How Title IX Relates to Paying Players

Last Updated on June 5, 2014

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.

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  • schuhbdoo
    June 9, 2011

    The paying of athletes above their free education they receive will never work. The cost of a great education is plenty of payment for a amateur athlete. Keep in mind most college athletes never turn pro in anything but life. The degrees from Northwestern, PSU, USC and Stanford, just to name a few, all carry great weight when graduates go out and get jobs/careers. Saying that education isn’t a significant monetary gift for college athletes is just dumb.

  • Nathaniel Kennedy
    June 17, 2011

    Great post on Title IX. Thank you SportsBizMiss! I cannot wait to read your book on the business of College Football!

    Question related to your Title IX post: Could a professional football league be created to approach the top football programs with this offer: This college football league will pay for full tuition for all of the student players and lease the fields, facilities, game day costs etc? This way no federal dollars would ever be spent on football. The newly created professional football league would basically pay to license the team names from the school as Ohio State, USC, Stanford, Penn State, Florida, Alabama, etc, etc. This would be a smaller league of only the most popular programs for the economics to work.

    What I’m wondering is could a professional college football league pay for everything under the three categories you mentioned: Participation, Athletic Financial Assistance and Treatment of Athletes for the football student athletes? This way colleges get out of the business of college football from an operations point of view and become the licensed brand holders only. This way the schools, players and coaches/staff can all share in the revenue.

    • Kristi Dosh
      June 17, 2011

      That’s a really interesting scenario. It might work if all the league was doing was licensing logos from schools. It couldn’t really be affiliated with the school at all in order to avoid Title IX. I’m guessing ther would still be a problem because it would basically be created to circumvent Title IX. I’d have to do some more research, but I don’t think it’s passing the sniff test.

      I think the only way you can get around it is to create a league that is in no way associated with schools.

  • Alvin Stone
    June 18, 2011

    It seems professional baseball has found a way to exist without violation of Title IX by allowing high school athletes the ability to be drafted OR receive scholarships to play in college and then enter the draft. The top baseball playing athletes will forego the college route and take the professional contract, and I’ve seen some athletes getting drafted by baseball while actually playing college football. Football and basketball can do the same thing. The schools are deeply imbedded and dependant upon revenues derived strictly from football and basketball at the major universities. If these sports programs (football and basketball) did not exist on campus Title IX could be more equal for male and female student-athletes because they would then be funded the same way (taxpayers, tuition etc but not by football or basketball revenue).

    Today, the mass exploitation of football players (in particular) and basketball players should be considered against the law much like sweatshops would be in America. To say that the school is paying these athletes through tuition and books is not credible from an accounting standpoint. Scholarshipped athletes in football and basketball combined number around 100 at any college or university. The incremental “cost’ to have 100 additional students on campus under scholarship is virtually zero. What’s more, let’s assume that less than 50% of all football and basketball athletes (I have not confirmed that percentage factually) graduate and leave school without a degree. What then was that education worth again? Place blame on what or whomever you want, the fact is most athletes leave college without the very vaulable college degree. Some will say these 18 to 22 year olds may squander the money they are paid but at least they would be exploited on a lesser basis by the universities. They should (and will) no longer be considered amateur athletes and rightfully will be considered professionals when they are paid as such. This status can happen through the current University system (Title IX and Federal laws will be changed) or through a new AAA football and Basketball league paid primarily through professional teams. In either case, the University and laws governing Title IX will be directly affected.

    If revenue from football and basketball were not a part of most colleges and universities fees for tuition and other expenses would have to compensate heavily or Title IX would be unnecessary as the schools would not be able to afford any athletic programs in their present form.

    The “baseball model” will be fought against by those that are taking advantage of this “free labor” in football and basketball. College baseball (and other college sports) exist in large part because of the revenue produced by football and basketball. Baseball players drafted out of high school often receive an educational compensation guarantee as an option if they choose to attend college, the team compensates them and they can pay for their education at full cost. This compensation is in addition to their contract for playing the game of baseball. So that vaulable college education can still be obtained by those who are so inclined. 50% of athletes are NOT inclined or prepared for college. The choice should be theirs alone.