NCAA Gets Partial Victory in Bowers Case

Aug 29, 2008

A federal judge has administered a partial victory to the NCAA, the lone remaining defendant in a case in which a mother sued on behalf of her learning-disabled son, claiming that the association and other defendants discriminated against him by not awarding him an athletic scholarship because of his disability
Among the arguments examined by the court in the instant opinion were a series of in limine motions, including: (1) the NCAA’s motion to exclude evidence of the 1998 Consent Decree between the NCAA and the Department of Justice; (2) the plaintiff’s motion to preclude the defendants’ “reasonable modification” and “waiver proceeding” defenses; (3) the plaintiff’s motion to preclude after-acquired evidence on the issue of liability; and (4) the plaintiff’s motion to preclude the defendants from contesting that Bowers was disabled.
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 the defendants’ ability to prepare a defense against the mother’s claims.
The 3rd U.S. Circuit Court of Appeals breathed new life into the case last year when it overturned the trial court’s decision. The litigation has only intensified after it was returned to the district court (see Sports Litigation Alert Vol. 5, Iss. 7).
In the instant opinion, the court granted the NCAA’s motion to exclude evidence of the 1998 Consent Decree, which gave learning-disabled students more power to appeal or seek waivers from the NCAA. The court granted the motion “without prejudice to Plaintiff’s renewal of its request to introduce evidence of pre-Decree bylaw changes if the NCAA controverts the feasibility of alternative policies in its defense.
“The Court will grant in part and deny in part Plaintiff’s motion to preclude Defendants’ ‘reasonable modification’ and ‘waiver proceeding’ defenses. Additionally, the Court will grant Plaintiff’s motion to preclude the admission of after-acquired evidence on the issue of liability in its entirety, and will deny Plaintiff’s motion to preclude Defendants from contesting that Bowers had a learning disability.
“Defendants were not blind-sided by evidence that Bowers had suffered from depression,” added the court. “Consequently, we conclude the District Court’s blanket preclusion of evidence related to depression reflects a clearly erroneous assessment of the evidence in record and was thus an abuse of discretion. We will therefore affirm the sanctions order of the District Court only insofar as it precludes Bowers, in proving damages, from using evidence of his drug abuse and drug abuse-related depression.”
Kathleen Bowers v. NCAA; D.N.J.; Civil Action No. 97-2600 (JBS); 2008 U.S. Dist. LEXIS 50556; 7/1/08


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