Education Department Requires Equal Pay for Women Athletes

Title IX, football, and the economics of college athletics.

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.

[…]

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.

[…]

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.

FILED UNDER: Gender Issues, Sports, US Politics, , , , , ,
James Joyner
About James Joyner
James Joyner is a Professor of Security Studies. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Stormy Dragon says:

    Discrimination doesn’t stop being discrimination just because it’s profitable

  2. James Joyner says:

    @Stormy Dragon: The principle was always “equal pay for equal work.” It’s illegal to pay male nurses more than female nurses. It has never been illegal to pay doctors more than nurses, even though doctors were disproportionately men.

    Even when roles are “equal” in a cursory sense, we’ve allowed wild pay disparities. LeBron James makes considerably more than Jackie Young, the highest-paid women’s basketball player. Tom Cruise gets paid way more than Hayley Atwell, even though they’re co-starring in the same movie. I don’t see how this is any different.

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  3. Bobert says:

    @James Joyner:
    However I would submit that Cruise and Atwell, while both maybe equal in the acting efforts, Cruise brings significantly more fans and name recognition to a specific production.
    The producers and investors recognize that Cruise probably will likely bring more revenue versus Atwell at this time. Cruise is more valuable, hence will be paid more.

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  4. MarkedMan says:

    This ruling comes about because Universities are still desperately trying to maintain the farce that these professional sports teams are somehow part of “education” and because if that they must fall under the Department of Education.

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  5. Mike says:

    And meanwhile the costs of higher education keep going up and up. It seems at some point universities need to relook their mission and goals. I know sports bring a lot of attention, add to campus life, and its fun to cheer for your favorite school team, but at some point the costs have to become too much to sustain when the goal of a state school is to educate the population but the education is unattainable for so many b/c of the costs.

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  6. Michael Cain says:

    It has been fairly clear for decades now that eventually the top level of teams in college football would have to be “carved out”. I’ve always thought it would be done by the schools declaring their football programs were no longer NCAA sports. The NCAA wouldn’t dare fight them over this, as the next move is for those schools to pull their basketball programs as well. Those schools provide a large majority of the teams for both the men’s and women’s March Madness tournaments, which generate most of the NCAA’s budget.

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  7. Stormy Dragon says:

    @James Joyner:

    Discrimination also doesn’t stop being discrimination just because it’s what we’ve always done.

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  8. Michael Reynolds says:

    @Stormy Dragon:
    Difference does not equal discrimination.

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  9. James Joyner says:

    @Bobert: Precisely my point. But the same is true of college football vs. any of the women’s sports.

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  10. gVOR10 says:

    In the earlier post on Trump’s Mandate SC_Birdflyte forced me to look up DILLIGARA. Wrt/ complications arising from paying college football players, DILLIGARA.

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  11. @Mike: My former institutions spent (and continue to spend) way, way too much on sports (especially football) all with the delusion that they will reach new heights of success (when, in my view, they have already hit their zenith).

    Most schools are in the same boat, and I wonder how long (and how many wasted dollars) it will take before it all crashes down.

    The SEC-Big10-plus-some-others league is eventually going to send the rest of college FB back to being a distant second tier.

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  12. @Steven L. Taylor: And the diversion of funds is real. They are preparing for $10-$12 million (and it will end up being more than that) indoor practice facility for the football team. But, meanwhile, the building that houses the fine arts if literally falling apart. Indeed, several buildings have massive problems. But hey! An indoor practice facility will help recruiting! (Never mind with the portal all the good players will go elsewhere).

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  13. MarkedMan says:

    @Steven L. Taylor: I regret to state the obvious – they are putting money into the things they value most. And that the students, parents, state legislators and general public value most.

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  14. just nutha says:

    @Michael Reynolds: Crackers like me used to say that during the Civil Rights era, too. And still believe it. It’s part of why the center is where progress goes to die.

    I KNEW that we’re kindred spirits, deep down.

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