Title IX a pay-for-play roadblock
Though it is a passage just 37 words long, Title IX has been both credited with and blamed for a lot of things that have happened in college athletics in the past four decades.
In regard to the concept of "pay-for-play," Title IX is generally seen as a substantial roadblock. But not just because of the gulf between football/men's basketball and women's sports, but also because of the gap between those "big two" sports' profit-producing programs and virtually all other collegiate sports, both male and female.
Meaning that despite the friction that's existed between some men's sports and Title IX, the latter actually may serve as the best protection for every program against implementation of a pay-for-play system that didn't take into account all student-athletes.
"Discrimination has to be based on something covered by the law," said attorney Mary Gambardella, who represented Quinnipiac University when it was sued by the school's women's volleyball team. "Status as a non-revenue sport versus a revenue sport is not protected. But gender is.
"Title IX guarantees gender equality in athletic opportunities. The courts have now developed, through years of case law, what that entails. It is very well established case law where the courts have said the opportunities have to be equal in all respects. It includes the accommodations and conditions around those opportunities."
In other words, Gambardella thinks that there is likely no viable end-around Title IX to allow schools to pay only those athletes who are in profitable sports, which generally are football and men's basketball. In fact, the idea of excluding revenue-producing sports from Title IX compliance goes back all the way to soon after the legislation was signed in June 1972. Those attempts, such as 1974's Tower Amendment, have failed.
"What the court would say is, it's not an equally meaningful opportunity if the experience is richer, for lack of a better word, in some sports," said Gambardella, of the firm Wiggin and Dana. "Whether or not Title IX was meant to be that pervasive in the analysis, I can't say. What I can tell you with certainty is it's been applied in that manner."
Indeed, the way Title IX has been fleshed out and strengthened is mainly through legal decisions.
Gambardella argued for Quinnipiac, which had eliminated its women's volleyball program as part of spending cuts and tried to replace it with competitive cheerleading.
Last summer, though, a federal judge ruled the university had violated Title IX by trying to cut volleyball, saying that competitive cheer was too underdeveloped to be considered a substitute sport.
I can't see the NCAA passing any legislation to allow additional pay just based on revenue-producing sports, knowing all the other sports would be adversely affected. Instead, they would have to come up with some kind of formula that would work for all student-athletes, male and female, versus just those programs that are making money.” -- Charles McClelland, athletic director at Texas Southern University
Gambardella speaks from the experience of being on the side that didn't win that case. She understands the perspectives of not only Quinnipiac, where she graduated from law school, but that of bigger universities where football is very profitable. Ultimately, though, she believes the Title IX case law is so significant that "pay-for-play" is not a workable concept.
So what about trying to compensate athletes who do make a profit for schools by allowing them marketing rights to their images or perhaps setting up trust funds they could access after they end their college eligibility? Again, Gambardella believes those things would have to apply to all athletes.
"The question would be, 'Are they opening up those opportunities to everybody?'" she said. "In general, regarding all laws regarding discrimination -- not just Title IX -- the courts will not take kindly to attempts to run around and find loopholes if the impact is still discriminatory. There are two theories under which people can sue under Title IX. One is intentional, direct acts of discrimination, but the other is if there is a disparate impact on one gender."
Again, though, it would not only be those in women's athletics who would object to pay-for-play. Most men's sports are not profit-producing at any college. And at many Division I programs outside of the NCAA Football Bowl Subdivision, even football and men's basketball produce little to no profit.
"We don't make a profit in any of our sports," said Charles McClelland, athletic director at Texas Southern University. "When you look at men's basketball and football, the majority of schools like us are playing these 'guarantee games' with larger schools just to put enough dollars into the program for it to be able to operate.
"And I can't see the NCAA passing any legislation to allow additional pay just based on revenue-producing sports, knowing all the other sports would be adversely affected. Instead, they would have to come up with some kind of formula that would work for all student-athletes, male and female, versus just those programs that are making money."
If it sounds like all this is contrary to the principles of capitalism, in a way it is. But it's also not. Schools already are on a hierarchical scale based on how much money the athletic department has access to spend. So coaching salaries, support personnel, facilities, accommodations, trips, etc., are varied, and the "richer" schools for the most part get the top athletes.
Gambardella said going that next step to paying athletes beyond what they get now as part of their scholarships would essentially turn all college athletes into employees.
"Employment status is based on function, not on how much money I make for you," Gambardella said. "So if the football player was to be considered an employee -- because participating in sports was considered 'work' -- then the guy or woman on the tennis team would be employees as well. You'd be compelling schools to pay all athletes, which would bankrupt most of them."
The other element is to not lose sight of what college sports are really intended to accomplish. Athletics are supposed to supplement, not be, the educational experience.
Demarcating college athletics as an educational experience and not an employment experience is then intrinsically linked to Title IX. Because the law protects women from discrimination in "any education program or activity receiving Federal financial assistance."
"College students' participation in athletics is considered a privilege, not a right," Gambardella said. "It's completely distinguishable -- and I say this as an employment lawyer -- from you going to work for a company for free. Your entitlement to wages is as an employee.
"For athletes who are in college, their only access to the team is as a student. Being on a team is part of the overall educational experience. You can argue in most cases it benefits the student more than the school."
Mechelle Voepel is a columnist for ESPN.com. She can be reached at email@example.com.
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