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Vanderbilt Journal of Entertainment & Technology Law

First Page

307

Abstract

In 1972, Congress enacted Title IX of the Education Amendments Act (Title IX) to prohibit sex-based discrimination in “any education program or activity receiving federal financial assistance.” While the original legislation did not stipulate “athletics,” Title IX has had a profound impact on intercollegiate sports by expanding the athletic opportunities for women as a covered “program or activity.” However, fifty years after the enactment of Title IX, there are still significant disparities between men’s and women’s intercollegiate athletics, most notably at the high-profile National College Athletics Association (NCAA or Association) Championships.

In 2021, the NCAA hosted the men’s and women’s Division I Basketball Championship tournaments. A viral video featuring inferior weight rooms for women served as a catalyst to address longstanding gender equity issues in intercollegiate athletics. In response to the widely publicized inequities, the NCAA commissioned an independent gender equity review of all NCAA Championships. The external review confirmed gender inequities in ten women’s intercollegiate sports and raised the issue of whether the NCAA should be subject to Title IX.

Educational institutions are subject to Title IX as “recipients” of federal financial assistance, and courts have found violations when institutions fail to provide female student-athletes with equal opportunities to participate or equitable benefits and services. In contrast to its member institutions, the NCAA has avoided compliance with Title IX on the basis that the Association is not a “recipient” of federal financial assistance. In 1999, the US Supreme Court ruled in NCAA v. Smith that the NCAA’s receipt of membership dues from educational institutions did not constitute the “receipt” of federal aid. Based on this narrow ruling, the NCAA was not subject to Title IX.

The Smith decision exposed the “recipient” loophole in Title IX legislation, which has enabled the NCAA to operate above the law for decades, resulting in significant gender disparities at NCAA Championships. However, Justice Ginsburg’s decision in Smith left open an alternative legal theory to potentially bring the NCAA under the scope of Title IX. The NCAA’s “controlling authority” over federally funded educational institutions’ athletic programs could trigger Title IX coverage, irrespective of whether the NCAA itself is a “recipient” of federal aid. Analyzed within the context of NCAA Championships, where the NCAA controls the postseason intercollegiate tournaments, a court could find that the NCAA is a “controlling authority” over its member institutions and liable for gender inequities.

To the extent courts are unable to bring the NCAA under the scope of Title IX, Congress recently introduced two bills that address gender equity in intercollegiate athletics. In June 2021, Congress passed a concurrent resolution that stipulates Title IX applies to the NCAA; in August 2022, the Senate reintroduced the College Athletes Bill of Rights, which includes a Title IX section that mandates intercollegiate athletic associations shall not discriminate based on sex. While these bills do not have the full force of law, they clearly indicate Congress’ intent to prevent sex-based discrimination in intercollegiate athletics and require the NCAA to comply with Title IX.

This Article asserts that the NCAA should be covered by Title IX, and the Association should comply with the federal law’s mandate to prohibit sex-based discrimination in “any education program or activity.” To achieve gender equity at NCAA Championships, there are three pathways to bring the NCAA under Title IX coverage: the existing federal law could be interpreted to cover the NCAA, Congress could pass a new statute to cover the NCAA, or the NCAA could voluntarily comply with Title IX. This article analyzes these three alternatives and concludes that the NCAA should voluntarily comply with Title IX and uphold the Association’s stated commitment to gender equity.

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