CONSENT DECREE; (2) AUTHORIZING DISTRIBUTION OF NOTICE OF SETTLEMENT;
AND (3) SETTING A SCHEDULE FOR FAIRNESS HEARING AND FINAL APPROVAL

Undersigned counsel for Plaintiffs and Defendant in this action have reached an agreement for the resolution of all claims. The agreement is embodied in the proposed Consent Decree filed simultaneously with this motion as Exhibit 1 hereto.
Pursuant to Rule 23(e), Fed. R. Civ. P., the claims of a certified class may be settled only with the Court's approval. Moreover, the Court must direct notice in a reasonable manner to all class members who would be bound by the proposed settlement, and must conduct a hearing to determine whether the proposed settlement is "fair, reasonable, and adequate."
The parties have attached a proposed form of notice to the class as Schedule B to the proposed Consent Decree. Once the Court approves the form of notice, the Defendant will promptly transmit it electronically to Class members. Accordingly, the parties jointly request that the Court:

Case 3:09-cv-00621-SRU Document 307 Filed 04/26/13 Page 2 of 4

(1) Preliminarily approve the proposed Consent Decree;
(2) Approve the proposed form of notice to the class attached to the Consent Decree as Schedule B and direct that it be transmitted to class members as provided in the Decree;

(3) Schedule a Fairness Hearing for 10:00 a.m. on June 20, 2013. The parties have filed a Proposed Order as Exhibit 2 to this Motion, and have

simultaneously filed their Joint Memorandum of Law in Support of this Motion.

Respectfully submitted,

PLAINTIFFS

By:

Is/

Jonathan B. Orleans (ct05440)

Alex V. Hernandez (ct08345)

Pullman & Comley, LLC

850 Main St., P.O. Box 7006

Bridgeport, CT 06601-7006

Telephone: (203) 330-2000

Facsimile: (203) 576-8888

Email: jorleans@pullcom.com

Email: ahernandez@pullcom.corn

Kristen Galles (pro hac vice) Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 Telephone: (703) 722-1071 E-Mail: kgalles@comcast.net

Sandra Staub (ct28408) American Civil Liberties Union Foundation of Connecticut 330 Main Street Hartford, CT 06106 Telephone: (860) 523-9146 Email: sstaub@acluct.org

Attorneys for Plaintiffs

2

Case 3:09-cv-00621-SRU Document 307 Filed 04/26/13 Page 3 of 4

DEFENDANT

By:

/s/

Edward A. Brill (phy015747)

Susan D. Friedfel (phy03585)

Proskauer Rose LLP

11 Times Square

New York, NY 10036

Telephone: (212) 969-3000

Facsimile: (212) 969-2900

Email: ebrill@proskauer.com

Email: sfriedfel@proskauer.com

Mary A. Gambardella (ct05386) Wiggin & Dana, LLP 400 Atlantic Street P.O. Box 110325 Stamford, CT 06911-0325 Telephone: (203) 363-7662 Facsimile: (203) 363-7676 E-Mail: mgambardella@wiggin.com

Attorneys for Defendant

3

Case 3:09-cv-00621-SRU Document 307 Filed 04/26/13 Page 4 of 4
CERTIFICATION I hereby certify that on the date hereon, a copy of the foregoing JOINT MOTION FOR ORDER: (1) PRELIMINARILY APPROVING CONSENT DECREE; (2) AUTHORIZING DISTRIBUTION OF NOTICE OF SETTLEMENT; AND (3) SETTING A SCHEDULE FOR FAIRNESS HEARING AND FINAL APPROVAL was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF System.

Dated: April 26, 2013

/s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440)

4
ACTIVE/73061.2/JORLEANS/4073676v4

Case 3:09-cv-00621-SRU Document 307-1 Filed 04/26/13 Page 1 of 39
EXHIBIT 1

Case 3:09-cv-00621-SRU Document 307-1 Filed 04/26/13 Page 2 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

)

STEPHANIE BIEDIGER, KAYLA LAWLER

)

ERIN OVERDE VEST, KRISTEN

)

CORINALDESI, and LOGAN RICER,

)

individually and on behalf of

)

all those similarly situated;

)

)
Plaintiffs, )
V.

QUINNIPIAC UNIVERSITY;

Defendant.

Case No. 3:09-CV-00621 (SRU) April , 2013

[PROPOSED] CONSENT DECREE This Consent Decree is made, subject to the Court's approval, between the abovecaptioned Plaintiffs, individually and on behalf of the class they represent, and Defendant Quinnipiac University ("Quinnipiac"). This Consent Decree resolves each of the claims stated in the Amended Complaint dated December 2, 2009, including (1) Title IX athletic participation, (2) Title IX athletic financial assistance, (3) Title IX athletic treatment and benefits, and (4) Title IX retaliation. Claims 1-3 are class claims. Claim 4 was filed on behalf of individual members of the women's volleyball team.
BACKGROUND
1. In March, 2009, Defendant Quinnipiac University announced its intent to

4/25/13

1

Case 3:09-cv-00621-SRU Document 307-1 Filed 04/26/13 Page 3 of 39

eliminate varsity women's volleyball, along with two men's teams.

2. In April, 2009, Plaintiffs filed an action against Quinnipiac, alleging that it

violated Title IX of the Education Amendments of 1972 (20 U.S.C. §1681 et seq.) by failing to

allocate an equitable number of varsity athletic participation opportunities to female students.

3. In April, 2009, Plaintiffs filed a motion for a temporary restraining order and a

preliminary injunction, asking the Court to enjoin Quinnipiac from eliminating the varsity

women's volleyball team.

4. The Court held a preliminary injunction hearing in May, 2009, after which it

entered a preliminary injunction enjoining Quinnipiac from eliminating the varsity women's

volleyball team. Biediger v. Quinnipiac University, 616 F.Supp.2d 277 (D.Conn. 2009).

5. In December, 2009, Plaintiffs filed an amended complaint alleging that

Quinnipiac violated Title IX by:

a. Failing to allocate an equitable number of varsity athletic participation

opportunities to female students;

b. Failing to allocate an equitable amount of athletic financial aid to female

students;

c. Failing to allocate varsity athletic benefits in an equitable manner; and

d. Discriminating against the women's varsity volleyball team in retaliation

for their complaints about Quinnipiac's Title IX violations.

6. The original complaint and amended complaint also asserted a claim on behalf of

the coach of the women's volleyball team. That claim has been resolved and dismissed.

7. In February, 2010, Plaintiffs filed a motion for class certification with respect to

4/25/13

2

Case 3:09-cv-00621-SRU Document 307-1 Filed 04/26/13 Page 4 of 39

the Title IX athletic participation, athletic financial assistance, and athletic benefits claims
(claims 1-3). In May, 2010, the Court granted the motion and certified a class defined as:
All present, prospective, and future female students at Quinnipiac University who are harmed by and want to end Quinnipiac University's sex discrimination in: (1) the allocation of athletic participation opportunities, (2) the allocation of athletic financial assistance, and (3) the allocation of benefits provided to varsity athletes. Biediger v. Quinnipiac University, 2010 WL 2017773 (D.Conn. 2010). 8. In June, 2010, the Court conducted a trial solely on Plaintiffs' first claim (athletic participation) and Plaintiffs' request for a permanent injunction. On July 22, 2010, the Court ruled in favor of Plaintiffs and entered a permanent injunction. Biediger v. Quinnipiac University, 728 F.Supp.2d 62 (D.Conn. 2010). 9. Defendant filed a notice of appeal from the decision of the District Court. The parties argued the appeal in January, 2012. On August 7, 2012, the United States Court of Appeals for the Second Circuit affirmed the District Court. Biediger v. Quinnipiac University, 691 F.3d 85 (2d Cir. 2012). 10. While its appeal was pending, Defendant filed a motion to lift the injunction. The Court conducted a hearing on the motion in June, 2012. The Court denied the motion in an order and opinion issued on March 4, 2013. Biediger v. Quinnipiac University, 2013 WL 789612 (D. Conn. March 4, 2013). 11. In connection with the proceedings to date, the parties have conducted extensive discovery, including the depositions of over 20 witnesses, the disclosure of thousands of pages of
documents, and the preparation of multiple reports by expert witnesses. The action has been

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vigorously litigated on both sides. The parties have not yet tried the remaining claims (athletic aid, athletic benefits, and retaliation) in the action.
12. Since mid-December, 2012, the parties have engaged in mediation with the assistance of Michael Dickstein, Esq., a professional mediator. In lieu of continuing the present litigation, the parties have agreed to settle all claims pursuant to the terms set forth in this decree. The parties make the promises and representations contained herein for good and valuable consideration, the adequacy of which they hereby acknowledge.
TERMS
I. TITLE IX POLICY A. Quinnipiac acknowledges its obligation under the law to comply with Title IX in
the operation of its athletic program. Plaintiffs agree that, provided that Quinnipiac complies with the terms of this Consent Decree and the binding recommendations of the Referee named pursuant to Section V.D. herein (the "Referee"), Plaintiffs will not seek further relief against Quinnipiac for alleged violations of Title IX during the term of the decree.
B. Quinnipiac shall promptly develop a Title IX nondiscrimination policy and grievance procedure, which it shall disseminate prominently on its website and annually in its student handbook, athlete handbook, and faculty/staff handbook no later than the beginning of the 2013-2014 academic year, in accordance with 34 C.F.R. §§106.8 and 106.9.
C. Quinnipiac shall ensure that its Title a coordinator is trained concerning gender
equity in athletics and that he/she will participate in ensuring Title IX compliance in the athletic department.

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II. COMPLIANCE WITH 34 C.F.R. §106.41(c)(1) EFFECTIVE ACCOMMODATION OF ATHLETIC INTERESTS AND ABILITIES

A. Continuation of Women's Varsity Athletic Teams 1. Quinnipiac will not eliminate its women's varsity volleyball team or,

during the term of this Consent Decree, announce any plans to eliminate

the team. Quinnipiac will support its women's varsity volleyball team in

the same manner that it supports other varsity sports in the same tier.

2. Quirmipiac will not eliminate any varsity women's athletic team except as

otherwise permitted in Section II.A.3.

3. If Quinnipiac eliminates a women's varsity athletic team, it will replace

the team with an NCAA championship sport team(s) that provide a

comparable number of participation opportunities. This provision does

not apply to women's varsity volleyball, which Quinnipiac will not

eliminate.

4. Quinnipiac is not required to add any additional varsity athletic teams

during the term of this Consent Decree, except as may be required by

Section IV herein.

B. Women's Track & Field

1. Beginning with the 2013-2014 academic year, Quinnipiac will authorize

the head coach of the women's cross country and track & field teams to

award athletic financial assistance that equals at least four (4) full

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scholarships for women's cross country athletes and six (6) full scholarships for women's indoor/outdoor track & field athletes who focus on non-distance events. 2. Quinnipiac will arrange for its outdoor track & field athletes to have access to the outdoor track facility at Cheshire High School (or a comparable outdoor track facility) throughout the academic year. The outdoor track & field athletes will practice at the facility on a regularly scheduled basis that is sufficient, in the judgment of the head coach, to allow the athletes to prepare adequately for competition. Quinnipiac will provide transportation for athletes on the track & field team to and from practices conducted at the outdoor track facility. Athletes will have access to onsite water and restrooms during practices. 3. Quinnipiac will make its best efforts to host one outdoor track & field meet annually at Yale University (or a comparable facility) beginning in the 2013-2014 academic year. This provision does not prevent Quinnipiac from voluntarily hosting more than one outdoor track & field meet annually. 4. By the beginning of the 2013-2014 academic year, Quinnipiac will upgrade one of its part-time assistant track & field coaching positions to full-time. During the term of the Consent Decree Quinnipiac will provide its women's cross country and track &field teams with the maximum number of paid coaches permitted by NCAA rules.
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C.
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5. Quinnipiac will make good faith efforts to expand the number of events in which the women's track & field athletes compete, including recruiting athletes who focus on non-distance events (e.g., sprints, hurdles, and middle-distance races) and field events.
Women's Rugby 1. Quinnipiac will upgrade the quality and condition of the rugby pitch to
ensure that it is safe for practices and competitions. Quinnipiac will make good faith efforts to upgrade the quality of the rugby pitch so that it is level, does not contain holes, dangerous rocks, or other hazards, and is maintained to a quality comparable to the varsity soccer field, by the start of the 2013-2014 academic year. 2. Quinnipiac's varsity women's rugby team will have exclusive use of the rugby pitch. 3. Quinnipiac will authorize the head coach of the women's rugby team to award athletic financial assistance equaling at least nine (9) full scholarships by the 2013-2014 academic year. 4. Beginning in the 2013-2014 academic year, Quinnipiac will provide one full-time head coach and one full-time assistant rugby coach for its women's rugby team. Neither of the women's rugby coaches will have responsibility for any men's or women's club rugby team or program or for any other sport or activity. 5. Beginning in the 2013-2014 academic year, Quinnipiac will compete in at
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least two-thirds (2/3) of its regular season games against NCAA varsity rugby teams (e.g., Eastern Illinois, Harvard, West Chester, Norwich) or Division I club rugby teams (e.g., Brown, Penn State, Princeton, Army, Navy). For purposes of this provision, "Division I club" is intended to mean the highest level of intercollegiate club competition available. In 2014-2015 and thereafter, Quinnipiac will schedule all of its regular season matches against NCAA varsity and/or Division I club rugby teams except that Quinnipiac may schedule one regular season game each season with Yale University and one regular season game each season with the University of Connecticut, regardless of the competitive level of their women's rugby teams, in order to build an in-state rivalry in the sport. 6. Women's varsity rugby athletes will have access to water and nearby restrooms during all practices and competitions held at Quinnipiac. 7. Quinnipiac will make a good faith effort to promote women's rugby as a varsity sport and to encourage other NCAA Division I schools to sponsor women's rugby as a varsity sport with the goal of establishing a Division I varsity women's rugby athletic conference and a NCAA varsity women's rugby national championship. D. Club Teams If Quinnipiac sponsors or otherwise provides support to club sports teams during the term of this Consent Decree, it must allocate those opportunities on a gender equitable basis.

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III. COMPLIANCE WITH 34 C.F.R. 10637(c) ATHLETIC FINANCIAL ASSISTANCE A. For all women's sports for which Quinnipiac currently authorizes fewer than 50%
of the maximum number of athletic scholarships allowed by NCAA rules, Quinnipiac will increase the authority of the head coach to award at least 50% of the maximum number of athletic scholarships allowed by NCAA rules, beginning in the 2013-2014 academic year. The minimum number of athletic scholarships per team required by this Section III.A and by Sections III.B and V.B.1.a. below are listed on Schedule A attached hereto.
B. For all women's sports for which Quinnipiac currently authorizes the head coach to award more than 50% of the maximum number of athletic scholarships allowed by NCAA rules, Quinnipiac will not decrease the coach's authority.
C. Beginning with the 2013-2014 academic year, Quinnipiac will authorize the maximum number of athletic scholarships allowed by the NCAA for all of its women's Tier 1 sports.
D. In addition to the foregoing, Quinnipiac will provide an additional athletic scholarship to the women's volleyball team for the 2014-2015 academic year (so that the team then has 7 full athletic scholarships) and another additional scholarship to the women's volleyball team for the 2015-2016 academic year (so that the team then has 8 full athletic scholarships). The number of scholarships authorized for the women's volleyball team will not be reduced before completion of all the facilities required by this Consent Decree.
E. Quinnipiac will develop and implement a policy requiring gender-neutral allocation of summer, fifth-year, and other extra athletic financial aid.

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IV. QUINNIPIAC MEN'S TEAMS A. During the tenn of this Consent Decree, Quinnipiac will not create additional
men's sports teams unless it also creates additional women's teams that provide at least an equal number of athletic participation opportunities.
B. During the term of the Consent Decree, Quinnipiac will not significantly increase the number of athletic scholarship awards for male athletes unless it simultaneously increases (beyond the requirements of this Consent Decree) the number of athletic scholarship awards for female athletes by at least the same number of athletic scholarships.
C. Quinnipiac may, upon reasonable notice to Plaintiffs, seek relief from the Referee from the requirements of this Section IV in response to circumstances reasonably supporting the need for such relief, which include, by way of example:
1. A significant increase in the proportion of full-time male undergraduate students; or
2. A significant increase in the number of varsity athletic participation opportunities provided to female students.

V. COMPLIANCE WITH 34 C.F.R. 106.41(c)(2)-(10) TREATMENT AND BENEFITS
A. Facility Improvements 1. Quinnipiac will spend at least $5 million to improve the permanent
athletic facilities (other than TD Bank Sports Center) used by its women's

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varsity sports teams, including renovation and/or construction of locker rooms, exercise and weight training facilities, athletic training facilities, practice and competition facilities, and office space for head/assistant coaches, so that they are comparable to the facilities provided to men's varsity sports teams in the same tier. 2. Quinnipiac will increase the dimensions of the women's varsity rugby pitch to the maximum dimensions allowed by the International Rugby Board. 3. Quinnipiac will build an indoor track & field facility for practice and competition. The facility will meet NCAA standards for hosting indoor meets. 4. Quinnipiac will build a superior practice and competition facility dedicated to women's field hockey that meets NCAA Division I standards for the sport. 5. Quinnipiac will consult with the Referee during the planning process for the facility improvements described herein ("facility improvements"). The Referee may, at his/her discretion, consult with Plaintiffs' counsel with respect to the facility improvements. 6. Within six months of the Court's approval of this Consent Decree, Quinnipiac will present to the Referee and Plaintiffs' counsel a projected schedule for completion of the facility improvements, which shall project that all of the facilities improvements will be completed by no later than
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June 30, 2018. Quinnipiac shall make good faith efforts to complete all

facility improvements in accordance with the schedule. QU shall report to

the Referee and Plaintiffs' counsel at such intervals as the Referee shall

determine concerning its progress toward completion of the facilities

improvements.

7. The provisions of this Consent Decree concerning the Referee's authority

to monitor compliance and to investigate and determine disputes, and

concerning the Court's authority to enforce the Consent Decree, shall

remain in effect until all of the facility improvements described in this

Consent Decree are completed.

B. Tiering

The parties recognize that Quinnipiac currently treats men's and women's

basketball and ice hockey as tier one sports (also denominated as "sports of emphasis").

Quinnipiac will take measures to elevate two (2) additional women's teams to tier one as

follows:

1. Field hockey. By the beginning of 2013-2014 academic year, Quinnipiac

will provide the head coach of the field hockey team with the authority to

award the maximum number of athletic scholarships allowed by NCAA

rules. By the beginning of the 2014-2015 academic year, Quinnipiac will

provide the field hockey team with the maximum number of coaches

allowed by the NCAA. Quinnipiac shall also build a superior practice and

competition facility dedicated to field hockey as previously set forth

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C.
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herein. 2. Additional tier one team. Within six months of the Court's approval of
this Consent Decree, Quinnipiac shall identify an additional, fourth women's team as a tier one sport. Promptly after identifying the additional women's team, Quinnipiac will (a) initiate the process of hiring any additional coaches necessary to provide the team with the maximum number of coaches allowed by NCAA rules and (b) provide the head coach of the team with the authority to award the maximum number of athletic scholarships allowed by NCAA rules. Quinnipiac's obligation to provide this fourth women's tier one team with the maximum number of athletic scholarships allowed by NCAA rules shall extend until at least June 30, 2018, notwithstanding the termination of the Consent Decree. Quinnipiac will also provide this team with a superior practice and competition facility based on NCAA Division I standards for the sport in accordance with the schedule to be presented under in Section V.A.6 above. 3. If Quinnipiac adds more men's teams to tier one during the term of the Consent Decree, then it must also add a proportionate number of women's teams or female athletes to tier one. Equivalence of Other Athletic Benefits 1. By no later than the beginning of the 2013-2014 academic year, Quinnipiac will take (or has already taken) the following steps to improve the benefits provided to female athletes:
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a. Allow all sports to play in the maximum number of competitions in the championship and non-championship seasons permitted by NCAA rules and provide the funding that allows them to do so;
b. Allow all sports to begin practice at the earliest date permitted by NCAA rules;
c. Provide athletic training coverage to all sports during the traditional and non-traditional seasons;
d. Create and fill a full-time position for a head women's golf coach; e. Hire an additional full-time employee in academic support for
varsity athletes; f. For the 2013-2014 academic year, increase the salaries of the
coaches of the women's teams to no less than the median salaries in their sports in the Northeast Conference; and g. Quinnipiac shall request from its new athletic conference, the Metro Atlantic Athletic Conference ("MAAC"), the data necessary to determine, on a current-year basis, the median salaries of the coaches of women's teams in the MAAC, accounting for the proportion of time devoted to coaching duties. If the MAAC provides the necessary data, then by the 2014-2015 academic year, Quinnipiac shall increase the salaries for the coaches of its women's teams if necessary to ensure that their salaries are no less than the median salaries of the coaches of women's teams in the
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MAAC in the same sports. No salaries of coaches of Quinnipiac's

women's team shall be decreased based upon this data.

2. Quinnipiac represents that the total estimated cost of the commitments

made in the previous paragraph is approximately $450,000 per year.

3. In addition to the money to be expended pursuant to Section V.C.1, and in

addition to any other monetary commitment(s) made under this Consent

Decree, Quinnipiac will spend up to $175,000 per year for the term of the

Consent Decree for the purpose of ensuring equitable treatment and

benefits for female athletes in the following areas:

a. Equipment/supplies/uniforms

b. Scheduling of games and practice times

c. Transportation/travel/per diem

d. Access to coaching and tutoring

e. Assignment and compensation of coaches

f. Medical/training services

g. Housing/dining h. Publicity and sports information

I. Recruiting

j.

Support services

Expenditures pursuant to this paragraph shall be made by Quinnipiac based upon

the recommendations of the Referee in accordance with Section V.D.7.

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D. 4/25/13

Referee 1. The parties will agree upon, and the Court will appoint, a "Referee" who
will have responsibility for implementing and monitoring compliance with Quinnipiac's obligations under this Consent Decree. Subject to his agreement and the Court's approval, Jeffrey H. Orleans (former Commissioner of the Ivy League) will serve as the Referee. 2. Upon entry of an order approving this Consent Decree, the Referee will conduct a baseline review of the Quinnipiac athletic department's compliance with the treatment and benefits requirements of Title IX and with the requirements of the Consent Decree. 3. The Referee will prepare a draft report of his/her initial findings and recommendations for all counsel within 120 days after the date of final Court approval of this Consent Decree. The parties will have the opportunity to respond to or further investigate those findings within 60 days thereafter. The Referee will then have 30 days to prepare a final report with recommendations, which shall be provided to all counsel and the Court. 4. In preparing his/her initial report and all subsequent reports, the Referee will have access to the following: a. Interviews with Plaintiffs and Class Counsel b. Interviews with coaches and assistant coaches c. Interviews with student athletes
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d. Interviews with Quinnipiac's athletics department's administrative staff and any Title IX administrators
e. All reasonably necessary documents 5. Copies of all documents provided to the Referee will be provided to Class
Counsel as expeditiously as reasonably practical. Quinnipiac will provide the Referee and Class Counsel with the squad lists for each varsity team shortly after each team's first date of competition and by May 30 of each year during the Consent Decree. 6. The Referee may conduct such investigations as s/he deems appropriate throughout the course of the consent decree concerning Quinnipiac's compliance with Title IX and with this Consent Decree. The Referee shall report the results of any investigation s/he conducts to the parties and the Court. 7. After issuing his/her initial report and by no later than June 15 of 2014, 2015, and 2016, the Referee shall provide an annual report to the Court and to counsel for the parties regarding Quinnipiac's compliance with Title IX and this Consent Decree. In connection with such reports, or at such other times as s/he deems appropriate, the Referee shall recommend actions to be taken by Quinnipiac to comply with this Consent Decree and/or to allocate the funds described in Section V.C.3. 8. The Referee's recommendations made pursuant to subsections V.D.3 and V.D.7 above shall be entitled to substantial deference. Quinnipiac will
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implement the Referee's recommendations expeditiously unless it believes that they are unreasonable, impractical, or exceed Quinnipiac's obligations under the law or this Consent Decree. 9. To the extent either party objects to any report or recommendation by the Referee, the party shall submit its objection in writing to the Referee and to counsel for the other party no more than 30 days after receipt of the recommendation. The Referee may then schedule any proceedings s/he deems appropriate, provided that the Referee shall rule on the objection within 60 days of receiving it. Either party may then appeal to the Court within 30 days of the Referee's ruling. 10. The Referee may, in addition to the above, make non-binding recommendations at any time concerning additional actions that, in the Referee's opinion, Quinnipiac should consider in order to better satisfy its obligations under Title IX in the future. Any such recommendations shall be communicated to both Quinnipiac and Plaintiffs' counsel. During the term of the Consent Decree there shall be no proceedings before the Referee or the Court concerning any such non-binding recommendations made by the Referee. 11. Quinnipiac agrees to pay the Referee up to $150,000 during the term of this Consent Decree for his/her time spent in connection with exercising his/her responsibilities under this Consent Decree, plus necessary and reasonable out-of-pocket expenses. If the Referee notifies the parties that
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he/she expects to incur more than $150,000 in time-based fees, the parties

will promptly engage in good faith negotiations concerning the issue, and

if they cannot resolve it between them they will seek resolution by the

Court.

VI. MONETARY RELIEF

A. Quinnipiac shall pay to each of the named class representatives — Stephanie

Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, and Logan Riker — the sum of

$15,000 within 30 days of the Court's final approval of this Consent Decree, in satisfaction of

her individual claims. As a condition of such payment, each of the named class representatives

will execute a release of all her individual Title IX claims against Quinnipiac.

B. Quinnipiac shall pay Class Counsel the sum of $1,900,000 for attorneys' fees and

costs of litigation (including but not limited to expert fees) within 30 days of the Court's final

approval of this Consent Decree. Quinnipiac will also contribute $50,000 to the Emanuel

Margolis Fellowship Fund at the Quinnipiac University School of Law within the same time

period.

C. Quinnipiac shall pay Class Counsel's fees at up to $450 per hour, plus reasonable

expenses including but not limited to expert fees, for drafting, obtaining approval of, and

monitoring compliance with this Consent Decree. Quinnipiac's obligation pursuant to this

subparagraph shall not exceed $150,000 in total for the period beginning on March 21, 2013, and

concluding at the tetinination of the Consent Decree, unless otherwise authorized by the Court in

the case of an egregious violation of this Decree by Quinnipiac or other conduct by Quinnipiac

that unreasonably increases Plaintiffs' costs of monitoring compliance.

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VII. CLASS NOTICE A. Pursuant to Federal Rule of Civil Procedure 23(e), the parties agree that notice of
this proposed Consent Decree should be provided to all members of the class in a form approved by the Court. The parties propose that the Court approve the form of notice set forth in Schedule B hereto.
B. Upon the Court's approval of the form of the notice, Quinnipiac shall timely transmit the notice by electronic mail and/or such other reasonable means as the Court may direct to all current female Quinnipiac students and all recruited female athletes. Quinnipiac shall also provide informational copies of the notice to the coaches of women's varsity teams.
C. Quinnipiac shall be responsible for all costs of providing the notice. D. Upon the Court's final approval of this Consent Decree, Quinnipiac shall provide notice of such approval and of the availability of copies of the Decree (at a web site to be designated by class counsel) to all current female Quinnipiac students, all recruited female athletes, all personnel in Quinnipiac's Department of Athletics & Recreation, and any other persons whom Quinnipiac expects to participate in the implementation of this Decree. During the term of the Decree, Quinnipiac shall inform all students, prospective students, and parents of students who request information concerning the Decree that that copies may be downloaded at a website to be designated by class counsel.

VIII. GENERAL PROVISIONS

A. This Consent Decree shall remain in effect through June 30, 2016, except as

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otherwise provided herein.

B. This Consent Decree embodies a compromise that is intended to resolve the

pending litigation between the parties. Neither Plaintiffs nor Quinnipiac intend that this Decree

shall have precedential effect with respect to the parties' legal positions regarding the

requirements of Title IX, or with respect to their rights or obligations after the termination of the

Decree. Nothing in this Decree is intended or shall be construed to limit Plaintiffs' rights to

challenge Quinnipiac's compliance with Title IX in all respects (including, but not limited to,

Quinnipiac's method of counting varsity athletes, and its contentions that its women's track and

rugby programs satisfy Title IX' s requirements to be counted as varsity opportunities) after the

termination of this Consent Decree, notwithstanding the provisions of this Decree and

notwithstanding the WI inination of the permanent injunction entered by the Court with respect to

Plaintiffs' first Claim. Nothing in this Consent Decree is intended to affect Quinnipiac's rights or

obligations with respect to its Acrobatics and Tumbling team.

C. Plaintiffs agree that during the term of this Consent Decree, provided that

Quinnipiac complies with the requirements of this Consent Decree and the Referee's binding

recommendations, they will not challenge Quinnipiac's compliance with its obligations under 34

C.F.R. §106.41(c)(1)(effective accommodation), 34 C.F.R. §106.37(c)(athletic scholarships), or

34 C.F.R. §106.41(2)-(10) (treatment and benefits).

D. Quinnipiac waives any rights it may have to appeal any decision, order, or

judgment rendered to date in this litigation.

E. Quinnipiac shall not retaliate against any members of the class or any persons who

assisted in this litigation. Quinnipiac shall inform all personnel of its Athletics & Recreation

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Department and all employees who may be involved in the implementation of this decree that

retaliation is illegal and will not be permitted.

F. The parties mutually release each other from all claims and causes of action that

were asserted, could have been asserted, or otherwise relate to this litigation, whether known or

unknown, that arose or may arise up to the date of the Court's final approval of this Decree,

subject only to Quinnipiac's compliance with the terms of this Consent Decree.

G. The parties have entered into this Consent Decree voluntarily after consultation

with counsel. The parties enter into this decree in good faith and intend it to be implemented in

good faith in furtherance of the goals of gender equity in Quinnipiac's athletic program.

H. This Consent Decree shall be attached to the Court's Order approving this Decree.

The Court will retain jurisdiction over this action for purposes of enforcing the terms of this

Consent Decree. Provided that Quinnipiac has complied with the terms hereof, Claims 1-3 of the

Amended Complaint (the Class Claims) will be dismissed in their entirety, with prejudice, upon

termination of the Consent Decree, and the permanent injunction entered by the Court will then

terminate. The parties will submit a stipulation for the dismissal of Claim 4, the Title IX

retaliation claim brought by the Individual Plaintiffs, following the Court's approval of this

Consent Decree and Quinnipiac's payment of money damages in accordance with Section VI.A.

hereof.

I. If the Court declines to approve this Consent Decree, then the parties will return

to their positions with respect to this litigation as if they had never executed this Decree.

J. This Consent Decree may be executed in counterparts by original, facsimile, or

electronic signature. Plaintiffs' counsel will gather all signatures, and the Consent Decree will be

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deemed fully executed when all parties and their counsel have returned their executed signature pages to Plaintiffs' counsel.
K. This Consent Decree embodies the entire agreement between the parties concerning its subject matter, and may not be modified except by order of the Court or in a writing signed by all parties and approved by the Court.

DATED: April 2-c,-27)13

Counsel for STEPHANIE BIEDIGER, et al., Plaintiffs

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nathan B. Orleans (CT 05440) Alex V. Hernandez (CT 08345)
ULLMAN & COMLEY LLC 850 Main Street Bridgeport, CT 06601 (203) 330-2129 (phone) (203) 576-8888 (fax) iorleans@pullcom.com ahernandez@pullcom.com
Kristen Galles (pro hac) EQUITY LEGAL 10 Rosecrest Avenue Alexandria, VA 22301 (703) 683-4491 (phone) (703) 683-4636 (fax) kgalles@comcast.net
Sandra J. Staub (CT 28408) Legal Director ACLU Foundation of Connecticut 330 Main Street Hartford, CT 06106 (860) 471-8471 (phone) (860) 586-8900 (fax) staub@acluct.org
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PLAINTIFFS: STEPHANIE BIEDIGER KAYLA LAWLER ERIN OVERDEVEST KRISTEN CORINALDESI LOGAN RIKER

Dated: Dated: Dated: Dated: Dated:

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Dated: April l'.52013 Dated: April , 2013

Counsel for QUINNIPIAC UNIVERSITY, Defend
Edward A. Brill Susan D. Friedfel Proskauer Rose LLP 11 Times Square New York, NY 10036 (212) 969-3000 (phone) (212) 969-2900 (fax) Ebrill@proskauer.com sfriedfel@proskauer.com
Mary A. Gambardella (ct05386) Wiggin & Dana, LLP 400 Atlantic Street P.O. Box 110325 Stamford, CT 06911-0325 Telephone: (203) 363-7662 Facsimile: (203) 363-7676 E-Mail: mgambardella@wiggin.com
DEFENDANT QUINNIPIAC UNIVERSITY
By [Printed name:
Its [Title:

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ACTIVE/73061.1/JORLEANS/4075788v14

Case 3:09-cv-00621-SRU Document 307-1 Filed 04/26/13 Page 27 of 39
SCHEDULE A

Case 3:09-cv-00621-SRU Document 307-1 Filed 04/26/13 Page 28 of 39

SCHEDULE A

Scholarship Minimums for Women's Teams

Basketball (Tier One) Ice Hockey (Tier One) Field Hockey (Tier One) Golf Lacrosse Rugby Soccer Softball Tennis Volleyball XC Track (Indoor & Outdoor)

15 (or NCAA maximum if higher) 18 (or NCAA maximum if higher) 12 (or NCAA maximum if higher) 3 (or .5 x NCAA max if higher) 10 9 10.6 9 5 6 (or .5 x NCAA max if higher)* 4 6

* Volleyball minimum increases to 8 by 2015-16 per Section IILD of the Consent Decree.

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SCHEDULE B

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NOTICE OF PROPOSED CLASS-ACTION SETTLEMENT AND HEARING IN TITLE IX ATHLETICS LITIGATION
To: All present, prospective, and future female students at Quinn ipiac University who are harmed by and want to end Quinnipiac University's sex discrimination in: (I) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits
provided to varsity athletes.
PLEASE REAP THIS NOTICE CAREFULLY. IT CONCE S A LAWSUIT THAT MAY AFFECT YOUR GHTS.
I. INTRODUCTION
This notice is to inform you about a settlement and proposed Consent Decree in a Title IX class action lawsuit brought against Quinnipiac University ("Quinnipiac" or the "University"). The lawsuit is captioned or otherwise referred to as Biediger, et al v. Quinn ipiac University, Civil Action No. 3:09-cv-00621 (SRU) (D. Conn.), and is pending in the United States District Court for the District of Connecticut (the "Litigation").
The named plaintiffs in the Litigation are current/former Quinnipiac female student athletes who filed the case on behalf of a class (the "Plaintiff Class") consisting of:
All present, prospective, and future female students at Quinnipiac University who are harmed by and want to end Quinnipiac University's sex discrimination in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes.
YOU MAY E A MEM ER OF T E LAIN IFF CLASS IN THIS LITIGATION.
A settlement has been reached in the Litigation. The settlement is embodied in a proposed Consent Decree that has been preliminarily approved by the Court. The Consent Decree must be approved in final form by the Court, after notice and hearing, before it can go into effect.
The entire Consent Decree, which sets forth all the telins of the settlement, may be downloaded at www.acluct.org . You can also obtain a copy by (1) visiting the office of the Clerk of the U.S. District Court at 915 Lafayette Boulevard, Bridgeport, CT or (2) contacting Jon Orleans (jborleans@pullcom.com), Kristen Galles (kgalles@comcast.net ), or Sandra Staub (sstaub@acluctorg), counsel for Plaintiffs.
YOU MAY HAVE A G T TO E HEAR EFO THE COURT CONSIDERS OR APPROVES THE FINAL CONSENT JECREE.
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The Court has scheduled a Fairness Hearing for June 20, 2013 at 10:00 a.m. in the courtroom of the Honorable Stefan R. Underhill, Judge of the United States District Court for the District of Connecticut, 915 Lafayette Boulevard, Bridgeport, CT, to determine whether the proposed Consent Decree is fair, reasonable, and adequate, and should be finally approved.
THIS NOTICE SUMMARIZES THE PROPOSED CONSENT DECREE AND ADVISES YOU ABOUT:
• The history of the Litigation
• A summary of the reasons for settling the Litigation rather than proceeding to trial
• A summary of the terms of the proposed Consent Decree
• The opportunity for you to file objections to the Consent Decree with the Court
• The opportunity for you to appear at a Fairness Hearing on June 20, 2013, at which the Court will consider whether to approve the final Consent Decree
• The binding nature of the Consent Decree on all members of the Plaintiff Class
IL HISTORY OF THE LITIGATION. The Plaintiff Class in the Litigation alleges that Quinnipiac violated Title IX of the Education Amendments of 1972,20 U.S.C. §§ 1681-88 ("Title IX") by:
(1) failing to allocate an equitable number of varsity athletic participation opportunities to female students (the "Participation Claim");
(2) failing to allocate an equitable amount of athletic financial aid to female students (the "Scholarships Claim"); and
(3) failing to allocate varsity athletic benefits in an equitable manner (the "Benefits Claim").
The named Plaintiffs asserted these claims on behalf of the Plaintiff Class. They also asserted a claim on their own behalf that the University retaliated against them for complaining about Title IX violations (the "Retaliation Claim"). The settlement would resolve all of these claims — both the claims of the Plaintiff Class and the claims of the named Plaintiffs.
Through the Participation Claim, the Plaintiff Class sought:
(I) to require Quinnipiac to retain the women's varsity volleyball team, which Quinnipiac had publicly announced its intent to eliminate;
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(2) to require Quinnipiac to add varsity athletic participation opportunities for women until it achieves compliance with Title TX's equal participation requirements; and
(3) to prohibit Quinnipiac from cutting any other women's varsity programs unless and until Quinnipiac satisfies Title IX's participation requirements.
Through the Scholarship Claim, the Plaintiff Class sought to require Quinnipiac to comply with Title IX by allocating more athletic financial aid to female athletes.
Through the Benefits Claim, the Plaintiff Class sought to require Quinnipiac to comply with Title IX by providing its female and male varsity athletes with the following benefits of athletic participation on an equitable basis:
(1) Equipment, supplies, & uniforms; (2) Scheduling of games and practice times (3) Transportation/travel/per diem (4) Access to coaching and tutoring (5) Assignment and compensation of coaches (6) Medical/training services (7) Housing/dining (8) Publicity and sports information (9) Recruiting (10) Support services
Quinnipiac argued in its defense in the Litigation that it has complied with Title IX by providing female athletes with an equitable share of varsity athletic participation opportunities, scholarships, and varsity benefits. Quinnipiac denies that it retaliated against the named plaintiffs.
The Plaintiffs filed their initial complaint in April, 2009, along with a motion for temporary restraining order and preliminary injunction on the Participation Claim to prevent the elimination of the women's volleyball program. The Court granted the preliminary injunction in July, 2009, and ordered Quinnipiac to retain the volleyball program and all other women's teams.
In December, 2009, the Plaintiffs filed an amended complaint that added the Scholarship Claim and the Benefits Claim. On May 20, 2010, the Court certified the Participation, Scholarship, and Benefits Claims as a class action, defining the Plaintiff Class as:
All present, prospective, and future female students at Quinnipiac University who are harmed by and want to end Quinnipiac University's sex discrimination in: (I) the allocation of athletic participation opportunities,. (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes.
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The Court appointed plaintiffs Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, and Logan Riker as representatives of the class. The Court appointed Jonathan Orleans and Alex Hernandez of Pullman & Comley LLC, Kristen Galles of Equity Legal, and David McGuire of the ACLU Foundation of Connecticut as the attorneys for the Plaintiff Class.
In July, 2010, the Court entered a permanent injunction that ordered Quinnipiac to retain the volleyball program and to submit a plan to come into compliance with Title IX's athletic participation requirements. In August, 2012, the United States Court of Appeals for the Second Circuit affirmed the District Court's July, 2010, order.
Quinnipiac submitted a compliance plan as directed by the court and, pursuant to the plan, Quinnipiac added women's varsity golf and rugby teams and expanded its women's track program. The Court directed the University to file a motion to lift the injunction when it believed it had achieved compliance with the participation requirements of Title IX.
In December, 2011, Quinnipiac filed a motion to lift the permanent injunction relating to the Participation Claim. The Court conducted a trial on the motion in June, 2012. On March 4, 2013, the Court issued an order denying the motion and keeping the injunction in place.
The Court has not yet conducted a trial on the Scholarship Claim, the Benefits Claim, or the Retaliation Claim.
III. REASONS FOR THE SETTLEMENT
The case has been litigated vigorously by both sides but, despite the significant expenditures of money and time by the parties and their counsel, the Scholarship Claim, the Benefits Claim, and the Retaliation Claim have not yet been tried. Quinnipiac maintains that it is not in violation of Title IX with respect to scholarships or varsity athletic benefits and denies that it retaliated against the plaintiffs; the plaintiffs contend that the University is in violation of the statute and that they were subjected to retaliatory conduct. Considerable additional resources would be expended by both sides to prepare and try these claims.
Both sides recognize the uncertainties of litigation, and the parties agree that it would be preferable to devote the University's resources to the improvement of athletic opportunities for female students rather than to continued litigation.
Counsel for Quinnipiac and the Plaintiff Class have engaged in extensive negotiations, which were mediated by Michael Dickstein, Esq., a professional mediator. The negotiations culminated in a signed Memorandum of Understanding, which has been embodied in the proposed Consent Decree. Class counsel believe that the terms and conditions of the proposed Consent Decree are fair, reasonable, and in the best interests of the class. In reaching this conclusion, class counsel have analyzed the benefits of the Consent Decree, the possible outcomes of further litigation, and the expense and length of continued proceedings necessary to prosecute the remaining claims through trial and possible appeals.
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IV. SUMMARY OF THE PROPOSED CONSENT DECREE
This section summarizes the principal terms of the proposed Consent Decree. It does not include all of the terms. You should read the entire Consent Decree to ensure that it protects your rights and interests.
Title IX Policy
• Quinnipiac will promptly develop and disseminate a Title IX nondiscrimination and grievance policy.
• Quinnipiac will ensure that its Title IX coordinator is trained concerning gender equity in athletics and that he/she will participate in ensuring gender equity in the athletics department.
Participation Claims
• Quinnipiac will not eliminate its women's volleyball team during the term of the Consent Decree.
• Quinnipiac will not eliminate any other women's varsity athletic team during the term of the Consent Decree unless it replaces the team with a team in an NCAA championship sport that provides a comparable number of participation opportunities.
• Quinnipiac will enhance the women's track and field teams by: authorizing additional scholarships for athletes who focus on non-distance events; providing the maximum number of paid full-time coaches allowed by NCAA rules; making good faith efforts to expand the number of events in which women's track and field athletes compete; and providing regular access and transportation to an adequate facility for outdoor track and field practices.
• Quinnipiac will enhance the women's rugby team by: authorizing additional scholarships; engaging a full-time assistant coach; upgrading the quality and condition of the field which will be dedicated to exclusive use of the women's rugby team; scheduling most matches against varsity or upper-level club teams; and making good faith efforts to promote rugby as a varsity sport with the goal of establishing a Division I varsity women's rugby athletic conference.
• Quinnipiac will not add any new men's teams during the term of the Consent Decree unless it also adds additional women's teams with a comparable number of opportunities.
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Scholarship Claims
Quinnipiac will authorize additional scholarships for several of its women's teams. In particular:
• Quirmipiac will authorize the maximum number of scholarships permitted by NCAA rules for all of its women's "tier one" teams, and will authorize at least 50% of the maximum number of scholarships permitted by NCAA rules for all of its other women's varsity teams.
• Quinnipiac will not decrease the number of scholarships authorized for any women's varsity team.
o Quinnipiac will also authorize additional scholarships for the track and field and rugby teams, and for the women's volleyball team. By the 2015-16 academic year the volleyball team will have 8 scholarships.
O Quinnipiac will not add more athletic scholarships for its men's teams unless it also adds a comparable number of athletic scholarships for its women's teams.
Treatment and Benefits Claims
A. Facilities
• Quinnipiac will make a number of major improvements to athletics facilities, as indicated below. It is expected that the facility improvements and new construction will take about five years to complete.
• Quinnipiac will spend at least $5 million to improve the permanent athletic facilities used by its women's varsity sports teams, including renovating and/or construction of locker rooms, exercise and weight training facilities, and other facilities, so that they are comparable to the facilities provided to men's varsity teams in the same tier.
• Quinnipiac will construct an indoor track and field facility for practice and competition.
• Quinnipiac will provide its track athletes with access to an outdoor track & field facility and will provide transportation to and from that facility.
• Quinnipiac will build a superior practice and competition facility dedicated to women's field hockey.
• Quinnipiac will increase the dimensions of the varsity rugby pitch to the maximum dimensions allowed by International Rugby Board.
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B. Tierink
O Quinnipiac will elevate women's field hockey to "tier one" status by the beginning of the 2013-14 academic year, and will elevate a fourth women's sport to tier one status within six months of the Court's approval of the Consent Decree. All tier one teams will have the maximum number of scholarships, will have the maximum number of paid coaches, and will schedule the maximum number of competitions allowed by NCAA rules. They will also practice and compete at facilities of superior quality.
• Quinnipiac will not add more men's teams to tier one during the term of the Consent Decree unless it also adds a proportionate number of women's teams or female athletes to tier one.
C. Other Benefits
• Quinnipiac will spend approximately $450,000 to improve benefits for female athletes by the 2013-14 academic year including:
providing the maximum number of competitive opportunities permitted by NCAA rules during both traditional and nontraditional seasons;
allowing all teams to begin practice at the earliest date permitted by NCAA rules;
providing athletic training coverage for all sports during both traditional and nontraditional seasons;
increasing academic support;
increasing coaching salaries.
O Quinnipiac will spend up to an additional $175,000 annually for benefits to female athletes in accordance with the recommendations of the Referee designated under the Consent Decree.
General Provisions
O The Court will appoint a "Referee" to oversee the implementation of the decree and to monitor compliance. Quinnipiac will provide information and reports to plaintiffs' counsel and the Referee on a regular basis. The Referee will have authority to receive and investigate complaints concerning Quinnipiac's compliance with Title IX and the Consent Decree. The parties have jointly proposed that Jeffrey H. Orleans, former Commissioner of the Ivy League, be appointed as the Referee.
• The Court will retain jurisdiction over the lawsuit for the duration of the Consent Decree.
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O Most provisions of the Consent Decree will be in effect for three years. e The terms of the Consent Decree do not apply to the Acrobatics and Tumbling Team.
Payment of Attorney Fees and Expenses
O Quinnipiac will pay class counsel $1,900,000 for attorneys' fees and costs of litigation, and in addition will contribute $50,000 to the Emanuel Margolis Fellowship Fund at the Quinnipiac University School of Law. (The Margolis Fellowship supports a Quinnipiac law student to work at the ACLU of Connecticut.)
Payments to Named Plaintiffs
• Quinnipiac will pay each named Plaintiff $15,000 in satisfaction of her individual claims.
V. YOUR OPPORTUNITY TO OBJECT AND/OR APPEAR AT THE FAIRNESS HEARING
AS A CLASS MEMER, YOU HAVE TH E OPTI•NS: (1) if you are satisfied with the settlement, you do not have to do anything, but you will be bound by the terms and conditions of the Consent Decree if the Court approves it; (2) if you are satisfied with the settlement and wish to submit comments in favor of it, you may do so; or (3) if you object to the settlement or any provisions in it, you may submit written objections or appear at the Fairness Hearing on June 20, 2013.
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If you wish to comment on or file objections to the Consent Decree, then you (or an attorney on your behalf) must submit your comments or objections in writing to:

with copies to:

Robin Tabora Clerk of the Court United States District Court 141 Church Street New Haven, CT 06510

Jonathan B. Orleans

Edward A. Brill

Pullman & Comley, LLC

Proskauer Rose LLP

850 Main St., P.O. Box 7006

11 Times Square

Bridgeport, CT 06601-7006

New York, NY 10036

Telephone: (203) 330-2000

Telephone: (212) 969-3000

Facsimile: (203) 576-8888

Facsimile . (212) 969-2900

Email: jborleans@pullcom.com

Email: ebrill@proskauer.com

All comments and objections must be in writing and must be received by the Clerk of the

Court on or before June 5, 2013.

All objections must state the name and docket number of the Litigation, which are: Stephanie Biediger, et al v. Quinnipiac University, Civil Action No. 3:09-cv-00621 (SRU). Objections filed by attorneys should be filed pursuant to the Electronic Case Filing Procedures for the District of Connecticut, which are available online at http://www.ctd.uscourts.gov/cmecf-notices-
instructions-0.

If you choose to appear at the Fairness Hearing, you may do so either in person or through an attorney. If you wish to appear and be heard at the Fairness Hearing in person or through your own attorney, you or your attorney must notify (1) Robin Tabora, Clerk of the Court, United States District Court, 141 Church Street, New Haven, CT 06510 and (2) the lawyers named above, in writing, by June 5, 2013. Requests by attorneys should be filed pursuant to the Electronic Case Filing Procedures for the District of Connecticut, which are available online at http ://www.ctd.uscourts. gov/cmecf-notices-instructions-0.

VI. BINDING EFFECT/RELEASES

The proposed Consent Decree, if finally approved by the Court, will bind all members of the class. As a result, any person who is a member of the Plaintiff Class will be barred from seeking relief for claims relating to Quinnipiac's provision of athletic opportunities for its female students, provision of athletic financial aid for its female students, or provision of varsity athletic benefits for its female students during the term of the Consent Decree.

VII. NO OPT-OUTS

You may not "opt out" of the provisions of the Consent Decree. You may, however, voice objections to the Consent Decree as discussed above.

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IX. ADDITIONAL INFORMATION
Unless otherwise ordered by the Court, any class members who do not make known their objections or opposition to the Consent Decree in the manner described above shall be deemed to have waived all objections and opposition to the fairness, reasonableness, and adequacy of the Consent Decree and any other matters pertaining to the claims asserted in the Litigation.
This Notice is a summary and does not describe all of the details of the proposed Consent Decree. The proposed Consent Decree, and all other papers filed in the Litigation, are available for inspection in the office of the Clerk, United States District Court, 915 Lafayette Boulevard, Bridgeport, CT 06604. The documents are also available through the PACER System.
Copies of this notice and of the proposed Consent Decree are available at www.acluct.org . If you have additional questions, you may contact class counsel Jonathan Orleans (203 330 2000; jborleans@pullcom.com ), Kristen Galles (703 683 4491 ; kgalles@comcast.net ), or Sandra Staub (860 471 8471 ; sstauf@acluctorg).
PLEASE DO NOT CONTACT THE JUDGE DIRECTLY ABOUT THE SETTLEMENT, THE PROPOSED CONSENT DECREE, OR THIS NOTICE.

ACTIVE/73061.2/JORLEANS/4110665v1

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EXHIBIT 2

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDEVEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER,

)

individually and on behalf of all those

)

similarly situated;

)

)

Plaintiffs,

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

)

Defendant.

)

Case No. 3:09-CV-621(SRU)

[PROPOSED] ORDER: (1) PRELIMINARILY APPROVING CONSENT DECREE; (2) AUTHORIZING DISTRIBUTION OF NOTICE OF SETTLEMENT;
AND (3) SETTING A SCHEDULE FOR FAIRNESS HEARING AND FINAL APPROVAL

On April 26, 2013, the parties to this class action informed the Court that they have

reached a mediated settlement of all claims in the form of a proposed Consent Decree. The

parties filed a Joint Motion for Preliminary Approval of Consent Decree, along with the proposed

Consent Decree, a proposed notice to class members, the Declaration of Plaintiffs' attorney

Jonathan B. Orleans, and a memorandum of law. The motion asks the Court to preliminarily

approve the Consent Decree, approve the class notice, direct the defendant to transmit the notice

to class members, set a schedule for submission of objections, and schedule a Fairness Hearing.

The Court, having considered the joint submissions of the parties to this action seeking

preliminary approval of their proposed Consent Decree, finds and orders as follows:

1. The proposed Consent Decree bears sufficient indicia of fairness, reasonableness,

and adequacy to merit preliminary approval, and the motion for preliminary approval is therefore

GRANTED;

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2. The form of notice to the class proposed by the parties will fairly and adequately advise class members of the proposed terms of the settlement, and is therefore APPROVED by the Court;
3. E-mail distribution of the notice to current female Quinnipiac University students and recruited female athletes is a reasonable means of providing notice to all class members who would be bound by the settlement, and Defendant is therefore ORDERED by the Court to transmit the notice by no later than May 6, 2013;
4. Class members who wish to object to or comment on the settlement, and/or who wish to be heard at the Fairness Hearing, are ORDERED to file their objections, comments, and/or notices of intent to appear so that they are received by the Clerk of the Court and counsel for both parties by June 5, 2013, all as described in the notice to class members;
5. The parties are ORDERED to file any additional submissions in support of final approval of the Consent Decree by no later than June 17, 2013; and
6. A Fairness Hearing is scheduled for June 20, 2013 at 10:00 a.m., before me.
SO ORDERED.

Date

Stefan R. Underhill, U.S.D.J.

2
ACTIVE/73061.25ORLEANS/4110578v1

Case 3:09-cv-00621-SRU Document 307-3 Filed 04/26/13 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those similarly situated;
Plaintiffs, V.

Case No. 3 :09-CV-621(SRU) April 26, 2013

QUINNIPIAC UNIVERSITY,

Defendant.

)

MEMORANDUM IN SUPPORT OF JOINT MOTION FOR ORDER: (1) PRELIMINARILY APPROVING CONSENT DECREE; (2) AUTHORIZING
DISTRIBUTION OF NOTICE OF SETTLEMENT; AND (3) SETTING A SCHEDULE FOR FAIRNESS HEARING AND FINAL APPROVAL

FOR THE PLAINTIFFS: Jonathan B. Orleans (ct05440) Alex V. Hernandez (ct08345) Pullman & Comley, LLC 850 Main St., P.O. Box 7006 Bridgeport, CT 06601-7006 Telephone: (203) 330-2000 Facsimile: (203) 576-8888 Email: jorleans@pullcom.com Email: ahernandez@pullcom.com

FOR THE DEFENDANT: Edward A. Brill (phv015747) Susan D. Friedfel (phv03585) Proskauer Rose LLP 11 Times Square New York, NY 10036 Telephone: (212) 969-3000 Facsimile: (212) 969-2900 Email: ebrill@proskauer.com Email: sfriedfel@proskauer.com

Kristen Galles (pro hac vice) Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 Telephone: (703) 722-1071 E-Mail: kgalles@comcastnet
Sandra Staub (ct28408) American Civil Liberties Union Foundation of Connecticut 330 Main Street Hartford, CT 06106 Telephone: (860) 523-9146 Email: sstaub@acluct.org

Mary A. Gambardella (ct05386) Wiggin & Dana, LLP 400 Atlantic Street P.O. Box 110325 Stamford, CT 06911-0325 Telephone: (203) 363-7662 Facsimile: (203) 363-7676 E-Mail: mgambardella@wiggin.com

Case 3:09-cv-00621-SRU Document 307-3 Filed 04/26/13 Page 2 of 21
The parties to this class action — Plaintiffs Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, and Logan Riker, individually and on behalf of all those similarly situated ("Plaintiffs"), and Defendant Quinnipiac University ("Defendant," "Quinnipiac," or the "University") — have reached a settlement agreement resolving all claims asserted. The settlement has been embodied in a proposed Consent Decree, a copy of which has been filed as Exhibit 1 to the parties' Joint Motion for Order Preliminarily Approving Consent Decree, Authorizing Distribution of Notice of Settlement, and Setting a Schedule for Fairness Hearing and Final Approval. Accordingly, pursuant to Rule 23(e), Federal Rules of Civil Procedure, the parties jointly seek an order from this Court: (i) preliminarily approving the proposed Consent Decree; (ii) approving the proposed class notice and authorizing its dissemination to the members of the class; and (iii) setting dates and procedures for the fairness hearing, including deadlines for class members to file objections to the proposed settlement. I. HISTORY OF THE CASE
In March, 2009, Defendant announced its intent to eliminate varsity women's volleyball, as well as two men's teams. In April, 2009, Plaintiffs filed a suit against Quinnipiac, alleging that it violated Title IX of the Education Amendments of 1972 (20 U.S.C. §1681 et seq.) by failing to allocate an equitable number of varsity athletic participation opportunities to female students.
Plaintiffs filed a motion for a temporary restraining order and a preliminary injunction, asking the Court to enjoin Quinnipiac from eliminating the varsity women's volleyball team. The Court held a preliminary injunction hearing in May, 2009, after which it entered the requested preliminary injunction. Biediger v. Quinnipiac University, 616 F.Supp.2d 277 (D.Conn. 2009).
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In December, 2009, Plaintiffs filed an amended complaint alleging that Quinnipiac violated Title IX by:
a. Failing to allocate an equitable number of varsity athletic participation opportunities to female students;
b. Failing to allocate an equitable amount of athletic financial aid to female students;
c. Failing to allocate varsity athletic benefits in an equitable manner; and d. Discriminating against the women's varsity volleyball team in retaliation
for their complaints about Quinnipiac's Title IX violations.' In February, 2010, Plaintiffs filed a motion for class certification with respect to the Title IX athletic participation, athletic financial assistance, and athletic benefits claims (claims 1-3). In May, 2010, the Court granted the motion and certified a class defined as:
All present, prospective, and future female students at Quinnipiac University who are harmed by and want to end Quinnipiac University's sex discrimination in: (1) the allocation of athletic participation opportunities, (2) the allocation of athletic financial assistance, and (3) the allocation of benefits provided to varsity athletes. Biediger v. Quinnipiac University, 2010 WL 2017773 (D.Conn. 2010). In June, 2010, the Court conducted a trial solely on Plaintiffs' first claim (athletic participation) and Plaintiffs' request for a permanent injunction. On July 22, 2010, the Court ruled in favor of Plaintiffs and entered a permanent injunction. Biediger v. Quinnipiac University, 728 F.Supp.2d 62 (D.Conn. 2010).
The original complaint and amended complaint also asserted a Title IX claim on behalf of the coach of the women's volleyball team. That claim has been resolved and dismissed upon stipulation. Doc. No. 284.
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Defendant appealed the District Court's decision to enter a permanent injunction. The parties argued the appeal in January, 2012, and on August 7, 2012, the United States Court of Appeals for the Second Circuit affirmed the District Court. Biediger v. Quinnipiac University, 691 F.3d 85 (2d Cir. 2012).
While its appeal was pending, Defendant filed a motion to lift the injunction. The Court conducted a hearing on the motion in June, 2012. The Court denied the motion in an order and opinion issued on March 4, 2013. Biediger v. Quinnipiac University, 2013 WL 789612 (D. Conn. March 4, 2013).
In connection with the proceedings to date, the parties have conducted extensive discovery, including the depositions of over 20 witnesses, the disclosure of thousands of pages of documents, and the preparation of multiple reports by expert witnesses. The Court has conducted three separate evidentiary hearings, each of which lasted several days. The case has been vigorously litigated by both sides. Plaintiffs' counsel have collectively invested well over $2 million worth of attorney time and $150,000 in out-of—pocket expenses in the case. Defendant has incurred a similar amount for counsel's services and litigation expenses. Yet despite this significant expenditure of resources, the parties have tried only the "participation" claim in the case; the remaining claims (athletic aid, athletic benefits, and retaliation) must still be tried if the case is not resolved. II. SETTLEMENT NEGOTIATIONS AND PROPOSED TERMS
The parties made several unsuccessful attempts to settle the case, both in direct negotiations between counsel and with the assistance of judicial and non-judicial mediators. In mid-December, 2012, the parties entered into renewed negotiations with the assistance of Michael Dickstein, Esq., a professional mediator. The negotiations were intense and hard-
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fought, and continued over more than three months, both in person and by telephone. Both parties' counsel are experienced and sophisticated, and Attorney Dickstein has specific experience in the resolution of Title IX cases. Ultimately, on March 21, 2013, counsel executed a Memorandum of Understanding, the substantive terms of which appear in the proposed Consent Decree submitted to the Court.
The following are the principal terms of the proposed Consent Decree: Title IX Policy • Quinnipiac will promptly develop and disseminate a Title IX nondiscrimination and grievance policy. • Quinnipiac will ensure that its Title IX coordinator is trained concerning gender equity in athletics and that he/she will participate in ensuring gender equity in the athletics department. Participation Claims • Quinnipiac will not eliminate its women's volleyball team during the term of the Consent Decree. • Quinnipiac will not eliminate any other women's varsity athletic team during the term of the Consent Decree unless it replaces the team with a team in an NCAA championship sport that provides a comparable number of participation opportunities. • Quinnipiac will enhance the women's track and field teams by: authorizing additional scholarships for athletes who focus on non-distance events; providing the maximum number of paid full-time coaches allowed by NCAA rules; making good faith efforts to expand the number of events in which women's track and field athletes compete; and providing regular access and transportation to an adequate facility for outdoor track and
4

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field practices. • Quinnipiac will enhance the women's rugby team by: authorizing additional
scholarships; engaging a full-time assistant coach; upgrading the quality and condition of the field which will be dedicated to exclusive use of the women's rugby team; scheduling most matches against varsity or upper-level club teams; and making good faith efforts to promote rugby as a varsity sport with the goal of establishing a Division I varsity women's rugby athletic conference. • Quinnipiac will not add any new men's teams during the term of the Consent Decree unless it also adds additional women's teams with a comparable number of opportunities. Scholarship Claims Quinnipiac will authorize additional athletic scholarships for several of its women's teams. At least five additional scholarships will be added in 2013-14, and at least two more scholarships will be added by the 2015-16 academic year. More specifically: • Quinnipiac will authorize the maximum number of scholarships permitted by NCAA rules for all of its women's "tier one" teams, and will authorize at least 50% of the maximum number of scholarships permitted by NCAA rules for all of its other women's varsity teams. • Quinnipiac will not decrease the number of scholarships authorized for any women's varsity team. • Quinnipiac will also authorize additional scholarships for the track and field and rugby teams, and for the women's volleyball team. By the 2015-16 academic year the volleyball team will have 8 scholarships.

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• Quinnipiac will not add more athletic scholarships for its men's teams unless it also adds a comparable number of athletic scholarships for its women's teams. Treatment and Benefits Claims
A. Facilities • Quinnipiac will make a number of major improvements to athletics facilities, as
indicated below. It is expected that the facility improvements and new construction will take about five years to complete. • Quinnipiac will spend at least $5 million to improve the permanent athletic facilities used by its women's varsity sports teams, including the renovation and/or construction of locker rooms, exercise and weight training facilities, and other facilities, so that they are comparable to the facilities provided to men's varsity teams in the same tier. • Quinnipiac will construct an indoor track and field facility for practice and competition. • Quinnipiac will provide its track athletes with access to an outdoor track & field facility and will provide transportation to and from that facility. • Quinnipiac will build a superior practice and competition facility dedicated to women's field hockey. • Quinnipiac will increase the dimensions of the varsity rugby pitch to the maximum dimensions allowed by the International Rugby Board. B. Tiering • Quinnipiac will elevate women's field hockey to "tier one" status by the beginning of the 2013-14 academic year, and will elevate a fourth women's sport to tier one status within six months of the Court's approval of the Consent Decree. All tier one teams will have
6

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the maximum number of scholarships, will have the maximum number of paid coaches, and will schedule the maximum number of competitions allowed by NCAA rules. They will also practice and compete at facilities of superior quality. • Quinnipiac will not add more men's teams to tier one during the term of the Consent Decree unless it also adds a proportionate number of women's teams or female athletes to tier one. C. Other Benefits • Quinnipiac will spend approximately $450,000 to improve benefits for female athletes by the 2013-14 academic year including:
providing the maximum number of competitive opportunities permitted by NCAA rules during both traditional and nontraditional seasons; allowing all teams to begin practice at the earliest date permitted by NCAA rules; providing athletic training coverage for all sports during both traditional and nontraditional seasons; increasing academic support; increasing coaching salaries. • Quinnipiac will spend up to an additional $175,000 annually for benefits to female athletes in accordance with the recommendations of the Referee designated under the Consent Decree. General Provisions • The Court will appoint a "Referee" to oversee the implementation of the decree and to monitor compliance. Quinnipiac will provide information and reports to plaintiffs' counsel and the Referee on a regular basis. The Referee will have authority to receive
7

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and investigate complaints concerning Quinnipiac's compliance with Title IX and the Consent Decree. The parties have jointly proposed that Jeffrey H. Orleans, former Commissioner of the Ivy League, be appointed as the Referee. 2 • The Court will retain jurisdiction over the lawsuit for the duration of the Consent Decree. • Most provisions of the Consent Decree will be in effect for three years. • The terms of the Consent Decree do not apply to the Acrobatics and Tumbling Team.
Payment of Attorney Fees and Expenses
• Quinnipiac will pay class counsel $1,900,000 for attorneys' fees and costs of litigation, and in addition will contribute $50,000 to the Emanuel Margolis Fellowship Fund at the Quinnipiac University School of Law. (The Margolis Fellowship supports a Quinnipiac law student to work at the ACLU of Connecticut.)
Payments to Named Plaintiffs
• Quinnipiac will pay each named Plaintiff $15,000 in satisfaction of her individual claims under Title IX. Class counsel believe that the terms and conditions of the proposed Consent Decree are
fair, reasonable, and in the best interests of the class. In reaching this conclusion, class counsel have analyzed the benefits of the Consent Decree, the range of possible outcomes of further litigation, the probability of both favorable and unfavorable outcomes, and the expense and length of continued proceedings necessary to prosecute the remaining claims through trial and possible appeals. See Declaration of Jonathan B. Orleans, filed herewith as Exhibit 2. 2 The parties negotiated intensively concerning both the scope of the Referee's authority and the identity of the Referee. Mr. Orleans — who is a first cousin of Plaintiffs' counsel Jonathan Orleans — was proposed as Referee by Quinnipiac and considered acceptable by both sides after full disclosure and discussion of the familial relationship. A description of Jeffrey Orleans' professional experience relating to Title IX is submitted with this Memorandum as Exhibit 1.
8

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III. ARGUMENT A. The Proposed Consent Decree Is Fair, Reasonable, and Adequate, and Is Entitled to Preliminary Approval. Federal Rule of Civil Procedure 23(e) provides that once a class has been certified, a
class action may not be settled or compromised without approval by the court. Courts recognize a "strong judicial policy in favor of settlements, particularly in the class action context." WalMart Stores, Inc. v. Visa US.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005) (citations omitted; internal quotation marks omitted). The approval process typically involves two steps. In the first step, preliminary approval, the court undertakes a preliminary evaluation of the fairness of the settlement. In re Nasdaq Mkt.-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997). However, "[in the context of a motion for preliminary approval of a class action settlement, the standards are not so stringent as those applied when the parties seek final approval." Karvaly v. eBay, Inc., 245 F.R.D. 71, 86 (E.D.N.Y. 2007). A full fairness analysis is not necessary at this stage. Passafiume v. NRA Group, LLC, 274 F.R.D. 424, 430 (E.D.N.Y. 2010). Rather, preliminary approval requires "at most a determination that there is what might be termed 'probable cause' to submit the proposal to class members and hold a full-scale hearing as to its fairness." In re Traffic Executive Ass'n-E. Railroads, 627 F.2d 631, 634 (2d Cir. 1980). As such, preliminary approval is appropriate where the proposed settlement
is the result of serious, informed, and non-collusive negotiations, where there are no grounds to doubt its fairness and no other obvious deficiencies (such as unduly preferential treatment of class representatives or of segments of the class, or excessive compensation for attorneys), and where the settlement appears to fall within the range of possible approval. Reade-Alvarez v. Eltman, Eltman & Cooper, P.C., 237 F.R.D. 26, 33 (E.D.N.Y. 2006).
9

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Once the court grants preliminary approval, the second step of the process ensues: notice of a hearing is given to the class members. At the hearing, class members and the settling parties may be heard with respect to final court approval. Nasdaq, 176 F.R.D. at 102.
Where, as here, the settlement is reached through arm's-length negotiations, sufficient investigation and discovery have taken place to allow counsel and the court to act intelligently, and counsel is experienced in similar litigation, there is a presumption of fairness. Wal-Mart Stores, Inc., 396 F.3d at 116. Thus, because the terms of the proposed Consent Decree here fall well within the range of possible approval — giving deference to the result of the parties arm'slength negotiations and the judgment of experienced counsel following sufficient investigation and discovery — it should be preliminarily approved and a final fairness hearing scheduled.
1. The Proposed Consent Decree Is Presumptively Fair Because It Resulted from the Arm's-Length Negotiations of Experienced and Informed Counsel.
The proposed Consent Decree in this case is entitled to a presumption of fairness because it resulted from arm's-length negotiations between experienced, capable counsel at an advanced stage of the case.
"A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm's-length negotiations between experienced, capable counsel after meaningful discovery." Wal-Mart Stores, Inc., 396 F.3d at 116 (citations omitted; internal quotation marks omitted); see also In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110, 122 (S.D.N.Y. 2009), aff'd sub nom. Priceline.com , Inc. v. Silberman, 405 F. Applx 532 (2d Cir. 2010) ("Where a settlement is the 'product of arm's length negotiations conducted by experienced counsel knowledgeable in complex class litigation,' the negotiation enjoys a 'presumption of fairness.") (citations omitted). In this vein, the opinions of experienced and
10

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informed counsel supporting settlement are entitled to considerable weight. See Currency Conversion Fee, 263 F.R.D. at 122 (noting that experienced class counsel, like experienced mediators, can lend fairness to a settlement).
In this case, experienced and capable counsel explored settlement possibilities periodically over four years of litigation. Attorney Galles has represented class plaintiffs in numerous Title IX cases. Other counsel on both sides have many years of experience representing plaintiffs and defendants in complex litigation, including both class and individual cases in which plaintiffs have alleged that they were victims of discrimination in violation of federal statutes.
A very large amount of information was exchanged in the discovery process. The mediation with Attorney Dickstein began after the Court of Appeals affirmed this Court's decision granting a permanent injunction, as the parties prepared for potential trial on the remaining claims in the case. Although discovery had not been entirely completed on those claims, enough information had been disclosed to allow for the preparation and exchange of preliminary expert reports. The negotiations were certainly at arm's-length; indeed, at times they were quite contentious. The settlement clearly satisfies this aspect of the standard for preliminary approval.
2. The Proposed Settlement Is Fair Because It Contains No Obvious Deficiencies, and Other Grounds to Doubt Its Fairness Are Not Present.
At this stage, which the Second Circuit has likened to the establishment of "probable cause" that a settlement is fair, only glaring defects in the settlement warrant denial of preliminary approval. See Reade-Alvarez, 237 F.R.D. at 33 (noting that "unduly preferential treatment of class representatives or of segments of the class, or excessive compensation for
11

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attorneys" might warrant denial or preliminary approval). Such defects or other indicia of unfairness simply are not present here.
First, the proposed Consent Decree provides myriad benefits to class members and secures promises of significant investment by Quinnipiac in its women's athletics program. On the participation claim, Quinnipiac has agreed to retain the varsity women's volleyball program and either has expanded or will expand women's athletic participation opportunities by adding varsity golf and rugby, 3 and by enhancing the women's track and field program. On the scholarships and benefits claims, female athletes will benefit from new or improved facilities, additional athletic scholarships (including in volleyball), more coaching, additional academic support, higher levels of competition, more practice time, more competitive events, and additional expenditures on such things as uniforms, equipment, and travel. The Referee to be appointed pursuant to the Consent Decree will supervise the expenditure of funds in order to ensure equality in the treatment of women and men in the University's athletics program. There are no "glaring defects" present in this settlement.
Second, the class representatives do not receive unduly preferential treatment. The $15,000 payments to each of them under the proposed Consent Decree are well within the range of reasonableness for the release of their individual claims for retaliatory treatment by the Defendant, claims which were not asserted on behalf of the class.
3 In view of this Court's decision concerning rugby's current status as a genuine varsity participation opportunity, Plaintiffs and Defendant have agreed that Quinnipiac will raise the level of competition for its rugby team, add scholarships, improve the varsity rugby pitch, provide two full-time coaches, and make good faith efforts to promote rugby as a varsity sport for women. Both parties reserve their rights as to rugby's status after the termination of the Consent Decree.
12

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Third, the compensation proposed for class counsel is not excessive. The total amount -$1,900,000 including out-of-pocket disbursements — is significantly less than counsel would have sought in fees based on their time expended and their normal hourly rates, had the litigation not been compromised. (The agreement also calls for a contribution of $50,000 by Quinnipiac to the Emanuel Margolis Fellowship Fund at Quinnipiac University School of Law, the income from which will support a Quinnipiac law student working at the American Civil Liberties Union of Connecticut.)
In short, there are no indicia of unfairness in the proposed Consent Decree, and the benefits it provides the class place it well within the range of possibly appropriate results.
B. In Light of the Fairness of the Proposed Consent Decree, This Court Should Approve the Notice of Settlement and Order Distribution of the Class Notice.
This Court should approve the parties' proposed notice to members of the class, because it reasonably and fairly apprises class members of the proposed Consent Decree and their rights in connection with it. Quinnipiac has also agreed to provide notice to the coaches of the women's teams for informational purposes. Thus all persons with direct stakes in the outcome will be aware of the terms of the Consent Decree.
Although Fed.R.Civ.P. 23 does not require notice to a Rule 23(b)(2) class at the certification stage, Rule 23(e) requires the court to "direct notice in a reasonable manner to all class members who would be bound" by a proposed settlement, voluntary dismissal, or compromise. "The standard for the adequacy of a settlement notice in a class action under either the Due Process Clause or the Federal Rules is measured by reasonableness." Wal-Mart Stores, Inc., 396 F.3d at 113 (citing Soberal-Perez v. Heckler, 717 F.2d 36, 43 (2d Cir. 1983); Fed. R. Civ. P. 23(e)). The court's sound discretion, not rigid rules, guides the analysis. See Weinberger
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v. Kendrick, 698 F.2d 61, 70 (2d Cir. 1982). A settlement notice to the class satisfies constitutional and Rule 23(e) requirements if it "fairly apprise(s) the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings," and if it is neutral. Id. (citations omitted; alterations omitted; internal quotation marks omitted). "Notice is adequate if it may be understood by the average class member." Wal-Mart Stores, Inc., 396 F.3d at 114 (citations omitted; internal quotation marks omitted).
The proposed class notice here (attached to the proposed Consent Decree as Schedule B) is calculated to be read and understood by members of the certified class; i.e., high school and college students. All counsel believe that it fairly apprises members of the class of the terms of the proposed Consent Decree and of their options in connection with it. Counsel further believe that email notice to current female Quinnipiac students and incoming female Quinnipiac recruited athletes is the best way to reach the largest possible proportion of the certified class. Of course, the parties are prepared to be guided by the Court in connection with any other form or means of notice to class members of the proposed settlement.
C. Proposed Schedule for Final Approval of the Consent Decree The parties believe that if the Court promptly grants this motion for preliminary approval of the proposed Consent Decree, it will be possible to meet the following schedule for a Fairness Hearing: • Quinnipiac to email notice to class members no later than May 6, 2013; • Class members to file objections, comments, and/or requests to be heard at the Fairness Hearing so that they are received by the Court no later than June 5, 2013; • Parties to file memoranda of law in support of final approval, and any supplemental
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materials, by June 17, 2013; and • Fairness Hearing to be held June 20, 2013, at 10:00 a.m. IV. CONCLUSION
For the foregoing reasons, Plaintiffs and Defendant respectfully request that the Court grant this joint motion for preliminary approval of the proposed Consent Decree, approve the content and authorize the dissemination of the proposed Class Notice, and adopt the proposed schedule of events and deadlines leading to a Fairness Hearing on June 20, 2013.
Respectfully Submitted,

By:

/s/

Jonathan B. Orleans (ct05440)

Alex V. Hernandez (ct08345)

Pullman & Comley, LLC

850 Main St., P.O. Box 7006

Bridgeport, CT 06601-7006

Telephone: (203) 330-2000

Facsimile: (203) 576-8888

Email: jorleans@pullcom.com

Email: ahernandez@pullcom.com

Kristen Galles (pro hac vice) Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 Telephone: (703) 722-1071 E-Mail: kgalles@comeast.net
Sandra Staub (ct28408) American Civil Liberties Union Foundation of Connecticut 330 Main Street Hartford, CT 06106 Telephone: (860) 523-9146 Email: sstaub@aeluct.org
Attorneys for Plaintiffs
15

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By:

/s/

Edward A. Brill (phv015747)

Susan D. Friedfel (phy03585)

Proskauer Rose LLP

11 Times Square

New York, NY 10036

Telephone: (212) 969-3000

Facsimile: (212) 969-2900

Email: ebrill@proskauer.com

Email: sfriedfelAproskauer.com

Mary A. Gambardella (ct05386) Wiggin & Dana, LLP 400 Atlantic Street P.O. Box 110325 Stamford, CT 06911-0325 Telephone: (203) 363-7662 Facsimile: (203) 363-7676 E-Mail: mgambardella@wiggin.com

Attorneys for Defendant

16

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CERTIFICATION
I hereby certify that on the date hereon, a copy of the foregoing MEMORANDUM IN SUPPORT OF JOINT MOTION FOR ORDER: (1) PRELIMINARILY APPROVING CONSENT DECREE; (2) AUTHORIZING DISTRIBUTION OF NOTICE OF SETTLEMENT; AND (3) SETTING A SCHEDULE FOR FAIRNESS HEARING AND FINAL APPROVAL was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF System.

Dated: April 26, 2013

/s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440)

17
ACTIVE/73061.2/JORLEANS/4071365v9

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EXHIBIT 1

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Jeffrey Orleans – Title IX, Education Amendments of 1972 – April 1, 2013
U. S. Department of Health, Education and Welfare -- 1971-1974
Staff Attorney, Office of the General Counsel, Civil Rights Division -- One of two OGC/CR members of the working group that produced the initial HEW Title IX regulation as published for comment in the Federal Register, primary author of the internal memoranda regarding athletics for the General Counsel and Secretary
Co-authored the first law review article about Title IX and presented it at the 1973 Annual Meeting of the Association of American Law Schools -- Buek and Orleans, "Sex Discrimination—A Bar to a Democratic Education: Overview of Title IX of the Education Amendments of 1972", 6 Conn. Law Review 1(1973)
University of North Carolina General Administration – 1975-1984
Office of the President, Special Assistant – Directed implementation of Title IX in all respects, including athletics, in 16-campus public university system
Council of Ivy Group Presidents (The Ivy League) – 1984-2009
Executive Director/Commissioner – Directed growth of Ivy League women's athletics into one of the two broadest conference athletic programs in NCAA Division I (championships in 16 sports); provided for full representation of women's sports and women administrators in league athletic governance; supported Ivy League coaches and administrators in establishing NCAA women's championships
Initiated, secured support for and directed "Silver Anniversary" Celebration of 25 years of Ivy league Women's championships (1998-99), the first such commemoration by any college athletics conference -- year-long series of league and institutional events including traveling symposia and traveling historical exhibition; published commemorative book, Silver Era, Golden Moments: A Celebration of Ivy League Women's Athletics, P. Walsh, Madison Books (1999); Silver Anniversary Celebration received Athletic Management Magazine's annual award for contributions to women's athletics
National Collegiate Athletic Association – 1984 to present
Member of NCAA Gender Equity Task Force, 1991-93

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Advocate for women's athletics as member of NCAA Membership and Leadership Councils
Invited speaker on Title IX issues to NCAA Annual Gender Equity/Diversity Conferences, 2010 and 2012
Consulting -- 2009 to present
Individually and on behalf of Alden & Associates, Inc., in the past four years have provided Title IX advice and/or campus reviews for three institutions and two conferences in NCAA Division I and five institutions and two conferences in NCAA Division III, as well as Title IX advice as part of overall strategic planning advice to two NCAA Division I conferences, two NCAA Division II conferences and two two-year institutions.
Other Activities
Selected for the Board of Directors of the College Women's Sports [Honda} Awards, 2012 (the most prominent awards program for college women's athletics)
Coauthor (with E.D. Johnson), "Nondiscrimination Doesn't have to Not Work: Restricted Scholarships, H.E.W., and the I.R.S., 7 Jnl. of Law and Education 493 (1978)
Author, "Title IX and Athletics: Time Out?", 63 Educational Record 40 (1982)
Presenter on Title IX at various forums within The University of North Carolina and at annual conferences of the National Association of College and University Attorneys, — 1975-1990
Author, "An End to the Odyssey: Equal Athletic Opportunities for Women", 3 Duke Journal of Gender Law & Policy 131 (1996); presented at Duke in 1995
Author of four-part series of articles commemorating Title IX's 40 th anniversary for clients of In2Vate, Inc., 2011-12
In-person and webinar presenter regarding Title IX compliance for clients of Academic Impressions, Inc., 2010-12

Case 3:09-cv-00621-SRU Document 307-4 Filed 04/26/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, KAYLA LAWLER )

ERIN OVERDE VEST, KRISTEN

)

CORINALDESI, and LOGAN RIKER,

)

individually and on behalf of all those

)

similarly situated;

)

Plaintiffs,

)

v.

)

)

QUINNIPIAC UNIVERSITY,

)

Defendant.

)

Case No. 3:09-CV-621(SRU) April 26, 2013

DECLARATION OF JONATHAN B. ORLEANS IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CONSENT DECREE

I, Jonathan B. Orleans, declare as follows: 1. I am an attorney and a member of the Bar of this Court. I represent the plaintiff class in this action. 2. I make this declaration in order to put before the Court certain facts relevant to the parties' joint motion for preliminary approval of their proposed Consent Decree. 3. This case was filed in April, 2009. It has been litigated vigorously on both sides. 4. In connection with the proceedings to date, the parties have conducted extensive discovery, including the depositions of more than 25 witnesses, the disclosure of more than 25,000 pages of documents, and the preparation of multiple reports by expert witnesses. 5. The Court conducted an evidentiary hearing in May, 2009 on plaintiffs' motion for a preliminary injunction, which was granted. 6. In June 2010, the Court held a trial on the first claim alleged in plaintiffs' amended complaint. The court found in favor of the plaintiffs.

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7. Quinnipiac appealed the trial court's decision on the first claim. The appeal was argued in January, 2012, and the Court of Appeals affirmed in August, 2012.
8. In June, 2012, the Court held a hearing on defendant's motion to lift the injunction that had been entered by the Court. The Court denied the motion in March, 2013.
9. Cumulatively, in-court proceedings in this case have consumed more than 10 trial days.
10. Despite the considerable effort devoted to the case, to date, only one of the three claims asserted by the class plaintiffs under Title IX has been tried. Trial of the remaining claims (relating to athletic financial aid and to varsity athletic benefits) would require significant additional work on both sides of the case.
11. Over the course of the litigation through late 2012, counsel frequently discussed settlement possibilities and engaged in both direct and assisted negotiations. In 2009 and 2010, the parties sought the assistance of a currently sitting Magistrate Judge, but the negotiations were not fruitful. Later in 2010, and again in 2011, the parties retained a retired Magistrate Judge as a private mediator, but those negotiations also failed.
12. Late in 2012, counsel agreed to make another attempt at settlement with the assistance of Michael Dickstein, Esq., a professional mediator based in San Francisco, California, who has specific experience in mediating Title IX cases. Counsel (and representatives of the defendant) spent a full day in mediation with Mr. Dickstein in December, 2012, at which substantial progress was made. Counsel continued to negotiate, with Mr. Dickstein's assistance, over the next few months, resulting in the execution of a memorandum of understanding on March 21, 2013, and subsequently the submission of a proposed Consent Decree to this Court.
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13. Plaintiffs' counsel are experienced trial attorneys with expertise in matters relating to civil rights, discrimination, and trials in federal court. Attorney Galles has represented plaintiffs in multiple Title IX class actions. Attorney Hernandez is a foinfer Assistant U.S. Attorney. Attorney Staub is Legal Director of the American Civil Liberties Union Foundation of Connecticut. I have practiced in the District of Connecticut for over twenty-five years, have represented both plaintiffs and defendants in a variety of class action and discrimination cases, and currently serve as Legal Advisor to the ACLU of Connecticut. Defendant has also been represented by able, experienced and sophisticated counsel from the films of Wiggin & Dana and Proskauer Rose.
14. In reaching our decision to recommend this settlement to our clients and the Court, class counsel considered the strengths and weaknesses of plaintiffs' claims, the range of possible outcomes of further litigation, the relief that the Court might order if plaintiffs prevail (as compared to the relief provided by the settlement), the expense and likely length of continued proceedings necessary to prosecute the remaining claims in the case, and the benefits to class members of the proposed Consent Decree. In my opinion and the opinion of my colleagues, the terms and conditions of the proposed Consent Decree are fair, reasonable, and in the best interests of the Class.
15. The parties have requested that the Court approve our agreement for a payment by defendant of $1.9 million for plaintiffs' attorney fees and costs of litigation in this matter. (An additional $50,000 is to be contributed by the University to the Emanuel Margolis Fellowship Fund at Quinnipiac University Law School. Income from this Fund will support the work of a Quinnipiac University law student at the ACLU of Connecticut office.) We believe this request
3

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is reasonable in view of the quantity and quality of work devoted to the case by Plaintiffs' counsel.
16. Plaintiffs' counsel have collectively incurred about $150,000 in out-of-pocket costs (including expert fees) in connection with the prosecution of this case. Attorneys Orleans, Hernandez, Galles and Staub, each of whom has over twenty years of experience, devoted collectively more than 5,000 hours to the case over the course of nearly four years. Associates and paralegals devoted more than 500 additional hours. Had the matter not settled, and plaintiffs' counsel submitted a motion for a fee award, we would have sought a total sum, based upon the usual hourly rates charged by the various attorneys and/or reasonable rates in the market, of at least $2.5 million, plus costs. Thus, we believe that the agreed figure of $1.9 million inclusive of costs represents a reasonable compromise by both sides.
17. Should the Court wish to review documentation concerning the hours expended by plaintiffs' counsel on this case and appropriate hourly rates, we can provide such documentation.
18. Finally, it seems appropriate that I address in this Declaration the parties' selection of Jeffrey Orleans, my first cousin, as the "Referee" to be charged with monitoring the implementation of the Consent Decree. The parties negotiated intensively concerning both the scope of the proposed Referee's authority and the identity of the Referee. It clearly was essential that the Referee be a person with significant expertise in college athletics who would be trusted by both sides to be reasonable and fair.
19. All counsel and party representatives were aware from early in the case of my relationship with Jeffrey Orleans, who is former Executive Director of the Council of Ivy League Presidents (i.e., Commissioner of Ivy League Athletics). He also has a number of connections to
4

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persons involved in this litigation other than his familial connection to me. Defendant's Athletic Director, Jack MacDonald, has had contact with Jeffrey Orleans through the NCAA. Similarly, Donna Lopiano, Plaintiffs' principal expert witness, has worked with Jeffrey Orleans in the past. He has also been a consultant for the North East Conference, of which Quinnipiac is currently a member.
20. Jeffrey Orleans also has very significant Title IX experience (described in Exhibit 1 to the parties' Joint Memorandum of Law in Support of Motion for Preliminary Approval of the Consent Decree).
21. During negotiations, each side proposed several candidates for the Referee position who were met with objections from the other side. Ultimately, Defendant proposed Jeffrey Orleans. Jeffrey Orleans and I have each promised all counsel that we will not discuss this case privately while he serves as the Referee, and all counsel are satisfied both that he is well-qualified for the position and that he will be fair and unbiased in that role.
22. Thus, after full disclosure and open discussion of his relationship with me, the parties have agreed upon the designation of Jeffrey H. Orleans as Referee under the Consent Decree.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge and belief.
Dated at Bridgeport, Connecticut this 26 th day of April, 2013.
athan B. Orleans

Case 3:09-cv-00621-SRU Document 307-4 Filed 04/26/13 Page 6 of 6
CERTIFICATION I hereby certify that on the date hereon, a copy of the foregoing DECLARATION OF JONATHAN B. ORLEANS IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CONSENT DECREE was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF System.

Dated: April 26, 2013

/s/ Jonathan B. Orleans Jonathan B. Orleans (ct05440)

6
ACTIVE/73061 2/JORLEANS/4096049v2

 
 Case 3:09-cv-00621-SRU Document 308 Filed 04/29/13 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, et al., Plaintiffs,
v.
QUINNIPIAC UNIVERSITY, Defendant.

No. 3:09cv621 (SRU)

ORDER PRELIMINARILY APPROVING CONSENT DECREE; AUTHORIZING DISTRIBUTION OF NOTICE OF SETTLEMENT; AND SETTING A SCHEDULE FOR
FAIRNESS HEARING AND FINAL APPROVAL On April 26, 2013, the parties to this class action informed the Court that they have reached a mediated settlement of all claims in the form of a proposed Consent Decree. The parties filed a Joint Motion for Preliminary Approval of Consent Decree, along with the proposed Consent Decree, a proposed notice to class members, the Declaration of Plaintiffs' attorney Jonathan B. Orleans, and a memorandum of law. The motion (doc. # 307) asks the Court to preliminarily approve the Consent Decree, approve the class notice, direct the defendant to transmit the notice to class members, set a schedule for submission of objections, and schedule a Fairness Hearing. The Court, having considered the joint submissions of the parties to this action seeking preliminary approval of their proposed Consent Decree, finds and orders as follows: 1. The proposed Consent Decree bears sufficient indicia of fairness, reasonableness, and adequacy to merit preliminary approval, and the motion for preliminary approval (doc. # 307) is therefore GRANTED;

Case 3:09-cv-00621-SRU Document 308 Filed 04/29/13 Page 2 of 2
2. The form of notice to the class proposed by the parties will fairly and adequately advise class members of the proposed terms of the settlement, and is therefore APPROVED by the Court;
3. E-mail distribution of the notice to current female Quinnipiac University students and recruited female athletes is a reasonable means of providing notice to all class members who would be bound by the settlement, and Defendant is therefore ORDERED by the Court to transmit the notice by no later than May 6, 2013;
4. Class members who wish to object to or comment on the settlement, and/or who wish to be heard at the Fairness Hearing, are ORDERED to file their objections, comments, and/or notices of intent to appear so that they are received by the Clerk of the Court and counsel for both parties by June 5, 2013, all as described in the notice to class members;
5. The parties are ORDERED to file any additional submissions in support of final approval of the Consent Decree by no later than June 17, 2013; and
6. A Fairness Hearing is scheduled for June 20, 2013 at 10:00 a.m., before me. It is so ordered. Dated at Bridgeport, Connecticut, this 29th day of April 2013.
/s/ Stefan R. Underhill Stefan R. Underhill United States District Judge

 
 Case 3:09-cv-00621-SRU Document 311 Filed 06/20/13 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STEPHANIE BIEDIGER, et aI., Plaintiffs,
v.
QUINNIPIAC UNIVERSITY, Defendant.

No. 3:09cv62l (SRU)

ORDER APPROVING CONSENT DECREE This matter came before the Court on the Plaintiffs' Motion for Final Approval of Consent Decree (doc. # 309). Both the Plaintiffs and the Defendant filed Memoranda of Law in support of Plaintiffs' Motion. On April 29, 2013 this Court granted the parties' Joint Motion for Order: (1) Preliminarily Approving Consent Decree; (2) Authorizing Distribution of Notice of Settlement; and (3) Setting a Schedule for Fairness Hearing and Final Approval. The pmties have represented to the Court that, in accordance with that Order, notice in the form approved by the Court was sent by email to the members of the celtified class on or about May 6, 2013. No class members have filed any objections to final approval of the Consent Decree. One comment was received from Quinnipiac's women's rugby team. The Court conducted a Fairness Hearing on June 20,2013, at which counsel for the parties appeared and were heard. Class members seeking to comment on the proposed Consent Deeree were also permitted to address the Court. Based on the parties' written submissions, the representations of counsel at the Fairness Hearing, and upon the absence of objection from class members, the Court finds that the

Case 3:09-cv-00621-SRU Document 311 Filed 06/20/13 Page 2 of 3
proposed settlement embodied in the Consent Decree is fair, reasonable and adequate. Therefore, the Court hereby ORDERS as follows:
I. The proposed Consent Decree (doc. # 307-1), submitted to the Court on April 26, 2013, is APPROVED, and is hereby entered as an Order of the Court. Counsel for the parties are directed to submit a fully-executed original of the proposed Consent Decree to my chambers. I will sign it and it will be entered on the docket.
2. In accordance with the Consent Decree, the Court appoints Jeffrey Howard Orleans as the "Referee" under the Consent Decree. Mr. Orleans shall have all of the powers, authority and responsibility granted to the Referee under the tenns of the Consent Decree, and shall report to the Court as described therein and/or at such other times as he deems appropriate. Mr. Orleans is authorized to engage in ex parte communications with either party to the extent he deems such communications appropriate to advance the purposes of the Consent Decree. Mr. Orleans' compensation arrangements shall be negotiated between Mr. Orleans and counsel for the parties, subject to the Court's review at the Court's discretion or in the event of any dispute.
3. The Court shall retain jurisdiction over this matter for the purpose of ensuring that the Consent Decree is implemented according to its tenns. In the event of any dispute concerning the interpretation or implementation of the Decree that cannot be resolved among the parties and the Referee in accordance with the procedures contained therein, counselor the Referee may notify the Court, and I will take appropriate action.
4. Absent further order of the Court, the Consent Decree and the permanent injunction shall terminate effective July 1, 2016.
It is so ordered. Dated at Bridgeport, Connecticut, this 20th day ofJune 2013.

Case 3:09-cv-00621-SRU Document 311 Filed 06/20/13 Page 3 of 3
~~~~~~~
United States District Judge

 
 Case 3:09-cv-00621-SRU Document 314 Filed 10/04/13 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

--------------------------- X
STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, and LOGAN RIKER, individually and on behalf of all those
similarly situated; and
ROBIN LAMOTT SPARKS, individually,

CIVIL ACTION NO;
3:09-CV-00621 (SRU)

Plaintiffs,

against

QUINNIPIAC UNIVERSITY

Defendant. X

STIPU TION OF DISMISSA OF THE I DIVIDUAL CLAIMS OF STEPHANIE BIE GER KAYLA LAWLER ERIN VERDEVEST
KRISTEN CORINALDESI AND L GAN RIKER
IT IS HEREBY STIPULATED AND AGREED, by and between the

undersigned counsel for the parties hereto, that the Fifth Claim for Relief in the First

Amended Complaint on behalf of Stephanie Biediger, Kayla Lawler, Erin Overdevest,

Kristen Corlnaldesi, and Logan Riker in this Action is withdrawn and shall be, and the

same hereby is, dismissed with prejudice and without fees or costs to any party.

Dated: October 2, 2013

Susan D. Friedfel Federal Bar No. phv03585
PROSKAUER ROSE LLP Eleven Times Square New York, NY 10036 Tel: 212.969.3000
Fax: 212.969.2900
ebrillteproskauer. corn

Case 3:09-cv-00621-SRU Document 314 Filed 10/04/13 Page 2 of 3
sfriedfetproskauer. corn Mary A. Gambardella (ct05386) Wiggin & Dana, LLP 400 Atlantic Street
P.O. Box 110325 Stamford, CT 06911-0325 Tel: (203) 363-7662 Fax: (203) 363-7676
mgambardellawiggin. corn Attorneys for Defendant
P 850 NIain Street Bridgeport, CT 06601
Tel.'203.33'0.2129
Fax: 203.576.8888
jborleanspullcom, corn
Kristen Galles (pro frao vice) EQUITY LEGAL
10 Rosecrest Avenue Alexandria, VA 22301 (703) 683-4491 (phone) (703) 683-4636 (fax)
kgallesILtlcorncast. net Sandra Staub American Civil Liberties UnionConnecticut
330 IVIatn Street, First Floor Harfford, CT 06106 Tel: (860) 523-9146
Attorneys for Plaintiffs

Case 3:09-cv-00621-SRU Document 314 Filed 10/04/13 Page 3 of 3
CERTIFICATE OF SERV CE I hereby certify that on October 4, 2013, a copy of the foregoing Stipulation of Dismissal was filed electronically. Notice of this filing was sent by e-mail to al! parties by operation of the Court's electronic filing system as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF System.

 
 Case 3:09-cv-00621-SRU Document 318 Filed 04/22/14 Page 1 of 35

Biedeger v. Quinnipiac University

DATE:

April 14, 2014 [Corrected April 21, 2014, Sects. G-3 and H-2]

TO:

Hon. Stefan J. Underhill, USDJ

CC:

Counsel for the Parties

Mark Thompson, Executive Vice President and Provost,

Quinnipiac University

FROM: Jeffrey Orleans, Referee

SUBJECT: Referee’s Baseline Review and Initial Findings and Recommendations

Pursuant to the charge to the Referee in Section V-D of the Consent Decree to “implement and monitor compliance with Quinnipiac’s obligations” under the Decree, I am pleased to submit to the Court and to counsel this Referee’s Baseline Review and initial findings and recommendations. I appreciate both parties’ cooperation in all of the work that has occurred since the Decree was signed last June, and of course I would be pleased to answer any questions that the Court may have.
As developed in the Preface, below, and throughout this Review, I believe that Quinnipiac has made a successful beginning in implementing the Decree. At the same time, and as I think both parties anticipated in developing the Decree and in providing for this initial assessment, significant additional tasks remain; I will continue to work with Quinnipiac throughout the spring, including campus visits that will begin this week. Quinnipiac will report to me and to the plaintiffs on May 16, and I then will report comprehensively on all of Quinnipiac’s efforts in the required Annual Referee’s Report on June 14.
My overall goal for this first year has been for Quinnipiac to have in place for 2014-15 the administrative, policy and resource capacities to fulfill and clearly account for all its Title IX responsibilities, in its overall athletics expectations and planning and in day-today athletics decisions and operations, for the benefit of all of its athletes, both women and men. I thus have tried to use the Review not only to determine and document what Quinnipiac’s compliance status is now, but also to define what else needs to be done and to help Quinnipiac begin to make those changes.
These efforts began with a campus visit in July 2013 and have proceeded continuously since then, involving interviews and meetings with institutional administrators, coaches and teams, athletics staff, and counsel for both parties; consideration of extensive materials submitted by both parties, including comments on earlier drafts of this document and other issue-specific memoranda from me and on periodic status reports

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Referee’s Baseline Review and Initial Findings and Recommendations

by Quinnipiac; and frequent telephone and email consultation. Each party has had access to any material provided by the other party on which I have relied.

This Review so as to bring together issues that the Decree addresses in different places: following the Preface, Sections A through G each quote relevant Decree requirements in italics, followed by my analysis, conclusions and recommendations; Section H then presents the specific “spending” recommendations called for in Decree Sections V-C-3 and V-D-8.

- - - - - Contents - - - - -
Section
Preface
A. Overall Title IX compliance, policy and grievance procedures, staffing and training
1. Policy and procedures 2. Athletics compliance
B. Other general commitments 1. Changes in sports 2. Club teams 3. Men’s teams
C. Facilities
D. Tiering 1. “Proportionate” requirements 2. Tiering criteria, facilities, support and resources
E. Benefits and Policies Specified in the Decree 1. Coaches’ salaries 2. Athletic scholarships 3. Other benefits specified in the Decree
F. Other Benefits Generally
G. Specific Sports 1. Field Hockey 2. Women’s golf

Page
3
4 5 6
7 7 8 9
9
11 12 14
17 17 18 20
22
26 26 27

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Referee’s Baseline Review and Initial Findings and Recommendations

3. Rugby

27

4. Women’s Cross-country and track and field

30

5. Volleyball

34

H. Spending Recommendations

35

1. Analysis

35

2. Recommendations

36

Preface
Quinnipiac has made clear commitments to compliance with the Consent Decree throughout the year and compliance responsibility has been assumed by appropriate senior institutional leadership, led by the Provost/Executive Vice President. For example, the introduction to Quinnipiac’s March 31 status report to me states:

With the data and analysis presented herein, Quinnipiac wishes to reaffirm its unwavering commitment to fulfilling all aspects of the Consent Decree and to demonstrate how, with the benefit of outside expertise, it has been actively implementing policies and practices in line with best practices that will assure its self sufficient capacity, not only to comply with Title IX, but also to provide solid evidence of that compliance routinely.

As detailed in this Review, I conclude that Quinnipiac has:

*

Fulfilled the specific “Decree” commitments required for 2013-14, including

submission of appropriate facilities and “tiering” plans;

*

Made tangible financial investments, both specifically for “Decree”

requirements, and by focusing on gender equity considerations in responding to overall

athletics needs;

*

Shown significant progress in developing needed administrative and

budget changes and undertaking or beginning needed analyses of “operating” athletics

policies and resources; and,

*

Sought and been responsive to my recommendations (and to various

suggestions from the plaintiffs) and to my requests for reports and analyses.

At the same time, this Review is the first “post-litigation” attempt to address Quinnipiac’s current and future Title IX compliance, in detail and in one place. As such it is specifically intended not only to recognize achievements but also to identify

Case 3:09-cv-00621-SRU Document 318 Filed 04/22/14 Page 4 of 35

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Referee’s Baseline Review and Initial Findings and Recommendations

remaining questions, so that those questions can be answered and additional needed change can be accomplished. Recognizing that work remains to be done, in other words, should not detract from the start that Quinnipiac has made in implementing the Decree and in providing gender equity in its athletic activities.

Specifically, it has been clear from the beginning of our efforts that Quinnipiac first needed to clarify or develop operating policies and/or budgets in many athletics areas, often extensively, before I could begin to determine whether there are equity issues in those areas. That work has required substantial campus involvement and taken substantial time. It also has given Quinnipiac important experience in understanding what Title IX and the Decree mean and how they apply, and in developing the capacities that it will need to achieve and maintain compliance without external supervision – both of which are essential goals of the Decree.

It thus also has seemed from the start that while this Baseline Review would present significant conclusions and recommendations, the entire academic year would be needed to finish all of this work, and that has proven to be the case1. As noted, the June Referee’s Report will be a complete review of all relevant issues in order to provide a clear basis for athletics gender equity in 2014-15: given the extent of change that has been needed this year, I believe this process has moved as quickly as has been possible, and that real and essential progress has been achieved.

A. Overall Title IX compliance, policy and grievance procedures, staffing, training
I‐A. Quinnipiac acknowledges its obligation under the law to comply with Title IX in the operation of its athletic program.
I‐B. Quinnipiac shall promptly develop a Title IX nondiscrimination policy and grievance procedure, which it shall disseminate prominently on its website and annually in its student handbook, athlete handbook, and faculty/staff handbook no
1 For example, Quinnipiac implemented a new institution-wide zero-based-budgeting approach this winter in preparing the 2014-15 institutional budget, including the athletics budget, which provided much more accurate budget data than had been available previously, but the first budget estimates were not available for review until late March. Similarly, because the Decree did not require Quinnipiac to choose its additional Tier 1 sport(s), or to define its approach to Tier 1 sports, until late December, evaluation of proposed policies and support for Tier 1 sports could not begin until January, with the projected budget figures then not available until March.

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Referee’s Baseline Review and Initial Findings and Recommendations

later than the beginning of the 2013‐2014 academic year, in accordance with 34 C.F.R. §§106.8 and 106.9.

I‐C. Quinnipiac shall ensure that its Title IX coordinator is trained concerning gender equity in athletics and that he/she will participate in ensuring Title IX compliance in the athletic department.
Quinnipiac has repeatedly affirmed its commitment to Title IX compliance in athletics and has worked continuously since June on the issues in this area -- responding to recommendations from me and in a number of areas from the plaintiffs; using outside materials from sources such as OCR, the NCAA, NACUA (the National Association of College and University Attorneys) and ATIXA (Association of Title IX Administrators); and engaging a nationally-known consultant. I believe the substantial changes described in this Section A present a good basis for Quinnipiac’s long-term provision of gender equity in athletics.

1. “Quinnipiac University Title IX Discrimination and Harassment Policy & Procedures”
Quinnipiac provided an initial Title IX policy and procedures document before the start of fall term 2013, based on past materials that focused primarily on sexual harassment but expanded to apply to Title IX, gender equity and sex discrimination more generally. The current document reflects continuing revision since the fall and will be revised again this spring for 2014-15; Quinnipiac will provide this text in its May 16 report.
Recognizing that institutions have some discretion in the design, wording and application of Title IX policies and procedures, I believe these materials are appropriate and that the structure they create should be effective. I will expect the Gender Equity Committee and Quinnipiac administrators to review this area annually, including review of use of the grievance procedures by the Quinnipiac community.
Quinnipiac complied with the requirements of Decree Section I-B (above) as to dissemination of the policy at the start of the 2013-14 academic year, and has made the policy and procedures accessible from the University’s main (www.quinnipiac.edu) and athletics (www.quinnipiacbobcats.com) websites; the full texts are available at http://www.quinnipiac.edu/prebuilt/pdf/about/QUTitleIXPolicy_121813.pdf. Notice of the current policy, and its online availability, was emailed to all student-athletes in fall 2013; such notice will continue annually and the 2014-15 materials also will be in the Athletics Staff and Student-Athlete Handbooks.
Vice President Thompson discussed the Decree and the policy and procedures, and

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Referee’s Baseline Review and Initial Findings and Recommendations

introduced Associate Vice President for Student Life Monique Drucker as the Title IX Coordinator, at the athletic department student-athlete/coach and coach/staff/Athletic Council meetings the first week of fall term 2013. Ms. Drucker also met separately with every team during the fall term to discuss the Policy and Grievance Procedure (two fallteam meetings took place in January). These or similar activities will take place again this fall, including involvement of the new Athletic Title IX Officer as discussed below.

2. “Ensuring Title IX compliance in the athletic department [Decree I-C]”
The institutional Title IX Coordinator (Ms. Drucker) was appointed before the 2013-14 academic year began, has undertaken relevant training (below) in her overall and grievance procedure roles and in Title IX athletics issues, and was involved in all my fall 2013 campus meetings. During this year the Provost has been responsible for strategic and budget decisions, administrative changes and reporting to me as to athletics gender equity generally and Decree compliance specifically.

Both to help the athletics department fully assume “Title IX” responsibilities in its operations (with overall institutional oversight), and to implement the Decree’s otherwise undefined provision that the Title IX Officer “participate in ensuring Title IX compliance in the athletics department,” I recommended that a senior athletics administrator be appointed as an Athletics Title IX Officer, working with both the Provost and Ms. Drucker, and receive training appropriate to this work.

Quinnipiac appointed Ms. Tami Reilly, Associate Athletic Director for Fitness and Wellness, as the Athletics Title IX Officer and Deputy Title IX Coordinator for Athletics effective March 1, 2014. Ms. Reilly will “focus on Title IX responsibilities in athletic planning and operations”; any grievances that may arise from the athletics department will continue to be addressed by Ms. Drucker. Ms. Reilly is a senior administrator with wide campus experience who will be a member of the Gender Equity Committee, Quinnipiac has an appropriate job description for her duties, and I will meet with her this spring.

I also recommended that Quinnipiac develop a process for reviewing and reporting on gender equity in athletics each year. In response, Quinnipiac has established a Gender Equity Committee on Athletics with significant responsibilities for reviewing athletics and for reporting to the athletic director and the Athletics Title IX Officer, including development of an “annual internal athletics gender equity review” that will reflect input from the Student-Athlete Advisory Committee and from a student-athlete survey2. As

2 The Committee is chaired by the institutional Title IX Coordinator and also includes the Athletics Title IX Officer, four coaches (one men’s and one women’s head coach from Tier 1 and non-Tier 1 teams), two senior athletics administrators, a male and female

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Referee’s Baseline Review and Initial Findings and Recommendations

Quinnipiac points out, establishing this Committee goes beyond the Decree’s requirements, and I believe it can make a significant long-term contribution to Quinnipiac’s gender equity efforts; I will meet with the Committee this spring.

Quinnipiac reports the following training activities, which I believe satisfy the Decree’s expectations:

*

Ms. Drucker “took” a multi-part online NACUA Title IX training course in

fall 2013.

*

Ms. Reilly and Athletic Director Jack McDonald will attend the NCAA

Diversity/Gender Equity seminar from May 1 to 3, 2014 (I expect to meet with them

there).

*

Janet Judge, Esq., President of Sports Law Associates, conducted

training sessions on February 25, 2014, for the Gender Equity Committee, including Ms.

Reilly, and for athletics department staff members.

B. Other general commitments
1. Changes in sports
II‐A‐2. Quinnipiac will not eliminate any varsity women’s athletic team except as otherwise permitted in Section II.A.3.
II‐A‐3. If Quinnipiac eliminates a women’s varsity athletic team, it will replace the team with an NCAA championship sport team(s) that provide a comparable number of participation opportunities.
II‐A‐4. Quinnipiac is not required to add any additional varsity athletic teams during the term of this Consent Decree, except as may be required by Section IV herein.
Quinnipiac has indicated that it has no plans to act in any way that would involve these obligations.
2. Club teams
student-athlete (one is Co-Chair of the SAAC), the faculty representative to the institutional Athletics Council, the Vice President for Facilities and Capital Planning and the institutional Human Resources officer assigned to Athletics.

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Referee’s Baseline Review and Initial Findings and Recommendations

II‐D. If Quinnipiac sponsors or otherwise provides support to club sports teams during the term of this Consent Decree, it must allocate those opportunities on a gender equitable basis.
Quinnipiac does not presently sponsor or support club sports teams and I believe it understands its obligations if it decides to do so. Quinnipiac has provided complete responses to my questions about the New Blue Rugby Team, a men’s team that is comprised of Quinnipiac undergraduates and that was at issue during the litigation. I am satisfied that Quinnipiac does not support or have a relationship with that team and that it is not a sponsored or supported club sport team within the meaning of the Decree [see also Section G-3 below].
3. Men’s teams
IV‐A. During the term of this Consent Decree, Quinnipiac will not create additional men’s sports teams unless it also creates additional women’s teams that provide at least an equal number of athletic participation opportunities.
IV‐B. During the term of the Consent Decree, Quinnipiac will not significantly increase the number of athletic scholarship awards for male athletes unless it simultaneously increases (beyond the requirements of this Consent Decree) the number of athletic scholarship awards for female athletes by at least the same number of athletic scholarships.
IV‐C. Quinnipiac may, upon reasonable notice to Plaintiffs, seek relief from the Referee from the requirements of this Section IV in response to circumstances reasonably supporting the need for such relief, which include, by way of example:
1. A significant increase in the proportion of full‐time male undergraduate students; or
2. A significant increase in the number of varsity athletic participation opportunities provided to female students.
Quinnipiac has indicated to me that it has no plans to act in any way that would involve these obligations.

C. Facilit ies

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Referee’s Baseline Review and Initial Findings and Recommendations

V‐A‐1. Quinnipiac will spend at least $5 million to improve the permanent athletic facilities (other than TD Bank Sports Center) used by its women’s varsity sports teams, including renovation and/or construction of locker rooms, exercise and weight training facilities, athletic training facilities, practice and competition facilities, and office space for head/assistant coaches, so that they are comparable to the facilities provided to men’s varsity sports teams in the same tier.
V-A-3. Quinnipiac will build an indoor track & field facility for practice and competition. The facility will meet NCAA standards for hosting indoor meets.
V‐A‐5. Quinnipiac will consult with the Referee during the planning process for the facility improvements described herein (“facility improvements”). The Referee may, at his/her discretion, consult with Plaintiffs’ counsel with respect to the facility improvements.
V‐A‐6. Within six months of the Court’s approval of this Consent Decree, Quinnipiac will present to the Referee and Plaintiffs’ counsel a projected schedule for completion of the facility improvements, which shall project that all of the facilities improvements will be completed by no later than June 30, 2018. Quinnipiac shall make good faith efforts to complete all facility improvements in accordance with the schedule. QU shall report to the Referee and Plaintiffs’ counsel at such intervals as the Referee shall determine concerning its progress toward completion of the facilities improvements.
Quinnipiac’s facilities schedule was timely submitted on December 20. It projects completion dates for fall 2016 for the lacrosse/soccer and field hockey stadiums and the new rugby pitch (with plans that appear to provide for appropriate facilities), spring 2017 for the indoor track and field venue and spring 2018 for any needed renovations to the Mt. Carmel Center. Quinnipiac has discussed its facilities plans during each of my inperson meetings, beginning last spring, and has presented clear timelines consistent with the Decree’s June 30, 2018, final completion date, supported by this commitment:
In addition to the specific commitments in the Decree, these facilities will be constructed so as to assure gender-equitable provision of locker-rooms, training and strength and conditioning facilities and opportunities, and other support for athletics, and to assure that all Tier 1 sports have appropriate space and support.
As construction schedules become more concrete [Quinnipiac] will provide updates including our specific plans for temporary practice and competition venues for teams displaced during construction.

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Referee’s Baseline Review and Initial Findings and Recommendations

I will review all the facility plans as part of the June Report, including the “interim” issues noted below and “support” topics such as laundry and storage access, “media-ready” capabilities and spectator facilities (all of which we have discussed during this year); that process will provide an opportunity for plaintiffs to review and comment upon the proposed plans.
Quinnipiac had originally hoped to open the new fields and rugby pitch in 2014, which would have assured appropriate fields for the new Tier 1 teams and for rugby and also made important changes in locker-rooms and other support services for some Tier 1 and non-Tier 1 teams based on the Mt. Carmel campus3. While the current schedule clearly complies with the Decree, and while I am satisfied that it reflects institutional budgeting decisions that are unrelated to compliance with the Decree, it also requires consideration of interim changes in these regards, as discussed below in Section D-2.
The commitment in Decree Section V-A-1 refers to “permanent” facilities; the Decree does not seem to address temporary facility construction that might be appropriate to support Tier 1 status or to provide gender equity in student-athletes’ day-to-day experiences, of which locker-rooms are a central part. I consider these to be high priorities for possible additional investment, and I return to this subject in my recommendations for 2013-14 and 2014-15 discretionary spending in Section H below.

D. Tiering
V‐B. The parties recognize that Quinnipiac currently treats men’s and women’s basketball and ice hockey as tier one sports (also denominated as “sports of emphasis”). Quinnipiac will take measures to elevate two (2) additional women’s teams to tier one as follows [1. Field Hockey, below]:
V‐B‐2. Additional tier one team. Within six months of the Court’s approval of this Consent Decree, Quinnipiac shall identify an additional, fourth women’s team as a tier one sport. Promptly after identifying the additional women’s team, Quinnipiac will (a) initiate the process of hiring any additional coaches necessary to provide the team with the maximum number of coaches allowed by NCAA rules and (b) provide
3 Women’s soccer (a new Tier 1 team) and softball share a locker-room, as do rugby and women’s cross-country/track and field. Field hockey and women’s and men’s lacrosse have their own locker-rooms, but their facilities and laundry services differ from those of the four teams located in the TD Bank Center.

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the head coach of the team with the authority to award the maximum number of athletic scholarships allowed by NCAA rules. Quinnipiac’s obligation to provide this fourth women’s tier one team with the maximum number of athletic scholarships allowed by NCAA rules shall extend until at least June 30, 2018, notwithstanding the termination of the Consent Decree. Quinnipiac will also provide this team with a superior practice and competition facility based on NCAA Division I standards for the sport in accordance with the schedule to be presented under in Section V.A.6 above.

V‐B‐3. If Quinnipiac adds more men’s teams to tier one during the term of the Consent Decree, then it must also add a proportionate number of women’s teams or female athletes to tier one.
The “tiering” decisions required above were timely submitted on December 20, also following discussions with me beginning in July, providing as follows:

The University will elevate the following sports to Tier 1 status: Women’s Soccer and Women’s and Men’s Lacrosse. Already existing Tier 1 sports include Men’s Basketball, Women’s Basketball, Men’s Ice Hockey, Women’s Ice Hockey and Field Hockey. There will be 5 Tier 1 women’s sports and 3 Tier 1 men’s sports. We believe these changes meet the requirements of Section V-B of the Decree in that we will provide the maximum number of coaches, the authority to award the maximum numbers of scholarships, and provision of a superior practice and competition facility.

Tier 1 sports will be differentiated from other sports in the following areas. Please note that work on more details is ongoing in particular with the plans for wellness/conditioning and publicity.

 Scholarships – maximum allowable  Coaching
o maximum allowable full-time coaching staff o head coaches recruited on national basis  Facilities o superior practice and competition facilities  Recruiting – national scope with appropriate funding  Wellness and Conditioning o practice/game medical staff o preferred access to weight rooms/strength coaches  Publicity o preferred sports information coverage

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o specific promotion and marketing plans appropriate for Tier 1 sports
“Tiering” involves two issues: the “proportionate” provisions with regard to choice of teams, and overall support and resources for and among Tier 1 teams.

1. “Proportionate” requirements
Quinnipiac has complied with its initial obligations to designate field hockey and a second women’s sport as new Tier 1 teams. However, because Quinnipiac also proposes Tier 1 status for an additional men’s sport, there also must be a finding as to whether the proposed pattern of Tier 1 sports meets the requirement of Decree Section V-B-3 -- that in addition to field hockey and a second new women’s tier 1 sport, Quinnipiac also must

add a proportionate number of [other] women’s teams OR female athletes to tier one [all emphases added].

Arithmetically, this text seems to include four possible comparisons that could define “proportionality”4; namely, the percentage of5:

a. Tier 1 teams that are women’s teams, compared to the percentage of undergraduates who are women: Quinnipiac’s proposal makes 5 of the 8 Tier 1 teams as women’s teams, or 62.5%, against a women’s enrollment percentage of 61.9%;

b. Women’s teams that are in Tier 1, compared to the percentage of men’s teams that are in Tier 1: 38.5% (5 of 13 teams) counting rugby or 41.7% (5 of 12 teams) not counting rugby, compared with 42.9% (3 of 7 teams) for the men’s teams;

c.

Tier 1 athletes who are women, compared to the undergraduate

4 If all women’s and men’s teams had the same squad sizes, “team” and “athlete” ratios would be the same in any Tier 1/non-Tier 1 pattern. But because different teams have different squad sizes, the same numbers and ratios of women’s and men’s Tier 1/nonTier 1 teams can produce different Tier 1/non-Tier 1 athlete ratios, depending on which teams are placed in Tier 1. And because the number of teams is so much smaller than the number of athletes, a change in Tier 1 status for even one team will cause a larger change in the team ratios than in the athlete ratios.

5 For reasons unrelated to either my conclusions here or to the Decree’s provisions for support of rugby (Section G below), the parties disagree as to whether rugby should be included in calculating these percentages; the parties agree that the calculations should exclude Acrobatics and Tumbling pursuant to Decree Section VIII-A.

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women’s percentage: 58.6%, against an enrollment figure of 61.9%.

d. Women athletes who are in Tier 1, compared to the percentage of male athletes who are in Tier 1: 41.9% (119 of 284 women athletes) counting rugby or 45.6% (119 of 261 women athletes) not counting rugby, compared with 51% for male athletes.

The Decree is silent as to what absolute differences between the two numbers in any of these comparisons should or should not be considered “proportionate”, or as to how to choose among these four ratios if they suggest different results6. I consider the results in A, B and C to be “proportionate”, and the result in D not to be proportionate.

Women’s soccer and women’s and men’s lacrosse all are plausible teams for Tier 1 status in terms of potential competitive success and spectator interest and support. If Quinnipiac ultimately wants all these teams to receive Tier 1 support, making that change at this time provides for oversight under the Decree -- as opposed to a potential lack of oversight if the change were to be made after the Decree expires -- and also allows Quinnipiac to make all its major budget, policy and tiering changes, and to design all its new administrative approaches, at one time.

In this context, and noting that the Decree’s language does not favor any one test, or seem to require compliance with more than one test, I am on balance willing to accept Quinnipiac’s proposal as meeting the “proportionate” requirement at this time.

I would emphasize, however, that “tiering” is a core component of the Decree, and it must be done correctly. The potential benefits of changing four rather than two teams to Tier 1 at one time (including field hockey) can be offset by the increased management, budget and accountability demands that are likely in every area of athletics administration: it will require consistent, detailed and conscious effort at every level to assure appropriate support for all the Tier 1 teams.

I will revisit this issue if changes in enrollment percentages or team sizes significantly change the comparisons quoted above. or if I identify problems in terms of resources for tier 1 Teams or that imply “de facto” Tier 1 status for non-Tier 1 teams (below).

2. Tier 1 support, resources and facilities

6The only guidance that I can infer from the Decree is that, had Quinnipiac moved only field hockey and any one other women’s team to Tier 1 status, and no other teams, it would have complied with the Decree without reference to the number of athletes on those two teams or to the resulting “athlete” percentages.

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a. Generally
The Decree does not identify what Tier 1 status might mean other than through the references to coaches, athletic financial aid and permanent facilities quoted above and in Section C, and I believe that Quinnipiac has complied with these specific requirements.

Quinnipiac had not otherwise defined Tier 1 or “sport of emphasis” status in any formal way before the Decree was signed. As a practical matter, however, Tier 1 status clearly has involved and necessarily will involve many other resources for women’s and men’s basketball and ice hockey, both tangible and simply in terms of overall expectations7.

Since the beginning of our work under the Decree, therefore, I have asked Quinnipiac to develop additional “Tier 1” criteria, and I believe the “areas of differentiation” quoted above are an appropriate beginning framework. At the same time, all teams need and receive many other kinds of relevant support. Quinnipiac has made initial assessments of how all these resources are allocated to Tier 1 sports, as part of its overall analyses of these areas (Section F below), and I have preliminary comments about those assessments in subsection c of this Section.
Because Quinnipiac is changing four sports to Tier 1 status at the same time that Tier 1 status actually is being defined for the first time -- and when many resource areas also are being evaluated in detail for the first time, a process that is not yet finished – I will be better able to make detailed findings about Quinnipiac’s framework, and the allocation of resources under it, in the June Report. I have, however, provided at least a preliminary standard for this area in my work with Quinnipiac thus far:

7 Four of Quinnipiac’s sports are based in the TD Bank Arena on the York Hill Campus (men’s and women’s basketball and ice hockey, which are the “carryover” Tier 1 sports); all others are based on the Mt. Carmel Campus (including field hockey and any other sports that might be designated as Tier 1). Independently of past emphasis, these sports have different circumstances in many ways, some that relate to location and others that do not.

York Hill is a relatively new and sophisticate facility that provides practice and competition venues and support activities (e.g., training, strength and conditioning) in one place; as indoor sports, the York Hill teams do not confront weather issues in having practice and are generally among the most popular spectator sports. The Mt. Carmel Center is a more limited facility in many respects; virtually all the teams based in that facility compete outdoors, so that weather is a factor in their activities and their venues are removed from their locker and other facilities; and many of those sports traditionally have been less popular with spectators.

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*

While equitable Tier 1 support does not necessarily mean identical

policies or resources across all activities for every Tier 1 team, Quinnipiac should be

able to demonstrate that the support for and treatment of all Tier 1 teams is appropriate

in view of all relevant kinds of resources.

*

While various non-Tier 1 teams may receive support in some areas that is

similar to Tier 1 support, no non-Tier 1 team should be supported in the aggregate in a

way that effectively confers “de facto” Tier 1 status on that sport.

b.

Facilities

As noted earlier, the Decree is silent as to significant facility changes for new Tier 1 sports other than completing the specified new facilities by June 30, 2018. At the same time, as Quinnipiac and I have discussed since last fall, every effort should be made to provide “Tier 1” appropriate facility changes for the “new” Tier 1 student-athletes who will compete before those facilities open.

For example, as noted in footnote 7 above, TD Bank Arena provides significant resources for the four (indoor) Tier 1 sports located there, including sharing their venue with only one other team, not having practices vulnerable to bad weather, and having high-quality training, strength and conditioning, laundry and team-dedicated locker-room resources in the same facility in which they practice and compete. These conditions often do not obtain for teams on the Mt. Carmel campus, including specifically all the new (outdoor) Tier 1 teams8.

I thus have asked Quinnipiac to consider a number of issues in this regard that will be part of the “facilities” analysis for the June Report (Section C above), including especially:

*

The condition and maintenance of the current practice/playing fields for

field hockey, lacrosse and soccer, which Quinnipiac will reviewed after the spring

seasons are over, in consultation with the coaches, and will repair as necessary; and,

*

The fact that both soccer teams and both lacrosse teams share a single

practice and competition facility during their “opposite” regular and non-traditional

8 Based on our initial discussions last summer of the field hockey, lacrosse/soccer and rugby facility plans, Quinnipiac provided for “team rooms” in the plans for those facilities that could serve as interim locker rooms until the Mt. Carmel Center is renovated; the current facility schedule will not provide those changes until fall 2016.

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seasons, and that women’s soccer currently shares a locker-room, for which Quinnipiac indicates it has not at present been able to identify potential interim solutions.

I do want to note that by moving a non-athletics institutional function from the Mt. Carmel Center, Quinnipiac will be able to provide improved office space for the coaching staffs of the new Tier 1 teams.

c. Selected “support” areas
These comments illustrate the kinds of issues that are being pursued in the continuing review of Tier 1 resources this spring, based on the initial analyses that Quinnipiac completed in March that are discussed in Section F (the following comments refer specifically to potential Tier 1 issues):

*

Preliminary analysis of per capita recruiting budgets shows clear

differences between Tier 1 and non-Tier 1 sports that seem gender neutral. Within Tier

1, it shows differences between men’s and women’s basketball, men’s and women’s ice

hockey, and those four sports and the four new Tier 1 sports, and presents preliminary

gender-neutral explanations. All these figures will be reviewed in detail, in the context

of each sport’s recruiting environment and needs9.

*

The proposals for expanded training services and expanded strength and

conditioning resources provide adequate minimum services for all sports and have

clearly different approaches to Tier 1 and non-Tier 1 sports; specific team assignments

will be reviewed in both areas.

*

The proposal for expanded sports information staffing also differentiates

between Tier 1 and non-Tier 1 sports; as Quinnipiac notes, specific promotion plans will

be developed this spring for the new Tier 1 sports. Review of the expanded staffing

assignments and promotional plans will focus on effective consideration of the specific

needs and opportunities of each sport.

*

An important category that Quinnipiac does not list among its

“differentiating” factors, but for which it will develop a policy and evaluate current team

resources this spring, is support for non-league scheduling, both though travel

expenses and through willingness to fund “guarantee” home contests.

9 For example, the head coaches of women’s and men’s basketball and ice hockey have had car allowances in view of their recruiting travel; Quinnipiac will need to consider whether such allowances should be provided to any other Tier 1 coaches.

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E. Benefits and Policies Specified in the Decree

1. Coaches’ salaries

V‐c‐1‐f.

For the 2013‐2014 academic year, increase the salaries of the coaches of

the women’s teams to no less than the median salaries in their sports in the

Northeast Conference; and

V‐c‐1‐g.

Quinnipiac shall request from its new athletic conference, the Metro

Atlantic Athletic Conference (“MAAC”), the data necessary to determine, on a

current‐year basis, the median salaries of the coaches of women’s teams in the

MAAC, accounting for the proportion of time devoted to coaching duties. If the

MAAC provides the necessary data, then by the 2014‐2015 academic year, Quinnipiac

shall increase the salaries for the coaches of its women’s teams if necessary to ensure

that their salaries are no less than the median salaries of the coaches of women’s

teams in the MAAC in the same sports. No salaries of coaches of Quinnipiac’s

women’s team shall be decreased based upon this data.

Quinnipiac has complied with this provision, beginning with a salary review for all head and full-time assistant coaches that increased salaries from 2011-12 to 2012-13 for 17 women’s team coaches (a total of $124,332) and 5 men’s team coaches (a total of $21,651). Quinnipiac has requested the 2013-14 MAAC data, and expects to receive it this month so that it can be used in setting 2014-15 salaries. Quinnipiac also is revising its overall personnel system in ways that should support gender equity through a clearer approach to hiring, evaluation and compensation for all personnel. Both the new salaries and the application of these policies will be part of Quinnipiac’s May 16 report, so that I can review them for the June 2014 Referee’s Report.

The “NEC” comparisons show that for all head coaches of women’s teams, the 2013-14 mean salary is $81,853, which is 142% of the 2012-13 NEC mean of $57,754 and 151% of the NEC median of $54,160. Salaries ranged from 101% to 205% of the NEC means and from 111% to 221% of the NEC medians. For all full-time assistant coaches of women’s teams, the average figure of $57,081 is 128% of the NEC mean of $44,613 and 133% of the NEC median of $42,974. Salaries ranged from 100% to 182% of the NEC means and from 107% to 195% of the NEC medians.

2. Athletic scholarships
III-A. For all women’s sports for which Quinnipiac currently authorizes fewer than 50% of the maximum number of athletic scholarships allowed by NCAA rules, Quinnipiac will increase the authority of the head coach to award at least

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50% of the maximum number of athletic scholarships allowed by NCAA rules, beginning in the 2013-2014 academic year. The minimum number of athletic scholarships per team required by this Section III.A and by Sections III.B and V.B.1.a below are listed on Schedule A attached hereto.

III-B. For all women’s sports for which Quinnipiac currently authorizes the head coach to award more than 50% of the maximum number of athletic scholarships allowed by NCAA rules, Quinnipiac will not decrease the coach’s authority.

III-C. Beginning with the 2013-2014 academic year, Quinnipiac will authorize the maximum number of athletic scholarships allowed by the NCAA for all of its women’s Tier 1 sports.

Quinnipiac authorized all coaches to award aid the required (III-A) aid beginning with the 2013-14 academic year, when the Decree was signed in June 2013; has authorized the required (III-C) aid beginning with award for 2014-15; and has neither decreased nor has plans to decrease coaches’ authority to award aid (III-B). I will review the award of aid for 2014-15 when the award cycle is completed, later this spring.

In 2013-14, a small portion of the additional aid provided by the Decree was not actually awarded for fall term on three teams, because the recruiting/admissions cycle for 210314 freshmen athletes already had ended when that aid became available in June and the coach preferred not to award any “new” or remaining aid to non-seniors, so that the aid would be available after 2013-14 for award to an incoming recruit in 2014-1510.

It is not uncommon for coaches to retain some FTE aid in a particular year, in order to have it available in recruiting for the next year, rather than award that aid to athletes who will return the next year and may expect to continue receiving that aid. In these instances, however, the decision not to award aid was made without considering the Decree’s focus on financial aid both to help develop specific women’s teams and to assist women athletes as individuals.

I believe this omission was inadvertent: that is, in taking one of its first actions after the Decree was signed, Quinnipiac simply did not recognize the need for different oversight of coaches’ decisions about financial aid. Nonetheless, I believe that all authorized aid should have been awarded for 2013-14, and that awards could have been made in ways that left the aid unencumbered for 2014-15. Quinnipiac agreed with this result and has reallocated the amounts in question to 2013-14 squad members11.

10 The amounts equaled .63, .58 and .87 FTE (Full Time Equivalent) grants-in-aid. 11 Quinnipiac also reallocated awards in a fourth sport, before the spring semester

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I do not expect this situation to recur, for a number of reasons:

*

All coaches knew their aid levels and expectations for 2014-15, whether

for athletes whom they are recruiting in 2013-14 and who will be freshmen in 2014-15,

or for current athletes who will return in 2014-15, at the start of the 2013-14 recruiting

cycle.

*

Quinnipiac understood, as the year began, the need to work with coaches

so that they would recruit full “pools” of potential aid recipients, and the expectations for

full award of all authorized aid, and for review with me of recruiting results and aid

awards for 2014-15, before the end of the 2013-14 school year.

*

Quinnipiac also understood my expectation for an internal process to work

with the coach whenever an athlete to whom aid has been committed withdraws, or

does not enroll as expected, to assure that the aid that thus becomes available is

reallocated for or during the year absent a compelling, gender-neutral and approved

programmatic reason for not doing so.

*

Quinnipiac will develop, for my approval, clear approaches both to

routinely reporting such “reallocation” situations, and more generally to regularly

providing NCAA squad lists that record and explain any such actions.

III‐E. Quinnipiac will develop and implement a policy requiring gender‐neutral allocation of summer, fifth‐year, and other extra athletic financial aid.

Although Quinnipiac has had gender-neutral policies in these areas, they were not presented entirely consistently in the athletic staff and student-athlete handbooks. The policies have been revised to state clearly, in both sources, that all student-athletes in all Tier 1 sports are eligible for such aid, and that these are the only eligible athletes. Eligibility begins the summer following a sport’s first Tier 1 year: field hockey athletes are eligible beginning summer 2014 and in 2014-15, women’s soccer and women’s/men’s lacrosse athletes will be eligible for summer 2015 and in 2015-16.

Eligibility is based on specific academic need, which is to be confirmed by the coach. All requests for summer 2013 and 2013-14 aid were granted and I did not see any gender-equity issues in the patterns of team requests or awards, nor were any suggested in my team interviews. Both summer and degree-completion/fifth-year aid are separate from the aid budgeted and awarded as regular grants-in-aid.

began, on the coach’s initiative, and in three other sports when aid became available after the beginning of spring semester.

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I will confirm this spring that field hockey athletes clearly understand their eligibility for such aid beginning this summer, that Tier 1 coaches understand that appropriate use of such aid should be encouraged, and that there is a review process for any instance in which a coach believes that a request should not be granted. I also will review the actual requests and awards for summer 2014 and for 2014-15, once the aid process is complete later this spring.
3. Other benefits specified in the Decree
V‐C‐1. By no later than the beginning of the 2013‐2014 academic year, Quinnipiac will take (or has already taken) the following steps to improve the benefits provided to female athletes:
a. Allow all sports to play in the maximum number of competitions in the championship and non‐championship seasons permitted by NCAA rules and provide the funding that allows them to do so;
Quinnipiac is in compliance with this provision, and my coach interviews in the fall did not indicate concerns about either travel or non-league scheduling. In 2012-13 Quinnipiac added $38,000 thousand to travel budgets for traditional season travel and $10,200 for non-traditional season travel to comply with this requirement. This area will be reviewed this spring and the Gender Equity Committee will assure that policies are developed for Tier 1 and non-Tier 1 sports.
Early-season scheduling in softball was noted specifically as an issue in both parties’ expert reports during the litigation. The 2014 softball schedule included four long weekends in Florida this February and early March, with 15 total playing dates and travel by air. Both the former and current softball coach confirmed in my interviews that there was adequate support for this travel.
b. Allow all sports to begin practice at the earliest date permitted by NCAA rules;
Quinnipiac states that it is in compliance with this provision and my coach interviews and the fall-sport schedules supported this statement.
c. Provide athletic training coverage to all sports during the traditional and non‐traditional seasons;
This area is addressed in Section F below.

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e. Hire an additional full‐time employee in academic support for varsity athletes;
This position was filled appropriately in October 2012, but the new staff member accepted the position of full-time assistant coach of the rugby team in January 2014. The position was filled in January by a qualified new staff member, with a clear job description (academic support generally is discussed in Section F below).
F. Other benefits generally
V‐C‐3. In addition to the money to be expended pursuant to Section V.C.1, and in addition to any other monetary commitment(s) made under this Consent Decree, Quinnipiac will spend up to $175,000 per year for the term of the Consent Decree for the purpose of ensuring equitable treatment and benefits for female athletes in the following areas. . . . . Expenditures pursuant to this paragraph shall be made by Quinnipiac based upon the recommendations of the Referee in accordance with Section V.D.7
V‐D‐8. The Referee’s recommendations made pursuant to subsections V.D.3 and V.D.7 above shall be entitled to substantial deference. Quinnipiac will implement the Referee’s recommendations expeditiously unless it believes that they are unreasonable, impractical, or exceed Quinnipiac’s obligations under the law or this Consent Decree.
The need to develop clear policies, evaluate current practices and/or establish projected “zero-based” budgets before being able to make initial “gender equity” assessments has been especially evident in the “resource” areas addressed in this Section. Quinnipiac has made a good beginning in these areas, developing significant empirical studies and proposals, and has been responsive to my questions and recommendations, providing information throughout the year including, as requested, comprehensive updates to me and to the plaintiffs on March 31 and April 7.
Given the breadth and the detail of what has been needed in these areas, however, I have anticipated that review of final analyses or proposals will be part of the June Report. I will work with Quinnipiac throughout the spring, and Quinnipiac will report to me and to the plaintiffs about all the topics in this Section on May 16.
I believe the work Quinnipiac has done thus far provides a good basis for having effective approaches and the right results in 2014-15, which has been my primary objective throughout. This Section summarizes Quinnipiac’s efforts in each area to

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date, as well as my conclusions at this point (issues specifically relevant to Tier 1 teams were discussed in Section D-2 above).

a. Equipment/supplies/uniforms –

Quinnipiac is developing department-wide policies, budget approaches and ordering and replacement cycles, based on an extensive initial analysis and coaches survey that includes intended use (e.g., game, practice or travel), whether the item is considered essential or discretionary, quality, frequency of replacement and per-capita cost. This work will be completed and reviewed this spring as the basis for 2014-15 operations and expenditures.

b. Scheduling of games and practice times –

Team and coach interviews in the fall raised questions, for teams based in the Mt. Carmel facility, about issues unrelated to gender equity. These focused not on game and practice scheduling as such, but on the need to accommodate this scheduling to what were viewed (for men as well as women) as limitations in scheduling for training, strength and conditioning and academic support services. As noted variously in this document, Quinnipiac is making changes in each of these areas.

c. Transportation/travel/per diem –

The 2013-14 schedules did not indicate any transportation or travel questions, with most travel by bus and the majority of air travel being done by women’s teams (including significant trips for Rugby and Acrobatics & Tumbling given the location of opponents in these sports). Quinnipiac has a per-diem of $30, with coaches having some flexibility in using meal money as they believe is most appropriate, and a stated expectation of “one-athlete/one-bed”.

Quinnipiac’s extensive analysis of how coaches use meal money indicated no genderbased patterns, but did suggest that athletes may not understand coaches’ discretion in this regard. Quinnipiac is developing more detailed policies in this regard, including references to various NCAA limitations, which will be placed in both the coach/staff and student-athlete handbooks.

d. Access to coaching and tutoring –
My student-athlete and coach interviews did not indicate gender-based concerns with access to or help from the Director of Academic Support; Quinnipiac’s extensive review in this area showed that athletic and institutional academic services are used in gender-

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neutral ways reflecting student-athletes’ individual academic objectives12.

The second staff member in this area (above) will be helpful in responding to individual students, especially in scheduling specific services. Quinnipiac also will review expanding space, and thus scheduling opportunities, for academic services that are provided or required through athletics, as opposed to the overall institutional support services that are available to all students, both in 2014-15 and in long-term planning for the Mt. Carmel Center.

My team interviews did make clear the view of many athletes, again without regard to gender, that priority in course registration would help avoid conflicts between academic obligations and practice, travel for away contests and strength and conditioning hours (a view that, in my experience, is common at most institutions). Independently of its efforts under the Decree, Quinnipiac is reviewing this spring’s registrations for 2014-15 courses in order to decide whether to pursue such a change.

e. Assignment and compensation of coaches –

I understand the Decree’s obligations in this respect to encompass the salary requirements addressed in Section E-1 and the staffing requirements for Tier 1 teams addressed in Section D-2, with which I believe Quinnipiac is complying and which I will continue to review.

f. Medical/training services –

Section V-C-1(c) of the Decree requires Quinnipiac to “provide athletic training coverage to all sports during the traditional and non-traditional seasons” (Section E-3 above). This fall the Director of Training, with whom I have spoken, did an overall review of possible needs in this area, which Quinnipiac then revised to include both gender equity and tiering considerations. Quinnipiac has committed to hiring two new training staff members for 2014-15 at a cost of $195,000 (compensation plus benefits); to provide Tier 1 teams with services from a full-time trainer for all practices and home games, and all away contests during the traditional season; and to provide non-Tier 1 teams with coverage using certified graduate assistants and full-time trainers as available.

This is a comprehensive plan that appears to provide adequate coverage for all teams, consistent with the Decree, and also to differentiate appropriately between Tier 1 and non-Tier 1 teams. Review with Quinnipiac this spring will focus on individual team

12 It is important to note that various academic services are available to student-athletes, as to students generally, at all levels and for a variety of reasons, and are not provided for or used by only student-athletes who may be encountering problems.

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assignments and coverage for away contests.

g. Housing/dining –
Quinnipiac indicates that all athletes have the same meal plans, except that the two basketball teams have additional meal plan funds which are the maximum allowed under the current dining contract (team interviews indicated some uncertainty about which teams have these additional funds, and I have recommended that Quinnipiac clarify this topic for its athletes). Coach and team interviews did not raise concerns either as to regular housing or housing during term breaks.

h. Publicity and sports information –
This area has two components: traditional sports information/communication assignments for teams, through the Director of Sports Information within athletics, and promotional and marketing activities, which currently focus on events at the TD Bank Center and on the teams that play there, and which are administered primarily though the institutional Office of Public Affairs. This fall the Provost commissioned and received an overall sports information review from the Sports Information Director, with whom I also have talked, which also was then revised to specifically address both gender equity and tiering considerations.
Quinnipiac has committed to add a third full-time sports information staff member for 2014-15, recognizing that a fourth full-time staff member would be appropriate if funding were available. With the expectation of the third staff member, Quinnipiac also has produced team assignments that differentiate between Tier 1 and non-Tier 1 teams, using both full-time staff and graduate assistants, and this spring will produce specific sports information and promotion plans for the four new Tier 1 sports.
This work provides a clear starting point for complete and effective services in these areas in a “tier-appropriate” way. My review of the plans this spring will focus on individual team assignments and on plans for individual women’s sports.

I. Recruiting –
Although my coach interviews in the fall did not indicate concerns about recruiting budgeting or support, there has not been an overall athletics policy about recruiting expectations or resources. Quinnipiac has done an extensive review of coaches’ individual practices and approaches, and will combine this work with the anticipated 2014-15 budget data and “tiering” decisions to develop an overall policy and budget approach and to assure appropriate Tier 1 resources. Quinnipiac already has

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determined that this work will consider current resources for “subsidized visits” in teams that do not have NCAA limits on the annual number of such visits, to assure genderequitable resources in this area.

j.

Support services –

Strength and conditioning services are an increasingly essential intercollegiate athletics resource, not only for competitive improvement but as a basis for overall student-athlete health, that is not explicitly identified in the Title IX regulation list on which this portion of the Decree is based. I believe they are central to the best student-athlete experience in any sport, as well as to providing Tier 1 support for specific teams, and they were mentioned consistently in my team and coach interviews in the fall.

Quinnipiac currently provides these services through a head coach who works with the four teams at TD Bank Arena, and who supervises part-time coaches who work with the remaining teams in the Mt. Carmel Center. Quinnipiac has recognized that space limits in the Mt. Carmel Center have limited the hours when these services can be available to “non-Hill” athletes, both male and female, and that “tiering” changes also would require increased services.

This year Quinnipiac asked the head coach to propose changes in staffing, and at my suggestion investigated making more space available in the Mt. Carmel Center in order to increase the times when staff could work with student-athletes. Quinnipiac has committed to hire one additional full-time and one additional part-time coach, at a total cost of $112,500; to increase the operating budget in this area by $12,500; and to provide a new 900 square-foot area in the Mt. Carmel center that will be dedicated to these services.

This proposal will significantly benefit athletes on all teams that are housed in the Mt. Carmel Center and also will permit appropriate gender-neutral benefits for both Tier 1 and non-Tier 1 athletes, and I have endorsed it as a “spending recommendation” in Section H below. I will review the proposed team assignments and scheduling with Quinnipiac this spring.

G. Specific Sports
1. Field hockey
V‐A‐4. Quinnipiac will build a superior practice and competition facility dedicated to women’s field hockey that meets NCAA Division I standards for the sport.

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V‐B. The parties recognize that Quinnipiac currently treats men’s and women’s teams in basketball and ice hockey as tier one sports (also denominated as “sports of emphasis”). Quinnipiac will take measures to elevate two (2) additional women’s teams to tier one as follows: [1.] By the beginning of 2013‐2014 academic year, Quinnipiac will provide the head coach of the field hockey team with the authority to award the maximum number of athletic scholarships allowed by NCAA rules. By the beginning of the 2014‐2015 academic year, Quinnipiac will provide the field hockey team with the maximum number of coaches allowed by the NCAA. Quinnipiac shall also build a superior practice and competition facility dedicated to field hockey as previously set forth herein.
Quinnipiac elevated Field Hockey to Tier 1 status for 2013-14 and has provided the required scholarship and coaching resources, and the head coach indicated in my fall 2013 interview that she was receiving appropriate support. My overall review of support for Tier 1 teams will include field hockey, including another interview with the coach13.
2. Women’s golf
V‐C‐1‐d. [By no later than the beginning of the 2013‐2014 academic year] Quinnipiac will create and fill a full‐time position for a head women’s golf coach;
The head women’s golf coach was made a full-time position in 2011-12; the incumbent is in his third year as head coach.
3. Rugby
II‐C‐1. Quinnipiac will upgrade the quality and condition of the rugby pitch to ensure that it is safe for practices and competitions. Quinnipiac will make good faith efforts to upgrade the quality of the rugby pitch so that it is level, does not contain holes, dangerous rocks, or other hazards, and is maintained to a quality comparable to the varsity soccer field, by the start of the 2013‐2014 academic year.
V‐A‐2. Quinnipiac will increase the dimensions of the women’s varsity rugby pitch to the maximum dimensions allowed by the International Rugby Board.
13 The field hockey team was the 2013 MAAC regular-season co-champion and MAAC tournament champion, advancing to the NCAA tournament for the first time since 2002, and Quinnipiac players were selected as the MAAC’s Co-Player of the Year and CoGoalie of the Year.

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II‐C‐2. Quinnipiac’s varsity women’s rugby team will have exclusive use of the rugby pitch.
II‐C‐3. Quinnipiac will authorize the head coach of the women’s rugby team to award athletic financial assistance equaling at least nine (9) full scholarships by the 2013‐2014 academic year.
II‐C‐4. Beginning in the 2013‐2014 academic year, Quinnipiac will provide one full‐ time head coach and one full‐time assistant rugby coach for its women’s rugby team. Neither of the women’s rugby coaches will have responsibility for any men’s or women’s club rugby team or program or for any other sport or activity.
II‐C‐5. Beginning in the 2013‐2014 academic year, Quinnipiac will compete in at least two‐thirds (2/3) of its regular season games against NCAA varsity rugby teams (e.g., Eastern Illinois, Harvard, West Chester, Norwich) or Division I club rugby teams (e.g., Brown, Penn State, Princeton, Army, Navy). For purposes of this provision, “Division I club” is intended to mean the highest level of intercollegiate club competition available. In 2014‐2015 and thereafter, Quinnipiac will schedule all of its regular season matches against NCAA varsity and/or Division I club rugby teams except that Quinnipiac may schedule one regular season game each season with Yale University and one regular season game each season with the University of Connecticut, regardless of the competitive level of their women’s rugby teams, in order to build an in‐state rivalry in the sport.
II‐C‐6. Women’s varsity rugby athletes will have access to water and nearby restrooms during all practices and competitions held at Quinnipiac.
Quinnipiac has complied with these requirements; my conversations with the head coach in the fall indicated that she was satisfied with the support she was receiving, and the rugby pitch was improved shortly before the 2013 season. Because the new pitch will not be available until fall 2016, Quinnipiac understands the need for, and has committed to, having the current pitch in appropriate condition in the interim, with input from the coaching staff and beginning work as early as possible each spring/summer season. I will walk the pitch with the coach this spring to obtain her recommendations and will monitor Quinnipiac’s plan and actions in this regard.
As part of making clear its support for the rugby team’s development, and in response to concerns identified by the head coach in the early fall, I asked Quinnipiac to develop a clear approach to how the Rugby team will be identified and promoted, and to address

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any unauthorized use of Quinnipiac’s names and marks related to the New Blue rugby team, whose members are primarily Quinnipiac undergraduates. Quinnipiac has responded as followed:

The official name per the NCAA is “Women’s Rugby” and the University will use this name. No other group has authorization to use “rugby” in any way. The University is not in any [way] affiliated with any other rugby related activity. Firms that are Quinnipiac licensees have been notified by the Department of Athletics that they may not use the Quinnipiac name or logos for any rugby activity other than our official Women’s Rugby team14.

The University monitors and appropriately responds in situations that represent unauthorized use or misuse of logos and we have instructed LRG [Quinnipiac’s licensing agent] to pay particular attention to uses that might involve Rugby [see also Section B-2 above].
I believe these are appropriate responses and I will continue to monitor this area.

II‐C‐7. Quinnipiac will make a good faith effort to promote women’s rugby as a varsity sport and to encourage other NCAA Division I schools to sponsor women’s rugby as a varsity sport with the goal of establishing a Division I varsity women’s rugby athletic conference and a NCAA varsity women’s rugby national championship.

I have discussed this area with Athletic Director Jack McDonald and with Jeffrey Ward, former athletic director at Bowdoin College who is working with Quinnipiac in this area (below) and who drafted Quinnipiac’s report to me. Quinnipiac’s efforts include, in summary form:

*

Creating the American Collegiate Rugby Association (ACRA) in spring

2013 to promote collegiate varsity rugby (head coach Rebecca Carlson is a

member of ACRA’s executive council)15;

*

Regularly convening athletic directors of all institutions that currently

sponsor varsity rugby, in connection with ACRA and engaging Mr. Ward as

14 The New Blue team’s Facebook and Twitter sites no longer identify it as being affiliated with Quinnipiac.

15 The rugby team’s fall 2013 record was 10-2; it reached the quarterfinals of ACRA’s inaugural post-season tournament.

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Administrator for ACRA and as staff person for the athletic directors’ group;

*

Beginning website and personal contact with college club rugby teams

and their institutions’ athletic directors, and providing information about moving to

varsity status;

*

Continuing to work with the NCAA Committee on Women’s Athletics with

regard to NCAA “emerging sport” status; and

*

Seeking through all these means to have 20 schools provide varsity status

to rugby by fall 2015, with more thereafter, and to obtain NCAA “National

Collegiate” (all Divisions) and Division I championship status as soon as the

necessary minimum team sponsorships are attained.

I believe these efforts are fulfilling Quinnipiac’s obligations and I will continue to review progress in this area, including contact with both Jack McDonald and Mr. Ward.

4. Women’s cross-country and track and field

a.

Overview

I understand the goal of all the Decree’s track and field provisions, taken together, to be expanding Quinnipiac’s successful women’s cross-country team into a successful overall cross-country and indoor and outdoor track and field program, and I believe substantial progress has been made this year. Achieving this result fully will require coaching and administrative commitment and guidance in many areas, including recruiting, the award of financial aid, scheduling, and overall emphasis.

As I have requested, Quinnipiac will provide in its May 16 report a clear plan for continuing to develop track and field, reflecting all three seasons of competition this year and including appropriate administrative involvement with the coaching staff in scheduling, recruiting (including coaches’ travel and “subsidized visit” budgets and geographic scope), the award of financial aid and all other program areas16. That report also should show that all 10 FTE grants will be awarded in 2014-15 and that their distribution will comply with the expected “4/6” distribution (above) and will support development of a “full” track and field team across all events17. I expect to involve

16 Cross-country (women’s and men’s) and women’s indoor and outdoor track and field are the only non-Tier 1 sports that will have the NCAA maximum number of full-time coaches.
17 NCAA squad lists for cross-country and track and field are a unique reporting

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plaintiffs in review of this plan.

b.

Financial Aid

II‐B‐1. Beginning with the 2013‐2014 academic year, Quinnipiac will authorize the head coach of the women’s cross country and track & field teams to award athletic financial assistance that equals at least four (4) full scholarships for women’s cross country athletes and six (6) full scholarships for women’s indoor/outdoor track & field athletes who focus on non-distance events.

Quinnipiac clearly authorized the award of appropriate aid for 2013-14 when the Decree was signed in June 2013, and all the aid was awarded. However the actual 2013-14 aid distribution included 5.0 FTE to non-distance athletes and 5.42 FTE to crosscountry/distance athletes, which differed from the Decree.

As in the earlier financial aid discussion (Section E-2), in this instance the coach chose to make 2013-14 awards to senior distance athletes when the Decree’s increased aid became available in June (2.42 FTE), so the aid would be available in recruiting fall 2014 freshmen, and there was no administrative overview of this decision (there were no senior non-distance athletes on the track squads). It would have been preferable to award aid to non-senior middle distance or sprinter/jumper athletes as the Decree intended, even with the understanding that the aid would not be renewed in 2014-15 so that it would be available to incoming freshmen.

I note this issue only because it was inconsistent with the Decree, however unintentionally, and not as a “violation”, and Quinnipiac has made clear that it will not recur.

c. Outdoor Track Access II‐B‐2. Quinnipiac will arrange for its outdoor track & field athletes to have access to

problem: the NCAA “counts” each sport independently, with an aggregate number of FTE grants allocated among them, but individual athletes participate in two and sometimes all three of the sports. In order to have reliable squad lists at all times, next year I will ask Quinnipiac to generate lists for all three sports, at the start of each season and then at the end of the year, and to report if athletes are moved between lists or their awards change. Starting this spring Quinnipiac also will generate a preliminary threesport list in the spring, for the following year, that includes freshman aid commitments and returning-student aid allocations.

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the outdoor track facility at Cheshire High School (or a comparable outdoor track facility) throughout the academic year. The outdoor track & field athletes will practice at the facility on a regularly scheduled basis that is sufficient, in the judgment of the head coach, to allow the athletes to prepare adequately for competition. Quinnipiac will provide transportation for athletes on the track & field team to and from practices conducted at the outdoor track facility. Athletes will have access to onsite water and restrooms during practices.
Quinnipiac has complied with this provision and understands that increases in the number of athletes may require additional transportation support.

d. “Hosted” outdoor meet

II-B-3. Quinnipiac will make its best efforts to host one outdoor track & field meet annually at Yale University (or a comparable facility) beginning in the 2013-2014 academic year. This provision does not prevent Quinnipiac from voluntarily hosting more than one outdoor track & field meet annually.
Quinnipiac indicated in October 2013 a desire to replace the “hosted” meet with an early -season trip to a significant meet in the mid-south. In January 2014 it submitted a specific proposal to use the weekend (April 4-5, 2014) and financial resources that would have supported the hosted meet to compete in the Colonial Relays in Williamsburg, Virginia, sponsored by the College of William & Mary.

The proposal’s position was, essentially, that a “home” meet that is not actually on campus would be difficult to host, and that Quinnipiac did not believe it would be able to secure participation by attractive competitor schools in the northeast in the early spring, and conversely, that travel to a high-quality meet in a warmer location, and use of coaching time to work with athletes rather than to administer the “home” meet, would be better for overall program development.

After considering comments from the plaintiffs, I approved this proposal, with the understanding that the “hosted meet” requirement for next year would be part of this spring’s review and plan for outdoor track and field generally18.

18 Quinnipiac finished 28 out of 38 teams at the Colonial Relays, the best finish of the three competing MAAC teams, with 22 athletes competing; see http://www.tribeathletics.com/ViewContent.dbml?SPID=83597&DB_OEM_ID=25100&C ONTENT_ID=906272 and http://www.quinnipiacbobcats.com/sports/wtrack-out/201314/releases/201404055u3ru3, both downloaded April 12, 2014.

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e.

Assistant Coaches

II‐B‐4. By the beginning of the 2013‐2014 academic year, Quinnipiac will upgrade one of its part‐time assistant track & field coaching positions to full‐time. During the term of the Consent Decree Quinnipiac will provide its women’s cross country and track &field teams with the maximum number of paid coaches permitted by NCAA rules.
Quinnipiac has complied with this provision.

f. “Track and Field” development generally

II-B-5. Quinnipiac will make good faith efforts to expand the number of events in which the women’s track & field athletes compete, including recruiting athletes who focus on non-distance events (e.g., sprints, hurdles, and middle-distance races) and field events.

This area will be a focus of the May report and the 2014-15 plan; the materials that Quinnipiac has provided thus far indicate tangible progress:

*

In the 2013-14 sophomore and freshman classes, 12 athletes are

categorized as sprinters and jumpers, 5 as middle-distance runners and 9 as distance

runners; the comparable figures for seniors and graduate students are 1, 8 and 8

respectively (only 1 student-athlete is a junior).

*

Quinnipiac has indicated that “ . . . all of the meets (indoor and outdoor) on

the [2013-14] schedule offer sprints and jumps, middle distance and distance events in

which QU will compete subject to the athletes’ health and performance and competitive

strategy.”

*

Quinnipiac’s report of 2013-14 Indoor participation, by event and athlete,

showed participation by 10 athletes classified internally as “sprinters” (3 of whom also

participated in jumping events), 11 classified as middle-distance runners and 12

classified as distance runners, with broad participation across events in 6 regular-

season competitions and the MAAC championship, and performance-based

participation in 3 post-season events. A similar report for Outdoor participation will be

provided when the season is over.

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*

Indoor season results included an individual MAAC championship in the

400 meter dash and New England championships in the 400 meter dash and the 4 x

400 meter relay.

*

My team interview in fall 2013 revealed concerns about developing

jumpers in the indoor practice facility as it was then configured, which I noted to

Quinnipiac, and Quinnipiac then invested $6,200 for a high jump pit. The May report

will include “consideration of whether there are similar issues for other field events in the

indoor or outdoor practice facilities.”

5. Volley ball
II‐A‐1. Quinnipiac will not eliminate its women’s varsity volleyball team or, during the term of this Consent Decree, announce any plans to eliminate the team. Quinnipiac will support its women’s varsity volleyball team in the same manner that it supports other varsity sports in the same tier.
Quinnipiac has reaffirmed its commitment to the “non-elimination” provision, improved lighting in the Burt Kahn practice and competition facility (a point noted in my team meeting in fall 2013), and changed facilities staff responsibilities to provide appropriate support to the team in court setup. I will continue to review support for the volleyball team and consideration of what other changes might be useful to consider in Burt Kahn, including additional meetings with the coach and a facility inspection.

III‐D. Quinnipiac will provide an additional athletic scholarship to the women’s volleyball team for the 2014‐2015 academic year (so that the team then has 7 full athletic scholarships) and another additional scholarship to the women’s volleyball team for the 2015‐2016 academic year (so that the team then has 8 full athletic scholarships). The number of scholarships authorized for the women’s volleyball team will not be reduced before completion of all the facilities required by this Consent Decree.
Quinnipiac has reaffirmed its commitment to these provisions, and understands that the Athletic Department should work with the coach to assure that his recruiting produces suitable scholarship recipients, and that all authorized aid is awarded in the future; I will review this recruiting and these awards for 2014-15 this spring.

H. Spending Recommendations V‐C‐3. In addition to the money to be expended pursuant to Section V.C.1, and in

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addition to any other monetary commitment(s) made under this Consent Decree, Quinnipiac will spend up to $175,000 per year for the term of the Consent Decree for the purpose of ensuring equitable treatment and benefits for female athletes in the following areas. . . . . Expenditures pursuant to this paragraph shall be made by Quinnipiac based upon the recommendations of the Referee in accordance with Section V.D.7

V‐D‐8. The Referee’s recommendations made pursuant to subsections V.D.3 and V.D.7 above shall be entitled to substantial deference. Quinnipiac will implement the Referee’s recommendations expeditiously unless it believes that they are unreasonable, impractical, or exceed Quinnipiac’s obligations under the law or this Consent Decree.

1. Anal ysis
My goal for these recommendations has been to provide significant direct benefits for as many women athletes as possible and to complement expenditures required by, and/or offset “gaps” or ambiguities in, specific Decree areas (particularly where changes would involve “interim” facilities, as discussed in Section C above).
Since my first campus visit I have believed, and have communicated consistently to both parties, that these goals could best be achieved by seeking to eliminate shared locker-rooms (Section C, fn. 3 above) and/or by increasing the space available for strength and conditioning activities, and thus increasing the time during which such activities can be scheduled (Section F above). As noted already, I believe both these areas are central to the best student-athlete experience in any sport, as well as to providing Tier 1 support for specific teams, and both areas were mentioned consistently in my team and coach interviews in the fall.

I thus asked Quinnipiac, when our work began this summer, to begin considering possible changes in both areas, focused on these areas in my October and January draft Reviews as the likely subject of my final recommendations, and continued discussions with Quinnipiac about these areas throughout the year. As reported in Section F, Quinnipiac has developed a significant proposal for reconstructing and reallocating space in the Mt. Carmel Center for strength and conditioning activities that will benefit all the teams that are based in the Center, on a gender-equitable basis, and that will support additional resources in this area for the new Tier 1 teams. It does not presently have a proposal as to locker-rooms.

I also have considered that my recommendations could not be “final” until well into the 2013-14 year, and that Quinnipiac needed to make specific funding decisions

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throughout this year, particularly while new long-term team budgets were being developed. Quinnipiac discussed those decisions with me and itemized them in January 2014 status report, which was shared with the plaintiffs, with the understanding that I would consider including appropriate specific expenditures in these recommendations.

2. Recommendations
Considering all of these factors, my recommendations for the “supplemental” spending are as follows:

1. For 2013-14, I will count as part of these expenditures $95,000 in new funds that Quinnipiac has spent this year, after discussion with me, including $67,500 for permanent improvements to the softball field and $27,500 for travel or indoor practice rentals for women’s golf, soccer or tennis (with the expectation that Quinnipiac will include the latter expenditures in regular team budgets in future years if it believes they should be continued).
2. I will ask Quinnipiac to spend the remaining $80,000 from the 2013-14 allocation, together with the $175,000 allocation for 2014-15, for facilities and personnel changes that will support improved strength and conditioning access and resources for women athletes and/or will eliminate shared locker-rooms for women’s teams (pending completion of permanent construction), effective at the start of 2014-15 and subject to my approval. The starting point for these expenditures will be the proposal described above in Section F19.
3. Quinnipiac has suggested that the new Gender Equity Committee be involved in finalizing these plans this spring, which I agree will be useful. My expectation is that the June Referee’s Report will contain a specific plan for expending the full $255,000 in 2014-15 and remaining 2013-14 funds in the areas of strength and conditioning and, to the extent feasible, changes in locker-rooms.

19 As Quinnipiac recognizes, when expenditures will benefit both male and female athletes (e.g., the strength and conditioning improvements), there will be “credit” under this section for the portion of the expenditures that will affect women athletes.

 
 Case 3:09-cv-00621-SRU Document 233 Filed 04/03/12 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

................................. X

STEPHANIE BIEDIGER, KAYLA LAWLER, : ERIN OVERDEVEST, KRÿSTEN

CIVIL ACTION NO:

CORINALDESI, and LOGAN RIKER, individually and on behalf of all those

3:09-CV-00621 (SRU)

similarly situated; and ROBIN LAMOTT SPARKS, individually,
Plaintiffs,

SUPPLEMENTAL DECLARATION

against
QUINNIPIAC UNIVERSITY,

Defendant.
X

MARK A. THOMPSON, PhD declares, under penalty of perjury, pursuant to 28 U.S.C. § 1746,

that the following is true and correct:

1. I am submitting this supplemental declaration in support of Quinnipiac's Motion to Lift the Court's Injunction to update the participation numbers, now that each team has had its first date of competition.

Roster Sizes and Undergraduate Enrollment
2. In 2011-12, Quirmipiac has 321 female athletes (65.51%) and 169 male athletes (34.49%). A chart detailing how many male and female athletes participated in varsity athletics in 2011-12 is attached hereto as Exhibit A. The numbers reflected in this chart are the actual numbers of athletes who participated on each team.

3. The undergraduate population in 2011-12 was comprised of 3,735 women (62.37%) and 2,253 men (37.63%).

Case 3:09-cv-00621-SRU Document 233 Filed 04/03/12 Page 2 of 3

4. The numbers reflected in Exhibit A include athletes who participated on a team during the team' s championship season, even if the athlete was not on the team on the first date of competition. These numbers do not include athletes who exhausted their NCAA eligibility or were deemed medically unable to ever play again as of their team's first date of competition, even when these athletes are still receiving athletic scholarships from Quinnipiac. These numbers also exclude two individuals whose names appeared on the first date of competition squad list for the women's golf team but who did not participate on the team.

" ? ÿzÿ&-,....4-- /J • ÿ)F.ÿ. _-ÿ-_
ggsoN -"

q
DATE

2

Case 3:09-cv-00621-SRU Document 233 Filed 04/03/12 Page 3 of 3

EXHIBIT A

2011-12 Athletic Participation

Male Participants ' Female Participants

Acrobatics & Tumbling

36

Baseball

32

Basketball

16

15

Cross Country

13

24

Field Hockey

22

Golf

11

Ice Hockey

28

27

Indoor Track and Field

32

Lacrosse

44

30

Outdoor Track and

29

Field

Rugby

28

Soccer

25

26

Softball Tennis Volleyball Total

11 169 (34.49%) '

16 11 14 321 (65.51%)

 
 11/4/2017

SDSD District Version 1.3
APPEAL,CLOSED,EFILE,REFCNF,WIG
U.S. District Court United States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:09-cv-00621-SRU

Biediger et al v. Quinnipiac Univ Assigned to: Judge Stefan R. Underhill Referred to: Judge William I. Garﬁnkel (Settlement) Cause: No cause code entered

Date Filed: 04/16/2009 Date Terminated: 06/20/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Stephanie Biediger Ind & o/b/o all those similarly situated

represented by Alex V. Hernandez Pullman & Comley - Bpt 850 Main St., PO Box 7006 Bridgeport, CT 06601-7006 203-674-7952 Fax: 203-576-8888 Email: ahernandez@pullcom.com TERMINATED: 03/02/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J. McGuire American Civil Liberties Union - CT 765 Asylum Ave., 1st Floor Hartford, CT 06105 860-523-9146 Ext. 212 Fax: 860-586-8900 Email: dmcguire@acluct.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan B. Orleans Pullman & Comley - Bpt 850 Main St., PO Box 7006 Bridgeport, CT 06601-7006 203-330-2129 Fax: 203-576-8888 Email: JBOrleans@pullcom.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ctd.uscourts.gov/cgi-bin/DktRpt.pl?749518466029375-L_1_0-1

Kristen Galles 10 Rosecrest Ave. Alexandria, VA 22301 703-683-4491 Fax: 703-683-4636 Email: kgalles@comcast.net LEAD ATTORNEY PRO HAC VICE
1/41

11/4/2017

SDSD District Version 1.3
ATTORNEY TO BE NOTICED

Plaintiff
Kayla Lawler Ind & o/b/o all those similarly situated

Sandra J. Staub Center for Public Representation 22 Green St. Northampton, MA 01060 413-586-6024 Fax: 413-586-5711 Email: sstaub@cpr-ma.org TERMINATED: 03/02/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex V. Hernandez (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J. McGuire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan B. Orleans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Galles (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Erin Overdevest Ind & o/b/o all those similarly situated

Sandra J. Staub (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex V. Hernandez (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ctd.uscourts.gov/cgi-bin/DktRpt.pl?749518466029375-L_1_0-1

David J. McGuire (See above for address) LEAD ATTORNEY
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SDSD District Version 1.3LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan B. Orleans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Galles (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Kristen Corinaldesi Ind & o/b/o all those similarly situated

Sandra J. Staub (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex V. Hernandez (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J. McGuire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan B. Orleans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Galles (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sandra J. Staub (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

Lesley Riker

represented by Alex V. Hernandez

o/b/o her minor daughter

(See above for address)

TERMINATED: 03/02/2015

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TERMINATED: 12/09/2009

SDSD District Version 1.3TERMINATED: 03/02/2015
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan B. Orleans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Galles (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
L. R. Ind & o/b/o all those similarly situated TERMINATED: 12/09/2009

Sandra J. Staub (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex V. Hernandez (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan B. Orleans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Galles (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Robin Lamott Sparks Ind

Sandra J. Staub (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex V. Hernandez (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J. McGuire

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Plaintiff Logan Riker Ind & o/b/o all those similarly situated

SDSD District Version 1.3David J. McGuire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan B. Orleans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Galles (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lewis H. Chimes Law Ofﬁce of Lewis Chimes LLC 45 Franklin Street Stamford, CT 06901 203-324-7744 Fax: 203-969-1319 Email: chimeslaw@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra J. Staub (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex V. Hernandez (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. McGuire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan B. Orleans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra J. Staub (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY

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PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Quinnipiac Univ

represented by Andrew E. Rice Proskauer Rose LLP -NY Eleven Times Square New York, NY 10036-8299 212-969-3214 Fax: 212-969-2900 Email: arice@proskauer.com TERMINATED: 10/11/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Edward A. Brill Proskauer Rose LLP -NY Eleven Times Square New York, NY 10036-8299 212-969-3000 Fax: 212-969-2900 Email: ebrill@proskauer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Erick Ignacio Diaz-Vazquez Zayas Law Firm 20 Grand St. Hartford, CT 06106 860-278-0820 Fax: 860-278-0814 Email: ediaz@zayaslaw.com TERMINATED: 03/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Bardavid Trivella & Forte, LLP 1311 Mamaroneck Ave Suite 170 White Plains, NY 10605 914-949-9075 Fax: 914-949-4752 Email: jonathan@tfsllp.com TERMINATED: 04/09/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary A. Gambardella Wiggin & Dana LLP-Stfd

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Amicus United States

SDSD District Version 1.3
Two Stamford Plaza 281 Tresser Boulevard Stamford, CT 06901 203-363-7662 Fax: 203-363-7676 Email: mgambardella@wiggin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca L. Berkebile Proskauer Rose LLP -NY Eleven Times Square New York, NY 10036-8299 212-969-3000 Fax: 212-969-2900 Email: rberkebile@proskauer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra J. Staub (See above for address) TERMINATED: 03/02/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan D. Friedfel Jackson Lewis -P.C. WP, NY 44 South Broadway 14th Floor White Plains, NY 10601 914-872-8027 Fax: 914-946-1216 Email: Susan.friedfel@jacksonlewis.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by John B. Hughes U.S. Attorney's Ofﬁce-NH 157 Church St., 23rd ﬂoor New Haven, CT 06510 203-821-3802 Fax: 203-773-5373 Email: john.hughes@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

04/16/2009

1 VERIFIED COMPLAINT against Quinnipiac Univ ( Filing fee $ 350 receipt number

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B017758), ﬁled by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker.(Torres, K.) (Entered: 04/20/2009)

04/16/2009

2 MOTION for Temporary Restraining Order & Preliminary Injunction (Responses due by 5/7/2009, ) by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order -Temporary Restraining Order, # 3 Text of Proposed Order - Preliminary Injuction)(Torres, K.) (Entered: 04/20/2009)

04/16/2009

3 MOTION for Order to Show Cause by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Attachments: # 1 Text of Proposed Order to Appear and Show Cause)(Torres, K.) (Entered: 04/20/2009)

04/16/2009

4 MOTION for Waiver of Security by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker.Responses due by 5/7/2009 (Torres, K.) (Entered: 04/20/2009)

04/16/2009

5 ELECTRONIC FILING ORDER - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER. Signed by Judge Stefan R. Underhill on 4/16/2009. (Torres, K.) (Entered: 04/20/2009)

04/16/2009

6 Order on Pretrial Deadlines: Motions to Dismiss due on 7/16/2009. Amended Pleadings due by 6/15/2009 Discovery due by 10/16/2009 Dispositive Motions due by 11/15/2009. Signed by Clerk on 4/16/2009. (Torres, K.) (Entered: 04/20/2009)

04/16/2009

7 Sealed Document: Unredacted Complaint by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Torres, K.) (Entered: 04/20/2009)

04/16/2009

8 Sealed Document: Unredacted MOTION for Temporary Restraining Order & Preliminary Injunction by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Attachments: # 1 Memorandum in Support)(Torres, K.) (Entered: 04/20/2009)

04/16/2009

9 Sealed Document: Unredacted MOTION for Order to Show Cause by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Torres, K.) (Entered: 04/20/2009)

04/16/2009

10 Sealed Document: Unredacted MOTION for Waiver of Security by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Torres, K.) (Entered: 04/20/2009)

04/17/2009

16 Minute Entry. Proceedings held before Judge Stefan R. Underhill: Motion Hearing held on 4/17/2009 re 3 MOTION for Order to Show Cause, 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction. Oral ruling issued ﬁnding as moot (withdrawn) 2 Motion for TRO; granting 3 Motion for Order to Show Cause. A hearing re MOTION for Preliminary Injunction shall be held on May 11, 2009 at 9:30 a.m. Pretrial Memorandum shall be due 5/6/09 and a Pretrial Conference shall be held on 5/7/09 at 3:30 p.m., Room 411, 915 Lafayette Blvd, Bridgeport, CT. 30 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 04/21/2009)

04/20/2009

Summons Issued as to Quinnipiac Univ. (Torres, K.) Modiﬁed on 4/22/2009 to edit ﬁle date(Torres, K.). (Entered: 04/20/2009)

04/20/2009

11 NOTICE of Appearance by Mary A. Gambardella on behalf of Quinnipiac Univ (Gambardella, Mary) (Entered: 04/20/2009)

04/20/2009

12 NOTICE of Appearance by Jonathan Bardavid on behalf of Quinnipiac Univ (Bardavid, Jonathan) (Entered: 04/20/2009)

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04/21/2009

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13 Memorandum in Opposition re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction ﬁled by Quinnipiac Univ. (Bardavid, Jonathan) (Entered: 04/21/2009)

04/21/2009

14 AFFIDAVIT re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction Signed By John McDonald ﬁled by Quinnipiac Univ. (Bardavid, Jonathan) (Entered: 04/21/2009)

04/21/2009

15 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 4/23/2009 at 3:00 PM before Judge Stefan R. Underhill. Counsel for plaintiff shall initiate phone call to chambers (203) 579-5714. (Sbalbi, B.) (Entered: 04/21/2009)

04/21/2009

17 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Trial Brief due by 5/6/2009. Preliminary Injunction Hearing set for 5/11/2009 at 9:30 AM in Courtroom One, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill. Pretrial Conference set for 5/7/2009 at 3:30 PM in Chambers Room 411, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill. (Sbalbi, B.) (Entered: 04/21/2009)

04/22/2009

18 CERTIFICATE OF SERVICE by Quinnipiac Univ re 14 Afﬁdavit (Bardavid, Jonathan) (Entered: 04/22/2009)

04/23/2009

19 NOTICE of Appearance by Erick Ignacio Diaz Vazquez on behalf of Quinnipiac Univ (Vazquez, Erick) (Entered: 04/23/2009)

04/23/2009

33 Minute Entry for proceedings held before Judge Stefan R. Underhill: Telephone Status Conference held on 4/23/2009. Total Time: 1 hour(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 05/13/2009)

04/27/2009

20 MOTION for Leave to Appear Pro Hac Vice Attorney Kristen Galles. Filing Fee $25.00. Receipt Number B017790. by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Simpson, T.) (Entered: 04/28/2009)

04/28/2009

21 ORDER granting 20 Motion to Appear Pro Hac Vice Attorney Kristen Galles for L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi and Lesley Riker added. Signed by Clerk on 4/28/09. (Simpson, T.) (Entered: 04/28/2009)

05/01/2009

Minute Entry for proceedings held before Judge Stefan R. Underhill: Telephone Scheduling Conference held on 5/1/2009. 30 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 06/11/2009)

05/04/2009

22 MEMORANDUM of telephone conference re timeliness of plaintiffs' expert disclosure, as required under Rule 26 of the Federal Rules of Civil Procedure. Signed by Judge Stefan R. Underhill on 5/4/09. (Candee, D.) (Entered: 05/05/2009)

05/05/2009

23 MOTION to Dismiss Complaint by Plaintiffs Overdevest and Sparks by Quinnipiac Univ.Responses due by 5/26/2009 (Bardavid, Jonathan) (Entered: 05/05/2009)

05/05/2009

24 Memorandum in Support re 23 MOTION to Dismiss Complaint by Plaintiffs Overdevest and Sparks ﬁled by Quinnipiac Univ. (Bardavid, Jonathan) (Entered: 05/05/2009)

05/05/2009

25 MOTION for Hearing re 23 MOTION to Dismiss Complaint by Plaintiffs Overdevest and Sparks by Quinnipiac Univ. (Attachments: # 1 Memorandum in Support)(S-Candee, D.) (Entered: 05/06/2009)

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05/07/2009

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26 MOTION to Preclude Testimony of Dr. Lopiano by Quinnipiac Univ.Responses due by 5/28/2009 (Bardavid, Jonathan) (Entered: 05/07/2009)

05/07/2009

27 Memorandum in Support re 26 MOTION to Preclude Testimony of Dr. Lopiano ﬁled by Quinnipiac Univ. (Bardavid, Jonathan) (Entered: 05/07/2009)

05/07/2009

28 TRIAL MEMO Joint by Quinnipiac Univ, Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Lesley Riker, Robin Lamott Sparks. (Bardavid, Jonathan) Modiﬁed on 5/19/2009 to add ﬁlers. (Candee, D.). (Entered: 05/07/2009)

05/07/2009

Minute Entry for proceedings held before Judge Stefan R. Underhill: Pretrial Conference held on 5/7/2009. Total Time: 1 hour and 30 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 06/11/2009)

05/08/2009

29 Supplemental MOTION for Disclosure of Potential Witness by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Hernandez, Alex) (Entered: 05/08/2009)

05/08/2009

30 MOTION to Compel (Letter Re: Work Product Issue Discussed at Pretrial Conference) by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker.Responses due by 5/29/2009 (Orleans, Jonathan) (Entered: 05/08/2009)

05/08/2009

31 Memorandum in Opposition re 4 MOTION for Waiver of Security ﬁled by Quinnipiac Univ. (Gambardella, Mary) (Entered: 05/08/2009)

05/11/2009

32 Minute Entry for proceedings held before Judge Stefan R. Underhill: Motion Hearing held on 5/11/2009 re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction ﬁled by Kristen Corinaldesi, Erin Overdevest, Kayla Lawler, Stephanie Biediger, L. R., Robin Lamott Sparks, Lesley Riker. Total Time: 6 hours and 25 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 05/12/2009)

05/12/2009

34 Minute Entry. Proceedings held before Judge Stefan R. Underhill: Motion Hearing held on 5/12/2009 re 29 Supplemental MOTION for Disclosure, 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction, 30 MOTION to Compel. Oral ruling issued by Judge Underhill granting 29 Motion for Disclosure; denying as moot 30 Motion to Compel; taking under advisement 2 Motion for Preliminary Injunction. Total Time: 4 hours and 40 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 05/13/2009)

05/13/2009

35 ORAL MOTION for Judgment as a Matter of Law by Quinnipiac Univ.Responses due by 6/3/2009 (Sbalbi, B.) (Entered: 05/13/2009)

05/13/2009

36 Minute Entry. Proceedings held before Judge Stefan R. Underhill: Motion Hearing held on 5/13/2009 re 35 MOTION for Judgment as a Matter of Law, 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction. Oral ruling issued by Judge Underhill denying 35 Motion for Judgment as a Matter of Law; taking under advisement 2 Motion for Preliminary Injunction. Total Time: 4 hours and 05 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 05/13/2009)

05/14/2009

37 MOTION to Strike Testimony of Germaine Fairchild by Quinnipiac Univ.Responses due by 6/4/2009 (Bardavid, Jonathan) (Entered: 05/14/2009)

05/14/2009

38 TRANSCRIPT of Proceedings held on 4/17/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Pretrial Conference. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at

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www.ctd.uscourts.gov. Redaction Request due 6/4/2009. Redacted Transcript Deadline set for 6/14/2009. Release of Transcript Restriction set for 8/12/2009. (Catucci, S.) (Entered: 05/14/2009)

05/14/2009

39 NOTICE by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker (Orleans, Jonathan) Modiﬁed on 5/15/2009 (Simpson, T.). Modiﬁed on 5/15/2009 (Simpson, T.). (Entered: 05/14/2009)

05/14/2009

40 NOTICE by Quinnipiac Univ re 39 Notice (Other) Cross-Designation (Bardavid, Jonathan) Modiﬁed on 5/15/2009 (Simpson, T.). Modiﬁed on 5/15/2009 (Simpson, T.). (Entered: 05/14/2009)

05/14/2009

41 TRIAL MEMO by Quinnipiac Univ. (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Afﬁdavit D, # 5 Appendix E)(Bardavid, Jonathan) (Entered: 05/14/2009)

05/14/2009

42 Proposed Findings of Fact and Conclusions of Law by Quinnipiac Univ. (Bardavid, Jonathan) (Entered: 05/14/2009)

05/14/2009

43 TRIAL MEMO re Preliminary Injunction by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Attachments: # 1 Appendix)(Orleans, Jonathan) (Entered: 05/14/2009)

05/14/2009

44 Minute Entry. Proceedings held before Judge Stefan R. Underhill: Motion Hearing held on 5/14/2009 re 26 MOTION to Preclude Testimony, 37 MOTION to Strike, 2 Motion for Preliminary Injunction. Oral ruling issued by Judge Underhilldenying 37 Motion to Strike; taking under advisement 2 Motion for Preliminary Injunction; denying 26 Motion to Preclude. Total Time: 1 hour and 25 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 05/15/2009)

05/14/2009

45 Marked Witness List by L. R., Robin Lamott Sparks, Quinnipiac Univ, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Sbalbi, B.) (Entered: 05/15/2009)

05/14/2009

46 Marked Exhibit List by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Sbalbi, B.) (Entered: 05/15/2009)

05/14/2009 47 Marked Exhibit List by Quinnipiac Univ. (Sbalbi, B.) (Entered: 05/15/2009)

05/15/2009

Docket Entry Correction re 40 Notice (Other), 39 Notice (Other) MODIFIED BOTH ENTRIES TO NOTE DOCUMENTS ENTERED IN ERROR - PER THE LOCAL RULES, DISCOVERY IS NOT TO BE FILED (Simpson, T.) (Entered: 05/15/2009)

05/15/2009

Docket Entry Correction re 40 Notice (Other), 39 Notice (Other) MODIFIED TO REMOVE ENTERED IN ERROR TEXT. ENTRIES ARE ACCEPTABLE BY THE JUDGE AS IS (Simpson, T.) (Entered: 05/15/2009)

05/19/2009

48 Proposed Findings of Fact and Conclusions of Law re 2 Motion for Preliminary Injunction by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Orleans, Jonathan) Modiﬁed on 5/20/2009 to create link to document # 2 (Candee, D.). (Entered: 05/19/2009)

05/20/2009

49 STIPULATION Regarding Deadlines by L. R., Robin Lamott Sparks, Quinnipiac Univ, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Bardavid, Jonathan) (Entered: 05/20/2009)

05/20/2009

Reset Deadlines as to 23 MOTION to Dismiss Complaint by Plaintiffs Overdevest and Sparks. (Responses due by 6/26/2008), Set Deadlines:( Rule 26 Meeting Report due by 6/8/2009) (Candee, D.) (Entered: 05/21/2009)

05/21/2009 50 ORDER approving Stipulation Regarding Deadlines 49 . Signed by Judge Stefan R.

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06/15/2009 06/16/2009
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Underhill on 05/21/2009. (Penberthy, Katherine) (Entered: 05/21/2009)
51 ORDER granting 2 Motion for Preliminary Injunction. Signed by Judge Stefan R. Underhill on 05/22/2009. (Penberthy, Katherine) (Entered: 05/22/2009)
52 Joint MOTION Reference to Magistrate Judge by L. R., Robin Lamott Sparks, Quinnipiac Univ, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker.Responses due by 6/25/2009 (Orleans, Jonathan) (Entered: 06/04/2009)
53 ORDER granting 52 Motion for referral to Magistrate Judge. Signed by Judge Stefan R. Underhill on 6/9/09. (Sbalbi, B.) (Entered: 06/09/2009)
54 ORDER REFERRING CASE to Magistrate Judge William I. Garﬁnkel for settlement conference. Signed by Judge Stefan R. Underhill on 6/9/09. (Sbalbi, B.) (Entered: 06/09/2009)
55 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.Telephone Pre-Settlement Conference set for 6/16/2009 @11:30 AM before Judge William I. Garﬁnkel. Counsel for the plaintiff shall initiate this call. Once all parties are on the line, please contact Chambers at (203)579-5593. A date for the settlement conference will be set during the telephone call. As the Court requires parties or their representatives with settlement authority to attend the settlement conference, counsel should obtain dates of unavailability from their clients over the next 90 days and have their own calendars available to aid in the scheduling. During the telephone call, counsel should be prepared to discuss what information needs to be exchanged and anything else that needs to be accomplished prior to the settlement conference for the discussions to be productive. This telephone conference will not be rescheduled based on requests from counsel. If counsel is not available at the scheduled time, please arrange for coverage by another lawyer who will have the necessary background knowledge to participate. (Sanders, C.) (Entered: 06/10/2009)
56 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Motion Hearing set for 8/11/2009 at 10:00 AM in Courtroom One, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill. Please see attached calendar for further details. (Sbalbi, B.) (Entered: 06/15/2009)
57 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference is scheduled for July 27, 2009 @ 9:30 AM before The Honorable William I. Garﬁnkel in courtroom 437, 4th Floor, 915 Lafayette Blvd., Bridgeport, CT 06604. Counsel shall check in with Judge Garﬁnkel's chambers, room 429 prior to the conference. PLEASE REVIEW THE SETTLEMENT CONFERENCE ORDER ATTACHED. (Sanders, C.) (Entered: 06/16/2009)
58 Minute Entry for proceedings held before Judge William I. Garﬁnkel: Telephone PreSettlement Conference held on 6/16/2009. 15 minutes (Sanders, C.) (Entered: 06/16/2009)
59 MOTION to Continue /Postpone Oral Argument Re: 23 Motion to Dismiss by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Orleans, Jonathan) Modiﬁed on 6/22/2009 to create link to document # 23 (Candee, D.). (Entered: 06/19/2009)
60 MOTION for Extension of Time to File Response/Reply as to 23 MOTION to Dismiss Complaint by Plaintiffs Overdevest and Sparks until July 15, 2009 by L. R., Robin

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06/24/2009
07/14/2009
07/15/2009 07/17/2009 07/21/2009 07/21/2009 07/23/2009 07/24/2009
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Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Orleans, Jonathan) (Entered: 06/19/2009)
61 ORDER granting 59 Motion to Continue motion hearing; granting 60 Motion for Extension of Time to File Response/Reply re 23 MOTION to Dismiss. (Responses due by 7/15/2009). Motion Hearing is rescheduled for September 2, 2009 at 11:00 a.m. Signed by Judge Stefan R. Underhill on 6/24/09. (Sbalbi, B.) (Entered: 06/24/2009)
62 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Motion Hearing rescheduled for 9/2/2009 at 11:00 AM in Courtroom One, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill (Sbalbi, B.) (Entered: 06/24/2009)
63 Third MOTION for Extension of Time to File Response/Reply (Opposition) on Consent as to 23 MOTION to Dismiss Complaint by Plaintiffs Overdevest and Sparks until July 24, 2009 by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Orleans, Jonathan) (Entered: 07/14/2009)
64 ORDER granting 63 Motion for Extension of Time to File Response/Reply re 23 MOTION to Dismiss. Responses due by 7/24/2009. Signed by Judge Stefan R. Underhill on 7/15/09. (Sbalbi, B.) (Entered: 07/15/2009)
Acknowledgement of Receipt of Exhibits by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Sbalbi, B.) (Entered: 07/17/2009)
65 MOTION for Leave to Appear Pro Hac Vice re: Attorney Edward A. Brill. Filing Fee $25.00. Receipt Number B018218, by Quinnipiac Univ. (Attachments: # 1 Afﬁdavit) (Heard, J.) (Entered: 07/21/2009)
66 ORDER granting 65 Motion to Appear Pro Hac Vice re: Attorney Edward A. Brill for Quinnipiac Univ added. Signed by Clerk on 7/21/2009. (Heard, J.) (Entered: 07/21/2009)
67 Acknowledgement of Receipt of Exhibits by Quinnipiac Univ. (Sbalbi, B.) (Entered: 07/23/2009)
68 Memorandum in Opposition re 23 MOTION to Dismiss Complaint by Plaintiffs Overdevest and Sparks ﬁled by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Orleans, Jonathan) (Entered: 07/24/2009)
69 Minute Entry for proceedings held before Judge William I. Garﬁnkel: Settlement Conference held on 7/27/2009. Case not settled. Counsel will contact the court for a follow-up. Total Time: 4 hours and 30 minutes (Sanders, C.) (Entered: 07/27/2009)
70 Consent MOTION for Extension of Time until 08/14/2009 To File Reply 68 Memorandum in Opposition to Motion by Quinnipiac Univ. (Bardavid, Jonathan) (Entered: 08/04/2009)
71 ORDER granting 70 Motion for Extension of Time. Signed by Judge Stefan R. Underhill on 08/05/09. (Shonka, N.) (Entered: 08/05/2009)
72 MOTION to Withdraw Without Prejudice Its 23 Motion Dismiss Complaint by Plaintiff Robin Sparks by Quinnipiac Univ. (Gambardella, Mary) Modiﬁed on 8/17/2009 to create link to document # 23 (Candee, D.). (Entered: 08/13/2009)
73 ORDER granting 72 Motion to Withdraw 23 MOTION to Dismiss Complaint. Signed by Judge Stefan R. Underhill on 8/17/09. (Sbalbi, B.) (Entered: 08/17/2009)

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74 ORDER re (withdrawn) 23 Motion to Dismiss; ﬁnding as moot 25 Motion for Hearing. Signed by Judge Stefan R. Underhill on 8/17/09. (Sbalbi, B.) (Entered: 08/17/2009)
75 MOTION for Leave to Appear Pro Hac Vice for Attorney Susan D. Friedfel. Filing Fee $25.00. Receipt Number B018419 by Quinnipiac Univ. (Candee, D.) (Entered: 09/04/2009)
76 ORDER granting 75 Motion to Appear Pro Hac Vice for Attorney Susan D. Friedfel. Signed by Clerk on 9/4/09. (Candee, D.) (Entered: 09/04/2009)
77 NOTICE TO COUNSEL - Parties are to ﬁle a Form 26(f) report by 10/5/09 along with a written statement signed by all counsel and pro se parties explaining why sanctions should not be imposed for the parties' failure to comply with Local Rule 26(f). Failure to comply with this order will result in dismissal of the complaint. Signed by Clerk on 9/15/09. (Candee, D.) Modiﬁed on 9/17/2009 (Candee, D.). (Entered: 09/17/2009)
Docket Entry Correction - Docket entry 77 Notice modiﬁed to indicate correct signature on document. (Candee, D.) (Entered: 09/17/2009)
78 REPORT of Rule 26(f) Planning Meeting. (Orleans, Jonathan) (Entered: 09/17/2009)
79 NOTICE of Appearance by Susan D. Friedfel on behalf of Quinnipiac Univ (Friedfel, Susan) (Entered: 10/01/2009)
80 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Status Conference set for 10/22/2009 at 2:00 PM in Chambers Room 411, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill. (Yaster, B.) (Entered: 10/02/2009)
81 TRANSCRIPT of Proceedings held on 5/11/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Jury Trial (Morning Session). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/27/2009. Redacted Transcript Deadline set for 11/6/2009. Release of Transcript Restriction set for 1/4/2010. (Catucci, S.) (Entered: 10/06/2009)
82 TRANSCRIPT of Proceedings held on 5/11/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Preliminary Injunction Hearing (Afternoon Session). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/27/2009. Redacted Transcript Deadline set for 11/6/2009. Release of Transcript Restriction set for 1/4/2010. (Catucci, S.) (Entered: 10/06/2009)
83 TRANSCRIPT of Proceedings held on 5/12/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Preliminary Injunction Hearing (Part 1). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/27/2009. Redacted Transcript Deadline

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84 TRANSCRIPT of Proceedings held on 5/12/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Preliminary Injunction hearing (Part 2). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/27/2009. Redacted Transcript Deadline set for 11/6/2009. Release of Transcript Restriction set for 1/4/2010. (Catucci, S.) (Entered: 10/06/2009)
85 TRANSCRIPT of Proceedings held on 5/12/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Preliminary Injunction Hearing (Part 3). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/27/2009. Redacted Transcript Deadline set for 11/6/2009. Release of Transcript Restriction set for 1/4/2010. (Catucci, S.) (Entered: 10/06/2009)
86 TRANSCRIPT of Proceedings held on 5/12/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Preliminary Injunction Hearing (Part 4). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/27/2009. Redacted Transcript Deadline set for 11/6/2009. Release of Transcript Restriction set for 1/4/2010. (Catucci, S.) (Entered: 10/06/2009)
87 TRANSCRIPT of Proceedings held on 5/13/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Preliminary Injunction Hearing. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/27/2009. Redacted Transcript Deadline set for 11/6/2009. Release of Transcript Restriction set for 1/4/2010. (Catucci, S.) (Entered: 10/06/2009)
88 TRANSCRIPT of Proceedings held on 5/14/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Preliminary Injunction Hearing. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/27/2009. Redacted Transcript Deadline set for 11/6/2009. Release of Transcript Restriction set for 1/4/2010. (Catucci, S.) (Entered: 10/06/2009)
89 Memorandum of scheduling conference held on 10/23/2009 before Judge Stefan R. Underhill. Bench trial is scheduled to begin May 3, 2010. Parties are requested to confer about dates for motions to join new parties, motions to certify a class, and matters relating

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to discovery. Total Time: 1 hour (Court Reporter Susan Catucci.) (Yaster, B.) (Entered: 10/23/2009)
90 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Bench Trial set for 5/3/2010 at 09:00 AM in Courtroom One, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill. (Yaster, B.) (Entered: 10/23/2009)
91 Letter from Edward A. Brill Dated 10/20/09 Re: revised 26(f) report schedule. (Candee, D.) (Entered: 10/27/2009)
92 ORDER re 78 Report of Rule 26(f) Planning Meeting. Report approved. Discovery shall be completed by 10/1/10 and dispositive motions shall be ﬁled by 11/1/10. Signed by Judge Stefan R. Underhill on 10/27/09. (Sbalbi, B.) (Entered: 10/27/2009)
93 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference (re discovery schedule) set for 11/9/2009 10:00 AM before Judge Stefan R. Underhill. Plaintiff's counsel shall initiate phone call to chambers (203) 579-5714. (Sbalbi, B.) (Entered: 11/06/2009)
94 MOTION for Court approval of proposed Schedule for pre-trial discovery (Exhibit A) and re-set trial date for July 2010 by Robin Lamott Sparks.Responses due by 12/3/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Orleans, Jonathan) (Entered: 11/12/2009)
95 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 11/19/2009 at 4:30 PM before Judge Stefan R. Underhill (Sbalbi, B.) (Entered: 11/12/2009)
96 ORDER granting 4 Motion for waiver of security. Signed by Judge Stefan R. Underhill on 11/16/09. (Sbalbi, B.) (Entered: 11/16/2009)
97 Memorandum in Opposition to Plaintiffs' Motion for Miscellaneous Relief. re 94 MOTION for Court approval of proposed Schedule for pre-trial discovery (Exhibit A) and re-set trial date for July 2010 MOTION for Court approval of proposed Schedule for pre-trial discovery (Exhibit A) and re-set trial date for July 2010 ﬁled by Quinnipiac Univ. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Brill, Edward) (Entered: 11/17/2009)
100 Minute Entry for proceedings held before Judge Stefan R. Underhill: Telephone Status Conference held on 11/19/2009. Total Time: 1 hour(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 12/09/2009)
98 CONFERENCE MEMORANDUM re telephone conference held before Judge Stefan R. Underhill on 11/19/2009. Discovery and trial dates were reset. 94 Motion for court approval of proposed scheduling order was granted in part and denied in part. Signed by Judge Stefan R. Underhill on 11/20/2009. (Yaster, B.) (Entered: 11/20/2009)
Set Deadlines/Hearings: Discovery due by 6/15/2010. Bench Trial set for 6/28/2010 at 9:00 AM in Courtroom One, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill (Sbalbi, B.) (Entered: 12/03/2009)
99 Consent MOTION for Extension of Time until /with consent of Defendant, nunc pro tunc for a two-day extension, to and including 12/9/09, to ﬁle Amended Complaint and By Agreement with Defendant, a two-day extension, to 1/13/2010 to respond to Amended

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Complaint by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Orleans, Jonathan) (Entered: 12/09/2009)

12/09/2009

101 AMENDED COMPLAINT against Quinnipiac Univ, ﬁled by Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker. (Attachments: # 1 Exhibit 2, # 2 Exhibit Four, # 3 Exhibit Five)(Orleans, Jonathan) (Entered: 12/09/2009)

12/10/2009

102 EXHIBIT 1 Part 1 by L. R., Robin Lamott Sparks, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Lesley Riker re 101 Amended Complaint. (Attachments: # 1 Exhibit 1 Part 2, # 2 Exhibit 3 Part 1, # 3 Exhibit 3 Part 2)(Orleans, Jonathan) (Entered: 12/10/2009)

12/11/2009

103 ORDER granting 99 Motion for Extension of Time to 12/9/09 to ﬁle amended complaint and to 1/13/10 for defendants to respond to 101 Amended Complaint. Signed by Judge Stefan R. Underhill on 12/11/09. (Sbalbi, B.) (Entered: 12/11/2009)

01/13/2010

104 Defendant's ANSWER to 101 Amended Complaint with Afﬁrmative Defenses. Defendant's Answer to the First Amended Class Action Complaint by Quinnipiac Univ. (Brill, Edward) (Entered: 01/13/2010)

01/14/2010

105 First MOTION for Extension of Time until Feb 3 2010 First Unopposed Motion for extention of time To Respond to plaintiffs' First Request for Admissions by Quinnipiac Univ. (Friedfel, Susan) (Entered: 01/14/2010)

01/15/2010

106 ORDER granting 105 Motion for Extension of Time to 2/3/10 to respond to interrogatories and requests for production. Signed by Judge Stefan R. Underhill on 1/15/10. (Sbalbi, B.) (Entered: 01/15/2010)

02/01/2010

107 MOTION to Certify Class by Robin Lamott Sparks, Stephanie Biediger, Logan Riker, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi.Responses due by 2/22/2010 (Hernandez, Alex) (Entered: 02/01/2010)

02/01/2010

108 Memorandum in Support re 107 MOTION to Certify Class ﬁled by Robin Lamott Sparks, Stephanie Biediger, Logan Riker, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi. (Hernandez, Alex) (Entered: 02/01/2010)

02/01/2010

109 AFFIDAVIT re 108 Memorandum in Support of Motion, 107 MOTION to Certify Class Signed By Kristen Galles ﬁled by Robin Lamott Sparks, Stephanie Biediger, Logan Riker, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi. (Hernandez, Alex) (Entered: 02/01/2010)

02/01/2010

110 AFFIDAVIT re 108 Memorandum in Support of Motion, 107 MOTION to Certify Class Signed By Jonathan B. Orleans ﬁled by Robin Lamott Sparks, Stephanie Biediger, Logan Riker, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi. (Hernandez, Alex) (Entered: 02/01/2010)

02/01/2010

111 AFFIDAVIT re 108 Memorandum in Support of Motion, 107 MOTION to Certify Class Signed By Alex V. Hernandez ﬁled by Robin Lamott Sparks, Stephanie Biediger, Logan Riker, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi. (Hernandez, Alex) (Entered: 02/01/2010)

02/04/2010

112 TRANSCRIPT of Proceedings held on 10/22/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Status Conference. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 2/25/2010. Redacted Transcript Deadline

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02/16/2010

113 First MOTION for Extension of Time until 3/15/10 First Unopposed Motion for Extension of Time to Oppose Plaintiffs' Motion for Class Certiﬁcation to Oppose Plaintiffs' Motion for Class Certiﬁcation 107 MOTION to Certify Class by Quinnipiac Univ. (Friedfel, Susan) (Entered: 02/16/2010)

02/17/2010

114 ORDER granting 113 Motion for Extension of Time to 3/15/10 to respond to 107 MOTION to Certify Class. Signed by Judge Stefan R. Underhill on 2/17/10. (Sbalbi, B.) (Entered: 02/17/2010)

03/01/2010

115 AFFIDAVIT re 108 Memorandum in Support of Motion, 107 MOTION to Certify Class Signed By Erin Overdevest ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 03/01/2010)

03/01/2010

116 AFFIDAVIT re 108 Memorandum in Support of Motion, 107 MOTION to Certify Class Signed By Kayla Lawler ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 03/01/2010)

03/01/2010

117 AFFIDAVIT re 108 Memorandum in Support of Motion, 107 MOTION to Certify Class Signed By Stephanie Biediger ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 03/01/2010)

03/01/2010

118 AFFIDAVIT re 108 Memorandum in Support of Motion, 107 MOTION to Certify Class Signed By Kristen Corinaldesi ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 03/01/2010)

03/04/2010

119 First MOTION for Erick I. Diaz to Withdraw as Attorney by Quinnipiac Univ. (Vazquez, Erick) (Entered: 03/04/2010)

03/08/2010

120 ORDER granting 119 Motion to Withdraw as Attorney. Attorney Erick Ignacio Diaz Vazquez terminated. Signed by Judge Stefan R. Underhill on 3/8/10. (Sbalbi, B.) (Entered: 03/08/2010)

03/10/2010

121 MOTION for Extension of Time until March 19, 2010 (On Consent) to Respond and/or Object to Defendant's Request for Production of Documents dated February 9, 2010 by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 03/10/2010)

03/11/2010

122 ORDER granting 121 Motion for Extension of Time to 3/19/10 to respond to interrogatories and requests for production. Signed by Judge Stefan R. Underhill on 3/11/10. (Sbalbi, B.) (Entered: 03/11/2010)

03/15/2010

123 Memorandum in Opposition to Plaintiffs' Motion for Class Certiﬁcation re 107 MOTION to Certify Class ﬁled by Quinnipiac Univ. (Attachments: # 1 Exhibit 1)(Brill, Edward) (Entered: 03/15/2010)

03/26/2010

124 MOTION for Extension of Time until April 5, 2010 to File Reply to Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion and Memorandum of Law in Support of Motion for Class Certiﬁcation 123 Memorandum in Opposition to Motion by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Hernandez, Alex) (Entered: 03/26/2010)

03/31/2010 125 ORDER granting 124 Motion for Extension of Time to 4/5/10 to reply to response to 107

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04/05/2010

126 Second MOTION for Extension of Time to File Response/Reply (On Consent) as to 107 MOTION to Certify Class until April 7, 2010, MOTION for Extension of Time until April 7, 2010 to File Reply to Defendant's Memorandum in Opposition to Motion for Class Certiﬁcation by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 04/05/2010)

04/06/2010

127 ORDER granting 126 Motion for Extension of Time to 4/7/10 to File Response/Reply re 107 MOTION to Certify Class (Responses due by 4/7/2010). Signed by Judge Stefan R. Underhill on 4/6/10. (Sbalbi, B.) (Entered: 04/06/2010)

04/07/2010

128 MOTION for Leave to File Excess Pages by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Hernandez, Alex) (Entered: 04/07/2010)

04/07/2010

129 REPLY to Response to 128 MOTION for Leave to File Excess Pages, 107 MOTION to Certify Class ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Hernandez, Alex) (Entered: 04/07/2010)

04/07/2010

130 AFFIDAVIT re 129 Reply to Response to Motion for Class Certiﬁcation Signed By Alex V. Hernandez ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Attachments: # 1 Exhibit A) (Hernandez, Alex) (Entered: 04/07/2010)

04/09/2010 131 ORDER granting 128 Motion for Leave to File Excess Pages. Signed by Judge Stefan R. Underhill on 4/9/10. (Sbalbi, B.) (Entered: 04/09/2010)

04/20/2010

Minute Entry for proceedings held before Judge Stefan R. Underhill: Scheduling Telephone Conference held on 4/20/2010. 10 minutes (Sbalbi, B.) (Entered: 05/13/2010)

04/26/2010 132 MEMORANDUM of Telephone Conference held 04/20/2010. Signed by Judge Stefan R. Underhill on 04/26/2010. (Yaster, B.) (Entered: 04/26/2010)

04/27/2010 133 MOTION for Leave to Appear pro hac vice Attorney Rebecca L. Berkebile. Filing Fee $25.00. Receipt Number B019614. by Quinnipiac Univ. (Lewis, D) (Entered: 04/27/2010)

04/27/2010 134 ORDER granting 133 Motion for Rebecca L. Berkebile to Appear pro hac vice.. Signed by Clerk on 4/27/10. (Lewis, D) (Entered: 04/27/2010)

04/30/2010 135 NOTICE of Appearance by Rebecca L. Berkebile on behalf of Quinnipiac Univ (Berkebile, Rebecca) (Entered: 04/30/2010)

05/12/2010

136 Joint MOTION for Approving Stipulation to Bifurcate Order by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, Logan Riker, Robin Lamott Sparks. (Attachments: # 1 Stipulation and Proposed Order re Bifurcation) (Orleans, Jonathan) (Entered: 05/12/2010)

05/17/2010 137 ORDER granting 136 Motion for Order. Signed by Judge Stefan R. Underhill on 5/17/10. (Sbalbi, B.) (Entered: 05/17/2010)

05/20/2010 138 ORDER granting in part and denying in part 107 Motion to Certify Class. Signed by Judge Stefan R. Underhill on 05/20/2010. (Yaster, B.) (Entered: 05/20/2010)

05/21/2010

139 STIPULATION re: trial procedure by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, Logan Riker, Robin Lamott Sparks. (Lewis, D) (Entered: 05/21/2010)

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140 ORDER approving 139 Stipulation ﬁled by Kristen Corinaldesi, Quinnipiac Univ, Erin Overdevest, Kayla Lawler, Stephanie Biediger, Robin Lamott Sparks, Logan Riker. Signed by Judge Stefan R. Underhill on 5/20/10. (Lewis, D) (Entered: 05/21/2010)
141 Joint MOTION for Order Approving Stipulated Protective Order Order by Quinnipiac Univ., Stephanie Biediger, kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Attachments: # 1 Exhibit Stipulated Protective Order) (Friedfel, Susan) Modiﬁed on 5/28/2010 to add plaintiffs as ﬁlers. (Lewis, D). (Entered: 05/25/2010)
Minute Entry for proceedings held before Judge Stefan R. Underhill: Telephone Scheduling Conference held on 5/25/2010. 30 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 06/10/2010)
142 ORDER granting 141 Motion for Order approving Stipulated Protective Order. Signed by Judge Stefan R. Underhill on 5/26/10. (Sbalbi, B.) (Entered: 05/26/2010)
143 MEMORANDUM of Telephone Conference held May 25, 2010. Signed by Judge Stefan R. Underhill on 05/27/2010. (Yaster, B.) (Entered: 05/27/2010)
144 STIPULATED PROTECTIVE ORDER. Signed by Judge Stefan R. Underhill on 5/26/10. (Lewis, D) Modiﬁed on 5/27/2010 (Lewis, D)TO CORRECT TITLE. (Main Document 144 replaced on 5/27/2010) (Lewis, D). (Entered: 05/27/2010)
Docket Entry Correction re 144 Protective Order to correct pdf. (Lewis, D) (Entered: 05/27/2010)
Minute Entry for proceedings held before Judge Stefan R. Underhill: Telephone Conference held on 6/7/2010. 30 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 07/08/2010)
145 TRIAL MEMO Joint Pretrial Order by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, Logan Riker, Robin Lamott Sparks Estimated trial time 1 week. (Attachments: # 1 Exhibit Exhibit C - Stipulations of Fact and Law) (Orleans, Jonathan) (Entered: 06/10/2010)
146 MOTION in Limine for an order precluding and elliminating evidence by Quinnipiac Univ.Responses due by 7/1/2010 (Brill, Edward) (Entered: 06/10/2010)
147 Memorandum in Support re 146 MOTION in Limine for an order precluding and elliminating evidence ﬁled by Quinnipiac Univ. (Brill, Edward) (Entered: 06/10/2010)
148 CERTIFICATE OF SERVICE by Quinnipiac Univ re 146 MOTION in Limine for an order precluding and elliminating evidence, 147 Memorandum in Support of Motion by e-mail to all parties by operation of the Court's electronic ﬁling system (Brill, Edward) (Entered: 06/10/2010)
149 First proposed Exhibit List of Defendant Quinnipiac University, Exhibit B to Joint PreTrial Order by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 06/10/2010)
Minute Entry for proceedings held before Judge Stefan R. Underhill: Pretrial Conference held on 6/10/2010. Total Time: 1 hour(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 07/12/2010)
Minute Entry for proceedings held before Judge Stefan R. Underhill: Pretrial Conference held on 6/11/2010. Total Time: 1 hour(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 07/08/2010)

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150 MEMORANDUM of telephone conference held on June 7, 2010. Signed by Judge Stefan R. Underhill on 06/14/2010. (Wolf, S.) (Entered: 06/14/2010)
151 TRIAL MEMO TRIAL BRIEF by Quinnipiac Univ. (Attachments: # 1 Exhibit A and B, # 2 Certiﬁcate of Service)(Brill, Edward) (Entered: 06/21/2010)
152 MOTION in Limine Defendant's Notice of Motion in Limine by Quinnipiac Univ.Responses due by 7/12/2010 (Attachments: # 1 Memorandum in Support of Defendant's Motion in Limine To Limit Scope of Testimony of Jeff Webb and Athena Yiamouyiannis, # 2 Exhibit A-B, # 3 Certiﬁcate of Service)(Brill, Edward) (Entered: 06/21/2010)
153 MOTION for Leave to Appear as Amicus Curiae Attorney John B. Hughes. by United States. (Hughes, John) (Entered: 06/21/2010)
154 EXHIBIT Proposed Amicus Brief by United States re 153 MOTION for Leave to Appear as Amicus Curiae Attorney John B. Hughes.. (Attachments: # 1 Exhibit Exhibit A to Proposed Amicus Brief, # 2 Exhibit Exhibit B to Proposed Amicus Brief, # 3 Exhibit Exhibit C to Proposed Amicus Brief)(Hughes, John) (Entered: 06/21/2010)
155 Amicus Curiae APPEARANCE entered by John B. Hughes on behalf of United States. (Hughes, John) (Entered: 06/21/2010)
156 Minute Entry for proceedings held before Judge Stefan R. Underhill: Bench Trial held on 6/21/2010. Total Time: 7 hours and 40 minutes(Court Reporter S. Catucci). (Yaster, B.) (Main Document 156 replaced on 7/1/2010) (Sbalbi, B.). (Entered: 06/21/2010)
157 Proposed Exhibit List by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 06/22/2010)
158 Minute Entry. Proceedings held before Judge Stefan R. Underhill: Bench Trial held on 6/22/2010. 152 Motion in Limine denied without prejudice; 153 Motion to Appear as Amicus Curiae granted. Bench Trial Continued Until 6/23/2010. (Court Reporter S. Catucci.) (Yaster, B.) (Main Document 158 replaced on 7/1/2010) (Sbalbi, B.). (Entered: 06/22/2010)
159 Minute Entry for proceedings held before Judge Stefan R. Underhill: Bench Trial held on 6/23/2010. Bench Trial continued until 6/24/2010. Total Time: 3 hours and 15 minutes. (Court Reporter S. Catucci.) (Yaster, B.) (Main Document 159 replaced on 7/1/2010) (Sbalbi, B.). (Entered: 06/23/2010)
160 TRIAL MEMO Defendant's Brief in Response to the Amicus Curiae Brief of the United States by Quinnipiac Univ Estimated trial time 5 days. (Friedfel, Susan) (Entered: 06/24/2010)
161 Minute Entry for proceedings held before Judge Stefan R. Underhill: Bench Trial held on 6/24/2010. Bench Trial continued until 6/25/2010. Total Time: 3 hours and 30 minutes. (Court Reporter S. Catucci.) (Yaster, B.) (Main Document 161 replaced on 7/1/2010) (Sbalbi, B.). (Entered: 06/24/2010)
162 Proposed Findings of Fact and Conclusions of Law by Quinnipiac Univ. (Friedfel, Susan) (Entered: 06/25/2010)
163 Proposed Findings of Fact and Conclusions of Law by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Hernandez, Alex) (Entered: 06/25/2010)
164 Minute Entry for proceedings held before Judge Stefan R. Underhill: Bench Trial

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completed on 6/25/2010. Decision reserved. Total Time: 2 hours and 15 minutes. (Court Reporter S. Catucci.) (Yaster, B.) (Main Document 164 replaced on 7/1/2010) (Sbalbi, B.). (Entered: 06/25/2010)

06/25/2010

165 TRIAL MEMO /BRIEF by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 06/25/2010)

06/25/2010

168 Marked Exhibit List by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Sbalbi, B.) (Main Document 168 replaced on 7/8/2010) (Sbalbi, B.). (Entered: 07/06/2010)

06/25/2010

169 Marked Witness List by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Sbalbi, B.) (Entered: 07/06/2010)

06/30/2010

166 TRIAL MEMO Defendant's Supplemental Brief Responding to New Arguments in Plaintiffs' Trial Brief by Quinnipiac Univ Estimated trial time 5 days. (Attachments: # 1 Exhibit Certiﬁcate of Service)(Friedfel, Susan) (Entered: 06/30/2010)

07/01/2010

167 RESPONSE re 166 Trial Memo by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks Plaintiffs' Response to Defendants' Supplemental Brief. (Orleans, Jonathan) (Entered: 07/01/2010)

07/07/2010 170 CERTIFICATE OF SERVICE by Quinnipiac Univ re 162 Proposed Findings of Fact and Conclusions of Law (Lewis, D) (Entered: 07/07/2010)

07/21/2010 171 MEMORANDUM OF DECISION following bench trial held June 21-25, 2010. Signed by Judge Stefan R. Underhill on 7/21/10. (Sbalbi, B.) (Entered: 07/21/2010)

07/21/2010

172 TRANSCRIPT of Proceedings held on 6/21/10 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Bench Trial (morning session). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 8/11/2010. Redacted Transcript Deadline set for 8/21/2010. Release of Transcript Restriction set for 10/19/2010. (Catucci, S.) (Entered: 07/21/2010)

07/21/2010

173 TRANSCRIPT of Proceedings held on 6/21/10 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Bench Trial (afternoon session). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 8/11/2010. Redacted Transcript Deadline set for 8/21/2010. Release of Transcript Restriction set for 10/19/2010. (Catucci, S.) (Entered: 07/21/2010)

07/21/2010

174 TRANSCRIPT of Proceedings held on 6/22/10 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Bench Trial (morning session). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 8/11/2010. Redacted Transcript Deadline

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set for 8/21/2010. Release of Transcript Restriction set for 10/19/2010. (Catucci, S.) (Entered: 07/21/2010)
175 TRANSCRIPT of Proceedings held on 6/22/10 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Bench Trial (afternoon session). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 8/11/2010. Redacted Transcript Deadline set for 8/21/2010. Release of Transcript Restriction set for 10/19/2010. (Catucci, S.) (Entered: 07/21/2010)
176 TRANSCRIPT of Proceedings held on 6/22/10 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Bench Trial (afternoon session). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 8/11/2010. Redacted Transcript Deadline set for 8/21/2010. Release of Transcript Restriction set for 10/19/2010. (Catucci, S.) (Entered: 07/21/2010)
177 TRANSCRIPT of Proceedings held on 6/23/10 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Bench Trial. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 8/11/2010. Redacted Transcript Deadline set for 8/21/2010. Release of Transcript Restriction set for 10/19/2010. (Catucci, S.) (Entered: 07/21/2010)
178 TRANSCRIPT of Proceedings held on 6/24/10 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Bench Trial. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 8/11/2010. Redacted Transcript Deadline set for 8/21/2010. Release of Transcript Restriction set for 10/19/2010. (Catucci, S.) (Entered: 07/21/2010)
179 TRANSCRIPT of Proceedings held on 6/25/10 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Bench Trial. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 8/11/2010. Redacted Transcript Deadline set for 8/21/2010. Release of Transcript Restriction set for 10/19/2010. (Catucci, S.) (Entered: 07/21/2010)
180 INJUNCTION ORDER. Signed by Judge Stefan R. Underhill on 07/22/2010. (Yaster, B.) (Entered: 07/22/2010)
181 MOTION for Attorney Fees by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks.Responses due by 8/25/2010 (Orleans, Jonathan) (Entered: 08/04/2010)

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182 NOTICE by Quinnipiac Univ of Compliance with the Court's 7-21-10 order (Attachments: # 1 Exhibit Certiﬁcate of Service of Quinnipiac's Proposed Compliance Plan via email on 8-11-10)(Brill, Edward) (Entered: 08/11/2010)
183 NOTICE OF APPEAL as to 171 Order, 180 Order by Quinnipiac Univ. Filing fee $ 455, receipt number B020150. (Lewis, D) (Entered: 08/16/2010)
184 ORDER REFERRING CASE to Magistrate Judge William I. Garﬁnkel for Settlement Conference. Signed by Judge Stefan R. Underhill on 08/16/2010. (Yaster, B.) (Entered: 08/16/2010)
185 Joint STIPULATION for Approval by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 08/18/2010)
186 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Status Conference set for 9/28/2010 at 11:00 AM in Chambers Room 411, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill. The parties shall notify chambers before the conference if any attorney wishes to participate by phone. (Yaster, B.) (Entered: 08/20/2010)
187 ORDER approving 185 Stipulation re brieﬁng schedule. Signed by Judge Stefan R. Underhill on 8/23/10. (Sbalbi, B.) (Entered: 08/23/2010)
Set/Reset Deadlines as to 181 MOTION for Attorney Fees. Responses due by 11/1/2010 (Lewis, D) (Entered: 08/24/2010)
188 TRANSCRIPT of Proceedings held on 6/11/10 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Pretrial Hearing. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 9/14/2010. Redacted Transcript Deadline set for 9/24/2010. Release of Transcript Restriction set for 11/22/2010. (Catucci, S.) (Entered: 08/24/2010)
189 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Pre-Settlement Conference set for September 22, 2010 @ 1:00 PM before Judge William I. Garﬁnkel. Counsel for the plaintiff shall initiate this call. Once all parties are on the line, please contact Chambers at (203)579-5593. A date for the settlement conference will be set during the telephone call. As the Court requires parties or their representatives with settlement authority to attend the settlement conference, counsel should obtain dates of unavailability from their clients over the next 160 days and have their own calendars available to aid in the scheduling. During the telephone call, counsel should be prepared to discuss what information needs to be exchanged and anything else that needs to be accomplished prior to the settlement conference for the discussions to be productive. This telephone conference will not be rescheduled based on requests from counsel. If counsel is not available at the scheduled time, please arrange for coverage by another lawyer who will have the necessary background knowledge to participate. (Sanders, C.) (Entered: 08/25/2010)
190 Index to Record on Appeal by Quinnipiac Univ re 183 Notice of Appeal, 171 Order, 44 Order on Motion to Strike, Order on Motion for Preliminary Injunction, Order on Motion to Preclude, Motion Hearing,,,, 149 Exhibit List, 145 Trial Memo, 69 Settlement Conference, 116 Afﬁdavit, 38 Transcript,, 36 Order on Motion for Judgment as a Matter

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of Law, Order on Motion for Preliminary Injunction, Motion Hearing,,, 97 Memorandum in Opposition to Motion, 48 Proposed Findings of Fact and Conclusions of Law, 131 Order on Motion for Leave to File Excess Pages, 1 Complaint, 139 Stipulation, 144 Protective Order, 159 Bench Trial - Held, 180 Order, 161 Bench Trial - Held, 163 Proposed Findings of Fact and Conclusions of Law, 165 Trial Memo, 173 Transcript,, 98 Order on Motion for Miscellaneous Relief, 34 Order on Motion for Disclosure, Order on Motion to Compel, Order on Motion for Preliminary Injunction, Motion Hearing,,,, 27 Memorandum in Support of Motion, 162 Proposed Findings of Fact and Conclusions of Law, 42 Proposed Findings of Fact and Conclusions of Law, 167 Response, 118 Afﬁdavit, 68 Memorandum in Opposition to Motion, 3 MOTION for Order to Show Cause, 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction, 172 Transcript,, 104 Answer to Amended Complaint, 107 MOTION to Certify Class, 35 MOTION for Judgment as a Matter of Law, 168 Exhibit List, 43 Trial Memo, 181 MOTION for Attorney Fees, 81 Transcript,, 31 Memorandum in Opposition to Motion, 58 Settlement Conference, 109 Afﬁdavit, 46 Exhibit List, 86 Transcript,, 47 Exhibit List, 129 Reply to Response to Motion, 150 Memorandum of Conference, 164 Bench Trial Completed, 156 Bench Trial - Begun, 178 Transcript,, 84 Transcript,, 45 Witness List, 51 Order on Motion for Preliminary Injunction, 9 Sealed Document, 137 Order on Motion for Order, 4 MOTION for Waiver of Security, 7 Sealed Document, 85 Transcript,, 176 Transcript,, 175 Transcript,, 143 Memorandum of Conference, 179 Transcript,, 123 Memorandum in Opposition to Motion, 132 Memorandum of Conference, 157 Exhibit List, 117 Afﬁdavit, 146 MOTION in Limine for an order precluding and elliminating evidence, 82 Transcript,, 13 Memorandum in Opposition to Motion, 174 Transcript,, 158 Order on Motion in Limine, Order on Motion to Appear, Bench Trial - Held,,, 151 Trial Memo, 40 Notice (Other), 32 Motion Hearing, 111 Afﬁdavit, 136 Joint MOTION for Approving Stipulation to Bifurcate Order, 101 Amended Complaint, 115 Afﬁdavit, 16 Order on Motion for TRO, Order on Motion for Order to Show Cause, Motion Hearing,,,,,, 94 MOTION for Court approval of proposed Schedule for pre-trial discovery (Exhibit A) and re-set trial date for July 2010 MOTION for Court approval of proposed Schedule for pre-trial discovery (Exhibit A) and re-set trial date for July 2010, 112 Transcript,, 92 Order, 74 Order on Motion to Dismiss, Order on Motion for Hearing, 141 Joint MOTION for Order Approving Stipulated Protective Order Order, 88 Transcript,, 41 Trial Memo, 182 Notice (Other), 22 Memorandum of Conference, 153 MOTION for Leave to Appear as Amicus Curiae Attorney John B. Hughes., 102 Exhibit, 72 MOTION to Withdraw Without Prejudice Its Motion Dismiss Complaint by Plaintiff Robin Sparks, 28 Trial Memo, 110 Afﬁdavit, 169 Witness List, 25 MOTION for Hearing re 23 MOTION to Dismiss Complaint by Plaintiffs Overdevest and Sparks, 26 MOTION to Preclude Testimony of Dr. Lopiano, 154 Exhibit, 91 Letter, 128 MOTION for Leave to File Excess Pages, 147 Memorandum in Support of Motion, 78 Report of Rule 26(f) Planning Meeting, 8 Sealed Document, 77 Notice, 130 Afﬁdavit, 108 Memorandum in Support of Motion, 103 Order on Motion for Extension of Time, 160 Trial Memo, 24 Memorandum in Support of Motion, 10 Sealed Document, 177 Transcript,, 23 MOTION to Dismiss Complaint by Plaintiffs Overdevest and Sparks, 140 Order, 29 Supplemental MOTION for Disclosure of Potential Witness, 152 MOTION in Limine Defendant's Notice of Motion in Limine, 33 Status Conference, 138 Order on Motion to Certify Class, 87 Transcript,, 83 Transcript,, 142 Order on Motion for Order, 37 MOTION to Strike Testimony of Germaine Fairchild, 39 Notice (Other), 96 Order on Motion for Miscellaneous Relief, 89 Scheduling Conference, 166 Trial Memo, 30 MOTION to Compel (Letter Re: Work Product Issue Discussed at Pretrial Conference) MOTION to Compel (Letter Re: Work Product Issue Discussed at Pretrial Conference), 14 Afﬁdavit, 100 Status Conference, 73 Order on Motion to Withdraw. For docket entries without a hyperlink, contact the court to arrange for the document(s) to be made available to you. (Attachments: # 1 Exhibit Certiﬁcate of Service of Edward Brill Certifying that on 8-26-

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10 he served the Index to the Record on Appeal Electronically.)(Brill, Edward) (Entered: 08/26/2010)

09/07/2010

191 Consent MOTION for Extension of Time until September 16, 2010 to Respond to Defendant's Proposed Compliance Plan 182 Notice (Other) by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Hernandez, Alex) (Entered: 09/07/2010)

09/09/2010 192 ORDER granting 191 Motion for Extension of Time to 9/16/10 to respond to 182 Notice. Signed by Judge Stefan R. Underhill on 9/9/10. (Sbalbi, B.) (Entered: 09/09/2010)

09/16/2010

193 RESPONSE re 182 Notice (Other) by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks Plaintiffs' Response to Defendant's Proposed Compliance Plan. (Orleans, Jonathan) (Entered: 09/16/2010)

09/22/2010

194 Minute Entry for proceedings held before Judge William I. Garﬁnkel: Telephone PreSettlement Conference held on 9/22/2010. 30 minutes (Sanders, C.) (Entered: 09/22/2010)

09/22/2010

195 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference set for October 27, 2010 @ 10:30 AM in Magistrate Courtroom, 4th Floor, Room 435, 915 Lafayette Blvd., Bridgeport, CT before Judge William I. Garﬁnkel. Counsel shall check in with Judge Garﬁnkel's chambers, room 429 prior to the conference. SETTLEMENT CONFERENCE ORDER ATTACHED FOR REVIEW. (Sanders, C.) (Entered: 09/22/2010)

09/27/2010

196 RESPONSE re 182 Notice (Other), 193 Response by Quinnipiac Univ REPLY IN SUPPORT of its Proposed Compliance Plan. (Attachments: # 1 Exhibit DECLARATION of JOHN McDONALD in Support of Quinnipiac's proposed Compliance Plan, # 2 Exhibit CERTIFICATE OF SERVICE of EDWARD A.BRILL certifying that on 9-27-10 Quinnipianc University's Reply in Support of its Proposed Compliance Plan will be sent by email to all parties via the court's electronic ﬁling system.)(Brill, Edward) (Entered: 09/27/2010)

09/28/2010 197 MEMORANDUM of Status Conference. Signed by Judge Stefan R. Underhill on 09/28/2010. (Yaster, B.) (Entered: 09/28/2010)

09/28/2010

Minute Entry for proceedings held before Judge Stefan R. Underhill: In Person Conference held on 9/28/2010. 50 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) Modiﬁed on 10/7/2010 to indicate in person conference (Sbalbi, B.). (Entered: 10/07/2010)

10/01/2010

198 MOTION for Extension of Time until October 15, 2010 (on Consent) to Serve and File the Time and Expense Records of Attorney Kristen Galles 181 MOTION for Attorney Fees by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 10/01/2010)

10/01/2010

199 AFFIDAVIT re 181 MOTION for Attorney Fees Signed By Jonathan B. Orleans ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Orleans, Jonathan) (Entered: 10/01/2010)

10/05/2010

200 ORDER granting 198 Motion for Extension of Time to 10/15/10 to serve and ﬁle expense records. Signed by Judge Stefan R. Underhill on 10/5/10. (Sbalbi, B.) (Entered: 10/05/2010)

10/14/2010 201 TRANSCRIPT of Proceedings held on 9/28/10 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Status Conference. NOTICE RE

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REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 11/4/2010. Redacted Transcript Deadline set for 11/14/2010. Release of Transcript Restriction set for 1/12/2011. (Catucci, S.) (Entered: 10/14/2010)
202 AFFIDAVIT re 181 MOTION for Attorney Fees Declaration of Kristen Galles in Support of Motion for Attorneys' Fees and Expenses Signed By Kristen Galles ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Attachments: # 1 Exhibit Exhibits A - E, # 2 Certiﬁcate of Service) (Orleans, Jonathan) (Entered: 10/15/2010)
203 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. At request of both counsel, settlement conference is rescheduled to November 12, 2010 @ 10:30 AM in Magistrate Courtroom, 4th Floor, Room 437, 915 Lafayette Blvd., Bridgeport, CT before Judge William I. Garﬁnkel. Counsel shall check in with Judge Garﬁnkel's chambers, room 429 prior to the conference. THE PREVIOUS ISSUED SETTLEMENT CONFERENCE ORDER 195 WILL REMAIN IN EFFECT. (Sanders, C.) (Entered: 10/20/2010)
204 Minute Entry for proceedings held before Judge William I. Garﬁnkel: Settlement Conference held on 11/12/2010. Case not settled. Counsel will contact Chambers when they are ready to schedule another settlement conference in this matter. Total Time: 7 hours and 30 minutes (Sanders, C.) (Entered: 11/15/2010)
205 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Follow-up Settlement Conference set for January 28, 2011 @11:00 AM in Magistrate Courtroom, 4th Floor, Room 437, 915 Lafayette Blvd., Bridgeport, CT before Judge William I. Garﬁnkel. Counsel shall check in with Judge Garﬁnkel's chambers prior to the conference. THE PREVIOUS ISSUED SETTLEMENT CONFERENCE ORDER 195 WILL REMAIN IN EFFECT. COUNSEL SHALL SEND TO CHAMBERS AN UPDATED EXPARTE BRIEF WITHIN FIVE BUSINESS DAYS PRIOR TO THE CONFERENCE. (Sanders, C.) (Entered: 11/30/2010)
206 ORDER of USCA as to 183 Notice of Appeal ﬁled by Quinnipiac Univ USCA Case Number 10-3302. The parties in this case have ﬁled a stipulation withdrawing this appeal pursuant to Local Rule 42.1. Each party has submitted a separate electronically signed counterpart reﬂecting the negotiated terms of the stipulation. (Lewis, D) (Entered: 12/01/2010)
207 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Follow-up settlement conference continued from January 28, 2010, is set for February 9, 2011 @ 11:00 AM in Magistrate Courtroom, 4th Floor, Room 437, 915 Lafayette Blvd., Bridgeport, CT before Judge William I. Garﬁnkel. Counsel shall check in with Judge Garﬁnkel's chambers, room 429 prior to the conference. (Sanders, C.) (Entered: 12/06/2010)
208 ORDER granting in part 146 Motion in Limine. Motion decided during pretrial conference held on 6/11/10. Signed by Judge Stefan R. Underhill on 6/11/10. (Sbalbi, B.) (Entered: 01/04/2011)

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209 Minute Entry for proceedings held before Judge William I. Garﬁnkel: Settlement Conference held on 1/28/2011. Further discussions continued to February 9, 2011 at 2:00PM. Total Time: 5 hours (Sanders, C.) (Entered: 01/28/2011)
210 ORDER of USCA as to 183 Notice of Appeal ﬁled by Quinnipiac Univ USCA Case Number 10-3302: The appeal is reinstated. (Lewis, D) (Entered: 02/03/2011)
211 Minute Entry for proceedings held before Judge William I. Garﬁnkel: Follow-up Settlement Conference held on 2/9/2011. Case not settled. No follow-up scheduled. Total Time: 4 hours (Sanders, C.) (Entered: 02/10/2011)
212 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 3/31/2011 at 1:30 PM before Judge Stefan R. Underhill. Counsel for plaintiff shall initiate phone call to chambers (203) 579-5714. (Sbalbi, B.) (Entered: 03/24/2011)
214 Minute Entry for proceedings held before Judge Stefan R. Underhill: Telephone Status Conference held on 3/31/2011. 20 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 04/05/2011)
213 MEMORANDUM of Telephone Conference held March 31, 2011. Signed by Judge Stefan R. Underhill on 04/01/2011. (Yaster, B.) (Entered: 04/01/2011)
Set Deadlines/Hearings: Status Report due by 7/1/2011 (Lewis, D) (Entered: 04/06/2011)
215 Letter from Jonathan B. Orleans Dated 6/30/11 Re: telephone conference on 3/31/11 (Lewis, D) (Entered: 07/13/2011)
216 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 9/7/2011 at 04:00 PM before Judge Stefan R. Underhill. The parties shall call chambers, (203) 579-5714, from a single telephone line. (Yaster, B.) (Entered: 08/02/2011)
217 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. The status conference scheduled for for 9/7/2011 at 04:00 PM will take place in person in Chambers Room 411, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill. (Yaster, B.) (Entered: 08/03/2011)
218 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Status Conference rescheduled for 9/9/2011 at 02:30 PM in Chambers Room 411, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill. (Yaster, B.) (Entered: 08/03/2011)
219 NOTICE of Appearance by David J. McGuire on behalf of Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks McGuire, David (McGuire, David) (Main Document 219 replaced on 8/16/2011) (Lewis, D). (Entered: 08/16/2011)
220 NOTICE of Appearance by Sandra J. Staub on behalf of Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks (Staub, Sandra) (Entered: 08/16/2011)
221 Docket Entry Correction re 219 Notice of Appearance, modiﬁed to correct pdf. (Lewis, D) (Entered: 08/16/2011)

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222 Minute Entry for proceedings held before Judge Stefan R. Underhill: Telephone Status Conference held on 9/9/2011. Total Time: 1 hour(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 09/22/2011)
223 TRANSCRIPT of Proceedings: Type of Hearing: Status Conference. Held on 9/9/11 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 10/24/2011. Redacted Transcript Deadline set for 11/3/2011. Release of Transcript Restriction set for 1/1/2012. (Catucci, S.) (Entered: 10/03/2011)
224 MOTION for Attorney(s) Andrew E. Rice to be Admitted Pro Hac Vice by Quinnipiac Univ. (Fazekas, J.) (Additional attachment(s) added on 4/3/2012: # 1 Afﬁdavit Supplemental) (Lewis, D). (Entered: 10/18/2011)
Filing fee received from Proskauer Rose LLP: $25.00, receipt number CTXB00001272. (Fazekas, J.) (Entered: 10/18/2011)
225 MOTION to Lift Injunction re 180 Order by Quinnipiac Univ.Responses due by 1/12/2012 (Attachments: # 1 Memorandum in Support of Defendant's Motion to Lift Injunction, # 2 Exhibit DECLARATION of MARK A. THOMPSON in Support of Quinnipiac's Motion to Lift Injunction, # 3 Exhibit Certiﬁcate of Service of Defendant's Notice of Motion to Lift Injunction, Memorandum of Law in Support of Motion to Lift Injunction and Declaration of Mark A. Thompson upon all parties via ECF on 12-22-11) (Brill, Edward) (Entered: 12/22/2011)
226 Memorandum in Opposition and In Response re 225 MOTION to Lift Injunction re 180 Order MOTION to Lift Injunction re 180 Order MOTION to Lift Injunction re 180 Order ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Hernandez, Alex) (Entered: 01/12/2012)
227 REPLY to Response to 225 MOTION to Lift Injunction re 180 Order MOTION to Lift Injunction re 180 Order MOTION to Lift Injunction re 180 Order Defendant's Reply Memorandum Regarding Scheduling of Motion to Lift Injunction ﬁled by Quinnipiac Univ. (Attachments: # 1 Exhibit Certiﬁcate of Service of Defendant's Reply Memorandum Regarding Scheduling of Motion to Lift Injunction by e-mail to all parties by the Court's electronic ﬁling system on 1-13-12)(Brill, Edward) (Entered: 01/13/2012)
228 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 1/18/2012 at 4:30 PM before Judge Stefan R. Underhill. Plaintiffs' counsel will initiate the call. (Hungerford, A.) (Entered: 01/17/2012)
229 Minute Entry for proceedings held before Judge Stefan R. Underhill: Scheduling Conference held on 1/18/2012. Motion hearing scheduled to begin on June 11, 2012 and potentially continue through June 14, 2012. Total Time: 1 hour(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 01/19/2012)

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230 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION., Set Deadlines/Hearings: Motion Hearing set for 6/11/2012 09:00 AM in Courtroom One, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill (Sbalbi, B.) (Entered: 01/19/2012)
231 TRANSCRIPT of Proceedings: Type of Hearing: Telephone Conference. Held on 1/18/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 3/6/2012. Redacted Transcript Deadline set for 3/16/2012. Release of Transcript Restriction set for 5/14/2012. (Catucci, S.) (Entered: 02/14/2012)
232 MOTION to Compel Quinnipiac University to Produce Documents in Response to Plaintiffs' Third and Fourth Requests for Production of Documents by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks.Responses due by 4/23/2012 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D1, # 6 Exhibit D2, # 7 Exhibit D3, # 8 Afﬁdavit of Sandra Staub)(Orleans, Jonathan) (Entered: 04/02/2012)
233 AFFIDAVIT re 225 MOTION to Lift Injunction re 180 Order MOTION to Lift Injunction re 180 Order MOTION to Lift Injunction re 180 Order Supplemental Declaration Signed By Mark A. Thompson, PhD ﬁled by Quinnipiac Univ. (Attachments: # 1 Certiﬁcate of Service)(Brill, Edward) (Entered: 04/03/2012)
234 ORDER granting 224 Motion for Andrew Rice to Appear pro hac vice Certiﬁcate of Good Standing due by 6/2/2012. Signed by Clerk on 4/3/2012. (Lewis, D) (Entered: 04/03/2012)
235 Docket Entry Correction re 224 MOTION for Attorney(s) Andrew E. Rice to be Admitted Pro Hac Vice, modiﬁed to add pdf of supplemental corrected afﬁdavit. (Lewis, D) (Entered: 04/03/2012)
236 MOTION for Jonathan Bardavid to Withdraw as Attorney by Quinnipiac Univ. (Bardavid, Jonathan) (Entered: 04/04/2012)
237 CERTIFICATE OF GOOD STANDING re 224 MOTION for Attorney(s) Andrew E. Rice to be Admitted Pro Hac Vice by Quinnipiac Univ. (Rice, Andrew) (Entered: 04/04/2012)
238 NOTICE of Appearance by Andrew E. Rice on behalf of Quinnipiac Univ (Rice, Andrew) (Entered: 04/04/2012)
239 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 4/24/2012 at 03:00 PM before Judge Stefan R. Underhill. Plaintiffs' counsel shall initiate the call. (Carter, J.) (Entered: 04/05/2012)

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240 ORDER granting 236 Motion to Withdraw as Attorney. Attorney Jonathan Bardavid terminated. Signed by Judge Stefan R. Underhill on 4/09/12. (Sbalbi, B.) (Entered: 04/09/2012)

04/09/2012

241 Motion for all parties to be excused from attendance at depositions and pre-trial conferences by Quinnipiac Univ Letter dated 4/9/2012 from Edward A. Brill to Judge Underhill (Brill, Edward) Modiﬁed on 4/10/2012 to correct motion event (Lewis, D). (Entered: 04/09/2012)

04/10/2012

242 ORDER re 241 Notice ﬁled by Quinnipiac Univ. Treating this Notice as a motion to excuse attendance of local counsel, the motion is GRANTED. Signed by Judge Stefan R. Underhill on 4/10/12. (Sbalbi, B.) (Entered: 04/10/2012)

04/18/2012 243 CERTIFICATE OF SERVICE by Quinnipiac Univ re 237 Certiﬁcate of Good Standing (Rice, Andrew) (Entered: 04/18/2012)

04/20/2012

244 Memorandum in Opposition Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion to Compel re 232 MOTION to Compel Quinnipiac University to Produce Documents in Response to Plaintiffs' Third and Fourth Requests for Production of Documents ﬁled by Quinnipiac Univ. (Attachments: # 1 Declaration of Andrew E. Rice in Opposition to Plaintiffs' Motion to Compel, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Declaration of Lamar Daniel, # 10 Exhibit A, # 11 Exhibit B, # 12 Exhibit C, # 13 Certiﬁcate of Service)(Brill, Edward) (Entered: 04/20/2012)

04/23/2012

245 MOTION to Continue Plaintiffs' Motion for Continuance of Hearing (re Motion to Lift Injunction) by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 04/23/2012)

04/24/2012

246 AFFIDAVIT re 245 MOTION to Continue Plaintiffs' Motion for Continuance of Hearing (re Motion to Lift Injunction), 232 MOTION to Compel Quinnipiac University to Produce Documents in Response to Plaintiffs' Third and Fourth Requests for Production of Documents [Declaration of Kristen Galles] Signed By Kristen Galles ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 04/24/2012)

04/24/2012

247 Minute Entry. Proceedings held before Judge Stefan R. Underhill: Motion Hearing held on 4/24/2012 re 245 MOTION to Continue Hearing (re Motion to Lift Injunction), 232 MOTION to Compel Production of Documents. Oral ruling issued by Judge Underhill taking under advisement 232 Motion to Compel; denying 245 Motion to Continue. Total Time: 1 hour(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 04/25/2012)

04/25/2012

248 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION., Set Deadlines/Hearings: Bench Trial set for 11/5/2012 09:00 AM in Courtroom One, 915 Lafayette Blvd., Bridgeport, CT before Judge Stefan R. Underhill (Sbalbi, B.) (Entered: 04/25/2012)

05/08/2012 249 PRETRIAL ORDER. Pretrial Memorandum is due by 6/1/2012. Signed by Judge Stefan R. Underhill on 5/8/2012. (Carter, J.) (Entered: 05/08/2012)

05/08/2012

Set Deadlines/Hearings: Trial Brief due by 6/1/2012 (Lewis, D) (Entered: 05/09/2012)

05/17/2012

250 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 5/18/2012 at 5:30 PM before Judge Stefan R. Underhill. (Sbalbi, B.) (Entered: 05/17/2012)

05/17/2012 251 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE

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PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference rescheduled for 5/18/2012 at 12:00 PM before Judge Stefan R. Underhill. Defendant shall initiate the call to chambers (203-579-5714) with all parties on the line. (Carter, J.) (Entered: 05/17/2012)
Minute Entry for proceedings held before Judge Stefan R. Underhill: Telephone Conference re discovery held on 5/18/2012. 15 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 06/11/2012)
252 LETTER MOTION for Telephone Conference by Quinnipiac Univ. (Oliver, T.) (Entered: 05/22/2012)
253 MOTION in Limine to Exclude Portions of Proposed Expert Testimony of Dr. Donna Lopiano by Quinnipiac Univ.Responses due by 6/12/2012 (Attachments: # 1 Memorandum of Law in Support of Defendant's Motion in Limine to Exclude Portions of Proposed Expert Testimony of Dr. Donna Lopiano, # 2 Certiﬁcate of Service)(Brill, Edward) (Entered: 05/22/2012)
254 MOTION to excuse local counsel for Defendant from attendance of trial and pre-trial conferences with Certiﬁcate of Service by Quinnipiac Univ.Responses due by 6/13/2012 (Brill, Edward) (Entered: 05/23/2012)
255 MEMORANDUM of telephone Conference held on 5/18/12. Signed by Judge Stefan R. Underhill on 5/25/12. (Sbalbi, B.) (Entered: 05/29/2012)
256 Consent MOTION for Extension of Time until June 11, 2012 or a date to be determined by the Court at the Pretrial Conference to File Trial Briefs 225 MOTION to Lift Injunction re 180 Order MOTION to Lift Injunction re 180 Order MOTION to Lift Injunction re 180 Order by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Orleans, Jonathan) (Entered: 05/30/2012)
257 ORDER granting 254 Motion to be excused from court attendance. Signed by Judge Stefan R. Underhill on 5/30/12. (Sbalbi, B.) (Entered: 05/30/2012)
258 ORDER granting 256 Motion for Extension of Time. The parties shall ﬁle as much of the Joint Pretrial Memorandum as possible by June 1, 2012. Trial briefs shall be due by June 9, 2012. Signed by Judge Stefan R. Underhill on 5/31/2012. (Carter, J.) (Entered: 05/31/2012)
Set Deadlines/Hearings: Trial Brief due by 6/9/2012 (Lewis, D) (Entered: 06/07/2012)
259 Memorandum in Support re 253 MOTION in Limine to Exclude Portions of Proposed Expert Testimony of Dr. Donna Lopiano Supplemental Memorandum of Law in Support of Defendant's Motion in Limine to Exclude Portions of Proposed Expert Testimony of Dr. Donna Lopiano based upon her 5-29-12 Deposition Testimony ﬁled by Quinnipiac Univ. (Attachments: # 1 Exhibit Certiﬁcate of Service of Supplemental Memorandum of Law in Support of Defendant's Motion in Limine upon all parties by operation of the Court's ECF system on 6-1-12)(Brill, Edward) (Entered: 06/01/2012)
260 Proposed Pretrial Order Joint Pre-Trial Order by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, Logan Riker, Robin Lamott Sparks. (Brill, Edward) (Entered: 06/01/2012)
261 Memorandum in Opposition re 253 MOTION in Limine to Exclude Portions of Proposed Expert Testimony of Dr. Donna Lopiano ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Hernandez, Alex) (Entered: 06/04/2012)

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262 Minute Entry. Proceedings held before Judge Stefan R. Underhill: Pretrial Conference held on 6/4/2012. Oral ruling issued by Judge Underhill ﬁnding as moot 252 Motion for Conference; granting in part and denying in part 253 Motion in Limine for the reasons stated on the record. Total Time: 1 hour(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 06/04/2012)
263 TRANSCRIPT of Proceedings: Type of Hearing: Motion Hearing. Held on 4/24/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 6/29/2012. Redacted Transcript Deadline set for 7/9/2012. Release of Transcript Restriction set for 9/6/2012. (Catucci, S.) (Entered: 06/08/2012)
264 TRANSCRIPT of Proceedings: Type of Hearing: Pretrial Conference. Held on 6/4/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 6/29/2012. Redacted Transcript Deadline set for 7/9/2012. Release of Transcript Restriction set for 9/6/2012. (Catucci, S.) (Entered: 06/08/2012)
265 TRIAL MEMO Defendant's Trial Brief by Quinnipiac Univ. (Attachments: # 1 Exhibit Certiﬁcate of Service of Defendant's Trial Brief to all parties by the Court's electronic ﬁling system on 6-8-12)(Brill, Edward) (Entered: 06/08/2012)
266 TRIAL MEMO RE DEFENDANT'S MOTION TO LIFT INJUNCTION by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker Estimated trial time 4 days. (Orleans, Jonathan) (Entered: 06/09/2012)
267 EXHIBIT B to Parties' Joint Pre-Trial Memorandum, Plaintiffs' Exhibit List by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks re 260 Proposed Pretrial Order. (Orleans, Jonathan) (Entered: 06/11/2012)
268 Proposed Findings of Fact and Conclusions of Law by Quinnipiac Univ. (Brill, Edward) (Entered: 06/11/2012)
269 CERTIFICATE OF SERVICE by Quinnipiac Univ re 268 Proposed Findings of Fact and Conclusions of Law (Brill, Edward) (Entered: 06/11/2012)
270 Minute Entry for proceedings held before Judge Stefan R. Underhill: Bench Trial held on 6/11/2012. Total Time: 5 hours and 40 minutes(Court Reporter Susan Catucci.) (Sbalbi,

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B.) (Entered: 06/12/2012)

06/12/2012

271 Minute Entry for proceedings held before Judge Stefan R. Underhill: Bench Trial held on 6/12/2012. Bench Trial Continued Until 6/13/12. Total Time: 7 hours and 45 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 06/13/2012)

06/13/2012

272 Minute Entry for proceedings held before Judge Stefan R. Underhill: Bench Trial held on 6/13/2012. Bench Trial Continued Until 6/14/12. Total Time: 4 hours and 35 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 06/14/2012)

06/14/2012

273 Minute Entry for proceedings held before Judge Stefan R. Underhill: Bench Trial held on 6/14/2012. Bench Trial Continued Until 6/28/12. Total Time: 5 hours and 50 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 06/18/2012)

06/25/2012

274 Supplemental STIPULATION OF FACT by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, Logan Riker. (Orleans, Jonathan) (Entered: 06/25/2012)

06/27/2012 275 TRIAL MEMO Defendant's Post-Trial Brief by Quinnipiac Univ. (Brill, Edward) (Entered: 06/27/2012)

06/27/2012 276 CERTIFICATE OF SERVICE by Quinnipiac Univ re 275 Trial Memo Defendant's PostTrial Brief was ﬁled electronically. (Brill, Edward) (Entered: 06/27/2012)

06/27/2012

277 Memorandum in Opposition [Post-Hearing Memorandum] re 225 MOTION to Lift Injunction re 180 Order MOTION to Lift Injunction re 180 Order MOTION to Lift Injunction re 180 Order ﬁled by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker. (Orleans, Jonathan) (Entered: 06/27/2012)

06/28/2012

279 Minute Entry for proceedings held before Judge Stefan R. Underhill: Bench Trial completed on 6/28/2012. Total Time: 2 hours and 15 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 07/10/2012)

06/28/2012 280 Marked Joint Exhibit List. (Sbalbi, B.) (Entered: 07/10/2012)

06/28/2012 281 Marked Witness List. (Sbalbi, B.) (Entered: 07/10/2012)

06/28/2012 282 Marked Court Exhibit List. (Sbalbi, B.) (Entered: 07/10/2012)

07/05/2012 278 NOTICE of Appearance by Lewis H. Chimes on behalf of Robin Lamott Sparks (Chimes, Lewis) (Entered: 07/05/2012)

07/12/2012

283 STIPULATION Regarding Correction to Trial Transcript by Quinnipiac Univ, Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, Robin Lamott Sparks, Logan Riker . (Brill, Edward) Modiﬁed on 7/13/2012 (Oliver, T.). (Entered: 07/12/2012)

07/13/2012

Docket Entry Correction re 283 Stipulation MODIFIED TO ADD PLAINTIFFS AS FILERS TO THE DOCKET ENTRY (Oliver, T.) (Entered: 07/13/2012)

07/19/2012

284 STIPULATION of Dismissal of Robin Lamott Sparks Stipulation of Dismissal of the Claims of Robin Lamott Sparks attached Certiﬁcate of Service by Quinnipiac Univ, Robin Lamott Sparks. (Friedfel, Susan) (Entered: 07/19/2012)

07/20/2012

285 Joint MOTION to Continue Trial Scheduled for November 5, 2012 by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, Logan Riker. (Orleans, Jonathan) (Entered: 07/20/2012)

07/24/2012 286 ORDER granting 285 Motion to Continue. Trial will begin on March 11, 2013. Signed by Judge Stefan R. Underhill on 7/24/2012. (Carter, J.) (Entered: 07/24/2012)

08/07/2012 287 TRANSCRIPT of Proceedings: Type of Hearing: Closing Arguments. Held on 6/28/12

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before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 8/28/2012. Redacted Transcript Deadline set for 9/7/2012. Release of Transcript Restriction set for 11/5/2012. (Catucci, S.) (Entered: 08/07/2012)

08/09/2012

288 SUPPLEMENTAL MEMO Post-Hearing Memorandum by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker, Robin Lamott Sparks. (Hernandez, Alex) Modiﬁed on 8/10/2012 (Blough, B.). (Entered: 08/09/2012)

08/10/2012

289 RESPONSE re 288 Trial Memo Defendant's Memorandum in Response to Plaintiffs' Supplemental Post-Hearing Memorandum ﬁled by Quinnipiac Univ. (Attachments: # 1 Certiﬁcate of Service of Defendant's Memorandum in Response to Plaintiffs' Supplemental Post-Hearing Memorandum upon all parties on 8-10-12 via ECF system) (Brill, Edward) (Entered: 08/10/2012)

11/13/2012

290 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial - Morning Session 1. Held on 6/11/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/4/2012. Redacted Transcript Deadline set for 12/14/2012. Release of Transcript Restriction set for 2/11/2013. (Catucci, S.) (Entered: 11/13/2012)

11/13/2012

291 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial - Morning Session 2. Held on 6/11/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/4/2012. Redacted Transcript Deadline set for 12/14/2012. Release of Transcript Restriction set for 2/11/2013. (Catucci, S.) (Entered: 11/13/2012)

11/13/2012

292 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial - Afternoon Session. Held on 6/11/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci.

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IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/4/2012. Redacted Transcript Deadline set for 12/14/2012. Release of Transcript Restriction set for 2/11/2013. (Catucci, S.) (Entered: 11/13/2012)
293 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial - Morning Session. Held on 6/12/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/4/2012. Redacted Transcript Deadline set for 12/14/2012. Release of Transcript Restriction set for 2/11/2013. (Catucci, S.) (Entered: 11/13/2012)
294 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial- Afternoon Session. Held on 6/12/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/4/2012. Redacted Transcript Deadline set for 12/14/2012. Release of Transcript Restriction set for 2/11/2013. (Catucci, S.) (Entered: 11/13/2012)
295 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial - Morning Session 1. Held on 6/13/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/17/2012. Redacted Transcript Deadline

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set for 12/27/2012. Release of Transcript Restriction set for 2/24/2013. (Catucci, S.) (Entered: 11/26/2012)

11/26/2012

296 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial - Morning Session 2. Held on 6/13/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/17/2012. Redacted Transcript Deadline set for 12/27/2012. Release of Transcript Restriction set for 2/24/2013. (Catucci, S.) (Entered: 11/26/2012)

11/26/2012

297 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial - Afternoon Session. Held on 6/13/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/17/2012. Redacted Transcript Deadline set for 12/27/2012. Release of Transcript Restriction set for 2/24/2013. (Catucci, S.) (Entered: 11/26/2012)

11/26/2012

298 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial - Morning Session 1. Held on 6/14/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/17/2012. Redacted Transcript Deadline set for 12/27/2012. Release of Transcript Restriction set for 2/24/2013. (Catucci, S.) (Entered: 11/26/2012)

11/26/2012

299 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial - Morning Session 2. Held on 6/14/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or

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purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/17/2012. Redacted Transcript Deadline set for 12/27/2012. Release of Transcript Restriction set for 2/24/2013. (Catucci, S.) (Entered: 11/26/2012)
300 TRANSCRIPT of Proceedings: Type of Hearing: Bench Trial - Afternoon Session. Held on 6/14/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/17/2012. Redacted Transcript Deadline set for 12/27/2012. Release of Transcript Restriction set for 2/24/2013. (Catucci, S.) (Entered: 11/26/2012)
301 TRANSCRIPT of Proceedings: Type of Hearing: Closing Arguments. Held on 6/28/12 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 12/17/2012. Redacted Transcript Deadline set for 12/27/2012. Release of Transcript Restriction set for 2/24/2013. (Catucci, S.) (Entered: 11/26/2012)
302 Joint MOTION to Continue Trial by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, Logan Riker. (Orleans, Jonathan) Modiﬁed on 2/1/2013 (Oliver, T.). (Entered: 01/31/2013)
Docket Entry Correction re 302 Joint MOTION to Continue Trial MODIFIED TO REMOVE DEFENDANT ROBIN LAMOTT SPARKS AS A FILER FROM THE DOCKET ENTRY (Oliver, T.) (Entered: 02/01/2013)
303 ORDER granting 302 Motion to Continue trial. Counsel should jointly contact chambers to schedule a status conference for a mutually convenient date. Signed by Judge Stefan R. Underhill on 2/4/13. (Sbalbi, B.) (Entered: 02/04/2013)
304 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Status Conference set for 3/5/2013 at 11:00 AM before Judge Stefan R. Underhill. (Carter, J.) (Entered: 02/15/2013)
305 ORDER denying 225 Motion to Lift Injunction. Signed by Judge Stefan R. Underhill on 3/4/2013. (Carter, J.) (Entered: 03/04/2013)
306 Minute Entry for proceedings held before Judge Stefan R. Underhill: Telephone Status

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Conference held on 3/5/2013. 10 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 03/07/2013)
307 Joint MOTION for Order (1) Preliminarily Approving Consent Decree; (2) Authorizing Distribution of Notice of Settlement; and (3) Setting a Schedule for Fairness Hearing and Final Approval Order by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Quinnipiac Univ, Logan Riker. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Memorandum in Support, # 4 Declaration of Jonathan B. Orleans)(Orleans, Jonathan) (Entered: 04/26/2013)
308 ORDER granting 307 Joint MOTION for Order (1) Preliminarily Approving Consent Decree; (2) Authorizing Distribution of Notice of Settlement; and (3) Setting a Schedule for Fairness Hearing and Final Approval Order. The defendant shall transmit notice by 5/6/2013. Objections must be received by 6/5/2013. The parties shall ﬁle any additional submissions by 6/17/2013. The Fairness Hearing is scheduled for 6/20/2013. Signed by Judge Stefan R. Underhill on 4/29/2013. (Carter, J.) (Entered: 04/29/2013)
309 MOTION to Approve Consent Judgment Plaintiffs' Motion for Final Order Approving Proposed Consent Decree by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker. (Attachments: # 1 Afﬁdavit Declaration of Mark Thompson, # 2 Text of Proposed Order Proposed Order, # 3 Memorandum in Support Memorandum of Law in Support of Motion for Final Approval of Consent Decree)(Orleans, Jonathan) (Entered: 06/17/2013)
310 Memorandum in Support re 309 MOTION to Approve Consent Judgment Plaintiffs' Motion for Final Order Approving Proposed Consent Decree ﬁled by Quinnipiac Univ. (Brill, Edward) (Entered: 06/17/2013)
311 ORDER granting 309 Motion to Approve Consent Decree. Signed by Judge Stefan R. Underhill on 6/20/2013. (Carter, J.) (Entered: 06/20/2013)
312 Minute Entry. Proceedings held before Judge Stefan R. Underhill: Motion Hearing held on 6/20/2013 re 309 MOTION to Approve Consent Judgment Plaintiffs' Motion for Final Order Approving Proposed Consent Decree. Oral ruling issued by Judge Underhill approving Consent Judgment. 40 minutes(Court Reporter Susan Catucci.) (Sbalbi, B.) (Entered: 06/24/2013)
313 TRANSCRIPT of Proceedings: Type of Hearing: Fairness Hearing. Held on 6/20/13 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identiﬁer information from the transcript, a party must electronically ﬁle a Notice of Intent to Request Redaction with the Clerk's Ofﬁce within seven (7) calendar days of this date. If no such Notice is ﬁled, the court will assume redaction of personal identiﬁers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 7/31/2013. Redacted Transcript Deadline set for 8/10/2013. Release of Transcript Restriction set for 10/8/2013. (Catucci, S.) (Entered: 07/10/2013)
314 STIPULATION of Dismissal of the Individual Claims of Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, and Logan Riker by Quinnipiac Univ. (Friedfel, Susan) (Entered: 10/04/2013)
315 MOTION for Extension of Time by Stephanie Biediger, Kristen Corinaldesi, Kayla

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Lawler, Erin Overdevest, Quinnipiac Univ, L. R., Lesley Riker, Logan Riker. (Staub, Sandra) (Entered: 12/13/2013)
316 NOTICE by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker re 315 MOTION for Extension of Time of corrected certiﬁcate of service (Staub, Sandra) (Entered: 12/17/2013)
317 ORDER granting 315 Motion for Extension of Time. Signed by Judge Stefan R. Underhill on 12/18/2013. (Pannu, C.) (Entered: 12/18/2013)
318 Referee's Baseline Review and Initial Findings and Recommendations. (Sbalbi, B.) (Entered: 04/22/2014)
319 MOTION for Extension of Time to ﬁle ﬁrst Referee's Annual Report until 6/30/14. (Sbalbi, B.) (Entered: 06/16/2014)
320 ORDER granting 319 Motion for Extension of Time to 6/30/14 to ﬁle ﬁrst Referee's Annual Report. Signed by Judge Stefan R. Underhill on 6/16/14. (Sbalbi, B.) (Entered: 06/16/2014)
321 Referee's First Annual Report. (Pannu, C.) (Entered: 07/11/2014)
322 MOTION for Disclosure by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker. (Staub, Sandra) (Entered: 01/06/2015)
323 First MOTION for Extension of Time to File Response/Reply First Unopposed Motion for Extension of Time to Oppose Plaintiffs' Motion for Class Contact Information as to 322 MOTION for Disclosure until 1/29/15 by Quinnipiac Univ. (Friedfel, Susan) (Entered: 01/26/2015)
324 ORDER granting 323 Motion for Extension of Time to File Response to 322 MOTION for Disclosure: Responses due by 1/29/2015. Signed by Judge Stefan R. Underhill on 1/27/2015. (Pannu, C.) (Entered: 01/27/2015)
325 Set/Reset Deadlines regarding 322 MOTION for Disclosure: Responses due by 1/29/2015. (Pannu, C.) (Entered: 01/27/2015)
326 Letter from Edward A. Brill dated 1/30/2015 regarding 322 Motion for Disclosure. (Pannu, C.) (Entered: 01/30/2015)
327 ORDER granting 322 Motion for Disclosure. Signed by Judge Stefan R. Underhill on 1/30/2015. (Pannu, C.) (Entered: 01/30/2015)
328 MOTION for Sandra J. Staub to Withdraw as Attorney by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, L. R., Lesley Riker, Logan Riker, Robin Lamott Sparks. (Staub, Sandra) (Entered: 02/24/2015)
329 ORDER granting 328 Motion to Withdraw as Attorney: Attorneys Alex V. Hernandez and Sandra J. Staub terminated. Signed by Judge Stefan R. Underhill on 3/02/2015. (Pannu, C.) (Entered: 03/02/2015)
330 Joint MOTION Modiﬁcation of Consent Decree by Quinnipiac Univ.Responses due by 5/6/2015 (Friedfel, Susan) (Entered: 04/15/2015)
331 ORDER granting 330 Joint Motion for Modiﬁcation of the Consent Decree. The referee's annual report shall be ﬁled by July 17, 2015. Signed by Judge Stefan R. Underhill on 4/16/2015. (Pannu, C.) (Entered: 04/16/2015)
332 Second STATUS REPORT of Referee by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker. (Orleans, Jonathan) (Entered: 11/20/2015)

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333 Third STATUS REPORT of Referee by Stephanie Biediger, Kristen Corinaldesi, Kayla Lawler, Erin Overdevest, Logan Riker. (Oliver, T.) (Entered: 07/27/2016)
334 Minute Entry for proceedings held before Judge Stefan R. Underhill: Telephone Status Conference held on 9/15/2016. Total Time: 0 hours and 35 minutes. (Buttrick, A.) (Entered: 09/15/2016)
335 MEMORANDUM of Telephone Status Conference and ORDER. Signed by Judge Stefan R. Underhill on 9/16/2016. (Buttrick, A.) (Entered: 09/16/2016)
336 MOTION for Andrew E. Rice to Withdraw as Attorney by Quinnipiac Univ. (Rice, Andrew) (Entered: 10/06/2016)
337 ORDER granting 336 Motion to Withdraw as Attorney. Attorney Andrew E. Rice terminated. Signed by Judge Stefan R. Underhill on 10/11/2016. (Buttrick, A.) (Entered: 10/11/2016)

PACER Service Center

Transaction Receipt

11/04/2017 17:06:39

PACER Login:

hs0328:2563377:0 Client Code:

Description: Docket Report

Search Criteria:

Billable Pages: 30

Cost:

3:09-cv-00621SRU
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 10-3302-cv Biediger v. Quinnipiac Univ.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2011 (Argued: January 31, 2012 Decided: August 7, 2012)
Docket No. 10-3302-cv

STEPHANIE BIEDIGER, KAYLA LAWLER, ERIN OVERDEVEST, KRISTEN CORINALDESI, LOGAN RIKER, individually and on behalf of all others similarly situated, ROBIN L.
SPARKS, individually,

Plaintiffs-Appellees,

—v.—

QUINNIPIAC UNIVERSITY,

Defendant-Appellant.* _________________

Before:

WINTER, RAGGI, and CHIN, Circuit Judges.
______

Appeal from a permanent injunction issued by the United States District Court for the

District of Connecticut (Stefan R. Underhill, Judge) after a bench trial at which Quinnipiac

University was found to have violated Title IX of the Education Am endments of 1972 by

failing to afford equal participation opportunities in varsity sports to female students.

AFFIRMED.

* The Clerk of Court is directed to amend the official caption as shown above. 1

KRISTEN GALLES, Equity Legal, Alexandria, Virginia (Jonathan B. Orleans, Alex V. Hernandez, Pullman & Comley, LLC, Bridgeport, Connecticut; David McGuire, Sandra J. Staub, ACLU Foundation of Connecticut, Hartford, Connecticut; Lenora M. Lapidus, Galen Sherwin, Wom en’s Rights Project, American Civil Liberties Union Foundation, New York, New York, on the brief), for Plaintiffs-Appellees.
EDWARD A. BRILL (Susan D. Friedfel, Rebecca L. Berkebile, on the brief), Proskauer Rose LLP, New York, New York, for Defendant-Appellant.
Dennis J. Dimsey, Holly A. Thomas, Attorneys, Thomas E. Perez, Assistant Attorney General, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for Amicus Curiae United States of America, in support of Plaintiffs-Appellees.
Lauren B. Fletcher, Craig E. Davis, Jasm ine S. McGhee, Wilm er Cutler Pickering Hale and Dorr LLP, Boston, Massachuse tts; Fatima Goss Graves, Dina R. Lassow, Neena K. Chaudhry, National Wom en’s Law Cente r, Washington, D.C., for Amici CuriaeNational Women’s Law Center; American Association of University Women; Asian American Justice Center; Business and Professional Wom en’s Foundation; California Wom en’s Law Center; Connecticut Women’s Education and Legal Fund; Fem inist Majority Foundation; Legal Aid Society–Em ployment Law Center; Legal Voice; National Association for Girls and Women in Sport; National Association of Commissions for Women; National Association of Social Workers, National and Connecticut Chapter; National Counc il of Jewish Wom en; National Council of La Raza; National Education Association; National Partnership for Women & Fam ilies; Sargent Shriver National Center on Poverty Law; Southwest Women’s Law Center; Wom en’s Law Center of Maryland; Women’s Law Project; and Wom en’s Sports Foundation, in support of Plaintiffs-Appellees.
Lawrence J. Joseph, Esq., Washington, D.C., for Amicus Curiae Eagle Forum Education & Legal Defense Fund, Inc., in support of DefendantAppellant.
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REENA RAGGI, Circuit Judge: Quinnipiac University appeals pursuant to 28 U.S.C. § 1292(a)(1) froma permanent
injunction ordered on July 22, 2010, by the United States District Court for the Distric t of Connecticut (Stefan R. Underhill, Judge), after a bench trial at which Quinnipiac was found to have violated Title IX of the Education Amendments of 1972 (“Title IX”) by failing to afford equal participation opportunities in varsity sports to female students. See Biediger v. Quinnipiac Univ., 728 F. Supp. 2d 62 (D. Conn. 2010). Quinnipiac argues that the injunction, which prohibits any such future discrimination, should be vacated because it is based on a Title IX ruling infected by errors in counting the varsity athletic participation opportunities afforded Q uinnipiac’s female students in the 2009–10 school year. Specifically, Quinnipiac faults the district court for excluding from its count of the total athletic participation opportunities afforded female students: (1) 11 roster positions on the women’s indoor and outdoor track and field team s, held by m embers of Quinnipiac’s women’s cross-country team who were required to join the track team s even though they were unable to compete in 2009–10 because they were injured or “red-shirted”;1 and (2) all 30 roster positions on Quinnipiac’s nascent women’s competitive cheerleading team, based
1 An athlete is “red-shirted” when he or she takes advantage of a National Collegiate Athletic Association (“NCAA”) regulation permitting the athlete to remain on a teambut not to compete for a year without losing a year of athletic eligibility. An athlete may red-shirt because of injury or to conserve a year’s eligibility while practicing and im proving skills. See Biediger v. Quinnipiac Univ., 728 F. Supp. 2d at 67 n.2 (citing 2009–10 NCAA Division I Manual § 14.2.1 (requiring Division I athletes to complete four years of eligibility within five years)).
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on a finding that the team did not afford the athletic participation opportunities of a varsity sport. Quinnipiac further contends that, evenif these 41 roster positions should not count as varsity athletic participation opportunities for women, the district court erred in concluding that (3) the resulting 3.62% di sparity between the percentage of all participation opportunities in varsity sports afforded fem ale students (58.25%) and the per centage of enrolled female undergraduates (61.87%) established a Title IX violation warranting the challenged injunctive relief.
We identify no m erit in these argum ents, and we affirm the challenged injunction substantially for the reasons stated by the dist rict court in its com prehensive and well reasoned opinion. I. Background
A. Quinnipiac’s Decision To Eliminate Women’s Volleyball Prompts This Title IX Action
This lawsuit has its origins in Quinnipiac’s March 2009 announcem ent that in the 2009–10 academic year, it would eliminate its varsity sports teams for women’s volleyball, men’s golf, and men’s outdoor track and field, while simultaneously creating a new varsity sports team for women’s competitive cheerleading. Plaintiffs, five Quinnipiac women’s volleyball players and their coach, Robin Sparks, filed this action in April 2009, charging the university with violating Title IX by denying wom en equal varsity athletic participation opportunities, and seeking aninjunction that, among other things, prevented Quinnipiac from eliminating its women’s volleyball team. After a hearing, the district court prelim inarily
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enjoined Quinnipiac from withdrawing support from its volleyball team , finding that Quinnipiac systematically and artificially increased women’s teams’ rosters and decreased men’s teams’ rosters to achieve the appearance of Title IX com pliance. See Biediger v. Quinnipiac Univ., 616 F. Supp. 2d 277 (D. Conn. 2009). The district court subsequently certified a plaintiff class of all present and future female Quinnipiac students who had been or would be harmed by the alleged Title IX discrimination and sought injunctive relief. See Biediger v. Quinnipiac Univ., No. 09-cv-621 (SRU), 2010 WL 2017773 (D. Conn. May 20, 2010). In June 2010, the distric t court conducted a bench trial on plaintiffs’ claim of disproportionate allocation of athletic participation opportunities and, finding in their favor, granted permanent injunctive relief.2
B. Statutory and Regulatory Background To discuss the district court’s challenged ruling further, we must briefly review certain controlling law and regulations. Title IX provides, in relevant part, that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Although the statutory language m akes no mention of athletics programs, the former Department of Health, Education and Welfare (“HEW”) and
2 Plaintiffs agreed to sever their other theories for Title IX relief, including Coach Sparks’s individual retaliation claim, all of which remain pending in the district court.
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its successor agency, the Department of Education (“DOE”), have interpreted Title IX to require recipients of federal financial assistance operating or sponsoring “interscholastic, intercollegiate, club or intramura l athletics” to “provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c).
Section 106.41(c) provides a non-exhaustive list of factors relevant to determ ining whether equal athletic opportunities are available:
(1) Whether the selection of sports and le vels of com petition effectively accommodate the interests and abilities of m embers of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of gam es and practice time; (4) Travel and per diemallowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignm ent and com pensation of coaches and tutors; (7) Provision of locker room s, practice and com petitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity. Id. Title IX claims of sex discrimination in athletics fall into two categories based on the § 106.41(c) factors to which the claims are addressed: effective accommodation claims focus on § 106.41(c)(1), and equal treatment claims focus on § 106.41(c)(2)–(10). SeeMcCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 291 (2d Cir. 2004); accord Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 919 (7th Cir. 2012). At issue in this appeal is plaintiffs’ effective accommodation claim. In 1979, HEW published in the Federal Register a policy interpretation of § 106.41(c), which states that a school’s compliance with the effective accommodation requirement will be assessed “in any one of the following ways”:
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(1) Whether intercollegiate level participation opportunities for m ale and female students are provided in num bers substantially proportionate to their respective enrollments; or (2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whe ther the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or (3) Where the members of one sex are underrepresented among intercollegiate athletes and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be dem onstrated that the interests and abilities of the m embers of that sex have been fully and effectively accommodated by the present program. 1979 Policy Interpretation, 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979). The 1979 Policy Interpretation thus affords a school three safe harbors in defending against an effective accommodation claim under § 106.41(c)(1). In 1996, the DOE’s Office of Civil Rights (“OCR”), which is responsible for enforcement of Title IX, see 20 U.S.C. § 3441(a)(3), clarifie d that the analysis for determining whether a unive rsity affords substantially proportionate participation opportunities to athletes of both sexes under thefirst prong of the three-part test—the prong relied on by Quinnipiac in defending against plaintiffs’ Title IX effective a ccommodation claim—“begins with a determination of the number of participation opportunities afforded to male and fem ale athletes in the intercollegiate athletic program .” OCR, U.S. DOE, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Tes,t at 2–3 (Jan.
7

15, 1996) (“1996 Clarification”).3 OCR explained that, “[a]s a general rule, all athletes who are listed on a team ’s squad or eligibility list and are on the team as of the team ’s first competitive event are counted as participants.” Ida. t 3. Further, “an athlete who participates in more than one sport will be counted as a participant in each sport in which he or she participates.” Id. It is not necessary for an athlete to meet minimum criteria of playing time or athletic ability to count as a participant. As OCR explained, “athletes who practice but may not compete” nevertheless “receive numerous benefits and services, such as training and practice time, coaching, tutoring services, locker room facilities, and equipment, as well as important non-tangible benefits derived from being a member of an intercollegiate athletic team.” Id. Thus, “it is necessary to count all athletes who receive such benefits when
determining the number of athletic opportunities provided to m en and women.” Id. In a
3 The 1979 Policy Interpretation defines “participants” as those athletes a. Who are receiving the institutionally[] sponsored support norm ally
provided to athletes com peting at the institution involved, e.g., coaching, equipment, medical and training room services, on a regular basis during a sport’s season; and b. Who are participating in organized practice sessions and other team meetings and activities on a regular basis during a sport’s season; and c. Who are listed on the eligibility or squad lists m aintained for each sport; or d. Who, because of injury, cannot m eet a, b, or c above but continue to receive financial aid on the basis of athletic ability. 44 Fed. Reg. at 71,415.
8

letter accompanying the 1996 Clarification, however, OCR sounded a note of caution: for an athlete to be counted, he or she must be afforded a participation opportunity that is “real, not illusory,” in that it offers the sam e benefits as would be provi ded to other bona fide athletes. See Letter from Norma V. Cantú, Assistant Sec’y for Civil Rights, OCR, U.S. DOE, to Colleagues, at 4 (Jan. 16, 1996) (“1996 OCR Letter”).
In a 2008 letter, OCR explained that a genuine athletic participation opportunity umst take place in the context of a “sport.” Letter from Stephanie Monroe, Assistant Sec’y for Civil Rights, OCR, U.S. DOE, to Colleagues, at 1–2 (Sept. 17, 2008) (“2008 OCR Letter”). If a school is a m ember of a re cognized intercollegiate athletic organization, such as the National Collegiate Athletic Association (“NCAA”), that subjects the activity at issue to its organizational requirements, OCR will “presum e” that the activity is a sport and that participation can be counted under Title IX. Id. at 1–2. But if that presum ption does not apply or has been rebutted, OCR will determine whether the activity qualifies as a sport by reference to several factors relating to “program structure and adm inistration” and “team preparation and competition.” Id. at 1–4.
Eight years earlier, in 2000, OCR had issued two letters stating that cheerleading, whether of the sideline or competitive variety, was presumptively not a sport, and that team members could not be counted as athletes under Title IX. See Letter from Mary Frances O’Shea, Nat’l Coordinator for Title IX Athletics, OCR, U.S. DOE, to David V. Stead, Exec. Dir., Minn. State High Sch. League, at 1–3 (Apr. 11, 2000) (“April 2000 OCR Letter”);
9

accord Letter from Mary Frances O’Shea, Nat’l Coordinator for Title IX Athletics, OCR, U.S. DOE, to David V. Stead, Exec. Dir.M, inn. State High Sch. League, at 1 (May 24, 2000) (“May 2000 OCR Letter”). While the letters indicate d OCR’s willingness to review particular cheerleading programs on a case-by-case basis, the parties stipulated in the district court that, since 2000, OCR has never recognized an intercollegiate varsity cheerleading program to be a sport for Title IX purposes. SeeBiediger v. Quinnipiac Univ., 728 F. Supp. 2d at 92. Nor has Quinnipiac ever sought OCR recognition of its competitive cheerleading program as a sports activity. See id. at 85.
Once the numbers of real athletic participation opportunities afforded men and women have been determ ined in light of these principles, the next step of Title IX effectiveaccommodation analysis considers whether the numbers are substantially proportionate to each sex’s enrollment. See 1996 Clarification at 4. OCR has not construed substantial proportionality to require exact proportionality. Rather, substantial proportionality is determined on a case-by-case basis in light of “the institution’s specific circumstances and the size of its athletic program .” Id. As a baseline, OCR will consider substantial proportionality achieved if the number of additional participants necessary required for exact proportionality “would not be sufficient to sustain a viable team.” Id.
OCR affords schools considerable “flexibility and choice” in deciding how to provide substantially proportionate athletic opportunities to students of both sexes, including by eliminating teams, placing caps on its roster s, 1996 OCR Letter at 4, or “[e] xpanding . . . athletic opportunities through new sports,” 2008 OCR Letter at 4.
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C. The District Court Ruling At trial, Quinnipiac maintained that it offered athletic participation opportunities to male and female undergraduates substantially proportionate to their respective enrollments. In support, it pointed to evidence showing that, of the 5,686 students enrolled in Quinnipiac’s undergraduate programs in the 2009–10 academic year, 3,518 were female and 2,168 were male. Varsity rosters for the first day of team competitions in 2009–10 listed 440 va rsity athletes, of whom 274 were female and 166 were male. Thus, Quinnipiac maintained that women represented 61.87% of the total student body and 62.27% of all varsity athletes, while men represented 38.13% of the student body and 37.73% of all varsity athletes. SBeeiediger v. Quinnipiac Univ., 728 F. Supp. 2d at 64–65. Plaintiffs challenged Quinnipiac’s count of its varsity athletes, arguing that (1) the university manipulated its team rosters to produce artificially undersized men’s teams and artificially oversize women’s teams; (2) counting the same women’s membership on crosscountry, indoor track, and outdoor track team s as three distinct athletic participation opportunities was unwarranted because Quinnipiac’s indoor and outdoor track teams did not afford cross-country athletes genuine and distinct benefits; and (3) women who participated on the competitive cheerleading team should not be counted at all because the activity had not yet achieved the status of an intercollegiate varsity sport. See id. at 65. After trial, the district court issued a detaile d memorandum of decision in favor of plaintiffs. Therein, the district court reject ed plaintiffs’ contention that, in setting roster
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targets for each of its teams, Quinnipiac had manipulated the rosters so as to undercount male participants and overcount female participants, or to set artificially high targets for women’s teams that denied women participants genuine athletic opportunities. Seeid. at 108–10. At the same time, the district court identified concerns about how Quinnipiac counted athletes participating on its women’s cross-country, indoortrack, and outdoor track teams, stating that it “recall[ed] roster manipulations similar to those” identified in its preliminary injunction opinion. Id. at 106. Nevertheless, in counting the genuine athletic participation opportunities, the district court declined to discount the 30-athlete r osters for either track team by 18 based on the number of positions held on each team by cross-country runners. Instead, it discounted the number of genuine participation opportunities in women’s indoor track by five, for a total of 25, and in women’s outdoor track by six, for a total of 24, because the numbers represented cross-country runners required to participate in track despite being injured and red-shirted. See id. at 78, 108. The district court also decided that none of the 30 roster positions assigned to women’s competitive cheerleading should be counted because the activity did not yet afford genuine athletic participation opportunities in a varsity sport. See id. at 99–101.
Expanding Quinnipiac’s reported roster positions for male athletes by one to reflect an additional participant on the men’s ice hockey team revealed at trial, see id. at 71, 111, the district court counted a total of 400 varsity athletic participation opportunities, see id. at 111. Of these 400, it found that 233—or 58.25%—were assigned to women and 167—or
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41.75%—were assigned to m en. S ee id. The district court observed that “in strictly numerical terms,” a 3.62% disparity between Quinnipiac’s women’s 58.25% varsity athletic participation and their 61.87% representation in the undergraduate population reflected only “a borderline case of disproportionate athletic opportunities for women.” Id. Nevertheless, the district court concluded that the disparity was significant enough to support judgment in favor of plaintiffs because (1) the disparity was caused by Quinnipiac’s own actions and not by natural fluctuations in enrollment; and (2) it was reasonable to expect Quinnipiac to close the gap because the 38 roster positions needed for that purpose would be enough to field a viable women’s athletic team, and such a team already existed in the form of the women’s volleyball team. See id. at 111–13.
Accordingly, the district court entered a declaratory judgment finding Quinnipiac to have violated Title IX and its implementing regulations by discriminating against women in failing to provide equal athletic participation opportunities to fem ale students, and it permanently enjoined Quinnipiac from continuing to discrim inate in this m anner. The district court ordered Quinnipiac to submit a plan for complying with the injunction, which plan was to provide for continuation of the wom en’s volleyball team during the 2010–11 athletic season. See id. at 114.
This timely appeal followed.
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II. Discussion A. Quinnipiac’s Argument and the Standard of Review Quinnipiac challenges the district court’s award of perm anent injunctive relief by
attacking the finding of Title IX sex discrim ination on which the relief is prem ised. Although the finding of sex discrimination is incorporated in a declaratory judgment that is not yet final and, therefore, not itself appealable, we nevertheless have jurisdiction to review the finding because it is “inextricably intertwined” with the challenged injunctive relief over which we do have interlocutory appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Lamar Adver. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, 371–72 (2d Cir. 2004).
Quinnipiac contends that the district court finding of sex discrimination is infected by three errors: (1) the exclusion of 11 positionson the women’s indoor and outdoor track teams from its count of varsity athletic participa tion opportunities, (2) the exclusion of all 30 competitive cheerleading positions from its count of varsity athletic participation opportunities, and (3) the determination that an identified 3.62% disparity between women’s representation in Quinnipiac’s student body andon its varsity sports teams sufficed to show that women were not afforded substantially proportionate varsity athletic participation opportunities.
We review the award of permanent injunctive relief for abuse of discretion, seeCity of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 142 (2d Cir. 2011), but where, as here, appellant does not challenge the scope of such relief but its basis in law and fact, we
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review the district court’s factual findings only for clear error and its conclusions of law de novo, see City of New York v. Golden Feather Smoke Shop, Inc., 597 F.3d 115, 120 (2d Cir. 2010); accord Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d Cir. 2010) (noting “strong presumption” in favor of trial court’sfindings of fact, which appellate court will not upset absent “definite and firm conviction that a m istake has been com mitted” (internal quotation marks omitted)); see also Fed. R. Civ. P. 52(a)(6) (providing that findings of fact made by district court in nonjury trial m ust not be set aside by reviewing court “unless clearly erroneous”).
B. Deference to Agency Interpretation of Title IX’s Implementing Regulations In addressing Quinnipiac’s arguments, we note at the outset that no party challenges the district court’s reliance on agency policy statem ents and letters interpreting 34 C.F.R. § 106.41(c)(1). This court has already ru led that the 1979 Policy Interpretation of § 106.41(c) is entitled to a “particularly high” de gree of judicial deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984), because Congress explicitly delegated to the administering agency “the task of prescribing standards for athletic program s under Title IX.” McCorm ick ex r el. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d at 288 (internal quotation marks omitted).4 We here conclude that
4 We treat DOE as the agency charged with adm inistering Title IX because all educational functions of HEW were transfe rred to DOE by 20 U.S.C. § 3441(a)(1). See McCormick ex rel. McCorm ick v. Sch. Dist. of Mam aroneck, 370 F.3d at 287; see also Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d at 917 (observing that after 1979 split of HEW into DOE and Departm ent of Health and Huma n Services (“HHS”), HEW
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the 1996 Clarification, the accompanying 1996 OCR Letter, and the 2000 and 2008 OCR Letters are likewise entitled to substantial deference under Auer v. Robbins, 519 U.S. 452, 461 (1997), because they reflect reasonable agency interpretations of ambiguities in its own regulation, and there is no reason to think that the agency’s interpretations do not reflect its “fair and considered judgment on the matter in question.” Mullins v. City of New Yor,k653 F.3d 104, 113–14 (2d Cir. 2011) (internal quotation m arks omitted); see Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 965 n.9 (9th Cir. 2010) (collecting cases deferring to 1979 Policy Interpretation and 1996 Clarification). Indeed, even if the agency interpretations of § 106.41(c)(1) reflected in the 1996 Clarific ation and subsequent letters were not entitled to Auer deference, they would be entitled to substantial deference under United States v. Mead Corp., 533 U.S. 218 (2001), because their logical consistency with the agency’s earlier 1979 Policy Interpretation am plifies their “‘power to persuade.’” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2169 (2012) (quoting Me ad Corp., 533 U.S. at 228) (according agency interpretation of own regulation “deference proportional to” its persuasiveness under Mead , where interpretation not entitled to controlling deference under Auer).
In contrast to the parties, am icus curiae Eagle Forum Education & Legal Defense Fund argues that continued judicial deference to the agency’s 1979 Policy Interpretation of
regulations were left with HHS, and DOE duplicated them , with DOE’s OCR assum ing responsibility for enforcement of Title IX).
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34 C.F.R. § 106.41(c), seeMcCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d at 288, is unwarranted after Alexander v. Sandova,l532 U.S. 275, 282–83 & n.2 (2001) (holding private cause of action for disparate impact unavailable under 42 U.S.C. § 2000d, which prohibits discrimination “on the ground of race, color, or national origin”), because the test imposes a disparate impact standard for liability exceeding the statutory prohibition of intentional discrimination. Assuming that we would consider an am icus argument not joined in by any party, see United States v. Ionia Mgm t. S.A., 555 F.3d 303, 310 (2d Cir. 2009) (noting appellate court not obligated to consider arguments presented only by amicus), and assuming further that a challenge to our McCormick precedent would not require en banc review, see Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd, .585 F.3d 58, 67 (2d Cir. 2009) (recognizing that panel bound by prior decisions “until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court” (internal quotation marks omitted)), we would not be persuaded in any event. The argum ent rests on a mistaken assumption: that plaintiffs claim disparate im pact. In fact, their com plaint is disparate treatment. It is useful to clarify this point.
Title IX has been construed to prohibit the intentional exclusion of students from collegiate athletics program s on the basis of sex. See 20 U.S .C. § 1681(a); 34 C.F .R. § 106.41(a). A school’s decision to provide students with athletic participation opportunities through separate sports programs for each sex thus necessarily raises a disparate treatment rather than disparate impact claim in that the school decides which athletic opportunities are
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available to particular students “on the basis of se x.”5 20 U.S.C. § 1681(a); cf. Ricci v. DeStefano, 557 U.S. 557, 579 (2009) (holding that city engaged in disparate treatm ent on basis of race in discarding results of firefighter prom otional exam because higher scoring candidates were white, despite city’s proffered objective to avoid disparate impact of test on black candidates). The critical question in th is case is thus not whether Quinnipiac’s disparate treatment of varsity athlete s was based on their sex, but whether the treatm ent constituted unlawful discrimination under Title IX.
As OCR has interpreted § 1681(a), not every decision to ma intain separate sports programs for male and female students constitutes proscribed discrimination. See 34 C.F.R. § 106.41(b). A choice to allocate specific athletic opportunities on the basis of sex will not violate Title IX provided that, in general, the participation opportunities afforded the two sexes are “equal.” Id. § 106.41(c). Plaintiffs here alleged that Quinnipiac did not treat men and women equally in allocating athletic participation opportunities because the opportunities afforded women (1) were not substantially proportionate to wom en’s undergraduate enrollment, and (2) did not fully and effectively accomodate women’s athletic interests and abilities. See Cohen v. Brown Univ., 101 F.3d 155, 175 (1st Cir. 1996). The three-part test
5 By contrast, if a school chose not to allocate athletic opportunities by sex, but rather to sponsor only co-ed team s, a discrimination complaint that women participated on such teams at lower rates than men would be premised on a theory of disparate impact rather than disparate treatment. Cf. Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 574 (2d Cir. 2003) (observing, in context of Fair Housing Act and Am ericans with Disabilities Act challenges, that “[d]isparate impact analysis focuses on facially neutral policies or practices that may have a discriminatory effect”).
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did not reduce plaintiffs’ burden to prove these elements of their disparate treatment claim. Rather, it afforded Quinnipiac three distinct opportunities to demonstrate that its sex-based treatment of athletes was not unlawful. See Boucher v. Syracuse Univ., 164 F.3d 113, 117 (2d Cir. 1999) (recognizing three-pa rt test to provide school with “three safe harbor defenses,” each independently sufficient to defeat claim of unlawful disparate treatment in accommodating athletic interests of both male and female students); cf. Ricci v. DeStefano, 557 U.S. at 580 (“The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.”).
Here, Quinnipiac elected to defend against plaintiffs’ discrim ination claim only by reference to the first safe harbor created by the three-part test, arguing that its athletics program provided “substantially proportionate” athel tic participation opportunities to women. For reasons we discuss infra at 20–38, the district court reasonably found to the contrary, thus simultaneously rejecting Quinnipiac’s defense and finding for plaintiffs on the first element of their disparate treatm ent claim. To the extent that plaintiffs further offered evidence that Quinnipiac’s disproportionate provision of athletic participation opportunities failed fully and effectively to accommodate the athletic interests and abilities of its female undergraduates insofar as it eliminated the women’s volleyball team, Quinnipiac did not dispute the point.6 Nor did it attem pt to argue that the school has a history of expanding women’s athletic participation opportunities.
6 On appeal, Quinnipiac does not argue and, thus, has abandoned any claim that the district court erred in not specifically identifying the unmet athletic interests of Quinnipiac’s female students. See Cash v. Cnty. of Erie, 654 F.3d 324, 341 n.8 (2d Cir. 2011).
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In sum, as a m atter of Quinnipiac’s litigation strategy, re solution of this case effectively turned on whether Quinnipiac’s sex based treatment of varsity athletes provided its female students with genuine athletic partic ipation opportunities substantially proportionate to their enrollment. Because the district court found that it did not, plaintiffs carried their burden to prove unlawful disparate treatment. In these circumstances, amicus curiae’s challenge to the judicial deference accorded the agency’s 1979 Policy Interpretation generally, or its articulated three-part test specifically, is unpersuasive.
C. Athletic Participation Opportunities for Wom en Runners: Discounting the Reported Numbers for Indoor and Outdoor Track
During the 2009–10 academic year, the rosterfor Quinnipiac’s women’s cross-country team listed 18 athletes; the roster for its women’s indoor track team listed 30 athletes; and the roster for its women’s outdoor track teamlisted 30 athletes. Quinnipiac faults the district court for concluding that this represented 67 rather than 78 genuine athletic participation opportunities for women runners. We identify no error of law or fact in the district court’s carefully reasoned resolution of this issue.
Before the district court, plaintiffs argued that Quinnipiac should not be allowed to count as 54 athletic participation opportunities the cross-country, indoor track, and outdoor track roster positions held by the same 18 women. As the district court recognized, the issue admitted no easy resolution. The 1996 Clarification plainly states that “an athlete who participates in more than one sport will be counted as a participant in each sport in which . . . she participates.” 1996 Clarification at 3. But the trial evidence reflected circumstances not
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addressed in the 1996 Clarification: Quinnipiac’s wom en cross-country runners were not afforded a choice as to whether to participate in more than one sport; they were required to do so. Specifically, their participation on the cross-country team was conditioned on their membership on the indoor and outdoor track teams. See Biediger v. Quinnipiac Univ., 728 F. Supp. 2d at 78. No other Quinnipiac athletes were required to join multiple sports teams. See id. Notably, m ale cross-country runners were not required to join m en’s indoor and outdoor track teams, as Quinnipiac had no such te ams in 2009–10. See id. Indeed, male cross-country runners were prohibited from representing Quinnipiac as individual entrants in indoor and outdoor track events. See id. at 75, 78, 105. As the district court recognized, these circumstances raise questions as to whether simultaneous participation on the women’s cross-country, indoor track, and outdoor track teams at Quinnipiac represented three genuine athletic opportunities, or whether c ross-country runners’ m andated participation on the indoor and outdoor track teams was simply a form of alternative off-season training for the cross-country runners, one that allowed Quinnipiac to inflate the rosters of its wom en’s indoor and outdoor track teams.
In this respect, the district court carefully reviewed evidence that we only summarize: Quinnipiac had a highly competitive women’s cross-country team, which, by the 2009–10 school year, had won the last five New England Conference championships, see id. at 77; cross-country runners’ m andated participation on the indoor and outdoor track team s afforded these runners more training time (albeit for a different type of running) during the
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cross-country off-season than NCAA rules would otherwise have allowed, see id. at 102; Quinnipiac expanded its indoor and outdoor track teams’ rosters to accommodate mandated participation by cross-country runners, see id. at 86; despite the resulting large rosters, Quinnipiac’s indoor and outdoor track teams participated in only the minimum number of track and field tournaments required by the NCAA and were never com petitive for team awards as no Quinnipiac athletes entered field events, see id. at 102–03; and Quinnipiac offered scholarship money only to those members of the indoor and outdoor track teams who also ran cross-country, see id. at 76. The totality of these circumstances suggested that the 60 positions on Quinnipiac’s indoor and outdoor track team rosters were not reflective of genuine participation opportunities in these sport,sbut were inflated to afford mandated yearround training for the 18 members of the women’s cross-country team.
While identifying such a roster-manipulation concern, the district court nevertheless proceeded cautiously in drawing conclusions as to any Title IX violation. Notably, it decided that the evidence did not “justify discounting all of the cross-country runners’ participation on the [women’s] indoor and outdoor track team s.” Id. at 108 (em phasis added). Such a ruling would have reduced by 36 the num ber of athletic participation opportunities that Quinnipiac claimed to afford female students. In explaining its decision, the district court observed that 13 of the 18 women cross-country runners had competed for Quinnipiac in four or more indoor track m eets, accounting for 54.4% of the team ’s races. See id. at 107. Meanwhile, 12 of the 18 women cross-country runners had competed for Quinnipiac in three
22

or more outdoor track meets, accounting for 50.0% of the team’s races. See id. Finding that this reflected “a substantial contribution” by cross-country runners to Quinnipiac’s indoor and outdoor track teams, the district court concluded that the school’s “Title IX calculation should account for it,” regardless of whether cross-country runners’ participation in indoor and outdoor track was mandated. Id. Thus, it rejected plaintiffs’ argument that these crosscountry runners should not also be viewed as having been afforded further athletic participation opportunities as members of the indoor and outdoor track teams.
At the same time, however, the district court persuasively explained why a sm aller number of cross-county runners, required to join Quinnipiac’s track teams but participating in no competitions—or in one case, only one competition—could not be viewed as having been afforded m ultiple genuine athletic pa rticipation opportunities. Specifically, five positions on the indoor track team and six positions on the outdoor track teamwere held by cross-country runners who did not—and effectively could not—avail themselves of distinct participation opportunities on the track teams because they were injured or red-shirted. See id. at 78. Not only did these injured or red-shirted runners not compete in indoor or outdoor track events, they received no benefits from membership on these teams beyond those that they were already r eceiving as injured or re d-shirted members of the cross-country team during that sport’s off-season. See id. at 106.7 Thus, the district court concluded that for
7 Injured athletes were required to attend practices during the indoor and outdoor track seasons, but “their practice tim e consisted of physical the rapy, strength training, conditioning, and other rehabilitative exercises,” Biediger v. Quinnipiac Univ,.728 F. Supp. 2d at 76, which injured cross-country runners would have received in the off-season in any event, see id. at 106.
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injured and red-shirted cross-country runners,the athletic participation opportunities afforded by mandated membership on the indoor and outdoor track teams were “truly illusory.” Id. at 107 n.26.
What was not illusory, however, was Quinnipiac’s ability to “pad[] its rosters” with female athletes who had “no hope of com peting or otherwise participating m eaningfully during the indoor and outdoor tra ck seasons.” Id. As the district court aptly observed, it would be “unacceptable for Quinnipiac to pum p up its wom en’s track team rosters” by requiring every injured field hockey, soccer, and volleyball player to join these teams even though they “would never actually compete in the indoor and outdoor track seasons and, for that matter, would never want to enter a race.” Id. But, the district court found, “that is essentially what Quinnipiac is doing with its injured cross-country runners.” Id. Thus, the district court discounted Quinnipiac’s claim ed 30 athletic participation opportunities in indoor track by five, and its claimed 30 athletic participation opportunities in outdoor track by six. See id. at 108. We conclude that this reduction in the total num ber of athletic participation opportunities for women runners in cross-country, indoor track, and outdoor track from Quinnipiac’s claimed 78 to an actual 67 is fully supported by the record evidence and by the applicable law.
In challenging this action, Quinnipiac com plains that it was denied due proc ess by lack of notice that the question of whether injured and red-shirted cross-country runners were afforded genuine athletic participation opporut nities in indoor and outdoor track was at issue.
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We are not convinced. As Quinnipiac concedes, it certainly had notice that plaintiffs were challenging Quinnipiac’s practice of counting cross-country runners who were listed as members of the indoor and outdoor track teams as each having been afforded three distinct athletic participation opportunities. We consider this sufficient to have alerted Quinnipiac that the practice was at issue and that Quinnpi iac should prepare to defend it, both generally and specifically as applied to cross-country runners who were incapable of competing in any indoor or outdoor track events. The fact that Quinnipiac had notice of the issue in dispute and the opportunity to defend its challenged actions distinguishes this case fromDoubleday & Co., Inc. v. Curtis, 763 F.2d 495, 502–03 (2d Cir. 1985), in which this court invoked due process to reverse the dismissal of a plaintiff’s claim on the basis of an affirmative defense not pleaded or raised by the defendant in a bench trial, as well as from Green v. Town of Blooming Grove, 935 F.2d 507, 511 (2d Cir. 1991), in which this court reversed a judgment entered after trial on a pendant state claim that was not pleaded by plaintiff with its federal claim, and that defendant had not been afforded an opportunity to defend against.
Quinnipiac further complains that it was not given notice that the district court would draw a negative inference about the genuineness of the indoor and outdoor track participation opportunities afforded female cross-country runners from the fact that the runners were required to join the track team. A factfinder’s ability to draw reasonable inferences fromthe evidence is well established, see, e.g., Diesel Props. S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011) (recognizing court’s obligation as “trier of fact . . . to
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determine which of the witnesses it finds credible, which of the perm issible competing inferences it will draw, and whether the party having the burden of proof has persuaded it as factfinder that the requisite facts are proven” (internal quotation m arks omitted)), and Quinnipiac points us to no precedent holding that a factfinder must notify parties in advance of the particular inferences it is inclined to draw from record evidence. Indeed, we here reject that argument. Quinnipiac is entitled to challenge the sufficiency of the evidence to support the inference drawn by the district court, but in the absence of a sufficiency concern, if Quinnipiac failed to appreciate the possible adverse significance of a mandate that crosscountry runners join the school’s indoor and outdoor track teams, the fault was its own, not the district court’s.
Insofar as Quinnipiac questions the sufficiency of the trial evidence to establish a track participation requirem ent, the argum ent borders on the frivolous. When Carolyn Martin, who coached all Quinnipiac’s running team s, was asked at her deposition about women cross-country runners also running track, she stated, “I require themto.” Martin Dep. at 184:25. Further, the thrust of Coach Martin’s testimony was that women cross-country runners’ indoor and outdoor track participation was a given. This was sufficient to permit the district court to find that Quinnipiac required cross-country runners to join the indoor and outdoor track team s. Indeed, the conclusion was reinforced by evidence that each of Quinnipiac’s 18 cross-country runners was listed on the indoor and outdoor track team rosters, including those cross-country runners who were injured or red-shirted. Insofar as
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Quinnipiac points to its expert testimony that “cross-country runners almost always compete on the track te ams,” to undermine the district court’s m andate finding, Expert Report of Samuel Seemes at 8, we note that a factfinder is not required to accept expert opinion, see Pope v. Cnty. of Albany, --- F.3d ---, 2012 WL 1918523, at *11 (2d Cir. 2012). In any event, the record shows that the district court carefully reviewed the totality of the evidenc e and concluded therefrom that cross-country runners who were required to join and who actually competed on the indoor and outdoor track team s did obtain additional genuine athletic participation opportunities. It found only that the same conclusion did not obtain for crosscountry runners subjected to the sam e mandate even though they could not, and did not, participate in track com petitions because they were injured or red-shirted. In such circumstances, women runners received no m ore athletic benefits from mandated membership on Quinnipiac’s indoor and outdoor track team s than they were already receiving as members of the cross-country team.
Accordingly, we identify no error in the district court’s decision to discount Quinnipiac’s reported athletic participation opportunities for wom en on its cross-country, indoor track, and outdoor track teams from 78 to 67.
D. Athletic Participation Opportunities for Women in Competitive Cheerleading: The Determination That the Activity Does Not Yet Qualify as a “Sport”
Competitive cheerleading, which Quinnipiac decided to create as a new wom en’s varsity sport team for 2009–10, is a late twentieth-century outgrowth of traditional sideline cheerleading. Whereas sideline cheerleaders generally strive to entertain audiences or solicit
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crowd reaction at sport or school functions, a competitive cheerleading team seeks to pit its
skills against other teams for the purpose of winning. SeeBiediger v. Quinnipiac Univ., 728
F. Supp. 2d at 78. Thus, to distinguish the two activities, competitive cheerleaders
do not attem pt to elicit crowd response; generally do not use pom-poms, megaphones, signs, or other props associated with [sideline] cheerleading teams; . . . wear uniform s consisting of shorts and jerseys, m uch like what women’s volleyball players don; and emphasize the more gymnastic elements of sideline cheerleading, such as aerial m aneuvers, floor tum bling, and balancing exercises, to the exclusion of those activities intended to rally the watching audience.
Id. (observing that competitive cheerleading is an“athletic endeavor” that might be described
as “group floor gymnastics” (internal quotation marks omitted)).
The district court nevertheless concluded that the 30 roster positions that Quinnipiac
assigned competitive cheerleading for 2009–10 could not be counted under Title IX because
the activity did not yet afford th e participation opportunities of a varsity “sport.” See id.
at 101.
Preliminary to reaching this conclusion, the district court observed that competitive cheerleading is not yet recognized as a “sport,” or even an “emerging sport,” by the NCAA,8
action that would have triggered a presumption in favor of counting its participants under
Title IX. See id. at 93–94 (citing 2008 OCR Letter). Nor has DOE recognized competitive
8 “Emerging sport” is “a provisional designation that allows a university to count the activity toward NCAA revenue distribution and minimum sports sponsorship requirements.” Biediger v. Quinnipiac Univ., 728 F. Supp. 2d at 78–79 (citing 2009–10 NCAA Division I Manual § 20.02.25.1, at 298).
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cheerleading as a sport; to the contrary, in two letters in 2000, OCR indicated competitive cheerleading is presumptively not a sport, while leaving open the possibility for a different conclusion with respect to a particular cheerleading program. See April 2000 OCR Letter at 3; May 2000 OCR Letter at 1. There is, however, no record evidence of any competitive cheerleading program being recognized by DOE as a sport. See Biediger v. Quinnipiac Univ., 728 F. Supp. 2d at 92.
Mindful of these circumstances, the district court proceeded carefully to review the structure, administration, team preparation, and com petition of Quinnipiac’s com petitive cheerleading program to determine whether it nevertheless qualified as a sport whose athletic participation opportunities should be counted for purposes of Title IX. Se2e008 OCR Letter at 2–4 (listing factors relevant to identifying act ivity as sport). Again, we only briefly summarize the district court’s detailed findings, which find am ple support in the record evidence. The district court found that in term s of the team’s operating budget, benefits, services, and coaching staff, com petitive cheerleading was generally structured and administered by Quinnipiac’s athletics department in a manner consistent with the school’s other varsity teams. See Biediger v. Quinnipiac Univ., 728 F. Supp. 2d at 95. The district court noted two “m inor” exceptions to this conclusion: Quinnipiac did not afford its competitive cheerleading team locker space; and because the NCAA did not recognize competitive cheerleading as a sport, the t eam did not receive NCAA catastrophic injury insurance and had to obtain it froma separate provider. Id.at 99; see id. at 95. With respect
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to factors relating to the team’s preparation and competition, the district court found that the competitive cheerleading team’s practice time, regimen, and venue were consistent with other varsity sports. See id. at 96. Further, as with other varsity sports, the length of the competitive cheerleading season and the minimum number of competitions in which a team would participate were pre-determ ined by a governing athletic organization, the recently formed National Competitive Stunt and Tumbling Association, of which Quinnipiac was a founding member. See id. at 82–83, 96–97. Finally, the purpose of the team—to compete athletically at the intercollegiate varsity level—was akin to that of other varsity sports. See id. at 99.
At the same time, however, the district court identified a number of circumstances that sufficiently distinguished Quinnipiac’s competitive cheerleading program from traditional varsity sports as to “compel[] the decision that, for the 2009–10 season,” the programcould not “be counted as a varsity sport for purposes of Title IX.” Id. First, Quinnipiac did not—and, in 2009–10, could not—conduct any off-campus recruitment for its competitive cheerleading team, in marked contrast not only to the school’s other varsity sports teams but also to a typical NCAA Division I sports program. See id. at 95–96, 99. The district court explained the significance of this circum stance: “Although the women on the Quinnipiac competitive cheer teamwere athletically able, they would have been all the more talented had [Coach] Powers been able to seek out the best competitive cheerleaders around the country, as any other varsity coach would have been able to do.” Id. at 99.
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More important, no uniform set of rules applied to com petitive cheerleading competition throughout the 2009–10 season. Indeed, in the ten com petitions in which the Quinnipiac team participated during the regular season, it was judged according to five different scoring systems. See id. at 97. Further, in these competitions, Quinnipiac did not face only varsity intercollegiate competitive cheerleading teams. Rather, it was challenged by “a motley assortment of competitors,” id. at 98, including collegiate club opponents who did not receive varsity benefits, collegiate sdieline cheerleading teams, and all-star opponents unaffiliated with a particular academic institution, some of whom may still have been highschool age, see id. at 97–98. As the district court observed, “application of a uniformset of rules for competition and the restriction of com petition to contests against other varsity opponents” are the “touchstones” of a varsity sports program. Id.at 99–100. “Those features ensure that play is fair in each gam e, that teams’ performances can be compared across a season, and that teams can be distinguished in terms of quality.” Id. at 100.
The concerns raised by these irregularities in season competition were only aggravated by aspects of post-season play. Notably, com petitive cheerleading offered no progressive playoff system leading to a championship game. See id. at 98. Rather, it provided an open invitational, which neither excluded any teamon the basis of its regular season performance nor ranked or seeded participating teams on that basis. Seeid. Instead, all entrants competed in a single championship round in which the teamwith the highest score won. Seeid. That round, moreover, was subject to a new rule of competition that had not applied to Quinnipiac
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in any of its regular season com petitions: a mandatory 45–60 second “spir it” segment in which a team was judged by the intensity of the response it elicited from the crowd and the number of the sponsoring brand’s props that it employed, features that Quinnipiac’s coach confirmed were more characteristic of sideline rather than competitive cheerleading. Seeid. at 98–99. Viewing the totality of these circumstances, the district court concluded that the competitive cheerleading team’s post-season competition did not conform to expectations for a varsity sport.
Most other varsity sports would have used some system to separate teams and competitors in terms of quality, and would have ranked, seeded, or excluded teams on the basis of their performances during the regular season. Moreover, any other varsity sport would not have imposed new rules of competition in the post-season that teams did not follow during the regular season. Id. at 100.9 Based on these findings, as well as those pretaining to regular season play, the district court concluded that Quinnipiac’s com petitive cheerleading team did not com pete in circumstances indicative of varsity sports. Thus, it ruled that Quinnipiac’s 30 roster positions for competitive cheerleading could not be counted for Title IX purposes because the activity did not yet afford wom en genuine participation opportunities in a varsity sport. See id. at 100–01.
9 The district court did not conclude that each identified concern regarding post-seaosn competition would preclude an activity from qualifying as a varsity sport. Rather, it found that the totality of circumsta nces pertaining to com petitive cheerleading’s post-season competition was not indicative of a varsity sport.
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In challenging this conclusion, Quinnipiac questions the weight the district court assigned the various factors it identified as supporting or underm ining recognition of competitive cheerleading as a genuine varsity sport. Quinnipiac argues that this court should decide the question de novo. We generally accord considerable discretion to a factfinder in deciding what weight to assign competing evidence pointing toward different conclusions. See Diesel Props. S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d at 52 (“‘Where there are two permissible views of th e evidence, the factfinder’s choice between them cannot be clearly erroneous.’” (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)). But the point merits little discussion here because, even assum ing that de novo review were warranted, we conclude for the sam e reasons stated in detail by the district court and summarized in this opinion that, although there are facts on both sides of the argument, in the end, the balance tips decidedly against finding competitive cheerleading presently to be a “sport” whose participation opportunities should be counted for purposes of Title IX. Like the district court, we acknowledge record evidence showing that competitive cheerleading can be physically challenging, requiring competitors to possess “strength, agility, and grace.” Biediger v. Quinnipiac Univ., 728 F. Supp. 2d at 101. Sim ilarly, we do not foreclose the possibility that the activity, with better organization and defined rules, m ight some day warrant recognition as a varsity sport. But, likethe district court, we conclude that the record evidence shows that “that time has not yet arrived.” Id.
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Accordingly, we conclude that the district court was correct not to count the 30 roster positions assigned to competitive cheerleading in determining the number of genuine varsity athletic participation opportunities that Quinnipiac afforded female students.
E. Finding a Title IX Violation Based on a 3.62% Disparity Having reduced Quinnipiac’s claimed athletic participation opportunities for women by 41—representing 30 competitive cheerleaders and 11 cross-country runners required to join the indoor and outdoor track team s but unable to com pete on those teams because of their injuries or red-shirt status—the district court correctly found that the school had a total of 400 varsity athletic participation opportunities, of which 233, or 58.25%, were assigned to women. See id. at 111. Because enrollment data established that 61.87% of Quinnipiac’s undergraduate population were wom en, this indicated a 3.62% disparity in the athletic opportunities that Quinnipiac afforded women. See id. The district court concluded that this disparity was sufficient to support a finding that Quinnipiac had fa iled to a fford female students varsity athletic participation opportunities substantially proportionate to their enrollment. See id. at 113. Quinnipiac argues that a 3.62% disparity is too small to support such a finding. In any event, it subm its that the district court erred in holding Quinnipiac responsible for the disparity in light of fluctuations in enrollment and Quinnipiac’s good faith reliance on the district court’s statement at the tim e of the preliminary injunction decision that it would likely count all wom en members of the cross-country, indoor track, outdoor track, and
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competitive cheerleading teams as athletic participants for purposes of Title IX. Further,

Quinnipiac contends that the district court reroneously accorded dispositive weight to the fact

that the num ber of additional fem ale roster spots needed to achieve exa

ct

proportionality—38—would have been sufficient forQuinnipiac to field an additional varsity

team.

Quinnipiac’s arguments fail to persuade. First, its emphasis on the relatively small

percentage of disparity is unwarranted. The district court itself recognized that “in strictly

numerical terms,” a 3.62% disparity presents “a borderline case of disproportionate athletic

opportunities.” Id. at 111. But as the 1996 Clarification m akes clear, substa ntial

proportionality is not determined by any bright-line statistical test. See 1996 Clarification

at 4; see also Equity In Athletics, Inc. v. DOE, 639 F.3d 91, 110 (4th Cir. 2011) (“DOE has

not specified a magic number at which substantial proportionality is achieved.”). While a

district court outside this circuit reports finding no case in which a disparity of two

percentage points or less has been held to manifest a lack of substantial proportionality, see

Equity in Athletics, Inc. v. DOE, 675 F. Supp. 2d 660, 682–83 (W.D. Va. 2009), aff’d, 639

F.3d 91 (4th Cir. 2011), we do not pursue the issue because the disparity in this case is

greater than 2%, and we do not, in any event, understand the 1996 Clarification to create a

statistical safe harbor at this or any other percentage. Instead, the Clarification instructs that

substantial proportionality is properly determined on a “case-by-case basis” after a careful

assessment of the school’s “specific circumstances,” including the causes of the disparity and

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the reasonableness of requiring the school to dad additional athletic opportunities to eliminate the disparity. 1996 Clarification at 4; see also Amicus Br. of U.S. 23–25. 10 The district court’s challenged ruling was based on precisely this analysis.
Specifically, the district court pointed to record evidence showing that the 3.62% identified disparity was almost entirely attributable to Quinnipiac’s own careful control of its athletic rosters. SeeBiediger v. Quinnipiac Univ., 728 F. Supp. 2d at 111–12. Although Quinnipiac claims that, but for a 0.27% increase in female enrollment in 2009–10 beyond its control, the disparity would have been only 3.35%, the difference is not one that underimnes the district court’s conclusion that Quinnipiac’s voluntary actions largely caused the disparity.
While Quinnipiac professes to have relied on the district court’s observation at the time of the preliminary injunction ruling that it would likely count all wom en members of the cross-country, indoor track, outdoor track, and competitive cheerleading teams as athletic participants for purposes of Title IX, Quinnipiac—or certainly its able counsel—surely knew the risks of such reliance. “A decision on a prelim inary injunction is, in effect, only a prediction about the merits of the case,” Morris v. Hoffa, 361 F.3d 177, 189 (3d Cir. 2004)
10 The views of the United States as amicus curiae are entitled to deference under Auer v. Robbins, 519 U.S. 452, as an interpretation of the agency’s own am biguous regulation. See Mullins v. City of New York , 653 F.3d at 114 (deferring to Secretary of Labor’s interpretation of ambiguous labor regulations stated in amicus brief); Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 207–08 (2d Cir. 2009) (collecting cases and deferring to EPA interpretation of ambiguous regulation stated in amicus brief).
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(internal quotation marks and brackets omitted); thus, “findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding,” University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981), and “do not preclude reexamination of the merits at a subsequent trial,” Irish Lesbian & Gay Org. v. Giuliani , 143 F.3d 638, 644 (2d Cir. 1998); see also Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012) (observing that “a preliminary injunction makes a prediction about the merits ruling and is not itself a merits ruling”). In any event, the 1996 Clarification indicates only that a school will not be held responsible under Title IX for disparities caused by m atters outside its control. See 1996 Clarification at 4. Nowhere does it indicate that a school can avoid responsibility for future remediation of Title IX disparities caused by its own choices if it can show that those choices were made in good faith.
Finally, we do not understand the district court to have ruled, as Quinnipiac suggests, that no matter how small a disparity, if it can be closed by the creation of a new sports team, a school will be found not to have affordedusbstantially proportionate athletic opportunities. Rather, we understand the court to have discussed the possible creation of a new sports team only to explain why it was reasonable to expect Quinnipiac to add additional athletic opportunities for women to close the identified 3.62% disparity. In so concluding, the district court noted that, insofar as the gap reflected 38 positions, each of Quinnipiac’s wom en’s varsity teams had 30 or fewer roster spots, making it “certain that an independent sports team could be created from the shortfall of participation opportunities.” Biediger v. Quinnipiac
37

Univ., 728 F. Supp. 2d at 112 & n.27. Moreover, thedistrict court observed that little effort was required for Quinnipiac to afford the additional participation opportunities of an independent sports team: “That independent sports team would be the eliminated women’s volleyball squad, a team that, based on Quinnipiac’s 2010–11 roster target, requires a mere 14 players to com pete.” Id. at 112. Of course, the district court did not suggest that Quinnipiac’s compliance with Title IX was dependent on it forever fielding a wom en’s volleyball team. See id. at 113–14. But the ease with which Quinnipiac could afford these particular additional varsity athletic opportunities was a “specific circumstance[]” that, pursuant to the 1996 Clarification, supported the conclusion that a 3.62% disparity in this case demonstrated that Quinnipiac was not affording substantially proportionate varsity athletic participation opportunities to its female students. 1996 Clarification at 4.
Accordingly, we reject Quinnipiac’s challenge to the district court’s finding that the school engaged in se x discrimination in violation of Title IX, and we affirm the order enjoining Quinnipiac from continuing such discrimination. III. Conclusion
To summarize, we conclude as follows: 1. For purposes of determining the number of genuine varsity athletic participation opportunities that Quinnipiac afforded women students, the district court correctly declined to count:
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a. five roster positions on the wom en’s indoor track team and six roster positions on the wom en’s outdoor track team because these were held by cross-country runners who (i) were required to join the indoor and outdoor track teams even though they could not compete on those teams because they were injured or red-shirted and (ii) did not receive any additional benefits from membership on the track teams beyond those received as injured or red-shirted off-season members of the cross-country team;
b. any of the 30 roster positions fowr omen’s competitive cheerleading because that activity was not ye t sufficiently organized or its rules sufficiently defined to afford women genuine participation opportunities in a varsity sport.
2. Where the 3.62% dispa rity between the percentage of wom en students enrolled at Quinnipiac and the percentage of women listed on varsity sports teams was largely caused by Quinnipiac’s voluntary decisions with respect to its athletics program s and reasonably remedied by the addition of m ore athletic opportunities for wom en, the district court correctly concluded that the disparity dem onstrated a failure to provide substantially proportionate athletic participation opportunities as required by Title IX.
Accordingly, the district court’s orde r enjoining Quinnipiac from continuing to discriminate against female students by failing to provide them with equal athletic participation opportunities is AFFIRMED.
39