Honored that Andrew Stauber, an attorney at Wilmer Cutler Pickering Hale and Dorr in Boston and a former sports law student of mine at Boston College Law School, has contributed an outstanding post on the role of Title IX in the private funding of Navy and Air Force football teams during the government shutdown.
Welcome Andrew Stauber
Honored that Andrew Stauber, an attorney at Wilmer Cutler Pickering Hale and Dorr in Boston and a former sports law student of mine at Boston College Law School, has contributed an outstanding post on the role of Title IX in the private funding of Navy and Air Force football teams during the government shutdown.
Title IX requires equal access . . . even during the federal government shutdown
The government shutdown is having a far reaching impact across the country, and unfortunately, not even sports fans are not immune from its effects. Due to the shutdown, the Department of Defense announced the suspension all intercollegiate athletic competitions involving the service academies, including Army, Navy, and Air Force. Absent a shutdown ending miracle, speculation abounded yesterday that the Air Force-Navy and Army-Boston College football game would be canceled. There is good news, however, for the fans of those football teams: the games will go on, per ESPN's Brett McMurphy. McMurphy reported that "nongovernment funding" would cover the costs of these games, allowing the Falcons and the Midshipmen, the Black Knights and the Eagles to battle it out on the football field Saturday.
But what about the other sports teams at the academies? And specifically, what about the women's teams at these schools? Yesterday, both Army and Navy canceled women's soccer games against Colgate and at American, respectively. This is certainly unfortunate for those teams, as well as for the other non-football men's teams that have had events or games canceled.
But what about the other sports teams at the academies? And specifically, what about the women's teams at these schools? Yesterday, both Army and Navy canceled women's soccer games against Colgate and at American, respectively. This is certainly unfortunate for those teams, as well as for the other non-football men's teams that have had events or games canceled.
More than just being unfortunate, another question crossed my mind: does this football-only preservation violate Title IX of the Education Amendments of 1972? Title IX states, in part, 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." When it comes to sports (and other extra-curriculars), Title IX requires that men and women have equal opportunity to participate. The Department of Education evaluates schools' athletic programs to determine whether there is equality for men and women, and specifically considers the "scheduling of games and practice time" in this evaluation. Just because a school spends more money on a men's team than a women's team does not necessarily mean that it violates Title IX, but the law’s regulations state that the Assistant Secretary for the Civil Rights Department "may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex."
Accordingly, despite the extenuating circumstances created by the shutdown, and through no fault of any of the athletes, there's a possibility that the generous support for football programs could create complications for the academies under Title IX. This concept is not altogether new in college athletics - for years legal scholars have warned that a pay-for-play system that exclusively targets football and men's basketball players would not be compatible with a school's Title IX obligations.
All schools, including the academies, are required to have a Title IX compliance officer. I imagine each of the officers has considered this issue in much greater depth than I have, and perhaps they have decided that there is no or minimal risk under Title IX. By no means am I suggesting that academies should cancel their Saturday football games. I think it's great that the academies and Boston College (and perhaps some generous donors) have found a way to make these games happen. For many reasons, most of which are more important than sports, I hope the government shutdown ends soon. In that case, all academies' sports teams can continue with their regularly scheduled matches. Alternatively, hopefully the non-revenue sports will find a way, or the money, to keep their schedule moving forward. Absent those outcomes, all schools, including the service academies, need to remember that Title IX remains in effect even if the federal government, including the Office of the Assistant Secretary for the Civil Rights Department, is shut down.
New Roadmap For Challenging NCAA 'No Pay' Rules and NFL/NBA Age Requirements
For readers who are interested in a far longer antitrust analysis of the NCAA 'no pay' rules, a current draft of my treatise of amateurism and antitrust law is available for download here. That treatise will be published in the Fall 2013 edition of Case Western Reserve University Law Review.
The EA Settlement and Eligibility
Last March, in an Open Letter to College Athletes, I opined that as college athletes’ names and likenesses become increasingly more valuable for use in commercial products, sellers of commercial products and services may become more willing to use and profit from the identities without permission in exchange for the cost to settle the athlete’s publicity rights lawsuit. This results in a pseudo-licensing fee; in other words, the settlement operates as an ex post licensing transaction that was not negotiated and paid ex ante. The issue then becomes whether any legitimate purpose is served by burdening athletes with such unnecessary, time-consuming, and costly litigation. Why should athletes not be permitted under NCAA rules to license the use of their names and likenesses in commercial products and receive the substantive equivalent payment that they otherwise would receive in litigation suing the seller for violating the athlete’s right of publicity?
As far as eligibility is concerned, I do not know how the NCAA could legally sanction college athletes for collecting damages in a court of law through the enforcement of their own property interests against third parties who commercially exploit them without the athlete’s permission (i.e. without a license). As third-party beneficiaries of the NCAA bylaws, college athletes would have standing to challenge such an eligibility decision on the grounds of arbitrary and capricious enforcement. The first question would be, how is the NCAA's endorsement rule rationally related to the preservation of amateurism? Given how commercialized the big business of college sports has become and the increasing exploitation of college athletes, I am not convinced that if the NCAA faced a Jeremy Bloom-like challenge to its endorsement rule today that a Colorado state court or a court in a different jurisdiction would have much sympathy for the NCAA and its assertion that the endorsement rule prevents college athletes in big-time college sports from becoming "billboards for commercialism." The recent rulings of the Third and Ninth Circuits not only suggest a much more skeptical view of amateurism principles that would allow commercial entities to profit off the backs of the unpaid labor that makes those profits possible but also signify a movement towards courts' recognition of college athletes receiving compensation for the use of their identities in commercial products and services. Secondly, the discipline or suspension of a college athlete for exercising his property rights in a court of law would likely be viewed as arbitrary and capricious enforcement and a violation of public policy.
As far as eligibility is concerned, I do not know how the NCAA could legally sanction college athletes for collecting damages in a court of law through the enforcement of their own property interests against third parties who commercially exploit them without the athlete’s permission (i.e. without a license). As third-party beneficiaries of the NCAA bylaws, college athletes would have standing to challenge such an eligibility decision on the grounds of arbitrary and capricious enforcement. The first question would be, how is the NCAA's endorsement rule rationally related to the preservation of amateurism? Given how commercialized the big business of college sports has become and the increasing exploitation of college athletes, I am not convinced that if the NCAA faced a Jeremy Bloom-like challenge to its endorsement rule today that a Colorado state court or a court in a different jurisdiction would have much sympathy for the NCAA and its assertion that the endorsement rule prevents college athletes in big-time college sports from becoming "billboards for commercialism." The recent rulings of the Third and Ninth Circuits not only suggest a much more skeptical view of amateurism principles that would allow commercial entities to profit off the backs of the unpaid labor that makes those profits possible but also signify a movement towards courts' recognition of college athletes receiving compensation for the use of their identities in commercial products and services. Secondly, the discipline or suspension of a college athlete for exercising his property rights in a court of law would likely be viewed as arbitrary and capricious enforcement and a violation of public policy.
Langganan:
Postingan (Atom)
