By Todd S. Shumaker, of CCHA
House, SCORE, an executive order Saving College Sports: the post-House world of college athletics seems to have invited as much chaos as pre-House. But at least schools get to pay their athletes directly now, so that part should be good, right?
“Not so fast my friend,” to quote the sage wisdom of a man who has seen a LOT of change across college sports. Within days of the House settlement being approved, the first appeal based on Title IX was filed, followed closely by additional Title IX challenges to the settlement. Not that no one saw this coming. These parties initially filed objections to the House decision that Judge Claudia Wilken even addressed in her opinion, namely that they did not provide sufficient grounds to support the conclusion that the types of damages being awarded as part of the settlement were subject to Title IX. Furthermore, there was nothing in the settlement that would prohibit schools from awarding benefits and compensation under the settlement consistent with Title IX obligations.
While the application of Title IX to the House settlement works its way through the judicial process and the SCORE Act is debated within the halls of the legislature and myriad executive branch agencies go about the work of executing how to save college sports, higher education institutions are stuck watching the next pot that may boil over as they attempt to implement what they understand to be Title IX’s requirements in the world of NIL and revenue sharing on their campuses.
I’m not sure that actually sounds easy, but even if it does, we talk a lot about some of the questions clients should be asking themselves in managing Title IX on their campuses. At the top of the list is something along the lines of:
How will we incorporate concepts around gender equity into any new benefits we provide to athletes pursuant to House?
Note: This is not “Does Title IX apply to House benefits?” because we took a stand on this months ago: Yes, athletic programs constitute educational programs or activities, institutions receive federal funding and they must comply with Title IX principles of gender equity (which they can’t circumvent by outsourcing discrimination to a third party).
So, back to how to incorporate these concepts on campus. The first question is, what does gender equity look like on your campus or in your community? Title IX gives institutions a lot of flexibility in applying equitable principles in their specific circumstances, so a good starting point is to understand what those look like. Guidance from a prior administration indicated NIL should be analyzed as non-grant financial assistance and made equitably available, like Alston awards or summer aid, meaning anyone who meets certain non-discriminatory criteria gets it, regardless of sex. This guidance similarly suggested NIL benefits would fall into the treatment areas of publicity and support services requiring equal in effect provision of benefits. Needless to say, there’s room for interpretation here, and institutions starting with the notion of analyzing House benefits through the lens of gender equity, then outlining a plan for how they will accomplish that are at least off to a good start.
What makes this particularly complicated for institutions today is the specter of a depleted Department of Education and Office of Civil Rights who are left to try to regulate Title IX at the federal level. Where once a school might open correspondence that a regulatory action had been initiated and a school could work quietly with OCR to investigate and remedy violations via settlement, that option is less clear now. At the time of writing this article, we are outside the 30-day window set forth in the Saving College Sports order for four different agency leaders – or five, if you count the Secretary of Education twice – to develop their plan to implement the directives of the order. And there hasn’t yet been significant word on what this looks like, generally, let alone how the executive branch intends to monitor the application of Title IX to House benefits to athletes.
Which means we may all be left to watch as Title IX enforcement plays out via lawsuits and institutions are left to resolve disputes with real dollar amounts and not just settlement decrees with the federal government. Schools in California, Oregon and Texas have recently made headlines on this very point related to the awarding of financial assistance, the provision of NIL benefits and the cancellation of sports programs.
To quote Robert Tepper, “There’s no easy way out;” to paraphrase him, “there’s no shortcut [around Title IX]”. But giving in is wrong. The platform for women’s sports is growing, both in notoriety in the gender equity space and ostensibly across the political sphere. Individual institutions that want to best position themselves in whatever the next iteration of Title IX enforcement looks like, then, need to commit to implementing gender equity principles in their decision-making – or be prepared to answer in a lawsuit why it wasn’t worth it to them.
Or just write an algorithm that incorporates non-discriminatory factors, while controlling for historic discrimination, then apply it indiscriminately across your athlete population. Which I’m sure is written on a window in a dorm room on a campus somewhere. (Just be sure to also invest equitably in NIL publicity and support services moving forward.)
