GLADIATHER® LAW: DEVOS & WOMEN IN SPORTS

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By now most of you are aware that last week the Senate held it’s confirmation hearing for President Trump’s pick for Secretary of Education, Betsy DeVos.  By a lot of people’s standards, DeVos’ performance was cringeworthy.  She avoided agreeing to uphold federal laws that protected disabled students, supported guns in schools to protect students from grizzly bears and revealed that she wasn’t knowledgeable in basic concepts about educational standards.  She provided little clarity about the tone she would set for the Department of Education and while it’s not immediately apparent, that also means there’s little clarity about the direction of women in sports. How could DeVos and the Department of Education possibly influence women in sports? For that answer I’m bringing you another installment of GladiatHer® Law.

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WHAT THE HECK IS GOING ON AT BAYLOR?!

31 August 2014: The Baylor Bears flag flies before the football game between the Baylor Bears and the Southern Methodist Mustangs at McLane Stadium in Waco, Texas. Baylor beat SMU 45-0.
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On any given day over the past several months you were very likely to come across a headline about Baylor University and its problem with sexual assault.  Football players were (and still are) de-committing, administrators were being fired and repurposed, there were convictions, cover-ups, interviews and investigations at every turn.  If chaos has come to mind at any point while taking it all in, I’d say you’ve got an excellent grip on what’s going on down in Waco.  For years the University has been insufferable in its handling of claims of sexual violence perpetrated by its student-athletes, and now all hell is breaking loose as things are coming to light.  The administration has provided shameful and unlawful responses to numerous women who have voiced their allegations of sexual violence.  And it seems the school has done so in the name of protecting the pigskin. But while the headlines have a laser beam on Baylor, Baylor is really only a fraction and consequence of the problem, not the entire or source of it.  Continue reading

NO COUNTRY FOR TENNESSEE COACHES

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On February 9th we learned of another Title IX lawsuit against a major institution.  This time a group of unnamed women are alleging the University of Tennessee violated Title IX by creating a “hostile sexual environment” through its established pattern of indifference towards claims that student-athletes engaged in sexual assaults.  A few days later on February 12th, after their win against Vanderbilt, the Lady Volunteers basketball team sat down for a postgame press conference.  During the press conference Tennessee staff prevented players from responding to questions about (in light of the lawsuit) their safety on and off campus.  While the student-athletes were not allowed to share their opinions, Head Coach Holly Warlick wasted no time sharing hers.  In an interview Warlick stated, among other things, that to maintain safety:

We travel in groups and do what you’re supposed to do…You just don’t travel late at night.  Our kids feel extremely safe on our campus.  Our campus is extremely safe and I think kids have got to be responsible and they’ve got to be smart.  You don’t go out by yourself at night, I don’t care where you are.  Continue reading

HOW ERICA KINSMAN & AMBER ROSE WON THIS WEEK

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This week women have had some newsworthy victories.  On Monday, it was announced that Florida State University (FSU) would pay Erica Kinsman $950,000 and commit itself to sexual assault awareness, prevention and training programs in exchange for Kinsman dismissing her Title IX lawsuit against the school.  Yesterday, Amber Rose got a win for every woman who has been shamed because of her sexuality when she quite effortlessly dismissed her ranting ex, Kanye West, and his childish antics.  While these ladies, one a co-ed from a small town in Florida and the other one of the most recognizable models in the world, may seem eons apart, they and their victories really are quite closely related.  You see, Kinsman sued FSU for its mishandling of her claim that she was raped by former FSU quarterback, Jameis Winston[1].  In a legal sense, she sued FSU for sexual discrimination.  And Rose, well I’ll get back to Rose in a minute.  For now, let’s focus on Kinsman, FSU and Title IX. Continue reading

Change is Good.

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If there’s one thing that’s clear about the NCAA and the state of college sports, it’s that they are both changing and changing rapidly.  The country just watched as the first-ever College Football Playoff national champion was crowned.  The storied BCS no longer decides who plays in the national championship, but a committee of experts decides on the top four teams in the land and those teams duke it out.  While the change in college football was widely debated and highly anticipated, it actually wasn’t the only or biggest change for the NCAA.  Over the past twelve months, the NCAA has been dealt major blows to its definition of amateurism and has changed its own tune about the nature of the relationship between the student-athlete and the institution.  These changes have come, in large part, as a result of the income that men’s football and basketball have produced for the NCAA and its member schools.  While the male student-athletes may have spurned the changes, the changes will affect male and female student-athletes alike.  So what are the possible ramifications for female student-athletes as they begin to navigate a changing system driven by male student-athletes?   As I will discuss below, while the changes are dramatic and spearheaded by a select group, I doubt that they will have any significantly negative affect on women’s sports, at least no more negative than any effects will have on men’s sports. 

The Basics

Before we discuss any effects of these changes, we should obviously discuss the causes, you know, set up the basics.  Up until 2014, the National Collegiate Athletic Association (NCAA), an organization charged with governing American college sports across various states, divisions and conferences, thought that the best way to maintain a fair system of amateur sports in college was to prevent college athletes from receiving any compensation related to their athletic abilities before and during their college careers.  The idea that the NCAA tried to sell was that if student-athletes were prevented from profiting from their talents, they would not be tempted to do unscrupulous things like cheat or drop-out.  The NCAA convinced the public that student-athletes had to be protected from economic exploitation, whatever that meant.  So, the NCAA put this theory to practice by forbidding schools from providing any monetary assistance to student-athletes above the actual cost of attendance and by forbidding student-athletes from accepting any benefits (monetary or otherwise) that were provided because of their athletic abilities.  The NCAA enforced the rules by handing out hefty fines, suspensions and periods of ineligibility, for example, for people who chose not to abide.  It all seemed to work for a while.  Courts enforced the NCAA’s regulations and power, and student-athletes and their schools, for the most part, abided by the rules.   Of course a scandal would break out from time to time, but by-in-large the system of college sports worked. 

That is until college football and men’s basketball started making a killing.  Those two sports made college sports a multibillion dollar industry.  The NCAA made money, the colleges made money, the coaches made money and the media made money.  The only group that wasn’t being allowed to cash in was the small group of student-athletes who made it all possible.  Everyone except the student-athletes was getting rich, while the student-athletes looked on, many of whom would never get a taste of the money they helped to generate.  All of a sudden, the student-athletes needed protecting from the NCAA and its member schools.  So the student-athletes began to fight back.  They spoke up about the unfairness, they sued, they took money and gifts while in school, and they left college early.  The initial fight did not produce much change, but as pockets got fatter and the cries of the student-athletes got louder, the foundations of college amateurism began to crack. 

The Big Cracks

While 2014 did not completely annihilate the NCAA and amateurism, the cracks that it put in the foundation are certainly making the landscape look a bit differently.  Two of the big cracks came when student-athletes and former student-athletes used the legal system to attack the NCAA and its regulations.  In O’Bannon v. NCAA, a group brought an antitrust class action law suit against the NCAA challenging the organization’s refusal to compensate student-athletes for the commercial use of their images.  For years the NCAA had been using players’ images in commercials, video games, billboards, etc. without providing any compensation while or after student-athletes were in school.  In August, a federal judge sided with the student-athletes and enjoined the NCAA “from enforcing any rules or bylaws that would prohibit its member schools and conferences from offering their FBS football or Division I basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses [NIL] in addition to a full grant-in-aid.“  The court’s injunction established that:

  • The NCAA and the schools can establish a trust for the revenue shares and will be allowed to set a cap of no less than $5,000 on the amount of money that may be held in trust;
  • Schools can offer less than the NCAA cap, but they cannot conspire with each other in setting the amount;
  • The NCAA can have rules that prevent the athletes from using the trust fund money to obtain other financial benefits while they are in school;
  • The NCAA can set rules that prevent schools from offering different amounts of deferred money to athletes who are in the same recruiting class on the same team; and
  • The amounts that schools decide to place in trust for the athletes may vary from year to year. 

You can read the full decision, here, but the gist of is that the NCAA can’t get away with limiting a revenue producing student-athletes’ marketability by denying them a share of the profits gained from using their NILs1.  That’s pretty major stuff. 

The second big crack came from a group of football players at Northwestern who wanted to challenge their status as student-athletes.  They insisted that instead of being students first and athletes second, as was the mantra of the NCAA, they were actually employees of the university.  In March, a regional director of the National Labor Relations Board (NLRB) agreed and ruled that the players were in fact employees of the university and had the right to form a union and to collectively bargain for various rights and benefits.  The players hope that if they unionize they could bargain for things like scholarships that covered the real cost of attendance (not the actual cost as defined by the NCAA) and additional health care benefits2.  They could bargain to be employee-stakeholders who received a piece of the empire they helped to create.

While the student-athletes forged ahead in the legal system, the NCAA had come to accept that the system no longer worked.  They realized that student-athletes were absolutely getting the short end of the stick.  But rather than rectify the situation for just the revenue-producing student-athletes, the NCAA made changes that would apply universally, and it started with meals.  In April, the NCAA Legislative Council voted to allow all Division I student-athletes to receive unlimited meals and snacks in conjunction with their athletics participation. The provision of meals is in addition to the meal plan provided as part of a full scholarship. Prior to this change, student-athlete often complained about being hungry and not having sufficient funds to buy food as the NCAA only allowed scholarship student-athletes to receive three meals a day or a food stipend.  The change signaled a realization that the actual cost of attendance was noticeably more than the NCAA had previously acknowledged, and it was the start to something bigger. 

The biggest change at the hands of the NCAA came in August when the Division I Board of Directors voted to give the so-called “Power 5” conferences (SEC, ACC, Big Ten, Pac-12 and Big 12) plus Notre Dame autonomy or the right to create their own rules to benefit student-athletes3.  For years, the Power 5 members had claimed that they could afford to and desired to provide student-athletes with stipends and other benefits that would improve upon the student-athlete experience.  But for years, the NCAA and smaller schools (who couldn’t afford cost increases) prevented the Power 5 from doing so.  The NCAA’s decision will allow the Power 5 to provide student-athletes with things like cost-of-attendance stipends, increased insurance benefits, better staff sizes, and different rules for recruiting and mandatory training hours.  In October the Power 5 had the opportunity to vote about which measures they would take and those measures are scheduled to be enacted in 2015. 

The Meaning

So we’ve established the past and current landscape for the NCAA (more specifically Division I), and the question remains: What does this all mean for female student-athletes?  Well, it means much of the same things that it means for male student-athletes.  To be clear, the O’Bannon and NLRB decisions in and of themselves have no effect on women’s sports.  O’Bannon only speaks to the revenue-producing sports of football and men’s basketball and the NLRB decision only speaks to one school’s football team.  So, if taken alone, the cases would usher in no change for female athletes.  But the cases can’t stand alone.  They have to be considered alongside existing Federal laws and regulations, and the big law staring at these decisions is Title IX4.  While, Title IX does not require that schools have an equal number of teams and positions for its male and female athletes, and it does not require that schools spend the same amount of money on its male and female athletes; it does require proportionality.  Institutions must allocate scholarship and other funds in proportion to the number of female and male student-athletes.  Meaning if a school’s athletic population is 60% male and 40% female, and its scholarship fund is $200,000, $120,000 should be allocated to males and $80,000 to females.  So, to tie it all in, if the O’Bannon and NLRB decisions stand, female athletes probably wouldn’t see a dollar-for-dollar increase in scholarships and athletic spending, but they should see some sort of increase in the funds they receive.  And any amount of additional money makes for a better experience for the female-student athletes.    

Much of the same holds true regarding the new NCAA regulations, especially since the NCAA has not made its new rules gender-specific or dependent on revenue generation.  The meals rule automatically applies to all student-athletes, and the Power 5 will be bound by the same Title IX guidelines that exist in the O’Bannon and NLRB decisions.  So the female student-athletes will get to eat like the males and should be given the same (or very similar) benefits that the male student-athletes receive in the Power 5. 

In addition to the possible changes in funding, the changes may also lead to additional separation in the level of competition among female student-athletes as the gap between the Power 5 and other Division I sports widens.  As the schools in the Power 5 are consistently able to offer recruits better financial packages, greater exposure and better facilities than the smaller Division I programs, it will be more difficult to get top talent to play at smaller schools who can’t afford first-class financing and facilities.  So remember the increased parity in women’s sports I talked about a while back?  Well, don’t expect that parity to travel far beyond the Power 5.  While we’re likely to see more competition among the Power 5, the smaller conferences probably won’t be making appearances in the Sweet Sixteen in the near future.  At the very least it’s going to take crafty financing, great coaching and selling the entire academic experience for the smaller schools to recruit great talent from the Power 5.    

I think the changes to the NCAA and college sports are wonderful.  Although they have been driven by a small group of income-producing athletes, it appears that a broad stretch of the student-athlete population (both male and female) will benefit from the changes.  Even though student-athletes at smaller schools may not see as many benefits and may suffer from a widening competitive gap, the changes will undoubtedly inspire smaller programs to creatively improve upon the student-athlete experience.  Supporters of women’s sports should be vigilant in monitoring schools to ensure that institutions are held accountable to Title IX standards, but overall I have faith that the institutions will do right by their female student-athletes just as they are being forced to do right by their male student-athletes.  So, as it turns out, change is good.     

1. The NCAA will likely appeal the decision, but the court ruled that the injunction would not be stayed during the appeals process.  The first student-athletes who are likely to be able to benefit from the ruling would be those incoming freshmen in the 2016 school year. 

2. Since the regional director’s ruling, the NLRB in Washington announced that it would be reviewing the decision.  In the meantime, the football players have voted on whether to actually unionize.  That vote is being impounded until the NLRB makes its ruling.   

3. The smaller conferences are also allowed to opt-in to exercise autonomy as they see fit. 

4. Title IX states that: "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 educational program or activity receiving Federal financial assistance."  Without going into too much detail, it prevents educational institutions that receive federal funds from discriminating against individuals because of their sex.  It requires that institutions provide “equal” access and protection for male and females alike.  You can read more about Title IX and sports here

It’s True…Girls Who Play Sports are Cooler than Girls who Don’t

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I recently saw a commercial (link: http://www.youtube.com/watch?v=URVYgTbbryE) for Keep her in the Game a site dedicated to Title IX and issues in women’s sports.  The commercial highlights the fact from ages 6-9, girls and boys demonstrate an equal level of interest in sports.  But by age 14, girls drop out of sports at twice the rate of boys. This statistic exists despite knowing that girls who stay in sports are proven to have higher self-esteem, better body image, better grades and better health practices than girls who do not. There are a number of reasons for these statistics like social stigma, access, safety, poor role models and costs of participation.  For me, they’re all reasons that can be fixed, and I love Keep her in the Game and the Women’s Sports Foundation for being dedicated to fixing the disparities in girls and women’s sports. 

As a woman who played sports for almost her entire life, I can truly attest to the importance of sports in a child’s development and maturation.  And since I have this blog here, I thought it’d be nice to share with readers the impact sports has had on my life.  Aside from giving me a set of rock-hard abs by the age of twelve, my participation in tennis, soccer and track and field helped make me into a well-rounded, strong woman.  Sports taught me what it means to be dedicated and accountable to a purpose, a team, a coach, and myself.  Sports enabled me to deal with adversity and developed a tenacious spirit.    

If I had to name one of the most significant things that I learned from participating in sports, it would have to be the ability to work with and accept people.  You know—teamwork, tolerance.  I was blessed to participate in the so-called individual sports and team sports.  And both taught me that no woman is an island.  Of course the necessity of teamwork is apparent in team sports; however, my participation in individual sports taught me the importance of teamwork even for personal glory.  Sure I competed alone, but the preparation was all about teamwork.  I worked with coaches, parents, and other members of the team in order to be successful.  Had it not been for my ability to work well with a support system, my successes would have never existed.  This ability to work with others translated into success in my professional life which constantly requires me to work with others for the good of our clients. 

Beyond the general practice of teamwork, sports developed a sense of tolerance.  I proudly say that I grew up in a Southern racially conscience Black Power family where I was taught about my history and the beauty of African people.  But my, interactions through sports, with girls of different races, socioeconomic standings, and religious backgrounds taught me to appreciate the beauty in people of all walks of life.  I developed lasting friendships with girls and women based on our love for competition and for our sport.  We learned that we had many similarities beyond sports; but I know that had it not been for sports, I would not have made as many lasting, meaningful relationships with girls that outwardly appeared to be so different than I. 

I can honestly say that sports opened doors in my academic and professional life that would not have been opened had I been a “Stray Bird.”*  Sports made me a better girl.  A better woman. Moral of the story, if your girls aren’t involved in sports, get them involved and make sure they stay involved.  

* Stray Bird. Origin, Howard University.  Meaning, one who is a non-athlete, a sideliner, a spectator.  Synonym, Couch potato.  Antonym, Athlete.