NIL Bills Introduced in Congress and Litigation Updates
- Thread starter Knight Shift
- Start date
This will also be an interesting area for the Supreme Court, where the Justices may all mostly agree on the outcome. Patent cases are usually like that, with Justice Thomas and Justice Sotamayour being the two patent-centric Justices.
No, it means that TitleIX would no longer apply and men and women could be compensated differently.
I don't think that's clear. I could well be wrong, but I don't think there's any case law on the relationship between Title IX and the FLSA or the NLRA and I don' think it's an open-and-shut question. We'll have to see what the courts decide and whether Congress (the ultimate decision-maker because it can alter the terms of any of these statutes) decides to intervene.
We would probably need a conflict between the circuits for the Supreme Court to get involved, but one never knows. Another possible scenario is for the NLRB to lose in court and for the Solicitor-General to think the case is important enough to appeal to the Supreme Court -- the Solictor-General's petitions for certiorari are more likely to be granted than anyone else's.
Last edited:
It’s certainly not clear. It’s just the outcome I think makes sense and also direction I think it’s heading.
I know Title IX applies to faculty and staff, not just students. But I don't pretend to know how it applies. Perhaps the following quote from the Justice Department helps:
"
In resolving employment actions, the courts have generally held that the substantive standards and policies developed under Title VII to define discriminatory employment conduct apply with equal force to employment actions brought under Title IX.
. . .[W]hen a plaintiff complains of discrimination with regard to conditions of employment in an institution of higher learning, the method of evaluating Title IX gender discrimination claims is the same as those in a Title VII case.
The use of case law and policies developed under Title VII is similarly appropriate in the administrative setting. In conducting investigations alleging employment discrimination, agencies shall consider Title VII case law and EEOC Guidelines, 29 CFR parts 1604-1607, unless inapplicable, in determining whether a recipient of Federal financial assistance has engaged in an unlawful employment practice. [I've omitted the footnotes.]
https://www.justice.gov/crt/title-ix#2. Relationship to Title VII
Yes helpful and consistent with our earlier discussion where I noted that this is my understanding: Enforcement of Title 9 when it comes to provision of educational resources and opportunities seeks gender parity (gender must be considered and equality is the goal). Enforcement of Title 9 in the workplace is consistent with Title 7 that seeks to protect against gender discrimination (gender may not be considered in hiring/promotion/firing decisions).
So are you saying that paying athletes makes no difference to the standard for judging whether gender discrimination exists? After all, the Title IX standard seems identical to the Title VII standard. Or do you think that Title IX means something different in the employment context than Title IX means when employees are not involved?
Last edited:
Not quite sure what you’re asking, But I definitely think that title 9 is interpreted and enforced differently in the employment context than it is in the context of dealing with students and institutions of higher education making decisions about allocation of resources. In the employment context my understanding is there’s significant case law, as well as somewhat recent legislation, that results in enforcement of title 9 in the employment context being implemented and enforced the same as title 7. In the educational resources and policy context, title nine is what most people are familiar with, parity of scholarships for men and women.
How I think this plays out is that roster spots will be considered employment opportunities governed by a labor market or collective bargaining agreement.
There's no doubt from what I quoted above that Title IX is enforced in employment cases the same as in Title VII. The question then becomes whether there is a difference between how Title IX applies to employment and the way it applies otherwise. If it does, then making athletes employees will change how Title IX applies to athletics.
I'm not sure I agree with the distinction you're drawing here. Title IX outlaws discrimination on the basis of sex in educational programs. Considering gender is the way of achieving that goal by undoing existing discrimination: it is not the goal itself. Title VII is the same: it outlaws discrimination in employment; gender may be considered in designing ways to undo gender discrimination, i.e. narrowly-tailored affirmative action programs.
Yes, the fight is about how to allocate the settlement between the power conferences and everyone else. But there is going to be a settlement of about $2.8 billion because the schools can't take the risk of being held liable for treble damages in a situation in which they've lost the key prior case.
I am not convinced that Title IX means one thing in the employment context and another otherwise -- I don't see anything in Title IX's language that draws the distinction. In addition, as I posted earlier, I am also not convinced that the distinction you see between Title IX and Title VII is real.
Edit: Both Title IX and Title VII ban discrimination on the basis of gender. The question is, "what does it mean to discriminate on the basis of gender?"
Last edited:
Title IX requires active consideration of gender to achieve equity in educational settings. The focus is on providing equal opportunities and resources, which often necessitates adjustments and affirmative actions to ensure that female students are not disadvantaged. Treatment of employees is not the focus, but it’s explicitly covered.
I’m not sure what you mean by “what does it mean?“. In terms of how 9 has been implemented, it’s very clear that it is implemented in two very different ways in the two contexts. In the labor context, while the enforcement mechanisms and penalties, etc, are different between the two titles, the conceptual framework that they both use is that gender may not be a factor in hiring, firing, and other terms of employment
I haven’t followed all the details of this thread closely, but isn’t that last thing you said a huge differentiator?
In education, the definition of discrimination has been defined by the courts to mean anything that prevents equal opportunity. That’s pretty cut and dry and the reason why a minimum number of collegiate sports teams need to be maintained, etc.
In employment, the definition is much different because there are a vast array of variables that go into determining salary / pay for any particular job. A female CFO of a small start up company that has yet to show profits, can’t expect their salary to be identical to a male CFO of an established Fortune 500 company even if they are doing the exact same complexity of work. The Fortune 500 company has more money to pay in salaries because that entity generates more revenue. Wouldn’t this be the same thing?
And there's the rub. Once college athletes are defined as paid employees, are they inside the realm of employment or education, or are they a hybrid (not a car!!! 😃). Perhaps for college athletes receiving monetary compensation beyond scholarship and room/board (which are education-related), when they are receiving additional monetary compensation, they are considered employees. It's complicated.
I'm not sure whether we agree or not. Title IX forbids discrimination on the basis of sex in education programs. Title VI forbids discrimination on the basis of sex in employment. Title IX applies to employment in exactly the same way Title VII does -- see my quote above from the Justice Department's manual.
What you say about Title IX in your first paragraph is also true of Title VII; affirmative action may be required to end sex discrimination. Let me quote from the website of Akin Gump, a prominent Washington, D.C. law firm that represents lots of employers:
"In 1987, the Supreme Court extended lawful affirmative action under Title VII to sex-based preferences and established specific criteria that must be satisfied for affirmative action in employment to be considered lawful. Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616 (1987). First, an affirmative action plan must be justified by a “manifest imbalance” reflecting an underrepresentation of minorities or women in “traditionally segregated job categories.” Second, any race-based or gender-based preference in the plan must be properly tailored to cure the disparity without unnecessarily trammeling the interests of non-minorities or males. Id. at 631-32, 637-38. The Court explained that these limitations on affirmative action would “provide assurance both that sex or race will be taken into account in a manner consistent with Title VII’s purpose of eliminating the effects of employment discrimination, and that the interests of those employees not benefiting from the plan will not be unduly infringed.” Id."
The recent Supreme Court case striking down affirmative action in college admissions probably does not affect this. What the court said there is that diversity is not a permissible goal for an affirmative action program. But the goal of affirmative action here is not to achieve diversity, but rather to remedy past discrimination.
In your example, the differentiation isn't on the basis of sex. The pay difference between the man and the woman is not because one is a man and the other is a woman; a man running the small company wouldn't be entitled to the salary of a woman running the large company. See the EEOC's definition of sex discrimination in employment:
https://www.eeoc.gov/youth/sex-discrimination
That's why the key question is the one I identified above: what is the meaning of "discrimination on the basis of sex" in the context of college athletes? It's not as easy as in your example. In your example, one company isn't smaller than the other because one is run by a woman and the other by a man. If men's basketball is more profitable than women's basketball, is that because of discrimination against women? I'm not sure there's an obvious legal answer to that. If an employer is paying a woman differently than a man, that's permissible only if there's a reason for the pay differentiation other than their sex. The fact that people prefer to watch men's basketball over women's basketball might not be enough. If patients prefer female nurses to male nurses, that's not a permissible reason to pay female nurses more than male nurses.
Last edited:
BTW, so far as I can see, the requirements of Title IX remain the same in a world where college athletes are compensated. This link isn't "official," but it's relatively understandable in laying out the requirements of Title IX:
https://www.nfhs.org/articles/title-ix-compliance-part-i-the-three-prong-test/
https://www.nfhs.org/articles/title-ix-compliance-part-i-the-three-prong-test/
I’m confused by your example. Certainly in private practice a nurse practitioner is paid by the business he or she commands so if one nurse is bringing in more customers than another because of preferred gender there’s no law against that - right? People make an appointment with whoever they want and don’t have to justify their reasons. In terms of salary based hospital nurses, those are assigned and not left directly to the choice of the patient so it’s different in that regard but patients still submit feedback forms and again - if one nurse ultimately gets better rankings than another that feeds into promotion and incentive decisions there’s no way to know if gender is behind it.
I’m also confused about why there would be any legal basis to classify the reality that men’s sports generate more revenue than women’s sports as gender discrimination. Who would the discrimination be on the part of in that example - the customers for preferring to watch the men over the women? Why would the employees be accountable for that? In pro sports and virtually every service providing profession on the planet - customers have the freedom to pick who they want and their is no risk or potential for penalty to the revenue potential of the party selected because of the reasoning behind their selection. I’m not understanding this at all.
Your questions are good ones. I don't think anyone knows the answers. But the bottom line is that if you are paying a man differently from a woman, there has to be a reason other than that one is a man and the other is a woman.
I don't mean this to be inflammatory, but suppose we're in the Deep South in 1965 and a business has mostly white customers. Those customers, let's say, prefer to deal with the business's white employees rather its black ones without any reason other than racial prejudice. I doubt that a court would say that allows the white employees to be paid more than black employees. There has to be a reason other than race to pay differently. Is this the same thing? I don't think so because I don't think that preferring men's basketball (say) is based on prejudice against women -- many people think that men's basketball is a more enjoyable product to watch because, by and large, male players are more skilled. But I don't think anyone knows the answers.
I think the main issue (and @Eagleton96 has stressed this) is that the Department of Education regards Title IX as requiring that "Female and male student-athletes must receive athletics scholarship dollars proportional to their participation." That language does not extend to paid compensation. DOE might change its reading of Title IX as saying it does -- and then the question will be whether a court will accept that. Title VII's ban on employment discrimination in hiring doesn't require that (an employer need not pay 40% of its salary pool to women if women are 40% of the work force) , and Title IX's ban on employment discrimination is regarded as the same as Title VII's, so I wouldn't bet money on Title IX being read as requiring that. But the situation in which men and women are playing the same sport (although on separate teams) might be treated differently, although my guess is that it would not.
An inconvenient factor here is that viewership for male college athletics is disproportionately higher compared to female athletics. Since NIL is about about distribution of money an that distribution purportedly being placed in the hands of the universities instead of collectives, shouldn't advertising revenue tied to ratings factor in, and a disproportionate amount of NIL money should go to football and men's basketball players?
I don't know. After all, men's sports result in much more revenue than women's sports, but the rule has been that financial aid has to be allocated according to participation percentage rather than letting it be allocated according to revenue percentage. (If 40% of the participants are women, they have to get 40% of the athletics financial aid even if men's sports earn 80% of the revenue.) So i think the key will be whether compensation must be treated like financial aid. My best guess is that the answer is "no," but we'll have to see.
I don't know either, and I am simply throwing out language to consider rationales that may or may not be applied. You said regarding Title IX:
""Female and male student-athletes must receive athletics scholarship dollars proportional to their participation." That language does not extend to paid compensation."
A case is to be made (which is subject to debate) that well then, we are considering compensation and under your thought compensation "might" be treated differently, one could argue - we pay the athletes/programs more money that are bringing in more money. Similar to sales commissions paid to salespeople, or research money allocated to professors doing research.
Again, just throwing points out. I don't have a strong feeling on any one thing, but I tend to think that the athletes bringing more money into the athletics program maybe should get more money.
Boy, that would really be something if some federal bureaucrats forced affirmative action into professional sports. It would almost be like forcing affirmative action into the movie star business or the highest levels of fine art. Thankfully nothing I’ve seen so far indicates that’s the direction it’s heading.
This is basically right. There’s well-defined case law and guidelines for when title 7 and the Fair labor standards act come in. You can pay men and women with roughly the same title and job description more or less depending on lots of other factors. For example, two full professors who have been serving the same length of time: one has one major international prizes in their field and regularly publishes in all the major journals. The other has a less distinguished record. If you if you have a significant pay gap and it’s not based on anything tangible, you could certainly be challenged and lose in court. But as a general rule, it’s hard to prove that two jobs are equivalent and it’s only gender that is the reason for any pay disparity.
Translate to basketball, and I think you’d have to allow women to try out for the men’s teams. And if they can make the team then they deserve the same compensation as the men. But the reality is, the best players in the WNBA might not even make the roster of the worst teams in D1 college. So there is ample justification for a pay gap.
Last edited:
We’re not talking about NIL here. As NIL is currently constituted it doesn’t meet the definition of employment. And the collectives aren’t controlled by the universities, and if it was ever ruled that the universities did control them, they would take steps to make sure that’s no longer the case as soon as some court case or federal guideline gives them guidance as to where the line is.
We’re talking about universities and athletic departments having employees and making sure they treat those employees fairly. So we are really only talking about the salaries that the athletes might get from the universities and compensation directly tied to their status as an employee.
Perhaps I could have articulated my points better, and I agree with you. Ultimately, if things unfold as many seem to think that they might:
(1) Donations for NIL money may shift to universities;
(2) Outside of Olivia Dunne type NIL deals, which are true NIL deals, the NIL money will basically be employee compensation from the University to athletes, won't it?
(3) An additional factor is that the blue blood schools will probably still have collectives that may manage additional "NIL" money to lure top recruits and transfers. But back to the money universities will be distributing to athletics (maybe there will be two separate pots (1) money from media rights (2) money from NIL "donations")
Maybe I muddled things even more. My head hurts, and I'm distracted by this evening's events.
If the universities themselves controlled the distribution of NL money, then the question of employment would come in to play. If they distributing that money to employees as part of their compensation for their employment, then it’s Title 7 type rules and gender may not be considered. The best hoops players play and get the rewards, regardless of gender. So any woman that can crack a top men’s roster will deserve her millions.
If those NIL funds are distributed by the university to people still considered students, and their status as athletes does not make them employees of the university, then it’s possible the old-school title nine could come to play and they could try to force some kind of proactive gender equity.
My uninformed guess is that #3 will not happen -- that when the schools start paying players, then boosters aka collectives will be excluded as they were in the pre-NIL days. The donations presently going to collectives will go to universities just as you suggest in #1. In that case, the only NIL deals will be #2 type deals --true NIL plus compensation from the schools.
If the schools' compensation to athletes is considered NIL, then the problem will be to determine how much NIL each athlete gets. As you've noted, that's already a problem with the collectives -- that kids fresh out of high school who haven't proven themselves are getting NIL money.
This is just silly. Gender discrimination is not the reason. The reason is no different from the reason a star football player would make more than a star volleyball or soccer player. It’s entirely about economics. Having a winning men’s football or basketball team results in more revenues to the school than having a winning program in any other men’s sport or any women’s sport. That is fact based on historical data so it logically follows that a reasonable business decision would be to allocate more funding to secure better players for the sports with potential to net you the most profits.
I’m still missing how this is legally murky. Where is the discrimination? Eagle made a fair point about women being allowed to “try out” for mens teams if they want - but I’m not sure that technically isn’t allowed today. My guess is if a serious female player really did want to try out for a men’s team most schools would entertain the idea. I don’t see an issue with that either. Very few females are good enough to compete on men’s teams though and the ones that would be in basketball probably have more earning potential as the stand out stars on the women’s side than blending in a middling players on a men’s team.
Last edited:
You may well be right, but it may not be that straightforward. It seems to me that all of the arguments you and @Knight Shift are making for a non-proportional compensation pool could equally be made for a non-proportional athletic scholarship pool. But we know that the Department of Education says that the athletic scholarship pool must be apportioned proportionally between men and women. What is needed is an argument that distinguishes between athletic scholarships and compensation: an argument that says, "yes, we know that the athletic scholarship pool must be allocated proportionally, but compensation is different because . . . " I'm not sure that argument has been formulated yet.
There is another possibility: for the Department of Education to say, "we were wrong in insisting that the financial aid pool be apportioned proportionally, and so there's no problem with compensation not being proportional." But any lawyer will tell you that it is easier to get a decision-maker to distinguish an earlier case than to overrule it.
We are fully going in circles now. The distinction is that in one case we are talking about educational institutions distributing resources and in other case we are talking about gender based employment discrimination. And there’s already a very clear track record of how the Department of Education enforces title 9 in the context of employees. Gender may not be considered.
Legally, and in the court of public opinion, and in Congress, the Department of Education would have a very hard time saying participants in the labor market who happen to be athletes must be treated differently than participants in the labor market who are professors or musicians or architects.
You brought up a affirmative action a couple of times. Given the fact that there are such a small number of jobs in professional athletics, it also would be ludicrous from a public policy perspective, which the courts and agencies have to consider, to create affirmative action programs to promote professional athletics of any stripe. It would be akin to creating an affirmative action program for being a film actor or rock ‘n’ roll star.
And finally I’ll note than women are over 60% of college students and are outpacing men in most metrics. Although the main stream public conversation hasn’t caught up to this yet, the rationale for affirmative action to support women in higher ed is steadily fading.
Title IX says that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." (There are exceptions that aren't relevant here). That prohibition doesn't necessarily go away if that person is being paid. Certainly nothing in Title IX says so. It may be that, even with respect to compensated individuals, Title IX imposes obligations on educational institutions that go beyond those imposed by Title VII. I'm not saying that's true -- only that the question is closer than some of you are suggesting.
Similar threads
