The O’Bannon ruling: What does it mean? What doesn’t it mean? Are there Title IX implications? Are EA Sports video games returning? Continue reading Podcast: Saturday Millionaires, Episode 8
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 Are O’Bannon Ruling and Title IX at Odds?
A fascinating new study has come out of University of Minnesota’s Tucker Center for Research on Girls and Women in Sport about the number of women who coach women’s sports.
In 1972, when Title IX was enacted, 90 percent of head coaches for women’s sports were women. Today that number is just 39.6 percent, down from 40.2 percent last year. The likely reason? Coaching gigs for women’s sports have become more lucrative and thus more attractive to male coaches.
The report went further and looked at what happens when there’s a coaching vacancy. A female is only hired to fill a vacancy 25.8 percent of the time. Meanwhile, a male takes a position vacated by a female 22.7 percent of the time, and 51.5 percent of the time a male head coach is replacing a former male head coach.
Some sports were found to be more likely to have female head coaches than others. Field hockey (100%), lacrosse (92.6%) and golf (78.8%), along with emerging sports synchronized swimming (100%) and equestrian (75%), were most often led be female coaches. However, there are five NCAA sports played by women with zero female head coaches: water polo, bowling, skiing, sailing and squash. Other low numbers were found in cross country (16.7%), ice hockey (12.5%), swimming (12.1%), track and field (7.8%) and diving (7.3%).
Cincinnati (80%) was the only school in the study (which comprised ACC, Big XII, Big East, Big Ten, Pac-12 and SEC for the 2012-2013 school year) who had over 70% female head coaches for its women’s sports. Eight schools came in at 55% or over: Texas (63.6%), Miami (60%), Penn State (60%), UCLA (57.1%), Washington State (55.6%), Florida State (55%), Illinois (55%) and LSU (55%).
The worst percentages, at 24% or under, were Alabama (23.1%), Vanderbilt (22.2%), Virginia Tech (20%), Syracuse (18.2%), West Virginia (18.2%), Arkansas (16.7%), Kentucky (16.7%), NC State (16.7%) and Oklahoma State (12.5%).
I spoke with a few athletic directors I know and asked if there are more men applying for these positions than women, because I thought perhaps that was the issue. However, the three I asked all thought the applications come in fairly 50/50.
If you’re interested in more results, there’s a great infographic here.
As a female who has played sports since I was 4-years-old, I have conflicted feelings about this study. On the one hand, I’m worried that talented women aren’t being considered for these positions. I can remember playing and coaching high school softball and being frustrated when male coaches who knew nothing about how to pitch fastpitch softball tried to teach young women how to pitch. Very few men have ever pitched fastpitch softball, period. It’s part of the reason I’ve always given time to coaching since I stopped playing fastpitch softball, because I know there aren’t many female pitching coaches out there.
That being said, I had some fabulous male coaches over the years…and some terrible female coaches. Of course, I also experienced the opposite – terrible male coaches and great female coaches. At the end of the day, I believe you should always hire the best person for the job, without regard to their gender or their ethnicity. If a male coach is truly better suited to coach the sport, then he should get the job and vice versa.
That’s the problem with a study like this: it only takes gender into account and not years of experience or accomplishments. So, while interesting and thought-provoking, I don’t think I’m ready to condemn schools who are hiring male head coaches for women’s sports based on this alone.
(This is the first installment in a series of posts addressing the future of the NCAA. There are so many facets to this it wouldn’t do the topic justice to cover it all in one post. We’ll look at the idea of super-conferences and/or the complete separation of the BCS schools in a future post, as well as the impact of ongoing and possible legal troubles. Today, however, the topic is enforcement.)
The NCAA has problems, particularly when it comes to the enforcement of its rules. The problems are now so deep that John Infante in his Bylaw Blog has floated the idea of a federal government takeover of the enforcement program. Whether it be USC, Ohio State or Miami, recent investigations have been sloppy and endless, with unsatisfying results.
The crux of the issue is the NCAA has an inherent problem with its investigation and enforcement procedures, in that it does not have the same discovery tools at its disposal that an attorney would in preparing for a trial. Specifically, the NCAA does not possess the power to subpoena witnesses to testify, nor can it compel the production of documents. Worse, whatever testimony and documentation it does get doesn’t come under oath (with penalty of perjury if it’s untrue), lessening its value.
It must be unbelievably frustrating for the NCAA’s enforcement staff. Step out of athletics for a moment and imagine a typical legal situation: a guy runs a stop sign and slams into your car. In the legal system you would have the ability to compel witness testimony (under oath) both in depositions and at trial, as well as compel the production of any and all documents relevant to your case (like for example his expired drivers license!). In the NCAA system, however, you can’t compel much of anything. You’re stuck looking for people willing to talk to you and for documents people are willing to share with you. All of a sudden what seemed like an open and shut case (“he ran a stop sign and slammed into my car”) becomes a lot more challenging, and takes a whole lot longer. It was these frustrations that apparently led NCAA investigators to find a (potentially unethical) way around these cumbersome limitations in the Miami case. Perhaps more telling, an NCAA investigator defending the tactics to the Sun Sentinel raises the concern that this wasn’t one individual going rogue but rather manifestations of a much larger cultural issue.
So how can we improve the rules investigation and enforcement process? It’s true that if the federal government took over it would have all the discovery tools of the legal system and we’d avoid some of these issues. What comes with those advantages though are several major disadvantages, two of which stand out. First, as Mr. Infante noted, politics is injected into the process – never a good thing. And don’t think for a second our senators and congressmen are above getting involved in this. We saw several key political figures weigh in on conference realignment, and now the Pennsylvania governor and other legislators are trying to bully the NCAA on the Penn State case. Second, timeliness – you thought the NCAA was slow? How about the federal government. The Office of Civil Rights took 14 years investigating a Title IX complaint into USC’s rowing facilities. 14 years! (For more on this check out the Chronicle of Higher Education and the Title IX Blog.) So there’s definitely a risk that with the federal government you’d be replacing bad with worse.
I do, however, think there is real merit to the idea of outsourcing the enforcement process to an outside group. It may not have subpoena power, but at least it can operate objectively and without the natural conflicts that exist when you’re policing your own membership (I think this is something that should be looked at with individual campuses as well – outsourcing the investigation / enforcement component of the compliance function to avoid conflicts within the department). I’d also be interested in exploring the possibility of placing language in employment contracts for coaches and staff, and financial aid agreements for student-athletes, which imposes a penalty for not cooperating with investigations for some limited amount of time after they leave the institution. This could certainly be financial or for student-athletes it could be something like putting a hold on transcripts. For non-university people of interest, you could impose penalties similar to what the NCAA currently does for “boosters” found to have participated in violations: no involvement with the university’s athletic program (e.g. can’t donate, can’t sponsor) for some period of time. Further steps could include bringing the professional sport leagues into the process so that players and coaches can’t avoid cooperating by going to the next level.
The NCAA’s investigation and enforcement process is certainly broken; it will be interesting to see what, if anything, is done in the coming months and years to fix it. In the meantime, at least the NCAA can say it doesn’t take 14 years to complete an investigation.
Follow Daniel on Twitter: @DanielHare
I’ve previously written about some of the impediments to paying college athletes. One of the roadblocks I mentioned is Title IX.
Most of you know Title IX requires comparable treatment of women when it comes to collegiate athletics, and a great many of you also know about the so-called three-prong test for compliance. What some of you seem to not know, however, is that the three-prong test only covers one of three requirements for Title IX compliance.
The three requirement areas are Participation, Athletic Financial Assistance and Treatment of Athletes.
Let’s start with the three-prong test many of you now, which falls under Participation. This area basically measures the opportunities for female vs. male athletes. Institutions can show they comply with this area by meeting one of the following prongs:
- Proportionality: the institution can show that it offers opportunities for females and males based on their respective enrollment numbers at the university.
- History and Program Expansion: the institution can show that it has continued to offer new and additional opportunities as the needs of the underrepresented sex have risen.
- Full accommodation of interests and abilities: the institution can show that the current offerings fully meet the interest level of the underrepresented sex.
The second requirement for compliance deals with Athletic Financial Assistance. The only express requirement under this section is that scholarships be allocated proportionately in accordance with the number of female vs. male athletes. There are two things to discuss here: (i) cost-of-attendance increases for scholarships, and (ii) other types of payment.
Here’s the bottom line for increasing scholarships to cover cost-of-attendance: if scholarships are increased to cost-of-attendance, as suggested recently by Big Ten Commissioner Jim Delaney and SEC Commissioner Mike Slive, they’ll have to be increased for all student athletes in order to stay in compliance with this requirement.
Ohio State already pays over $15 million back to the university for grants-in-aid. Could they afford a larger number? Sure, although it would mean pulling even more money than they already do from boosters or interest on their endowment, or it could even mean choosing to cut some of the non-revenue sports, most likely men’s sports.
But what about a school like Western Kentucky? They already spend $5.6 million on grants-in-aid, and it takes $8.2 million from the University to balance their budget. How do they afford to pay players?
I use Western Kentucky as an example because I have their budget in front of me, but there are plenty of programs in AQ conferences who rely on assistance. Virginia, for example, relies on over $12 million in student fees to balance their budget. Florida State? $6.9 million. How do those programs afford to pay players? And if they can’t find a way to afford it, how do they recruit against the programs who can?
Another wrinkle with increasing scholarships to cover cost-of-attendance is that it might actually disadvantage the student athlete financially. I recently spoke with a member of a compliance department who explained the situation like this:
If you took the federal guidelines for financial aid, schools are not allowed to award a student beyond their COA.But currently, a full scholarship student-athlete with an COA of say $20,000 and a full athletic grant-in-aid of $17,000 would be able to receive an additional $5500 in Pell Grant (if eligible) bringing his/her total scholarship/financial aid package to $22,500 without being in violation of federal law. Pell Grants are excluded and can allow a student to go over COA. Now if schools offered a 100% COA athletic scholarship, the same student would only be able to receive $20,000. They would have a shortfall of $2,500. In order to maximize this for the “good of the student-athlete” you would have to reduce the 100% scholarship in order to award the student his/her entitled Pell Grant.This works differently with other grants, scholarships or loans. Under the same scenario but with a student who is not Pell Eligible, they would only be able to receive additional financial up to the COA.
For those who aren’t familiar with Pell Grants, they do not have to be repaid by the recipient.
What if players are paid in some other fashion outside of their scholarship? In the eyes of Title IX, it’s all really the same. The Office of Civil Rights has previously offered this interpretation with regards to boosters or other donors who donate funds for specified sports: a school cannot use earmarked funds as an economic justification for discrimination. The school can honor the sport-specific designation for such donated funds, but it still must comply with the proportionality requirement. It cannot dedicate those funds to say football, throwing the proportionality out of whack, and then say they had to do so because the funds were earmarked. The excess funds that cannot be applied simply have to be put aside for the future.
Similarly, those types of funds cannot be used to provide greater benefits to male athletes than female athletes under the next requirement: Other Program Areas.
Other Program Areas basically looks at how athletes of both sexes are treated in terms of facilities, support and benefits. The following eleven criteria are looked at in their totality for each sex:
- Locker Rooms, Practice and Competitive Facilities: this factor is pretty self-explanatory. It looks at the facilities provided for both practice and competition from the locker room to the playing surface to practice facilities.
- Equipment and Supplies: again, pretty self-explanatory. The quality, amount, availability, etc. of equipment and supplies will be reviewed.
- Scheduling of Games and Practice Times: this factor looks at everything from opportunities provided for practice, competition, pre- and post-season to the time of day practices and competitions are held.
- Publicity: this covers everything from the publications produced for each sport to the resources devoted to promoting each sport.
- Coaching: this factor encompasses everything from the number of coaches for each sport to the expertise of those coaches, their compensation, etc. When compensation is considered they look to a number of factors, so don’t get carried away with the fact that football and men’s basketball coaches tend to make more. Not only are there a number of things considered under just this factor, but this factor is only one of eleven that are viewed in their totality.
- Travel and Daily Allowance: this factor is another one that comes into play in the debate over whether athletes should be paid. Not only are the monetary figures considered, but also the length of stay before and after a game or competition.
- Academic Tutoring: this factor considers the availability of tutors for men’s and women’s programs, the qualifications of those tutors, the compensation provided to them, the number of athletes tutored per session, etc.
- Provision of Medical Training Facilities and Services: everyone from medical personnel to athletic trainers are considered under this factor. Also included is weight training and conditioning facilities. Expenses and the qualifications of such personnel are all reviewed.
- Provision of Housing and Dining Facilities and Service: this one is self-explanatory but covers everything from the type of housing provided, the number of people per room, the laundry services available, parking spaces allotted and housekeeping services.
- Recruitment of Student Athletes: under this factor there must be equal opportunities to recruit for coaches of both male and female athletes. Monetary expenditures are reviewed as well as the overall treatment of athletes in the recruiting process.
- Support Services: this factor reviews the administrative-type services provided to each men’s and women’s sport.
Hopefully you can now see why Title IX provides an enormous road block to paying college athletes. Let me remind you that Title IX is a federal law, not an NCAA regulation.