When NCAA Loses House Case Title IX Will Save Women’s Sports

Legal scholars are predicting that the NCAA will lose the pending House v NCAA case which claims that all NCAA’s restriction on student athletes receiving money should be null and void. The case has been certified as a class action suit. Such result would extend beyond the current ruling that such athletes can be paid for their name, image and likeness and also prevent the NCAA from restricting athletes to be paid on a “pay for play” for the sport they participate in.

There is also a hearing in front of the NLRB regional office in Los Angeles to determine whether student athletes at USC who participate in revenue generating sports, football and basketball, are employees within the National Labor Relations Act and are entitled to compensation for a minimal wage, social security, overtime, worker’s compensation and other workplace protections. If declared employees, these student athletes would also have the right to unionize and collectively bargain. The employee test centers around how much control the employer has over those providing services and whether those services are key to generating revenue.

If student athletes can’t be prevented from getting paid for their sport, and athletes in revenue generating sports are employees, the consequences would be enormous. This would threaten the very existence of the NCAA who claims that through its rules the NCAA helps maintain some type of competitive balance in college sports as well as the proper and healthy relationship between athletics and academics. NCAA further argues that the non generating sports, particularly women’s sports, will suffer disproportionately because they would be excluded from these negotiations and ultimately lose funding.

While these arguments may sound convincing at first, upon close examination, they do not carry much weight. There is currently no competitive balance in NCAA sports. Of the 261 division I NCAA football programs only the Power Five Conferences have great football programs. In fact, currently the distribution of money in football is weighted heavily in favor of the Power Five Conferences as the College Football Playoffs distributes about 80% of its total revenue nearly 80% of its $500 Million in revenue to Power 5 programs. The top teams are more or less the same year after year. These are the schools with money and a rich history of success. It will likely be no different once athletes become free to negotiate the terms and conditions of their participation in the sport they play. In the new world order where student athletes can be compensated for their athletic prowess, the only difference is that the NCAA will be dis-intermediated and labor costs will suddenly become a factor. The school that are dominant in sports will likely be no more dominant than they are now.

Women’s Non Revenue Sports Will Thrive But Not Men’s

The non revenue generating women’s sports, will survive in the new order because Title IX will save the day but non generating men’s sports will not fare so well. Title IX provides that academic institutions must allocate athletic participation opportunities in a nondiscriminatory way, and provide women with the equal opportunities to play sports as men. The practical effect will be that any negotiation or collective bargaining at the college level will need to allocate resources to women’s sports just as they do today.

The new order will look probably something like this. Sports that make money for their schools will likely make employees of their athletes with their education an ancillary benefit of their employment agreement and a condition to their employment. In other words, if you fail your classes and get kicked out of school you get terminated. The athletes of those sports would have the right to collectively bargain for their wages and working conditions. Part of the negotiations would be to involve representatives from women’s sports at the those schools so money will be allocated to those women’s programs. Thanks to Title IX women’s sports will still have to have a seat at the table and women’s sports, even if non revenue generating will be no worse off than today. Hopefully, with the strides made over the past few years women’s sports like basketball and volleyball will become revenue generating. Unfortunately, for non revenue generating men’s sports the fate will be different. Many of those teams will be eliminated and student athletes relegated to club sports rather than on the NCAA level.