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Title IX College Sports Equity Conscience

By Husch Blackwell

Read Husch Blackwell’s 2024 NCAA Compliance Report: College Athletics in Transition.

Contrary to popular belief that Title IX was passed to create gender equality in sports, the 1972 Title IX statute does not reference athletics programs. Instead, athletics program requirements are specifically addressed in a 1975 rule.

Title IX prohibits discrimination in educational programs or activities on the basis of “sex.” Title IX applies to all institutions that receive Federal Student Aid funds as well as all their programs and activities.

It is important to note that while the courts decide issues of antitrust and employment status, which could result in billions of dollars in damages or a never-before-seen compensation model, it will be up to individual institutions to determine how to comply with Title IX. Justice Kavanaugh, in his concurring opinion in Alston, acknowledged the complexities of difficult policy questions such as how “any compensation regime would comply with Title IX.” However, the Courts will not be the ones to answer such questions. They will, however, be called upon later to further address cases of non-compliance.

The current and future budgetary strain has campuses all over the country attempting to determine how they will not only survive but also be competitive long-term and ensure that Olympic sports remain viable. One commonly discussed solution is, unfortunately, cutting sports. It should be noted that according to the Office for Civil Rights, “[N]othing in Title IX requires the cutting or reduction of teams in order to demonstrate compliance with Title IX, and the elimination of teams is a disfavored practice. Because the elimination of teams diminishes the opportunities for students who are interested in participating in athletics instead of enhancing opportunities from discrimination, it is contrary to the spirit of Title IX” (Dear Colleague Letter from the Assistant Secretary of Education, Office for Civil Rights, dated July 11, 2003, entitled “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance.”). However, if schools may one day be required to share revenue or pay student-athletes minimum wage, it is hard to imagine a world where they can all maintain the 16-sport Division I sponsorship minimum.

One Division I school, in response to the new NIL rules and in anticipation of unfavorable decisions related to student-athlete employment, announced they will cut six total teams (three men’s and three women’s) at the end of the 2023-24 year.

In addition, we are now seeing the first Title IX claims brought as a result of perceived institutional involvement in NIL and uneven spending on marketing and team promotions. This trend may continue or be amplified should a new employment model be adopted on an ad hoc basis. While some institutions are advocating to bring their NIL collective(s) in-house, the implications of doing so have not been fully evaluated, nor is it clear how institutions could comply with Title IX based on the current reported rate of spending on NIL in men’s basketball and football as compared to other sports.

In addition to their day-to-day management of entire institutions and athletics departments, some college and university leaders are contemplating how to manage fundraising and development if NIL collectives are permitted to be brought under the institutional umbrella, where to find the dollars if student-athletes become entitled to a share of media revenue, and how to stay competitive in the various recruiting arms’ races. These concerns are understandable but should not diminish the need to analyze these decisions through the gender equity lens. Failure to do so could result in significant risk to colleges and universities, even beyond the athletics department.

Read Husch Blackwell’s 2024 NCAA Compliance Report: College Athletics in Transition.