By Ellen J. Staurowsky, Ed.D., Senior Writer and Professor, Sport Management, Drexel University, ejs95@drexel.edu
Despite efforts on the part of SUNY Albany to have a lawsuit filed by four tennis players and their coach, Gordon Graham, seeking to have their program restored after being cut in 2016 dismissed, a U.S. District Court judge for the Northern District of New York ruled in a July 26, 2018 order that plaintiffs’ claims regarding Title IX violations and gender discrimination against the coach can proceed.
The plaintiffs, however, did not get everything they were hoping for. The judge set aside their request for summary judgement and would not allow plaintiffs to seek punitive damages for harms suffered as a result of their alleged unfair treatment by the university (Pejovic et al. v. State University of New York at Albany, 2018).
The Issues
There are three key issues that have been raised in this case. First, was SUNY Albany’s decision to eliminate women’s tennis part of a larger pattern of conduct that showed disregard for Title IX compliance in the athletic department over the span of many years? Second, did the decision to eliminate women’s tennis constitute a Title IX violation itself? Third, were Gordon Graham’s rights under the Equal Protection Clause of the Fourteenth Amendment and the New York State Human Rights Law violated as a result of repeated acts of age discrimination?
State of SUNY Albany Athletics Prior to Tennis Program Elimination
In August of 2014, SUNY Albany hired Mark Benson as director of athletics, an athletics administrator with considerable experience in revenue-generation. Prior to his appointment at Albany, he served as senior associate athletic director and assistant vice president for athletic development at Old Dominion. Under his leadership, the Old Dominion Athletic Endowment increased by more than $16 million and the Old Dominion Athletic Foundation experienced explosive growth, going from $400,000 to over $4 million. Earlier in his professional career, Benson worked for Coca-Cola Enterprises, assigned to the Commonwealth Division (Delaware through eastern North Carolina), where he handled negotiations for beverage contracts with colleges and universities in their Educational Channel (SUNY Albany Athletic Communications, n.d.a).
Benson’s hiring signaled a new era in the evolution of the SUNY Albany athletic department. Happening just a year after the opening of the University’s new football stadium and start of the football team competing as a member of the Colonial Athletic Association (CAA), Benson was taking over an athletic department with sights set on realizing a return on investment from its $24 million stadium and athletic facility venture ($19 million being devoted to the football stadium itself) (“Bob Ford Field…”, n.d.; Media Relations Office, 2013).
The SUNY Albany athletic department was one that had undergone significant changes over the span of three decades. When the NCAA’s move to a federated governance structure in 1972, SUNY Albany originally elected to participate at the Division III level, a level they maintained until the 1995-1996 academic year. For the next three years, they operated at the Division II level and then made the transition to Division I in 1999 (Herman, 2009). With each progressive move, there were increasing budgetary, staffing, and facilities resources needed to support the success of their athletic programs (Thomas, 2009). In 2013, those resources would be stressed again when the football program switched affiliations from the less competitive and lower profile Northeast Conference to the CAA. The program would encounter another external stressor when the National Football League’s (NFL’s) New York Giants, a team that had held its pre-season training camp there from 1996-2012, opted not to return in 2013.
While some of SUNY Albany’s programs, such as men’s lacrosse, were positioned well to compete within the America East Conference, earning berths in multiple years to NCAA tournaments (“Albany Great Danes Men’s Lacrosse,” n.d.), a highly successful football program that had grown from a club sport in the early 1970s to an FCS football program under the direction of head coach Bob Ford throughout that time, seemed to have run aground in 2013. Uncharacteristically, a team that had won 256 games against 169 losses in total (60% winning percentage), with 93 wins and 33 losses in conference (68% winning percentage), failed to win a game in 2013 against CAA opponents, finishing the season with one win and 11 losses overall. In the years following Coach Ford’s retirement in 2013, the team compiled an overall record of 22-35, with a CAA conference record of 11-28 (“Bob Ford”, n.d.).
During at least two critical junctures as the Albany athletic department transitioned from one level to another, the athletic department attempted to eliminate programs. The first such occasion was in 1994 when the varsity sports of wrestling, men’s tennis and men’s and women’s swimming were eliminated, resulting in a lawsuit filed in the State of New York Supreme Court. An order dated August 26, 1994 required the University to reinstate those teams along with their funding at previously approved levels along with the provision of all other operational benefits they might have received if not for the fact that they had been cut. The University was further admonished when taking actions that resulted in the termination of or reduction in the status of programs that those affected be given adequate notice, that athletes be afforded the opportunity to transfer, and that any decision be done in compliance with federal law. The second occasion led to the current lawsuit.
Before the Lawsuit, an OCR Complaint
Prior to pursuing relief through litigation, in the spring of 2017, a complaint was filed with the U.S. Department of Education Office for Civil Rights (OCR), the federal agency responsible for the enforcement of Title IX. The complaint alleged that Albany discriminated against female athletes “…by failing to fully and effectively accommodate the interests and abilities of female students to the extent necessary to provide equal athletic opportunities to members of both sexes” (Blanchard, 2017). In its official findings, OCR determined that Albany was in violation of Title IX, unable to demonstrate that it provided athletic opportunities to female athletes proportional to enrollment; unable to demonstrate a history and continuing practice of program expansion for female athletes; and unable to demonstrate that an effort had been made to fully and effectively accommodate the interests and abilities of female students. Albany’s athletic department did not have a policy to entertain requests for new teams nor was there an effort made to document how they were meeting athletic interest among female athletes. Having been found in violation of Title IX in offering equitable athletic opportunities to female athletes, the University entered into a resolution agreement.
Despite the findings in the OCR investigation, Pejovic et al (2017)noted that “These official findings understate Defendant SUNY Albany’s repeated and successful efforts to sidestep the requirements of Title IX” (p. 20). The plaintiffs further pointed out that “For years, Defendant SUNY Albany’s reports to the Department of Education have employed a variety of methods to short-change female student-athletes, including double-counting both men and women participating in so-called ‘Indoor Track and Field and Outdoor Track and Field” and counting males who practice with women’s teams as women” (p. 21).
Hurdles Proving Problematic for Albany Relative to the Fair Treatment of Female Athletes
When Albany announced that the women’s tennis program was being eliminated, Mr. Benson pointed to the fact that the changing status of the sport within the America East Conference was the primary reason for the decision. The departure of an affiliated school that offered tennis had left the conference with too few schools to receive an automatic bid for the conference to the NCAA tournament. A domino effect then occurred, with three other conference schools (Harford, University of Maryland-Baltimore County, and then Albany) simply cutting their programs (SUNY Albany Athletic Communications, n.d.c.). Head Coach Graham, however, claims that an automatic qualification through a conference was not the only way in which an Albany team could have made the tournament and there was no effort made by Benson to engage Graham in exploring other alternatives for the team to compete in post-season competition (Pejovic et al. v. State University of New York at Albany, 2017).
In explaining what was going to be done with the revenue from the women’s tennis program, the University claimed that “The Athletic Department will reallocate existing funds into areas that will strengthen their Title IX position, as well as areas that will benefit all student-athletes from a student welfare perspective. UAlbany will increase the number of female student-athlete participants amongst the existing women’s sports programs” (SUNY Albany Athletic Communication, n.d.c., para. 8). The money was also going to be reallocated to other support areas that benefitted all athletes and funding to elevate part-time coaches of women’s teams to full-time.
A review of the department’s allocations between 2015-2016 and 2016-2017 as reported in the Equity in Athletics Disclosure Report offers a muddy picture of where the money from the women’s tennis program might have gone. In looking at the total revenue picture for 2016-2017, the total amount reported for women’s programs actually dropped by $56,817 while there was an overall increase in total allocation for men’s programs of $611,043. Comparing the percent of revenue dedicated to women’s programs before and after the women’s tennis team was eliminated, women received less of an allocation the year after the cut, dropping from nearly 32% of the budget in 2015-2016 to 29% in 2016-2017. Additional questions arise when looking at allocations over the span of time in the area of recruiting. In 2016-2017, women’s programs received 36% of the money allocated for recruiting. While these are not definitive findings, they raise questions regarding how the women’s tennis money was redistributed for Title IX purposes.
An analysis of participation opportunities for male and female athletes within the Albany athletic department offer some other red flags relative to the university’s claim that there would be an increase in the number of women competing on remaining teams. In 2015-2016, when women’s tennis had not yet been cut, 267 athletic opportunities were available to female athletes. In 2016-2017, that number had dropped to 246, down by 21 opportunities. That drop more than doubled the number of lost opportunities represented by the cut to the women’s tennis program, where the team averaged eight members per year over the span of a decade and had nine on the team at the time of the actual cut (SUNY Albany Equity in Athletics Disclosure Act Report, 2017).
The Issue of Age Discrimination
According to the complaint, Head Coach Graham alleges that Mr. Benson and at least one other athletics administrator exhibited an ageist attitude in their dealings with him. While Albany asserts that when Coach Graham’s contract ended, he was simply not renewed, he claims that he was terminated because of his age. In support of his claim, Coach Graham cites several instances where comments were made publicly about his age to athletic department staff members as well as an alumna regarding Graham’s age and readiness for retirement. Mr. Benson purportedly used the expression that Graham was “old enough to retire” on several occasions. As described in the complaint, “Having failed to persuade him to retire with demotions and humiliation, in July 2016 Defendant SUNY Albany notified Plaintiff Graham that despite five years of excellent annual reviews and championship results, his contract would not be renewed after it expired…” (Pejovic et al. v. State University of New York at Albany, 2017, p. 24).
Concluding Thoughts
In the end, the tennis players and their coach who originally filed this class action suit did not realize their immediate concern, that being the restoration of the women’s tennis program in a timeframe that would have allowed them to continue to play and for the head coach to advocate for the program. While they might have been able to recover something of their season if they had filed for a preliminary injunction within weeks of their program being cut, they did not do so until more than a year after the announcement was made. As this case moves forward, however, there may be much greater scrutiny of Title IX compliance within the Albany athletic department that extends well beyond the OCR investigation from 2017.
References
“Albany Great Danes Men’s Lacrosse.” (n.d.). History. Retrieved from https://en.wikipedia.org/wiki/Albany_Great_Danes_men%27s_lacrosse
Amata, L. (2015, July 15). UAlbany’s AD Mark Benson excited to continue growth of athletic program. The Record. Retrieved from http://www.troyrecord.com/article/TR/20150617/SPORTS/150619683
“Bob Ford (American Football)”. (n.d.). Biography and coaching history. Retrieved from https://en.wikipedia.org/wiki/Bob_Ford_(American_football)
“Bob Ford Field at Tom and Mary Casey Stadium.” (n.d.). Press release. Retrieved from http://www.ualbanysports.com/ViewArticle.dbml?DB_OEM_ID=15800&ATCLID=209273988
Herman, C. (2009, August 26). University at Albany marks 10th anniversary of Division I athletics. Press release. Retrieved from https://www.albany.edu/news/release_7343.php
Media Relations Office. (2013, September 10). UAlbany’s new $24 million multi-sports complex: A premier venue for University, community at-large. Press release. Retrieved from https://www.albany.edu/news/42464.php
Pejovic, Kang, Sala Huerta, King, & Gordon v. State University of New York at Albany and Mark Benson (2018). Case No. 1:17-cv-1092 (TJM/DTS). Retrieved from PacerMonitor.org.
Pejovic, Kang, Sala Huerta, King, & Gordon v. State University of New York at Albany and Mark Benson (2018). Case No. 1:17-CV-1092 (TJM/DTS). Retrieved from https://public.fastcase.com/Wl%2B2t%2BeVuI35%2FN70vAMFZqaFsU% 2B5jSMjveirKxsnhJ4nryQeUvjyT5%2BBm1la3v0meqDBImKBxLCRfsNKv9P4wQ%3D%3D
SUNY Albany Athletic Communications. (n.d.a). Mark Benson bio. Retrieved from http://www.ualbanysports.com/StaffDirectory.dbml
SUNY Albany Athletic Communications. (n.d.b). Graham Gordon bio. Retrieved from http://www.ualbanysports.com/ViewArticle.dbml?DB_OEM_ID=15800&ATCLID=205245112
SUNY Albany Athletic Communications. (n.d.c). UAlbany athletics to discontinue tennis following 2016 season. Press release. Retrieved from http://www.ualbanysports.com/ViewArticle.dbml?DB_OEM_ID=15800&ATCLID=210829808
SUNY Albany Equity in Athletics Disclosure Act Report. (2017). Retrieved from https://ope.ed.gov/athletics/#/institution/details
Thomas, K. (2009, November 16). SUNY weighs value of Division I sports. New York Times. Retrieved from https://www.nytimes.com/2009/11/17/sports/17suny.html
