Appeals Court Reverses Trial Court’s Finding for NCAA in Learning-Disabled Discrimination Case

Mar 16, 2007

The 3rd U.S. Circuit Court of Appeals has breathed new life into a lawsuit, which seeks to force the NCAA to continue to broaden its acceptance of learning-disabled student athletes.
 
Almost a decade ago, Kathleen Bowers sued the NCAA and two of its member schools, Temple University and the University of Iowa, for discrimination after her son, Michael, was allegedly denied an opportunity to compete in college athletics because of a learning disability. Specifically, she alleged that the defendants had violated Titles II and III of the Americans with Disabilities Act of 1990.
Bowers lost at the district court level when a trial judge granted the Defendants’ motion for summary judgment, which relied in large part on a finding of discovery violations. Specifically, the court determined that the plaintiff’s failure to disclose the information about her son’s drug abuse problem and depression in a timely fashion was a willful one, in bad faith and that it irreparably prejudiced Temple’s ability to prepare a defense to his mother’s claims.
 
“The District Court further concluded that evidence of Michael Bowers’ drug use was relevant not only to the issue of damages, but also to questions of liability,” wrote the appeals court. “Consequently, the District Court entered a sanctions order pursuant to Federal Rules of Civil Procedure 37(c)(1) and 37(b)(2)(B). This sanctions order impaired Bowers’ case in critical fashion. First, it precluded her from using any previously concealed information to support her claim that Defendants were liable for Michael Bowers’ drug abuse and depression. Second, they precluded her from opposing Defendants’ claim that Michael Bowers’ drug abuse rendered him unqualified to participate in intercollegiate athletics at all relevant times, which as a practical matter meant Defendants would be immune from liability.”
 
The plaintiff appealed the grant of summary judgment.
 
The appeals court held that “the District Court’s summary judgment analysis in this case was fundamentally flawed in that it failed to focus on the correct time frame with respect to Defendants’ liability. We have clearly stated that the determination of whether a person was a ‘qualified individual with a disability’ for the purposes of an ADA claim is not made from the time the lawsuit was filed or any other later time period, but from the point at which the alleged discriminatory decision was made. Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006); Gaul v. Lucent Techs., 134 F.3d 576, 580; see also Bates v. Long Island R.R. Co., 997 F.2d 1028, 1035 (2d Cir. 1993). In this case, the allegedly discriminatory conduct occurred over the course of the Fall 1995-96 school year, during which time Bowers was deemed to be a nonqualifier and the defendant universities in this case allegedly stopped recruiting him for that reason.”
 
Further, “the evidence of any substance abuse in 1995-96 is minimal. Bowers apparently tried marijuana for the first time in 1991 at age 13 but appeared to use the drug infrequently. His last reported marijuana use was in July 1998, at which point he reported he had shared a ‘joint’ five times over the past year. There is no evidence that Bowers was taking any other illicit drugs in 1995-96. Bowers told counselors at Seabrook House that drugs did not become a problem for him until 1998. Dr. Carol Roberts, an expert retained by Bowers, stated in her report that: ‘In describing his own plunge into depression and addiction, Michael told me that in high school he had stayed away from drugs because he needed to be in top physical condition to play sports. He graduated in 1996, and at the end of 1998 while he was at Temple, he tried snorting cocaine with a friend.’ The record does indicate that Bowers began taking painkillers in Fall 1996. However, while Bowers acknowledged that he eventually became addicted to these painkillers, he began taking them on prescription, and after he was already denied initial eligibility and after recruiting efforts has ceased. Furthermore, there is no indication that he would have failed an NCAA drug test for ingesting prescription drugs. See NCAA policy 31.2.3.2.”
 
The appeals court added that “agreed with the District Court that this case has become an ongoing saga. With this opinion, we have contributed yet another episode to the saga, but it has not been our intention to thicken the plot. With that in mind, we observe that a central question has yet to be resolved: whether the Defendants, in their treatment of Michael Bowers, in fact violated anti-discrimination law. Consequently, we will reverse the order of summary judgment and remand this matter to the District Court for treatment in accordance with the rulings stated herein.
 
Kathleen Bowers v. NCAA et al.; 3rd Cir.; Nos. 05-2262, 05-2268, 05-2269 and 05-2426; 2007 U.S. App. LEXIS 2150; 2/1/07
 
Attorneys of Record: (for plaintiff) A. Richard Feldman (Argued), Richard L. Bazelon, Noah H. Charlson, Bazelon, Less & Feldman, Philadelphia, PA; Barbara E. Ransom, Public Interest Law Center of Philadelphia, Philadelphia, PA. (for Temple) John B. Langel (Argued), Shannon D. Farmer, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, PA. (for NCAA) J. Freedley Hunsicker, Jr. (Argued), Drinker, Biddle & Reath, Philadelphia, PA. (University of Iowa) Jack J. Wind, Margulies, Wind & Herrington, Jersey City, NJ; Gordon E. Allen, Mark Hunacek (Argued), Office of Attorney General of Iowa, Des Moines, IA.
 


 

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