Biediger v. Quinnipiac University

RULING AND ORDER GRANTING PRELIMINARY INJUNCTION

Plaintiffs Stephanie Biediger, Kayla Lawler, Erin Overdevest, Kristen Corinaldesi, and L.R., 1 each a current or incoming member of the Quinnipiac University varsity women’s volleyball team, and Robin Sparks, 2 their coach, seek a preliminary injunction to prevent the school from eliminating women’s volleyball as a varsity sport. Defendant Quinnipiac University (“Quinnipiac” or the “University”) announced in March 2009 that, due to budgetary constraints, it would be cutting two men’s teams — men’s golf and men’s outdoor track — and the women’s volleyball team. It also announced a plan to add a varsity women’s competitive cheer team in order to maintain compliance with its obli *279 gations under Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681, et seq., and the regulations adopted pursuant thereto, 34 C.F.R. § 106 (collectively, “Title IX”). The plaintiffs allege that Quinnipiac’s plan is not sufficient to put it into compliance with the requirements of Title IX and that a preliminary injunction to prevent elimination of the volleyball team is necessary to preserve the status quo pending a ruling on the merits of this case.

A hearing on the plaintiffs’ motion for a preliminary injunction was held May 11-14, 2009. The following are my findings of fact and conclusions of law concerning issues raised by the motion for preliminary injunction. Because the plaintiffs have successfully demonstrated irreparable harm and have demonstrated a likelihood of success on the issue whether Quinnipiac is actually providing genuine athletic participation opportunities for women in substantial proportion to the undergraduate enrollment of women at Quinnipiac, the motion for a preliminary injunction is granted.

I. Factual Background

A. The Parties

1. The Plaintiffs

a.Stephanie Biediger

Biediger was a freshman member of the volleyball team in 2008-2009 and was recruited to play for Quinnipiac from her hometown in Texas. Biediger attends Quinnipiac on a partial academic scholarship and is pursuing a major in psychobiology; she plans to become a neurosurgeon. During the fall season she suffered an injury to her anterior cruciate ligament (“ACL”), but played through the end of the season, receiving the team’s Most Valuable Player award. Biediger had surgery on her ACL on January 7, 2009, and is scheduled to undergo another surgery over the summer; she therefore had anticipated “red-shirting” her sophomore year. 3 Biediger had planned to pick up an additional major so that she could stay at Quinnipiac for a fifth year and complete her fourth year of athletic eligibility.

b. Kayla Lawler

Lawler was a freshman member of the Quinnipiac volleyball team in 2008-2009 and was recruited by Sparks from her hometown in Indiana, where she participated in high school and club volleyball. Lawler attends Quinnipiac on a full athletic scholarship and is majoring in psychology. Her professional ambition is to obtain a Ph.D. in psychology, coach Division I volleyball, and/or play professional volleyball overseas.

c. L.R.

L.R. is a high school senior from Ohio who was recruited by Sparks to play on the Quinnipiac volleyball team beginning in the fall of 2009. She had expected to receive a partial athletic scholarship and partial academic scholarship, equal to the total cost of attending Quinnipiac. After visiting Quinnipiac in the fall of 2008, L.R. decided to apply only to Quinnipiac and by November 2008 had committed herself to attend, thereby taking herself out of the pool of potential volleyball recruits for the remainder of the fall recruiting season.

d. Erin Overdevest

Overdevest was a senior on the volleyball team during the 2008-2009 season, but she redshirted the season due to shoulder surgery in June 2008. Although Overde *280 vest graduated this past May, because she is enrolled in a five-and-half-year bachelors/masters occupational therapy program at Quinnipiac, she had expected to play her final year of eligibility during the 2009-2010 season. She attends Quinnipiac on a partial academic scholarship and a partial athletic scholarship.

e. Kristen Corinaldesi

Corinaldesi did not testify at the hearing, but she alleged in the Verified Complaint that she was a junior at Quinnipiac and a member of the varsity volleyball team during the 2008-2009 season. She alleged that she had planned to play volleyball during her senior year.

f. Robin Lamott Sparks

Sparks is the head coach of the women’s volleyball team at Quinnipiac. She was recruited to coach the team in the spring of 2007 by Quinnipiac’s Athletic Director Jack McDonald. She is also an adjunct professor in communications at the University. Her current employment contract expires June 30, 2009, but Sparks expected her contract to be renewed until the announcement that the volleyball team would be eliminated.

2. Defendant Quinnipiac University

a. Athletic Department Representatives

Jack McDonald is Quinnipiac’s Athletic Director, a position he has held since 1995. Before coming to Quinnipiac, McDonald was the athletic director at the University of Denver from 1990 to 1995. As Quinnipiac’s Athletic Director, McDonald is responsible for managing the athletic department’s budget, personnel (including coaches), Quinnipiac’s recreational and intramural sports programs, and is “partially” involved with the University’s physical education program. In addition, he is responsible for overseeing Quinnipiac’s compliance with National Collegiate Athletic Association (“NCAA”) rules and regulations and the requirements of Title IX.

Tracy Flynn is Quinnipiac’s Senior Women’s Administrator and Assistant Athletic Director for Compliance. Flynn’s job is to ensure that Quinnipiac adheres to NCAA rules and regulations. In addition, she oversees the University’s athletic scholarship budget and the add/delete list, known officially as the Change of Status List. Both McDonald and Flynn share responsibility for compiling Quinnipiac’s annual Equity in Athletics Disclosure Act (“EADA”) report.

b. Overview of Quinnipiac University and its Athletic Department

Quinnipiac University is a private, coeducational institution located in Hamden, Connecticut. For the 2008-2009 academic year, it had an undergraduate enrollment of 5,455 students. Broken down by gender, there were 2,089 male students and 3,366 female students, for a male-to-female percentage distribution of 38.3% to 61.7%. McDonald testified that, based on the deposits the University had received as of May 1, 2009, the undergraduate enrollment for the 2009-2010 academic year is expected to be 37% men and 63% women, with the caveat that those numbers could vary slightly up or down by the time the school year actually begins on August 31, 2009.

In the 2008-2009 academic year, Quinnipiac fielded 21 NCAA Division I varsity athletic teams: men’s and women’s basketball, men’s and women’s ice hockey, men’s and women’s lacrosse, men’s and women’s soccer, men’s baseball, women’s softball, women’s field hockey, women’s volleyball, men’s golf, men’s and women’s tennis, men’s and women’s cross-country, men’s and women’s indoor track, and men’s and women’s outdoor track. Division I is the *281 highest level of intercollegiate athletic competition within the NCAA. With the exception of the ice hockey teams and the men’s lacrosse team, Quinnipiac’s varsity teams compete in the Northeast Conference (“NEC”). 4 According to Quinnipiac’s EADA report for 2007-2008, its athletic participation opportunities were apportioned 45% for men and 54% for women. According to its preliminary EADA data for 2008-2009, its athletic participation opportunities were apportioned 47.43% for men and 52.57% for women. Quinnipiac concedes that those percentages were not in proportion to the undergraduate enrollment for those years.

On March 4, 2009, Quinnipiac informed the women’s volleyball, men’s golf, and men’s outdoor track teams that they would be eliminated at the end of the current academic year due to budgetary constraints. Sparks and the men’s part-time golf coach were told their employment contracts would expire on June 30, 2009 and would not be renewed. The track teams at Quinnipiac have a single head coach, but a part-time track coach is also expected to lose his or her position as a result of the cuts. In 2009-2010, Quinnipiac expects to field 19 varsity teams, including a new women’s competitive cheer team. With the loss of men’s golf and men’s outdoor track, and the addition of women’s competitive cheer, Quinnipiac anticipates that its athletic participation opportunities will be split 37.08% for men and 62.92% for women in 2009-2010, which it maintains is in substantial proportion to its anticipated undergraduate enrollment for the coming academic year.

B. Quinnipiac Volleyball

Volleyball is a “fall” sport, meaning that the fall is its “championship season,” when teams play their official matches and when the sport’s conference and NCAA championships are held. Like most Division I sports, however, volleyball is actually played year-round. Specifically, the spring season provides players the opportunity to hone their technique and skills through scrimmages with other teams. Team practices are focused on sharpening technical skills, such as foot-work and hand placement, and on strength-training. The team’s budget for the 2008-2009, not including coaches’ salaries and athletic scholarships, was $70,384.

Prior to 2007, the Quinnipiac volleyball team was not a priority sport within the athletic department; it had been slated for elimination in 2006 and, by 2007, had had four different coaches in four years. Beginning in 2007, McDonald undertook an effort to rebuild the volleyball team to a competitive level within the conference. In the spring of 2007, McDonald recruited Sparks to come to Quinnipiac from Troy, New York, where she had been coaching a club volleyball team. Although Sparks had no collegiate coaching experience, she came highly recommended by Quinnipiac’s interim volleyball coach, and had been successfully coaching club level volleyball for several years.

Knowing that Quinnipiac had almost cut the team the previous year, one of Sparks’ primary concerns with the position was Quinnipiac’s commitment to the volleyball team. According to Sparks, McDonald assured her that the discussions about cutting the team “had been put to rest” and that the athletic department was seriously committed to building the competitiveness of the team. McDonald testified that he had been genuinely excited about the volleyball program at the time Sparks was hired and that he had assured her of his long-term hopes for the program. Weigh *282 ing the pay cut she would take and the difficulties associated with uprooting her husband and children against McDonald’s assurances of support for the team, Sparks decided that the chance to build a competitive Division I volleyball team was not an opportunity she could pass up.

Sparks understood that her goal, as set forth by McDonald, was to reach the top four of the NEC within four years. To that end, armed with a budget for recruiting and five athletic scholarships to offer, Sparks undertook a serious recruiting effort in the 2007-2008 academic year for the incoming class of 2008-2009, contacting players and traveling to club volleyball tournaments. As a result of those efforts, Sparks was able to attract several highly accomplished and skilled recruits to Quinnipiac, including plaintiffs Biediger and Lawler, for 2008-2009, and plaintiff L.R., for the incoming class of 2009-2010. Overdevest, a graduating senior who had been on the team prior to Sparks’ arrival, testified that the team’s enthusiasm was high when Sparks was hired and began recruiting nationally.

The recruiting process for Division I volleyball can begin as early as a player’s sophomore year in high school. Although sophomores are not permitted to speak with college coaches directly, high school players interested in playing at the Division I level in college will seek out information about the schools and their summer volleyball camps during that period. By junior year, prospective recruits are writing to coaches, speaking with coaches on the phone, and compiling video clips of themselves playing volleyball for a “game tape” they can present to interested coaches. By senior year, coaches will begin extending formal offers of admission, along with any offers of scholarship money, and having prospective recruits come to visit campus. Recruits may begin making formal commitments to schools in November of their senior year; a college’s recruiting class is typically filled by December or January.

Several plaintiffs testified about the role that volleyball plays in their lives. The plaintiffs, and Leslie Riker on behalf of L.R., all testified that they began playing volleyball in elementary school. The players recruited by Sparks — Lawler, Biediger, and L.R. (collectively, the “recruited plaintiffs”) — testified that playing Division I volleyball had been a paramount goal for each of them since they began playing volleyball on a competitive basis in fourth or fifth grade. In addition to playing volleyball for their high school teams, those recruited plaintiffs played for club teams during the off-season, traveling to interstate competitions on the weekends and thereby maintaining a year-round commitment to volleyball.

The recruited plaintiffs testified that they chose Quinnipiac not only for its academic offerings in the majors of their choice, but because they felt that they had formed a real connection and bond with the team and Sparks during their campus visits. Lawler testified that the coach-athlete relationship was particularly important at the college level because playing Division I volleyball is a time-intensive activity, akin to a “full-time job.” Given the number of hours spent practicing, playing, and traveling with the team, all plaintiffs testified that the Quinnipiac volleyball team’s cohesiveness and their good relationship with Sparks was significant to their decision to attend Quinnipiac and, subsequently, to seek a preliminary injunction to save their team. Lawler also testified that she had spoken at length with McDonald during her campus visit, querying him about the school’s commitment to the team, and receiving assurances that Quinnipiac was committed to the team, with McDonald pointing to Quinnipiac’s de *283 cisión to hire Sparks as evidence of its intent.

C. Introduction, of Roster Management at Quinnipiac

McDonald and Flynn testified about the athletic department’s, decision to implement “roster management” at Quinnipiac in order to achieve greater proportionality between the athletic participation opportunities available to women and the percentage of women undergraduates. Under Quinnipiac’s roster management policy, the athletic department sets the size of men’s and women’s teams’ rosters to create a more proportional balance of athletic opportunities between the genders. According to McDonald, the benefit of roster management is that it permitted the University to increase its participation opportunities for the underrepresented gender — here, women — without having to add more sports. The decision to implement roster management arose out of the athletic department’s 2006 gender equity self-study, which revealed that the school was not achieving gender equity in its athletic participation opportunities.

McDonald testified that there was little input from coaches on the issue of roster size, except in the case of “like” sports, such as men’s and women’s soccer, whose coaches were asked to agree on similar roster sizes. In setting roster sizes, McDonald did not consider NEC average roster sizes, testifying he believed the NCAA average roster sizes were a more reliable indicator for how many players an average team could be expected to carry on its roster.

Under the roster management policy system in place at Quinnipiac, McDonald and his senior administrative athletic department staff members set the final roster numbers for each varsity team. The coaches are then expected to carry that number of athletes on their team on the first day of competition. The first day of competition is significant because that is the day when roster sizes are computed for purposes of the EADA report. The EADA report is an annual- report that all coeducation universities receiving federal funding and participating in intercollegiate athletics must submit to the U.S. Department of Education pursuant to 20 U.S.C. § 1092. The EADA report contains information about the University’s undergraduate enrollment, broken down by gender; the number and type of men’s and women’s varsity teams; the number of participants on each team; the number, distribution, and average salaries of head and assistant coaches; the amount of athletic scholarship money available to each gender; the total revenues, operating expenses, and total expenses for each team; and the amount of money distributed for recruiting purposes. In October, each school must submit its EADA report for the previous academic year; for example, Quinnipiac has not yet submitted its EADA report for the 2008-2009 academic year, but plans to submit that report by October 2009. Significantly, the EADA numbers are not updated over the course of the season to reflect additions to or cuts from the varsity rosters compiled as of the first day of competition.

Quinnipiac introduced the concept of roster management to its coaches in 2006-2007, but it was first implemented “with teeth” in the 2007-2008 season. The roster management policy and roster numbers were discussed at the annual post-Labor Day athletic department staff meeting, and the policy was contained in the athletic department’s staff manual. McDonald described the reactions among the coaches as “fair to poor.” According to Flynn, the policy caused great distress among the coaches — some of the men’s teams’ coaches felt their roster numbers were too low and that some of the women’s *284 teams’ coaches felt they were being required to carry top many people. Flynn specifically recalled receiving complaints that their set roster numbers were too low from the coaches of men’s lacrosse, men’s baseball, men’s cross country, and possibly men’s soccer, and conversely, complaints that their set roster numbers were too high from the coaches of women’s lacrosse, women’s field hockey, women’s softball, women’s ice hockey, and women’s cross country. She recalled that coaches of both men’s and women’s teams reported to her that the roster numbers were not what they were accustomed to, that the roster targets were too low and too high, respectively, for their teams. Although the women’s field hockey and women’s lacrosse coaches testified at the hearing that they were not bothered by the increases in their rosters under Quinnipiac’s roster management policy, Flynn’s testimony contradicts those assertions.

The following chart sets forth the number of players on each Quinnipiac varsity team, as of the first day of competition in 2007-2008, as reported to the EADA:

Men’s Team, Roster Women’s Team Roster 2007-2008_Size_2007-2008_Size

Baseball_27_

Basketball 14 Basketball 15

Cross Country/ Cross Country/ Track_13 Track_22

Golf_8_

Ice Hockey 29 Ice Hockey 29

Lacrosse_35 Lacrosse_30

Soccer 25 Soccer 27

Tennis 9 Tennis 11

_Field Hockey _23

_Softball _26_

_Volleyball_12_

_Total: 160/355_Total: 195/355

% 45.07 . % 54.93

As Flynn, Sparks, and Germaine Fair-child, head coach of Quinnipiac’s softball team, testified, and as demonstrated by the add/delete lists for 2007-2008, however, those numbers did not remain static over the course of the season. For example, the men’s baseball coach reported 27 athletes as of the first day of competition, September 27, 2007. The corresponding add/delete list for 2007-2008 shows that on September 17, 2007, the baseball coach “deleted” six players to reach that 27 roster number. That same add/delete list further reveals, however, that on October 1, 2007, the baseball coach “added” those same six players back to the team, bringing his roster back up to 33 athletes. Because the EADA report does not account for add/deletes over the course of a season, that increase was never officially reported on any official Quinnipiac roster count.

The same phenomenon occurred with the men’s lacrosse roster. Before reporting the squad list for the first day of competition, the men’s lacrosse coach “deleted” six players. 5 Approximately one week later, the men’s lacrosse coach added those same six players back to the roster, bringing his roster back up to 41 athletes. The add/delete lists reveal that the men’s ice hockey coach deleted and added one player in the same manner before and after the first day of competition for the 2007-2008 academic year.

Flynn testified that those changes to the add/delete lists caught her eye and that she was not pleased with what the lacrosse and baseball coaches had done. Flynn said that she reported the roster manipulations to McDonald and expressed her *285 concern that those roster add/deletes were not within the “spirit” of Title IX. According to McDonald, such practices were “not acceptable” to him and that he relayed his feelings to the coaches during their weekly meetings and on other occasions. McDonald testified that he never told the coaches that this was an acceptable practice and that such practices did not stem from any official athletic department policy or guidance on how to “make the numbers.” Flynn’s testified she felt “disappointed” and “helpless” about the roster changes because she felt that there was no guidance from OCR on how to manage roster numbers.

The roster management numbers had the opposite effect on the women’s side; in 2007-2008, several women’s teams added players before the first day of competition, only to have those same players quit or get cut shortly thereafter. The following women’s teams had duplicate adds and deletes, according to Quinnipiac’s 2007-2008 add/delete list: the women’s softball team added four players who were deleted shortly thereafter; the women’s ice hockey team added four players prior to the first day of competition who subsequently quit; and the women’s lacrosse team added two players before the first day of competition, who were also subsequently deleted.

Fairchild, the head coach of the softball team, offered credible testimony that indicates that even those numbers on the add/delete list do not provide the full story for women’s team rosters under Quinnipiac’s roster management policy. Fairchild, a former collegiate and professional softball player and coach, came to Quinnipiac in 2000 as an assistant coach and was promoted to her current position as head coach in 2001. At the hearing, when asked about her experience with the roster management policy, Fairchild testified that she felt pressured to add more players than were necessary under normal circumstances. Prior to the institution of roster management, Fairchild testified that she typically carried 16-18 players on her team. Before the 2007-2008 season’s start, she was notified that she would be required to take at least 25 players on her team. Fairchild raised her concerns about her roster management targets to both McDonald and Flynn, explaining that her budget and coaching resources were only enough to support a team of 16-18 athletes and she could not provide a “legitimate Division I experience” to so many people. Nevertheless, Fairchild’s budget remained static and Fairchild testified that she did not receive any guidance from' the athletic department on how she was expected to accommodate so many extra players. Indeed, the Quinnipiac Athletics & Recreation Staff Handbook is devoid of any explanation of roster management, merely noting that it is one of the coaches’ responsibilities and outlining the target roster numbers for each team in chart form. Flynn also testified that the issue of roster management manipulation was never raised at weekly staff meetings. Fairchild testified that no one had consulted her about whether 25 was a realistic number of athletes for the softball team.

Fairchild explained precisely why 25 players represented a budget challenge and a strain on coaching resources. For example, during the off-season, under NCAA regulations, softball players are permitted to practice for 8 hours a week, with two hours devoted to skills training and six hours to strength and conditioning. At Quinnipiac, those two skills-training hours are spent one-on-one with Fairchild. Fairchild testified that 50 hours a week of individual time with her student-athletes, combined with office work and all the other tasks required to run a Division I program, would have strained her coaching resources beyond her capabilities. Fair-child did not receive any increase in budget, extra equipment, additional assistant *286 coaches, or a raise in salary to account for and/or accommodate the extra players.

To balance the athletic department’s expectation that she “make” her roster target of 25 players with the realities of providing a legitimate Division I experience for her team, Fairchild resolved to take all the players that tried out in the fall of 2007, but not to keep that many players on her , travel team. As of the first day of competition on September 21, 2007, she reported 26 athletes on her roster, the same number reported on Quinnipiac’s 2007-2008 EADA report. On the Tuesday following the softball team’s first day of competition, Fairchild called several of the walk-ons and informed them that, although they were welcome to stay on the team’s “practice squad,” she did not have - any money in her budget to provide them with uniforms or equipment, nor could they travel with the team to away games. Fair-child testified that over the next several months nine players quit the team; Fair-child began the championship season that spring with 17 student-athletes on her roster.

The same scenario repeated itself in 2008-2009. Fairchild testified that she had 13 veterans and 10 newcomers in the fall of 2003, for a total roster number of 23 players. Fairchild testified that, once again, she accepted every walk-on player until after the first day of competition, when she informed several players that they would only have a spot on the team’s practice squad. Between the first day of competition in the fall and the beginning of the championship season that spring, Fair-child testified that 6 players quit the team, leaving 17 players who actually competed on the softball team during the spring 2009 season. Because the roster number was 23 on the first day of competition, however, Quinnipiac’s estimated EADA report figures state there were 23 participation opportunities on the softball team. Fair-child testified that she did not renew her concerns with McDonald prior to the 2008-2009 season because she believed that the athletic department administrators were set on maintaining the “status quo” of roster management reporting and that nothing had changed in their attitude towards the policy from the previous year. Flynn corroborated Fairchild’s testimony that the athletic department did not take any steps following the 2007-2008 season to educate their coaches on the roster management policy.

The following is a chart of roster sizes in 2008-2009 as stated in the Quinnipiac athletic department staff manual and Quinnipiac’s EADA reported numbers:

QU’s 2008- EADA QU’s 2008- EADA 2009 Roster 2008-2009 2009 Roster 2008-2009 Management Report Management Repori Men’s Team_Target_(estimated) Women’s Team_Target_(estimated)

Basketball 15 15 Basketball 15 15

Baseball 27 27

Soccer 25 25 Soccer 25 25

Golf 8 8

Tennis 9 11 Tennis 9 11

Lacrosse 40 39 Lacrosse 30 29

Cross Country 15 13 Cross Country 20 19

Ice Hockey , 28 32 Ice Hockey 28 25

Indoor Track 20 22 Indoor Track 25 28

Outdoor Track 20 , 20 Outdoor Track 25 25

*287 Field Hockey 25 24

Softball 25 23

_Volleyball _15_11

Total: 207/424 212/447 Total: 217/424 235/447

% 48.82 47.43 % 51.18 52.57

The athletic department’s overall experience with roster management in 2008-2009, according to Flynn and McDonald, was more positive because they received fewer complaints from the coaches. According to Flynn, the coaches were less shocked with the roster management targets than they had been the previous year, and they had grown more accustomed to the concept and had more time to figure out how to make their roster targets. Flynn testified that in overseeing the add/delete list for the teams, she did not see the same type of roster manipulation as in 2007-2008. McDonald characterized the coaches’ commitment to roster management in 2008-2009 as “better.”

Although Flynn testified that she saw less roster manipulation through the add/delete lists than the previous year, it had not disappeared. For example, McDonald testified that there were actually six more players on the men’s lacrosse team in 2008-2009 than were reported on the first day of competition due to a disciplinary incident, which resulted in those players being suspended prior to the first day of competition in the fall. McDonald conceded that those six players indeed rejoined the team for the championship season in the spring. Furthermore, as Fair-child testified, although the women’s softball team reported having 23 players as of the first day of competition in the fall, only 17 athletes were on the roster by the time the championship season began in spring 2009.

Although the squad lists, add/delete lists, and the 2008-2009 “Season of Competition Used” list are useful guides to each team’s roster numbers, they do not provide the full picture. Indeed, McDonald conceded that, although the add/delete lists show the six men’s lacrosse players were “deleted” in fall 2008, the list does not indicate that they were added back to the team at any point, even though McDonald testified they did play for the team and despite the fact that the Season of Competition Used list for 2008-2009 includes those six players’ names. Furthermore, as demonstrated by Fairchild, in 2007-2008 and 2008-2009, more players actually quit her team than were reflected on the add/delete lists. In addition, the 2008-2009 add/delete list indicates that one player, Michael Bartlett, was deleted from the men’s baseball team on September 19, 2008, before the first day of competition. The list does not indicate that Bartlett was added back to the team at any point, but a comparison with the Season of Competition Used list indicates he was added back to the baseball team on October 13, 2008, after the first day of competition. Thus, if anything, the add/delete lists under-report the number of duplicate adds and deletes being made to Quinnipiae varsity teams.

Another practice that appears to have gained momentum in 2008-2009, at least among the men’s teams, was adding new freshmen or sophomore athletes after the first day of competition. For instance, the men’s basketball team added three freshmen on November 12, 2008, after the October 28, 2008 EADA report date. Two athletes were added to the men’s cross country team on September 2, 2008, after the team’s reported first competition — the Stony Brook Invitational — on August 29, 2008. 6 Finally, men’s golf added one ath *288 lete approximately one week after the first date of competition. Only a complete audit of the teams’ rosters and game day reports can conclusively determine the true number of athletes competing on each team. Still, it appears that there were at least 13 participating male athletes who went unreported in 2008-2009.

D. Quinnipiac’s Decision to Cut Teams

In early February 2008, under budgetary pressures, Quinnipiac University Vice President Val Belmonte directed McDonald to make a 5-10% cut in the athletic department’s budget for 2009-2010. McDonald testified that his first budget proposal eliminated 5% from the athletic department budget without cutting any teams. Belmonte rejected McDonald’s proposal and told him, specifically, to cut the volleyball team. Because there was a space crunch on campus — the University undergraduate population has nearly doubled in the last 20 years — it seems that the University administration was interested in using the facility where the volleyball team practiced and held competitions, the Burt Kahn Court, as another available space for meetings, activities, offices, and additional intramural sports courts. Before the budget crunch, there had been discussions about building the volleyball team its own gymnasium or court at the athletic and rec center.

As amended, the current proposed 2009-2010 athletic department budget would cut men’s golf, men’s outdoor track, and women’s volleyball, in addition to making additional cuts to the budgets of other varsity teams, for an overall savings of 7%, or $132,000, from last year’s budget.

E. Elevation of Competitive Cheer to Varsity Status

Recognizing that cutting both men’s and women’s varsity sports could push Quinnipiac further out of Title IX compliance, Quinnipiac made the strategic decision to elevate women’s competitive cheerleading to varsity status. Already a very popular club team activity at Quinnipiac, McDonald and the- Quinnipiac administration determined that there would be enough interest to field a varsity cheer team that would be focused solely on competing at local, regional, and national cheerleading competitions. McDonald concedes that Quinnipiac has not sought advance clearance of that decision from the Department of Education’s Office of Civil Rights (“OCR”), which oversees Title IX compliance. McDonald testified he believed it was unnecessary after studying materials and OCR correspondence obtained from the University of Maryland, which also fields a varsity competitive cheer team, and the fact that Quinnipiac has never sought advance clearance from OCR when it added other women’s sports, including field hockey, ice hockey, and lacrosse. McDonald testified that OCR has never done an audit of Quinnipiac’s athletic program to determine its compliance with Title IX.

In 2008-2009, the 31-member Quinnipiac cheer squad had a dual-focus: cheering at the men’s and women’s basketball games, an activity referred to as “sideline cheer,” and also entering cheer competitions in its spare time. The new competi *289 tive cheer squad would have an increased budget of $50,000, up from $12,000, and the current head cheer coach, Mary Ann Powers, would be promoted to a full-time position and given a raise of approximately $20,000 to $25,000 for a total salary of $40,000 to $45,000. In addition, McDonald anticipates the new varsity cheer squad will be supported by two athletic scholarships.

In addition to the new competitive cheer team, McDonald anticipates fielding a separate non-varsity sideline cheer squad to continue cheering at the men’s and women’s basketball games, which will be coached by the current part-time cheer-leading assistant coach. Those two squads would share the present cheerleading practice space on Court Four of the school’s “rec center.”

Powers, Quinnipiac’s cheer coach since 1998, testified about the current cheer squad, its record at competitive cheer events, and her plans for the future varsity competitive cheer team at Quinnipiac. A typical cheer team practice regimen includes gymnastics skills training, practicing partner stunts and tumbling exercises, as well as conditioning and strength-training. The current team’s primary focus is to cheer at the men’s and women’s basketball games, although it has managed to compete in, on average, between three and six cheer competitions, including nationals, each year. Routines for these competitions typically last two-and-a-half minutes and include a variety of elements, including standing tumbling, jumps, pyramids, basket tosses, running tumbling, partner stunts, and dance.

Being elevated to varsity status means that the Quinnipiac competitive cheer squad members will have all the benefits and obligations of other varsity athletes on campus, including having access to the varsity athletic trainers and submitting to the academic requirements for varsity athletes, including “power hour” requirements. 7 Powers testified that she expects the team to enter more competitions. The team will devote three practices per week to practicing their cheer routines and elements and two practices per week to strength-training and conditioning. Powers anticipates the team’s competitive schedule will run from September to April, including one or two competitions in the fall and six to eight in the spring, culminating in the National Cheer Association (“NCA”) national championship, where the Quinnipiac cheer squad finished in sixth place in their division this past April.

The athletic department’s roster management target for the new team is 40. Powers testified that she has 62 women interested in trying out this fall, including 18 returning cheer squad members. Powers has not undertaken any formal recruiting efforts for the upcoming season. Although Powers has no doubt she will be able to fill those spots, the cheer squad this year only had 31 members and that 40-person roster target does not include the separate sideline cheer team. Last year Powers had 58 students try-out for the 2008-2009 season and she took 34. Local and regional competitions typically allow 36 cheerleaders on the floor, although the NCA championships only permit squads of 20 cheerleaders to compete.

Powers acknowledged that there is no national, non-profit competitive cheer federation to set standardized competition rules or to organize and oversee competitions. There are no other competitive cheer teams within the NEC. There are *290 two national cheer championships put on by the Universal Cheer Association and the NCA, entities which are owned and operated by the for-profit corporation, Varsity, Inc. According to Powers, Varsity, Inc. promotes private cheer training at cheer camps, sponsors cheer competitions, and sells apparel.

Eligibility to compete in those championships is not governed by conference or league records, indeed the type of competition where one’s record is the basis for advancing to higher levels of competition does not exist in the competitive cheer world. Each team chooses which competitions to enter. Entry to the national championships is determined by submitting an application that includes video footage of the team performing. The Quinnipiac varsity cheer squad’s eligibility to compete at nationals is not affected by its elevation to varsity status; it will compete and be eligible for the same competitions in which the cheer squad competed as a non-varsity team, although it will compete in more cheer competitions. Quinnipiac has not yet sought to have competitive cheer recognized as an emerging sport by the NCAA.

F. Anticipated 2009-2010 Roster Management Targets

Shown below are the Quinnipiac athletic department roster management targets for the 2009-2010 season, compared to the NCAA average squad sizes:

Men’s Teams 2009-2010 Roster Management Target NCAA Average Squad Size Women’s Teams 2009-2010 Roster Management Target NCAA Average Squad Size

Basketball 15 15.5 Basketball 15 14.6

Baseball 25 35.3

Field Hockey 24 22.2

Soccer 23 27.4 Soccer 26 25.7

Softball 22 19.4

Tennis 10 10.1 Tennis 12 9.3

Lacrosse 36 44.5 Lacrosse 30 27.2

Cross Country 14 14.8 Cross Country 25 16.2

lee Hockey 28 28.4 Ice Hockey 26 25.1

Indoor Track 14 37.3 Indoor Track 30 36.6

Outdoor Track 30 35.8

Cheerleading 40 N/A

Total: 165 Total: 280

37.08 62.92

Looking forward to the 2009-2010 season, McDonald testified that he sees it as his obligation to make sure the coaches understand the need to “hit their number.” McDonald acknowledged, however, that no one is going to get a bonus for hitting their number, nor will anyone get fired if they fail to adhere to those targets. McDonald explained the roster management goals as something that the department will work together to achieve as a team. He anticipated adding more to the staff manual to describe the process and to explain why roster management is important. Me- *291 Donald noted that perhaps more closely monitoring the add/delete changes to rosters will be necessary.

II. Discussion

A. Standard of Review

“A party seeking a preliminary injunction must demonstrate: (1) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor, and (2) irreparable harm in the absence of the injunction.” Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 116 (2d Cir.2009) (internal quotation and citation omitted). “Such relief, however, is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir.2007) (internal quotation omitted).

Quinnipiac argues, in addition, that the plaintiffs should be held to the higher standard required to prove a mandatory injunction. The injunction sought here is more fairly characterized as a prohibitory injunction, and not a mandatory injunction, because, by its terms, it would restrain the University from carrying out its decision to eliminate the volleyball team in the upcoming academic year. The injunction, therefore, would preserve the status quo rather than requiring the University to undertake an affirmative act. See Phillip v. Fairfield Univ., 118 F.3d 131, 133-34 (2d Cir.1997) (characterizing the injunction sought as prohibitory, not mandatory, because it would restrain the NCAA from interfering with the university’s decision to offer the student an athletic scholarship and an opportunity to participate on the basketball team, thus preserving the status quo rather than commanding some positive action).

B. Irreparable Harm,

The student plaintiffs contend that they will be irreparably harmed by the University’s decision to disband the volleyball team because they have a limited amount of time to compete in college athletics and specifically chose to attend Quinnipiac to play volleyball. I agree. The decision to eliminate the team at the end of the year limits their chances of transferring to another school for the 2009-2010 academic year, requires them to sit out a season of competitive volleyball, and negatively affects their skills and marketability in the Division I volleyball recruiting market. The fact that the student plaintiffs have the ability to transfer to other Division I schools after next year and that Quinnipiac has agreed to honor their scholarships despite the volleyball team’s elimination does not protect the plaintiffs from irreparable harm.

Courts have consistently held that, given the fleeting nature of college athletics, plaintiffs will suffer irreparable harm by losing the opportunity to participate in their sport of choice on a continuous and uninterrupted basis. For example, in Ganden v. National Collegiate Athletic Association, 1996 WL 680000, at *6 (N.D.Ill.1996), the Court noted that, because elite collegiate athletes have only a limited span of competitiveness, losing a year of competition to transfer schools would irreparably inhibit their development as athletes. Because the plaintiff would have lost an entire year of competition, described as “a significant proportion of his swimming career,” the Ganden Court held that in the absence of an injunction, the plaintiff was likely to suffer “irreparable harm for which he ha[d] no adequate remedy