By Erica J. Zonder & Emily J. Houghton
On December 23, 2024 Bryan Sailer, the former women’s soccer coach, filed a complaint against Emporia State University (ESU) and Athletic Director David Spafford seeking a remedy for gender equity complaints in violation of Title IX of the Education Amendments of 1972 20 § U.S.C. 1681 and a violation of his First Amendment rights of the U.S. Constitution. While Sailer was fired, per ESU, after an investigation into an incident related to players drinking alcohol, Sailer believes his firing was in response to his complaints about “inequity issues” within the athletic department. In addition, Sailer alleges the university and athletic director retaliated against Sailer for using his First Amendment rights.
Sailer’s Title IX Allegations
Sailer had coached at ESU for 13 years and was the “winningest coach in ESU program history” (ESU, 2023). In September, 202(3), the complaint alleges that Sailer approached Senior Associate Athletic Director Colleen Mischke to discuss game film that was “unwatchable.” Home games are filmed by athletic operations staff. Sailer argued that athletic department operations staff would have been more prepared and produced a higher quality, watchable film for the football program (Sailer v. Emporia State University, *17). The complaint also alleges that Sailer had been vocal about Title IX inequities with AD Spafford over the course of the year (*16).
Players’ Letter to ESU Administration
In October 2023, players from the women’s soccer team submitted a letter to Spafford and ESU President Ken Hush detailing what they viewed as Title IX violations committed by the ESU Athletic Department and university. These included a soccer field that was in disrepair which forced the women’s soccer team to play at a local high school that was “better” (Exhibit A, p. 1). In addition, the letter stated that the women’s soccer team had limited access to the weight room, one hour per week of shared time with two other teams. Along with the lack of time in the weight room, the players argued that they worked with an underqualified strength & conditioning coach who was the graduate assistant. The players stated that the graduate assistant never changed the workouts during the season which they felt was “lazy” (Exhibit A, p. 3). Ultimately, and after comparing their situation to Jackson v. Birmingham Board of Education, the players asked ESU to “investigate the treatment of female sports” at the university.
Alcohol Incident(s)
On November 12, 2023 Sailer asked players to remove a social media post in which the players were shown with alcohol and the conference championship trophy that the team had won the day before. On November 20, 2023 the Assistant Soccer Coach Chloe Marquez, and an unnamed Graduate Assistant Coach reported to Spafford that Sailer had consumed alcohol with the team on the bus ride back to campus from the conference championship game in Wichita. The complaint denies those allegations and further Sailer claims that while he saw a bottle of alcohol on the bus as it was arriving back to ESU, he didn’t see anyone drinking, and advised players to be safe and not drive if they had been drinking. Sailer alleges that Spafford had to mediate issues between Sailer, Marquez and the GA whom Sailer claimed “badmouthed him” to players during the year (*37). Further, per the complaint, the players, in a call with Spafford and Mischke on November 26th, said Sailer did not know about the alcohol (*44). And, there had been prior alcohol-related incidents with the ESU Football team that were not investigated (freshman drinking on sidelines) or not acted upon (players drinking on the bus).
ESU’s Response
On November 21, Spafford brought allegations from the assistant coaches to Human Resources (*38) and then responded, by email, to the letter from the soccer team (*39). In his response on the evening of November 21, 2023, he stated that Coach Sailer was a part of the chain of command in terms of the field issues, and further that Sailer was responsible for choosing the times and frequency for training (Exhibit B, Screenshot 2). On November, 22, 2023 the complaint alleges that Sailer was suspended by ESU, banned from campus and told not to talk to staff or student athletes (*41), which “prevented (him) from contacting potential witnesses.” Sailer was fired on December 8, 2023.
Kansas Unemployment Hearing
Per the complaint, in March 2024, the results from the unemployment hearing with the Kansas Unemployment Referee determined “(i) ESU did not establish that Sailer engaged in misconduct; and (ii) Spafford was not a credible witness” (*63).
ESU’s Motion to Dismiss
The Defendants filed a Motion to Dismiss on March 17, 2025, arguing sovereign immunity for ESU under §1983 (while acknowledging immunity is waived for Title IX), and that Sailer’s Title IX claim is unclear – sex discrimination or retaliation? If sex discrimination, Title IX does not afford a private right of action for employment discrimination and Sailer failed to exhaust remedies under Title VII (Motion to Dismiss, p. 6), and if retaliation, the complaint did not allege that Sailer engaged in a “protected activity” (Motion to Dismiss, p. 11). With regards to AD Stafford, Title IX claims do not apply to individuals, the complaint fails to state a claim under the First Amendment: Sailer’s complaints about the field condition, etc. did not occur outside his role as a soccer coach nor were these conversations a matter of public concern (p. 12), and further, Spafford is entitled to qualified immunity. A status conference was set for April 3rd, 2025.
References (partial)
Emporia State University. (2023, November 11). MIAA championship against Central Missouri awaits Emporia State soccer. [Press Release] Retrieved from: https://esuhornets.com/news/2023/11/11/womens-soccer-miaa-championship-against-central-missouri-awaits-emporia-state-soccer.aspx
Sailer v. Emporia State University & Spafford, Complaint. 6:24-cv-01242 (D. Kan. 2024).
Sailer v. Emporia State University & Spafford, Motion to Dismiss. 6:24-cv-01242 (D. Kan. 2025).
Emily J. Houghton, Ph.D. is an Associate Professor of Sport Management at Minnesota State University, Mankato.
Erica J. Zonder, J.D., M.S. is an Associate Professor of Sport Management at Eastern Michigan University.
