By Adam Y. Siegel and Robert L. Clayton
On April 13th, the NCAA’s Division I Legislative Council approved a new rule permitting voluntary testing of student-athletes to determine if they are carriers of the rare but potentially deadly sickle-cell trait. The Council’s vote comes on the heels of a settlement between Rice University, Conference USA, and the parents of a deceased Rice football player, Dale Lloyd, who died after a rigorous practice. Lloyd was a carrier of the sickle trait. As part of the settlement, Rice and Conference USA agreed to act as strong advocates for testing of the sickle-cell trait and leaders in the proposal to bring comprehensive testing to the NCAA and its institutions.
The trait, found in approximately 8 percent of African-Americans and less than 1 percent of White Americans, has been linked to the death of 8 college football players over the past decade. Notably, 21 total deaths have occurred as a result of college football training regiments during the same span. During intense training or exercise, individuals with the sickle-cell trait can have the shape of their red blood cells mutate causing a “logjam” of cells, resulting in possible death. This incredible data furthers the concern that carriers of the sickle-cell trait are more prone to death during intense exercise than individuals without the trait.
Initially, the NCAA wanted to implement a mandatory test, requiring all NCAA student-athletes to test for the sickle-cell trait. However, opposition from the Sickle Cell Disease Association of America and NCAA conferences such as the Pacific 10 and Big East prevented the mandatory language from passing. Instead, the Legislative Council passed a measure permitting individual athletes to opt-out of the testing. According to opponents of the measure, the key factor for opposition was the potential discriminatory effect a positive result could have on the student-athlete (e.g. players may be denied the opportunity to compete).
Proponents of the test do not share the sentiment that such positive tests will result in discriminatory conduct. Instead, they propose that athletes be specifically told that the test will not affect their status as a student-athlete and argue that having knowledge of the results is crucial to protect the health and safety of the student-athletes. This article examines whether implementation of a voluntary test constitutes actionable discrimination under Title VI of the Civil Rights Act of 1964.
Title VI of the Civil Rights Act, and subsequent regulations enforcing it, prohibit discrimination on the basis of “race, color, or national origin…under any program or activity receiving Federal financial assistance.” Each college and university in the United States falls under the purview of Title VI as they receive some type of Federal financial assistance.
The Supreme Court has held that such regulations may validly prohibit practices having a disparate impact on protected groups, even if the actions are not intentionally discriminatory. In other words, a recipient of Federal funds, e.g. a university, can violate Title VI when it implements a neutral procedure or practice that has the effect of discriminating against a protected class. The policy or practice may very well be facially non-discriminatory but the result of that test has a disproportionate impact on a group protected by Title VI. Notwithstanding any discriminatory impact, an institution may nevertheless implement the policy by showing that it had a “substantial legitimate justification” for enacting it.
The NCAA’s newly passed policy of testing for the sickle-cell trait is the perfect example of a facially neutral practice that, based on the current statistics, could have a disproportionate impact on a group protected by Title VI. There does not seem to be any dispute that the sickle-cell test disproportionately impacts African-American athletes. However, will the test actually adversely impact African-Americans and if so, does the NCAA and its university members have a substantial legitimate justification in implementing this policy?
Proponents of the sickle-cell testing argue that 64 percent of Football Bowl Subdivision (formerly Division 1-A) institutions already screen their athletes for the sickle-cell trait. Despite this number, there is no published evidence that athletes from these schools have been denied participating in competition because of a positive test. Instead, the screening is a mechanism to help coaches and trainers understand the parameters to which a player can be pushed without the concern that the sickle-cell trait will cause death.
Even if there is a disproportionate adverse impact, institutions may have a strong argument that they are substantially justified in requiring the testing. Universities have a duty to protect the health and safety of all its students, including its athletes. The NCAA’s Membership Obligations includes the responsibility “to protect the health of and provide a safe environment for each of its participating student-athletes.” Does this mean that a NCAA member institution is required to test for the sickle-cell trait?
To meet the substantial legitimate justification exception, the university must demonstrate that there are not equally effective alternative methods that have a less discriminatory impact. For example, is it equally effective to implement training for all athletes to a degree that does not risk even those with the sickle-cell trait? Can trainers effectively monitor all athletes in the same manner in which they would monitor those with the sickle-cell trait, thus making knowledge of the trait obsolete? Would reducing the training regiments in this manner affect the performance of the team on the field in competition? If all schools had the same restrictions, would it even matter?
Additionally, the opt-out provision in the testing language may prove to be a defense to this duty to protect the health of its student-athletes. The university meets its obligation to its students by offering the test. They cannot prevent the individual from refusing it, thus they should not be liable for any adverse consequences that occur.
The bottom line is that universities must walk a thin line between creating a test that indirectly discriminates against its athletes while at the same time protects those same athletes and allows their coaches to understand the parameters to which each person can be pushed. With the recent passage of the rule, we will closely monitor the student-athlete’s receptiveness to the testing and whether any individuals challenge its constitutionality.
Adam Y. Siegel, Esq., is a member of the Jackson Lewis Sports Compliance Group in the Los Angeles office. Robert L. Clayton, Esq., is the Chair of the Jackson Lewis Sports Compliance Group in the Washington DC Region office.
