What Effect Will the NLRB Decision Have on Title IX?

Yesterday a regional director of the National Labor Relations Board ruled that Northwestern University football players were "employees" within the meaning of the National Labor Relations Act, and, accordingly, have the right to elect a union to engage in collective bargaining on their behalf.  The decision focused on the ways in which football players are subject to the control of the university, which make them unlike other students at Northwestern and similar to employees in other contexts who are subject to their bosses' control.  The decision also examined the job-like time commitment football players make to their sport, and the nature of football players' scholarships, which, awarded entirely on the basis of "football prowess," operate like compensation -- another hallmark of the employer-employee relationship. 

Northwestern reportedly has plans to appeal the decision, which could be overturned if not by the full board of the NLRB, then by the federal courts (including, potentially, the Supreme Court).  If it is upheld, however, it would mean that football players at Northwestern as well as similar programs at other private institutions would be able to vote for union representation.  And even though a decision under the National Labor Relations Act does not apply directly to public employers, it is possible that state schools, to remain competitive for top players, would essentially match whatever benefits the private school players' unions have successfully bargained for.  The ripple effect from this decision, if it is upheld, is to potentially up-end the NCAA's amateurism paradigm throughout college athletics. 

What is the effect on Title IX from all of this?  I believe that if the decision results in actual bargained-for benefits for student-athletes of one sex, Title IX would continue to require that such benefits inure equally to student-athletes of the other sex.  Imagine that, for example, a football players' union succeeds in bargaining for extended health insurance -- the Northwestern football players' stated objective. It would clearly violate Title IX if that benefit only applied to male athletes and not female athletes -- even though the male athletes bargained for it and the female athletes did not. Title IX regulations require schools to provide equal treatment in the aggregate to its men's and women's programs, as measured by a "laundry list" of factors that expressly includes access to medical services, which has been interpreted to include "the equivalence for men and women of...health, accident and injury insurance coverage."  Two days ago, it would have clearly violated Title IX for Northwestern to have decided on its own to grant extended health coverage to some of its male athletes but none of its female athletes.  And there is nothing in yesterday's decision that changes that analysis under Title IX.  The fact that male athletes obtained the benefit through collective bargaining is beside the point; it does not absolve the university of having to ensure equal treatment under Title IX.  In similar fashion, universities can't absolve their obligation to provide equal treatment by pointing to other external forces, either, such as a booster club that only gives money to one sex.  The university's obligations under the NLRA apply in addition to its obligations under Title IX; the latter is not supplanted by the former.

This outcome will surely seem weird to many people, and for good reason, I think.  Surely Congress when it passed the NLRA (in 1935) and Title IX (in 1972) never imagined that an educational institution would be subject to both laws simultaneously with respect to its student athletes.  But that's the consequence of having one's cake and eating it too, by which I mean running a profit-seeking business enterprise while receiving federal support and non-profit status.  With the latter comes the obligation to comply with civil rights laws like Title IX. And now, with the former, comes the obligation to comply with employment and labor law as well, meaning, having to collectively bargain with employees, as well as pay minimum wage, workers' compensation, payroll taxes, and the like. If college athletic departments like Northwestern's insist on straddling the line, they will be subject to both laws.  Alternatively, they can choose one paradigm or the other, business or education. In the business paradigm, athletic departments would have no obligation to comply with Title IX, and would be subject only to the demands of the market in determining which athletes to compensate and how much.  But the price of that freedom is no more federal funding, and no tax-exempt status.  Alternatively, in the education paradigm, athletic departments would continue to benefit from federal funding and tax-exempt status.  But the price of this public support is no more running an athletic department as profit-seeking enterprise; athletics would truly have to be an extracurricular activity, not tantamount to a full-time job (an Ivy League, or Division III model of athletics).

If schools choose the latter paradigm, the irony will be that yesterday's decision will not result in any actual players unions being formed.  But the lengths to which college athletics will have to reform itself in order to avoid them is just as game-changing.