Judge Rules Against Duke U. in Female Football Player's Lawsuit By WELCH SUGGS
Heather Sue Mercer, who once aspired to be a placekicker for Duke University, notched another courtroom win this week against the Blue Devils' football team.
This week, U.S. District Judge James A. Beaty upheld a $2-million jury verdict in Ms. Mercer's lawsuit against Duke, in which she said the university discriminated against her because of her gender when she was kicked off the football team in 1996 and 1997. Judge Beaty also told Duke to pay Ms. Mercer's lawyers $388,800 in fees, and excoriated the university for blatantly treating her differently on account of her sex.
Ms. Mercer came to Duke in August 1994 after an all-state career as a placekicker in New York. That fall, she asked the Blue Devils' coach at the time, Fred Goldsmith, if she could come out for the team as a walk-on player. He and the team's kicking coach agreed to give her a tryout, even though the team had never required tryouts for any male player, according to testimony in her trial last fall.
The tryout didn't go well, but Ms. Mercer went to the team's practices and games as a manager and then went through winter conditioning with the Blue Devils in 1994-95. That spring, she was the first kicker chosen for the Blue-White intrasquad game, and she kicked the winning field goal with time running out. Afterward, Mr. Goldsmith told reporters Ms. Mercer was on the team.
That summer, however, Mr. Goldsmith refused to let Ms. Mercer attend preseason camp, and in a telephone conversation he suggested that she consider entering beauty pageants instead. The coach told Ms. Mercer's mother that putting the placekicker on the team was the "worst decision he had ever made in his life," according to testimony during the trial, and in September he refused to give her pads and issued a statement saying she was not on the "active roster" for the football team -- a distinction he had never made for any other player.
In 1996, Mr. Goldsmith abandoned the "inactive player" category and simply kicked her off the team -- making Ms. Mercer the first player dismissed from the Duke squad for allegedly not being good enough to play. The coach then chased her away from winter conditioning in 1997, and she contacted a lawyer the next spring. They then requested a meeting with Duke officials, who refused.
"From the beginning, she's wanted to talk with these people and resolve this, and it's amazing that here we are, four years later, and they're still unwilling to do that," said Ms. Mercer's lawyer, Burton Craige. "That was very important to the jury and to her, that they wouldn't even meet with her."
Judge Beaty took Duke's president, Nannerl O. Keohane, and the former athletics director, Tom Butters, to task for failing to do anything about Ms. Mercer's complaint of unequal treatment. A university lawyer interviewed Mr. Goldsmith and two other coaches and concluded that Ms. Mercer had no grounds to complain; Ms. Mercer filed suit later in 1997, alleging that Duke had violated Title IX of the Education Amendments of 1972 by treating her differently from men. Title IX forbids gender discrimination at institutions that receive federal funds.
After another federal judge said Title IX did not require colleges to allow women to play football, the U.S. Court of Appeals for the Fourth Circuit ruled in 1999 that because Duke had allowed Ms. Mercer to go out for football, the team was obligated to treat her fairly, regardless of her gender. The judge then reinstated Ms. Mercer's suit, which went to trial in October 2000. That month, a jury awarded her $1 in compensatory damages and $2-million in punitive damages, which Duke's lawyers argued was excessive.
However, Judge Beaty pointed out that $2-million was only 1 percent of the federal funds Duke receives annually, which the university jeopardized by violating Title IX in its treatment of Ms. Mercer. He then ordered the university to pay Ms. Mercer's lawyers' fees.
Duke officials would not comment, saying they needed time to review the decision. They could appeal to the Fourth Circuit, but said they would not decide on that until next week.
Ms. Mercer released a statement saying she would use the damage award to start a scholarship fund for female athletes.