Forgetting Title IX?

Attempts to reform college sports often don't give enough consideration to Title IX, says panel at NCAA convention. 

January 15, 2015

NATIONAL HARBOR, Md. – Recent and upcoming changes to National Collegiate Athletic Association rules -- including a new pilot program that will provide travel expenses to the families of basketball players who play in national championship games -- are rife with “serious Title IX complications,” a panel of gender equity experts said here Wednesday. 

The NCAA announced last week that it will help cover the expenses of basketball players' family members who travel to the men's and women's Final Four games this spring. The NCAA also granted a waiver that allowed the College Football Playoff to help cover the expenses of families traveling to Monday's national championship football game. 

Under the new pilot program, the NCAA will pay up to $3,000 in travel, hotel and meal expenses for family members of each athlete who competes in the Final Four. The association will pay as much as $4,000 for families of athletes playing in the championship games. The NCAA's waiver allowed the College Football Playoff to provide $3,000 in assistance to families of football players participating in the national championship. 

The change is among several the NCAA is making in response to pressure it's under to provide more support for athletes. At the convention this week, the newly autonomous "power five" conferences will vote on several reforms, including providing better medical, financial, and academic support to athletes. 

As many of these changes stem from criticism surrounding revenue-generating male sports, there seems to be little discussion about how they will comply with the federal law barring gender discrimination, Erin Buzuvis, director of the Center for Gender and Sexuality Studies at Western New England University, said during presentation at the NCAA’s annual convention. 

“The NCAA is like the donor who gives your men’s basketball team free shoes,” she said “That’s great. Free shoes are great. But then you have to factor that in and potentially reach into your own pocket to buy a women’s team new shoes.”

When it comes to Title IX of the Education Amendments of 1972, the source of the funds used to provide benefits to athletes does not matter, Buzuvis said. That a fancy, new men’s locker room was entirely funded by donations is not a permissible nondiscriminatory reason to not build a comparable locker room for female athletes.

Similarly, a benefit provided by the NCAA is no different from a benefit directly provided by an institution, said Janet Judge, president of Sports Law Associates, who joined Buzuvis in a sparsely attended panel discussion.

“It doesn’t matter where the money comes from,” Judge said. “It counts.”

The NCAA as an organization is not subject to Title IX, but its member institutions are. That means it’s legal for the NCAA to offer a waiver or aid to a men’s team and not to a women’s. The NCAA does provide the new travel grant to both men’s and women’s basketball teams, but it doesn’t legally have to. 

Judge said Title IX complications could arise if only one of an institution’s basketball teams advanced to the Final Four. “What if the women’s team doesn’t make it to the Final Four, but the volleyball team does?” she said. “I think there is a very serious concern there, too.” To that end, the NCAA now allows institutions and conferences to adopt new rules to allow for travel aid for any championship game. If an institution created such a rule, however, it would have to come up with that additional money on its own. 

That would be particularly challenging if the U.S. Department of Education's Office for Civil Rights was to view the football playoff travel grant -- offered by the College Football Playoff, but permitted by the NCAA through a waiver -- as financial aid of some kind. The large size of a football team means that more than $300,000 in extra benefits could be given to male athletes. 

“If you’re one of these lucky schools to go to the playoff,” Buzuvis said, “this could put you in a situation where you can’t really do anything to be compliant.” 

The College Football Playoff may find a way around this rule, Judge said, as it’s a different entity from the NCAA and the money could be provided directly to the student and their families, not distributed through an institution. But it’s still unclear how the Office for Civil Rights would view such a loophole, Buzuvis said. 

“I do have to wonder how deeply the NCAA was thinking about Title IX with this otherwise benevolent action,” she said. “It sets up schools for some unintended consequences.”

Amy Wilson, an associate professor of education at Illinois College, said she hopes that the NCAA's members consider Title IX as they vote on new legislation, at this convention and beyond, that would create a number of new benefits for athletes.

While football, for example, is often at the forefront of the conversation about improving athlete insurance and health benefits – an issue featured in Division I legislation to be voted on this week -- women’s soccer also ranks as one of the riskiest college sports.

“No legislation or policies should be adopted without saying first, ‘what does this do in terms of gender equity,'” Wilson said.


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