As (another) Congressional hearing awaits, is NCAA's Title IX argument 'in bad faith'

At some point during the 12th college sports-related Congressional hearing Tuesday, NCAA witnesses will likely make this argument to federal lawmakers:

The NCAA must be exempt from employment and antitrust law because otherwise it would be forced to relinquish its long-standing commitment to upholding Title IX’s gender equity principles.

The association increasingly leans on Title IX – the 52-year-old federal law that protects students from sex-based discrimination at any school that receives federal funding – as part of its legal strategy in ongoing litigation, lobbying efforts and Congressional hearings. 

But it begs a natural follow-up from lawmakers: “OK, how would you assess your track record in prioritizing Title IX compliance?”

The answer, according to industry experts, is where things get dicey for the NCAA.

A recent essay by Boise State sports law professor Sam Ehrlich – titled “The Inherent Bad Faith of the NCAA’s Use of Title IX to Shield its Illegal Business Practices” – casts the NCAA’s legal strategy in a new light.

The lengthy essay, published in Georgetown Journal of Gender and the Law, contends that it is “at the utmost levels of bad faith for the NCAA to attempt to use Title IX as a shield when the NCAA and its stakeholders have been fighting Title IX’s on-paper and in-spirit application to college sports at every turn.”

Ehrlich wrote: “The NCAA’s use of Title IX and women’s sports in this regard is, in a word, shameless.” The NCAA is acting like it is the “guardian angel of gender equity,” Ehrlich added, when he believes the reality suggests otherwise.

Experts: NCAA, some schools have subpar Title IX record

The subcommittee of the House Education and the Workforce Committee scheduled Tuesday’s legislative hearing titled “Safeguarding student-athletes from NLRB misclassification.” Unlike past hearings focused on enacting guidelines in NIL, Tuesday’s legislative hearing will be aimed at tackling labor rulings that could reshape the future of college sports.

The question of whether Title IX would even apply in an employee model ignites robust debate and yields varied views among legal experts. And if it does apply, there are legitimate and important questions to be asked regarding how schools remain Title IX compliant when they undoubtedly would face a significant financial stress test.

But if Congress provided the NCAA with employment and antitrust protections, have the association and member schools done enough on the Title IX front over the years to be trusted that they would prioritize gender equity?

“They say, ‘We can’t have an employment model because it’s just going to wreck all the gains we’ve made in women’s sports and the ways we’ve prioritized women’s sports and kind of allowed women’s sports to grow,'” Ehrlich told On3. “But in reality, if anything, they’ve been kind of an impediment to it. They’ve really stood in the way of it. The gains in women’s sports have been the result of lawsuits and they’ve been the result of people shining light on it.”

NCAA had to address tournament inequalities

Perhaps the most glaring example of gender equity negligence earned national headlines in 2021 when several athletes – led by former Oregon women’s basketball player Sedona Prince – took to social media to demonstrate the inequality between weight rooms, food and other amenities provided by the NCAA to athletes during the men’s and women’s basketball tournaments. 

As Ehrlich’s essay details, a report prepared by Roberta A. Kaplan and her law firm found that the organization’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.” 

The NCAA has since addressed many of the issues that were illuminated, including those related to branding, resources and amenities. It also recently secured an eight-year, $920 million rights deal with ESPN for 40 championship sports, including the women’s basketball tournament, which is surging in popularity.

In addition, the NCAA is engaged in discussions about introducing financial units for the women’s tournament, a development many industry leaders say is long overdue. 

In fairness to NCAA President Charlie Baker, he has been on the job a little more than a year and wasn’t in charge three years ago when the issues with the women’s tournament belatedly came to light. Baker has repeatedly said that stakeholders need to prioritize Title IX compliance and made multiple references to the law in his December memo outlining reform. 

That said, the Title IX track record of many member institutions is poor, according to Arthur Bryant, widely viewed as the nation’s foremost Title IX expert.

“Title IX says schools have to provide male student-athletes and female student-athletes with equal treatment and benefits, and almost no school in the country is doing that now without NIL,” Bryant told On3. “With NIL, it is far, far worse.”

Several schools accused of Title IX violations

Title IX litigation is ongoing related to several schools, notably Fresno State, San Diego State and Oregon. This past December, 32 current and former female student-athletes filed a sex discrimination class-action lawsuit against Oregon, alleging the university deprives women of equal treatment and benefits, equal athletic aid and equal opportunities to participate in varsity college athletics in violation of Title IX.

As Ehrlich asserts, some NCAA member schools continue to exploit at least three loopholes to give the perception of Title IX compliance while working to avoid true gender equity.

The first tactic counts women who compete on multiple teams – most commonly indoor track, outdoor track, and cross-country – as one person per sport rather than as one singular person, thus double, or even triple, counting the same athlete. The second involves overfilling rowing team rosters with more women participants than are needed. The third tactic involves counting men who practice with women’s basketball teams as members of the women’s basketball roster for the reported numbers.

“NCAA member institutions themselves have shown that they must be dragged kicking and screaming into true Title IX compliance,” Ehrlich wrote.

Does NIL increase Title IX questions?

Last summer, On3 asked the NCAA about concerns that schools are evading Title IX responsibilities as an increasing number work with third-party NIL collectives, which funnel money mostly to male athletes.

“The NCAA advises its schools to comply with all federal laws, which includes Title IX,” an NCAA spokesperson said in an email. 

“The Department of Education’s Office of Civil Rights supervises compliance around Title IX, not the NCAA. Additionally, all NCAA member schools are required to have a Title IX coordinator on staff to assist with their university compliance. The NCAA is committed to gender equity and inclusion for all student-athletes. The NCAA also expects its member schools to be accountable to the well-being of its student-athletes and on the promotion of equity around potential opportunities.”

NCAA uses Title IX as ‘hostage’ in negotiations

In ongoing high-stakes, high-profile court cases, the NCAA has leaned on the Title IX compliance defense as it confronts mounting challenges to its so-called amateur financial model.

During the House antitrust case, the NCAA initially submitted an expert witness report from North Carolina sports management professor Barbara Osborne, a Title IX scholar. In November, Judge Claudia Wilken granted the plaintiffs’ motion to exclude Osborne’s testimony.

Additionally, in February 2023, during oral arguments in the Johnson v. NCAA case in Pennsylvania, NCAA attorney Steven Katz early on leaned on a Title IX defense strategy. If athletes are deemed university employees, Katz said to expect a “minefield of unforeseen consequences,” a reference to a thicket of Title IX implications. Judge Theodore McKee immediately responded by referencing the NCAA tournament disparities that Prince revealed through social media.

If the NCAA and its member schools had a much better track record with Title IX compliance, Ehrlich said, it would be a better card for them to play. But still perhaps not the best card.

Nonetheless, it’s a card NCAA stakeholders are likely to throw down again during Tuesday’s Congressional hearing.

“The NCAA has, for its part, decided to use Title IX as a hostage in these negotiations,” Ehrlich wrote. “The NCAA’s arguments regarding Title IX are compelling to many. But do we know that a federally exempted and above-the-law NCAA will actually work to ensure gender equality in college sports? History simply does not support that blind trust.”