Cost-of-Living Stipends Raise Gender Equity Challenges

On August 1, a new NCAA rule will take effect that allows college athletic programs in the five "power" conferences to increase athletic scholarships to cover the full cost of attendance by providing athletes with a stipend to cover living expenses beyond tuition, books, and room. Will these new benefits to college athletes be distributed in compliance with Title IX?  If one institution's plans are any indication, it's not looking good for gender equity.

University of Nevada Las Vegas reports that it is committed to funding stipends for athletes participating in football and men's and women's basketball.  That means 98 men will benefit (85 scholarship football players and 13 basketball) compared to only 15 women. The university also reports that the average stipend award (which is not necessarily the same for each player but varies to reflect their own individualized costs) is $4500. That's amounts to a dollar-figure disparity of about $373,500 in favor of men's athletics at a university that already allocates 59% of its athletic financial aid resources to men's teams. 

In contrast, some schools plan to award the stipend to full-scholarship athletes in every sport, something that comes closer to equitable since the NCAA has women's volleyball, gymnastics, and tennis  (along with football and men's and women's basketball) to be full-scholarship instead of partial-scholarship (i.e., "equivalency") sports.  Some schools have also suggested they may award partial stipends to those on partial scholarships. 

These diverse approaches suggest a need for the NCAA and the power five conferences themselves to ensure that all member institutions are factoring gender equity in to their decision to award stipends, or, alternatively, that the Office for Civil Rights clarify an institution's compliance obligation under Title IX.  Such guidance could treat stipends like other athletic financial aid that is regulated by Title IX, and  requires the dollar figure amount be proportionate to the breakdown of male or female athletes.  Alternatively, given that the stipend amounts are individualized to each athlete taking into account factors other than sex, I think it would also be reasonable to instead require that the number of stipends (comparing full and partial separately) be equitable between the sexes.  Either way, however, it seems clear that athletic departments are not going to spontaneously comply with Title IX, and that guidance of some kind is in order.

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.

Hmmm...

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

Title IX Invoked in Early Efforts to Protect Rights of Female Athletes at Alabama, Berkeley

A couple of Title IX stories about women's college athletics caught my eye this week. Here is a brief roundup.

First, a former women's basketball player at the University of Alabama is using Title IX to challenge the athletic department's allegedly discriminatory manner of allocating scholarships as well as a "fairly broad and comprehensive pattern of bullying, harassment, retaliatory conduct and institutional hazing," according to the attorney representing Daisha Simmons. The details of these allegation are not entirely clear, but the alleged retaliation and harassment are argued to have crystallized in the athletic department's attempt to block Simmons's request to the NCAA for a waiver that would have allowed her to play immediately upon transferring to another institution. It appears from this article that the player's lawyer has filed a complaint with the university, as it is noted that the complaint triggers an internal investigation by the university.  However, if the matter is not resolved internally the player's attorney says the matter would likely "wind up in federal court."

Second, some members of the women's field hockey team at the University of California - Berkeley are considering whether to file a Title IX lawsuit against the institution to challenge its failure to provide them with a field the 2015-16 season. The Bears are already playing without a home facility this season while their field is under construction, and recently found out that the displacement would last into next season as well. As a result of their displacement, the team has to travel to other facilities -- the closest of which are an hour away -- for both competitions and daily practice. All that time spent commuting time cuts into the players' available time to take classes and engage in other aspects of student life. If the players pursue Title IX litigation, I predict that central issue will be whether Berkeley treats other men's teams differently when they are displaced for field construction, such as by doing a better job to minimize the length of displacement and finding better temporary facilities for games and practices. If the players don't have an argument along these lines, however, it is possible that a court would see this situation as one that is unfortunate but that does not constitute sex discrimination.

NCAA Reform and Title IX

Last week a federal district court judge ruled in favor of the former college athletes, lead by Ed O'Bannon, who were challenging NCAA rules that prevented them from sharing in the proceeds that their colleges and universities earned by licensing their names and likenesses for commercial purposes like television broadcasts. The court agreed with the athletes that NCAA restrictions on athlete compensation are a form of price fixing that unreasonably restrains trade, and, as such, violate federal antitrust law.  As a result of the court's decision, the NCAA must allow schools to use broadcast proceeds to provide stipends that compensate athletes for the true cost of attendance, which is often more than the cost of tuition, room and board, and books to which athletic scholarships are currently limited.  And it must allow schools to hold some of the money they receive from television broadcasters for using players names and likenesses in a trust fund, to be shared among the players when they graduate. Though these changes will result in only modest compensation for former athletes -- the court specified that the NCAA could restrict payments from the trust fund to ensure that athletes only receive up to $5000 -- the case is still a very big deal.  No longer can the NCAA invoke the concept of amateurism to justify whatever restrictions it would like to place on athlete compensation.

Notably, the O'Bannon plaintiffs came from the sports of men's basketball and football, which are the sports that generate broadcast revenue.  Accordingly, the decision only speaks to athletes in those sports.  Yet, the decision is bound to have an indirect effect on women's sports, as a result of Title IX.  As economist Andrew Schwarz explains, both in Jane McManus's column on espnW, as well as in his own Deadspin column yesterday, Title IX requires schools to allocate scholarship dollars in manner proportionate to the gender ratio of student athletes.  A school that decides to offer male football recruits some additional compensation would  have to ensure that a proportionate dollar amount is allocated to female athletes as well.  Otherwise, they have a compliance problem.  (Or more likely, a worse compliance problem, as many schools already do not provide enough scholarship dollars to female athletes.)

As McManus points out at the end of her column, the effect of the O'Bannon decision on women's sports could be to inject a little more money into women's sports.  But is that really a victory?   To the extent the decisions legitimizes a version of college athletics that operates, as McManus says, "as platform for ticket sales, TV contracts and cash" rather than an "educational tool" is it really a victory for college athletes at all? 

USC announcement inspires complaint

Someone has challenged the University of Southern California's recently announced plan to provide four-year scholarships to football, and men's and women's basketball players. As Erin noted the other day, the disproportionate benefit to male student-athletes is likely a Title IX violation.
And a properly signed complaint (we don't know by whom at this point) to OCR is challenging the new policy and pointing out other Title IX violations at the school including: less pay for head and assistant coaches of women's sports; fewer women's coaches, fewer opportunities for female student-athletes, inequitable funding of women's sports; inequitable funding of recruiting. 
Differences in funding and salaries and positions do not always equal Title IX violations. If athletic departments can justify the differences and prove they are providing a similar quality of experience to men and women, this is enough. 
That being said, in addition to the likely problems with four-year scholarship distribution, the differential between average salaries between coaches of men's and women's teams at both the head and assistant coach level is startling. 
Head coach average salary:  $647,202 (M) $129,552 (W)
Asst coach average salary: $200,871(M)  $45,629 (W)

We don't know whether OCR will visit the LA campus to investigate. It's possible they will ask USC to do its own study and address the disparities and report back. 
I do believe they will have to explicitly address the scholarship issue and it would be nice if we could see some progress on salary equity. 

What are the Title IX Implications of USC's 4-Year Scholarship Plan?

On Monday, University of Southern California announced that it will offer four-year scholarships to all scholarship athletes in football, men's basketball, and women's basketball.  This modifies the university's existing practice of offering all scholarships on a one-year, renewable basis. 

Multi-year scholarships have only been permissible under NCAA rules since 2012.  The NCAA actually banned them in 1973 as a means to promote competitive equity by leveling the playing field for schools that cannot afford to take that kind of risk.  But concerns for athlete's welfare and education motivated the NCAA's change of heart, and reportedly, USC's as well.  An athlete with a four-year scholarship has "job security" if you will -- they cannot lose their scholarship status as long as they continue to follow team and NCAA rules. An athlete with a renewable scholarship has to worry every year that their coaches will replace them due to poor performance or injury -- leaving them to either figure out how to cover tuition or else drop out of school altogether.

Multi-year scholarships are thus quite beneficial to athletes.  But like any benefit, they must be allocated on a gender-equitable basis in order to comply with Title IX.   

Title IX regulations specifically address athletic financial aid at 34 C.F.R. 106.37(c).  This provision  requires that aggregate dollar amount allocated to athletes of sex be proportionate to the ratio of athletes of each sex -- i.e., if 50% of the athletes are female, they should receive 50% of the overall available athletic financial aid.  Yet this provision is likely unaffected by an inequitable distribution of multi-year scholarships versus one-year renewables. This is because a multi-year scholarship paid out over the term of years does not increase the allocation of athletic financial aid in a given year (one-fourth of a four-year scholarship and a one-year scholarship are the same in dollar amounts).

But elsewhere, at 34 C.F.R. 106.41(c), the Title IX regulations mandate that athletic opportunities receive equal treatment based on sex.  For example, under this provision, it would be unlawful to provide higher quality equipment or facilities to only men's sports. "Tiering" is still permissible -- a school does not need to provide the same benefits to all sports -- but there must be gender equity within the tiers themselves.

In my opinion, a school that provides four-year scholarships to 98 male athletes (85 football scholarships, 13 basketball) and 15 female athletes violates 106.41(c) -- the same way that it would violate Title IX to provide any other perq on this inequitable basis.  If this is hard to understand, imagine that USC provided laundry service to 15 female athletes and 98 male athletes -- a clear violation of equal treatment.  The "job security" aspect of a four-year scholarship relative to a one-year renewable is just another characteristic of how athletes are treated, similar to laundry service. Moreover, because the regulation says that the Department of Education will enforce this provision by considering a number of enumerated factors "among others," it is not relevant that 106.41(c) does not expressly mention multi-year scholarships a factor of equal treatment. 

Finally, it will not be sufficient for USC to justify its policy as only pertaining to revenue-producing sports.  In 1974, Congress considered an amendment to Title IX that would have exempt revenue-producing sports.  But the fact that this amendment failed to pass underscores the law's agnosticism when it comes to revenue.  Neither Congress, the courts nor the Department of Education have ever endorsed a double-standard for revenue and non-revenue sports.

It is good that schools are being responsive to concerns about athlete welfare and education.  But the law requires that they do so on a gender-equitable basis.

NYT Editorial Addresses "Pay for Play" and Title IX

Over the weekend, the New York Times published an editorial addressing the role of Title IX in the debate about amateurism in college sports.  The editorial board argues that athletic directors exaggerate when they claim that Title IX makes it impossible to allow athletes to receive compensation. The law's requirement to distribute financial aid to athletes in a manner proportionate to gender would not put college athletic departments out of business -- it would just cause them to adapt to a new business model that in which less money is available for "overhead."   It may not be possible, the editorial suggests, for schools to continue to pay the head football coach the highest salaries in higher education, if athletes are also receiving some form of compensation.  It also points out that the NCAA could permit athletes to negotiate their own licensing agreements without any Title IX consequences whatsoever, since the money would be flowing to athletes directly and not the institution.

These are good points, I think. While we've criticized the NCAA membership for ignoring the effect on Title IX compliance of proposals to compensate athletes (such as when they allowed schools to pay stipends to only those athletes in head-count sports and not equivalency sports), I agree that it's also not fair to let them argue "Title IX won't let us" as an excuse not to consider fairness reforms.

Of course, my opinion is that playing sports in college shouldn't be tantamount to a professional responsibility in the first place, and that the ROI on athletic department expenditures should be measured in educational values, not profits. But until we live in that alternative universe, it makes sense to both insist that athlete compensation comply with Title IX and, at the same time, not accept Title IX as an excuse to preserve status quo. 

Temple University Under Investigation for Athletic Department Inequalities

Temple University's athletic program is reportedly under investigation by the Department of Education's Office for Civil Rights for alleged unequal treatment of female athletes with regard to the condition of locker rooms, practice and competitive facilities, housing and dining services, and athletic financial assistance.  It does not appear to have been reported whether disparities against any particular women's teams are alleged, and the identity of the complaint is unknown. 

Last December, Temple's athletic department announced plans to cut seven varsity teams--both men's and women's.  This investigation does not address those cuts.  But it could, I think, reveal information to potentially underscore the charges of Temple's critics that the university is "betting big on football."  If football is benefiting from higher quality facilities, locker rooms and housing and dining serves than any other team, that would come across in an investigation of gender inequality.

Public data about Temple athletics does confirm a disparity in scholarship dollars.  42% of athletic financial aid is distributed to members of women's teams, compared to 58% to men's.  Title IX regulations require scholarship data to flow proportionately to ratio of student-athletes of each sex, and Temple's student-athletes are 48% female.  

Duke adding women's sports

The women's athletic program is having a good run. Women's basketball is currently ranked second in the nation (though that was a disappointing result against UConn the other day).
But the university has decided to put more money and support into women's athletics. The result: the addition of a softball team and scholarships in swimming and diving, fencing, rowing, and track and field. All of these sports will now be offering the maximum number of scholarships.
This move was championed by the Women's Sports Foundation which was strongly encouraging  Duke to come into Title IX compliance.
Inequities in scholarship dollars have been in the Title IX news of late. Colorado State was recently cited for its scholarship disparities. Part of the settlement at Quinnipiac College, approved this past summer, also included stipulations for an increase in scholarships.
Interestingly, the addition of softball in 2018 will bring Duke to 27 varsity sports. That puts them close to the top of the ACC in terms of sports offered. (Numbers vary when considering non-conference sports such as fencing and gymnastics.)
We have seen a lot of schools with such high numbers falter, unable to effectively sustain the quality of the experience across so many teams, especially when the emphasis is on a few revenue-generating sports. But Duke maintains that these revenue dollars are what has enabled them to increase spending on women's sports. Whether that is a sustainable model remains to be seen.

Colorado State University's Athletic Scholarships Found to Violate Title IX

The Department of Education's Office for Civil Rights recently confirmed that it had found Colorado State University in violation of Title IX by offering too few athletic scholarships to its female student-athletes.  The law requires scholarship dollars to be proportionate to the gender ratio of athletes.  48.5% of CSU's student athletes are female, but women receive 42.73% of the university's athletic scholarship dollars. 

The school has reportedly decided to correct this inequity by replacing its women's water polo team with a women's soccer team, because the NCAA allows up to 14 scholarships in women's soccer, while only 8 in women's water polo.  University officials explained that they lacked the financial resources to keep water polo and add another women's sport to which it could allocate more scholarship money.

There's no mention of CSU having considered scaling back scholarship dollars available for men's sports. This would be permissible under NCAA rules, which only cap scholarships and do not require them.   

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.

Merrimack College adding women's sports

We won't lie. We're pretty excited to see another women's hockey team at the DI level. What's also nice is that the team is being added along with five other women's sports at Merrimack College, for a total of 80 new opportunities. The additions are part of the college's resolution agreement with the Department of Education's Office for Civil Rights, which settles a complaint about inequitable athletic opportunities for women.

Prompting this resolution agreement was OCR's finding that Merrimack was in violation of Title IX's requirement to maintain an equitable number of athletic opportunities, as measured by one of three prongs.  First, Merrimack's male students make up 52% of the population, yet receive 64% of athletic opportunities, so it could not claim compliance under the proportionality prong.  Second, prior to OCR's commencing its investigation, the last time Merrimack added a women's sport was in 1998, so it could not demonstrate a"history and continuing practice" of expanding opportunities for the underrepresented sex.  Third, Merrimack could not demonstrate that it was satisfying the interests and abilities of the underrepresented sex, especially in light of women's growing interest in club and intramural sports at Merrimack.  The 80 new opportunities that will result from the new teams, some of which were added while OCR's investigation was pending, will bring Merrimack into compliance under the proportionality prong.  The resolution agreement also details Merrimack's obligation to provide equal treatment in terms of scholarship dollars, facilities, and other resources.  

Specifically Merrimack will add five women's teams to compete in Division II: swimming and diving, water polo, track and field (actually added in 2010-11, during OCR's period of review), crew, and golf. It will also add women's ice hockey, to which Merrimack will commit the resources for a team to be ready to join the premier, Division I Hockey East conference in five years.  Merrimack otherwise competes in Division II, but has a men's hockey team that competes in Hockey East, so this will bring parity within Merrimack's top tier sports.

As fans of another Hockey East team, the Title IX Bloggers say: Welcome Merrimack. Bring it! 

NCAA Scholarship Limits and Title IX

ESPN's Peter Keating had a column last week challenging the oft-heard claim that Title IX is the enemy of non-revenue-producing men's sports such as baseball, which receives far less scholarship dollars than many women's sports.  Keating says that "the real enemy of men's sports isn't Title IX. It's NCAA scholarship limits." The NCAA established scholarship limits in the 1970s as a means of ensuring that schools don't hoard players by providing scholarships to non-players so that they don't play for opposing schools instead.  The limits themselves, however, are not proportionate to squad size or interest, but rather, to favor revenue-generating sports.  The scholarship limit for football, for example, would allow a school to provide a full ride to nearly four entire starting lineups, while in other sports like soccer and water polo, the maximum allowed scholarships wouldn't even stretch to cover one starting line. 

Keating rails against the apparent arbitrariness of scholarship limits on the women's side as well.  Rather than set them proportionate to interest, they seem to be engineered again to protect revenue-generating sports, like basketball.  And, he says, "by handing down artificially high scholarship limits for sports such as ice hockey and rugby, the NCAA is telling schools they can comply with Title IX by herding athletes onto those teams."

Keating proposes that the NCAA do away with (or at least, greatly liberalize) scholarship limits for specific sports, and allow schools to set their own priorities about which sports they want to favor with scholarship dollars to lure recruits.  Deregulating the scholarship limits is an interesting idea, and Keating is persuasive that it could restore flexibility, accountability, and common sense to college athletics.  Some schools might decide that their scholarship money is better spent building a national reputation in a men's sport other than football or basketball, and decide to promote itself as a baseball, lacrosse, or wrestling school instead.  In the aggregate, then, we might see a better balance of men's athletic opportunities distributed among different sports rather than concentrated in football.   And the athletic director who continues to pour scholarship dollars into a mediocre football program to the exclusion of other more competitive teams will have some explaining to do. 

Title IX would still require schools to distribute scholarship dollars proportionate to athletic participation rates of each sex, so that would protect against a school deciding to distribute scholarship funds in a way that favors men's sports over women's (well, theoretically, anyway...such disparities exist now, notwithstanding Title IX).  Eliminating the scholarship limits could also allow schools to better match women's interests in more popular sports, rather than searching for "phantom" hockey and rugby players to fill out their requirements. 

I know that Division I is in a deregulatory mood right now, with working groups seeking to cut the number of regulations that member institutions must follow.  It would be one thing for Division I to tinker with restrictions on minutia, like the number of text messages one can send to a recruit.  It would be interesting to see if more radical proposals like Keatings are also in the works.  

More on the Butler Resolution

I just wanted to write again about OCR's recent resolution with Butler University to draw additional focus on the agreement's provisions regarding scholarships.  As we noted in our earlier post,  women at Butler receive disproportionately fewer athletic opportunities than men, and OCR has required Butler to either justify that under prong three, or else come up with a plan to add more opportunities for women.  At the same time, those women who do enjoy athletic opportunity at Butler receive proportionately more scholarship dollars than men.  This violates the Title IX regulation regarding financial aid, which requires the scholarship dollars to be distributed proportionate to athletes of each sex.  OCR's resolution agreement is asking for remediation on that issue, which means raising (or redistributing) scholarship dollars for men. 

I've heard some concern that this requirement seems to suggest that OCR expects universities who short-change women in the number of athletic opportunities to short-change them with scholarship dollars as well.  Notably,  OCR itself has in the past presented a flexible interpretation of the scholarship requirement that accepts disparities between the percentage of scholarship dollars for each sex and the percentage of athletes of each sex, as long as those disparities are for "nondiscriminatory reasons."  In a 1998 Dear Colleague letter, OCR writes that such "disparities might also be explained, for example, by legitimate efforts undertaken to comply with Title IX requirements, such as participation requirements."  I think this interpretation should provide schools like Butler some flexibility to award female athletes proportionately more scholarship dollars as a way of building women's participation.  It will be interesting to see whether OCR takes this flexibility into account when monitoring Butler's ongoing effort to comply with both the participation and scholarship aspects of Title IX.  

DI Stipends Headed for Override

Christine Brennan doesn't mince words in her column in USA Today. The NCAA's new plan allowing Division I schools to pay full-scholarship athletes a $2000 cost-of-living stipend was "bad from the beginning, a ramshackle idea that saddled already-strapped athletic departments with another financial burden while also asking them to do something that appeared to be against the law." Brennan explains how the stipend proposal was hastily passed after it emerged from a working group lead by none other than disgraced Penn State President Graham Spanier. There is no indication that the NCAA took into consideration the financial implications on athletic departments that are desperate to cut costs in this economy, not add them -- as Brennan points out, only 22 universities out of the 331 in Division I actually have a profitable athletic program. Nor does it appear that the NCAA gave any consideration to the gender equity implications of this proposal; Brennan echoes our concern that limiting the eligibility to for the stipend to full-scholarship athletes creates an inherently inequitable situation because there are twice as many full-scholarship male athletes than female. (Citing AD Tom Osborne's objections along these lines, which we blogged about Tuesday, Brennan says, "When a crusty warrior such as Osborne has to teach the NCAA about the law [Title IX], it's downright embarrassing.")

The good news, Brennan reports, is that this plan appears to be headed for a rare override vote by the Division I membership, as 97 institutions have petitioned the NCAA to reconsider the stipend-authorizing legislation. Come January, the plan could be overhauled or even scrapped.

Like We've Been Saying...

Athletic Director Tom Osborne announced that University of Nebraska-Lincoln had no immediate plans to pay athletes the $2000 cost-of-living student stipend approved by NCAA Division I this fall. Osborne explained that there was no clear way to implement the stipends, which are only authorized for athletes on full scholarship, without violating Title IX, given that there are about half as many full-scholarship female athletes as there are full-scholarship male athletes. We recently posted about the Faculty Athletics Representatives raising a similar concern in a letter to the NCAA.

The NCAA has not provided guidance to member institutions about how to implement the stipends without violating Title IX. Perhaps if more ADs follow Osborne's lead, the NCAA will feel more motivated to address the gender equity implications of this plan.

Division I Cost-of-Living Stipends Draw Objection from Faculty

When we blogged last month about the NCAA's vote to allow Division I institutions to provide athletes who receive full athletic scholarships with $2000 spending money stipends, we speculated that this proposal could exacerbate existing disparities in scholarship funds awarded to men and women, causing and contributing to member institutions' compliance problems under Title IX.

Reading a letter sent today to the NCAA from the Faculty Athletics Representatives, I came to understand why the problem is even worse from a Title IX perspective than I initially understood. The new rule only authorizes the cost-of-living stipends to athletes in so-called "head count" sports who receive full scholarships or the equivalent of a full scholarship when combined with other financial aid. Athletes in "equivalency sports" who receive receive partial athletics scholarships are not eligible for the stipend. While Division I allows up to 98 full scholarships in the men's head-count sports (football and men's baseball), there are only 47 possible female head count student-athletes (basketball, volleyball, gymnastics, and tennis). So there is no way an institution could fully fund its cost-of-living stipends and still comply with Title IX. FAR has requested that the NCAA amend the proposal to allow cost-of-living stipends in equivalency sports as well, which could theoretically allow institutions to spread smaller awards over more athletes in a way that could balance out the total dollars awarded overall.

We'll have to wait and see how NCAA responds to this proposal, and generally to the Title IX objections that have been raised.

Interesting start to stipends

Who was going to pull the trigger first, we wondered, when we heard about the NCAA's approval of living stipends for DI student-athletes.
Erin noted the Title IX implications. But would schools and leagues realize them? Would a school be bullied into providing the stipends by its league? Would scholarship dollars grow further out of whack?
I think I assumed, given the recent upsurge in the pay-for-play debate spurred by Taylor Branch's Atlantic article, that football would take advantage of the new rule first.
But, no, it's basketball. (This makes sense economically given the low numbers of student-athletes. But my cynical self is never surprised when there are economically unsound decisions made in intercollegiate athletics.)
The Horizon League, which includes former Cinderella team Butler University, has voted to provide stipends to its men's and women's b-ball players.
No mention of Title IX considerations. But obviously no issue here given the equitable distribution of the stipends.
Wonder if this is going to be a trend?
I am also curious about whether other leagues will follow. Obviously the payment of living stipends becomes a huge recruiting tool.

NCAA Division I Votes to Increase Athletes Financial Aid

Last week, the NCAA Division I Board of Directors voted to allow conferences to increase athletic scholarships by $2,000 so that athletes can have spending money. With this plan, the NCAA acknowledges that student-athletes have little time to work due to the professional-like demands on their time. To many, athletes' uncompensated labor seems like exploitation, especially when universities reap revenue, and a small handful, actual profit, from that labor. While I am sympathetic to the argument about exploited labor, I'm disappointed that the remedy isn't instead to reduce the professional-like demands on student-athletes time. That, of course, would require putting an end to the commercialization of college sports and returning it to its truly amateur status. This new policy seems to suggest that ship has sailed.

But more on topic for this forum, the new policy also raises some Title IX issues that schools who increase their scholarships will have to address. Title IX regulations require schools to distribute athletic financial aid in the same proportion as the percentage of male and female athletic opportunities that it provides. 34 C.F.R. 106.37(c). For example, at the University of Michigan, 51% of athletic opportunities go to men. Men should receive around 51% of athletic financial aid, but they already receive a higher percentage -- 55% -- so technically they already do not comply. If they added $2000 to every full ride scholarship for the teams that are most likely candidates for this argument about exploited labor, i.e., football and men's basketball, they would be even more out of compliance. Could Michigan afford to provide comparable financial aid to female athletes? I don't know. But I certainly question why, if they can, they haven't done so already. In total, male athletes receive almost $176 million more annually in athletic financial aid than female athletes, suggesting that Michigan is far from the only university already in the hole.

Alternatively, I wonder if these spending money stipends could be considered as something other than financial aid. Unlike existing athletic scholarships and grants-in-aid, this additional $2000 is not a discount from money that would otherwise be paid to the institution; it conceptually different in that it is money that the student can spend on whatever. That being the case, we wouldn't measure compliance by requiring proportional distribution under the financial aid regulation cited above. Instead, I think, schools would have to treat these stipends like any other perq or amenity that comes with playing sports, like medical training, access to facilities and equipment, tutoring, etc., which the Title IX regulations require be equitably distributed among male and female athletes. 34 C.F.R. 106.41(c)(2)-(10).

But whether we conceive of these stipends as financial aid or some other kind of perq or amenity, the bottom line is still the same -- schools can't legally limit these to men's sports, even if those are the ones that produce the most revenue. In world where already many (most?) Division I schools are out of compliance with the requirement to proportionally distribute athletic financial aid, I tend to view this new policy pessimistically, as likely to exacerbate Title IX violations rather than providing benefits to women's sports.

Plan to Increase Scholarships Raises Questions About Title IX

As the NCAA considers a proposal by the Big Ten Conference to allow its member schools to increase athletes' scholarships to include living expenses, I am glad to read (here, in Sports Illustrated) that Title IX considerations are part of the discussion.

Currently, NCAA rules limit scholarships to tuition, fees, room & board, and books. This proposal would allow (but not require) schools to also provide assistance for transportation, food, laundry, entertainment and incidentals. The proposal is aimed to better compensate a student-athlete, who must go into his own pocket for the opportunity to participate in athletics. When you factor in that the university may generate revenue from this student's performance and that the student may be of limited means and lack the opportunity to hold a job due to time constraints of athletics, living expenses seem like a reasonable way to mitigate charges of exploitation. Moreover, given the reality that big-time college athletic programs are not know for high graduation rates, it can hardly be said that these athletes are adequately compensation by receiving a "free" degree. On the other hand, raising student-athlete scholarship amounts to cover living expenses would just contribute to the arms race mentality in college sports. If one school does it, its competitors would have to follow suit or suffer a disadvantage in recruiting. As a result, more collective money would get funneled into the revenue-generating (but not necessarily "profitable") sports of men's football and basketball, to the exclusion of other men's and women's sports.

Title IX would at least come in to play to provide equity to women's sports. Title IX regulations require schools to provide scholarship dollars in proportion to athletic participation. So increasing scholarships for certain men's sports would require a commensurate increase in women's scholarship dollars as well. Universities could comply by either increasing the number of scholarships or their amounts. Schools that already award the maximum number of scholarships in women's sports allowed by the NCAA would probably have to tack on living expenses awards to some female athletes' scholarships, if they wanted to be compliant. That's a big if, though. Women already receive less in athletic scholarships than men -- a $166 million disparity, according to the most recent figures from the Women's Sports Foundation. See also, here. It seems to me equally likely, if not more so, that this proposal would just widen the gap between male and female athletes rather than produce a collateral benefit to women.