AP (“As college sports move toward pay for play, Title IX looms as another hurdle for the NCAA“):
A court settlement that would require colleges – for the first time – to pay athletes billions for their play is not going to settle the debate over amateurism in NCAA sports.
Many schools have said that most of the up to $20.5 million they’ll pay out to their athletes as part of the $2.8 billion House settlement would go to football and men’s basketball players. But guidance from the U.S. Department of Education this week noted that the payments could run afoul of Title IX requirements that the genders are treated equally.
Here is a look at the latest legal hurdle for schools as they try to navigate between the crumbling model of amateur sports and the pro leagues that they don’t want to be.
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Recent court decisions have chipped away at the amateur model, notably the 2021 Supreme Court ruling that NCAA limits on some benefits for Division I basketball and football players violate antitrust laws.
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Title IX of the Education Amendments of 1972 prohibited “discrimination on the basis of sex” in schools that receive federal funding. The law says schools at all levels must provide equal opportunities for men and women – including (but not limited to) athletics. Since Title IX became law, the number of women playing college sports has more than septupled.
This week, the Department of Education’s Office of Civil Rights issued a “fact sheet” reminding schools that Title IX’s promise of equal opportunity would apply to the House settlement, which allows schools to pay players. (The agreement has yet to receive final approval from U.S. District Judge Claudia Wilken.)
Though he just got hit with the news Thursday, NCAA President Charlie Baker doesn’t think so.
He said the settlement mostly covers the distribution of $2.8 billion in damages to former players, while also clarifying the terminology around third-party payments and some other issues. But, he said, how and whether schools allocate the $20.5 million they’re allowed to pay to players in the future could face prospective Title IX scrutiny.
“The settlement itself is pretty well-defined,” Baker said. “Because it’s a campus-based thing, every school has to figure out what their policies and procedures are.”
But Erin Buzuvis, a law professor at Western New England University who studies Title IX, said that if the schools proceed with plans to distribute most of the damages to football and men’s basketball players, they could be vulnerable to lawsuits from female athletes who aren’t treated equitably.
As the money brought in from television licensing rights and other sources for football and a handful of other “revenue sports” exploded, it became increasingly difficult to justify the pretense that they were merely extracurricular activities engaged in by “amateur” “student-athletes.” The NCAA failed to adapt and the Supreme Court ruled, rightly, that many of the rules precluding athletes from getting paid were an illegal restraint of trade in violation of longstanding anti-trust laws.
But football made applying Title IX difficult even before the era of “Name, Image, and Likeness” (pay for play) and the transfer portal (free agency) upended the old model. Football is far and away the most popular college sport. The rosters are far larger. So, “equality” for women’s sports was challenging when it was just a matter of scholarships and room and board, requiring funding multiple women’s teams just to balance out the numbers.
But, as we inevitably shift to college football and basketball players being employees of the school, complete with collective bargaining agreements, it would be simply absurd to require “equality” for women’s sports. While women’s basketball has achieved something close to parity with the men’s game at the collegiate level, thanks to Caitlin Clark and a couple of other superstar players and comparative longevity, there is simply nothing remotely comparable to football on the women’s side.
Presuming President Trump or his Secretary of Education doesn’t overrule this when taking office next week (and that withstands legal scrutiny) Congress may have to create a carveout for football. The courts have, rightly, allowed college athletes to get paid at a market rate. That the market values football–which is played almost entirely by men—should not be construed as sex discrimination.
