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How Title IX and the Proposed House v. NCAA Settlement Could Affect Your Program

U.S. Track & Field and Cross Country Coaches Association (USTFCCCA) Annual Convention

Orlando, FL

December 17, 2024

Arthur Bryant

Clarkson Law Firm, P.C.

abryant@clarksonlawfirm.com

(510) 507-9972

clarksonlawfirm.com

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Title IX of the Education Amendments of 1972

"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." 20 U.S. Code § 1681 et. seq.

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Application to Athletics

  • Interpreted and enforced by the U.S. Department of Education's Office for Civil Rights (OCR).
  • Institutions must provide males and females with:
    • equal participation opportunities,
    • equal athletic financial aid, and
    • equal treatment and benefits.
  • Team comparisons relevant, but focus is program v. program. 

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Equal Participation Opportunities: �The Three-Part Test

OCR 1979 “Intercollegiate Athletics Policy Interpretation” sets out a three-part test. An institution is in compliance if it meets any one of the parts: 

    • The numbers of male and female athletes are substantially proportionate to their respective enrollments; or
    • The institution has a history and continuing practice of expanding participation opportunities responsive to  the developing interests and abilities of the underrepresented sex; or
    • The institution is fully and effectively accommodating the interests and abilities of the underrepresented sex.

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Cut Teams Must Result in “Substantially Proportionate” Opportunities

  • Is the gap between what the school is providing and what it would need to provide to achieve exact proportionality big enough to field a team for which interest, ability, and competition exist?
  • The key question is whether the number of opportunities required to fill the gap would “be sufficient to sustain a viable team, i.e., a team for which there is a sufficient number of interested and able students and enough available competition to sustain an intercollegiate team.”

Office of Civil Rights, U.S. DOE, 1996 Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test

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Equal Athletic Financial Aid

  • Regulation: Institutions “must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.” 34 C.F.R. § 106.37(c)(1).
  • 1979 Policy Interpretation: The “total amount of scholarship aid made available to men and women must be substantially proportionate to their participation rates.” 44 Fed. Reg. 71415, VII.A.3.a.
  • 1998 Compliance Letter: The rates of dollars awarded should not differ from the rates of participation by more than one percentage point.

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Equal Treatment in “Other Program Areas”

  • Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
  • The provision of equipment and supplies;
  • Scheduling of games and practice time;
  • Travel and per diem allowance;
  • Opportunity to receive coaching and academic tutoring;

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Equal treatment of men and women overall required. The 1979 Policy Interpretation identifies ten non-exclusive factors (often called a “laundry list” ) to consider:

  • Assignment and compensation of coaches and tutors;
  • Provision of locker rooms, practice and competitive facilities;
  • Provision of medical and training services;
  • Provision of housing and dining facilities and services; and
  • Publicity.

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IMPORTANT: THEORETICAL POSSIBILITIES v. FACTUAL REALITY

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Title IX and Money: The Bottom Line

  • Whether teams or programs make or lose money doesn’t matter.
  • Whether teams are “revenue-producing” doesn’t matter.
  • Where the money came from (tuition, donors, ticket sales, etc.) doesn’t matter.
  • Whether intercollegiate athletics is viewed as a business doesn’t matter.
  • Schools can’t discriminate to make money. Neither can businesses.
  • Equal opportunities, athletic financial aid, and treatment required.

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Title IX and Athletics: Where We Stand Now

  1. Almost all colleges in violation & enforcement by litigation.
  2. Costs and attorneys’ fees recoverable.
  3. Covid and financial pressures prompted cut-backs.
  4. Covid and making or losing money are not valid defenses.
  5. Women and men both covered.
  6. Almost all women athletes and some men athletes can sue now.
  7. Or schools could comply with the law.

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Cutting-Edge Issues

  • Transgender Athletes
  • NCAA and conferences
  • Name, Image, and Likeness (NIL)

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Schroeder v. University of Oregon: filed 12/1/23

  • Equal opportunities, athletic financial aid, and treatment
  • Damages for unequal financial aid & treatment
  • Name, Image & Likeness (NIL)

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How Title IX Could Affect Your Program

  • Clemson University
  • University of Central Oklahoma
  • More to come, including NIL and House v. NCAA

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Proposed Settlement in House v. NCAA

  • Background
  • Theory of cases, now In re College Athlete NIL Litigation
  • House v. NCAA – lost NIL revenues, including broadcasts, video games and third-party deals
  • Hubbard v. NCAA – damages because deprived academic achievement awards from 2019 to Alston class action
  • Carter v. NCAA – lost NIL revenues for student-athletes’ performance

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Proposed Settlement Terms

$2.567 billion in damages - $1.97 billion for NIL damages, $600 million for “athletics services claims”

Distribution:

    • Football & Men’s Basketball Class: 90%
    • Women’s Basketball Class: 5%
    • Additional Sports Class: 5%

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Future Revenue Sharing

    • Injunctive Relief Class
    • Eliminate/Change NCAA Rules
    • Allow schools to share over $20 million annually with athletes
    • Distribution up to schools

Other Key Terms

    • Third Party NIL Enforcement
    • New Roster Limits
    • Scholarships Up to Roster Limits
    • Release of Title IX claims “arising out of or relating to the distribution of Gross Settlement Fund”

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What’s Next?

  • Damages Class: Opt Out or Object by January 31, 2025
  • Injunctive Relief Class: Object by January 31, 2025
  • Fairness Hearing: April 7, 2025
  • Objections so far and to come
  • Uncertainty and potential changes on several fronts

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How Title IX and the House v. NCAA Settlement Could Affect Your Program

  1. Proposed settlement, may be rejected or delayed for years.
  2. Some changes already taking place, others to come.
  3. Mutual education needed.
  4. View problems as opportunities.
  5. Title IX will have a major impact. So could you.
  6. We all need to fight for what’s right.

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The Difference We Can Make

  • At Public Justice: Temple University, the University of Oklahoma, William & Mary College, the University of New Hampshire, Brown University, UMass-Amherst, Indiana University of Pennsylvania, UCLA, the University of Bridgeport in Connecticut, the University of Wisconsin, the University of Northern Iowa, West Chester University, Assumption College, Florida A&M, North Carolina Wesleyan College, AND Indiana High School Athletic Association.
  • At Bailey Glasser: Brown University, William & Mary College, East Carolina University, University of North Carolina-Pembroke, Dartmouth College, Clemson, University of St. Thomas in Minnesota, Michigan State University, Dickinson College, Florida State University, and University of Central Oklahoma.  
  • At Clarkson: Fresno State, San Diego State University, and University of Oregon.

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Questions? Work with Us and Fight!

Arthur Bryant

Clarkson Law Firm, P.C.

abryant@clarksonlawfirm.com

C: (510) 507-9972