By Barbara Osborne, J.D., Associate Professor, University of North Carolina at Chapel Hill
It seems that almost every day there is another student-athlete, journalist, or academic scholar lamenting the “abuse” of college athletes who are limited by NCAA rules to “only” tuition, room, board, books and fees in exchange for the opportunity to play college athletics. The solution most often offered currently is to change the NCAA rules to expand the value of a full athletics scholarship to include cost of attendance, approximately $3,000 more per academic year, for basics such as clothing and transportation.
Expanding the scope of a full scholarship appears reasonable, considering the millions of dollars that college athletics departments generate in revenue over the course of a year. However, the overwhelming majority of schools do not actually make money through athletics. Student fees and institutional allotments subsidize deficits. Thus, most schools would not be able to provide student-athletes with additional funding without even heavier reliance on institutional subsidies.
Similarly, expanding the NCAA scholarship limits to include cost of attendance would not help the truly financially-challenged student-athlete. These student-athletes qualify for federal Pell Grants, and the current NCAA rules allow these students to accept the full scholarship plus the Pell, which may amount to more than the cost of attendance. In reality, the proposed solution would likely harm the very students that the pay-for-play advocates claim they want to assist, as these financially disadvantaged students would become limited to receiving an athletics scholarship limited to the cost of attendance.
So, spare me the sob story about “poor” student-athletes. Pay-for-play isn’t about helping the needy; NCAA special assistance funds are available to assist with basic needs (and they don’t pay for tattoos, jewelry, and luxury vehicles). Pay-for-play is about providing additional compensation for the few who are already the most compensated – football and men’s basketball players. The only schools that can realistically afford pay-for-play are a few schools in the elite conferences. Pay-for-play will further separate the have’s from the have-not’s, and move “big time” college athletics even closer to a semi-professional model.
But as much as the media likes to refer to college athletics as a business, football and men’s basketball teams operate within an educational model. That’s where the road toward pay-for-play gets a little bumpy. Title IX is a federal civil rights statute that prohibits sex discrimination in any program or activity at educational institutions that receive federal funds. College athletics is considered by law to be an extracurricular program, and almost all schools receive some type of federal funding (including those aforementioned Pell Grants). Under federal law, what’s good for male athletes must also be good for female athletes.
The 1975 implementing regulations delineate the three areas that schools must comply with in order to satisfy Title IX: scholarships, program opportunities and benefits, and participation opportunities. The scholarships provision requires athletically-related financial assistance be allocated in proportion to the number of male and female students participating in intercollegiate athletics (34 CFR Part 106, 1975). The 1979 Policy Interpretation further explains that the total amount of scholarship aid made available to male and female student-athletes must be substantially proportionate to their participation rates. It is important to note that this calculation is different than participation opportunities proportionality, which compares the proportion of male and female student-athletes to the proportion of men and women in the general student body. For scholarships, the proportion of scholarships must be substantially equal to the proportion of student-athletes participating, so in a typical athletics department where 60% of the athletes are male and 40% of the athletes are female, compliance would require approximately 60% of the athletics scholarships to be awarded to men and 40% to women. Compliance is not measured by equal dollars awarded to male and female student-athletes, nor is it measured by equal numbers of scholarships offered to each sex.
Disparities are allowed based on legitimate, non-discriminatory factors such as the difference between in-state and out-of-state tuition. Favoring male athletes because the sports they play produce revenue is not a non-discriminatory factor. Senator John Tower proposed amendments to the statute of this nature in 1974 and 1975– both amendments died in committee (120 Cong. Rec. 15,322-15,323 (1974).
The Title IX scholarships requirement is not an insurmountable barrier. The few schools that can afford to increase scholarships for male athletes can likely afford to increase funding for female athletes as well. If schools opted to increase grants to the cost of attendance for the approximately 100 football and men’s basketball players that currently receive full scholarships, they could satisfy Title IX by offering the same to a similarly proportionate number of female student-athletes. Although tiering programs invites complaints of inequity and unfairness, it is allowed under Title IX.
The reality is that pay-for-play is not practical – because schools can’t afford it, not because of Title IX. If schools that already operate under a deficit and with institutional subsidies choose to travel the pay-for-play route, putting even more money into football and men’s basketball scholarships by chasing the dream that they will become competitive and reap the benefits of bowl participation and a share of the NCAA Men’s Basketball tournament distribution, they will have to fund a substantially proportionate number of women’s scholarships as well. This financial hardship would likely result in decreased opportunities for other male athletes in non-revenue sports, although eliminating men’s teams is a disfavored practice according to the Department of Education Office for Civil Rights, the agency responsible for enforcing Title IX.
Some have suggested taking football and men’s basketball out of the athletics department and operating them as a separate corporation. By separating these teams from the educational institution, Title IX would appear not to apply. However, courts have found that intercollegiate athletics programs that currently operate as incorporated athletics associations are still required to comply with Title IX. Realistically, there are also tax consequences that would make a break from the tax-sheltered sanctuary of the academic institution significantly less attractive.
Although the pay-for-play advocates talk about the big money in college sports, there isn’t much discussion about the cost to administer programs. Student-athletes don’t get “just a scholarship” – they receive the value of coaching and training, the use of state of the art equipment and facilities, sports medicine services, academic counseling and tutoring, and travel. Let’s not forget the value of publicity and promotion of the student-athletes and how that enhances their status and marketability post-college. The economic value of a college education over a lifetime is significantly more than a high school diploma. Legally, participation in intercollegiate sport is a privilege, not a right. It is an extension of the educational experience, not a job. As such, it is only fair to provide all of these benefits – tangible and intangible – to all of our male and female student-athletes.
