Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BOWERS v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION

November 2, 2000

MICHAEL BOWERS, PLAINTIFF,
V.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ACT, INC., NCAA INITIAL-ELIGIBILITY CLEARINGHOUSE, TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, UNIVERSITY OF IOWA, AMERICAN INTERNATIONAL COLLEGE, DEFENDANTS.



The opinion of the court was delivered by: Stephen M. Orlofsky, Judge.

    OPINION

This hotly contested case presents difficult legal questions in an area of the law that has become fertile ground for civil rights litigation: the applicability of laws prohibiting disability-based discrimination to the practices of the National Collegiate Athletic Association ("NCAA"). In this case, Plaintiff Michael Bowers ("Bowers") has sued the NCAA under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., section 504 of the Rehabilitation Act ("ACT"), 29 U.S.C. § 794(a), and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Among other claims, Bowers alleges that the NCAA discriminates against the learning disabled through initial eligibility requirements that govern whether a student may participate in intercollegiate college athletics. Many of the legal issues raised in this case are difficult and present no obvious resolution. Some of those challenging issues include: (1) Whether Bowers may seek injunctive relief although he has already enrolled in college; (2) Whether money damages are available under the Rehabilitation Act; (3) Whether the NCAA is a place of public accommodation under the ADA; (4) Whether the NCAA's eligibility requirements are "necessary" under ADA analysis; (5) Whether the NCAA's waiver review process is a reasonable accommodation for Bowers; (6) Whether Bowers is an otherwise qualified individual; (7) Whether the NCAA is a recipient of federal funding under the Rehabilitation Act; and (8) Whether the N.J.LAD is applicable when an individual seeks access to a public accommodation outside of New Jersey.

Bowers specifically targets the NCAA's regulations that prohibit first-year college students from participating in Division I and Division II athletic programs if they failed as high school students to complete a core academic curriculum specified by the NCAA. The NCAA requires high school students to complete thirteen "core courses" in subject areas including English, mathematics, and the social and physical sciences before they may be declared "qualifiers," student-athletes permitted to practice and compete as members of intercollegiate teams and to receive college athletic scholarships.*fn1 Bowers, who suffers from a learning disability, completed a number of classes in high school that were designated special education classes. The NCAA ruled that these classes did not satisfy its core course requirement and declared Bowers, who was a high school standout in football, a "nonqualifier." Bowers alleges that the NCAA discriminated against him because of his disability in declaring him ineligible to participate in intercollegiate athletics as a college freshman.

Bowers has also sued Temple University ("Temple"), the University of Iowa ("Iowa"), and American International College ("AIC") for discrimination on the ground that these schools stopped recruiting Bowers to play football when they concluded that his learning disability would likely result in the NCAA declaring him a nonqualifier. Similarly, Bowers has sued ACT, Inc. and the NCAA Initial-Eligibility Clearinghouse ("ACT/Clearinghouse"). The Clearinghouse, which is operated by ACT, is responsible for making eligibility determinations pursuant to the NCAA's regulations. Bowers has also alleged a breach of contract claim against ACT/Clearinghouse, to whom Bowers paid an $18.00 fee for the processing of his eligibility materials. A complete discussion of the factual and procedural background in this case can be found in two prior opinions of this Court. See Bowers v. NCAA, 974 F. Supp. 459 (D.N.J. 1997) (Orlofsky, J.) (Bowers I); Bowers v. NCAA, 9 F. Supp.2d 460 (D.N.J. 1998) (Orlofsky, J.) (Bowers II). The Court exercises jurisdiction in this case pursuant to 28 U.S.C. § 1331, 1343, and 1367.

As my discussion below indicates, I have concluded, among other things, that: (1) Bowers is still suffering from the adverse effects of the NCAA's regulations in a way which confers standing to seek injunctive relief; (2) Money damages are available under the Rehabilitation Act if intentional discrimination is alleged; (3) The NCAA is a place of public accommodation under the ADA; (4) There is insufficient evidence in the summary judgment record to allow me to determine as a matter of law that the NCAA's eligibility requirements are "necessary" within the meaning of the ADA; (5) The waiver review process undertaken by the NCAA on behalf of Bowers was not a reasonable accommodation; (6) There are still genuine issues of material fact regarding whether Bowers is an otherwise qualified individual; (7) The NCAA is not entitled to summary judgment on its claim that it is not a recipient of federal funding under the Rehabilitation Act; and (8) There is insufficient evidence in the summary judgment record for me to determine whether the N.J.LAD is applicable when an individual seeks access to a public accommodation outside of New Jersey.
Accordingly, for the reasons set forth below, the motions of the NCAA, AIC, Temple and Iowa for summary judgment on Count I (ADA) will be denied; the motions for summary judgment of the NCAA, Temple, Iowa and AIC on Count II (Rehabilitation Act) will be denied; the motion of ACT/Clearinghouse for summary judgment on Count II (Rehabilitation Act) will be granted; the motions for summary judgment of the NCAA and ACT/Clearinghouse on Count IV (NJLAD) will be denied without prejudice; and ACT/Clearinghouse's motion for summary judgment on Count VI (Breach of Contract) will be granted. Additionally, I will deny the motions for summary judgment on the issues of standing and the recoverability of damages, with the exception that I will grant summary judgment on the issue that certain damages sought by Bowers are too speculative. Also, I will defer my decision regarding whether Bowers may recover compensatory damages against Temple and Iowa until Bowers's pending motion to amend his First Amended Complaint is resolved.

II. PRELIMINARY MATTERS

A. Standing to Seek Injunctive Relief

Bowers seeks a wide range of equitable relief.*fn2 If granted, the relief sought would restore Bowers to the position he would have been in had he been declared a "qualifier" in his senior year of high school*fn3 and would also require the NCAA, ACT and the Clearinghouse to make certain programmatic changes to the way in which freshman eligibility is determined.*fn4 First Amended Compl. at 24, 28-29. Iowa, AIC, Temple, and the NCAA assert that Bowers does not have standing to seek such equitable relief and that developments in the case since it was filed render Bowers's claims for injunctive relief moot. NCAA Mem. Supp. Summ. J. at 18-22. Not surprisingly, Bowers disagrees. Pl.'s Resp. to Mots. Summ. J. at 36-40.

As the United States Supreme Court has previously noted: "It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). "The `irreducible constitutional minimum of standing' has three parts: injury in fact (a concrete harm suffered by the plaintiff that is actual or imminent), causation, and redressibility." Doe v. National Bd. of Med. Examiners, 199 F.3d 146, 152 (3d Cir. 1999) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560(1992)). "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan, 504 U.S. at 561. Consequently, a plaintiff faced with a motion for summary judgment cannot rest on mere allegations to defeat such a motion but must set forth, by affidavit or other evidence, specific facts which for the purposes of the summary judgment motion will be taken to be true. Id. Evidence that the plaintiff suffered some past exposure to illegal conduct will not in itself show a present case or controversy warranting injunctive relief "`if unaccompanied by any continuing, present adverse effects.'" Lyons, 461 U.S. at 102 (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)).

The core of the standing dispute between Bowers and the Defendants concerns the final prong of the tripartite standing requirement, "redressibility." The parties disagree about whether Bowers will ever again confront the discrimination that is the basis of his Complaint and Amended Complaint and whether, as a result, there is any continuing injury to be redressed through the granting of injunctive relief. The Defendants argue that Bowers is no longer subject to the NCAA's freshman eligibility requirements because he has already enrolled as a freshman in a college program. NCAA Mem. Supp. Summ. J. at 20-21. Bowers asserts that he is still subject to the NCAA's freshman eligibility requirements because, although he has completed at least a semester's worth of work at Temple, he has not completed a full academic year. Pl.'s Resp. to Mots. Summ. J. at 38-39.

Neither side points to evidence probative of whether the NCAA's rules concerning freshman eligibility are applicable to students who have begun, but not completed, their first year of college. Under the NCAA bylaws, college athletes are entitled to five years of athletic eligibility, and these five years of eligibility are counted from the first day that a student-athlete attends classes. Exhibits of Defs., Ex. 50 (NCAA Bylaw 14.2.1.1). Simply because the NCAA calculates a student-athlete's five years of eligibility from his or her first day of classes, however, does not necessarily mean that someone who begins but does not complete his or her freshman year of college, without ever having played intercollegiate athletics, can never again be considered a freshman for eligibility purposes. There is no conclusive evidence in the summary judgment record indicating whether or not the NCAA would consider someone who has merely begun a college program to be a freshmen for purposes of initial eligibility. Because Bowers is the party invoking federal jurisdiction and bears the burden of establishing standing, see Lujan, 504 U.S. at 561, his failure to demonstrate that he is likely to be subject to the NCAA's initial eligibility requirements again is fatal to his attempt to establish standing on this ground.

That being said, however, there is an alternate ground upon which standing can be found in this case. In focusing on the question of whether or not Bowers is likely to be subject to the NCAA's initial eligibility requirements again, both Bowers and the Defendants overlook a more obvious basis for standing to seek injunctive relief in this case, namely, that Bowers is suffering from "continuing, present adverse effects," Lyons, 461 U.S. at 102, of the NCAA's decision to declare him ineligible to play football as a freshman. In being declared ineligible for his freshman year, Bowers lost a year of athletic eligibility. His current remaining eligibility is one year less than it would be if Bowers had not been declared ineligible at the end of his senior year of high school. In this way, Bowers continues to suffer from the adverse consequences of being declared ineligible as a freshman. See O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (indicating that plaintiffs would have standing to seek injunctive relief against local judges accused of imposing sentences illegally if they had been serving allegedly illegal sentences at time of suit), cited in Davis v. Thornburgh, 903 F.2d 212, 226-27 & n. 7 (3d Cir. 1990) (Becker, J., concurring in part and dissenting in part); see also Phillips v. County of Bucks, No. CIV. A. 98-6415, 1999 WL 600541 (E.D.Pa. August 9, 1999) ("When a plaintiff seeks an injunction, standing is afforded only when the plaintiff has suffered from the defendant's alleged conduct and that suffering continues").

That Bowers has standing to sue for injunctive relief is made clear by a case cited in the NCAA's brief in support of the opposite proposition. In Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 94 F.3d 96 (2d Cir. 1996), the Connecticut Interscholastic Athletic Conference ("CIAC") sought review of a District Court decision granting Dennin an injunction which permitted him to swim for his high school team. Id. at 98. At issue in that case was a regulation that allowed high school athletes whose schools competed in the CIAC to participate in interscholastic competition only until they were nineteen-years-old. Id. Dennin was learning disabled and started high school when he was sixteen-years-old. Id. at 98-99. As a result, he would be ineligible to swim for his high school team in his senior year because he would be nineteen-years-old at the time. Id. The CIAC's appeal of the District Court's decision was decided only after Dennin's senior swim season had ended, with Dennin having had participated throughout the season. Id. at 100. The Second Circuit held that the appeal was moot, stating that there was "`no live controversy'" between Dennin and the CIAC for the Court to decide. Id. First, Dennin's season had ended. Id. Second, Dennin gave every indication that he would not seek a waiver from the CIAC seeking permission to swim for his high school for a fifth season.*fn5 Id. at 101. Specifically, he did not seek relief concerning a CIAC rule that limits participation in athletics between the tenth and twelfth grades to three years, a rule that would also have to be waived or the operation of which would have to be enjoined for Dennin to compete for a fifth year. Id. Because the regulation barring competition by nineteen-year-old student-athletes could not reasonably be expected to be applied against Dennin again, the Court ruled that it could not decide the CIAC's appeal on the merits. Id.

Putting aside that Dennin differs from this case in several significant respects — that case concerned a circuit court's ability to rule on an appeal and the mootness and "capable of repetition, yet evading review" doctrines — it is instructive in this case. At the time the Second Circuit decided the CIAC's appeal, Dennin was not suffering from any adverse effects as a result of the CIAC rule prohibiting his competing during his senior year because he had already competed in his senior year. In this case, Bowers's eligibility has not elapsed and remains shorter than it would otherwise be as a result of his being declared a "nonqualifier" as a freshman. In other words, there is a "live controversy" to be decided in this case in a way there was not in Dennin. In addition, Dennin failed to seek relief from the three-season rule which would have barred his participation in interscholastic swim meets if he sought to swim for his high school in his fifth year.

In this case, Bowers, by requesting to be returned to a full five years of eligibility, effectively seeks a waiver of any other rule that might prevent standing in this case. For example, even if I were to find that the way in which the NCAA counts a student-athlete's years of eligibility is evidence that the NCAA's initial eligibility requirements will never be applicable to Bowers again, Bowers, at least implicitly, seems to seek relief from the operation of this rule as well. The Supreme Court has described the value of the standing doctrine this way: "It tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). By reaching the merits of the summary judgment motions of the Defendants, I am in no way deciding this case in the rarified atmosphere of a debating society.

That being said, it is not clear that Bowers has standing to pursue all of the injunctive relief he seeks. Specifically, Bowers does not have standing to seek relief which calls for programmatic changes to the ways in which the NCAA, ACT, and the Clearinghouse determine freshman eligibility. Bowers has standing in this case because he continues to be prejudiced by the NCAA's determination concerning his freshman eligibility, not because the NCAA's eligibility rules are likely to be applied against him in the future. Moreover, this case does not involve a class action in which it might be said that other members of the class are likely to be subject to the NCAA's initial eligibility rules in the future. Under such circumstances, Bowers can only seek relief that is necessary to his individual claim. See Bartlett v. New York State Bd. of Law Examiners, 970 F. Supp. 1094, 1147 (S.D.N Y 1997) ("this is not a class action, and plaintiff does not have standing to seek declaratory relief, or any relief beyond that relief necessary to remedy her individual claim"), aff'd in part, vacated in part, Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321 (2nd Cir. 1998). As a result, Bowers can only seek relief that will confer upon him a full five years of eligibility and not relief that will change the way in which the NCAA, ACT, and the Clearinghouse make determinations of freshman eligibility.

B. Recoverability of Damages

Whether or not money damages are available under section 504 of the Rehabilitation Act presents a complex question. While the Third Circuit has held that money damages are available through private action under this provision, see W.B. v. Matula, 67 F.3d 484, 494 (3d Cir. 1995) (holding that money damages are available under section 504 of the Rehabilitation Act), the Third Circuit has not confronted the more difficult issue of whether such relief is available only in cases where intentional discrimination is alleged or whether such relief is also available in disparate impact cases. Most courts nationally have held that damages are available under section 504 only in intentional discrimination cases. See, e.g., Ferguson v. City of Pheonix, 157 F.3d 668, 674 (9th Cir. 1998) (holding that monetary damages are available under Title II of the ADA and section 504 of the Rehabilitation Act only upon a showing of intentional discrimination); Wood v. President and Trustees of Spring Hill College, 978 F.2d 1214, 1219-20 (11th Cir. 1992) (stating that monetary damages are not available for unintentional violations of section 504 of the Rehabilitation Act); Carter v. Orleans Parish Pub. Sch., 725 F.2d 261, 264 (5th Cir. 1984) (same); Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1356-57 (5th Cir. 1983) (same); Matthews v. Jefferson, 29 F. Supp.2d 525, 535-36 (W.D.Ark. 1998) (requiring a showing of intentional discrimination under both Title II and section 504 for compensatory damages to be available); Tanberg v. Weld County Sheriff, 787 F. Supp. 970, 973 (D.Colo. 1992) (holding that compensatory damages are available for intentional violations of the Rehabilitation Act).

I agree that compensatory damages are available under section 504 of the Rehabilitation Act only in cases where intentional discrimination is alleged. Congress has mandated that the remedies available to disabled persons alleging violations of section 504 of the Rehabilitation Act be the same as the remedies afforded under Title VI of the Civil Rights Act of 1964. See 29 U.S.C. § 794a (a)(2). In Guardians Ass'n v. Civil Service Comm'n, 463 U.S. 582 103 S.Ct. 3221, 77 L.Ed.3d 866 (1983), the Supreme Court considered the circumstances under which compensatory damages are available for violations of Title VI. While recognizing that federal courts typically possess wide-ranging discretion in fashioning relief for the invasion of legal rights, the Court noted that relief afforded for violations of statutes enacted pursuant to the Congress's authority under the Spending Clause of the Constitution is typically limited to declaratory and injunctive relief. See Guardians Ass'n, 463 U.S. at 596 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 15 (1981)). In Pennhurst State Sch. & Hosp.,the Court explained:

[L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress's power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it.

Pennhurst State Sch. & Hosp., 451 U.S. at 17 (citations omitted). Where a private suit results in liability that essentially represents a change in the conditions attached to the receipt of federal funds, damages are not appropriate because the party held liable for violating these new conditions had no notice of them and should have the opportunity to terminate its receipt of the federal funds instead of bearing the attendant unanticipated burdens. See Guardians Ass'n, 463 U.S. at 596-97. See also Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999) ("private damages actions are available [where Spending Clause laws are violated] only where recipients of federal funding had adequate notice that they would be liable for the conduct at issue"); Franklin v. Gwinnett County Public Sch., 503 U.S. 60 (1992) ("The point of not permitting monetary damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award"). Finding that Title VI was enacted pursuant to Congress's Spending Clause power and that Congress did not intend to override the presumption that damages are generally not available for violations of such legislation, the Court concluded that "compensatory relief . . . is not available as a private remedy for Title VI violations not involving intentional discrimination." Guardians Ass'n, 463 U.S. at 602-03. Money damages are available, however, in cases of intentional discrimination because "there can be no question as to what the recipient's obligation under the program [is] and no question that the recipient [is] aware of that obligation." Id. at 597.*fn7

Like Title VI, section 504 of the Rehabilitation Act is Spending Clause legislation. See Shinault v. American Airlines, Inc., 936 F.2d 796, 802 (5th Cir. 1991); Armstrong v. Wilson, 942 F. Supp. 1252, 1263 (N.D.Cal. 1996); Moreno v. Consol. Rail Corp., 909 F. Supp. 480, 487 (E.D.Mich. 1994), aff'd en banc, 99 F.3d 782 (6th Cir. 1996); Rivera Flores v. Puerto Rico Telephone Co., 776 F. Supp. 61, 67 (D.P.R. 1991); Turner v. First Hosp. Corp., 772 F. Supp. 284, 287 n. 2 (E.D.Va. 1991); Bradford v. Iron County C-4 Sch. Dist., Cause No. 82-303-C(4), 1984 WL 1443, *7 (E.D.Mo. 1984); Ruth Anne M. v. Alvin Indep. Sch. Dist., 532 F. Supp. 460, 470 n. 8 (S.D.Tex. 1982). See generally James Leonard, A Damaged Remedy: Disability Discrimination Claims Against State Entities Under the Americans with Disabilities Act after Seminole Tribe and Flores, 41 Ariz. Law Rev. 651, 656 (1999) ("Section 504 either was or could have been enacted under Congress' Spending Clause power"); Judith Welch Wegner, The Antidiscrimination Model Reconsidered: Ensuring Equal Opportunity without Respect to Handicap under Section 504 of the Rehabilitation Act of 1973, 69 Cornell L. Rev. 401, 421-26 (1984) (stating that section 504 was enacted pursuant to Congress's authority under both the Spending Clause and the Enforcement Clause of the 14th Amendment).

Admittedly, there is some dispute about whether section 504 was enacted pursuant to Congress's Spending Clause authority or Congress's power under the Enforcement Clause of the Fourteenth Amendment. See Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997) (holding that section 504 is a valid exercise of Congress's authority under the Enforcement Clause of the Fourteenth Amendment); Mayer v. University of Minn., 940 F. Supp. 1474, 1476-1480 (D.Minn. 1996) (same); River Forest Sch. Dist. No. 90 v. Illinois State Bd. of Educ., No. 95 C 5353, 1996 WL 89055, at *6 (N.D.Ill. February 28, 1996) (citing Byrne v. Bd. of Educ. of West-Allis, 1989 C 163, 1989 WL 120646 (E.D.Wis. June 26, 1989) and stating that section 504 was enacted pursuant to section 5 of the Fourteenth Amendment). This ambiguity stems in part from Congress's failure to indicate the power under which it enacted section 504. Armstrong, 942 F. Supp. at 1262. The Supreme Court's decision in Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985), which is frequently cited by courts identifying the Enforcement Clause as the source of Congress's authority to enact section 504, see, e.g., Clark v. California, 123 F.3d at 1271; Mayer, 940 F. Supp. at 1478; River Forest Sch. Dist. No. 90, 1996 WL 89055 at *6, has added to this confusion. In Atascadero State Hosp., however, the Supreme Court assumed without deciding that section 504 was enacted pursuant to Congress's power under section 5 of the Fourteenth Amendment. 473 U.S. at 243-44 & n. 4. The Court did not need to reach the question of whether section 504 was enacted pursuant to the Spending Clause or the Enforcement Clause because the parties in that case conceded that section 504 was enacted under Congress's Enforcement Clause authority. Id. Furthermore, Atascadero State Hosp., and the cases that have applied it, have discussed the authority under which section 504 was enacted in an entirely different context than the one presented here. Those cases involved attempts to determine whether Congress effectively abrogated Eleventh Amendment state sovereign immunity in adopting section 504.

Given that no evidence has been presented that Congress intended to override the presumption that compensatory damages are not available for violations of Spending Clause legislation, I join the majority of courts who have addressed this question and hold that compensatory damages are not available for violations of section 504 absent a showing of intentional discrimination.

That being said, whether or not the NCAA is entitled to summary judgment with respect to compensatory damages under section 504 depends entirely on whether Bowers has alleged intentional discrimination against the NCAA. The NCAA contends that Bowers's claim is, at most, a disparate impact claim which contains no allegations of intentional discrimination on the part of the NCAA. NCAA Mem. Supp. Summ. J. at 36. Bowers, obviously, disagrees. Pl.'s Resp. to Mots. Summ. J. at 40-45.
There is some evidence in the summary judgment record that supports the NCAA's position. Bowers's First Amended Complaint, for example, is dotted with language that suggests that Bowers is not concerned with intentional discrimination on the part of the NCAA but rather with the impact or effect that the NCAA's initial eligibility rules have on the learning disabled. Bowers alleges that the NCAA's core course requirement "has [an] adverse and disparate impact on students with disabilities who take special education courses." First Am. Compl. ¶ 29 (emphasis added). He also alleges that the NCAA, the Clearinghouse, and ACT have established and enforced initial eligibility requirements that "tend to screen out" students with learning disabilities. See id. ¶¶ 32, 50. It is no surprise, then, that Bowers, in papers submitted in support of his motion to amend his First Amended Complaint, describes his own allegations as concerning the "discriminatory impact" that the NCAA's initial eligibility rules have had on persons with learning disabilities. Pl.'s Mem. Law Supp. Mot. to Amend at 2 (emphasis added).

Considering all the evidence in the light most favorable to Bowers, however, I find that this language is not conclusive and that Bowers has alleged intentional discrimination on the part of the NCAA. First, language also appears in Bowers's complaint which alleges intentional discrimination. For example, Bowers asserts that the NCAA, among other Defendants, has "systematically and intentionally discriminated against individuals with disabilities. . . ." First Am. Compl. ¶ 183.

More significantly, that Bowers has alleged a claim of intentional discrimination is evidenced by the type of policy that he has attacked. A disparate impact claim is one that challenges a facially neutral policy because the burdens of that policy are borne disproportionately by a particular class of people. See Mayberry v. Von Valtier, 843 F. Supp. 1160, 1164-65 (E.D.Mich. 1994); Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) (stating the same in the context of an ADA claim). In this case, however, Bowers has not attacked a facially neutral policy. The Supreme Court, in its decision in Alexander v. Choate, 469 U.S. 287 (1985), offered guidance as to what constitutes a facially neutral policy. In that case, the plaintiffs charged that a regulation that would reduce the number of days of inpatient hospital care covered by Tennessee's Medicaid program amounted to discrimination against the disabled because the disabled require more inpatient hospital care than the non-disabled do. In holding that the case involved a disparate impact claim and that section 504 of the Rehabilitation Act applies to such claims, the Court described the policy at issue as "neutral" because "[t]he reduction . . . [did] not distinguish between those whose coverage will be reduced and whose coverage will not on the basis of any test, judgment, or trait that the handicapped as a class are less capable of meeting or less likely of having." Id. at 302. In this case, the challenged policy states that "[c]ourses that are taught at a level below the high school's regular instructional level (e.g., remedial, special education or compensatory) shall not be considered core courses regardless of course content." Exhibits of Defs., Ex. 50 (NCAA Bylaw 14.3.1.3). This provision is not facially neutral precisely because it is premised on a "trait that the handicapped as a class are less capable of meeting or less likely of having," i.e., a specified level of academic achievement. NCAA Bylaw 14.3.1.3.5, which enables students with learning disabilities to obtain core course credit for special education classes,*fn8 does not render the NCAA's policy neutral. The learning disabled still bear the burden of proving that their special education courses are "good enough" to satisfy the core course requirement. After all, "[t]he learning-disabled or handicapped student must still complete the required core courses and achieve the minimum required grade-point average in this core curriculum." Exhibits of Defs., Ex. 50 (NCAA Bylaw 14.3.1.3.5). At the very least, Bylaw 14.3.1.3, even when Bylaw 14.3.1.3.5 is considered, suggests that Bowers's contention that the NCAA "knowingly and intentionally" discriminated against him because of his learning disabled may have some merit, even if this evidence, standing alone, is far from convincing. Where a policy that is not facially neutral is the subject of a disability claim, it is appropriate to construe that claim to allege intentional discrimination. See Alexander, 469 U.S. at 302; see also McKelvey v. Turnage, 792 F.2d 194, 205 n. 3 (D.C. Cir. 1986) (Ginsburg, concurring in part and dissenting in part) (interpreting Alexander to mean that a regulation "that is not neutral on its face as between handicapped individuals and others would constitute intentional discrimination"). Accordingly, compensatory damages may be available to Bowers, provided, of course, that Bowers is able to demonstrate the intentional discrimination he alleges.

The NCAA also argues that it is entitled to summary judgment that Bowers may not seek damages based on the alleged loss of a future professional athletic career. NCAA Mem. Supp. Summ. J. at 54. The NCAA argues that such damages are speculative and not recoverable by law. While Bowers argues that a court must allow the issue of damages to move forward even if the amount of damages is imprecise, that is not the issue presented here. Pl.'s Resp. to Mots. Summ. J. at 50. The issue is not the amount of damages, but whether such damages would ever be sustained by Bowers.
The NCAA cites cases where individuals were found not to possess property interests in the possibility of a future professional athletic career as supportive of its position. See, e.g., Justice v. National Collegiate Athletic Ass'n, 577 F. Supp. 356 (D.Ariz. 1983) (explaining that the court "flatly rejects" assertion of college football players that they held a property interest in receiving television exposure in order to compete for professional contracts); Colorado Seminary v. National Collegiate Athletic Ass'n, 417 F. Supp. 885 (D.Colo. 1976) (determining that "the interest in future professional careers must nevertheless be considered speculative and not of constitutional dimensions."); Hawkins v. National Collegiate Athletic Ass'n, 652 F. Supp. 602 (D. Ill. 1987) (stating that the Constitution does not protect the right to secure a professional career in athletics); Knapp v. Northwestern Univ., No. 95 C 6454, 1996 WL 495559 (N.D.Ill. August 28, 1996) (describing that "the possibility of obtaining [a] professional basketball career is too speculative" to establish an economic interest that the court could act to protect.) Bowers argues that these cases are not dispositive because they concern property interests and that he is not required to establish a property interest under any of his claims. Pl's Resp. to Mots. Summ. J. at 50 n. 3. While Bowers is correct in that he is not required to establish a property interest under the claims he has asserted, I find the cases relied upon by the NCAA to be persuasive because they recognize and emphasize the speculative nature of the claim that a student-athlete has lost a potential future professional athletic career. I agree that damages for the loss of a potential future professional athletic career are speculative because the possibility that such damages would ever occur is too conjectural for determination.*fn9 Many contingencies must occur before Bowers could enjoy a professional athletic career. Those contingencies include, but are not limited to, whether Bowers would escape injury, whether Bowers would excel at college football and whether any professional team would show an interest in Bowers. In short, the road to a professional football career is long and circuitous, and Bowers has not gone down that road far enough to submit such a fanciful damage claim to a fact finder. Accordingly, Bowers may not pursue damages for the loss of a potential professional athletic career.
II. DISCUSSION

A. Legal Standard for Summary Judgment

"On a motion for summary judgment, the court must determine whether the evidence shows that `there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Fed.R.Civ.P. 56(c)). "Any factual dispute invoked by the nonmoving party to resist summary judgment must be both material in the sense of bearing on an essential element of the plaintiff's claim and genuine in the sense that a reasonable jury could find in favor of the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-251 (1986)). In opposing summary judgment, a party "must do more than simply show that there is some metaphysical doubt as to material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), but a court should not prevent a case from reaching a jury simply because the court favors one of several reasonable views of the evidence. Abraham, 183 F.3d at 287. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Abraham, 183 F.3d at 287. "Thus, while the nonmoving party must present enough evidence to demonstrate a dispute is genuine, all inferences in interpreting the evidence presented by the parties should be drawn in favor of the nonmoving party." Abraham, 183 F.3d at 287 (citing Boyle v. County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998)). "Cases that turn crucially on the credibility of witnesses' testimony in particular should not be resolved on summary judgment." Id.

If the nonmoving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)). Even where the non-moving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate." Fed.R.Civ.P. 56(e); see Anchorage Assocs., 922 F.2d at 175. Rule 56(e) of the Federal Rules of Civil Procedure requires that the case be evaluated on its merits, with summary judgment being granted for the movants only if they are entitled to a judgment as a matter of law. See Anchorage Assocs., 922 F.2d at 175.

B. ADA Claims

Temple, Iowa, the NCAA and AIC all move for summary judgment on Bowers's claims brought under the Americans with Disabilities Act ("ADA"). Bowers has brought suit under two basic provisions of the ADA. The first is section 12132, or Title II, of the ADA, which states:
Subject to the provisions of this subchapter [42 U.S.C. § 12131-12165], no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. I have previously explained that this provision applies to Bowers's ADA claim against Iowa and Temple and not to his ADA claim against the NCAA and AIC. Bowers II, 9 F. Supp.2d at 474.
The second provision of the ADA under which Bowers sues is section 12182(a), or Title III, which applies to Bowers's claims against the NCAA and AIC. This section provides as a general rule that:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a).

1. Title II Claims against Temple and Iowa

To succeed on his claim under Title II, Bowers must prove that: (1) he is a qualified individual; (2) with a disability; (3) he was excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or was subjected to discrimination by any such entity; (4) by reason of his disability.

Both Temple and Iowa argue they are entitled to summary judgment on Bowers's Title II claim because Bowers can not prove he is a "qualified individual," as required by Title II, and because Bowers can not prove he was denied eligibility status "by reason of" any disability.*fn10 Temple Mem. Supp. Summ. J. at 13, 18; Iowa Mem. Supp. Summ. J. at 6.

The ADA defines "qualified individual with a disability," in relevant part, as:

an individual with a disability who, with or without reasonable modifications to rules, policies, or practices . . . or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
42 U.S.C. § 12131(2). Because neither Temple nor Iowa challenges whether Bowers is "disabled" as defined under the ADA, I must determine whether Temple and Iowa are entitled to summary judgment on the question of whether Bowers is a "qualified individual" who was discriminated against "by reason of" his disability.
An individual is a "qualified individual" if that individual can meet essential requirements with or without reasonable modification. Pottgen v. Missouri State High Sch. Activities Ass'n, 40 F.3d 926, 930-31 (8th Cir. 1994). Therefore, I will apply two criteria to determine whether Bowers is a "qualified individual": (1) whether the eligibility requirements imposed upon Bowers are essential; and (2) if so, whether Bowers meets these requirements with or without a modification. See, e.g., Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998);*fn11 Pottgen, 40 F.3d at 930.

Additionally, under Title II a plaintiff must establish a causal connection between his or her disability and the alleged discrimination to satisfy Title II's "by reason of" requirement. Sandison v. Michigan High Sch. Athletic Ass'n., Inc., 64 F.3d 1026, 1036 (6th Cir. 1995); Rhodes v. Ohio High Sch. Athletic Ass'n., 939 F. Supp. 584, 592 (N.D.Ohio. 1996). If a plaintiff was excluded for a legitimate reason other than because of a disability, then that action does not violate the principles of the ADA. Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979) (explaining that purpose is to "eliminate discrimination against otherwise qualified individuals").*fn12 The Supreme Court has described the "by reason of" and "otherwise qualified" prongs as two sides of the same coin, Alexander v. Choate, 469 U.S. 287, 299 n. 19 (1985), and the two requirements are usually discussed in tandem, as I will below.

Temple and Iowa claim that Bowers is not a "qualified individual," as required by Title II, because he could not meet the essential requirements of the offensive lineman position on their respective football teams with or without accommodation.*fn13 Temple and Iowa assert that the offensive lineman position requires a combination of bulk weight, superior strength and superior skill to repel and tackle the large defensive linemen prevalent in Division I football.*fn14 Temple Mem. Supp. Summ. J. at 19; Iowa Mem. Supp. Summ. J. at 7. Both Temple and Iowa argue that by his senior year of high school, Bowers had not developed the requisite skill or body mass to be qualified for an offensive lineman position. Temple Mem. Supp. Summ. J. at 19; Iowa Mem. Supp. Summ. J. at 7.

Therefore, Temple and Iowa argue that Bowers is not a "qualified individual" because he lacked the essential features and skill necessary to perform the duties of an offensive lineman, regardless of any learning disability. Temple and Iowa claim that even if Bowers met the core course requirement, he would not have been recruited to play on either university's football team. Temple Mem. Supp. Sum. J. at 16, 19; Iowa Mem. Supp. Summ. J. at 7-8. Therefore, Temple and Iowa argue that Bowers, at best, was the victim of the application of a non-discriminatory qualification (weight and skill), and was not excluded "because of" his disability.
Bowers, however, argues that he possessed the necessary skills for the offensive lineman position and that Temple and Iowa ceased their recruiting efforts because he was denied eligibility due to his learning disability. Pl.'s Resp. to Mots. Summ. J. at 32. Bowers argues that both Temple and Iowa showed great interest in him as a future football player until they learned he would not receive eligibility certification from the NCAA. Id.
In Bowers II, I determined that there were "substantial questions of fact" regarding both the "qualified individual" and "by reason of" prongs regarding the Title II claim against Temple and Iowa which precluded the entry of summary judgment at that time. Bowers II, 9 F. Supp.2d at 478. I observed there that there was a genuine issue of material fact regarding "when and why Bowers was eliminated as a potential football recruit." Id. I now must determine whether, based on the discovery that has occurred since my Bowers II decision, such questions of fact still exist.
A review of the summary judgment record before me reveals that there are still unresolved material issues of fact regarding whether Bowers was a "qualified individual" based on his physical attributes and football skills and whether Temple and Iowa did not recruit Bowers "because of" his learning disability. I may not weigh the credibility of evidence in a summary judgment motion where the factual issues may be reasonably resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999). It is up to a fact finder to weigh the conflicting testimony presented by Temple, Iowa and Bowers regarding when and why Bowers was eliminated as a potential recruit.
Perhaps the most essential remaining factual dispute between the parties encompasses Temple's and Iowa's proffered reason why they discontinued their recruiting efforts. While both Temple and Iowa claim they stopped recruiting Bowers because of his size and skill development by his senior year of high school, Bowers points to evidence in the summary judgment record that his senior year scouting reports described him as of "excellent size" and "very strong." Exhibits of Pl., Ex. 36 ("McCarthy Report"); Id., Ex. 35 ("Lemming Report"). The "Lemming Report" also states that "scouts love [Bowers's] size and potential." Bowers also claims that Iowa Coach Frank Verducci ("Verducci")knew Bowers was keeping his weight down because he also participated in high school wrestling, and that his weight in his senior year was of "no surprise to Verducci." Pl.'s Rule 56.1 Stmt. ΒΆ ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.