By Emily J. Houghton and Erica J. Zonder
In February 2023, the U.S. District Court in Florida issued a preliminary injunction in favor of six male student-athletes from Florida Institute of Technology who alleged that the university violated Title IX. The male student-athletes filed the lawsuit against Florida Institute of Technology (FIT) in 2022. The student-athletes claimed FIT violated Title IX when the university eliminated rowing and other programs.
Background
In June 2022, the university informed student athletes that they would eliminate several athletic programs including men’s rowing. The university told the student-athletes that they could still participate in rowing by creating a club team. The university president then announced these cuts via a public statement in July 2022. Prior to eliminating those five teams, FIT had cut several other athletic programs in recent years. For example, in 2019, the university terminated the football team (120 student-athletes and 8 coaches) due to issues related to COVID -19 and the rising costs of fielding a competitive football team (Gleeson, 2020). In 2019, FIT also terminated the men’s and women’s tennis programs along with women’s golf (Gleeson, 2020).
On October 24, 2022 the six male student-athletes (“the plaintiffs”) filed a complaint against FIT alleging 1) violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 equal participation; 2) equal treatment; 3) equal scholarship opportunities; and 4) preliminary injunction.
Count I: Violation of Title IX- Equal Participation
The plaintiffs alleged that at the time FIT eliminated the men’s rowing team, the university was out of compliance with Title IX. They pointed to the university reports based on the Equity in Athletics Disclosure Act of 1994. According to the data disclosed by FIT in 2020-2021, of the 3,010 undergraduate students, 69% were male and 31% were female (Complaint, *33). In terms of student-athletes, men comprised 58.7% of student-athletes in 2020-2021 and women 41.3% which created a “participation gap of 123 athletes” (*14). The plaintiffs also alleged that the university had been out of compliance with participation opportunities for men resulting in 100 fewer opportunities for male student-athletes based on the overall population of the university for each year from 2014-2015 to 2020-2021 (*35). When FIT cut football in 2019, they did not add a men’s team that provided a similar amount of participation opportunities, which further perpetuated the equal participation gap for male student-athletes (*40). The complaint further claimed that after cutting men’s rowing and the other men’s teams in 2022, FIT would be short 126 participation opportunities for male students (*41). The plaintiffs argued that since FIT has already been out of compliance with the proportionality prong of the Title IX analysis by cutting football and men’s rowing, FIT also has not accommodated the interests of male student-athletes on campus who were interested and able to participate in sports as they were already varsity athletes (*42). In addition, FIT has repeatedly cut men’s sports and subsequently has not demonstrated a history and continuing practice of adding participation opportunities for male student-athletes (*42). The plaintiffs further argued that FIT counting esport athletes would not satisfy Title IX requirements (*44).
Count II: Title IX-Equal Treatment
By downgrading the men’s rowing program to club status, the plaintiffs alleged that they are not being treated equally with other women’s varsity sports. In addition, the plaintiffs argued that club teams at FIT self-fund coaches, equipment and operations costs based on student fees and donations and therefore, it would prevent students from joining the team which in turn is unequal treatment under Title IX (*7).
Count III: Title IX-Equal Scholarship Opportunities
In terms of scholarship opportunities, the plaintiffs alleged that from 2004-2005 to 2020-2021, male student-athletes lost out on $10,500,000 in financial aid (*45). The plaintiffs claimed that in 2020-2021, male student-athletes should have received $458,000 more dollars in financial aid than they received. In the 2020-2021 academic year there was a purported 12% differential in the amount of financial aid with male student-athletes getting less financial aid than they should have based on enrollment and proportionality (*55).
Count IV: Title IX-Injunction
Lastly, the plaintiffs sought an injunction against FIT because they wanted the university to reinstate the rowing program. They claimed that FIT would not be harmed, but the rowers have been harmed by the university cutting their program. The plaintiffs stated that the university has harmed students financially by eliminating scholarships and emotionally due to shock of the program getting terminated, loss of relationships due to students transferring, and coaches leaving for opportunities at other universities (*47).
District Court Ruling
As the plaintiffs were seeking a preliminary injunction, the Court assessed the four required elements (per 11th Circuit case Forsythe Cnty. v. U.S. Army Corp of Engineers, 2011), finding that all four were satisfied in this case (Order, p. 20):
Substantial likelihood of success on the merits
As noted above in Count 1, the plaintiffs contend that FIT is out of compliance with the participation piece of Title IX. FIT argues that there was only a three student participation gap, assuming, noted the Court, two conditions: 1) esports offers genuine participation opportunities for intercollegiate athletes and 2) online-only students should count in the overall enrollment numbers. The Court addressed both conditions in the following:
Firstly, the Court here relied on the OCR’s “flexible,” case-by-case approach to determine whether esports counts for Title IX purposes, and further compared it to the competitive cheerleading issue in Biediger, calling that case an example of a “close-call” application of OCR’s factors (p. 13) (No favorable presumption applied since cheerleading was not sanctioned by the NCAA, yet the program was structured and administered consistent with the school’s other varsity sports, including practice time, regimen, and venue, and further the length of the season and the “purpose of the team” were also consistent with other varsity sports.). However, the Biediger Court found shortcomings, including lack of off-campus recruitment, uniform rules, intercollegiate competition, and a progressive playoff system. Esports, according to the District Court, was not a close call since it “does not require athletic ability” (p. 13 – and this is perhaps a harsh, inaccurate assessment). More compellingly, the plethora of different video games lacking uniform rules enforced by a national governing organization, games are owned by commercial vendors and leased to players, so sport governance associations have no control over those rules. And, as in Biediger, there is no evidence that FIT recruits off campus or has a progressive playoff system. Even if the esport participants practice and compete, it is not done so in a manner that is consistent with the school’s other varsity teams. Therefore, the Court here found the FIT’s esports program failed to provide genuine participation opportunities under Title IX.
Secondly, given that FIT is out of compliance when esports is not considered for Title IX purposes, the Court did not see the need to determine whether the online-only students should be counted. The Court did, however, note that the definition of full-time students that FIT used to support its argument was found in the Federal Student Aid Handbook, which was derived from Title IV and therefore it is “likely that policy considerations for student financial aid would differ from policy considerations regarding discrimination under Title IX” (p. 14 – footnote 4).
Irreparable harm will be suffered
Courts have consistently held that due to the fleeting nature of college athletics, student-athletes will suffer irreparable harm by losing the opportunity to compete in their sport (per Biediger,), and further that the elimination of a team creates irreparable harm when the plaintiffs have demonstrated a likelihood of success on the merits of their Title IX claim (per Mayerova). Here, FIT argues that the plaintiff’s delay in filing a motion for injunctive relief (“about six months”) shows the harm is not imminent, but the Court disagreed, attributing that delay, partially, to FIT’s own untimely response to an information request (p. 17). FIT further cited both Equity in Athletics and Miller v. Cincinnati cases to argue that the plaintiffs faced no irreparable harm because they did not lose their scholarships and they were free to transfer. Nevertheless, the Court here distinguished both cases, as the school in Equity cut sports to bring itself into compliance, therefore there was not a likelihood of success on the merits for the plaintiffs in that case, and in Miller, the plaintiffs failed to demonstrate any difficulty in transferring (no testimony in this regard), whereas the plaintiffs here testified to transfer difficulties due to the timing of the announcement. Thus, the District Court in the instant case found the evidence of irreparable harm to be substantial for these student-athletes.
Threatened injury to the movant outweighs damage the proposed injunction may cause
When considering thebalance of harms, the Court, citing Haffer v. Temple and Daniels v. Brevard Cnty, found that the harm associated with a Title IX violation is “serious” and financial concerns cannot alone justify gender discrimination. Therefore, the Court was “unsympathetic” to the school’s claim that undue harm will result from the financial expenditure necessary to reinstate rowing (p. 20)
The injunction would not be adverse to the public interest
Once more, according to the Court,the public has a compelling interest in eradicating gender discrimination and promoting Title IX compliance. For this reason and because the plaintiffs established a likelihood of success on the merits, the public’s interest weighed in favor of the Court granting the preliminary injunction (p. 20).
FIT Compliance
Subsequently, FIT notified the Court that it took the following steps in compliance with the Court’s Order: apportioned necessary funding for the men’s rowing team for the “remainder of the academic year;” hired an interim coach at full-time compensation level; is “willing” to hire an assistant coach if necessitated by number of athletes; and all other benefits that are provided to other varsity, intercollegiate teams are available to men’s rowing (Notice of Compliance, p. 2). The team was officially reinstated on March 12th (Keenan, 2023), took first place in two events at the Hatter Invitational Regatta on March 25th, and also took first place in three events at the FIRA Championship Regatta on April 1st.
References
Gleeson, S. (2020, May 11). Florida Tech eliminates its football program amid coronavirus pandemic. Retrieved from: https://www.usatoday.com/story/sports/ncaaf/2020/05/11/florida-tech-eliminates-football-program-amid-coronavirus/3109052001/
Keenan, J. (2023, March 12). Athletes’ varying opinions on the reinstatement of men’s rowing. Retrieved from https://www.crimson.fit.edu/campuslife/athletes-varying-opinions-on-the-reinstatement-of-men-s-rowing/article_2b0e3b5c-cc1e-11ed-a624-afb9b773e18e.html
Navarro et al v. Florida Institute of Technology, Inc., Complaint. No. 6:22-cv-1950-CEM-EJK (M.D. FL, October 24, 2022).
Navarro et al v. Florida Institute of Technology, Inc, Order. No. 6:22-cv-1950-CEM-EJK (M.D. FL, February 17, 2023)
Navarro et al v. Florida Institute of Technology, Inc., Defendant’s Notice of Compliance, No. 6:22-cv-1950-CEM-EJK (M.D. FL, March 13, 2023).
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.
