Court Sides with NCAA on Discovery Motion in Long-Running Eligibility Suit

Apr 25, 2008

A district judge has denied a plaintiff’s motion to compel in a case involving a parent’s attempt to force the NCAA to continue to broaden its acceptance of learning-disabled student athletes.
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 initially 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 3rd U.S. Circuit Court of Appeals breathed new life into the case last year when it overturned the trail court’s decision.
On remand, the plaintiff moved to compel the deposition testimony of a Rule 30(b)(6) witness from the National Collegiate Athletic Association and the production of related discovery materials. Specifically, the plaintiff wanted the NCAA to produce a witness to testify about the changes in the organization’s initial eligibility bylaws and policies relating to high school students with learning disabilities that have occurred since the 1995-1996 academic year.
The plaintiff also sought four categories of documents at least fourteen days prior to the requested deposition:
1. All documents concerning the changes in the NCAA’s bylaws, policies, rules and practices in place to determine the initial eligibility of student-athletes with learning disabilities who seek qualifier status to the NCAA’s Division I and Division II member institutions, 1995-96 to the present.
2. All documents concerning the research, data, analysis, reports, and other information concerning the reasons for the changes in the NCAA’s bylaws, policies, rules, and practices concerning initial eligibility for students with learning disabilities and the impact on their academic success and graduation rates, from 1995-96 up to and including the present, including all communications with DOJ concerning initial eligibility for students with learning disabilities.
3. All documents concerning the research, data, analysis and other information concerning the effects of the changes in the NCAA’s bylaws, policies, rules, and practices concerning initial eligibility for students with learning disabilities, from 1995-96 up to and including the present, including the effect of these changes on academic success and graduation rates, and including all communications with DOJ concerning initial eligibility for students with learning disabilities.
4. Data, analysis, reports and other information from the NCAA’s Clearinghouse and its Academics/Eligibility/ Compliance Cabinet on the rules, policies and practices concerning the initial eligibility for students with learning disabilities from 1995-96 up to and including the present, including the certification of special education courses as core courses, the acceptance of untimed SAT and ACT scores and the waiver process for students with disabilities.
In support of her motion, the plaintiff argued that the requested discovery is relevant to the defendants’ potential defense at trial that the initial eligibility requirements were necessary in 1995-1996 in order for the NCAA to achieve its goal of ensuring that student athletes succeeded academically in college. The NCAA countered that the Court should deny the plaintiff’s motion on all of the grounds set out in Federal Rule of Procedure 26(b)(2)(C).
The court concluded that “the discovery sought by the plaintiff in the instant motion to compel is disproportionate to the needs of the case for two reasons. First, the Court agrees with the NCAA that the plaintiff has had more than ‘ample opportunity’ to explore the issues she seeks to probe in the proposed deposition. F. R. Civ. P. 26(b)(2)(C)(ii). The plaintiff seeks to depose an NCAA witness in order to update the evidence she has collected regarding the organization’s initial eligibility requirements and the fact that those requirements have changed since the 1995-1996 academic year. When the plaintiff initially deposed Mr. Lennon, Mr. Dempsey, and Mr. Petr in 1999, however, she had the opportunity to ask about the evolution of the eligibility requirements over the course of three years, and, in fact, took advantage of this opportunity. Indeed, the NCAA policy of 1995-96 at issue here had been superseded by the new policy reflected in the 1998 Consent Order. The plaintiff could and did inquire into all the reasons why the 1995-96 policy was implemented, how it affected the plaintiff’s son, and how the new improved mechanism worked for applicants from a special education background. In the plaintiff’s deposition of Mr. Lennon in 1999, for example, Mr. Lennon was asked ‘[a]nd today, the process that the NCAA uses to make a determination about the eligibility for students with learning disabilities, how does it differ from the process that was in place in 1996?’ (Def.’s Opp’n Br. Ex. 3.) By the time Mr. Lennon was deposed, the 1998 Consent Decree that Plaintiff points to as evidence of the NCAA’s changing eligibility policies had been in place for nearly a year. Plaintiff’s observation that the terms of the Consent Decree expired in 2003 and that she does not know the current state of the NCAA’s eligibility policies does not diminish the opportunities she had to depose witnesses about the changes in such policies that occurred in the years following her son’s alleged injury. The plaintiff has no standing to challenge the current policies, nor is the NCAA obliged in this case to explain or defend those policies, whatever they may be.
“Moreover, the plaintiff’s prior opportunities to discover the changes that have taken place in the NCAA’s policies regarding initial eligibility determinations were not limited to these depositions. As the NCAA explained at the February 25, 2008 hearing, over the course of two full discovery periods it has produced approximately 18,000 documents pertaining to the adoption of its eligibility bylaws, its policies concerning core course requirements and eligibility waivers, and the 1998 Consent Decree. At the same hearing, the plaintiff acknowledged having received documents pertaining to the changes in the NCAA’s eligibility policies through July 2001, five years after the alleged act of discrimination underlying this case took place.
“In short, these discovery periods, depositions, and document production have afforded Plaintiff an ‘ample opportunity’ to discover information pertaining to the NCAA’s eligibility policies in 1995-1996 and the changes in those policies that occurred over the following years. F. R. Civ. P. 26(b)(2)(C)(ii).
“The second reason for the Court’s determination that the proposed discovery is disproportionate to the legitimate needs of this case is the fact that evidence pertaining to the evolution of the NCAA’s eligibility policies beyond that which the plaintiff has already discovered is at best only ‘marginally relevant’ to the plaintiff’s stated need for the evidence.”
The court continued, noting that the action “is not a situation where Michael Bowers was denied admission to college, as he indeed matriculated at Temple University. This is not a class action, nor is injunctive relief available to Plaintiff. If Plaintiff succeeds in proving actionable discrimination, monetary relief is sought. The costs of litigating this case over these ten years, in this Court and the Court of Appeals, has surely dwarfed the financial stakes that remain at issue. It is for just such circumstances that the rule of proportionality was adopted.”
“Furthermore, it is not insignificant that the NCAA concedes that its policies changed between 1996 and 1999 and have continued to change in succeeding years. See Boody v. Township of Cherry Hill, 997 F. Supp. 562, 574 (D.N.J. 1997).
“The plaintiff has had ten years to gather support for the claims filed in 1997. In short, the Court finds that Plaintiff has had more than an ‘ample opportunity’ to discover information bearing on the issues in this case, and that the burden of embarking on yet another round of discovery at this point in the case considerably outweighs any marginal benefit that such efforts might yield.
Kathleen Bowers v. NCAA et al.; D.N.J.; Civil Action No. 97-2600 (JBS), 2008 U.S. Dist. LEXIS 14944; 2/27/08
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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