Department of Justice Complaint No. 202-35-103
This Settlement Agreement (the "Agreement") is entered into by the Southeastern Conference ("SEC") and the United States of America, through the United States Department of Justice, Civil Rights Division, Disability Rights Section ("the Department").
This matter was initiated by a complaint filed with the Department under title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ï½§ï½§ 12181-12189. The SEC is an athletic conference whose purpose is to assist member institutions to maintain intercollegiate athletic programs that are compatible with high standards of education and competitive sports. The SEC is a public accommodation under title III of the ADA because the conference leases and operates places of public accommodation. The SEC currently consists of twelve major universities from across the southern United States. The complaint was filed by Mr. XX XXXX, a student-athlete who wished to enroll at an SEC member institution in the fall of 1998 but was prevented by the SEC's eligibility rules.
Mr. XXXX's complaint is a by-product of the Consent Decree signed in United States v. National Collegiate Athletic Association, No. 98-1290 (D.D.C. May 27, 1998). After a lengthy investigation of the effect of the NCAA's eligibility rules on student-athletes with dyslexia and other learning disabilities, the Department and the NCAA entered into a Consent Decree. Because of their disabilities, the academic abilities of student-athletes with learning disabilities are often not accurately reflected merely through their standardized test scores and grade point averages. Under the Consent Decree, the NCAA agreed to institute a number of changes to its policies and practices to more accurately reflect the true academic abilities of student-athletes with learning disabilities.
One of the most significant provisions in the Consent Decree concerned new legislation the NCAA agreed to enact. The new legislation allows student-athletes with learning disabilities who were initially determined to be non-qualifiers or partial qualifiers to earn a fourth year of athletic eligibility. Under the new NCAA rule, if a non-qualifier or partial qualifier with a learning disability can successfully complete a specified number of classes in college, they can earn back the year of athletic eligibility that they lost. In other words, if they can prove their academic abilities by working hard in school, they can get back the season they lost in the first year of college.
Description of the Complaint
Mr. XXXX is a student whose diagnosis of learning disabilities was accepted by the NCAA. When he failed to meet the NCAA's initial-eligibility rules, he applied to the NCAA for a waiver of those rules. In August of 1998, the NCAA granted him status as a "partial qualifier," meaning that he was eligible to participate in athletics at a Division I institution but on a restricted basis. For the 1998-99 academic year, the NCAA would allow him to accept an athletic scholarship and practice with an athletic team, but would not allow him to participate in athletic competitions. Although it was not an ideal result, Mr. XXXX claims that the situation was acceptable because he would be allowed to enroll in the Division I institution of his choice and he would have the opportunity to eventually earn back the lost year of athletic competition if he performed well in school.
Mr. XXXX had planned to enroll at the University of Tennessee, a Division I institution, and participate on its swim team. The University of Tennessee is a member of the SEC. SEC Bylaw 184.108.40.206 provides that any individual who is not a full qualifier on the day that he or she enrolls in an SEC member institution may never participate in athletics. (The Bylaw allows a minor exception: each school may allow a limited number of partial qualifiers or non-qualifiers to participate on athletic teams -- 2 in football, 1 in men's basketball, 1 in women's basketball, 1 in all other men's sports, and 3 in all other women's sports).
Mr. XXXX alleges that he could not enroll at the University of Tennessee even though he was considered a partial qualifier by the NCAA because he would have been barred from ever competing for the school. Mr. XXXX then enrolled in a two-year community college that is not an NCAA-member institution.
Mr. XXXX's complaint argues that the SEC's rule undercuts the terms of the Consent Decree in United States v. National Collegiate Athletic Association. He alleges that the SEC rule does not allow students with learning disabilities to take advantage of the new NCAA rule permitting them to prove themselves in the classroom. Therefore, Mr. XXXX argues that the SEC rule violates 42 U.S.C. ï½§ 12182(b)(2)(A)(i) and (ii) by imposing eligibility criteria that tend to screen out individuals with disabilities and by failing to make reasonable modifications in policies.
The SEC's Position
The SEC's position is that on August 27, 1998, Mr. XXXX was granted partial-qualifier status by the NCAA's Division I subcommittee responsible for hearing applications for waivers of the initial-eligibility requirements by students with learning disabilities. On that date, an employee of the University of Tennessee made a telephone call to a staff person at the SEC office requesting instructions as to how to proceed because of the newness of the terms and provisions of the NCAA Consent Decree and other matters. On August 28, 1998, before any action was taken by the SEC, Mr. XXXX enrolled in a community college. Neither the University of Tennessee nor Mr. XXXX ever requested that the SEC grant Mr. XXXX a waiver. The SEC denies that it is guilty of any intentional or unintentional violation of the ADA.
The Department is authorized under 42 U.S.C. ï½§ 12188 to investigate this complaint to determine whether the SEC is in compliance with title III of the ADA. The Department is authorized, where appropriate, to bring a civil action enforcing title III of the ADA. Because the SEC and the United States desire to settle this matter without resort to litigation, the parties agree to the following:
- In consideration for the SEC's performance of its obligations under this Agreement, the Department agrees to refrain from undertaking further investigation of Department of Justice Complaint No. 202-35-103 or from filing a civil suit based upon Department of Justice Complaint No. 202-35-103. Upon receiving evidence that the terms of Paragraphs 2 through 6 have been complied with, the Department agrees to close its file on Department of Justice Complaint No. 202-35-103.
- The SEC agrees to add the following as subsection (d) to Bylaw 220.127.116.11:
The annual limit set forth in SEC Bylaw 18.104.22.168(c) shall not apply to any student-athlete who has been certified by the NCAA as learning disabled and who is otherwise eligible for enrollment hereunder.
- Upon receipt of the Release attached as Exhibit A, the SEC agrees to waive any applicable SEC Rule or Regulation so that if Mr. XXXX is found eligible by the NCAA and if he is accepted by the University of Tennessee, the SEC will have no objection to his enrollment and participation in athletics at the University of Tennessee, with 3 years of athletic eligibility remaining.
- If the University of Tennessee files a petition on behalf of Mr. XXXX with the NCAA to waive any NCAA eligibility rules, including those rules that regulate transfers from two-year colleges, the SEC will advise the NCAA of its position regarding that petition through the letter attached as Exhibit B.
- The Department reserves the right in its sole discretion to withdraw its consent to this Agreement and proceed with litigation in this matter if:
- The SEC takes other steps, either through legislation or through other means, such that the rule in Paragraph 2 is adopted but not given full force and effect; or,
- The appropriate body(ies) within the NCAA do not agree, by July 12, 1999, to waive any eligibility rules that might prevent Mr. XXXX from enrolling in a Division I institution in the fall of 1999, with 3 years of athletic eligibility remaining.
- The SEC agrees that by July 12, 1999, it shall notify all SEC member institutions of the new provision of SEC Bylaw 22.214.171.124. The notice shall be distributed to the athletic directors of every member institution, the coaches of every athletic team within the SEC, officials of athletic departments that have any role in recruiting athletes, and the academic counselors for athletes at every SEC member institution. The SEC agrees that by July 30, 1999, it will send the Department a copy of the notice(s) it distributes pursuant to this Paragraph.
- The SEC agrees that the Department may review compliance with this Agreement at any time.
- The parties agree that this Agreement is neither an admission by the SEC of any violation of the ADA, nor an admission by the Department of the merits of any of the SEC's potential defenses.
- The SEC agrees that it will not discriminate or retaliate against any person because of his/her participation in this matter.
- This Agreement is a public document. A copy of this Agreement shall be made available to any person on request.
- This Agreement does not purport to remedy any other potential violations of the ADA or any other law. This Agreement does not affect the SEC's continuing responsibility to comply with all aspects of the ADA.
- The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
- Failure by the Department to enforce the entire Agreement with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement.
- This Agreement constitutes the entire agreement between the parties relating to Department of Justice Complaint No. 202-35-103, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this Agreement, shall be enforceable.
FOR THE SEC:
Commissioner, Southeastern Conference
2201 Civic Center Boulevard
Birmingham, Alabama 35203-1103
FOR THE DEPARTMENT:
John L. Wodatch, Chief
L. Irene Bowen, Deputy Chief
XX W. Sutherland, Attorney
Disability Rights Section
Civil Rights Division
United States Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
E X H I B I T A
I, Daniel Merrill, agree that in consideration for the agreement of the Southeastern Conference to the terms of the Settlement Agreement resolving Department of Justice Complaint No. 202-35-103, including remedies offered to me, I release the Southeastern Conference, its staff, and other persons related to the Southeastern Conference, from any and all claims, complaints or charges however denominated, that I may have under the Americans with Disabilities Act and parallel state and local laws, arising from the facts and circumstances alleged in Department of Justice Complaint No. 202-35-103. If the Department withdraws its consent to the Settlement Agreement pursuant to Paragraph 5 of the Settlement Agreement, this Release shall also be of no effect.
I understand that this is a complete release that bars me from asserting any claim, complaint or charge against the Southeastern Conference, arising from the facts and circumstances in Department of Justice Complaint No. 202-35-103.
I acknowledge that I am familiar with the facts and circumstances of Department of Justice Complaint No. 202-35-103. I acknowledge that I am aware of the contents of the Settlement Agreement and this Release, and that the Department of Justice informed me that I could avail myself of legal counsel but I declined to do so. I acknowledge that the Department of Justice has not provided me with advice concerning the wisdom of waiving the claims released in this Release, and that I have chosen voluntarily to release these claims.
Agreed to and signed this _____ day of ___________, 1999.
E X H I B I T B
I am general counsel for the Southeastern Conference. On the 9th day of December, 1998, the Southeastern Conference received a letter from Daniel W. Sutherland, Trial Attorney, Disability Rights Section, Civil Rights Division, U.S. Department of Justice. The letter threatens the Southeastern Conference with litigation for an alleged violation of the Americans For Disabilities Act. The individual named in Mr. Sutherland's letter was Daniel Merrill, who the NCAA had previously determined to have a learning disability.
Thereafter Mr. Sutherland and I entered into negotiations which resulted in a settlement. Without admitting liability the Southeastern Conference agreed to amend a provision of its Bylaws which limited the number of partial qualifiers or non-qualifiers that could be enrolled by a member institution. This was brought about so as to bring the Conference in full compliance with the provisions of the recent Consent Decree between the NCAA and the Department of Justice regarding students with learning disabilities. The specific amendment that has been adopted is:
The annual limit set forth in SEC Bylaw 126.96.36.199(c) shall not apply to any student athlete who has been certified by the NCAA as learning disabled and who is otherwise eligible for enrollment hereunder.
The SEC understands that the University of Tennessee has filed an application with the NCAA seeking a waiver of certain requirements in connection with Mr. Merrill's attempt to enroll at the University of Tennessee in the fall of 1999. The Southeastern Conference is neutral as regards the merits of the University of Tennessee's application for a waiver. As a part of the settlement with the Department of Justice it has been further agreed that if the waiver is granted by the NCAA and if Mr. Merrill enrolls at the University of Tennessee, that the Southeastern Conference will in no way object to Mr. Merrill's enrollment in the University of Tennessee. Further, to the extent necessary the Southeastern Conference will waive any other rule or requirement which might prohibit such enrollment.
If you have questions concerning this matter, please advise.
Yours very truly,
FRANK M. BAINBRIDGE