Showing posts with label NCAA. Show all posts
Showing posts with label NCAA. Show all posts

Tuesday, August 24, 2021

EQUAL OPPORTUNITY FOR WOMEN MAKES US STRONGER

TITLE IX AND THE ASCENT OF THE AMERICAN FEMALE ATHLETE 


Without women, the United States Olympic team would have been in a world of hurt.  The Tokyo
games ended recently and the world now assesses the meaning of a COVID-19 marred Olympiad, while looking forward to next year’s winter games and the 2024 summer games in Paris.

One thing stands out about the American effort in
Tokyo. U.S. women made their presence felt. They captured over 58% of the medals Americans won. That didn’t just happen. It directly resulted from action American legislators took almost 50 years ago. The success of U.S. female athletes shows what can happen with a dedicated commitment to equal opportunity. It offers lessons that apply across society.



The Governmental Action was Title IX

Mostly without anyone looking, Congress in 1972 amended the 1964 Civil Rights Act with a
provision that said, “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.…”  Before that enactment, one in 27 girls participated in school sports. Now that number exceeds two in five. Despite grudging compliance by school districts and universities with the requirement of equal funding for women’s sports, over the 35 years after Title IX’s passage, female involvement in high school sports jumped 904 % and college participation increased 456%.

We shouldn’t forget the opposition Title IX encountered in its early years, much of it from the National Collegiate Athletic Association. The
NCAA feared loss of power and control over lucrative men’s sports, especially football and basketball, if colleges and universities had to fund women’s sports programs. The NCAA first argued for exemption of college athletic departments from Title IX requirements, contending the departments
didn’t receive federal funds. That argument ignored the fact college athletic departments are part of institutions of higher education, nearly all of which receive federal money. They also argued equal sports funding for women would mean a loss of opportunities for men (a few men’s programs did get cut at individual schools, though overall men’s participation increased). Finally, the NCAA asserted Title IX equity formulas should exempt college football. 

Ultimately, courts and government agencies charged with enforcing Title IX rejected these contentions. The NCAA decided it couldn’t beat the women’s sports movement, so it took it over. In
1982 it forced out of existence the Association of Intercollegiate Athletics for Women (AIAW), the organization that had promoted women’s college sports while the NCAA was doing everything it could to undermine support for women’s programs. Even today, though, the NCAA often treats women’s sports teams as second-class citizens, as last winter’s weight room fiasco demonstrated. It provided men with state of the art weight training facilities at basketball tournament sites while giving women a few dumbbells. 


The Olympic Dividend

We can’t say Congress knew it was birthing an Olympic medals bonanza for the United States
when it passed Title IX. The law passed because of the efforts of a small, determined group of women (and a few men) who, in the late ‘60s, began agitating for federal and state legislation assuring women equal rights in education. As noted, few people paid much attention when it passed, though the NCAA soon perceived a threat. Then something funny happened.

By the early ‘80s, U.S. women began excelling in international competition in sports, like track and
field and basketball, previously dominated by the Soviet Union and eastern European countries like East Germany (many of those eastern Europeans probably were on steroids, but that’s a subject for another day). All of a sudden U.S. women who’d gone through college and university programs started winning championships.

By the ‘80s and ‘90s, the U.S. was producing female stars, like Florence Griffith-Joyner and Jackie Joyner-Kersee in track and field and basketball greats like Cheryl Miller and Dawn Staley. In 1996, the U. S. women’s basketball team kicked off a gold medal streak that has reached seven and shows no signs of ending, despite the likely retirements of five-time gold medalists Sue Bird and Diana Taurasi.



In Tokyo, the American team won 113 medals (China finished second with 88). Women won 66 of
the U.S. total. Had the American women been a nation, they would have placed fourth in the overall medal count. Since 2012, American women have won the majority of U.S. Olympic medals.

 

Pride and Inspiration– for all Americans

Women can take great pride in what U.S. women
athletes have accomplished in the Olympics, as can men. Those are our sisters, daughters, granddaughters, nieces, even wives, winning those medals. Their achievements should inspire everyone.  We’re reminded of what Arkansas football coach Sam Pittman told his players after the Arkansas women’s basketball team upset perennial power Connecticut last winter. “They wear the same logo on their uniforms we do,” Pittman said. “Let’s be like them.” 

We also can take pride in the progress American women have made in Olympic sports since the advent of Title IX because of what that progress says about our country. The law’s role in the development of American female athletes shows what can happen when a nation decides it will treat
all its citizens fairly and equally. Title IX, especially when juxtaposed with the NCAA’s obstructionism, stands as an example of what happens when societies don’t engage in zero-sum game thinking. Every time someone gains something doesn’t mean someone else must lose something. The rise of the American female athlete lifts US all and serves as a model for the world.            


Wednesday, June 30, 2021

REQUIEM FOR THE NCAA: THE SUPREMES SPEAK ON COLLEGE ATHLETE COMPENSATION

College athletics as it’s been known in the
lifetime of every living American ended June 21, 2021. We acknowledge that’s a bold statement. As lawyers and sports fans, we’ll stand by it. The governing structure of college sports, as operated by the National Collegiate
Athletic Association (NCAA), will  change dramatically. The day all three of us have wanted, the day when college athletes receive some kind of pay, is in sight. That June 21 decision of the United States Supreme Court virtually guarantees it will happen. 

The subject matter of the case before the High Nine wasn’t remarkable. College athletes challenged limits the NCAA impose on educational benefits made available to collegiate players such as graduate and vocational scholarships. The case wasn’t

about  direct compensation for athletes. College players won’t get pay checks as a direct result of the court’s 9-0 holding that the NCAA rules at issue violate anti-trust law

Make no mistake though, college students will

get paid for playing sports. They will trace that compensation to the ruling in National Collegiate Athletic Association v. Alston.  After Alston, it’s just a matter of the details and the timing. What’s in the Court’s unanimous opinion, a stinging concurring opinion, and who wrote both likely sound the death knell for the NCAA as we know it.

 

Brothers and Sisters

We learned in law school judges on appellate courts often refer to other members of their court as “brother” or “sister” judges. In fact, Bob Woodward and Scott Armstrong wrote a 1979 book about the inner workings of the U.S.  Supreme Court titled The Brethren (there

were no women on the Court at the time). It’s a sign of respect and collegiality in places that breed division and intense disagreement. Indeed, we have a divided Supreme Court now, with six conservatives, appointed by Republican presidents, and three more progressive justices, appointed by Democrats.  If the NCAA thought that conservative tilt would work to its advantage in Alston, it found itself sorely disappointed.

The fact the decision went against the NCAA unanimously means a lot. Conservatives and
progressives saw this case the same way. Clarence Thomas, essentially a reactionary, and Sonya Sotomayor, perhaps the court’s most liberal
justice, both thought the NCAA’s aid limits violated anti-trust law and restrained trade.  They joined a tightly-reasoned, narrowly crafted opinion by their conservative brother, Neil
Gorsuch, that fell well within the mainstream of anti-trust jurisprudence. They rejected the NCAA’s contention that amateurism trumps laws against anti-competitive practices.

That reflects what’s going on in the country as a whole. State legislators and governors in both parties are approving measures that give college athletes the right to receive compensation for what’s called NIL – name, image, and likeness. The details vary in different states, but ultimately, the new laws all aim at giving athletes a way of getting paid for what they contribute in the sports marketplace.


Justice Kavanaugh’s Shot Across the NCAA’s Bow

From the NCAA’s perspective, the unanimous outcome against it in Alston was bad enough. Justice Brett Kavanaugh’s concurring opinion
amounted to a dagger in the NCAA’s heart. Kavanaugh, a Trump appointee, you’ll recall, made clear the NCAA should not expect a different legal approach if other cases involving more direct payments to athletes come before the Court. He wrote, “although the Court does not weigh in on the ultimate legality of the NCAA’s remaining compensation rules, the Court’s decision establishes how any such rules should be analyzed going forward.” 

That passage no doubt sent shivers down the backs of NCAA officials in Indianapolis. In
future  cases, the Court will apply what’s called “rule of reason” scrutiny to NCAA regulations. The Court will not give those rules more deference than it would give any other business accused of anti-competitive behavior.  The Court will define the relevant market, determine the effect of the rules at issue on competiveness in that market, and reject the rules unless the NCAA can provide “a legally valid procompetitive justification” for them. Kavanaugh expressed doubt the NCAA could supply such a justification.

If Justice Kavanaugh had left things there, the NCAA might have some optimism about future cases. But Kavanaugh said he believes the “NCAA’s business model would be flatly illegal in almost any other industry in America.”  He ended his opinion with another warning for the suits in the college sports hierarchy. “The NCAA is not above the law,” he wrote.


And it Means?

We think Justice Kavanaugh’s last flourish, coming on top of all else he said in the context of a unanimous decision, portends a death

sentence for the NCAA in its current form. No one knows how long it will take to get a case to the Court that directly challenges the NCAA’s basic don’t-pay-the-players rules. Gorsuch and Kavanaugh went to great pains in making clear those rules were not before the Court in Alston. The spate of NIL legislation making its way through the state legislatures may delay the reckoning. 
Still, the handwriting is on the wall. College
athletes will get paid for playing sports. As Kavanaugh noted, the industry will have to sort out things like differences in revenue and non-  revenue sports, Title IX compliance, and other details.
But the question now is how and when, not whether. What we know after Alston is that the Supreme Court, as constituted, isn’t buying the NCAA’s argument about the value of amateurism.  In some number of years, someone can say this isn’t your father’s college athletics.        


Monday, December 2, 2019

PLAYOFF TIME IN COLLEGE FOOTBALL: WHERE ARE WE?


Only a weekend of conference championship games and the final machinations of the College Football Playoff Committee separate us from knowing the participants and seeding in this year’s playoff. The dye is mostly cast. Barring a couple of monumental upsets, we know the possibilities for raising the trophy on January 13 at the Mercedes-Benz Superdome in New Orleans.
         
LSU, Ohio State, Clemson
The top three teams – LSU, Ohio State, and Clemson – sent messages on the last weekend  of the regular season. LSU destroyed Texas A&M, 50-7, expressing its displeasure with the
committee for elevating Ohio State to the number one spot in the rankings. Meanwhile, despite Michigan Coach Jim Harbaugh’s annoyance with post-game
questions about the gap between his program and the Buckeyes, Ohio State’s 56-27 thrashing of the Wolverines for its eighth straight win in the  series showed the size of the gap, whatever the reasons. Clemson, which has been untouchable since a one-point squeaker
September 28 over Mack Brown’s  now bowl eligible North Carolina team, pounded South Carolina, 38-3, despite calling off the dogs early in the fourth quarter. Those three are virtually a lock.  
Even if Georgia beats LSU in the SEC championship game at Mercedes-Benz Stadium in Atlanta (Saturday, 12/7, 3:30 ET, CBS), the Bayou Bengals and their likely Heisman quarterback, Joe Burrow, have a spot.
LSU QB Joe Burrow
Ohio State also probably gets in, even with a stumble against Wisconsin in the Big 10 championship game at Lucas Oil Stadium in Indianapolis (Saturday, 12/7, 8:00 ET, Fox). The Buckeyes beat Wisconsin, 38-7, on October 26, so why worry?
Clemson’s situation differs a little. The defending champions and pre-season No. 1 have taken a lot of grief for that close call at North Carolina and for a seemingly weak overall schedule. They face an ordinary opponent in an unranked, 9-3 Virginia team
in the ACC championship game at Bank of America Stadium in Charlotte (Saturday, 12/7, 7:30 ET, ABC). Losing probably would kick Clemson out of the playoff, but that’s a very unlikely eventuality (full disclosure: Rob’s daughter is a former Clemson athlete and he is a Clemson season ticket holder). 

No. 4

The most impactful development the last weekend of the regular season was Auburn’s
48-45 win over Alabama in the Iron Bowl, putting the Crimson Tide out of its misery as to the playoff. Alabama’s loss to LSU left Nick Saban’s team ranked number five and generated much speculation about whether it should get in if one of the top four lost, especially after a hip injury sidelined starting quarterback Tua Tagovailoa. Now, none of that matters.
But who gets the fourth spot, assuming LSU, Ohio State, and Clemson claim the first three? Georgia, Utah, and Oklahoma seem best positioned, with Baylor grasping at straws.
Only Georgia controls its destiny. If the Bulldogs upset LSU in the SEC championship
game, Kirby Smart’s talented, if inconsistent, squad gets in (Georgia lost to that South Carolina team Clemson throttled so easily). But, Georgia has problems, because of injuries and undisciplined play in its 52-7 beat down
of rival Georgia Tech on the last weekend of the regular season. Receiver George Pickens was ejected for throwing a punch and faces suspension for the first half of the LSU game. Georgia’s already missing leading receiver Lawrence Cager. The status of running back D’Andre Swift remains uncertain. 
  
Should Georgia lose, Utah has the best chance of stepping in, assuming the once-
beaten Utes handle Oregon in the Pac 12 championship game at Levi’s Stadium in Santa Clara, California (Friday, 12/6, 8:00 ET, ABC). But for a late season loss to Arizona State, the Ducks could have been in the picture too. Utah has a dynamic, dual threat quarterback in Floridian Tyler Huntley and could give one of the top 3 a tussle, despite the fact most of country knows little about the Utes.

Oklahoma should be undefeated. The Sooners and quarterback Jalen Hurts, who transferred from Alabama, however, saddled themselves with a 48-41 loss to Kansas State
https://en.wikipedia.org/wiki/Big_12_Conference
on October 26. The result? Oklahoma needs a second win over Baylor in the Big 12 championship game at AT&T Stadium in Dallas (Saturday, 12/7, 12:00 ET, ABC).The once-beaten Bears had Oklahoma down,28-3 with 11:02 left in the second quarter on November 16, but lost, 34-31.  Baylor ranked ninth in the committee ratings going into the last weekend of the regular season, so everything would have to break perfectly for a hop into the fourth spot, even with a win over Oklahoma.





The Future
Each year’s playoff scramble conjures up thedebate on how many teams the playoff should include. Many want an eight-team
playoff, something leaders of the sport say they may look at when the present television contract expires after the 2025 season.
 
Last year, we suggested an eight-team format giving each champion in the Power Five conferences – ACC, SEC, Big 10, Big 12, and Pac 12 – an automatic spot, with three at large selections, reserving a preference for a “deserving” Group of Five (leagues like the American Athletic Conference, Sun Belt, Conference USA) team. Nothing we’ve seen this year dissuades us from that idea. We still see this as better than the old Bowl Championship Series (BCS) or, heaven forbid, the so-called Mythical Championship when nothing got settled on the field. What we have isn’t perfect, but it’s sure better than that.