Biediger et al v. Quinnipiac Univ

Filing 85

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 3). 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 www.ctd.uscourts.gov. 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.)

380

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 three.

(Whereupon the luncheon recess was taken at 12:35 o'clock, p. m.)

AFTERNOON

SESSION

(1:20 O'CLOCK, P. M.) MS. GAMBARDELLA: Your Honor, we have a

preliminary housekeeping matter. THE COURT: Sure. During the break, counsel and

MS. GAMBARDELLA:

I talked, what we have agreed is that when we reconvene, which I think you said would be approximately 2:30? THE COURT: Well, 2:30 or at the earliest,

MS. GAMBARDELLA:

Got it.

Irrespective where we

are with Mr. McDonald, which should be substantially completed if not completed, we've agreed, we have a competitive cheer coach who has been here now for two days. We've agreed, if it's okay with you, to take her

out of turn so she doesn't have to return tomorrow. THE COURT: That's fine. Fine with us. And we can probably finish

MR. ORLEANS:

MS. GAMBARDELLA:

with her within the additional time constraints you have this afternoon.

381

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:

That's fine. Great.

MS. GAMBARDELLA: BY MS. GAMBARDELLA: Q. Okay.

Mr. McDonald, I just wanted to, before we

continue with the decision-making process for next year about the elimination of the programs, I want to just run by you one more piece of the expert's testimony. The expert testified that the NCAA caps indoor/outdoor cross country track at 18 events for the year, and that then if you eliminate outdoor track, all you need to do is get your indoor guys, men's indoor or women's indoor to just run the 18 events. response to that? A. Frankly foolish, impossible, impractical and nobody What is your

would want to do that, including the atheletes. Q. Can you explain to the court briefly why you have

rendered that opinion? A. Well, 18 events in one season, you know, in the

indoor season is, what, December, January, February. That's only 12 weeks. If anything, student atheletes that

run middle or long distance, that's actually too many events in that short span of time. impossible to do. it. So it's just We will not be doing So that is just

It's no solution.

We will run a normal indoor season.

hard to believe someone would say that.

382

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, just briefly, has the admissions office made you

aware of the female/male enrollment breakdown based on acceptance letters for next year? A. Q. A. Yes. And what is your understanding of the breakdown? So we can prepare for future proportional numbers,

there is -- 63 percent women have made deposits to Quinnipiac. Q. Okay. And, again, we've already gone through that

people don't necessarily show up who put deposits? A. Q. No. Okay. Now, let's go back to the decision-making Can you -- you've

process that is affecting next year.

already testified on direct from counsel that there was a dictate that budgets be cut. A. Q. Yes. Is that accurate? All right. Tell me who first

articulated to you personally that need? A. Q. My direct supervisor, Nel Bellemonte (ph). And what specifically did he say to you about budget

cuts? A. That all departments will be asked to reduce their Position freezes, potential

budgets by five, ten percent. salary freezes.

At that point the salaries weren't

discussed as much but there was some clearly important

383

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

discussions on budget and cuts on budget that were going to occur. Q. Now, you've already testified that the first proposal

you made did not include elimination of athletic programs to achieve that five to ten percent goal; do you recall that remember? A. Q. That is correct. Why didn't you include athletic programs in that

first proposal? A. It's just not what our business is about. Our

business is to give the student atheletes a good experience and, as athletic director, I know how important each of those sports is to each of the kids, and that is the last thing we would want to do. Q. And then you testified that he came back and said, Do you remember

no, programs have to be included. testifying to that? A. Q. A. Yes.

Can you tell us more exactly what he said to you? Well, I think at this point the initial university

budgets that were submitted, there appeared, because of some projections in the economy, some projections and all sorts of financial, the financial world was still sinking, that the initial proposals were not going to be enough. And we then were asked to consider the dropping of sports.

384

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. A. Q.

What was the first sport that you proposed be cut? Men's golf. And then at some point women's volleyball became the

topic of conversation, correct? A. Q. A. Yes. All right. Can you tell us how that proceeded?

Well, I think that women's volleyball became part of

this because of an university master plan of facilities that was unfolding or, shall we say, even continuing since we built the T D Banknorth Sport Center. Q. Can you please explain to his Honor what you mean by

that facilities master plan, did you call it? A. Q. A. Yes. Please. Quinnipiac has fortunately grown from 4,000 students

to about 7,000 students over the last 20 years or so and -Q. A. Q. A. Push the mic -Okay. Great. And because of that growth in students, the need for

space for student activity, including athletics, was clearly very high. We needed more space in student

activities, more space at the student book store, more space just for other students. We expanded some athletic

385

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

facilities. So, because of that, and because of the vacated Burt Kahn court where men's and women's basketball was, the university was looking at that space as a place to put some of these activities or offices or meeting rooms or what have you, so that the vacated Burt Kahn court became a negotiating piece as to what are we going to do with it. A lot of constituencies on compass were saying I want this for chapter 11, I want it for an auditorium, I was it for office space. So it became -- we're there saying we We were very successful in

need it for volleyball.

lobbying and proposing to the university that the Burt Kahn court, for the need of space for volleyball. We

would then agree to build a volleyball-only gymnasium or court. Q. When was that discussed as a possible future

solution? A. I would say past fall of 2008 we were actually

walking with some university officials looking at some spaces outside the athletic center to say it could go here. Q. Was that actually a topic for possible future

exploration even before early '08, early academic year '08? A. Yes.

386

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. A. Q. A.

When was that? Probably for the last year and-a-half. Okay. As the need for this expanded student activity space

was happening. Q. So, the need for expanded space is not just for

athletic programs space? A. Q. A. Q. No. It's university-wide, correct? Correct. And so, continue with respect to this discussion

about facilities and the plan about facilities. A. Well, as we were looking at this space, then we

started getting into some very preliminary discussion of how much space do you need, what's the size of the court, what's the size of the out-of-bounds area, how many seats do you think you might need? existing locker rooms. We were going to use the

It basically became a gymnasium

box that we were going to add to our current recreation and athletic facilities. So we penciled in a location, it was all on. So, by

October, November, December, we were starting to feel pretty good, asking the coach about the proper sizing and what's the out-of-bounds space, the ceiling height, all the things you need to build a first class facility. And

387

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

then things turned very poorly in December, January, February. Q. A. You mean in the economic -Economically. And then the University put a freeze

on all sorts of things, including this additional space. Q. Okay. So what building does the volleyball team --

well, this past year where were they practicing and where were they having home competitions? A. They were practicing and playing in the Burt Kahn

court, which was the old basketball gymnasium. Q. Okay. And what are the reasons why that particular

space and that particular was appealing to the university? A. It basically had a lot of space. I mean you can I'm not going

imagine a game court with two side courts.

to guess the square footage but it was a pretty good open space that could be used for a variety of reasons. They

thought maybe of putting in some offices where the old wooden seats were, maybe shrinking it into, instead of two intermural courts, make just one. Maybe an auditorium.

But just a general meeting place for university functions so that the other meeting space on campus, Alumni Hall, those events that were there could move to the Burt Kahn court and the spaces where the Alumni Hall was would be used by the book store, campus activity, student activity, what have you. Just normal master planning. I mean it's

388

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

very common. Q. The university's basically busting at the seams

space-wise? A. Q. Yes. With respect -- you were in court when Ms. Sparks

testified along the lines of how easy it would be, and I am paraphrasing, to simply take existing facilities, and I think the two facilities mentioned were the rec center and the T D Banknorth facility, how easy it would be to accommodate the volleyball team there. testimony? A. Q. A. Q. A. Yes. Okay. No. Okay. Tell us why. Do you agree with it? Do you recall that

Well, I think clearly the ease would be something for

a floor, but to be a first class Division I program, there's more than just a floor that needs to go into the rec center. The seating, the score boards, there's media So, no, it really was a -- it really

statistic areas.

would be almost -- what's the word -- not a Division I atmosphere if we did that. Q. What's the importance of having a Division I

atmosphere? A. I think that's why the kids we heard in the testimony

389

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

yesterday, that that's what they wanted. families want.

That's what the

We would much have preferred to have that

court that was designed specifically for volleyball than to have a rec court converted to a volleyball court. Q. A. Q. A. So it's not just about the floor? No. What about the other facility she testified about? Five or six -- well, now maybe seven, eight years

ago, when we were programming the T D Banknorth sports center at one point, we knew the university was busting at its seams, we knew the general sentiment, that people had their eye on the Burt Kahn court. It's like as soon as Well, as soon as

someone leaves, they want their office.

the athletic varsity teams left, there were many that wanted the space in the Burt Kahn court. So we proposed to include some volleyball facilities in the T D Banknorth Sports Center. And probably for a

few months I actually saw some plans drawn where there would be a volleyball locker room and volleyball coaches office and storage and all of the support things that would go along with it. Q. So, what would have to be done to that facility to

make it suitable to host a Division I volleyball program? A. Q. Today? Now.

390

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.

Well, today would require, you know, like we said

yesterday, obviously doing some infrastructure with the actual installation of the court, but we need a coach's office, you'd need an athletic trainer, you'd need the locker rooms, you would need the things that would go along with it. When the decision was made in that master

plan and the building was built then without volleyball, to add it now would be, I think, very troublesome. Q. Did the University in its early exploration of

possibly building out other space for volleyball to keep it or building an additional facility to keep it, obtain any quotes over the past year, year and-a-half, to accomplish those things? A. I'm sure a quote was established when we were going

to build that additional volleyball court as part of the athletic and rec center. didn't hear it. I don't have the exact price. I

But clearly the number was probably

higher than the economy would allow. Q. A. Q. A. Q. It wasn't $11,000, I take it? No. Okay. Was it even in the thousands of dollars range?

It was in the millions. And what is the volleyball season per NCAA

guidelines? A. The championship season is in the Fall.

391

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.

And so when is the season officially over for

volleyball pursuant to NCAA guidelines? A. The championship season ends at Thanksgiving or I know the NCAA championship goes a little

thereabouts.

longer and that's a nontraditional season that happens in the second semester. Q. You were asked about whether or not Quinnipiac has

ever done any -- and I don't remember if the word was official or formal, so I'm sorry if I've forgotten the exact words but the tenure of the question was whether or not you did any formalized surveys to ascertain student interest in particular athletic programs. being asked that? A. Q. Yes. And you said no, there was no survey of that calibre, Do you remember

correct? A. Q. That is correct. What are the methods that Quinnipiac uses to

ascertain student interest in particular athletic programs? A. The methods are, and it's quite clear and that's

absolutely why we're doing cheerleading, it's very uncommon, is quite regularly students would come to me to ask for certain things, whether it be an intermural golf or intermural lacrosse or club ice hockey or whatever,

392

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

rugby.

There's all sorts of things.

So it's really the And in this

measuring those that come and ask for it.

case, over the last probably five years, the only team that's asked to be varsity or recommending themselves to be varsity was the competitive cheer group. Q. And what about -- you were asked some questions about Is there -- are

recruiting, the timing of recruiting.

there also recruiting efforts on campus during orientations and things like that? A. Q. Yes. Can you describe the kinds of recruiting efforts that

are exerted during orientation for an incoming class, for example? A. Well, yesterday while I was here in court, I was

supposed to be at a Junior Open House for juniors who are, parents who are thinking about Quinnipiac. And so that it

begins with that one in May, and then there will be three open houses for the seniors in the Fall. And then there's

also what they call Student Admitted Day in March so the parents who have been accepted, and the families and the student atheletes, will come and meet us. At each one of

those five or six events, the athletic department has a scheduled meeting, seminar, Q and A time with me and/or the coaches. So we're very actively involved with the

admissions office.

393

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.

Are there also inquiries made by students who are --

at the time periods they are considering whether or not to come to Quinnipiac? A. Q. A. Q. Yes. In terms of athletic programs? Yes. Is that one way you ascertain interest in particular

athletic programs? A. Yes, it is. We also have a, quote unquote, little

thing on the website that says I want to do baseball or basketball or different sports. do. Q. Okay. I just want to briefly touch on competitive But, yeah, that's what we

cheer because I don't want to be duplicative with what the coach has already testified to. So, why elevate now to varsity level the cheer team? A. Well, there's two reasons. One is they want to be

and they've been successful and they've been competing for a while. It was also something that we looked at

seriously between the NCAA certification process when we said that we would increase opportunities by four to seven percent and competitive cheer and some other sports were considered. And then, as well as, and the most

recent news was our mandate to get to our number if we were to drop a woman's sport.

394

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

So clearly, all of the -- cheerleading didn't come out of the blue. It's been on the radar. We had

discussions even about elevating the coach prior to this situation, but economy and budgets didn't allow. So her

salary has gone from, I don't know, maybe $3,000 to its current level of 20 over the last six years because of this competitiveness, time commitment, what have you, so cheerleading has always been on the -- has always been there. Q. You were asked a question by counsel about whether or

not the University has had the Office of Civil Rights do an advanced assessment of whether or not your competitive cheer program as elevated to varsity level would pass muster for their purposes in deciding whether or not it would count for Title IX purposes. question? A. Q. Yeah, I do. Okay. Why didn't you get an advance assessment from Do you remember that

the Office of Civil Rights? A. We didn't do it when we had an indoor/outdoor track.

We didn't do it when we had field hockey and lacrosse and we didn't do it when we had women's ice hockey. nor did I know that that was a requirement. University of Maryland added the sport. The So -- and

We had their We

documentation from, again, our previous self study.

395

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

had their documentation -- if anything, Maryland was recruiting us to join their ranks. So we saw what the So that's why we

Department of Education sent to them. didn't do it.

It wasn't a book of criteria that says this

is what you do when you add a woman's sport. Q. Were you aware of the Office of Civil Rights

Guidelines with respect to when a sport, any sport can be counted for Title IX compliance purposes? A. Yes, little bit. Basically using what Maryland sent

to us. Q. Has the Office of Civil Rights ever audited the

University? A. No. I would tell you back in 1997, '98, we went to

the Office of Civil Rights in Boston to discuss with them our standings and let them know some of our plans. So

that was a self -- but, no, there's nobody that's come to our office at all. Q. Are you -- as part of your responsibilities as

athletic director, do you keep up with Office of Civil Rights documents, communications and advisories with respect to the multi-part test for determining whether something qualifies as a sport? A. Yes. It's one of the most supportive parts of our It's been a changing situation for many, many

position.

years, but it's one of the bench marks of being in

396

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

intercollegiate athletics that you need always to be aware of anything that you do, this has to be considered. Q. And as part of that, have you reviewed this document,

it's from the United States Department of Education Office of Civil Rights. it's '96. It's date-stamped January 16th, I think It's

That starts with Dear Colleague.

Defendant's Exhibit B, as in boy, for identification. (Hands witness) THE COURT: Actually B is a full exhibit. It is? Great. Thank you. Is

MS. GAMBARDELLA:

my notebook up there, Jack, or is it just plaintiff's exhibits? THE CLERK: It's right here. Thank you so much. Thank you

MS. GAMBARDELLA: so much. BY MS. GAMBARDELLA: Q.

Can you look at Defendant's Exhibit B, which is an Do you recognize the document? I mean --

exhibit? A. Q. A. Q.

Yeah, it's been a while but yes. Okay. Okay. Bottom paragraph. Go to page 2 of 17.

"In addition, the clarification,"

which is this document, "does not provide strict numerical formulas or cookie cutter answers to the issues that are inherently case and fact specific. Such an effort not

397

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

only would belie the meaning of Title IX but at the same time, deprive institutions of the flexibility to which they are entitled when deciding how best to comply with the law." And then I just want to read one more section to you and then I'm going ask you about your understanding. Bottom of page three. "OCR focuses on the interests and

abilities of the under-represented sex only if the institution provides proportionately fewer athletic opportunities to members of one sex and has failed to make a good faith effort to expand its program for the under-represented sex." And one more section, I'm sorry. Page four -- one,

two, third full paragraph from the top, third or fourth line in. "An institution can choose to eliminate or cap

teams is a way of complying with part one of the three part test." Last line of that paragraph, "Ultimately Title IX provides instructions with flexibility and choice regarding how they will provide nondiscriminatory participation opportunities." Now, what is your understanding of what the OCR is intending to convey in those sections? A. It's always been each institution, whether it be

academic majors or athletic teams, but in this case

398

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

particularly athletic teams, has the right to pursue what sports it would like to have. doesn't have football. For example, Quinnipiac

So in this case, the OCR says, in

my mind, and says that you have the ability to pick the sports you want, provided you meet the criteria of, that's been set forth by the Office of Civil Rights. Q. If you go to page 15. So --

"OCR will determine whether

there is sufficient unmet interests among the institution students." And then it goes on, and then there are some

bullet points that you can review. "OCR will look for interests by the under-represented sex as expressed by the following indicators, among others." Going through those bullet points, which one of those indicators are utilized by Quinnipiac in assessing the unmet interests of female students? A. Well, clearly number one, is the request by students

and admitted students a particular sport be added. Request an existing club sport be elevated. I mean -- so,

you know, again, most all of them, you know, most all of them fit in some ways. Q. A. Okay. Yes. MS. GAMBARDELLA: Exhibit C, is it in? Is this exhibit, Defendant's Can you look at Defendant's Exhibit C?

399

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:

It's full. All right, thank you.

MS. GAMBARDELLA: BY MS. GAMBARDELLA: Q.

Looking at Defendant's Exhibit C, this is U. S.

Department of Education frequently asked questions sheet. And question five is Who counts as a participant and how are the unduplicated counted participants calculated. And

then it says, "Participants are students who, as of the day of a varsity team's first scheduled contest, are listed on the varsity team's roster, and receive athletically related student aid and practice with the varsity team and receive coaching from one or more varsity coaches. Any study who satisfies one or more of the above

criteria is a participant." All right. means? A. Q. It's relatively very accurate as to what we do. And for purposes of your EADA reporting, do you What's your understanding of what that

follow those guidelines? A. Q. Yes, as we've said before. Exhibit D? THE COURT: D is not in evidence. All right. Just for the

MS. GAMBARDELLA:

record, Your Honor, this is an October 18th, it's stamped October 18, 2001, U. S. Department of Education, Office

400

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

for Civil Rights, letter to Ms. Suzanne Martin of Michigan High School Athletic Association. My only question about the document is if this is a document that Quinnipiac has obtained in connection with its exploration of competitive cheer for Title IX compliance purposes. asserted. MR. ORLEANS: Your Honor, I'm not sure how it It's not offered for the matter

could not be offered for the truth of the matter asserted. May I voir dire the witness on the document just very briefly? THE COURT: think. Well, it hasn't been offered yet, I

Is there a question to the witness? MS. GAMBARDELLA: Well, the question is is this

part of the materials that Quinnipiac has looked at in exploring the elevation to varsity competitive cheer and their state of mind about whether or not it would pass muster under OCR, is this part of the materials. THE COURT: question? MR. ORLEANS: question, no. THE COURT: Okay. Sir, you can answer that. There's no objection to the Okay. Is there an objection to that

THE WITNESS: particular case.

I'm not familiar with this

Certainly our coach can tell you a lot

401

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

more. to us.

She has been very active in supplying information

MS. GAMBARDELLA: THE WITNESS:

Okay, I'll deal with it --

I certainly heard about Michigan

but I can't say -- our bench mark has been the University of Maryland. MS. GAMBARDELLA: exhibits. THE COURT: Ms. Gambardella, when you have a I have three Okay, then I messed up the

chance, the first page says one of four. pages. MS. GAMBARDELLA: THE COURT: Yes.

Is that D, Your Honor? And I can't tell that. The

hole punch was put in right where that appears on the second and third page. MS. GAMBARDELLA: that. No problem. THE COURT: Okay. Let me just tell counsel who We'll see what we can do about

are here for the 2:00 o'clock, we're going to be hearing that argument next door in Judge Hall's courtroom, Courtroom Number 2 which is down the hall this way, if you'd like to get set up down there. MS. GAMBARDELLA: Thank you.

That's a lot of lawyers.

Thought we had a lot of lawyers. (Pause)

402

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 MS. GAMBARDELLA: Q. A. Q. A. Q. Okay, Exhibit F, it's the Maryland materials. Okay. Are these materials that you're familiar with? Yes. Okay. Are these materials part of the materials that

the University is looking at in exploring its elevation of competitive cheer and its counting for Title IX purposes? A. Q. Yes. What is the reason that these materials were obtained

by the University for that purpose? A. Again, through the NCAA certification process, when

it was identified that we needed to increase our opportunities for women, competitive cheerleading was clearly one of the sports we strongly considering. There's a thing in our business called Coach Talk and then they talk to each other and the University of Maryland administration contacted us and said would you like more information? We did ask, we would like to receive

confirmation on its standing with OCR, and ultimately these materials started coming from this point to the certification process in 2006. MS. GAMBARDELLA: admission for that. MR. ORLEANS: Your Honor, we have -- may I voir I'm going to move its

403

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

dire the witness very briefly on this? THE COURT: VOIR DIRE EXAMINATION BY MR. ORLEANS: Q. Mr. McDonald, this is a document that you received Sure.

from the University of Maryland, correct? A. Q. A. Q. Yes. Okay. And you're not the author of the document?

(Shaking head in the negative.) It wasn't addressed to you when it was originally

written, correct? A. Q. Correct. And no copy was sent to you when it was originally

written, correct? A. No. MR. ORLEANS: Your Honor, I have no objection to

the offer of this exhibit for the limited purpose that it is something that Quinnipiac considered in making the decisions that it's made, but I object strenuously on hearsay grounds to its admission for the truth of any statement that's contained within it. MS. GAMBARDELLA: THE COURT: That's the limited purpose.

That's what you're offering it for? That's not for the truth of

MS. GAMBARDELLA:

the matter asserted, but it goes to their due diligence,

404

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

if you will, for lack of a better word. THE COURT: All right, fair enough. Exhibit F

is full for those purposes. (Whereupon Defendant's Exhibit F was marked full.) BY MS. GAMBARDELLA: Q. All right. I want to jump to conversations that

Ms. Sparks testified about that you had with her prior to her signing the first contract and then a second contract. Do you recall that testimony, Jack? A. Q. Yes, I do. All right. Did you ever tell Ms. Sparks, in words or

in writing, that she would be assured that her contract would be renewed for more than one year at a time? A. Q. No. Okay. How can you be so sure of that? You heard her

testimony. A. Well, number one, university, including my own, all We certainly have intent for support

salary is yearly.

for everybody, like all the staff, but we are all given one year contracts, with the exception of our basketball and ice hockey coaches, but all employees receive an annual contract. Q. Did you ever make a commitment to Ms. Sparks as long

as she, and I forget her exact words, performed or I think

405

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

it was performed, she can be assured that contract would be renewed after one year? A. No, we had no -- there was no long term, you're here

forever, kind of discussion. Q. Did you ever make assurances to Coach Sparks about

the long term commitment to volleyball, meaning -- she testified on cross, I asked her, are you testifying that you expected volleyball to be maintained indefinitely. And do you remember me asking that? did. Did you ever make any statements assuring her that the volleyball program would be maintained indefinitely? A. Q. No. Okay. What did you tell her about the University's And she said yes, I

commitment to volleyball at that time? A. Clearly, number one, it's never my intent to drop any You've heard that already today. I think from

sport.

that perspective, her role as a volleyball coach was excellent, well done. All of us in the Athletic

Department were very impressed with what she's been doing. So I think in many cases like her, you know, we were surprised it came to an end, but there was no -- it's not my role to give any employee more assurances than the university can provide and -- but this was no disrespect to what she had done with the program. She'd done a

406

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

remarkable job.

We looked forward to working with her

more, but there was never anything in writing or verbal -and I have been asked these questions many times by other employees so I don't think that at any point my -- my support for her certainly was high but that doesn't mean anybody's getting tenure or a lifetime contract because of it. Q. A. Q. Do all your coaches have written contracts? Yes. And what are the terms of every coach's written

contract? A. Q. July 1 to June 30. In terms of scholarships available for competitive

cheer next year, are those the final numbers or are they subject to revision, if necessary? A. I think with experience, everything is subject to

experience, but we're starting from this, the point we mentioned, and every year things change. MS. GAMBARDELLA: THE COURT: (Pause) MS. GAMBARDELLA: time, Your Honor. THE COURT: time to break. Okay. I think this would be a good No further questions at this Sure. I need one moment, Your Honor.

The court reporter has got to move her

407

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

equipment next door.

So when we come back, which would

be -- I'll tell you, it will be no sooner than 2:30, if you want to get some fresh air, and it will be as soon after 2:30 as I can get here. MS. GAMBARDELLA: MR. ORLEANS: THE COURT: in recess. (Whereupon a recess was taken from 2:00 o'clock, p. m. to 3:10 o'clock, p. m.) And you agree Ms. Powers --

We've agreed to that. We'll stand

All right, thank you.