How Clemson Men’s Track Was Saved by Title IX Lawyers’ Hardball
It’s not every day that a powerful, $132-million athletic department gets beaten into retreat by one of its moderately budgeted Olympic sports programs. In fact, the central plot in the story of Clemson University’s men’s track and field and cross country teams’ reinstatement had never before happened—male college athletes successfully leveraging Title IX legal action to spare their sports from the chopping block.
“What was accomplished was historic,” said Arthur Bryant, the Bay Area attorney who represented the Clemson men and who, four decades earlier, served as lead trial counsel for the female plaintiffs in Haffer v. Temple, the first Title IX case brought against a university for discriminating against its athletes.
On April 22, five months after Clemson athletic director Dan Radakovich announced their shuttering, Clemson agreed to reinstate the men’s track and field and cross country teams under pressure from not just 23 male runners, who threatened to file a lawsuit, but also a group of female athletes, who likewise threatened the ACC school with their own lawsuit. The move to eliminate the programs had also prompted a race discrimination complaint late last year with the Department of Education.
Neither the men nor the women ever actually filed suit. Instead, their respective attorneys sent demand letters to Clemson listing Title IX grievances. In the course of settlement negotiations with the school, the athletes’ attorneys put forth a number of potential arguments of disproportionate treatment they were ready to make at trial, which included raising questions about expensive new vehicles that some track athletes said they had witnessed Clemson football players driving around campus.
Lori Bullock, the Iowa-based lawyer who represented the female athletes, said the university’s outside counsel vehemently denied the claim, which implicated potentially serious NCAA violations, and which she acknowledged she could not corroborate. But in interviews, she and Bryant suggested that the university may have been inclined to move more quickly to resolution due to the fear of this being made public in open court.
The university denied the allegations of possible NCAA rules breaches and that it had any effect on its decision to reinstate the sports. “Clemson operates its athletics programs at the highest level of integrity and in a compliant manner,” said Jeff Kallin, the school’s associate athletic director for communications. “Clemson looked into the allegations that were raised, and no evidence was found to support them.”
In any case, the track-and-field tangle in Tigertown demonstrated how athlete self-advocacy in major college sports can be both mutually supportive and a zero-sum game. For those who care about the survival of non-revenue programs at the Division I level, a pressing question now is whether the legal playbook that worked at Clemson can be used to save others. Bryant has thought a lot about this recently. His short answer: It depends.
What worked in the Clemson athletes’ favor was the fact that men’s and women’s track teams often share not only facilities but coaches—something that is not the case with most other sports. This was the predicate of the female track athletes’ potential claim: The elimination of the men’s teams would lead to a reduction of the coaching staff and, therefore, harm them under Title IX.
But having a potential claim only matters if you have willing litigants—and, ideally, enough to receive certification for a class-action lawsuit.
In interviews, Bryan and Bullock said the university advertised its eagerness to address the women’s complaints, while initially being dismissive toward the men’s. Even though the men’s and women’s attorneys each made clear that their efforts were coordinated, and that it would be cheaper for all sides if they convened together, the school insisted on speaking to the plaintiffs separately throughout settlement discussions.
“They took the strategic approach of telling both me and Lori in separate meetings that they definitely wanted to settle with the women, that she had an incredibly strong case, and that the men didn’t have a very strong case at all,” said Bryant.
The female athletes steadfastly insisted they would not settle their claims piecemeal. “It would have been a very different outcome if the women had not advocated for the men’s team being reinstated,” said Bullock.
The other key factor that made the Clemson situation unique, the athletes’ lawyers said, was how the university bungled things from the very beginning.
“The decision is final,” declared Radakovich, when he announced the cuts in an open letter.
In the nine-paragraph release, Radakovich explained that the move was necessary for both long-term financial and “gender equity and Title IX compliance” reasons. It closely followed a string of pandemic-timed track program cancellations at other athletic departments around the country. Unmentioned in Radakovich’s letter was that the athletic department, as of his writing, had the necessary proportion of male to female athletes to comply with Title IX. The elimination of the men’s track and cross-country programs would create an 8% gender gap in favor of the women, where one hadn’t previously existed.
For fans and supporters of college track, Clemson’s move represented an elevation of the threat to their sport: a very rich athletic department trimming track and field, and cross country, at least in part to save money.
“If Clemson went down, we were basically going to see an avalanche,” said Russell Dinkins, a former runner at Princeton, who has spent the last two years making the racial justice case for preserving college track programs around the country, espousing the sport’s diversity.
After news of the cuts became known, Colin Gallagher, a senior distance runner, called his parents on the car ride back to his apartment. By the time he walked through the door, Gallagher said, his dad had already found his way to Dinkins, who had been banging a loud (but ultimately unsuccessful) drum over Minnesota’s decision to eliminate its men’s indoor track and field program.
That night, Gallagher messaged Dinkins over Twitter, and Dinkins immediately replied, instructing the athlete to quickly assemble a core group of his teammates and alumni. Dinkins supplied Gallagher with a “toolkit” he had assembled into a Google folder, along with a Zoom link to facilitate a meeting.
“We definitely were fired up,” Gallagher said of that initial video conference. “But as the months went on there were a lot of ups and downs.”
Mike Beaudreau, a former Clemson runner who now coaches high school track in suburban Atlanta, helped spearhead the #SaveClemsonXCTF effort, which launched with a website and GoFundMe page.
The GoFundMe raised about $20,000—enough to cover two highway billboard ads promoting reinstatement. Beadreau said the effort also brought in $370,000 in pledged commitments to support the track program, conditioned on its continuation. But Beadreau said that aside from getting one meeting with Radakovich, which he characterized as unproductive, the financial hook carried little currency with the administration. Thus, the lawyers.
On Dec. 30, Dinkins filed a Title VI race discrimination complaint against Clemson, with the Department of Education’s Office for Civil Rights, noting that the men’s track program had proportionally more black athletes than any of the school’s other sports.
Three months later, Dinkins reached out to Bryant, who had recently helped reinstate programs at Brown, William & Mary, UNC-Pembroke, East Carolina and Dartmouth. Bryant’s clash with Brown was a repeat affair. In 1992 he worked for Public Justice, the Washington-based legal advocacy organization that had sued the Ivy League institution for violating Title IX after demoting its women’s gymnastics and volleyball teams from varsity to club sports. Bryant used the previous protracted legal battle with Brown—which consumed much of the 1990s and eventually led to the school agreeing to a consent decree and paying millions in legal fees—as a useful cudgel to wield against other athletic departments out of compliance with Title IX.
“I was able to go to every school that did this and say, ‘You could either put teams back and keep spending the $50,000 to $100,000 you are saving,’” Bryant said. “‘Or I could sue you, and you could be like Brown, where you lose at every step of the way and end up having to spend millions more to actually treat your women like your men and pay attorney’s fees.’”
Bryant retired from Public Justice at the end of 2019 and moved to Oakland early last year to open up a California office for law firm Bailey & Glasser. Soon, his old bailiwick beckoned—first with Brown, which announced cuts to 11 of its 38 athletic programs last June, and where Bullock also served as co-counsel for the athletes. Subsequently, both attorneys have taken action against several other schools that eliminated women’s sports.
But until Dinkins’ Clemson entreaty, Bryant said he had repeatedly declined requests to take on Title IX cases for axed men’s college sports programs, worried that schools would address any perceived gender inequity complaints by “simply eliminating more women’s opportunities.”
Bryant said Dinkins’ social justice argument for black male athletes initially attracted him to the case. “No. 2, it was Clemson,” Bryant added. “There was no way in the world they didn’t have the money to continue these teams.”
In his initial email to Bryant, Dinkins pointed out the elimination of the men’s running programs at Clemson would have an impact on the women’s teams, too, because of the shared coaches.
Bullock took it a step further. In reviewing the publicly available data, Bullock determined that Clemson’s female athletes had gotten shortchanged $1.8 million in athletic financial aid the previous season. As she Zoomed with the athletes, she inventoried a growing list of day-to-day ways in which women playing sports for Clemson received less than their male counterparts, which is not uncommon in athletic departments across the country. Bryant says the only thing that keeps an epic flood of Title IX litigation from swamping college sports is the general and understandable reluctance of college athletes to retain counsel.
According to Champion Women, an organization that advocates for gender equity compliance in college athletics, in 2018-19 almost 90% of NCAA members had failed to to satisfy the Title IX’s requirements for equality in sports opportunities. And yet, to date, no school has ever suffered a loss of federal funding on account of Title IX noncompliance.
“This was a huge problem of Clemson’s own making, and they had no one to blame but themselves,” said Bryant. “They had not only put the school in violation of Title IX [by cutting the men’s programs], but had made the female athletes so angry that they were now aware of their rights and prepared to sue for their equal financial athletic aid and treatment, which they likely would have never done if Clemson had simply left things alone.”
On March 12, Bryant sent his demand letter to Clemson President James Clements, and Bullock followed with hers three days later.
In response, Clemson hired Dan Cohen, a partner with Nelson Mullens, and a go-to lawyer for college athletic departments facing Title IX issues. Prior to the Clemson matter, Cohen had been opposite Bullock and Bryant while defending East Carolina and UNC-Pembroke over gender equity complaints, both of which settled in December.
As part of their Clemson discussions, Cohen sent Bryant a memo, which acknowledged that the school had proportionate participant opportunities for male and female athletes during the 2019-20 season, before it decided to jettison dozens of spots associated with the men’s cross country and track programs. The memo also showed that while ostensibly trying to reduce the number of male athletes in the department, Clemson planned to accommodate an additional 13 spots for football, bringing the team’s total to 135.
In his statement to Sportico, Kallin said that since the NCAA granted athletes an extra year of eligibility due to COVID-19, the roster sizes for many of its sports next season will have “a to-be-determined increase.”
On March 31, Bullock sent an email to Cohen with a “list of treatment issues” regarding female athletes for the university to address.
Among the points Bullock cited in writing were: The football team flies to most away games, “even down to Florida”; football players stay in hotels for home games; the athletic department rents out a local movie theater in Anderson, S.C., on the night before home games; players are given “fitted tailored suits” for travel games; and the team received two professional music videos.
“Again, these are benefits that only the men’s football team receives and no women’s team,” Bullock wrote. “While I understand that the programs must be compared to each other in the aggregate it is difficult to believe that the men’s program and women’s programs are treated equitably when no women’s program receives these types of benefits.”
Meanwhile, Bullock told Sportico, she had broached the allegation that Clemson football players were receiving new cars, a potential extra benefit, in a previous telephone conversation with Cohen.
“I think the way I phrased for opposing counsel is, ‘I am not saying Clemson is providing this or this is Clemson’s fault, but a number of women have noticed the male football players all drive the same expensive car and all have scooters,’” Bullock said. “It doesn’t make sense how these college students could have the funds to pay for really nice cars, let alone to be able to get both a scooter and a car, but they all drive them everywhere.”
Bullock recalled that in strenuously denying the claim, Cohen suggested that even raising this point publicly would be tantamount to defamation.
But Clemson’s side came around quickly thereafter, Bullock said.
Cohen did not respond to a request for comment, but Clemson’s Kallin the allegations had “no bearing whatsoever on the settlement negotiations.”
Harleigh White, a senior triple jumper studying to be a nurse, was one of the track athletes who brought to the lawyers’ attention the vehicles football players were driving.
“I have seen many athletes who came in with me,” White said, “some who came in with no cars, and within a few weeks they had a brand new [Dodge] Charger or Challenger—one of those two—and it is still happening. I have a friend [who played football] who had a nice little Nissan Altima and a few weeks later had a Charger.”
On April 7, Bryant sent Cohen a draft of proposed settlement language, which again alluded to the claim that Clemson football players were getting new cars. The draft outlined a list of guarantees that female athletes would receive beginning next school year, including: “Cars and scooters similar to those provided to the football players for as many females as are provided to males (none for all is fine).”
That language is notably absent from either the men’s or women’s final settlement agreements, both signed April 22.
Bullock said the female athletes and the school are still going back and forth over who should serve as the external monitor of a gender equity plan, due to be completed by next summer. Bullock said that the university initially recommended Helen Grant, a Title IX consultant with a reputation for being industry friendly. Bullock rejected Grant and proposed Donna Lopiano, the president of college sports reform organization, The Drake Group, who Clemson promptly kiboshed.
“Clemson welcomes the opportunity to have an external monitor assist in the creation and implementation of its gender equity plan and has been awaiting feedback from opposing counsel on the selection of a monitor,” Kallin said.
According to copies of the settlement drafts obtained by Sportico, the school had tried to incorporate the release of Dinkins’ race discrimination claim, which Bryant and the male athletes refused. The university eventually capitulated on that demand, but it might now be a moot point.
Dinkins said he was informed by the Department of Education last week that his Title VI complaint had been dismissed due to settlements. Then again, he said he is considering filing an appeal based on what he feels are some errors in the DOE’s analysis of the situation, though he declined to elaborate.
More from Sportico.com
