Are O’Bannon Ruling and Title IX at Odds?

Last Updated on August 9, 2014

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. Here’s an explanation of the three-prong test you’re probably the most familiar with:

Most fans know Title IX requires comparable treatment of women when it comes to collegiate athletics, and a great many also know about the so-called three-prong test for compliance, which looks at proportionality, history of the program or full accommodation of interests. What many don’t 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.

First, there’s the three-prong test many of you know, 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.

Fans believe this three-prong test that is part of the first requirement of Title IX is the only test for compliance, because it is the portion of the test most often focused on by the media. Generally when reports surface that a school is in danger of not complying with Title IX it is because they’re being accused of not meeting one of these three prongs.

If the three-prong test of the first requirement was all there was to Title IX, it’s easy to see why fans don’t understand how paying only football players would create an issue. The problems become more apparent when you look at the second and third requirements of Title IX.

The second requirement for compliance under Title IX, “Athletic Financial Assistance” is where the O’Bannon ruling might make things tricky. From Saturday Millionaires:

The second requirement for compliance is entitled 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.

Here’s how the math is calculated under this section. The total amount of aid awarded to male athletes is divided by the total amount of aid awarded to all athletes. The same is then done for female athletes.

For example, in 2010-2011 Virginia Tech had total aid of $9,027,685. Of that, $5,591,672 was awarded to male athletes and $3,436,013 to female athletes. The percentages come out at 61.94 percent and 38.06 percent.

Now you look at the unduplicated count of male athletes versus the total number of unduplicated athletes and then do the same for the female athletes. For example, if an athlete competes on both the football and baseball teams he only counts once for this calculation.

At Virginia Tech in 2010-2011, the unduplicated count of male athletes was 358 and female was 204, registering at 63.07 percent and 36.30 percent, respectively.

The test for Athletic Financial Assistance is whether financial assistance is provided in a substantially proportionate manner. There is no set percentage deemed appropriate, instead it is reviewed on a case-by-case basis.

In our example at Virginia Tech, male athletes account for 63.70 percent of all athletes and receive 61.94 percent of all aid. Female athletes account for 36.30 percent of all athletes and receive 38.06 percent of all aid. There would seem to be an argument to be made there that it’s substantially proportionate.

Now that you know what the math looks like, here are two different discussions to be had based on what the proposed pay-for-play plan looks like: (i) cost-of-attendance increases for scholarships, and (ii) other types of payment.

During the summer of 2011, Big Ten Commissioner Jim Delaney and SEC Commissioner Mike Slive, commissioners of arguably the two most powerful conferences in college football, made statements supporting the increase of scholarships to cover cost of attendance. Currently, athletes on full scholarship receive free tuition, room and board. Cost of attendance is often described as the amount necessary to cover all of a full-time student’s reasonable expenses for the year. It would cover things like gas or other transportation costs and laundry money.

Each school individually determines its cost of attendance. Some use figures from the federal government and some use student surveys to determine the amount. There’s also variance for expenses like health insurance or a computer, if the school requires students to have a computer. The number is much higher at a school located in an expensive city like Los Angeles than one in Bowling Green, Kentucky.

The potential for artificially inflating the figure aside, cost of attendance increases would be considered a part of the athlete’s scholarship. Largely, the proposals for cost of attendance increases have been advocated for all student athletes, not just those in revenue sports. If the increase was the same for every scholarship athlete in proportion to their scholarship, the percentages under the Athletic Financial Assistance section would remain unchanged.

If, however, a school decided (and the NCAA allowed it) to award the extra cost of attendance money only to football and basketball players, schools might have problems with Title IX compliance. Let’s take a look at what happens to Virginia Tech’s numbers if only football and men’s basketball players received the increase.

According to a study by USA Today, Virginia Tech’s added costs to go to cost of attendance would be $3,891 per student athlete. NCAA limits football scholarships to 85 student athletes and men’s basketball to 13. If those 98 scholarship athletes received the additional cost of attendance figure of $3,891 each, it would add $381,318 to the male financial aid used in the calculations for compliance detailed earlier in the chapter.

Using those figures, male financial aid would represent 63.48 percent of all aid and female financial aid would amount to 36.52 percent. Based on Virginia Tech’s unduplicated participation numbers, males represent 63.70 percent and females 36.30 percent. On the surface, it would seem Virginia Tech would remain in compliance.

However, many Title IX scholars believe courts would step in, even if the mathematics work out like the Virginia Tech example. Much of Title IX has been shaped by courts’ interpretation of the law, not simply the black and white letter of the law. Add that to the vague nature of the “substantially proportionate” language, and courts have a lot of leeway in these cases. Previous courts have emphasized that the spirit of the law stands for male and female athletes being awarded the same opportunities. Few believe compensating only those athletes in revenue sports would pass muster in a court of law, and as you’ll see later in the chapter, Title IX lawsuits are one of the easiest suits to bring before a judge.

Would a cost-of-attendance stipend for football players and men’s basketball players under the O’Bannon ruling be considered part of their scholarship and therefore part of the Title IX math? That’s a big question mark right now.

And, last but not least, the laundry list contained in the third section of Title IX, as I detailed in Saturday Millionaires, raises issues with regards to publicity and recruitment:

[F]unds of any type cannot be used to provide greater benefits to male athletes than female athletes under the third and final 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 is 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, 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. [emphasis added]
• Coaching: this covers the number of coaches for each sport, 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: not only are the monetary figures considered, but also the length of stay before and after a game or competition. One area becoming more highly scrutinized is whether opportunities to stay in a hotel before a home contest are provided equitably.
• Academic Tutoring: 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 encompassed. 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: 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. [emphasis added]
• Support Services: reviews the administrative-type services provided to each men’s and women’s sport.

When reviewing these factors, a disparity in the money spent on female versus male athletes can trigger an investigation into the entire athletic department for Title IX compliance. Thus, there’s no room to increase expenditures on travel or daily allowance, equipment and supplies or anywhere else in order to increase the benefits athletes are receiving unless you do it on both sides of the gender aisle.

The bottom line is that Title IX doesn’t distinguish between sports based on profit. Even though football and men’s basketball make the money it can’t all be spent on them per federal law.

I have more questions than answers, but this gives you an idea of the issues the NCAA and its member institutions will have to tackle as they navigate implementing Judge Wilken’s ruling in the coming months and years.