A federal judge from the Northern District of Alabama has refused the dismiss the lawsuit of several former members of Samford University’s softball team, who sued The Southern Conference, alleging that it violated Title IX when it reduced the number of teams advancing to post-season tournaments in men’s and women’s soccer, men’s and women’s tennis, women’s volleyball, and women’s softball.
In so ruling, the court found that questions remained about whether the conference, as an indirect recipient of federal funds, was liable under Title IX. While a question about the injunctive relief sought by the plaintiffs was moot, since the plaintiffs had graduated, the plaintiffs’ pursuit of damages remained in play.
Nevertheless, the conference maintained that the court should dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6), arguing, among other things, that the court lacks subject matter jurisdiction because Defendant is not liable under Title IX and that the plaintiffs also fail to state a claim because the defendant is not liable under Title IX.
On the first point, the court wrote that “whether the defendant receives Title IX funding necessarily implicates the merits of the plaintiffs’ case.”
The court continued: “Because the Southern Conference and its member schools receive federal financial assistance (directly or indirectly); because the Southern Conference governs, regulates, operates, and controls an educational activity that receives federal financial assistance (i.e., intercollegiate athletics); and because the member schools delegate and assign the authority to do so to the Southern Conference, the Southern Conference and its member schools are subject to and must comply with Title IX.
“The complaint sufficiently alleges that the defendant is an indirect recipient of federal funding. In light of Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1293 (11th Cir. 2007), the plaintiffs’ allegation that Title IX applies to the defendant is not frivolous or wholly insubstantial and, therefore, this court has subject matter jurisdiction over the case.”
A similar proposition — that the defendant is an indirect recipient of Title IX funding – prevailed on the second argument.
“In NCAA v. Smith, the Supreme Court concluded that the NCAA’s receipt of dues from its members did not trigger Title IX coverage. 525 U.S. 459, 468, 119 S. Ct. 924, 142 L. Ed. 2d 929 (1999). The Court expressly declined to consider two alternate theories for holding the NCAA liable under Title IX, which the plaintiff raised for the first time on appeal: (1) the recipients ceded controlling authority over federally funded programs to the NCAA, and (2) the NCAA indirectly or directly received federal funding through the National Youth Sports Program (NYSP). Id. at 469-70.
“Citing primarily to Third Circuit cases on the NCAA’s potential Title IX liability, the defendant urges the court to find that the defendant lacks ‘controlling authority’ over its member schools sufficient to bring it within Title IX’s ambit. In Cureton v. NCAA, the Third Circuit found that the NCAA was not a Title VI recipient and noted: ‘[W]e cannot understand how the fact that the NCAA promulgates rules and regulations with respect to intercollegiate athletics somehow means that the NCAA has controlling authority over its members’ programs or activities receiving Federal financial assistance. After all, the institutions decide what applicants to admit, what employees to hire, and what facilities to acquire.’ 198 F.3d 107, 118 (3d Cir. 1999). The Third Circuit reached the same result in Smith on remand from the Supreme Court. Smith v. NCAA, 266 F.3d 152 (3d Cir. 2001). In that case, however, the court concluded that the plaintiff should be permitted to amend her complaint to add allegations that the NCAA and the NYSP, which received financial assistance, were ‘virtually indistinct’ because the NCAA ‘truly assumed control’ of the NYSP, including control of the decision to receive federal funds. Id. at 162; see also Bowers v. NCAA, 118 F. Supp. 2d 494, 527 n.25 (D.N.J. 2000) (rejecting ‘controlling authority’ argument with respect to the NCAA); Johnny’s Icehouse, Inc. v. Amateur Hockey Ass’n Ill., Inc., 134 F. Supp. 2d 965, 970-72 (N.D. Ill. 2001) (rejecting ‘controlling authority’ theory with respect to a state amateur hockey association).
“Crucially, however, in an opinion post-dating Cureton and the Third Circuit’s Smith opinion on remand, the Eleventh Circuit considered whether the University of Georgia ceded control over its athletic department to the University of Georgia Athletic Association, which did not directly receive federal funds. Williams, 477 F.3d at 1294.
While not definitely resolving the issue, the court stated: ‘We are persuaded . . . by the analysis of the Western District of Michigan, noting that if we allowed funding recipients to cede control over their programs to indirect funding recipients but did not hold indirect funding recipients liable for Title IX violations, we would allow funding recipients to receive federal funds but avoid Title IX liability.’ Id. (citing Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n, 80 F. Supp. 2d 729, 733-34 (W.D. Mich. 2000)). The court concluded that the plaintiff’s complaint sufficiently alleged control, thus satisfying the federal funding element of her claim, and left ‘for the discovery process and the district court to determine whether to treat UGAA like a funding recipient.’ Id.
“The plaintiffs allege that the defendant ‘governs, regulates, operates, and controls’ the intercollegiate athletics of its member schools and those schools ‘delegate and assign the authority to do so’ to Defendant. Accepting these facts as true, the court concludes that, as in Williams, the plaintiffs sufficiently allege that the defendant is a Title IX funding recipient to survive a motion to dismiss.”
Amanda Barrs et al. v. The Southern Conference; N.D. Ala.; Civil Action Number 2:10-cv-01227-AKK, 2010 U.S. Dist. LEXIS 96705; 8/10/10
Attorneys of Record: (for plaintiffs) Alicia K Haynes, Kenneth D Haynes, HAYNES & HAYNES PC, Birmingham, AL. (for defendant) Franklyn C Steinberg, III, STEINBERG LAW LLC, Somerville, NJ; Mac M Moorer, Madeline H Haikala, LIGHTFOOT FRANKLIN & WHITE LLC, Birmingham, AL.
