The owners sort of won the 1987 strike. But only temporarily. By 1993 the players had got most of what they wanted through ongoing lawsuits and collective bargaining.
NIL Bills Introduced in Congress and Litigation Updates
- Thread starter Knight Shift
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If title IX's bar on sex discrimination doesn't apply, then the Civil Rights Act's prohibition of sex discrimination in employment would. I'm not as convinced as you that it makes a big difference which applies.
Assuming Title IX continues to apply, we might or might not wind up in court. It would depend on whether anyone is sufficiently outraged by the Department of Education's position (whatever it turns out to be) to challenge it in court.
Note that the proposed House v. NCAA settlement takes no position on whether college athletes should be considered employees. Rather, the athletes would be compensated by their schools for use of their NIL, and so the deal would go forward even if athletes continue not to be classified as employees.
For there to be sex discrimination in this case a specific party would have to prove that they would have gotten a specific job, or specific compensation level, if not for their sex. If there is ever a specific woman that can make the case that she deserved a spot on the football team in fair competition, and didn’t get it due her gender, she’d have a case. But I don’t see how that could result in requirements for gender equity in terms of colleges fielding teams etc ala tile 9.
Maybe. But under the House settlement, athletes would be compensated without being considered employees. So I'm not sure Title IX would stop applying to schools. Nor does Title IX necessarily stop applying even if athletes are considered employees.
I don’t think it applies to students who are employees with regard to their employment. I think that is governed by FLSA.
FLSA has to do with overtime pay, not discrimination. So I'm not sure what it has to do with whether Title IX applies.. The Department of Education believes that Title IX covers the employees of educational institutions (e.g. faculty and staff), so it seems to me that Title IX will continue to apply even when athletes are compensated. So schools will not be able to discontinue women's sports just because athletes are being compensated. The true question is what Title IX means: whether Title IX means that, say, women's basketball players have to get the same compensation as male basketball players.
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Fair labor standards act does cover equal pay and gender discrimination in the workplace. I know the civil rights act covers gender discrimination more broadly including the workplace. I don’t really know how the two might come in to play. I’ll take your word for it that it’s the civil rights act that would be the commonly cited law. Either way, from what I do know, existing gender workplace protections would not be able to accomplish what title nine accomplishes in terms of forcing policies guaranteeing gender parity in college sports.
In the workplace, as opposed to the provision of educational resources to students, Title nine requires equal compensation for substantially similar work. Of course the key is defining substantially similar work. It has long been accepted that the quality of ones work, including number of citations, prizes, and recognition, and external funding secured, are criteria that can be used to define substantially similar. In other words, as long as there are defined standards not based on gender, it’s OK in the context of title 9 to pay more for quality. That seems like it would translate directly into sports. The best players, that bring the revenue, get the big bucks.
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Here is the Department of Education's guidance as to what Title IX means for college athletic programs. If you look at page 6, it seems to say that that the amount of scholarship money allocated to men and women must be in proportion to the percentage of men and women in the school's athletic program:
"For example, if 45% of the participants in the
school’s athletic program are women, then women should receive about 45% of the available athletic
financial assistance. The number of scholarships for men and women does not need to be equal.
Likewise, the dollar value of individual scholarships does not need to be equal for athletes on men’s
and women’s teams."
If that rule applies to direct compensation, then, in this example, apparently 45% of compensation must go to women's programs. But I'm not claiming to be an expert on this.
https://www2.ed.gov/about/offices/list/ocr/docs/ocr-higher-ed-athletic-resource-202302.pdf
Also no expert, but doesn't Title IX only apply to programs receiving federal funding.
Under my great Two Athletics Departments model, the CFB/MBB Athletic Department would be funded solely through conference, game day, advertising revenue.
With no institutional support, no Title IX requirements?
Olympic Athletics Department (gymnastics, golf, baseball, etc.) would be funded by the University and subject to Title IX?
There is another provision or interpretation though that I think DOE uses to require there to be equal opportunity for men and women to participate, so that means equal number of sports.
But the key point - scholarship money is governed completely different than paid labor. Once the schools are paying players based on some economic/labor market dynamic, as opposed to distributing educational resources like scholarships, then those elements of title 9 no longer apply and we are into equal pay provisions of labor law. And within that realm it seems clear to me that the great differences in performance, differences in revenue generated by the best players, would warrant higher pay for the best players...and there would be no legally defensible basis for gender balancing restrictions on pay, or requirements for sharing the funds with other sports or players.
Title 9 applies to INSTITUTIONS receiving federal funds, not just the specific federally funded programs.
If you look again at the guidance, you will see that all that matters is whether the institution receives federal funding -- not whether the particular activity does.
it's the number of participants that matters, not the number of sports. The number of participants has to be proportional to enrollment in the school.
We'll have to see what DOE thinks. I am not convinced that Title IX ceases to apply just because athletes are compensated with money rather than with scholarships. Nor am I sure that under equal employment law, a school could justify paying male athletes differently because male athletes are more valuable. But again we'll have to see -- this may well end up in the courts.
Edit: note that in both pro tennis and pro soccer the trend is toward equal compensation for men and women. So the women's basketball team, for instance, may well find itself getting the same compensation as the men's.
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Almost certain that whatever comes out will be challenged in court.
Under the old (current) regime, scholarships are considered educational resources that are distributed to students and covered by title 9. Scholarships are not compensation for work. and the NLRB has consistently ruled that receiving a scholarship doesn't make a student an employee. Monetary compensation to a student by a higher ed inst for "work" obviously exists now, it IS considered "employment" (scholarships are not employment) and currently governed under laws that cover employer/employee relationships (aka labor law). I don't see how the DOE could reasonably say that for all employer/employee relationships involving a student, title 9 doesn't apply, except now for athletes. I mean, they are humans and they will do what they do, but I don't see a legal or common sense basis for it.
If the DOE were to try to apply title 9, it would result in universities being placed in an impossible legal position: either comply with title 9 and create some sort of gender-based hiring and compensation scheme, or comply with title 7 of the civil rights act (and subsequent equal pay laws) that forbids consideration of sex in terms of compensation and hiring. Hopefully someone at DOE would consider this and they wouldn't move forward. And if they did, it would almost certainly wind up in court with my money being on title 7 being the winner.
The only equal compensation I'm aware of is with the US Women's National Soccer Team. And that was a settlement not any kind of ruling. And it's different because the women were able to argue that they brought in just as much revenue to U.S. Soccer as the men because they were the top global team and a national celebrity and phenomenon and the men sucked, and because the purpose of U.S. Soccer wasn't to make money.
50 state governments are already involved with this. You can’t have schools who are competing against each other playing by different rules.
Throw Title IX out of College Football and any college sport that makes enough revenue
for corporations TO feel will be a revenue maker for them .
Colleges will sell the right to operate revenue producing sports to corporations to run .
Rutgers will become (example) the Rutgers Scarlet Knights of Wall Street.
Syracuse will be the Tidy-Bowl Syracuse Orange.
OSU will be the Ohio State Buckeyes of Planters Peanuts
All of them leased by the companies mentioned and subject to corporate rules set by Congress . College ADs will only be in charge of non revenue sports and they will follow Title IX rules
for corporations TO feel will be a revenue maker for them .
Colleges will sell the right to operate revenue producing sports to corporations to run .
Rutgers will become (example) the Rutgers Scarlet Knights of Wall Street.
Syracuse will be the Tidy-Bowl Syracuse Orange.
OSU will be the Ohio State Buckeyes of Planters Peanuts
All of them leased by the companies mentioned and subject to corporate rules set by Congress . College ADs will only be in charge of non revenue sports and they will follow Title IX rules
Compensating athletes does not necessarily make them employees. Athletes who get NIL payments from companies or boosters are considered independent contractors,n not employees. The same could well be true when it's the schools that are paying for NIL. So I don't think your first paragraph is necessarily correct.
Even if athletes are considered employees, I am not sure that you are correct in your view of the interaction between Title IX and title VII of the Civil Right Act. Both are aimed at the same evil -- discrimination on the basis of sex -- and so there may be an alternative approach that reconciles them.
Recently the NLRB indicated that they may consider scholarship athletes as employees due to the long hours they work as team members. If they were now getting paid normal compensation for it I think it would be hard to consider them contractors. NIL is different as it's essentially money for odd jobs and using one's name and image...not the same as employment.
It was an NLRB regional director who made that determination; it is not at all clear that the NLRB itself will go along. Moreover, the NLRB has no jurisdiction over public employers like Rutgers. Rather, it would be state law that governs. (e.g. Rutgers faculty can organize in unions only because New Jersey law permits them to.)
The distinction between an independent contractor and an employee is a very complex one that rests on much more than the regularity of employment. See, for instance, the link below. To make matters worse, the distinction is not drawn the same way in all contexts. So it is very possible that college athletes would be considered independent contractors even if paid by their school. Finally, as I've said before, I am not as convinced as you are that there is a irreconcilable conflict between Title IX and employment discrimination law.
https://www.irs.gov/businesses/smal...ependent-contractor-self-employed-or-employee
Good discussion. Will be fascinating to see how it plays out.
I quickly perused the linked guidance, and I have some familiarity with the independent contractor vs employee distinction. My feeling is college athletes for more of the employee criteria than independent contractor.
Let me just reiterate that Title IX covers employees just as much as students -- no matter what, the institution can't exclude from participation, deny benefits of, or discriminate against an individual on the basis of sex. So it may well not matter how athletes are classified.
Yes but, again, title 9 in practice has had a clear distinction between how it deals with the provision of educational resources and how it deals with employees. Title 9 in practice relative to sex discrimination in employment seems to basically be the same as civil rights act title 7 - must be meritocracy without consideration of sex. Title 9 in terms of provision of educational resources and opportunities (scholarships etc) is vastly different and focuses on gender parity (I.e. sex must be considered).
The fact that Title IX has been used in a certain way up until now doesn't bar its use differently in a new situation. I agree there might be a problem reconciling Title IX with title VII of the Civil Rights Act, but we'll have to see exactly what DOE does. It might follow the same approach to compensation as to scholarships, or it might decide to do something else. As I remark above, the trend in tennis and soccer is toward treating mens's and women's teams the same, and so I suspect a way will be found to do that here for sports for which there are both men's and women's teams.
I don't think the trend toward treating men's and women's teams the same will impact college sports much. First, I'll note that tennis and soccer are the only two sports where the revenue generated by the women rivals that of the men. In other sports the gap is far to big to reconcile. And looking at the details, there is no parity of compensation in soccer broadly (there is in tennis because the women bring in similar revenue). The only parity in soccer is the compensation paid to the US men's and women's national teams, because US Soccer decided to do that. Given the wild popularity of the women's team, and given that the goal of US Soccer isn't to generate revenue, and given US politics, that made sense to US Soccer to do. However, I don't think this has any bearing on what will happen to college sports or is indicative of what is happening in pro soccer or pro sports generally.
For instance, in 2018, the prize pool for the Men’s World Cup was $400 million, whereas for the 2019 Women’s World Cup, it was $30 million. That won't change because it is indicative of how much actual money each tournament generates. There is no conceivable way that, just to be nice, all the men will agree to donate half of their earnings to the women's teams. The same is true for club salaries of professional players. In edit: the prize money for women in '23 was 150M and for men in 26 is projected to be 900M. So the gap is closing, but still overall pegged to popularity and revenue generation.
In addition, for sports where there aren't women's and men's teams, if DOE goes the enforcing parity road, would they have separate rules? How would field hockey compensation be handled relative to football? The women's basketball team gets rich, because the men's team is forced to split evenly with the women, but field hockey get's nothing because there is no parallel? It doesn't make sense.
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I understand your arguments for not paying men and women the same for playing the same sport, but I'm not at all certain they will prevail in an era in which there is so much stress on equality of the sexes. But we'll see. You have persuaded me that the salary pool should not be divided according to the proportion of men and women, but who knows what DOE and the courts will think.
I'm really enjoying the back and forth between you two. Fantastic discussion, and I have learned a lot. Thank you.
Thoughts @retired711 and @Eagleton96 - I'm not following the particulars on the litigations, but this is the 3rd Circuit, which includes NJ (I know retired711 knows that-for the benefit of others):
Good info. The law is whatever a judge says it is. I think this is good news.
Sometimes. Judges make mistakes in application of law to facts all the time. This will be interesting as there are cases in other Federal Circuits (IIRC, 5th Circuit has a case, and there are others). Don't see this getting resolved until there is federal legislation or a Supreme Court decision. Even then, sometimes the majority gets it wrong. In my area of law, the Federal Circuit has (more like had) a very wonderful Judge who was run off the court at 96 years old. Saw her speak just before the pandemic for over an hour, she as sharp as a tack. Her dissents were works of art and beautiful legal prose, and often in many people's views, the "better" position versus the majority.
Sorry for the ramble. It will be a long time before all of this is settled.
What the hell does this mean? "...and Litibuation Updates Updates"
No. That’s not what title 9 requires. A woman would not have to prove she deserved a spot. It requires balance across all sports in terms of equal # of scholarships, or in the case of employees, equal # of resources in the aggregate.
individual employees are not entitled to equal treatment. The WBB coach doesn’t need to be paid the same as the MBB coach, for example. Female athletes need only comparable opportunity, again, collectively.
Multiple guess:
a) It was a political statement
b) A new form of birth control
c) I picked the wrong day to stop sniffing glue
d) all of the above
Damn, that was awful, thanks for the catch! Hope you are enjoying your summer.
I agree. If I'm being literal, the law is whatever the last judge (or panel or judges) in the string says it is.
Just so everyone knows: the issue here is not whether players can unionize. That's governed by the National Labor Relations Act, which is administered by the National Labor Relations Board. The issue here is whether players are covered by the Fair Labor Standards Act, which establishes minimum wage and overtime pay requirements for employees. The court did not decide whether players are covered. What it did decide is that it is possible that players are covered depending on the facts, and it sent the case back to the district court to determine the facts. In other words, this is not a case in which the court is applying the law to the facts; instead, it's telling the district court to figure out the facts and then apply the law to the facts: decide whether the facts dictate covering players as employees. It https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa#1
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If they are employees then I don't see how FLSA can't apply. Nothing surprises me though. But I see this as a positive development.
I did not follow your discussion closely above, and I am naive to these areas of law. If the FLSA apply, would that help the players' argument (if that is what they are arguing for) that they should be able to unionize?
I'm hardly an expert on this, but the National Labor Relations Act (which governs unionization) and the Fair Labor Standards Act do not define "employee" the same. The NLRA does not cover government workers -- the FLSA does. There may be other differences. Being classified as an employee under one law helps a claim of being an employee under the other, but I don't think it's a guarantee.
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