Tag: Heather Mercer

Minnesota Bars Female Kicker Tryout

The University of Minnesota in April refused to allow junior Mary Nystrom to try out for a position as a kicker/punter for its football team, citing the lawsuit by Heather Mercer against Duke in justification.

Mercer was added to DUke’s football team in 1995. When she was cut by the team a year later, she sued the school for sexual discrimination. She won a $2 million verdict against Duke, but the verdict in her favor was later overturned by an appellate court.

Under Title IX, men’s teams are not obligated to give women athletes tryouts, but the Mercer lawsuit established that once they do give such tryouts they have to be prepared to justify any decision to cut a female applicant in court.

Minnesota football coach Glen Mason released a statement about Nystrom’s situation saying,

As many of you know, in contact sports such as football, Title IX explicitly exempts those sports from having to provide tryouts to female athletes. At this time we thought it was in the team’s best interest to limit the try out to male participation.

In December 2002, New Mexico’s Kate Hnida became the first woman to play in an NCAA Division I-A game. Hnida had her extra point attempt in the Las Vegas Bowl blocked.

Sources:

Minnesota bars female kicker from football try out. Associated Press, April 18, 2003.

School blocks female student from tryout. Dennis Brackin, Scripps Howard, April 18, 2003.

Heather Mercer’s $2 Million Judgment Overturned on Appeal

In 2001 Heather Mercer won a $2 million sex discrimination lawsuit against Duke University — Mercer successfully argued that when she was cut as a kicker from Duke’s football team, that the coach’s decision was motivated by her gender rather than her kicking ability. This month, however, the U.S. Court of Appeals for the Fourth District overturned that damage award, though not the verdict.

The trial court had imposed punitive damages but the appeals court ruled that such damages could not be assessed in private Title IX actions. The appeals court relied on a recent U.S. Supreme Court case, Barnes v. Gorman, which disallowed punitive damages in a wide variety of discrimination lawsuits.

Both sides tried to spin the appeals court decision.

John Burness, Duke’s senior vice president for public affairs and government relations said,

We are pleased by the unanimous decision of the three-judge panel of the U.S. Fourth Circuit to throw out the $2 million in punitive damages. Duke University remains committed to aggressively advancing our support for women’s athletics through implementation of our Title IX plan.

Meanwhile Mercer’s attorney, Burton Craige, countered,

This decision in no way diminishes Heather Sue’s victory at trial. This jury heard all the evidence and ruled that Duke discriminated against her based on her sex and that senior Duke administrators knew of the discrimination and responded with deliberate indifference.

Its a rather pyrrhic victory, however, given that the main lesson to emerge from the whole incident is that football coaches should not give female kickers tryouts if they want to avoid such lawsuits (a position that is completely legal under Title IX).

Source:

U.S. Appeals Court Overturns $2 Million Award in Duke University Female Football Player Case. Dave Ingram, The Chronicle (Duke University), November 18, 2002.

Will the Heather Mercer Case Help or Harm Women?

When Heather Mercer won a $2 million judgment from Duke University, it was hailed as an important victory for women’s athletics. Instead it will likely shut the door for women who want to follow in Mercer’s footsteps.

Mercer wanted to be a kicker for Duke’s football team. She was given a tryout by the coach, but since her range was about 35-yards in practice, while a Division I school needs someone who can kick 45-yard field goals during a game, her coach cut her.

Mercer sued and a jury agreed that she had been discriminated against based on her sex. So why isn’t this a clear victory for women?

Because of the provisions of Title IX as they apply to sports. Under Title IX, if a school doesn’t have a women’s team in a given sport it must allow women to try out for the men’s team, with one important exception — contact sports are exempt from this rule.

That’s right, the current law is that if you allow a woman to try out to be a kicker on the football team and then cut her, she could potentially sue the university for sex discrimination as Mercer did. If you just tell the woman point blank, sorry football is a contact sport and the university doesn’t allow women to try out for such teams, the student has no recourse whatsoever.

The federal appeals court that allowed Mercer’s case to go to trial explicitly upheld the contact sports exemption writing, “we hold that where a university has allowed a member of the opposite sex to try out for a single-sex team in a contact sport, the university is, contrary to the holding of the district court, subject to Title IX and therefore prohibited from discriminating against that individual on the basis of his or her sex.”

The obvious reaction from universities seeing what happened in the Duke case will be to institute policies, either written or informal, to refuse try outs to women who want to participate on a men’s contact sport team.

In the end, Mercer’s legal victory will end up diminishing rather than enhancing women’s sports opportunities.

Source:

Sidelined! Kimberly Schuld, The Women’s Quraterly, Winter 2001.

Mercer v. Duke University. United States Court Of Appeals For The Fourth Circuit, No. 99-1014, Decided: July 12, 1999.

Woman Suing Duke After Getting Cut by the Football Team

The Associated Press has a story about testimony in a lawsuit brought by Heather Sue Mercer against Duke University. It seems Ms. Mercer tried out for the football team as a walk-on kicker. She was given a 20-minute tryout by coach Fred Goldsmith who testified he cut her because she wasn’t good enough.

One of the kickers who made that team testified that in her tryout, Mercer’s field goal range was limited to about 35 yards. Such a limited range would prevent any kicker, male or female, from making a college football team at a decent university (Duke’s then-starting kicker hit several from 45+ yards, including one from 50 yards).

Goldsmith testified,

She was evaluated like a man would have been. I decided to judge her like a man who was not making a contribution to the team.

He also added that he admired her for trying out and offered her a manager position which she turned down.