Biediger et al v. Quinnipiac Univ

Filing 83

TRANSCRIPT of Proceedings held on 5/12/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Preliminary Injunction Hearing (Part 1). NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at Redaction Request due 10/27/2009. Redacted Transcript Deadline set for 11/6/2009. Release of Transcript Restriction set for 1/4/2010. (Catucci, S.)

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275 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ----------------x STEPHANIE BIEDIGER, ET AL vs. QUINNIPIAC UNIVERSITY : : : : : : No. 3:09cv-621 (SRU) 915 Lafayette Boulevard Bridgeport, Connecticut May 12, 2009 ----------------x PRELIMINARY INJUNCTION HEARING B E F O R E: THE HONORABLE STEFAN R. UNDERHILL, U. S. D. J. A P P E A R A N C E S: FOR THE PLAINTIFFS: PULLMAN & COMLEY 850 Main Street P.O. Box 7006 Bridgeport, Connecticut 06601-7006 BY: JONATHAN B. ORLEANS, ESQ. ALEX V. HERNANDEZ, ESQ. FOR THE DEFENDANT: WIGGIN AND DANA, LLP 400 Atlantic Street P. O. Box 110325 Stamford, Connecticut 06911-0325 BY: MARY A. GAMBARDELLA, ESQ. JONATHAN BARDAVID, ESQ. Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604 Tel: (917)703-0761 276 INDEX WITNESSES: JOHN McDONALD Continued Direct Examination by Mr. Orleans.......277 Cross Examination by Ms. Gambardella..............336 MARY ANN POWERS Direct Examination by Ms. Gambardella.............408 Redirect Examination..............................472 Cross Examination by Mr. Orleans..................431 Recross Examination...............................473 EXHIBITS: Plaintiff's Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Defendant's Exhibit F......(Full) 404 13......(Full) 282 39......(Full) 296 28......(Full) 324 29......(Full) 325 4......(Full) 329 37......(Full) 334/335 -0- 277 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JOHN Honor. Honor. (9:30 O'CLOCK, A. M.) THE COURT: Good morning. Are there any preliminary matters to take up before we continue with Mr. McDonald's testimony? MR. ORLEANS: Not from the plaintiffs, Your MS. GAMBARDELLA: Nor the defendants, Your THE COURT: Very good. Sir, please. called as a witness M c D O N A L D, on behalf of the Plaintiffs, having been previously duly sworn by the Court, testified as follows: THE COURT: You're still under oath. CONTINUED DIRECT EXAMINATION BY MR. ORLEANS: Q. A. Q. A. Q. A. Q. Good morning, Mr. McDonald. Good morning, Jon. Do you have the exhibit books? No, I don't. (Hands witness.) Thanks. You have the last exhibit that we were looking at, Would be number 38 and hopefully it the budget document. would be in the back, tucked in the back of the book -- in the front? Thanks. I've been told it's been tucked into 278 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the front. A. Q. There you go. I think we established yesterday that that's an operating budget document? A. Q. Proposed, yes. Proposals, okay. And the line that shows $12,000 for the competitive cheer team for the upcoming -- or for the past year, that $12,000 wasn't originally part of the varsity athletic budget, correct? A. Q. A. No, it was not. Where was that in the intermurals category? There's a significant amount of outer line items in the Athletic Department that we have. Q. And for purposes of doing this year's budget, obviously you moved that 12,000 over to the varsity athletics set of line items, and so you're showing an increase from that 12,000 of an additional -- I don't have it in front of me -- I think it's 38, is that correct? A. Q. That is right. But the 12, as I say, was not originally in the varsity athletics budget? A. It was in the Athletic Department but not in the varsity lines. Q. And, in fact, you still had to retain the 12, retain 12,000 or add 12,000 to some other part of the Athletics 279 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Department budget to fund the sideline cheer unit for next year, correct? A. It wasn't 12 but we have put a sideline cheer budget together. Q. A. Allocation? Yes. THE COURT: move that mic away. Thank you. MR. ORLEANS: BY MR. ORLEANS: Q. How much have you allocated for the sideline cheer Sorry about that. Thanks, Judge. Just -- sir, I'm going to ask you We're getting a little feedback. unit for the '09-'10 year? A. Q. Ten thousand dollars. Now, but that budget document also doesn't include scholarships, correct? A. Q. No, it does not. Okay. The volleyball team had five athletic, five full athletic scholarships at its disposal, correct? A. Q. That is correct. And what is the proposal for athletic scholarships for the competitive cheer team? A. Q. A. For scholarships? For scholarships. We're planning to start with two per year. So next 280 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 year going to propose two. Q. Now, when you say that next year you're going to propose two, do you mean that two members of the team, the '09-'10 team will receive scholarships or do you mean that in '09-'10, the coach will go recruiting and will award two scholarships for the following year? A. Like all coaches, it's their decision. Having been through some new women's sports before, we have situations where they may award some of the scholarship money and it doesn't need to be two people. The coaches are allowed to break it up into a series of half scholarships or what have you. So it would be up to the new coach to decide to use those two this year either for current people, or to recruit with for actually the '10-'11 season. Q. Okay, you said the new coach but it's really going to be the same coach who coached sideline this year, correct? A. Q. A. Q. Correct. That is Ms. Powers; is that her name? Correct. So your testimony then is that Ms. Powers will have the authority to use up to a total of two athletic scholarships in the '09-'10 year? A. Q. A. That is correct. If your proposal is approved? Yes. 281 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. But she hasn't gone out recruiting atheletes for the '09-'10 year of varsity competition, has she? A. She's been involved in the process of recruiting I mean she would people assuming there's no scholarships. have a competitive cheer team next year like she has had last year. Q. A. Q. A. Okay, but it wasn't going to be a varsity team -No. Until after -- until March 4th, correct? She's been recruiting, let's assume, without scholarships, which is a normal process for all coaches who have to recruit for nonscholarship athletes because they don't have enough scholarship money. Q. Okay. And all the coaches of the varsity teams do some recruiting for non-scholarship athletes as well as for scholarship athletes, correct? A. Q. Absolutely. But Ms. Powers couldn't have been recruiting for a varsity team in the current year because by March 4th, applications had to be in and scholarships had generally been awarded, correct? A. Q. That is correct. Okay. Mr. McDonald, would you look at Exhibit 13 in the 1 through 20 notebook? MR. ORLEANS: Your Honor, my notes aren't clear, 282 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 has this exhibit been admitted? THE COURT: My notes indicate admitted in part; that is with respect to the '08-'09 year. MR. ORLEANS: '08 year? MS. GAMBARDELLA: MR. ORLEANS: No objection. But not with respect to the 2007, No objection to that? No objection. MS. GAMBARDELLA: MR. ORLEANS: So that is now in evidence. That's my present to you MS. GAMBARDELLA: today. THE COURT: exhibit? MS. GAMBARDELLA: THE COURT: To be clear, Exhibit 13 is a full Yes, I know. All right, Exhibit 13 is full. Thank you. MR. ORLEANS: (Whereupon Plaintiff's Exhibit 13 was marked full.) BY MR. ORLEANS: Q. Mr. McDonald, would you just explain to the court what this document is? A. This is a series of names that, as the year unfolds, where athletes are either added to their rosters or deleted from their rosters. Q. And this is something that you require? Is this 283 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 information that the coaches are required to submit? A. Q. Yes. And this is information that you are required to maintain under NCAA rules? A. Q. Yes. So, the first four pages of the exhibit, which are bates numbered D0118 through D0121, show changes in status for the 2007, 2008 year, correct? A. Q. Yes. And just to make sure that we understand, we've got name columns and then there's a sports column showing abbreviations for the various sports, correct? A. Q. Correct. Okay. And then there's the date that a change occurred, correct? A. Q. Correct. And then there's an indication of what the change is, whether the person has been added to the roster or dropped from the roster, correct? A. Q. That is correct. If we're just taking, as an example, the first name is Kelly Calebrese (ph), that's WLA, women's lacrosse? A. Q. That is correct. And on April 16, 2008, Ms. Calebrese was deleted from the roster? 284 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. That is correct. Is that correct? And what does delete mean in this context? A. It means a variety of things. It could be injury, it could be just quitting the team, cut from the team, any of those; maybe more. Q. And this is all relative to the roster as of the first date of competition, correct? A. Q. Yes. Okay. Could I ask you to take a look, maybe you could keep a finger at Exhibit 13 and just go back to Exhibit 11. McDonald? A. Q. Yes, I do. Okay. This is a document that has been admitted into Do that you have in front of you, Mr. evidence, according to my notes. THE COURT: That is correct. Thank you. MR. ORLEANS: BY MR. ORLEANS: Q. A. Q. A. Q. What is this document? This is the baseball squad list. Okay. Yes. Okay. And this shows the athletes on the roster as Referring to the first, the first three pages? of the first date of competition, is that correct? 285 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. That is correct. And can we tell from looking at this document what was the first date of competition? A. Well, I would think the dates we all sign is pretty That's much the day before or the day of the first date. September 27th. Q. Okay. So, the report date on this squad list for baseball is September 27, 2007, and if you go to the third page, that's the date that it's been completed by Tracey Flynn and signed by you, correct? A. Q. A. Q. Yes, and head coach. And also signed by the head coach? Right. And so the information that is reported on the EADA reports for numbers of players on the squad as of the first date of competition is -- it comes from these squad lists, does it not? A. Q. That's what we're instructed to do, yes. And if you would just page through Exhibit 11, I believe -- would you just confirm for me that that includes squad list for men's and women's sports for 2007, 2008 at Quinnipiac, understanding that we may be missing a couple because I actually recall that at the deposition, we went through this exercise and there were a few that were missing and they were produced later? 286 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. GAMBARDELLA: MR. ORLEANS: Yes, correct. And I don't think I've added them At the moment I to the exhibit but we'll try and cure that. I don't need to question him about those other pages. just want to establish what the documents are. BY MR. ORLEANS: Q. So, Mr. McDonald, could you just confirm that Exhibit 11 is squad lists for Quinnipiac varsity men's and women's sports for 2007, 2008? A. Q. Yes. Thank you. If you then move on to Exhibit 12, is Exhibit 12 squad lists for men's and women's sports for 2008, 2009? A. Q. Yes. Now, returning then, if we could, to Exhibit 13, Are you would you go to the third pages of that exhibit? there? A. Q. Yep. Okay. And if you would look down, look down the sports column until you get to the first entry for men's baseball? A. Q. A. Q. Correct. That's Kyle Birdsal (ph)? That is correct. Deleted on September 27, correct? 287 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Correct. And we have one, two, three, four, five, six -- did I Six young men who are deleted from the squad count right? on September 27th, is that right? A. Q. That is correct. And that's immediately before the first date of competition in baseball that Fall, isn't it? A. Q. Yes. Okay. And then if you would back up to the second page of the exhibit and go down to the bottom of the page, toward the bottom of the page you see Mr. Birdsal six lines up from the bottom? A. Q. Yep. And we have the same six young men who are added back to the squad on October 1, 2007, right? A. Q. Yes. Okay. And that's after the first date of competition, correct? A. Q. That is correct. Okay. So you're not required to report to the EADA under the EADA, or to the NCAA, that these six young men were participants in baseball for 2007, 2008, right? A. Q. That is correct. Now -- just a moment, Your Honor. THE COURT: Let me just try and clarify 288 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 something that -MR. ORLEANS: THE COURT: moment. Sure. -- that is not clear to me at the In Birdsal is listed on the squad on Exhibit 11. fact, all six of these young men appear to be listed on Exhibit 11. I understood the testimony to be that Exhibit 11 is the document that is the source of the EADA report. So, I'm trying to figure out -MR. ORLEANS: I understand, Your Honor. I think the problem is that we don't have the accurate first date of competition. I think, and we can count to be sure, and refer to another exhibit, I think that you will find if we count the number of athletes on the squad list and then we look at the EADA report, we will find that the number of athletes reported on the EADA is fewer than the number on the squad list reflecting the fact that these six athletes were deleted before the first day of competition and then added back after the first day of competition. THE COURT: All right. Should we do that? MR. ORLEANS: BY MR. ORLEANS: Q. Sure, let's do that. Mr. McDonald, I'm going to ask you if you would look at the squad list for baseball for 2007, 2008 which is the first, the first couple of pages of Exhibit 11? A. Got it. 289 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Would you please count -- there's not a, there's not a number on the document that lists the number of athletes on the squad. THE COURT: me if I'm wrong. MR. ORLEANS: (Pause) MR. ORLEANS: BY MR. ORLEANS: Q. A. Q. Mr. McDonald, do you count 33? I'll go with the judge and the attorney. That's because we are so good at math, that's why we I also count 33. Give me a moment. Well, I count 33. Somebody correct became lawyers. Now, the EADA report for 2007, 2008 is Exhibit 1. The information is also reflected in other exhibits but I'm not finding the roster numbers in that exhibit. me see if I can find another source of the EADA. Exhibit 26. Have to go into the other notebook. I'm Let sorry, this notebook system is a little bit unwieldly, maybe because we had too many documents. Mr. McDonald, are you looking at Exhibit 26? A. Q. Yes, I am. Okay. And is that the, is that EADA information for Quinnipiac University for the 2007, 2008 year? A. Yes, it is. Looks like it's generated from their 290 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 website. Q. Okay. And it reports the number of participants as of the day of the first scheduled contest for each of the varsity teams? A. Q. A. That is correct. And it reports for baseball 27? That is correct. MR. ORLEANS: THE COURT: to -MR. ORLEANS: Thank you, Your Honor. Yes, I Have we clarified the question? I just wanted We closed the loop. appreciate the suggestion that we close the loop properly on that. (Pause) MR. ORLEANS: just a moment. I'm sorry, Your Honor. Give me I need to count -That's all right. Let me interrupt THE COURT: some more as long as we're doing this. On the first page of Exhibit 11, the bottom right hand corner, there's the number 27 in a circle. you know why that number is there? THE WITNESS: THE COURT: that is? THE WITNESS: I know it's not mine. No, I don't. Do You don't know whose handwriting 291 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Okay. The handwritten numbers in the MR. ORLEANS: lower right hand corner on the pages in Exhibit 11? MS. GAMBARDELLA: They were on the documents They're not mine. but -- they may be Ms. Flynn's. MR. ORLEANS: There were some of yours that were on some pieces of paper that I recall. MS. GAMBARDELLA: MR. ORLEANS: THE COURT: BY MR. ORLEANS: Q. There's another example of what we're guessing at Would you look at the 2007, 2008 squad lists for This is Exhibit 11, and it starts at And, Mr. McDonald, I counted No, they're not mine Could I proceed, Your Honor? Please. here. men's lacrosse? bates numbered page D0317. and I counted 40 young men listed on, on the squad list. Do you want to doublecheck to be sure that I'm right? You'll take my word for it? A. Q. I certainly will. The judge is checking, I can see, which I think is wise. MS. GAMBARDELLA: clarification? Can I just ask for Are you merely doing a count of the column on the left or are you taking into account cross-outs all the way to the right or anything of that nature? You're 292 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just counting names on the left? MR. ORLEANS: left. MS. GAMBARDELLA: THE COURT: Thank you. Thank you, Judge. I am only counting names on the I also got 40. I got 40. Okay. THE WITNESS: MR. ORLEANS: BY MR. ORLEANS: Q. If you look at Exhibit 26, 35 were reported as the number of participants for EADA purposes, correct? A. Q. That is correct. Okay. Now, let's go to Exhibit 13, if we could, the second page of the exhibit. A. Q. Okay. Bate number D0119. If you could look, again, toward the bottom of the page and you see a group of men's lacrosse players deleted just above Birdsal and baseball player, we have -- six -- am I counting right? Seven men's lacrosse players deleted on, well, on October 4th and October 12th, is that correct? A. Q. That is correct. Okay. And then moving up the page, we see the same Let me see, some of seven -- or maybe not the same seven. the same seven added back to the squad on the 15th and one on the 25th, correct? 293 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. That is correct. Now -THE COURT: For what it's worth, there also appear to be eight men deleted from lacrosse in August and September on the next page. MR. ORLEANS: Correct, I see them. But I don't think we have them added back after the first date of competition. THE COURT: No, I think though that may account for the difference in those that you noted on the earlier page not being exactly identical. MR. ORLEANS: BY MR. ORLEANS: Q. Now, let me just ask you to continue, if you would, Yes, correct. in Exhibit 13, the last two pages are the change in status list for 2008, 2009, correct? A. Q. Correct. Now, in this year, Mr. McDonald, weren't there a group of men's lacrosse players who were dropped from the team in the Fall for disciplinary reasons? A. Q. That is correct. Okay. And that group would be reflected on the last page, D0123, around the middle of the page there's a group of men's lacrosse players who were deleted on the 9th of September, 2008, is that right? 294 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. That is correct. Now, and as a result of their being dropped for disciplinary reasons, they were not reported as -- or excuse me, because you haven't filed your EADA reports for the '08-'09 year, correct? A. Q. That is correct. But you will not be required to report them as participants for '08-'09 because they weren't on the squad as of the first date of competition, correct? A. Q. That is correct. Okay. Were they -- did they, in fact, rejoin the men's lacrosse team at some point in the '08-'09 year? A. Q. A. Yes. And did they play? Yes. I can't speak to all of them but I know some of them played. Q. A. Q. Okay. Yes. And would you take a look through the change in So they did get to participate? status list for '08-'09 and tell me, if you can, where this change in status list shows those men's lacrosse players being added back to the roster? A. Q. Are you asking if they're not there? Yes, that's exactly my point. I think you'll find they are not there. 295 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. That's fine. Maybe we can short circuit -- can you agree with me they are not shown as being -A. Also, before I would agree to that, I would think that I'm not sure this list, you know, look at the date with the most recent date of '08-'09, is what -Q. It looks like the most recent dates of change are -- March the 20th is the most recent one that I see and the second line, Palmieri, women's softball on page D0122. A. Q. A. Q. Right, so I'm just not sure. You don't know if this list is complete? That's what I'm trying to say. Okay. Does the department keep a different document called a season of competition used list? A. I'm going to say I don't know. Certainly something that's a major part of our student athlete's life and coach's life. Q. What's your understanding of what that term would mean, season of competition used? A. Well, every athlete has four years of competition and The reason for my they have five years to get it in. hesitation, it's not a document that I sign like I do for these. Q. A. All right. But it is a very important piece of intercollegiate 296 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 athletics. Q. And so an athlete that participates, plays in the sport during the championship season of that sport would have used a season of competition, correct? A. That is correct. It's measured a little differently by sport but the basic theme is student athletes have five years to get four years of competition in. Q. All right. And, again, for each sport there's a limit to the number of contests that the athlete can compete in during the championship season before being considered to have used his or her eligibility, is that correct? A. Yes. Certain sports have certain ratios as to when Some are in the -- but you have exhausted that season. that's -- the answer to your question is yes. MR. ORLEANS: Could we have this marked for idenfication as 39, please? MS. GAMBARDELLA: MR. ORLEANS: No objection. Thank you. You're welcome. MS. GAMBARDELLA: THE COURT: Exhibit 39 is full. (Whereupon Plaintiff's Exhibit 39 was marked full.) MR. ORLEANS: copies. And here are a couple spare 297 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. ORLEANS: Q. A. Q. (Hands witness) Thanks, Jon. Sure. Mr. McDonald, showing you Exhibit 39, that's a document produced by the defendant in the litigation that is headed Season of Competition Used. that? A. Q. Yes. Is it a document that is compiled by the Athletics Do you recognize Department? A. Q. Yes. May I see the original for a minute? I want to make sure that it's not one that I marked up. No, it's not. I'm sorry, Your Honor. Just a moment. I have a copy that I marked up and need to find that one. (Pause) Now, do I understand correctly that this, the names listed on this document would be a list of the students in each sport who used a season of competition in the academic year 2008, 2009? A. Q. Yes. What does the column on the right, participated flag refer to? A. Means they stepped on the field and competed for Quinnipiac. 298 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. What if somebody doesn't have a "Y" in that column? Have they still used a season of competition? A. Q. A. Q. I don't know. Okay. I did not fill out this report. Who would be most familiar with this report? Tracey Flynn. Okay. Could I refer you to the third page of the exhibit? Do you see, a little more than halfway down the page that there starts a list of, of men's lacrosse players? A. Q. Yes. Let me call your attention to a number of players. I'm going to refer to them by initials in view of the fact they may be minors. MS. GAMBARDELLA: you on? I'm sorry. MR. ORLEANS: I'm on the third page of 39. Just to be sure. It's D0045, the bate Counsel, which document are MS. GAMBARDELLA: MR. ORLEANS: number. MS. GAMBARDELLA: BY MR. ORLEANS: Q. Sure. Thank you. Four down, there's a senior with the initials AA See him? who's added on January 21, 2009. A. Q. Uh huh. (Affirmative.) I need a verbal, I'm sorry. 299 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. I'm sorry, yes. Yes. And then a couple down, couple more down, there's a junior with the initials BT, also added on January 21, 2009? A. Q. That is correct. And at the bottom of the page, initials GM, it says added on 1/21/2008 but I'm guessing that the eight is a typo; would you agree with me on that? A. Q. That's accurate. And if you go over to the next page, continuing down the list, a little off the middle there's a senior with initials PE added on January 21, 2009. And below him, And farther Do another, a sophomore on January 21, 2009. down, a junior TK added to the roster on 1/21/2009. you see all those? A. Q. Yes, I do. Is that the group of young men who had the disciplinary -A. There's a variety of reasons why some of them, but most have them are familiar to me because of the disciplinary actions. Q. A. Q. And they have all competed this year, have they not? Yes. Even they don't have a "Y" on the participation column on the right? 300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. As I say, I'm not sure what criteria they used to put the "Y". Q. And, again, they are on this list because having competed for Quinnipiac this year, they've used a season of eligibility, is that right? A. Q. That is correct. So if I went through this list, Mr. McDonald, and for each sport I counted the number of athletes listed in each sport, I could get a count of the number of athletes in each sport who used a season of eligibility in 2008, '09, is that right? A. I would say I'm not sure, just because based on the submission of these Y's and A's and Q's, okay, but it's relatively -- this seems to be the sheet we use to establish seasons of eligibility. Q. Okay. So you're not sure but if I wanted, if I really wanted to know how many students used a season of eligibility in each sport, is there a better document to go to than this one as a source? A. No, there's not. But this doesn't show you if they competed in all the games, 20 percent of the games, or this doesn't help you with that. Q. A. Q. Right. That's maybe where the letters come in. Okay. But if they didn't compete in all the games, 301 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they may still, nonetheless, have used a season of eligibility under NCAA rules, correct? A. Q. Possible, yes. Well, I think you said earlier that it varies by sport, but in any sport there's a number of games you have to compete in to be considered to have -A. Q. A. Q. Yes. -- used a season? Yes. And it's not the majority of the games, is it, in most sports? A. Most sports, if you played more than 20 percent of your season you have exhausted your year of eligibility. Q. Okay. Now, in the current year, '08-'09, there were no athletic scholarships for cheerleaders, is that correct? A. Q. That is correct. I think you testified yesterday that your budget, your first budget proposal for the upcoming year reduced the Athletic Department budget by somewhere between five and 10 percent without cutting any sports, correct? A. Q. A. Q. My first proposal was to not cut sports, yes. So you spread the pain around essentially? Yes. And you achieved the five to ten, the five to ten 302 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 percent goal with that budget? A. Q. I think we did. Okay. But you were, your superior, that would be Mr. Bellemonte (ph) to whom you report, is that right? A. Q. Yes. He came back to you and told you that you had to cut volleyball, is that right? A. The University needed to cut more as a campus, not So -- just the Athletic Department. Q. When you say the University needed to cut more as a campus, you mean reduce expenditures, correct? A. Q. Yes. But Mr. Bellemonte told you that you had to cut volleyball specifically, didn't he? A. Told me that more cutting of sports was now on the block. Q. Okay, I understand. And did he tell you that you had to cut volleyball? A. Q. Yes. Now, where will the varsity competitive cheer team practice? A. They will practice in the same place they've been practicing for the last few years, which is the rec center. Q. On the tennis courts? 303 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, Court Four. And they will be practicing more than the sideline cheer squad has been practicing this year, will they not? A. Q. I don't know the answer to that. Okay. There will also be a sideline cheer squad next year, is that correct? A. Q. A. Q. A. That is correct. Where will they practice? They'll also practice in the rec center. On the same property? Probably because of the storage of the mats and the state of the equipment, it will be in the same general area. Q. So your plan is that the competitive cheer and the sideline cheer squads will share that space for practice purposes? A. Q. I would think so, yes. And where will the varsity competitive cheer squad compete when they have home competitions? A. They'll have two places to compete. One is the older Burt Kahn court we referred to and then we are planning on maybe a competition or two or three in the T D Banknorth, but that's all based on the scheduling of all of the buildings. Q. I understand. So you do expect the Burt Kahn court 304 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to be available for at least part of the '09-'10 year? A. Q. Yes. Now, the Athletic Department at Quinnipiac has not asked the Department of Education Office of Civil Rights to review your plan to make competitive cheer a sport for Title IX purposes, have you? A. Q. No. Excuse me just a moment. (Pause) Mr. McDonald, there was some testimony yesterday about roster management and roster size targets, do you recall that? A. Q. Yes. When you at Quinnipiac set your squad size targets or your roster targets, did you consult with the coaches about that? A. Q. Yes. You asked them for their views on what they think would be appropriate for their sport? A. Q. A. Yes and no. Want to explain that? Be glad to. The roster management clearly was a commitment to improve our proportional numbers and it's like the setting of a budget or like the setting of scholarships or like any other policies. Sometimes it's 305 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my role with discussion of, shall we say, senior administration to develop policies. And in the roster management thing, clearly it was a policy that it was the institutional responsibility to increase proportionality, and ask any coach whether they wanted to have something to deleted or something added probably would create significant stir. As the NEC certification showed, we were committed to improving opportunities for women and that setting of roster management was one of the ways to do that. '07-'08. So we set up this roster management policy in Some discussions with coaches, some looking at stat sheets to see how many people really did play throughout the season, but it's really a, shall I say, not a consistent evaluation of every sport. different, unique and good sports. Q. So, would it be fair to say then that it's a, it's an They are all executive decision; you may consider what people have to say but ultimately you have the advice of your senior administrators make the decision as to what those targets are going to be? A. The certification of the Student Welfare Committee was deeply involved in establishing roster management as a priority as well as looking at the numbers. For example, I may have said yesterday, or maybe in deposition, for example, there's things like what we call like sports. 306 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Soccer and soccer are the same. Track and track. Ice hockey and ice hockey, they are exactly the same locker room's coaches, that we discovered that some of them were different in the number of men and women on those teams. So we, like, for example, asked the soccer coaches to say you guys get in a room and whether it's ten on both teams or a thousand on both teams, we want both teams to be equal. So, when I said that the coaches were involved, some were because of their -- they were what we call like sports and then there's certain sports that are completely different. Q. Okay. In arriving at the roster targets that you established for Quinnipiac, do you consider squad sizes and other Northeast Conference schools? A. That particular document, no, we didn't. There are other more reliable documents that I would use, particularly the one from the NCAA, that sort of gives us a guide. That's more a wide range of schools. Its Division I, what is we compete against. Those numbers are established from consistent reporting to the NCAA. The NEC -- no, I'd say the same for the NEC survey in all phases of it. It's a nice survey done by an athletic It's director and compliance person in a couple hours. not the detail of the EADA or squad list, so I think the 307 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEC survey really was created for a salary survey and everything else was thrown in, so I don't consider this a reliable source. Q. All right, I'm not sure that I understood. Let me go back just to the first question and then we can talk about the document. Is it -- withdrawn. When you set your annual squad size targets for Quinnipiac, do you consider squad sizes at other NEC schools as useful information? A. Q. No. Do you consider squad sizes in the NCAA Division I as useful information? A. Q. I would say that's a little more reliable, yes. You would consider that more reliable? Okay. Would you take a look at Exhibit 10? Let me just ask, is this the NCAA squad size information that you would consult? A. Q. We would, yes. Okay. We have looked at this often. And this particular chart or pair of charts reflects average squad size without regard to whether the school has a football program, correct? A. Q. A. Q. Yes. Is there -Yes. Is there another survey or chart that you consult that reflects Division I schools that don't have football 308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 programs? A. Q. For this purpose I don't see the need to do that. Okay. All right, fine. And if you would go back to Exhibit 9, let me see, I'm not sure that you're looking at the same document I am -- yes, you are. Fine. Thank you. What is this document, Mr. McDonald? A. Q. This is the NEC survey that we spoke to a moment ago. Okay. It says 2008-'09 Athletic Department annual report. A. What Athletic Department is that a reference to? The Commissioner of the league asked us to fill out -- it's probably a 25 page report to go over all phases of support for your Athletic Department. Q. And this chart reports squad sizes for each school in the Northeast Conference and for each sport they offer, correct? A. Q. That is correct. And do you have any reason to think it's not accurate? A. Q. A. Yeah I do. Go ahead and tell me why you think it's not accurate. I'm just sort of picking a sport here. Let's just take men's soccer, and I'll use Sacred Heart which is right here in this community because we know their men's soccer program is 35 there. Q. Sacred Heart is SHU down in the left column? 309 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Yes, it is. And soccer, they show 35 for men? Correct. Okay. And so much of what they do using student athletes within their institution instead of recruiting from enrollment so that's a good example, that there are many others here that the numbers are just totally different, and I don't think I'd go to any conference. I don't go to ECAC hockey for their surveys, I don't go to Great Washington lacrosse for their surveys. that I would refer to as the NCAA. Q. A. Okay. But the fact of using that -- I'm just picking one And I I'd go to anything out here, that that's a very, very high number. understand why they do it. okay for them to do that. Q. It's certainly their -- that's And it's the highest of any Northeast Conference school according to this, according to this chart? A. Yes, there's some here -- I'm not looking at all the same time but, again, as I said, this would be the last document I'd go to when dealing with -Q. A. Q. Fair enough. -- important numbers like this. Do you know when this document is compiled? I think 310 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you said it's compiled by the Commissioner of the Northeast Conference? A. It's sent by the Commissioner and it's submitted by each athletic department. Q. A. Q. So each athletic department supplies its own numbers? Correct. They go back to the Commissioner's office and then they are compiled into this chart at the Commissioner's office? A. Correct. The deadline for this is usually the middle Most of the seasons in some years we to end of September. already experienced here that some of these people have not even submitted their squad list at this point, so I don't consider this reliable. Q. Okay. Now, Mr. McDonald, coming back to the question of scholarships momentarily, you have committed to honor the existing scholarships for volleyball players who are students at Quinnipiac, correct? A. Q. Yes. And that's about three scholarships that you're committed to? A. I know the program is five and if there's anybody on the current program that's part of that five, we will certainly honor it. Q. Okay. And then if you add two scholarships in 311 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '09-'10 for cheer squad members, obviously there's not going to be a net savings in the scholarships money, correct? A. Q. No. I'm not sure of your question though. My point is that if volleyball has five scholarships added to it, or allocated to it, correct? A. Q. Correct. And if three of those scholarships are going to be honored, and two scholarships are going to be allocated to cheer, five equals five, doesn't it? A. Q. There's no relationship between the two at all. Well, the money's the same, is it not? Five full athletic scholarships are five full athletic scholarships; would you agree with me? A. Yes, but comparing one sport to the other is not fair This is about volleyball and adding to the sports. cheerleading. Q. A. I'm just comparing dollars. Yes, but it's, you know, a lot of varsity sports that we have with scholarships. Q. Mr. McDonald, if an athlete lacks sufficient skill or talent to compete at the Division I level but is kept on a team to meet roster management goals, do you consider that that athlete gets a genuine participation opportunity in the sport? 312 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Could you ask that question again? Sure. If an athlete lacks sufficient skill or talent to compete at the Division I level, but is kept on a team in order to meet roster management goals, do you consider that that athlete gets a genuine participation opportunity? A. Q. Absolutely. And if an athlete is not on the squad the first day of competition but is added to the roster after the first day of competition and plays regularly, do you consider that that athlete gets a participation opportunity? A. Q. Absolutely. I just wanted to clarify something that came up We were talking about the baseball roster and yesterday. you said that the first day of competition for baseball was in September, do you recall that? A. Q. Yes. Thank you. Now, Fall is not the championship season for college baseball, is it? A. Q. No, nor are many other sports. Okay. So the first day of competition isn't necessarily in the championship season for a sport? A. Q. A. That is correct. So baseball is really played year round? Baseball, softball, lacrosse. 313 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And you heard the testimony yesterday about volleyball; they have their championship season in the Fall and they also have competitions in the Spring? A. Q. That is correct. And that would be similar to baseball having competitions in the Fall and having its championship season in the Spring, correct? A. Q. That is correct. Mr. McDonald, in the last two years, '07-'08 and '08-'09, Quinnipiac has not conducted any formal surveys of student interest in athletic participation, has it? A. Q. A. Q. We weren't required to. Okay, and so the answer is no? No. Have you undertaken any systematic effort to assess student interest in particular sports? A. Q. No. Mr. McDonald, would you take a look at Exhibit 14, Do you have that in front of you? please? A. Q. Cheerleading page? Yes. Could you just explain to the court what that exhibit is? A. This looks to be a cheerleading website. The beginnings of it looks like it's broken up into different pages. 314 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Well, in fact, it's the Quinnipiac University cheerleading website as it existed before mid April, is that right? A. Q. That looks familiar, yes. And it reports the, it lists the members of the cheerleading squad, doesn't it? A. Q. Yes. And if you look at the page that's labeled page five of six up in the upper right hand corner of the page? A. Q. Okay. You see the second paragraph there about competitions, starts Do you enter competitions, and then -A. Q. Yes. -- it goes to say that "Quinnipiac University cheerleaders have been competing for the past six years. However, our main goal is to support both the men's and women's basketball teams." A. Q. Yes, you did. Now, if you would go on to Exhibit 15? MS. GAMBARDELLA: MR. ORLEANS: have that many. MS. GAMBARDELLA: MR. ORLEANS: Thank God. I'm very Fifty or 15? I'm sorry. We don't Did I read that correctly? Fifteen. I'm with you on that. 315 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 happy not to have 50. BY MR. ORLEANS: Q. Mr. McDonald, is this at least a portion -- I'll represent to you that I tried not to leave anything out, but -- of the current website for the competitive cheer squad? A. This is the roster page of the new competitive cheer website. Q. Okay. And this website went up on, around the middle of April, correct? A. Q. A. Q. Yes. Okay. Sometime after this lawsuit was filed? Don't know the answer to that. Okay. Now, do you know whether the, whether the roster that is listed here for competitive cheer in 2008, 2009 is the same roster that is listed for, that was listed on the old website for cheer? A. Q. No, I don't. You don't know. Okay. I note that the roster -- I'm still looking at Exhibit 15 -- seems to be almost but not quite exclusively freshmen and sophomores. A. Q. I do now. Okay. Do you know whether there's a reason that the Do you notice that? See that? roster is all freshmen and sophomores except for one -- I 316 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think there are two juniors. Three? A. Except for two juniors? To answer the question, the only thing I can say is that for every year for all of our teams, we have what they call a Senior Day and we didn't have a Senior Day for cheerleading this year because she had no seniors, so I would sense that that's why probably why you don't see a lot of upperclassmen. Q. Because they don't stay on the team if there's not a Senior Day for them? A. Once in a while a team sort of cycles out that they That's just a phenomenon don't have seniors, or very few. of all teams. Q. Now, coming back to a little bit of your testimony from yesterday about the adding of women's sports, we were talking about the prongs of the Title IX test for equal athletic opportunity; do you recall that? A. Q. A. Q. Yes. You have an understanding what prong two is? Yes, I do. And that's the, that refers to the -- well, why don't you give me your words? A. Q. Prong two is a history of program expansion. History of program expanstion. And is it your contention, Mr. McDonald, that Quinnipiac University 317 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 satisfied prong two in the current year and in 2007, 2008, because it has added five women's sports in the 14 years that you've been at Quinnipiac? A. Q. That is correct. Now, you testified a minute ago that you didn't consider the squad sizes of other Northeast Conference schools to be particularly useful in setting your roster size targets, correct? A. Q. Correct. What did you consider in setting your roster size target of 40 for the competitive cheer squad beginning this Fall? A. It's actually pretty simple. Two factors. One, I think, and again, you can probably count better than I, but currently there are 31 and 32 on the Quinnipiac cheerleading team. University of Maryland I think had 36. But the real reason was when the team competes nationally and the team competes, there are 25 athletes on the floor competing. They are all there, like nine in baseball and There's 25 11 in football and six in ice hockey. competing. So, if you were to take the squad sizes of any sport -- and we don't have football but I'll use it as a first example. My alma mate, Boston College, has 11 on My ice hockey the field, they have 120 on the sideline. 318 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 team has six on the ice and the squad size here shows 27 and 28. The volleyball team puts six on the floor and So, you could go anywhere from ten to 15 on the roster. through any sport and you would find that there is at least double, if not triple, the number of people that compete that are on the roster. So, based on that, based on Maryland with 36, based on Quinnipiac currently had 32, that was the reason. Q. A. Football is kind of a special case, isn't it? Football is a sport. Football reports to the NCAA, it reports to the EADA. Q. And in hockey, I don't know if you're a hockey guy Nobody but you have these interchanging lines, don't you? plays the entire game? A. Nobody reads the rule of the game under the EADA either, so we need to report numbers the way the law asks us to. Q. Would you agree with me that there's -- withdrawn. Is it fair to describe the cheerleading unit this year, which involved both sideline and some competition, correct? A. Q. A. Q. Correct. Is it fair to describe it as intermural? No. Okay. 319 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Would you like an explanation? No, I'm actually just looking for a word. It wasn't I'm not varsity, it wasn't club, it wasn't intermural. sure what word to use to describe it. A. Q. I think the appropriate analogy would be club. Okay. Is there more work involved in being a Division I varsity athlete than in being a club athlete? A. Having -- not knowing club sports, I can't speak to that but I would tell you that to be an NCAA Division I athlete is significant, and so I can't speak to club sports but I never was an athlete or a coach. Q. Okay. Do you expect that for the members of the varsity competitive cheer team, that being a member of the varsity competitive cheer team next year will be more demanding physically and in terms of time than it was to be a member of the squad this year? A. Q. I would hope so. And certainly more demanding than it would be to be a sideline cheerleader? A. I don't know the answer to that question, but certainly because of the travel and because of the competitions, I would think that it will be a different level. Q. A. Okay, and because of training time too? All of the above. 320 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Mr. McDonald, you heard Coach Sparks' testimony yesterday about her conversations with you around the time she was hired? A. Q. Yes. Do you recall her asking you about the school's commitment to volleyball? A. Q. A. Yes. Okay. And what did you say to her at that time? Told her how excited I was about it, that we now had We had the an opportunity to hire a full-time coach. opportunity to recruit and got our scholarships back and that I looked forward to tremendous success under her leadership. Q. Did you give her any assurance that the school was committed to the volleyball program? A. I certainly did, just because we were elevated to full-time, we got our scholarships back, so yeah, I was pretty excited about it. There were some pretty rough days prior to Robin getting here because the program was in significant flux, and we stayed the course and were able to get it back to a status that was, we considered, Division I. Q. And when you told Coach Sparks after Spring break this year that you didn't want her around the Athletic Department, I think those might not have been your words 321 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 but in substance, what did you explain to her was the reason for that? A. There was a, a significant -- well, I mean this is There's a significant economic discomfort for And when we had to 2009. everybody everywhere all the time. ask, number one, and we did drop the sport, and there was a, quite a -- and a sport is not just one employee, it's 12 students, it's 24 parents. In three different sports we were dealing with upwards of 50 people, students and coaches, who just saw their sport disappear on them. So, there was considerable anxiety level in the department. So Robin and the coaches were incredibly uncomfortable with what was going on, so we felt it best -- and people were fearing for their jobs. As bad as March 4th was, and it was real bad, there were still other employees that were being told their contracts were not being renewed. I mean we had six or seven or eight full-time employees that also, their contracts were not renewed. rough. And so Robin became -- everybody wanted to support her, but at the same time didn't want to be risking any discomfort or being part of anything that could be considered, shall we say, risky. So I had asked Robin for So the time at the department was, I'd say, the sake of her discomfort and for those that were in this 322 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 department -- I did have some staff members come to me saying we want to support Robin but -- and so I said, you know, you've got a young daughter, go home, take care of her, take your computer home, take yourself home and let's do as much as you can from home. Q. Okay. And so your decision to ask her to do that didn't have anything to do with any concern that she was organizing opposition to the decision, did it? A. You know, that's all second, third-hand rumor, but Some of you know, that was not why, the ultimate reason. these things trickled out a little bit afterwards but that wasn't a criteria for me. Q. And, in fact, this is page 111 of the deposition -- you recall being deposed at my office? A. Q. A. Q. Yes. A week or so ago? Yes. And you recall, Mr. McDonald, that I asked you about this decision, "So it didn't have anything to do with any sense that she was organizing opposition to this decision?" And you responded, "Absolutely not. It was more the comfort level of those that were still around"? A. Q. I stand by both statements. Okay. (Pause) 323 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. McDonald, would you look at Exhibit 28, please? You have that in front of you? A. Q. Yes, I do. It's a multi page document. You may need to take a minute to go through it. happened here. No, wait a minute, I see what's Okay, it's actually a shorter document than I thought -- six pages. Could you take a look at that and tell me if you recognize it? A. Q. A. I do. What is it? It's the men's cross country and track website with I guess the corresponding links for roster schedules and you've got the women's here as well, yes. it is. Q. And this is part of the Quinnipiac University So that's what Athletic Department website? A. Q. A. Yes. Who's responsible for the information on the website? We have an office of athletic communications and/or sports information that handles this working with the coaches, keeping this up to date, as well as the operations side, the scheduling of events. Q. And it's part of the normal operation of the Athletic Department to -- 324 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Very much so. -- to keep this website up to date? As best as possible. There's parents looking everyday. Q. A. And you do your best to make it accurate? I'd say more so than best. I hold the coaches responsible not for its input but so the data is correct and, as I said, there's tuition paying parents looking at this everyday. MR. ORLEANS: Okay. Offer this. MS. GAMBARDELLA: MR. ORLEANS: This is 28? This is 28, it's the men's -No objection. 28 is full. MS. GAMBARDELLA: THE COURT: All right. (Whereupon Plaintiff's Exhibit 28 was marked full.) MR. ORLEANS: No objection? Good. I'm sorry, Your Honor, I couldn't hear -THE COURT: It's full. Thank you. MR. ORLEANS: BY MR. ORLEANS: Q. Now, if you would go onto Exhibit 29, Mr. McDonald, Just tell me if you this one is a little thicker. recognize this document. A. Looks like you printed all the schedules and most, if 325 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not all the sports. Q. Again from the Quinnipiac University Athletic Department website? A. Q. Yes. Okay. And similar to the other document, does your Office of Communications -A. Q. Yes. I'm mangling the title, but an effort is made to keep this accurate and up to date? A. Including rain-outs in baseball. MR. ORLEANS: I'll offer this. No objection. MS. GAMBARDELLA: THE COURT: Twenty-nine is full. (Whereupon Plaintiff's Exhibit 29 was marked full.) THE COURT: I'm assuming you're not offering the handwriting, or maybe you are. MR. ORLEANS: THE COURT: I'm not offering the handwriting. All right, very good. Thank you for noticing that, Your MR. ORLEANS: Honor. I had not registered it myself. BY MR. ORLEANS: Q. Mr. McDonald, with respect to the submission of EADA reports, are you familiar with an assurance of compliance that has to be signed on behalf of the University? 326 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yes. Is that something that you sign? Not sure the terminology. There are documents that I sign, coaches sign, and even the president of the University signs. Q. A. Q. Would you look at Exhibit 31, please? Sure. Do you recognize that as the assurance of compliance that is required to be signed in connection with the EADA reports? A. Q. I don't know this document. Okay. All right. Mr. McDonald, do you recall receiving a request from Coach Sparks for the University's EADA reports? A. Q. A. Q. A. Yes, I do. For a period from, I think 1996 to the present? I do. Okay. And what did you do with that? I think that was accurately reported yesterday that I told Robin, again, email or not, that any time those kinds of things come in, we send it up to administration. Q. And are you aware of whether those reports were ultimately delivered to Ms. Sparks and her counsel in connection with this litigation? A. Seems like they were but -- I know that once counsel 327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 got involved they would handle it. Q. Okay, and I'm not asking to reveal any discussions Would you just look at Exhibit 4, with your counsel. please? MS. GAMBARDELLA: MR. ORLEANS: yesterday -- We don't have an Exhibit 4. We did Do we have an extra set? (Conferring with counsel.) MS. GAMBARDELLA: MR. ORLEANS: Thank you very much. It was about 1:00 o'clock in the morning that we put this together. BY MR. ORLEANS: Q. A. Q. Do you have that, Mr. McDonald? I do. Do you recognize this rather thick collection of documents as the Quinnipiac College Athletic Department EADA reports for the period, from the 1995, '96 academic year through the 2007, 2008 academic year? A. I'll take your word for it. Looks like they are all there, yes. Q. No, actually I think, as it turned out, there were a few that were missing, but it's a series of EADA reports spanning that -A. Q. Correct. -- that period of time, even if every year isn't 328 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there. A. Q. Correct. And, in fact, you compile those reports and keep them in a notebook in your office, don't you? A. Yes. MR. ORLEANS: I'll offer these, Your Honor. Your Honor, I'm not sure how MS. GAMBARDELLA: many times we have to eliminate this. MR. ORLEANS: record. I just want the ruling for the If it's going to be excluded -MS. GAMBARDELLA: It's excluded on two records. I'm not sure why we're spending more time litigating this when the court already ruled on the lack of probative value of an EADA report from almost 15 years ago and forward. MR. ORLEANS: Respectfully, Your Honor, I'm not going to repeat my arguments about the importance of the history. I don't think -- we had not offered this exhibit in any formal way and just wanted the ruling on the record. THE COURT: I don't see a problem admitting the 2007, 2008 report, which appears to be the last 18 pages. MS. GAMBARDELLA: no objection to that. THE COURT: The remainder, for the reasons I That was the ruling. We have 329 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 previously stated, since this hearing is limited to column one, it does not appear to me to be of any probative value, so I would exclude that portion of Exhibit 4 other than the 2007, 2008 report. MS. GAMBARDELLA: THE COURT: to be a objection. MS. GAMBARDELLA: No, no. Defendant maintains Right. As to which I don't understand there that it's a weight issue but you've already ruled on admissibility, so -THE COURT: Fair enough. So I'm going to admit 4 in part, which is the last 18 pages. (Whereupon Plaintiff's Exhibit 4, as described above, was marked full.) MS. GAMBARDELLA: THE COURT: That was the last 14 pages? It says one of I believe it's 18. 18, et cetera, at the top. MS. GAMBARDELLA: you, Your Honor. BY MR. ORLEANS: Q. Mr. McDonald, you sent a memo to Mr. Bellemonte Thank you. I got it. Thank entitled budget cuts in Title IX, did you not? A. Q. Yes, I did. And you attached to it an article from the Journal of Sport and Social Issues? 330 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I think that's what it's from but it's, what, sports writing in fiscal austerity, something like that? Q. Yes, achieving Title IX gender equity in college athletics in an era of fiscal austerity? A. Q. A. Q. A. Q. That is correct. And it was an article from 1995 actually, wasn't it? Yes. And did you -- you read the article, did you not? Many times, not -- yes. One of the things that the author recommends to athletic departments that are faced with financial concerns is that they undertake a comprehensive Title IX audit. A. Q. Is that not -- is that correct? Yes. And has Quinnipiac undertaken a comprehensive Title IX audit? A. Most recently. It was part of the certification we just completed. Q. A. Q. A. Q. So that was back in 2006? Yes. Okay. Would you turn to Exhibit 37, please? What number? Thirty-seven. It was the last one. And I think we established yesterday this is the certification self study? 331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. Can I refer you specifically to page 109 and through, from 109 up through -- I'm having trouble finding where it -- you see page 109? A. Yes, the pages are a little messed up here but this -- this is in the student athletic proffer session? Q. A. Q. A. it. Q. What I'm trying to do, Mr. McDonald, is identify the Yes, operating principle 3.1 gender issues? Yes, my pages are a little messed up here, but -What I'm trying to -I'm jumping around the pages but go ahead, I'll find part of the certification self study that would constitute the report of your comprehensive Title IX audit. A. Okay, there are two things. There is a section somewhere in here that's student athlete, well, general and student athlete welfare. subcommittee for that group. There was a separate It was chaired by Joe Biden That report, and again my (ph) who is our faculty member. pages are messed up, there's a significant amount of spread sheets here that show a three year survey of important gender equity data for the athletic department, basically salary, scholarships and operating. The subcommittee went through, in addition to the three prongs of gender equity, there's an important 13 prong questions 332 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and/or criteria that -- and it involves locker rooms and training rooms and practice time. So, anyway, the Somewhere in this subcommittee went through all that. document is what we call plans for improvement, which basically says these are the things that we have discovered and this is how we plan to improve them. I'm not sure I answered your question. Q. No, that's -- did that committee produce a report, a written report apart from what's in this -A. Q. A. Q. No. -- certification self study? No, this was clearly required by the NCAA. Let me come, since you said your pages are messed Okay. Let's see what we can do. up -- they sure are. A. I used to know that book cold but the pages are a little bit -Q. Let me call your attention, if I could, Mr. McDonald, to the table of contents. A. Q. Okay. On page three? THE COURT: improvement. MR. ORLEANS: Honor. I'll get to that in a second, Your Page 142 is the plan for 333 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. ORLEANS: Q. There's a chapter on equity and student athletic welfare which starts on page 109, correct? A. Q. Yes. And it includes a variety of materials, including the It looks gender equity plan for improvement on page 142. like the chapter goes through page 183? A. Q. Right. Is that entire chapter compiled by the committee that you were just -A. Q. Yes. Okay. Would it be fair to characterize this chapter as the report of the committee? A. It certainly would be fair to characterize the report, audit, self study; you pick a word, it's it. Q. All right. MR. ORLEANS: Your Honor, I'm going to renew my offer of that section of this document. MS. GAMBARDELLA: me which section? MR. ORLEANS: It is the chapter on equity and Which -- if you can just tell student athlete welfare that begins at page 109 and concludes on page 183 or 84. MS. GAMBARDELLA: pages. Let me just doublecheck the 334 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 add? page. (Pause) MS. GAMBARDELLA: THE COURT: 37 is full. (Whereupon Defendant's Exhibit 37 was marked full.) MS. GAMBARDELLA: Just also include the cover No objection. All right, that section of Exhibit MR. ORLEANS: Yes, absolutely. I'd like to include the cover page and the table of contents. Actually I'd like to include in the offer -- well, for the moment let's just go with the cover page and the table of contents. There's a whole opening section where it provides information about how the study was conducted. Do you have an objection to that? MS. GAMBARDELLA: relevance it is, but -MR. ORLEANS: It's really just background to Well, I'm not sure what understand what the report is. MS. GAMBARDELLA: Okay. So what did you want to MR. ORLEANS: The cover page and pages one You can through 22, just look at the table of contents. see what it is. MS. GAMBARDELLA: No, I will not object to the 335 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cover page through page five. opportunity to go through -MR. ORLEANS: Fine. I haven't had an So the offer at this point is cover page through page five and the chapter that was already admitted. THE COURT: All right, cover page through five, 109 through 184, are all full. MR. ORLEANS: Thank you. (Whereupon Plaintiff's Exhibit as described above was marked full.) MR. ORLEANS: All right. I have nothing further of this witness at this time. THE COURT: All right. We're going to pick up with the cross and the cross can include direct, as a practical matter. Whether on cross or direct, there should not be leading of the witness. MS. GAMBARDELLA: THE COURT: THE COURT: No, I understand. All right. I should note I have an I've received word that one of 11:00 o'clock proceeding. the lawyers is running 20 minutes late so I intend to break at about 11:15, take care of that proceeding, which I'm hopeful will be relatively short, and then return. MS. GAMBARDELLA: Okay. So do you

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