A Kansas University student declared ineligible to play football after taking time off to care for his newborn daughter has suffered an early setback in his gender bias case. But a flaw in the NCAA's eligibility rules could still give Eric Butler an opening to score a legal touchdown.

Butler, a defensive tackle, is challenging a provision which allows a college or university to “approve a one-year extension of the five-year period of eligibility for a female student-athlete for reasons of pregnancy.”

After the NCAA refused to grant Butler a pregnancy waiver for the year he spent supporting his girlfriend and their child, he filed suit in July alleging gender discrimination under Title IX of the Civil Rights Act.

“The NCAA bylaw, enacted over 20 years ago, is rooted in the notion that women should stay home with their children, but fathers should not,” the complaint said.

The plaintiff failed to get immediate relief as U.S. District Judge Kathryn H. Vratil denied a motion for an injunction that would have put him back on the field while the action is pending.

“[T]he pregnancy exception [to the eligibility rule] allows a waiver ‘for reasons of pregnancy’ which appear to be different from reasons of maternity or paternity,” she ruled.

The decision echoed the NCAA's claims that the pregnancy exception accommodates the physical condition of pregnancy, which affects only women, and not the demands of parenting. And by referring to “maternity or paternity,” Vratil suggested that the rule would not give a new mother a year of maternity leave any more than it would permit Butler to have an extra year of eligibility.

Butler, however, appears to have a decent case for arguing that the phrase “for reasons of pregnancy” is vague and ambiguous and that the rule amounts to de facto parental leave for women.

If, for example, a female student-athlete discovers she is pregnant three months after conception, that only leaves six more months of pregnancy. Assuming a six-week, post-natal recovery period, the new mother gets an additional 18 weeks off –- for, arguably, maternity leave --- before the full year of exemption under the NCAA rule expires.

The NCAA is not obligated to provide exceptions for every hardship that life brings, but it is required by Title IX to treat men and women equally under its rules. If a court finds the vagueness of those rules gives an undue advantage to women, Butler may yet prevail.

By Josh Saltzman (CNS)
10/30/06