The soul of Title IX is on the docket(s)
The soul of Title IX is on the docket(s)
Multiple ongoing lawsuits will impact the future of Title IX. We need to talk about them.
Hi! Well, the NWSL has broken for the Olympics, the WNBA is wrapping up its game before All-Star break tonight, information is oozing out about record-setting media rights deals and franchise valuations in women’s sports, and the USWNT plays its first Olympic game in eight days!! We’re going to be pretty Paris-focused here at Power Plays over the next month, and then will really be gearing up for the end of the WNBA and NWSL seasons this fall.
*Takes a deep breath*
But before all of that, I want to highlight a few ongoing legal cases that involve Title IX, because I have not been giving them proper coverage here at Power Plays and they are IMPORTANT. They will determine whether this law helps move women’s sports into the future, or keeps them stuck in the past, in terms of NIL, revenue sharing, and transgender rights.
But first: This edition of Power Plays is sponsored by the Working Family Party’s “Basketball House,” which throws events that seek to build political power for the multiracial working class by creating community in our fandoms and making collective civic engagement convenient, accessible, and fun.
And if you’re at WNBA All Star this weekend in Phoenix, first off, I’m incredibly jealous, and secondly, definitely make time for their Drag Comedy Brunch on Saturday at 11:30am MT.
RSVP for the event by clicking here, and have the best time!
Okay, friends. Let’s do this.
The antitrust lawsuit
Are you ready for some legal talk? We can do this, I promise.
In May, the NCAA and the Power 5 athletic conferences1 reached a $2.8 billion settlement in the House vs. NCAA antitrust case, which alleges that the NCAA failed to comply with antitrust laws when it prevented NCAA athletes from being compensated for their NIL rights.2 (Sedona Prince is a co-plaintiff in this case, but former Arizona State swimmer Grant House gets top billing because of alphabetical order.)
There are two main parts to the settlement:
First, the NCAA and its conferences would pay $2.77 billion over 10 years to upwards of 14,000 current and former student athletes who say they were financially harmed by not having access to their NIL rights. It’s worth noting that according to reports, at least 90 percent of this money is expected to go to former football or men’s basketball players, via CBS Sports. (The NCAA allowed athletes to make money via NIL starting in 2021; the lawsuit covers NIL losses dating back to 2016.)
Additionally, the proposal includes a revenue-sharing system where each school in the power conferences will set aside around $21 million per year to go directly to athletes.
Now, nothing is official yet. The deal still has to be approved by the federal judge overseeing the case. In fact, it still still hasn’t been officially submitted to the U.S. District Court — it was supposed to be submitted on Monday, but according to Sportico, “infighting” between the NCAA and conferences caused a hold-up.
But if it is approved, the settlement would signal the official end to NCAA amateurism and allow schools to directly compensate athletes.
Still, with something this foundation-shifting, A LOT of questions remain, especially for non-power conferences, smaller universities, and non-revenue sports. And everyone has concerns over what this means for Title IX, and what Title IX means for the revenue sharing part of the settlement. Last month, NCAA president Charlie Baker asked the federal government to provide guidance.
Here’s more on his concerns, via CBS Sports:
A big issue, as Baker alluded to, is either path could come with legal challenges. If, for instance, a school splits the $22 million evenly amongst men and women athletes, it could prompt football players to sue if they aren't receiving enough compensation relative to the revenue they generate for the schools. Expect a conference-level push for uniformity among members if there isn't a federal answer. It's not difficult to envision the potential issues if one Big Ten school is spending 80% of that $22 million on football while another is only doing 50%.
On Tuesday, Paula Lavigne and Dan Murphy of ESPN reported that the U.S. Department of Education said in a statement Title IX would apply to any revenue sharing in college athletics, but didn’t offer any guidance on specifics. The entire piece by Lavigne and Murphy is worth a read to understand the scope of this problem, but I was particularly alarmed by this detail about how some schools plan to skirt Title IX regulations:
Some schools are exploring potential plans to spend 75% or more of the new $20 million revenue-sharing fund on football players, according to multiple athletic department officials. Those schools are using the last three years of NIL deals to show that football players receive 75% of the money in the current market for athletes, according to data collected by companies such as Opendorse and Basepath.
Of course, many experts believe that if Title IX includes revenue-sharing, then the revenue must be distributed equally amongst men’s and women’s sports, in accordance with the school’s population. I, personally, have a hard time seeing how it would not be interpreted that way. Unfortunately, since nobody is providing any clarity, the Title IX questions in this lawsuit will have to be figured out by future Title IX lawsuits! Fun!
The Oregon NIL lawsuit
This is where Schroeder et al v. University of Oregon comes in.
We covered this lawsuit in a previous edition of Power Plays, back in December, but in case you need a refresher, the lawsuit, which was filed by 26 female athletes at the University of Oregon, alleged that the school deprived “women of equal treatment and benefits, equal athletic aid, and equal opportunities to participate in varsity intercollegiate athletics in violation of Title IX.”
Most notably, the lawsuit alleged that Oregon —directly, and through both its NIL Collective, Division Street, and its NIL Marketplace, Opendorse — provides its male athletes with a lot more NIL-related support than its female athletes.
This is the first lawsuit to challenge the relationship between NIL and Title IX, which means it is definitely one to watch, as it could set a precedent that would be applicable to the revenue-sharing cases as well.
According to Sportico, settlement talks are scheduled for this month. However, Oregon has filed motions for dismissal to the court, stating that plaintiffs “have not alleged that the university directly or even indirectly controls the allocation of NIL proceeds by these third-party collectives.”
For now, we wait.
Anti-trans lawsuits
Not to be confused with the anti-trust lawsuit, the anti-trans Title IX lawsuits that are floating around deserve our scrutiny, too. There are two main threads to follow here: The lawsuit against the NCAA, and the lawsuit against the Biden administration.
Let’s start with the latter, because there’s a lot more activity on that front.
In April, the Biden administration expanded Title IX guidance to include protections for students on the basis of sexual orientation and gender identity, specifically saying that schools could not bar transgender students from using bathrooms, changing facilities, and/or pronouns in accordance with their gender identity.3
Notably, the Biden administration did not specify in this long-waited announcement that the gender identity protections extend to transgender athletes, something which LGBTQ+ advocates have been pushing for. In fact, his guidance doesn’t mention transgender athletes at all; he essentially kicked that can down the road.
But if Biden was hoping that omission would appease the anti-trans “Save Women’s Sports” brigade, he was gravely mistaken. (Ed. note: Which is why you don’t argue in good faith or compromise with bigots!!)
Currently, 26 states (Ed. note: !!!!) represented in at least eight lawsuits are suing the Biden administration over the Title IX updates, according to Education Week.
As a result, the rule — which won’t go into effect anywhere until August 1 — is on hold in 15 states. Additionally, the rule is on hold in any school attended by a child of a member of Moms for liberty or a school attended by members of the Young America’s Foundation, politically active conservative groups for parents and students, respectively. (Ed. note: This is particularly wild to me!)
Education Week has a good breakdown of these cases individually, but essentially, they all argue that Biden’s regulations force “radical transgender ideology” onto the students and staff who believe that transgender people do not exist, and therefore should not have the right to exist safely in communal spaces in accordance with their gender identity. The lawsuits also argue that these new guidelines discriminate against cisgender women. (Ed. note: They do not!)
To justify the new regulations, the Biden administration uses the 2020 Supreme Court decision in the Bostock vs. Clayton County case, which ruled that civil rights protections for employees do include protection from discrimination on the basis of sexuality or gender identity.
Now all of this is going to have to wind its way through the courts, unless GOP legislators are able to enact laws that prevent Biden’s protections from taking effect — which they are already attempting to do. Of course, as long as democrats hold the presidency and a narrow majority in the Senate, they are unlikely to be successful. (I hate to give you another reminder at what is at stake this November, but alas, it’s unavoidable.)
While we’re feeling blue, I might as well go ahead and add that back in March, over a dozen current and former female athletes sued the NCAA for allowing Lia Thomas, a transgender swimmer for the University of Pennsylvania, among others, to compete in the women’s category. The lawsuit argues for the NCAA to implement a blanket ban on the participation of transgender athletes, saying that having transgender women compete in sports violates Title IX because it takes opportunities away from (cisgender) women. (Ed. note: It does not!!)
There have not been any news updates in this case for months, but I’ll keep an eye on it so that you don’t have to.
I will try to make the next newsletter more uplifting, I promise, but it’s important to stay up-to-date on these things so we can fight back accordingly.
Talk soon, friends.
Power 5 is the ACC, Big Ten, Big 12, Pac-12, and SEC.
To follow all of this NIL stuff more closely, I highly recommend my friend Matt Brown’s newsletter, Extra Points.
We’re not going to touch on this here, but it also undid some of the Trump-era rules that limited actions schools and alleged victims could take against students accused of sexual misconduct.