One of the most complicated parts of the O’Bannon ruling against the NCAA stems from the fact that Judge Wilken did not have to take Title IX into account when she ordered stipends and trust funds for football and men’s basketball student athletes.
I am not a Title IX scholar or expert, but I did interview about a half dozen of them when I was writing Saturday Millionaires for the chapter on pay-for-play. One big misconception I’m seeing from fans on Twitter this morning is that Title IX only covers equal opportunities for female student athletes. That is not the entire story. Most of you are familiar with what we call the “three-prong test” for Title IX, which does focus on opportunities. However, the three-prong test is just one of three parts of a full Title IX analysis.
The issues I see with the O’Bannon ruling and Title IX come in the second part about athletically-related financial aid and in the third part (the laundry list) where publicity and recruitment are factors.
Would a court consider the new stipend and trust fund for football and men’s basketball players “athletically-related financial aid”? Does it matter that football and men’s basketball players are publicized in more high-profile ways than female student athletes? What about the fact that the new trust fund will be associated with recruitment? Those are questions that will have to be answered.
I want to give you some excerpts from Saturday Millionaires where I explained the three parts of Title IX analysis to highlight where the O’Bannon ruling might be at odds with Title IX. Continue reading