Brown University Athletes Who Lost Their Sports May Have Their Day in Court

Last month, more than 100 of the Bears' D-I student-athletes were told their teams were being dissolved—and not due to the ongoing pandemic.
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Maddie McCarthy began skiing before her third birthday and started racing at age 6. So it’s only appropriate to compare her sports career to a downhill slalom, McCarthy weaving between colorful poles—career obstacles—as she zigs and zags her way down the hill of life.

As a freshman in high school, her father was diagnosed with gastric cancer. Eight months later, he passed. Because of an absence of ski slopes in her home of Rhode Island, she spent her formative years at a boarding school in New Hampshire, away from family for long stretches. Then, as a senior in high school, during a significant time in her ski recruitment, McCarthy broke her leg. Shortly thereafter, her dream school, Brown University, initially denied her admission.

Zigging and zagging through life McCarthy went. Every time she avoided one pole, there was another. And now this: In late May, the ski team at Brown, along with 10 other athletic programs, was unceremoniously eliminated.

Brown women's skiier Maddie McCarthy

McCarthy is zigging again. She’s helping lead a coalition of Brown athletes fighting for their sports to be reinstated. They’ve hired the international law firm of Winston & Strawn, which last Thursday sent a five-page letter to the university suggesting legal action if teams aren’t reinstated, the first step in what could be a long battle. “I think it’s been really important to me to really question the university,” McCarthy says. “It’s not what they did, but it’s how they did it. It’s why we’re seeking justice, because of the absolute carelessness to so many kids and so many families.”

The letter, addressed to Brown president Christina H. Paxson, and sent to several other administrators, is in essence a warning shot, outlining grounds for a lawsuit if sports aren’t reinstated. Its final line reminds the university not to discard potential evidence, “including all electronically stored information.”

Discontinuing athletic teams is somewhat common across the nation. Just this year, more than 30 Division I teams have been eliminated. Grassroots movements to save these programs have often failed. But the situation at Brown is different, says Jeffrey Kessler, the lead attorney for the athletes. For one, Brown administrators admitted they worked in secret to hide their plans from coaches and athletes of the impacted teams for at least several months, if not a year or more. Also, they have freely acknowledged that the elimination of these sports isn’t due to the coronavirus pandemic or other financial issues—conventional reasons for discontinuing sports—but is rooted in an effort to improve competitiveness in other sports at the school.

Brown sponsored 38 varsity sports, the third most in NCAA Division I, and it has earned the fewest number of Ivy League championships over the last 11 years. Brown noted this in its announcement. The high number of sports programs has “hindered our ability to fully achieve,” the university’s announcement said. The decision came after the completion of a near two-year, university-ordered external review of its athletic department that ended last year. According to Kessler, the university clearly determined in January that it would be eliminating a number of varsity teams, and it intentionally withheld that information from athletes.

“All this last year, athletes who could have sought to transfer, were deliberately kept in the dark and new recruits recruited to these teams were induced to do so when they had offers from other universities without being told that there was a secret plan to eliminate the teams they were going to play on,” Kessler told Sports Illustrated. “It’s outrageous. Is there precedent for this? I don’t know any other school who’s ever done this before. I think they are in deep legal trouble, but no one wants a lawsuit. A lawsuit will happen if they want it to happen.”

There is another wrinkle to all of this. Brown actually reinstated three of the 11 teams on June 9 as a result of a separate athlete-led campaign that largely focused on the number of minority athletes eliminated. Amidst a nationwide movement for racial equity, the university rescinded its decision to cut men’s cross country and outdoor and indoor track. The decision further exposes the university to legal ramifications—why reinstate them and not the others?—by showing how haphazard Brown’s original plan was, Kessler says.

Roughly 104 athletes remain without a sport, a “significant number” of which has joined the coalition with McCarthy, Kessler says. He describes those athletes as “trapped” because of the timing of Brown’s decision, at the very end of the spring semester. In fact, the May 28 announcement came four days after the school’s virtual commencement ceremony.

Though athletes would likely receive an NCAA waiver to transfer and play immediately, their options are limited. They must first find an open roster spot, made difficult because of the timing of the cuts and the uniqueness of their sports. Many of these Olympic sports are only offered by a small number of Division I programs. Sports cut include fencing, golf and squash—all three had men’s and women’s teams—and women’s skiing and women’s equestrian. Fencing, squash, skiing and equestrian are four of the lowest-sponsored sports in the NCAA. For instance, of the 351 Division I programs last year, just 12 sponsored women’s skiing, 20 sponsored women’s equestrian and only 13 had men’s squash.

So committed to their academics, most athletes will remain at Brown, but they are “emotionally torn,” says McCarthy. Do I really want a degree from an institution that did something so callous to me? “You have a very full life as an Ivy League athlete. You have a relationship to the classroom,” she says. “It’s a tough challenge to walk away. But we feel like the university is trying to erase us, in not what they did but how they did it. One of the players said to me, ‘I don’t want to have to look at (president) Paxson when she hands me her diploma.’ They don’t want to look at her again.”

McCarthy herself explored a transfer to Harvard, but because of the timing, it was unsuccessful. She’s uncertain if she’ll ever ski competitively again. Many of her teammates, meanwhile, plan to remain at the school and participate on the club level. All of those sports eliminated at Brown will drop to club sports. There is a striking difference between club and varsity sports, mostly in resources, but the biggest downside is that club teams are not sponsored by the NCAA, so they are unable to compete for championships.

Coaches whose teams were eliminated had their contracts honored through this year. If they signed a separation agreement—a non-disclosure—they also received severance pay. Ski coach Alex Norden did not sign the separation agreement. In an interview with SI, she calls the athletes’ coalition admirable. She was notified of her team’s elimination on a Zoom call an hour before school officials told her players. Up until that day, Norden was recruiting new skiers and preparing for Brown’s post-pandemic reopening. “I had promised these players a varsity experience,” says Norden, who has landed a new job as skiing coach at Gould Academy, a private co-ed preparatory school in Bethel, Maine. “To know that was going to be taken away from them in an hour was very surreal and downright awful.”

In a response to SI over the weekend, Brown acknowledged receiving the coalition’s letter and plans to respond to it “as appropriate,” says Brian Clark, a school spokesman. “We understood that there would be disappointment among members of the teams transitioning to club status, which is why support for student-athletes has been our top priority since the initiative's launch,” he wrote in an email.

Kessler plans to give the university “a few days” to react. He’s hoping for a meeting with Brown officials to discuss reinstating the eight teams. If Brown’s reply isn’t satisfactory, he’ll take the next step. Kessler cites two specific Rhode Island laws that the university violated, one regarding officials deliberately misleading athletes and the other based on contractual liability. “We have very serious legal claims that could be asserted in court,” he says.

As for McCarthy, she finds herself zigging again down the mountain of life. She recently underwent serious knee surgery in which doctors removed structures, cleaning out years-worth of soft tissue damage that dates back to her high school days. After her father passed during her sophomore year, doubt crept in about her ski career. Some told her that she wasn’t good enough or smart enough to compete at Brown. After the school denied her admission, she took a gap year, between high school and college, to overcome that broken leg and improve her test scores. She was, finally, admitted.

And now, a year later, here she is, battling to have her sport restored. “We’ve said, ‘Hey, let’s fight. Let’s give it everything we have,’” McCarthy says.