Wednesday, January 07, 2015

NCAA Allows Grants for Families' Travel to Football Championship

Yesterday the NCAA announced plans to offer financial assistance to families of athletes who will travel to the men's and women's basketball Final Four and championship game in April, as well as the national football championship next week.  For the basketball tournament, the NCAA itself will pay up to $3000 in travel, hotel, and meal expenses for family members of the athletes who participate in the semifinal games, and $4000 for families who stay on to watch their athlete compete in the final. The NCAA has given permission for the College Football Playoff to provide $3000 to the families of athletes competing in the championship game.  (Such benefits would otherwise not be permitted by NCAA's rules against player compensation, and thus required a waiver.)

It is easy to surmise the NCAA's benevolent motivations here.  College athletics is under fire for the ways in which it arguably exploits the labor of college athletes, whose efforts generate millions of dollars for the NCAA and its members. Programs like this one answer that charge in ways that appear consistent with the principle of amateurism, which prohibits compensation for labor. Separately, however, the NCAA's family travel grants program raises some Title IX issues that are important to consider.

The NCAA's family travel grants program, while discriminatory, is not subject to Title IX.

The NCAA is providing grants to families of both its male and female athletes, so from its standpoint, it is not engaging in sex discrimination where basketball is concerned.  However, in permitting football players to receive this benefit and not extending a similar waiver to other female sport, the NCAA has arguably engaged in discrimination on the basis of sex. However, this discrimination does not have much legal significance. The Supreme Court has concluded that the NCAA is not itself subject to Title IX because it does not receive federal funds. (Technically, that decision was decided on rather narrow grounds that leaves some room for reexamination. But I'm setting that rather complex issue aside for now to focus on more glaring Title IX problems.)

But, member institutions who receive family travel grants from the NCAA/CFP must account for them under Title IX.

On the other hand, the NCAA's members do receive federal funds and are subject to Title IX. An institution that receives family travel grants on behalf of its players and their families would have to ensure that these benefits do not produce disparities on the basis of sex in violation of Title IX. The fact that the grants would come from the NCAA or from College Football Playoff (or technically, CFP Administration LLC) and not the institutions themselves does not absolve the university of ensuring Title IX compliance.  OCR has already made clear that benefits to the athletes "attained through the use of private funds" are considered in combination with all benefits, services or opportunities that are subject to Title IX.  This standard was set forth in a letter explaining the Title IX obligations with respect to booster-club funded benefits, and there is no reason to think that benefits funded by other private benefactors, whether it be the NCAA or CFP Administration LLC, would be treated any differently.

Family travel grants should be considered a factor in the equal treatment analysis

In terms of equal treatment, it is clearly a benefit of participation for athletes to have their family members at the championship game, just as it is a benefit of participation to have access to coaching, dining, travel, equipment, uniforms, etc. If the family travel grants favored athletes of one sex, it would violate Title IX's requirement to provide equal treatment in the aggregate to men's and women's programs, just as any other lopsided distribution of a laundry-list item would.

In the basketball context, a university that receives this benefit on behalf of athletes of one sex but not the other would be able to defend the lopsided distribution by pointing out that the basketball team of the other sex had equal opportunity to access this benefit, if it too had made it to the Final Four. But in the football context, such a defense is unavailable. Institutions that accept family travel grants on behalf of football players actually have no way of providing a commensurate benefit to the members of another women's team who makes it to their championship game, since the NCAA did not provide any other waivers that would permit such awards. A Title IX violations in this regard seems inevitable.
Family travel grants could also be considered athletic financial aid

There is also a strong argument that the grants would be considered athletic financial assistance, which according to OCR "includes any financial-assistance expenditure through the institution’s athletics program and any other aid connected to a student’s athletic participation or ability."  The benefit is clearly connected to the athlete's participation. It is also probably not significant that grant is to the athlete's family rather than the athlete him or herself.  In general, the government treats the student as an extension of his or her family when it comes to financial aid for education.  It is hard to imagine the Department of Education drawing a distinction between financial aid awarded directly to a student and a grant awarded to a student's family.    

Assuming that the family travel grounds count as athletic financial aid, Title IX would require the institution to factor in the total amount awarded in family travel grants to the overall total of athletic financial aid that must be distributed proportionately to the athletes of each sex. For example, the University of Oregon football team has 115 players on the roster. If each of their families receives $3000, that's a total of $345,000 more in athletic financial aid for men that the institution would have to match in athletic financial aid for women in proportion to their percentage of the total student athlete population. Interestingly, I think this obligation to provide matching funds for the opposite would apply in the basketball context, as well, regardless of whether it's the women's or men's team who receives the benefit.


I wonder if the NCAA was thinking about Title IX when it made this decision?