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The Call to Pay College Football and Basketball Players a Good Excuse to Abolish Title IX

August 26, 2011 Columns No Comments

Special to Hoopville


Preliminarily, you need to know who you are reading. I was once upon a time a college basketball assistant, most recently spending a year on Dan Dakich’s staff at Bowling Green. Later, I spent four years as a radio analyst (and Hoopville writer) in Boston, the last two for Northeastern’s Bill Coen. Most of the rest as a litigator, most of those years representing insurance interests. I developed the view that most civil lawsuits are frivolous, that we have too many lawyers in America (by a factor of 10), and that nothing I can think of is more disgusting than middle class Americans with a lawyer’s phone number on speed-dial (don’t much like the concept of speed-dial, but really hate individuals’ rights of recent-vintage to sue). The reader should know I have worked Title IX lawsuits (in fact, on the plaintiffs’ side), so I know from whence I speak.

When I last wrote for Hoopville, former USC star and current NBA player O.J. Mayo was being unfairly criticized in the media, as if any of us would have turned down many thousands of dollars in our early 20s (or even now), and not for the first time in print I called the major problem in college sport the fact that the NCAA truly stands for the “National Collegiate Allocation Association.” Never a fan of “employee rights,” and very much a fan of the world back when employment was truly “employment at will,” I articulated before the current round of NCAA-bashing that when we turn on our televisions to watch games on ESPN and CBS, while the astute among us are interested in coaching moves (and behavior), we are primarily watching the players. Also that while coaches make millions, ADs, university presidents and lots of professors make nearly that much, libraries are built and women’s – and lesser men’s – teams funded, the kids we turn on the television to watch make nothing.


In short, what we’ve done is take minor league football and basketball (men’s), and instead of playing the games in small town America in front of 2,000 (like baseball does), we’ve tied minor league football and basketball to America’s institutions of higher learning, and put those games in Michigan Stadium in front of 100,000 (and in front of millions on television). And oh yeah, don’t tell me the $57,000 tuition at Miami is “compensation”; we all know that none of these kids would even think of paying $57,000 a year for college (heck, my parents said back in the day: “Harvard, Yale or the state university at 25% of the private school price”). And since economists will tell you that the true value is the value to the specific consumer in question, I must conclude that “athletic scholarships” should be valued at about $0; in truth, they should be valued as negatives, as every one of these athletes would rather JUST play minor league football or basketball without going to school, and attending class at the University of Miami is a “have to” rather than an economic benefit.


All right, this article is about Title IX. First, a nickel’s worth of law. No lawyer would dispute that sixty years ago, “Title IX” would have failed to pass constitutional muster. Title IX of the Civil Rights Act of 1964, as amended by Title IX of the Education Amendments of 1972, provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” As applied, Title IX has come to mean equal rights in funding, and equal numbers of scholarships. That nickel’s worth: all lawyers know that under the Fourteenth Amendment, “[n]o state shall…; nor shall any state… deny any person within its jurisdiction the equal protection of the laws”; also that statutes addressing gender are subject to “intermediate scrutiny” under the Fourteenth Amendment, meaning that in a constitutional challenge the government bears the burden of proving that gender-based classification is “substantially related to an important government interest.” Two thoughts on this: first, no lawyer in America, even today, can argue with a straight face a constitutional application of Title IX to require equivalent budgets, scholarships, etc. at private universities; private universities are simply not subject to government control under the Fourteenth Amendment (“nor shall any state… deny…”).


Second, even for state universities, there has always been an “important government interest” that would be served by a statute – state or federal – permitting unequal spending for men’s and women’s sports: people watch men’s sports (at least football and basketball) and those teams can – sometimes even do – earn a profit, while no one watches women’s sports – and few watch other men’s sports – and there is no way those sports will ever earn a profit for any university.


That said, few if any have addressed the biggest issue facing college athletic departments today: that is, while it may be reasonable – economically as well as intellectually – to pay football and men’s basketball players, there is neither intellectual justification nor any source of funds from which to pay athletes in lesser men’s sports or those in any women’s sport. So now is the time to correct a wrong, and the interest in paying players is a good excuse to do what we should have done thirty or more years ago.


No more on the law, I promise. But indulge me on what Title IX is really all about (both “then” and now). First, in the early 80s, when the NCAA didn’t even include women’s teams, and fledgling women’s programs were regulated by a governing body known as the Association of Intercollegiate Athletics for Women (AIAW), most schools added to an administrative position the designation of “Primary Administrator for Women’s Athletics,” most of those positions were given to women, and most issues pertinent to women’s sports went to (or through) those administrators. However, with my law degree, title of Assistant to the AD for Academic Affairs, and role of interpreting and applying NCAA rules to our men’s teams, our Athletic Director quite sensibly assigned to me a similar role for our women’s teams. In that context he approached me one year in early August, and suggested I attend a conference on AIAW rules to be held in Cherry Hill, N.J. Well, I jumped at the chance for an all-expense paid summer weekend down on the shore, and there I was at the Hyatt on Friday morning for the first session of a two and a half day conference.


Well, among over five hundred university administrators charged with learning (and applying) the AIAW rules, I was among less than a half-dozen males (generally not a bad ratio). However, when the conference began, it was clearly not a conference about the details of athletic rules (GPAs needed to enroll and to remain eligible, minimum SATs, “normal progress,” etc.); in fact, at one point, I remember someone saying from the podium, “if you want to know the rules, read the book.” Okay, some law school classes weren’t all that different. But then, the conference quickly morphed into a diatribe against men, how they’re “keeping us down,” and how horrible it is for all of us to report to “male Athletic Directors,” and how we should all call the human resource officers and attorneys that we know, and stand up for our rights. By 11 a.m. that first morning, that was the only subject that had yet been discussed (well, that and who was going to sleep with whom that night at the hotel), so I left, finding the discourse more to my liking at Garden State Racetrack and in a casino a few miles to the south.


At around that same time, I remember my first head coach (I had that old fashioned “dual role”) teaching me his preference that our recruiting and similar letters be signed, respectively, as Head Coach or Assistant Coach of Basketball, which I agreed was classier than Head or Assistant Basketball Coach. However, one day I found a pile of the head coach’s letters that I’d drafted returned to me for “correction,” our AD more than “suggesting” that I now complete the signature block by designating my boss as “Head Coach of men‘s Basketball.” I never quite liked the ring to that.


Then there’s the business of equal pay. Everyone knows the success of women’s basketball at the University of Connecticut (politically, and in terms of wins). That said, while I got to know UConn Men’s Basketball Coach Jim Calhoun while broadcasting, I confess that I have never met women’s coach Gino Auriemma. But, I find it odd that he makes almost as much money as Calhoun, given that he only took the job all those years ago because he couldn’t get a job (even a volunteer job) in the men’s game. And oh yes, being pretty sure that Bob Knight became the winningest coach in the sport before retiring a couple of years ago, can anyone even suggest with a straight face that his record has been placed in jeopardy by Pat Summitt at Tennessee? (All the while, I join many others in wishing her well in her battle with early onset dementia after being diagnosed with it earlier this week.)


Penultimately, New Yorkers and others among us will remember within the last five or six years the event that caused radio “shock-jock” morning host Don Imus to be fired by CBS (and lose his morning drive-time gig on WFAN and syndicated around the country). Some of you will remember him “pushing the envelope” of humor with a rather disparaging comment I won’t repeat here about members of Rutgers’ women’s basketball team. That said, many commentators who haven’t coached or litigated mistook the human outcry at Imus’ remark: this ex-coach/lawyer is certain that he wasn’t fired for a disparaging comment about African-Americans; nor was he fired for a disparaging comment about women. What Don Imus was fired for was a disparaging comment against the most defensive group in world history, the group with the largest chip on its collective shoulder, women’s athletes. And check with your local attorney, such comments truly are unforgivable.


Lastly, without revealing names allow me to relate the story of a recent Title IX claim. A young African-American woman came into our office, not particularly feminine but not altogether butch, claiming she’d been discriminated against by the assistant women’s basketball coach at her junior college. She had apparently played girls’ basketball in high school, not been recruited to play in college, and then showed up as a student at the local community college. Recognizing that the college recruits all or virtually all of its players, offering scholarships while they are still in high school, and also recognizing that the young lady was legally blind, she nonetheless asked a coach if she could try out and potentially walk on, and the coach suggested that she might be able to. Thereafter, the first date of practice was adjusted, and while the scholarship players were all informed, this young lady wasn’t, and the beginning of practice – and opportunity to try out – came and went without her attendance. She came to us with an interest in suing the coach individually and also the institution, for violating her rights under, among other legal theories, Title IX. What rights could those possibly have been? And what damages could she possibly have incurred?? And how could she have possibly played college basketball legally blind??? And worst of all, we took the case!


So allow me to make clear, while it is time we stopped using football and basketball players to sell beer and soft drinks, pay coaches, and build libraries, and it is time we began paying them, and while it is true that we can’t legally pay just football and men’s basketball players under Title IX, and while in this economy there is surely no ready source of funds to pay college volleyball players (of either gender), more than a means toward the goal of paying a fair wage to players currently working as slaves, this call to pay players is really an excuse to right a wrong long understood by everyone involved in college sport, on either side of the issue. Title IX is wrong, both financially and intellectually, Title IX would never have passed constitutional muster in the past, and Title IX is encouraging young women to look and act more like men. What’s more, Title IX is silly, always has been, and everybody knows it.


Yes, a great excuse to abolish!


(The views expressed in this article are solely those of the author and do not reflect the views of Hoopville Media Services, LLC or Hoopville.com.)

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