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In the last few years, the National Collegiate Athletic Association has been entangled in two class actions charging discrimination in its use of SAT scores. But, thanks to Drinker Biddle & Reath, the organization has kept out of the penalty box. So how did a midsize Philadelphia-based firm, not known as a sports law powerhouse, wind up representing one of the most visible athletic organizations in the country — one based in Indianapolis, no less? The story of Drinker’s NCAA connection started 37 years ago, in 1964, when Drinker litigator David Bruton went to Kansas City, Mo., to defend General Electric Company in an antitrust case. At the time, GE’s local counsel, the firm of Swanson Midgley, also happened to be general counsel for the NCAA, then headquartered just outside Kansas City. Several years after that visit, John Kitchin of Swanson Midgley in Kansas City, Mo., called Bruton to defend the NCAA in Philadelphia against a student athlete’s eligibility claim. In the years to follow, Bruton took on a handful of similar cases. Drinker’s involvement in those cases led to its current role in one of the NCAA’s most important legal battles. In January 1997, two African-American student athletes, Tai Kwan Cureton and Leatrice Shaw, filed a class action against the NCAA in Philadelphia federal court, after they were declared ineligible to compete in their first year. As they had done before, Kitchin and Bruton made contact. This time, Drinker would defend the NCAA in the first case ever to challenge Proposition 16, the NCAA’s rule that requires student athletes to score at least 820 on the SAT and to have at least a C-plus average in 13 core high school courses, in order to play during their freshman year. The athletes’ complaint alleged that the NCAA’s use of the SAT scores in determining freshman eligibility violated Title VI of the federal Civil Rights Act, which prohibits recipients of federal funds from instituting policies that have a disparate impact on minorities. The plaintiffs argued that the tests unfairly discriminated against African-Americans. In March 1999 the federal judge sided with the plaintiffs in a summary judgment, striking down Proposition 16′s minimum test component. But Drinker went on to win a stay and, in December 1999, a 2-to-1 appellate ruling that the NCAA was not a direct recipient of federal funds and therefore could not be sued under Title VI for unintentional discrimination. The court did not rule on the merits of the case. Elsa Cole, who was named the NCAA’s first general counsel in April 1997, was naturally pleased with the result and retained Drinker for a second, similar case filed in federal court in June 2000. That case was dismissed last July, but the plaintiffs’ lawyers have filed an appeal with the 3rd U.S. Circuit Court of Appeals. And that will mean more work for Drinker. If the past is any guide, Bruton won’t have problems finding young, sports-minded associates offering their services. “We’ve had no shortage of volunteers to work on the [NCAA cases],” he says. But their chances of getting into the game aren’t great. Bruton says that, at most, only six lawyers have been assigned to NCAA matters at one time.

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