By Martin Edel and Isabelle Bruner[1]
Gender inequality is alive in college athletics. Gender inequities exist in differences between men’s and women’s athletic facilities, athletic equipment, coaching experience and salaries, and amounts spent and allocated to men’s and women’s sports.[2] Schools may take no action and risk complicity and a rash of costly lawsuits. Or colleges may become pro-active in identifying and addressing gender inequity for a fraction of the cost of litigations and settlements, and reap the additional benefits of being consistent with their core values and the law, enhancing recruitment of athletes and staff, improving morale, creating additional revenue opportunities, and becoming more diverse.
The NCAA, Federal Law and State Law Preclude Discrimination
The NCAA, federal and state law prohibit gender discrimination. The new NCAA constitution, approved in January 2022, includes gender equity as a core principle. It provides: “The Association is committed to gender equity. Activities of the Association, its divisions, conferences and member institutions shall be conducted in a manner free of gender bias. Divisions, conferences and member institutions shall commit to preventing gender bias in athletics activities and events, hiring practices, professional and coaching relationships, leadership and advancement opportunities” (Article 1, Section G).
In addition, Article 2, Section A.2.c reads: “The Association shall promote gender equity, diversity and inclusion in all aspects of intercollegiate athletics.” And, “It is the responsibility of the Association and each division, conference and member institution to comply with federal and state laws and local ordinances, including with respect to gender equity, diversity and inclusion (Article 6, Section C).
Federal law also prohibits gender discrimination and harassment. Title IX of the Education Amendments of 1972 provides, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX applies to the vast majority of schools. The EEOC and other federal agencies have promulgated rules and regulations that implement the gender equality laws. Violation of federal laws can result in loss of governmental funding. Courts also have become involved in protecting against gender discrimination. And some states have enacted laws that create rights for victims of discrimination, harassment and cyberstalking.
Recent Developments Create a Clarion Call for Colleges to Become More Involved in Identifying and Addressing Gender Discrimination
In the Final Four this year, there was significant media coverage of disparities in facilities between the men’s and women’s Final Four. In August, 2021, the NCAA addressed these concerns by issuing a report on Gender Equity. With respect to women’s Final Four Basketball, the report concluded:
The NCAA’s broadcast agreements, corporate sponsorship contracts, distribution of revenue, organizational structure and culture all prioritize Division I men’s basketball over everything else in ways that create, normalize and perpetuate gender inequities. At the same time, the NCAA does not have structures or systems in place to identify, prevent or address those inequities.
In October, 2021, the NCAA released the second half of its Gender Equity report. It focused on the NCAA’s 84 other championships, which impact over 500,000 student-athletes and encompass 23 sports and three divisions. The Report found “the same structural and cultural issues that impact Division I basketball pervade the NCAA and have shaped its treatment of other championships,” i.e., prioritizing revenue-producing championships. It concluded:
[T]his same pressure has led the NCAA to invest more—and in some instances considerably more—in those championships that it views as already or potentially revenue-producing, while minimizing spending for other championships. Because the mere handful of championships that the NCAA views as revenue-producing are exclusively men’s championships—Division I baseball, men’s basketball, men’s ice hockey, men’s lacrosse and wrestling—this has significant implications for efforts to achieve gender equity between the men’s and women’s championships in those sports. The NCAA’s simultaneous failure to put in place systems to identify, prevent, and address gender inequities across its championships has allowed gender disparities in these and other sports to persist for too long.
The NCAA findings are not limited to the national organization or to championships. Instead, the NCAA Report is a “call to arms” to all colleges and universities based on the same challenges that the NCAA faces, namely, actual or perceived financial dependence on men’s sports over women’s sports, lack of communication between staff for men’s and women’s teams, a broader campus culture that may perpetuate gender inequities, and a lack of systems or guidelines in place to identify and address issues.
What You Can Do
Completing a Title IX checklist or a generalized annual or biennial survey does not meet colleges’ obligations under NCAA Rules, federal law or state laws. Similarly, generalized surveys or anti-discrimination on-line programs often are insufficient to stem the tide of gender inequity.
There are increasing numbers of gender discrimination lawsuits filed against colleges. The cost of defending or settling lawsuits can be far greater than the cost of a vigorous assessment program to identify and address gender concerns. Educational institutions need to reevaluate their approaches to gender inequality. They need – on pain of violating NCAA regulations, federal and state law, and the schools’ culture – to take action to identify and address gender inequality and develop plans for eliminating barriers to inclusion in the sports programs. Schools that fail to identify and respond appropriately or remain silent risk being perceived as endorsing the cultural and systemic issues which have sparked outrage from many student-athletes, coaching and other staff, alumni and sponsors and, in some cases, costly litigations. These risks underscore the value of an objective cultural assessment for any college or university that seeks to work toward meaningful change, ensure institutional accountability, and maintain the support of past, current and future constituents.
How many schools have conducted gender reviews that are more involved than completing a Title IX checklist or showing the results of an annual or biennial survey? We have sampled 100 colleges (a mix of public and private among all three NCAA divisions) and found that since 2018, only 18 schools (18%) have reviewed or are planning to conduct a gender equity review of their athletics department and program to adopt a “Gender Equity Plan.”[3] Most of these schools promised these reviews in settlements after facing Title IX lawsuits.
There is more that must be done to make colleges and universities more diverse and inclusive, to attract student-athlete recruits and transfers, to locate enhanced revenue opportunities with sponsors, to increase campus morale by showing a commitment to listening to and addressing concerns, and to mitigate against the risks and costs of lawsuits.
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[1] Martin Edel is Chair of the College Sports Law Practice and a Director at Goulston & Storrs (medel@goulstonstorrs.com, (212) 878-5041, (646) 284-3638).
Isabelle Bruner is the Competitive Intelligence Analyst at Goulston & Storrs and a member of the College Sports Law Practice (ibruner@goulstonstorrs.com, (202) 721-6395).
[2] There also are other forms of gender inequality in college athletics which take the forms of gender stereotypes, discrimination against gay athletes, transgender athletes, and harassment and cyberstalking of athletes because of their gender or gender identity.
[3] Data based on publicly available information. Schools may be conducting gender equity reviews of their athletic departments without publicizing it.
