Yes...and...but...well...: The NCAA Tourney and Issues of Equality

 The following is an only slightly less contorted path through my original thought process in the wake of  Sedona Prince's Tik Tok revealing the gross inequities between the workout facilities for the women and men at this year's NCAA basketball tournament. (There was also an issue with the swag bags. Side note: interesting that the NCAA is allowed to give gifts to athletes, but no one else is.)

Initial thought: 

Anyone who is surprised has not been paying attention. 

Some less cynical second [and so forth thought(s)]: 

It seems that this very obvious disparate treatment brought some needed attention to the issue. We rarely see more than a handful (fingerful? thanks for all you do, Dawn Staley!) of women coaches speak up about issues of inequality. Not surprising given that women coaches are often fired for speaking up (#Iowa, #FresnoState, #FloridaGulfCoast, #manyotherplaces). This is good--the speaking up, not the firing. 

But of course the condemnation was of the NCAA, which is pretty low hanging fruit in terms of places to blame. No institution is going to retaliate against a coach for criticizing the NCAA over this clear mistreatment of women athletes. In short: they spoke out about a fairly one-sided issue. I feel this to be true because I have yet to hear any utterance of "keep politics out of sports." This is interesting because...

...politicians got in on this too. Most notably, Mikie Sherrill, a representative from New Jersey, is leading a group of three dozen representatives in demanding a response from the NCAA. I read this as opportunistic. There is nothing in the recent past regarding Congress's efforts to reform sports or hold organizations accountable (NFL concussion crisis, steroids in baseball) that makes me believe this action will create a reckoning for the NCAA in regard to gender equity. 

The truly less cynical part:

I chose to come to the conclusion that the reason this disparity was so glaring and that the reason Prince and her peers recognized it right away was because there has been a large improvement in the quality of experiences women intercollegiate athletes are receiving. These women are accustomed to better treatment. They have great weight rooms and other training and practice facilities; they have access to amazing coaching staffs and medical staffs, etc. 

Erin and I wrote about Title IX's equal treatment mandate in 2012. We had many, many, many examples of disparate treatment that schools were forced to resolve. I don't know if things have gotten better universally, or even just within intercollegiate sports (versus interscholastic) in terms of equal treatment. Or rather, I don't know how to measure that. 

I suspect that things are better for the top teams. So Oregon State probably does treat its men's and women's basketball team fairly equally. But that is easier to see and achieve because it is a like versus like comparison. How is the field hockey team treated? How is the field hockey team, plus the women's soccer team, plus the cross country team, plus the women's tennis team treated in comparison to the football team? Because that is how treatment is supposed to be assessed. It is not team versus team; it is based on the quality of experience for men athletes and female athletes. So if the 125 members of the men's football team receive locker room space with TVs and couches and other sweet amenities, 125 women athletes should be receiving something comparable. Are they? 

Who knows? Accountability only comes when a complaint or a lawsuit is filed. Some schools do Title IX self studies, but...self studies. How effective are they? 

The NCAA used to have an accreditation process for Division I schools which included a Title IX component, but they stopped those years ago. I argue that one (but not the only) reason this weight room fiasco happened was because the NCAA is out of touch with what is happening on campuses. If NCAA folks were going into schools, they would see what equal treatment looked like. Prince and the other women expected something better because they get much better on their respective campuses. 

What I hope will come out of this:

More student athletes learn about Title IX and what they are due because of this law and act on it.

More student athletes advocate for the equal treatment of all women's teams on campus, not just the ones that are popular or successful.

I was going to add something here about wanting the NCAA to get back into schools, but I don't think the organization, as a whole, has proven itself trustworthy or effective. My wish for its effective governance is countered by my hope that it collapses under the weight of its own dysfunction. So that's a wash. 

Congress will give more funding to OCR so it can effectively investigate Title IX complaints. Maybe it could even do something very pro-active and institute a system through which schools report how they are providing equitable treatment and not just equitable opportunities.

 

University of Iowa enters into voluntary resolution

The University of Iowa has entered into a voluntary resolution with the Office of Civil Rights 20 months after the investigation by the agency into a complaint of disparate treatment of male and female student athletes.

The complaint was filed by members of the field hockey team and part of a larger confluence of events which involved the firing of long-time field hockey coach Tracy Griesbaum and the removal of her partner, senior athletics administrator, Jane Meyer from her position immediately after Meyer complained about gender equity in the department.

The University has framed the resolution as a victory noting that the investigation revealed no violations, but only disparities in treatment in the areas of  equipment, recruiting, and locker rooms. The University will have to submit reports in April and June which state how they will address these disparities. They must also, by the end of this month, explain how they were in compliance in 2016-17. I am interested in seeing that report.

Two thoughts on this "resolution." First, claims of victory based on disparities versus violations borders on offensive in part because of the culture of the department (more on that below), the history of inequitable treatment, and because disparities are violations. The law mandates equitable treatment across genders. To have a disparity means there is not equitable treatment.

Additionally, these are disparities that have been around for years and years. In the early aughts I served, as a graduate student, on the Gender Equity Subcommittee charged with assessing equity as part of the NCAA's (now defunct) accreditation process of DI schools. We heard about the same things: lack of recruiting dollars for coaches of women's teams, inequitable facilities and equipment and access to them; and more. There is no amount of elapsed time that results in a disparity becoming a violation (in part because of the semantics I mentioned above). But certainly for Iowa to tout lack of violations when these disparities have been persistent and ongoing, seems inappropriate--at best, and borders on offensive.

Two, I fear that the fact of OCR finding no violations means Iowa is (nearly) good will do little to address the atmosphere in the department in which women--as athletes and administrators--continue to face discrimination. This atmosphere has been maintained--if not created--by athletics director Gary Barta who seems to be doing little to address the situation beyond what he is required to do.

I note here that the first complaint filed by the field hockey team members was about how complaints against female and male coaches were handled differently by the department was never investigated. There are several examples* of members of the football coaching staff endangering the health and safety of their athletes with no repercussions. While the University cannot deny its loss in the Jane Meyer case, which resulted in a jury award, the settlement with Griesbaum means they admit no guilt. This is all to say that there are issues in Iowa athletics that extend beyond locker rooms, equipment, and recruiting. I imagine many at and associated with the university are disappointed in this "resolution."

Also a note about the first article linked above which was the only I found about the resolution agreement: it incorrectly states that compliance with Title IX is measured by the three-prong test. As we have written repeatedly, the test measures one aspect of  compliance: participation. I would argue that these misunderstandings that compliance is only about numbers of athletes is part of the reason why people do not see inequitable treatment (i.e., quality of experience) as a violation/non-compliance.


* Including the choice to keep an injured quarterback in during a bowl game Iowa was losing badly; an example cited by a former ESPN analyst in a story about why he left his job when he felt complicit in the violence done to football players.

SMU Rowers' Lawsuit Challenges Inequitable Medical Treatment

In a lawsuit filed yesterday, eight current and former members of the women's rowing team at Southern Methodist University allege that the university violated Title IX by giving female athletes less medical attention than their male counterparts. The lawsuit, which also includes a negligence claim, seeks damages related to hip injuries that they suffered as a result.

According to the press, the plaintiffs allege that athletic department trainers and medical staff failed to diagnose their injuries and treated them inadequately once they had. The injured rowers were also silenced by a culture of "intimidation and shame," they claim. One rower gave an example that she was to injured to row, walk, sit or stand for extended periods of time.  Instead of seeking medical help, her coach asked her if her mattress was too firm. The rowers suffered labral tears in their hips, which they allege is a rare injury in the sport of rowing, but which afflicted up to fifteen SMU rowers. The high incidence rate, they claim, resulted from the improper rowing technique that their coach employed, combined with the lack of medical attention. One rower told the press, "I am almost positive that if there were 15 football players or 15 basketball players that had the same injury by the same coaches in eight years, I do not believe [SMU] would have let that go on." 

Title IX requires athletic departments to not only provide an equitable number of opportunities to male and female athletes, but also to ensure that men's and women's programs receive equal treatment. Title IX regulations itemize a list of factors that comprise the equal treatment analysis, and access to medical treatment is included on this list, along with things like facilities, uniforms, equipment, scheduling, quality of coaching, and others. In this case, the plaintiffs allege, SMU added rowing to balance the numbers, but did not follow that up with the necessary investment of resources needed to ensure equal treatment. 

It's common for judicial and administrative cases involving equal treatment to uncover evidence of inequitable access to medical treatment, but I'm not aware of any other lawsuit seeking damages for specific injuries that resulted from the inequality.

OCR Will Investigate Iowa Complaint

Last February we blogged about the complaint University of Iowa field hockey players filed against the university over the termination of their coach, Tracey Griesbaum. This week we learned that the Department of Education's Office for Civil Rights has decided to investigate the complaint and determine whether the university in fact discriminated against the players in violation of Title IX.

We believe this is the first time the government has ever considered a complaint about a coach's termination to be sex discrimination from the players' point of view. Title IX regulations require equal treatment between men's and women's programs in the aggregate, including the quality of coaching athletes receive as a component of that requirement. The players argue that when Iowa fired Griesbaum over complaints about her demanding coaching style, the university imparted a sexist double standard that deprived them of the opportunity to be challenged by a successful, demanding coach.  Importantly to the framing of this claim, male athletes at Iowa  are given that opportunity, as evidenced by the fact the university has never disciplined coaches of men's teams for being too hard on them. 

It will also be interesting to see whether OCR looks at the harmful message a university sends to female players who might be aspiring coaches when it fires a female coach over conduct that is tolerated and even encouraged from male coaches. Because female athletes could be discouraged from pursuing a lifelong relationship with college athletics in a way that male athletes are not, this is arguably another way in which firing a female coach is sex discrimination from the players' point of view.

More Thoughts on the Title IX Question in Pay-for-Play

Yesterday I posted about why Title IX's equal treatment mandate would require schools to provide female athletes with the same benefits they award to male players via collective bargaining.  To make my point, I used the example of extended health insurance, because that is the benefit that the football players have stated is the purpose of their efforts to unionize. 

I think that the same analysis would apply even if the bargained-for benefit is salaried compensation.

And contrary to what other commentators have stated, I do not think that the revenue-producing nature of the sport is the basis for a distinction.

Here's why: Because when it comes to the treatment of student-athletes, the revenue-producing nature of the sport has already been rejected as the basis for unequal treatment among male and female athletes.  A school could not decide to provide better locker rooms, or more quality coaching staff, or disproportionately high scholarship dollars, or any other benefit to football players on the grounds that football derives revenue and other sports don't.  That is well-settled, "black letter" Title IX law.  So the revenue argument would not justify providing extended health insurance to players of one sex.  Nor should it justify providing salaried compensation to players of one sex.

Many have pointed out that there is case law holding that it is not a a violation of the Equal Pay Act to use revenue as the basis on which to pay one coach more than another for otherwise similar work.  In particular, folks have pointed to Stanley v. USC, 178 F.3d 1069 (9th Cir. June 2, 1999). In that case, the court rejected a female coach's Equal Pay Act claim after finding that the male coach's capacity for revenue made the jobs dissimilar, such that the plaintiff failed in her burden of showing that she was paid less for substantially similar job.

Say what you will about Stanley (many think the court got it wrong, since the capacity for revenue is not in the coach's control, but a function of society's preferences for men's sports).  But regardless, I don't think Stanley settles the question as it relates to student compensation.  I have two reasons:

First, the proper reading of Stanley is a narrow one. The EEOC has, since that case, issued guidance that suggests revenue-generation can only be used as a defense to salary differential between male and female coaches when "the woman is not given the equivalent support to enable her to raise revenue."  I would argue that there are few women's teams that receive equivalent support to men's football.

Second, and by far the more important reason, is that Title IX, through its implementing regulations, contains a clear equal treatment mandate that applies to students, and not to coaches.  Importantly, that equal treatment mandate is the basis for my argument, above, that Title IX requires schools to match whatever benefit it extends to male students to female students as well.  Because no similar mandate applies to coaches, it is simply not relevant that courts have concluded that coaches can be paid dissimilarly on the grounds of revenue.  
 
I therefore think that schools cannot pay athletes of one sex and refuse to pay athletes of another sex -- even if the distinction they are making is the athlete's capacity for revenue. 

Title IX and Proposals for a College Football Players' Union

A column in Forbes points out that if the football players at Northwestern are successful in forming a players' union, their likely demands for compensation beyond the full cost of attendance would make it difficult for universities of to comply with Title IX.  A few universities make money on football, and those schools use some of these proceeds to defray general athletic department costs and to partially support women's programs.  If this money is redistributed to the players, it will no longer be available to this end.  A university would have to find other sources of revenue to fill that gap, or else it would risk violating Title IX's requirement for equal treatment of men's and women's programs.  (Cutting those women's teams for lack of funding would also probably violate the law.)  Not to mention (and the column doesn't) the fact that paying some members of a men's sport, but no members of a women's sport, would also violate the equal treatment requirement.

This column ends by calling Title IX the "elephant in the room" that would need to be addressed if players were compensated.  I think that, more than that, the fact this elephant exists highlights the very problem with big-time college sports.  A hybrid of both for-profit business and non-profit, federally-funded education, the former makes the argument for a union seem compelling, and the latter justifies the application of a civil rights law that requires equal treatment on the basis of sex.  The incompatibility of these two ideas illustrates that universities really can't have it both ways.  There are only two solutions: make college sports compatible with education, thus mooting the players' arguments for compensation, or take college sports out of universities, thus mooting the role of Title IX.  Both would drastically change big-time college sports as we know them.  But that just underscores how deeply inconsistent the business of sport and the business of education actually are.

Straight Talk from Rutgers AD on NCAA Stipend Proposal

Rutgers University Athletic Director Julie Hermann was interviewed in the local press about the challenges of helping college athletes cover the true cost of education.  Last year, the NCAA voted to allow Division I institutions to award $2000 cost-of-living stipends to those athletes already receiving a full scholarship, to cover the kind of incidentals outside of tuition, room and board.  The plan was later rescinded but the concept is still under consideration.  

As Hermann notes, the original stipend plan was inequitable from the start in terms of gender, given that far more male athletes (those in so-called "headcount sports") than female receive full scholarships and would be eligible for the stipend.  Counting the scholarships awarded in the headcount sports of men's football and basketball, Hermann notes, " you have $200,000 you can now award to your men, which is great. But that only gives you $60,000 that you can award on the women’s side [in volleyball and basketball]. You’re automatically $140,000 off.”

There's not an obvious fix, it seems.  Simply expanding eligibility to include equivalency sports, Hermann explains, would tremendously increase the total cost to institutions of funding the stipend.  People view the stipends as a way to share the profits with the athletes whose efforts generate those funds.  But most university athletic departments, even those with football programs, are not profiting on athletics.  Hermann notes that many football programs don't even turn a profit.  So the money for the stipends is coming from the university (tuition) or elsewhere in the athletics budget. So the possible consequence is that universities will cut equivalency sports in order to be able to pay out stipends to everyone else -- something Hermann doesn't want to see. 

Another challenge with the stipends, it appears, is that there's some evidence suggesting the students who received them didn't spend them as intended: "They’re buying a $500 pair of jeans that you and I don’t spend money on. So yes we could make them a card, but you have to teach them financial management. We’re trying to feed and clothe you, give you everything you need (via the stipend), but we’re not trying to make you into fashionistas."

Hermann's right that there's no easy answer to the fundamental questions of fairness that underlie this issue.  It's good to know that athletic directors like Hermann are cognizant of the gender equity implications as well as the potential implications for equivalency sports. Her remarks suggest that for most schools, stipends are not the answer, and will only drive an additional wedge between athletes in some sports that happen to be  popular with the public and others that are not.  It's becoming increasingly difficult to imagine an NCAA that governs the handful of profit-earning institutions along with everybody else.

Quinnipiac settlement approved

Erin wrote in April about the settlement reached in the Quinnipiac class-action lawsuit. As she noted then, the settlement was subject to court approval. That approval came last week. We've already noted some of the terms of the settlement, one of the biggest being the guarantee that the volleyball team would not be cut and that female student-athletes would be receiving more scholarship dollars.
Here is a list (taken from the above link) of some of less discussed but very important settlement terms:

• Quinnipiac will treat two more of its women's teams as "sports of emphasis," which will lead to more scholarships, more coaches, and better facilities.
• It will increase its commitment to the new varsity sport of women's rugby by increasing scholarships, raising the level of competition, adding coaches, and substantially improving its field.
• It will increase its commitment to women's track by increasing the number of scholarships, coaches, and competitions, as well as building an indoor track & field facility that meets NCAA competition standards.
• It will authorize the maximum number of competitions for all of its teams.
• It will spend at least $5 million improving the facilities used by women's varsity teams, including locker rooms.
• It will spend about $450,000 annually improving its women's athletics program by, among other things, increasing coaching salaries, hiring more coaches and academic support staff, and providing greater access to athletic training and conditioning services.  
• It will allocate up to $175,000 during each of the next 3 years for additional improvements for women's sports.
• It will hire a "Referee," mutually agreed upon by the parties and confirmed by the Court, to monitor its progress.

A list like this highlights the importance of equal treatment and what equal treatment looks like. Sometime we think that equal treatment is more ambiguous or abstract than equal opportunities which have three methods for assessment. The QU case provides a good example of how equal treatment--or lack thereof--can be remedied.