On November 12th, the Brooklyn Entertainment and Sports Law Society hosted its inaugural Sports Law Symposium focused on the future of college sports in America. The second panel, moderated by Jill Pilgrim, focused specifically on Title IX issues in college sports. Brought on as panelists were Arthur Bryant and Alison Rich. Jill Pilgrim is Managing Attorney with Pilgrim & Associates Arbitrations Law & Mediation LLC. In the realm of sports dispute resolution and integrity issues, she served as an independent hearing officer for the New York State Gaming Commission and on the Division I NCAA Committee on Infractions. Arthur Bryant of Baily Glasser, LLP, has won precedent-setting victories in civil rights, workers’ rights, among others, and has twice been named as one of the 100 Most Influential Attorneys in America by The National Law Journal. Allison Rich is the Senior Associate Director of Athletics and Senior Women’s Administrator at Princeton University. Additionally, she is the President of the Sports Lawyers Association, serves on the board of the National Sports Law Institute, and is also the Vice Chair of the NCAA Division I Infractions Appeals Committee.
The illustrious panel began with a brief overview of Title IX of the Education Amendments Act of 1972. Arthur Bryant succinctly described the statute as a “very clear, very short…civil rights statute…focused on preventing sex discrimination in educational institutions. Regarding athletic programs receiving Federal financial assistance, “the principle is simple and clear: equality, [and] no discrimination.” Bryant initially implores the audience to consider the astonishing progress in women’s sports due to Title IX’s impact. At the time of its enactment, many graduate schools, educational and athletic programs, and employment opportunities were limited or unavailable for women. Due to the ubiquitous presence of Federal funds in both private and public university budgets, Title IX affects essentially every academic institution in the nation.
Title IX requires equal treatment for both the men’s and women’s athletic departments as a whole. The Office for Civil Rights in 1979 created a three-part test to determine whether an institution is providing equal opportunities to participate. An institution is in compliance if it meets any one of the prongs: (1) the numbers of male and female athletes are substantially proportionate to their respective enrollments; or (2) the institution has a history and continuing practice of expanding participation opportunities responsive to the developing interests and abilities of the underrepresented sex; or (3) the institution is fully and effectively accommodating the interests and abilities of the underrepresented sex. Arthur notes that institutions generally adhere to the first prong as the contraction of a women’s program would make compliance to the last two prongs impossible to fulfill. The primary focus regarding substantially proportionate opportunities is whether the number of opportunities to fill the gap between what the school is providing and what it would need to provide to achieve exact proportionality big enough to field a team for which interest, ability, and competition exist to sustain an intercollegiate team. The proportionality requirements also extend to the reasonable opportunities for financial aid for students of each sex participating in intercollegiate athletics. Further, the rates of dollars awarded should not differ from the rates of participation by more than one percentage point.
However, Arthur contends that, in practice, almost every institution is in violation of the equal treatment standard due to the inordinate treatment of the men’s football and basketball teams. Moreover, he recounted some of his Title IX disputes that provided substantive change for men’s and women’s programs in college sports. In response to the shifting landscape after June’s landmark NCAA v. Alston decision, Arthur also discussed the potential conflicts that can arise between name, image and likeness (NIL) rights and Title IX if schools do not provide the corresponding substantially proportionate opportunities to both the men’s and women’s programs.
Allison Rich followed with her own perspective on Title IX in intercollegiate sports from the administrative lens. While she celebrated the sky-rocketing participation rates and popularity women’s collegiate athletics has enjoyed since Title IX’s enactment, she reminded the audience that there is much room for improvement. For example, many schools have funneled their women’s athletics programs into facilities and management that were established without a thought of the needs and interests of a woman’s team. Further, she noted some of the inequities still present in college athletics including differences in management of the facilities, travel accommodations, practice times, times of contests, and academic support, among others.
Under Title IX, intercollegiate athletic programs must serve their student-athletes and coaching staffs with an understanding that the particular needs of men’s and women’s teams are not the same. Accordingly, providing the appropriate accommodations is the preeminent aspect of promoting equity and inclusion and surveying student-athletes for feedback is one way to ensure that the equitable practices continue. The requirement for a gender equity review in the process of the elimination of a college athletic program was also celebrated as an opportunity for athletic departments to reallocate their budgets to prevent the unjust contraction of viable athletic programs. Some Title IX detractors may claim that Title IX is the reason why many non-revenue men’s programs are being eliminated, however, she noted athletic departments need to become more creative with their budgets and ancillary funding to remain compliant with Title IX’s equity and inclusion standards. Allison challenged athletic departments to remain mindful of where Title IX applies in their programs, not to rest on their laurels and to remain vigilant. Regarding NIL, she implores legislation to provide some uniformity in student-athlete NIL rights opportunities and to keep NIL out of the college recruiting space.
Jill Pilgrim entered the discussion with her personal account of her track and field career a few years after Title IX’s enactment for some insight on the progress women’s athletics has enjoyed. At that time, when Princeton was still trying to field a team, women’s track and field was designated as a club sport, its coaching staff consisted of unpaid volunteers, and the athletes had to purchase their own sweats. Her lived experience provided an invaluable perspective on the hardships women’s athletes faced and the necessity of Title IX’s enactment.
The essence of Title IX and the requisite need for continued improvement in equity and inclusion in collegiate sports can be espoused by the words of Arthur Bryant, “Everyone should be able to [participate in sports]. Everyone should be treated the same.”
He added, “It is striking, in my experience, that so many men don’t get it until they have a daughter. And then all of a sudden, they are seeing it through a different lens. And they get it: ‘Why should my son get any more opportunities, or financial aid, or treatment than my daughter? That’s just wrong.’”
We thank Jill Pilgrim, Arthur Bryant and Allison Rich for this insightful and thought-provoking discussion.
Written by: Rommel Montilus
Rommel is a 2023 J.D. Candidate at Brooklyn Law School