IV. Civil Rights
Federal agencies have jurisdiction over the civil rights implications of current big-time college sports business and financial models. Athletes have sought federal agency action in two areas: sex and race.
Civil rights agencies have been slow to act on behalf of athletes.
Below is a brief discussion of federal agencies that have jurisdiction over college sports civil rights issues.
A. U.S. Department of Education Office of Civil Rights (OCR) and U.S. Department of Civil Rights Division
OCR enforces discrimination laws based on sex (Title IX) and race (Title VI) in the educational setting for schools that receive federal funds.
The OCR has investigative and compliance authorities. If an OCR compliance directive is not obeyed, OCR may refer the case to the DOJ’s Civil Rights Division for further action.
Sex Discrimination (Title IX)
Passed in 1972, Title IX prohibits discrimination because of sex in the educational setting. The law had a phase-in period to 1978. In this timeframe, big-time football interests (and the NCAA) tried to prevent Title IX’s application to big-time football. Over the fifty-year history of Title IX, the NCAA, despite its gender equity rhetoric, has been tone-deaf to Title IX and gender equity issues.
The NCAA escaped direct Title IX responsibility in NCAA v Smith (1999) when the U.S. Supreme Court held the NCAA was not covered by Title IX because it did not receive direct federal funding.
The NCAA’s neglect of Title IX and gender equity is a recurring theme in college sports.
During the 2021 Division I women’s basketball tournament, former Oregon women’s basketball player Sedona Prince published photos on social media of the disparity in training facilities between the men’s and women’s tournaments.
In response to public criticism, the NCAA hired an outside consultant to examine Title IX/gender equity issues in women’s basketball. The report exposed the NCAA’s chronic failures to live up to its rhetoric on gender equity.
Still, little has been done to address systemic problems in the marketing and promotion of women’s basketball and other women’s sports.
Title IX compliance issues fall on NCAA’s member institutions. However, schools have likewise been reluctant to address Title IX issues unless they are threatened with litigation.
Similarly, OCR has declined aggressive oversight of Title IX in college sports, leaving aggrieved athletes with the choice of acquiescence or litigation.
In 2020, after eliminating eleven nonrevenue sports ostensibly as a cost-cutting measure, Stanford University—one of the wealthiest universities in the world—reinstated the sports only after threats of litigation, including a Title IX action.
In 2023, after an appeal to OCR failed, female athletes at the University of Oregon filed a Title IX suit alleging that Oregon-affiliated NIL collectives favored NIL deals with male athletes over female athletes in violation of Title IX.
Would these suits be necessary if OCR aggressively and consistently used its investigatory and compliance authorities?
Note: For a discussion of Title IX’s history, purpose, and applicability in college sports, see DYK’s Podcast interview with Ellen J. Staurowsky, Title IX expert and professor at Ithaca University.
Title IX does not apply only to women’s college sports. It applies in the broader educational setting and has been invoked by male athletes as well.
In April 2021, Clemson athletes on the men’s track and field and cross-country teams challenged the elimination of their sports under Title IX. After threats of litigation, Clemson reinstated the teams.
Ironically, the NCAA and Power 5 have cynically used gender equity and Title IX as political weapons in Congress.
They claim that if profit athletes in Power 5 football and men’s basketball receive a meaningful share of the revenue they generate, then women’s and Olympic sports will be in existential peril.
In essence, the NCAA and Power 5 argue that college sports are a zero-sum financial and equity enterprise.
Nothing could be further from the truth.
College sports are in a historic bull market financially.
There is plenty of money and equity to go around.
The NCAA and Power 5 football interests don’t want to share money or address equity concerns with any athletes, male or female.
Title IX is a very complex area of law and regulation. Decision-makers must hear from true Title IX experts—including OCR officials—to understand the implications of any federal law regulating college sports.
2. Race (Title VI)
College sports race-related claims have fared no better with OCR.
In March 2022, as part of its “kitchen sink” approach to athletes’ rights, the National College Players Association filed a complaint with OCR under Title VI on behalf of African American athletes in FBS football and men’s/women’s basketball.
The complaint alleged that the NCAA’s amateurism-based compensation limits disproportionately impact these athletes.
OCR has not taken action on the complaint.
