Teed-off lawyer takes swing at girl-golf bias

By David E. Frank

david.frank@exhibitAnews.com

Imagine working more than 100 hours on a project for work and not getting paid a dime.

That was the way things were shaping up for Springfield lawyer Thomas A. Kenefick III — until a judge recently ruled he was entitled to more than $18,000 in attorneys’ fees for the groundbreaking gender-bias lawsuit over which he labored.

The case before Superior Court Judge C. Brian MacDonald involved a high school girl who was seeking the right to compete on the links against the boys.

The fee fight evolved after Kenefick successfully represented Lindsey Thomka against the Massachusetts Interscholastic Athletic Association, which unceremoniously banned the 15-year-old girl in 2005 from playing in the boys’ high school golf championship.

Despite a fourth-place finish against the fellas in the Western Massachusetts Sectionals that seemingly cleared the way for her to compete in the state finals, Thomka, a student at Cathedral High School, was told hours before show time that she would have to sit out the match.

Though she played on a co-ed team and her school did not have a girls’ squad, the “problem,” the MIAA said, was the tourney was for boys only.

“I thought it was preposterous, because if a kid is good enough to finish in the top 10, which my client did, why shouldn’t that person — irrespective of gender — have the opportunity to play?” Kenefick asks. “That’s really what the case boiled down to.”

But for the Thomka family, there was also another issue at play.

“I told [Kenefick] early on in our first talk that there’s no money to be made out of us and that all I could do was say ‘please’ and ‘thank you,’” recalls Lindsey’s father, Robert Thomka. “But ‘please’ and ‘thank you’ don’t pay the bills, and it wouldn’t have surprised me one bit if he’d said he couldn’t do it.”

Undeterred, Kenefick agreed to go to bat for the Thomkas.

“I told them I didn’t need the case to pay the rent because I had more than enough work to do,” he says. “I took it because it really struck me that what the MIAA and her school’s athletic department were doing was awful. This was a girl who did well in school and on the golf course, and there she was sitting in my office, just bewildered.”

With only one business day remaining before the start of the finals, Kenefick successfully obtained a temporary order that allowed Lindsay to lace up her Nikes and hit the course.

While things didn’t go well during the tournament (Lindsey, drawing a media entourage that could rival Tiger’s at Augusta, finished last), the lawsuit made its way through the legal system.

After fighting a more than two-year battle that saw Kenefick eventually win at trial, his efforts were finally compensated in May when the judge granted his request to have the MIAA pay his attorneys’ fees on grounds that the nonprofit agency had violated the Massachusetts Equal Rights Amendment.

“[Kenefick] accomplished a very favorable result for his client, and high school girls participating in interscholastic golf in the commonwealth are secondary beneficiaries of his success,” the judge wrote. “The defendants stubbornly resisted the merits of the plaintiff’s evidence and arguments, with counsel making highly questionable statements about high school sports, which the court found disturbing.”

In response, MIAA lawyer James P. Long says the judge’s decision “runs right up against the duty of an attorney to provide zealous advocacy for their client, and I certainly don’t intend to roll over and play dead. I was never persuaded by the plaintiff’s argument, and I’m still not.”

Long adds that the MIAA has no immediate plans to open its checkbook, as the case is being appealed on grounds that the agency has the right to make the rules and that any girl who wants to compete against the boys has to file a waiver — a step Lindsey failed to take.

“Part of the MIAA mission is to promote girls’ athletics, and doing what this girl wants to do undermines that goal by sending a message that the girls’ tournament is no good,” he says.

In the meantime, Kenefick, satisfied that he has made his point, says he’s prepared to wait.

“There’s a price to pay for acting in a way that is completely inappropriate by society’s standards,” he says. “This case should serve as a statement that if someone is going to violate a person’s civil rights, the courts are going to feel it’s appropriate to award attorneys’ fees.” {EXA}