By Adam Epstein
Though school’s out for summer (for the most part), within the last week there have been two very interesting sports law decisions both involving intercollegiate sports.
The New York State Supreme Court ruled that Marist College’s former basketball coach Matt Brady breached his contract when he accepted a job at James Madison University. First, Brady did not receive written consent from Marist before he engaged in contract negotiations with his new employer. Second, he did not abide by the letter of the contract when he pursued prospects to play basketball at James Madison because his contract stipulated that he was forbidden from offering a basketball scholarship to any recruit who he or his staff had recruited at Marist. Several players that were recruited by Marist ended up at James Madison. All of this did not sit well with the court, which held that James Madison knew of the agreement with Marist and that Marist has suffered damages as a result. A hearing on damages for the breach of contract will be held next week.
While contract lawyers and others might not be surprised by the end result of the ruling, what is shocking is that a university decided to pursue the breach in the legal system in order to uphold the sanctity of the agreement. After all, it is more common than not that college coaches breach contracts each year when leaving one institution for the greener grass elsewhere with impunity. Sometimes the coach initiates the interest, while other times colleges or universities pursue the coach they feel can best serve their own needs with blatant disregard for the coach’s current contract, employer or its student-athletes.
It is quite refreshing to see an institution actually hold firm to the letter of an agreement, and this case could set a precedent for athletic departments, university general counsel, and coaches (along with their agents) when it comes to the seriousness of a written agreement in the intercollegiate landscape.
Meanwhile, that same week, a federal trial court judge ruled that Quinnipiac University erred in violation of Title IX, the federal gender equity law, when it decided to eliminate the women’s volleyball team and, instead, to replace it with a 30-member team in the sport of competitive cheer. In a 95 page opinion, the judge held that competitive cheer is not yet a varsity “sport” for Title IX purposes and called the current activity “too underdeveloped and disorganized” at this point.
This ruling is a correct opinion under current law. However, these days, most participants, parents and observers recognize that competitive cheer teams have some of the most gifted male and female athletes you will ever see. Competitive cheerleaders (and cheerleading in general) demonstrate skills of the elite gymnast and annually lead the national lists of injuries during practice and competition. In 2009, the Wisconsin Supreme Court held in Noffke v. Bakke that cheerleading is a “contact sport,” although it was in the context of a negligence lawsuit, and not decided under Title IX.
Still, it is true: cheer competition simply has not yet matured into a sport for Title IX purposes (there is no competitive cheer post-season playoff or BCS bowl system, though colleges such as the University of Maryland fully recognize the team). It appears that the NCAA does not wish to serve as an advocate for its legitimacy either.
Quinnipiac could certainly fight the decision in court and earn its clear line of demarcation in the wasteland of other universities who spent hundreds of thousands of dollars in legal fees over Title IX litigation only to have to be forced to comply in the end. Recall Brown University’s repeated losses in the 1990’s or the Michigan High School Athletic Association’s decade-long losses over compliance with Title IX at the interscholastic level, just to name a few.
At the end of the day, let there be no misunderstandings: competitive cheer is a sport and it has extremely talented athletes and coaches who devote countless hours to skills and routine. It is just not yet a sport under Title IX.
It is also important to note that the Quinnipiac decision over competitive cheer is an opinion rendered by one judge in one federal district. It will be quite interesting to see how this sport will evolve over time and how other courts in other jurisdictions view competitive cheer as it continues to gain acceptance and momentum. The clock is ticking in that regard possibly, someday, rendering the current victory for Title IX cheerleaders merely pyrrhic.
On a different note, effective this month, the sport of sand volleyball (known as “beach” volleyball in some circles) is being recognized by the NCAA in Division II, and in 2011 for Division I as an emerging sport for women.
Adam Epstein is a Professor in the Department of Finance and Law at Central Michigan University and teaches and researches in the area of sports law. He can be reached at adam.epstein@cmich.edu.
