By Loren Galloway
When do roster decisions constitute gender-based discrimination? That’s the question at the center of a suit filed by a former women’s soccer player at the University of California, Berkeley against the institution as well as Cal women’s soccer head coach Neil McGuire and athletics director Jim Knowlton. Renee Thomas, a sophomore at Cal when the suit was filed last fall and a former member of the Laguna Beach High School varsity soccer team, was offered a scholarship spot on the women’s soccer team at the University of Colorado but chose to accept a non-scholarship spot on the Cal team instead.
Thomas alleges that in choosing the Golden Bears over the Buffs, she relied on promises made by McGuire that she would continue as a member of the team as long as she performed well. The complaint notes that Thomas played more minutes than any other non-scholarship freshman in 2018-19, was tied for eighth place on the team for goals and assists, and was named the most improved player at the team’s annual banquet. In April 2019, however, McGuire released Thomas and four other student-athletes from the women’s soccer team, according to the complaint, “without warning or explanation.” That same spring, only one student-athlete was released from the men’s soccer team. Thomas’s complaint claimed that the university violated Title IX’s prohibition on gender discrimination in athletics, as well as various state laws, seemingly based entirely on the allegation that student-athletes on the women’s team were released despite having similar playing time as members of the men’s team who were retained.
Unsurprisingly, given the rather meager factual allegations in the complaint, the defendants moved to dismiss the suit. Cal argued that while Thomas alleged a disparity between the number of student-athletes released from the men’s and women’s soccer teams, Thomas made no other factual allegations “regarding the nature of, or motivation for, McGuire’s decision not to offer her a roster spot for the 2019 season.” Specifically, defendants noted that Thomas did not allege the women’s team had its funding or roster size reduced nor that the decisions to dismiss players from the women’s and men’s squads, which have different coaching staffs, were related. Defendants argued that Thomas was released not due to gender-based discrimination but “in favor of other women deemed to be more likely to contribute to the success of the team.”
To survive a motion to dismiss, a complaint must allege facts that, if accepted as true, support a plausible conclusion that the defendant has violated the law. It is not enough, however, to simply state a legal conclusion without additional factual allegations that support the conclusion. In considering the defendant’s motion to dismiss in this case, the US District Court for Northern California noted that while Thomas’s complaint identified a difference in how student-athletes on the men’s and women’s soccer teams were treated in terms of playing time leading to dismissal or retention, the complaint did not “make a plausible link between the alleged gender bias and the event at issue.”
The court noted that the Title VII disparate treatment framework, under which a plaintiff must show that “similarly situated individuals not in a protected class received more favorable treatment,” can be applied in an analysis of Title IX claim. The court determined that, aside from comparing playing time, Thomas had not presented factual allegations supporting the conclusion that student-athletes on the men’s and women’s soccer teams were similarly situated. The court held that “isolated performance statistics” like playing time do not alone provide the basis for reasonable inferences about why players were released or retained and whether those decisions were based on the gender of the student-athletes; additional factual allegations are necessary to support a claim of unequal treatment under Title IX. Or, to put a finer point on it: “Just saying so is not enough. A recitation of facts without plausible connection to gender is not cured by labels and conclusory statements about sex discrimination.” In its order, however, the court did not dismiss the case entirely, instead granting Thomas leave to amend the complaint.
The amended complaint, filed in March, provides additional factual allegations that McGuire created a hostile environment for his athletes, including psychological and verbal abuse; that Knowlton was informed of such issues and failed to address them; and that at least two women who were not qualified to play soccer were admitted to Cal as student-athletes, a practice which Thomas claims was not tolerated on the men’s team. Defendants filed a motion to dismiss the amended complaint on May 15.
Whether these additional allegations will be enough to state a claim under Title IX remains to be seen, but the amended complaint certainly provides more specific and serious allegations than did the initial complaint. Whatever decision the court reaches on the new motion to dismiss, however, should provide additional clarity on what it takes to show the difference between a coach’s permissible decision about his or her roster and an act of discrimination in violation of the law.
Loren is Assistant Coordinator, Athletics Risk Management & Compliance Services at the University of Texas.
