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Can NLRB Ruling and Heart of Title IX Co-Exist in Intercollegiate Sports?

By Dr. Steve Juaire
Contributor, Sports and Fitness Network Title IX and Labor

It seems meaningful that we spend some time reflecting on this past month’s ruling by the NLRB (National Labor Relations Board) concerning the possible unionization of collegiate athletes, specifically, those who compete in football and men’s basketball. Not since 1905, when President Roosevelt summoned football coaches from Harvard, Princeton, and Yale to solve violent behavior, which essentially created the NCAA, has there been an action that could so radically change the governance of collegiate athletics, especially at the division one level.

The ruling that we will be discussing may allow division one football and men’s basketball players, student/athletes, to have a say in the rules of their athletic experiences. This ruling only pertains to private college programs at this time, and does not automatically mean these players will be paid, in addition to, or in place of, their scholarship. The ruling supports the position that players can bargain for rights such as compensation, work conditions, fair market value, transfer rights, etc.

In this reflection I am not going to address the issues of “pay for play”. It seems clear to me, and well recognized, that division one football and men’s basketball, are business enterprises with great financial rewards going to the NCAA and member institutions, frequently because of the special talents demonstrated by players. Thus, there will be drastic changes in fair market compensation.

What is interesting to me, and remains unclear, is how this ruling and the heart of Title IX can co-exist. The enforcement language of Title IX states that, male and female athletes should receive equivalent treatment, benefits, and opportunities, and the athletic interests and abilities of male and female students must be equally, effectively accommodated. It is important to understand that Title IX does not speak to equal coaching salaries, but to the student/athlete experience.

At the recent NLRB hearings, players presented a case that shows their experience is vastly different from other student athletes such as swimmers, golfers etc. However, a men’s basketball player’s experience is not that much different, if at all, than a women’s. In addition, Title IX does not recognize different experience, in fact some would say, the Federal Regulation ignores these differences in an effort to create a more “level playing field” in collegiate athletics.

Allowing some male athletes to create a different and certainly not equal experience, flies in the face of Title IX objectives. I am not arguing that there can be vast differences between the demands on many division one football players, and perhaps a few other athletes at the “tier one” level, as compared to those who compete on tire two or three teams. However, the current law, Title IX, does not recognize this difference as a component of its requirements. This ruling could very well force congress to revisit Title XI, remove division one football from the regulation, and or direct the OCR (Office of Civil Rights) to draft additional enforcement language.

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