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The Uncertain Future Of Title IX

Leaders are bracing for an inevitable showdown over the landmark legislation that will shape the direction of college sports

By Eric Prisbell
getty images (8)

They wore jersey numbers made from masking tape, competed in dilapidated venues and were marginalized in too many ways to count. Five decades later, a far different environment exists for the female athlete, with the faces of women’s college basketball possessing six- and seven-figure endorsement portfolios and their NCAA Tournament final attracting more viewers than the average NBA playoff game.

 

Yet for all the long-overdue achievements of women in sports at all levels, as the nation collectively celebrates the 50-year anniversary of Title IX, industry leaders stress a sobering reality: The battle for gender equity in sports is far from over. In fact, at this transformational moment in college athletics, a potential seminal showdown awaits, one that could position Title IX to play a pivotal role in shaping the contours of a new college sports paradigm. While uncertainty abounds regarding how and when it will unfold, this much is a near certainty: The future of Title IX will be tested again, in a way that could prove nearly as transformational as the original law itself.

The litigious world of college athletics, combined with the growing movement toward athlete compensation and professionalization, all but ensures a future legal challenge will throw in to doubt the law’s future, and it is one that industry leaders are already preparing for.

“As we move towards a more professional model, the question arises: What is going to happen to Title IX?” said Tom McMillen, the former Maryland and NBA basketball player, U.S. congressman, Rhodes Scholar and now CEO of Lead1 Association, which advocates on policy issues facing Football Bowl Subdivision athletic departments. “I always say that Title IX is probably the most powerful force in college sports. This will be a very, very interesting fork in the road because I could see this going to the Supreme Court.”

Efforts underway on numerous fronts — through legislation, litigation and also unfair labor practice charges with the National Labor Relations Board — aim to classify a smaller subset of student athletes, at least initially, as employees of their universities. That designation could challenge the power of Title IX. An employee model, which opens the door for athletes to collectively bargain university-provided benefits and even salaries, is neither imminent nor inevitable. But with a complicated set of forces gaining momentum, if it does ultimately take hold, Casey Schwab, CEO and founding partner of NIL advisory firm Altius Sports Partners, said “we are going to see chaos across the country.”

A critical element is Title IX protection — barring discrimination on the basis of sex for any educational program or activity receiving federal financial assistance — and whether it would still apply if athletes are deemed employees. If it does, that protection would require the benefits that an institution provides male and female athletes to be comparable. But if it doesn’t, with revenue-generating sports football and men’s basketball fueling athletic departments’ economic engines, women’s sports (and non-revenue sports broadly) would be vulnerable to being eliminated. Both outcomes create financial challenges for universities, and McMillen said how the courts ultimately interpret Title IX’s application is poised to be a “classic case down the road.”

“The fork in the road is employee rights,” said Peter Schoenthal, CEO of Athliance, an NIL management and compliance software firm that works with athletic programs. “There’s going to be litigation; there’s going to be lawsuits. And I have a feeling that female athletes are not just going to roll over and say, ‘Give all the men the money.’ And rightfully so.”

Before Title IX became law in 1972, women’s sports were a rarity on college campuses.getty images

Necessary intervention

Debbie Yow remembers the danger.

It was the late 1970s in Bloomington, Ind., and Yow, then the women’s basketball head coach at Kentucky, was shocked to see four basketball hoops still in place surrounding the main court as her game at Indiana neared. She repeatedly told Indiana officials that the uprights created dangerous conditions for players on both teams. But they wouldn’t remove them. She threatened not to play the game. They still wouldn’t remove them. Finally they agreed to only wrap the uprights in a material that would ensure a “softer landing,” should a player barrel into them.

“It was just all new,” Yow said now of the old days, still marveling at the memory. “People weren’t sure what to do with us.”

The former athletic director at Saint Louis, Maryland and North Carolina State is proud, but not shocked to see the progress of the women’s game since those dark ages. But she is concerned where a professionalized model will lead. She believes the application of Title IX will be crucial, but nonetheless “we are destined for court somewhere along the way,” she said. “The divergence is so significant, so severe.”

Yow stressed that there isn’t a bottomless reservoir of money within athletic department coffers. “It feels that way because of what the public reads about coaching salaries,” she said. “But that’s not true. Part of the reason I think congressional intervention is going to be necessary is this: How do we preserve these sports? They are going to crush all the non-revenue men’s [sports] and take a few of the women’s sports along with them.”

Before becoming a prominent athletic director, Debbie Yow was a basketball coach who had to figure out ways for her team and her sport to get equal treatment.N.C. State University

Title IX’s role in a potential employee model is consequential. Byron McLain, a Los Angeles-based partner at Foley & Lardner LLP, contends that equitable protections for women under Title IX apply only to educational opportunities, and not for those deemed employees. He wrote in a December article he co-authored on his firm’s website that the professionalization of college sports could spell the end of Title IX, saying that the unprecedented growth of women’s sports the last half-century could be “immediately stunted.”

“Without the protections of Title IX, schools will feel increased financial pressure if they are forced to maintain programs that are not ‘profitable’ but also must pay wages to the athletes in those unprofitable programs,” McLain wrote. The financial pressure, he argued, could force some institutions to make economic-driven decisions to cut some non-revenue sports, which would disproportionately affect female athletes.

Gloria Nevarez, the West Coast Conference commissioner, harbors similar concerns, saying that Title IX was an educational piece of legislation that was applied to sports and equitable opportunities. In that vein, she added, if athletes are deemed employees, the law wouldn’t apply in the same way because they are no longer viewed as students. She believes Title IX protection is paramount to sustaining non-revenue sports, adding, “it’s the whole, ‘You build it, they will come.’ As soon as Title IX started to get serious buy-in and execution, you can’t argue with the numbers.”

Before Title IX, one in 27 girls played sports, according to the Women’s Sports Foundation. Now the number is two in five.

If college athletes are one day deemed to be employees, it could throw another hurdle in the path for equality in college sports.getty images

Unequal resources

Julie Roe Lach remembers the emotion.

The Horizon League commissioner last month visited her alma mater, Millikin University in Decatur, Ill., for a celebration of 50 years of women’s athletics at the university (the pandemic delayed it by two years). A special lettering luncheon was held to honor alumni who competed in sports before Title IX and women’s varsity sports. Five decades after they hung up their Millikin uniforms, they finally received their varsity “M.” The poignant ceremony also included current student athletes saying that they now, with immense pride and gratitude, stand on the shoulders of those trailblazers from a bygone era.

“Really powerful,” Roe Lach said.

But as the industry creeps toward a pay-for-play model, her concern is that resources will be disproportionately targeted toward revenue sports, leading to an increasing number of non-revenue sports being dropped. In the Horizon, where athletics are largely subsidized by institutions, she said a pay-for-play model simply doesn’t work. Amid these winds of seismic change, she said the question is how Title IX affects the non-FBS level in five to 10 years.

Its application remains critical because it not only helps ensure the offering of sports, but that experiences are equitable. Whether Title IX would still provide protection in an employee model, she said, would have to be one of the first questions asked and answered.

Under the employment model, Mit Winter, who played Division I men’s basketball at William & Mary and is now a college sports attorney at Kennyhertz Perry in Kansas City, contends that Title IX would affect the level of benefits schools could provide male and female athletes. To remain compliant with the equal opportunities test of Title IX, Winter said, schools may have to also offer those same benefits to a certain number of female athletes.

“That would obviously cause more of the revenue generated by a school’s athletics program to flow to the athletes, and schools would potentially have to start operating under a new financial model,” Winter said. “What this could end up doing is making college athletics leaders face a decision: Do we want to make college athletics a purely educational model — more along the line of club sports or intramurals — or should certain sports teams be spun off from universities?”

If athletes are deemed employees, McMillen is firmly in the camp of those who believe Title IX would continue to provide protection. He said, “I don’t care where the law is. I’ll tell you where the politics will be by 2030 — there may be close to 200 women in Congress. I don’t see a reversal of that [Title IX] course.”

Even then, that wouldn’t stifle legal challenges. If some male athletes believe profits of their labor are being proportioned unfairly to female athletes, he said to expect friction between genders.

“If [male athletes] are getting 5 or 10% of the revenue, whatever it is, the revenue could have been twice that,” he said. “The men are getting $40,000 but [believe they] really should be getting $100,000 if it weren’t for Title IX. That’s the issue” that may be legally challenged.

UConn guard Paige Bueckers led the Huskies to the NCAA title game and has already become a star in the NIL world, becoming the first college athlete to get a deal with Gatorade.getty images

The NIL challenge

Heather Lyke remembers the rules.

Lyke, the University of Pittsburgh athletic director, recalls her mom and dad sharing stories about when they attended the same high school, with both playing on their respective basketball teams. But her dad practiced all year to play 24 games, while her mom practiced all year to play in just one. Equally disturbing, women weren’t allowed to run the full length of the court; they weren’t even allowed to dribble more than once before passing.

While satisfying to see progress, she said it’s long overdue and heavy lifting remains. That became clear with the window Oregon basketball player Sedona Prince opened into the disparities between the men’s and women’s NCAA Tournaments with her now-famous 2021 TikTok video.

“The progress is good; I wouldn’t say it’s remarkable,” Lyke said. “Just over a year ago, people were dumbfounded at the differences between the men’s and women’s basketball tournament. It was 2021. But for a young student athlete taking pictures and posting them on social media, no one would know the difference. And we’ve tolerated it, and we’ve allowed it.”

Now ominous signs of potentially taking a step backward, or at least slowing progress, with a professionalized model hover on the horizon. And unless concrete action is taken — exactly what and by whom remains an open question — Nevarez of the WCC believes the college athletics enterprise is likely destined for the employee model.

Monica Abbott was a softball legend at Tennessee from 2004-07 and left as the NCAA’s all-time leader in wins and strikeouts, but she never had the chance to cash in on her fame with NIL deals.getty images

“I’m still of the camp that we could — I don’t know how — get our arms around name, image and likeness and disentangle it from pay to play,” she said. “Maybe I’m being too optimistic, but [ideally] still provide more benefits to the student athletes without making it pay for play, and without taking them to full employee status.”

The rise of women’s sports, fueled over the years by Title IX, set the stage for a banner first year of the NIL era. Visitors to the Mall of America in Minneapolis — the host city of April’s Final Four — saw an entire hallway consumed by a Gatorade advertisement featuring the face of UConn star Paige Bueckers. In February, then-Fresno State basketball players Haley and Hannah Cavinder posted a TikTok video endorsing one company, Celestial Seasonings Tea, while traveling to Los Angeles in a private jet for a photo shoot for Champs Sports and Eastbay. Through the Final Four, NIL compensation for women’s basketball players eclipsed that of men’s basketball. And Blake Lawrence, co-founder and CEO of NIL leader Opendorse, said some women’s basketball players will earn more NIL opportunities while in college than they would once they reach the pro ranks.

Monica Paul is the executive director of the Dallas Sports Commission, which won the right to host next year’s women’s Final Four. She said the women’s Final Four as a property is more valuable than it was when Dallas last hosted in 2017 — a testament to Title IX’s continued impact — and she expects the economic impact to exceed the $26.5 million from that year with additional partner activations and a culminating Title IX celebration.

Paul was recently asked if she thinks Title IX will be a conversation point in another 50 years. Her hope is no because, by then, gender equity ideally will be something that occurs organically. But we are not close to that point.

“Can we say, ‘Okay, let’s sunset this law?’” Roe Lach said. “No. We still have work to do.”

As a professionalized model draws ever closer, and efforts continue to usher in the athlete-as-employee era, a potential Title IX battle looms on the not-so-distant horizon. This one could circle back to Washington, D.C., more than a half-century after then President Richard Nixon signed the federal law into existence. At stake is the continued vertical trajectory of women’s sports. What might be the outcome?

“If I were a betting person,” McMillen said, “I would bet on the power of Title IX.”

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