Settling for More

Clemson University recently reached a historic settlement with athletes on the men’s track and field and cross-country teams, which is believed to be the first time men's intercollegiate athletic programs were reinstated by an institution as the result of a claim made under the federal law designed to create athletic opportunities for women.

The athletes threatened to file a class-action lawsuit against Clemson in March, months after the university cut the teams due to an anticipated $25 million budget deficit in the athletics department. University officials said the deficit and decision were prompted by the coronavirus pandemic and that they considered other factors such as “gender equity and Title IX compliance,” according to a November letter to the campus from athletic director Dan Radakovich. Cutting the teams would save the department $2 million annually, he wrote.

The cuts would also have resulted in an inequitable number of sports opportunities for men versus women. There were nearly an equal number of men and women athletes participating in sports during the 2019-20 academic year, which meant the cuts rendered Clemson out of compliance with the 1972 Title IX law, said Arthur Bryant, an attorney with Bailey & Glasser LLP, who represented the athletes.

Bryant has litigated similar cases on behalf of mostly women athletes for several decades, including the lawsuit that led to the historic 1998 settlement between Brown University and its women athletes. More recently, he assisted athletes at Dartmouth College and the College of William & Mary in reinstating teams that were cut amid COVID-19-related financial pressures and develop gender equity plans to ensure long-term compliance with Title IX.

Such settlements have become commonplace over the last year, as many athletic departments faced similar budget shortfalls and administrators moved to quickly reduce the number of sports programs they offer to save money, said Audrey Anderson, counsel at Bass, Berry & Sims and former general counsel for Vanderbilt University.

Cuts to athletic teams are always “fraught and emotional” decisions, and institutions should expect athletes and their supporters to “pull whatever strings they have to make the school change its mind,” including legal claims, Anderson said. But some athletic directors see men’s programs that do not bring in revenue -- usually every sport other than football and men’s basketball -- as “easy” teams to cut during budget deficits and do not anticipate the pushback, she said. The Clemson settlement puts them on notice -- men can make legal claims under Title IX, too, she said.

“Now that this has been used successfully as a tool by male athletes at Clemson, athletic directors should say, ‘Huh, if I try to cut a men’s sport, could that be used as a successful tool against me?’” Anderson said. “Title IX analysis should be something they’re doing to make sure they’re within the lines as team sizes change and sports change … They have to comply with federal law.”

Kameron Jones, a graduate student on the Clemson men’s track and field team, saw the decision to cut the team as not only a violation of Title IX, but “lazy.” He believes university administrators opted to eliminate a men’s team and give the impression they did so in order to preserve opportunities for women, even though substantial gender inequities in women's sports go unaddressed at the institution. The women athletes on campus had threatened to file their own Title IX lawsuit related to disparities such as inadequate financial aid and other benefits and entered into a separate agreement with Clemson on April 22, the same day that the men's settlement was reached.

“We’re pushing administrators to create better opportunities for women, rather than just cutting opportunities for men,” said Jones, who is studying athletic administration. “These athletic administrators will all tell you that their first priority is the student athlete and student athlete experience … At the end of the day, it’s not a football or basketball department, it’s an athletic department.”

Bryant, the attorney for the male athletes, said Clemson was in fine shape before the cuts in terms of pure numbers of men and women athletes competing on sports teams based on their 2019-20 reports. There were 312 male participants and 318 female participants on various university teams during that academic year, according to the most recent annual report by the university that is required under the Equity in Athletics Disclosure Act. Eliminating men’s track and field and cross-country would have reduced the total number of male athletes to 229, or about 42 percent of all athletes, while men make up about 50 percent of the overall undergraduate population, Bryant wrote in a letter to President Jim Clements.

“Clemson was providing equal opportunities, almost precisely the minimum,” Bryant said in an interview. “But where schools are actually providing equality, then they’ve got a problem whether they cut men’s or women’s teams, unless they keep it equal.”

But Jeff Kallin, associate athletic director for communications and strategic initiatives at Clemson, said when the teams were cut last November, updated numbers showed about 50 more male than female athletes, and administrators “had the choice of either adding women sports or reducing men’s sports.”

Kallin said Bryant's 2019-20 numbers fluctuated as athletes joined and left teams or transferred to other institutions. He added that the 2020-21 equity disclosure report will not be published until the end of this year. The university doesn't dispute Bryant's use of last year's data and wanted to reach an outcome that was good for both men and women athletes, he said.

Additionally, the university is set to enroll more female than male students over all for the first time this fall, which will require officials to consider adding more women’s sports so the opportunities are proportionate to the student population, Kallin said.

He said adding a women’s team was not an option last November, when football and basketball game ticket sales and game-day donations were both down due to limits on game attendees during the pandemic. But after a reduced football season, officials learned that Clemson’s 2020-21 financial outlook would not be as dire as previously estimated and that the athletics department would have a $18 to $20 million net revenue deficit rather than $25 million, allowing the reinstatement of the men’s track and field team and the creation of one or two new women’s teams in the next couple of years, Kallin said.

“With that financial piece changing, we have the ability to hold more women’s sports, which will bring us into participation compliance,” he said. “We’re excited to be able to do that. We’re adding the sports because we want to go down that path.”

Jones, the track and field athlete, said the men's teams that were cut received support from alumni, parents, donors and some of the university’s women athletes, including their track and field and cross-country peers, who also retained legal counsel and unearthed numerous inequities in women’s sports on campus.

Lori Bullock, an attorney with Newkirk Zwagerman Law Firm who represented the women athletes, brought attention to how women athletes receive disproportionate financial aid and were deprived of benefits that some male athletes received, such as individual lockers in athletic facilities, expanded dining options and equipment and team gear.

Bullock said many of these inequities were due to Clemson providing extensive benefits to its championship-winning football program. The university spent about $55.9 million in total on the program in 2019-20 compared to about $16.6 million on all its women’s teams that year, according to the equity disclosure report.

“When it came down to what was happening at Clemson, and the amount of inequities with regard to the treatment, what their men’s football team gets that no female student athletes get, there was just no denying for them that this was a problem and they needed to fix it,” Bullock said.

In addition to the successful fight for reinstatement of the men’s track and field and cross-country teams, women athletes on the track and field, cross-country and rowing teams used the unequal financial aid and other benefits as the basis for their own class-action Title IX lawsuit threat. Their separate settlement with Clemson committed the university to a long list of improvements and amenities that women athletes now or will soon have access to.

The university also agreed to conduct a review of the athletic department’s gender equity and Title IX compliance to take a deeper look at disparities in facilities and athlete services and to interview women athletes about their experiences, Bullock said. Clemson is required to publish a gender equity plan to prevent continuing disparities during the 2023-24 academic year and onward.

Kallin, the athletic department spokesperson, said some of the complaints of disparities in amenities and other benefits cited by the women athletes were not previously raised through the department’s feedback system. But many of the disparities can be quickly addressed and easily fixed, he said.

Harleigh White, who is on the women’s track and field team and graduated with her bachelor’s degree in nursing and psychology last week, said she and other female athletes would not have known to complain about the disparities. Many of the benefits offered to football or men’s basketball athletes were assumed by her and other women to be exclusive perks of participating in revenue-generating sports, White said. (She has one year of athletic eligibility remaining and is deciding whether to continue her athletic career and graduate education at Clemson or another institution.)

“I always thought since football brought in the money, they had it for that reason,” she said. “But it’s supposed to be equal. We’ve been settling this whole time, and now we can get what we deserve.”

White said she is hopeful that women athletes who attend Clemson in the future will be treated equally as a result of the settlement.

“I hope this inspires women athletes not to settle,” she said.