Pressure to pay student-athletes carries question of Title IX

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Big East commissioner Val Ackerman floated an idea this month that would have been unthinkable a decade ago. She said the NCAA is considering letting athletes receive endorsements without losing their eligibility.

It's a move that might financially compensate the top male and female athletes to an unprecedented degree and could undercut the spirit of amateurism -- or not getting paid to play -- in college sports.

The question of paying college athletes is one Jeffrey Kessler, who's representing the U.S. women's national soccer team in their fight for equal pay, has been pursuing with the NCAA for at least two years. The antitrust and labor lawyer represented the plaintiff in Jenkins v. NCAA, one of the premier lawsuits contending a college athlete's right to compensation, filed in 2014.

Kessler's is one of several maneuvers the NCAA has faced on the issue, including a threat from Northwestern University football players to unionize (which was turned down by the National Labor Relations Board) and a decision to allow former college players to profit from their likeness in video games.

"It's very hard to effect change," Kessler said in a phone interview. "But I do think the time is coming in recognizing that the current system is neither fair nor equitable, or legal."

The USWNT's filing with the EEOC has raised the matter of a team's value regarding revenue and pay for professional athletes. And the same issues of fairness and equality can be applied to the NCAA, especially as student-athletes increasingly fight for compensation for their output. But why is it so hard to define value in college athletics?

Men's basketball and football teams in major conferences have often been treated like professional teams, leaving many to measure value in dollars and cents. According to Smith College economics professor Andrew Zimbalist, a men's basketball team earns $260,000 for its conference per tournament game played (women's teams get nothing). The NCAA last week signed an $8.8 billion deal with CBS for the rights to broadcast the men's basketball tournament through 2032. And a $5 million coaching salary is par for the course in big-time college football.

When compared to the blockbuster programs, attendance for women's events (and some men's athletics) lags. It's highly unlikely that a women's lacrosse championship game would ever reach the attendance of 74,340 spectators that the NCAA men's basketball tournament final achieved this month.

Given these numbers, it's often assumed that revenue from men's basketball and football supports all other sports at a school. And it's no wonder athletes have tried fighting for their share.

"We shouldn't confuse sports in general by schools in all areas with few sports that have become powerhouses," Kessler says. "The basic model is not a revenue one. What has created confusion is, with a few sports, they have chosen to turn them into a vast commercial enterprise."

According to the National Women's Law Center (NWLC) citing an NCAA report, almost half of Division I men's football and basketball programs operate at a deficit.

"It's such a morass of contradiction," said Drexel professor of sports management Ellen Staurowsky. "Sometimes I wonder if we're ever going to come up with a real solution because we're so bound by mythologies."

Sometimes I wonder if we're ever going to come up with a real solution because we're so bound by mythologies.
Drexel professor of sports management Ellen Staurowsky

The myths of revenue-generating teams continue to drive the perception of women's athletics. Despite almost 45 years of Title IX law, women's share of most college athletic budgets is only about 30 percent, according to the NWLC. And Title IX, which mandates equal access to school services regardless of gender, is often viewed as an inconvenience to the real goal of programs: maximizing revenue from men's basketball and football.

So how can women's sports expect to be seen as anything but the charitable wing of big-time sports, and how would women fit into a conversation about compensation? It's a confusion that exists not just for women, but for the men who play sports that don't generate the money that football and men's basketball do.

Donna Lopiano, president of consulting group Sports Management Resources, says pending litigation against the NCAA lobbying for pay is "the biggest potential game-changer" and could "hurt men's and women's sports." The costs of paying revenue-generating players -- plus the costs of paying female athletes to comply with Title IX -- would be prohibitive to college sports programs.

"You have to match for the women," said Lopiano, the former director of women's athletics at Texas who co-authored a paper about how the misguided focus on money from the top conferences has distorted the purpose of sports in college.

For Kessler, paying athletes who generate tremendous revenue is not in conflict with the fairness principles of Title IX -- because the schools have a legal obligation to ensure fairness that would not be affected by any outcome in court.

"I think the future for women's sports is bright in the NCAA," Kessler said. "Any changes that happen are only going to be beneficial for the women."

Some solutions to the question of student-athlete compensation avoid needing a school to open its wallet, including Ackerman's endorsement suggestion, which could allow top female athletes to get paid as well.

"It's actually a time right now where student-athlete interests are being closely examined," Ackerman told Sports Illustrated's Maggie Gray. "I don't have an answer for you on that one today, but I will say that and a number of other topics are under review, and I think rightly by the NCAA and it's very possible that over the course of the next year or two as these ideas work their way through the legislative system you could see changes."

Jayma Meyer, a sports law professor at Indiana University, takes it a step further and suggests not only allowing students to accept endorsements without jeopardizing their scholarships, but also getting rid of restrictions on players going to the professional ranks. This would mean also letting players have some contact with agents.

The concern is -- if and when the college sports landscape changes -- that the NCAA will do everything it can to retrofit the system to comply and insulate the revenue-generators and do the minimum to ensure fairness for the rest of the men's and women's sports on campus to comply with Title IX.

For example, 2011 was the last year the NCAA required member schools to take part in an exhaustive certification process that included an evaluation of gender equity. NCAA president Mark Emmert substituted a shorter annual report culled from existing data, one that did not require the same review, Zimbalist wrote in the New York Times.

AP Photo/Eric Gay

NCAA president Mark Emmert

"He sidestepped an important aspect of the process of holding institutions accountable to the law," said Gerald Gurney, president of Drake Group, an organization whose mission is to "defend academic integrity in higher education from the corrosive aspects of commercialized college sports."

But Meyer says it's unlikely schools will back the idea of paying football and basketball players. That kind of a move would make the students university employees and have big tax implications for an institution. Plus, the NCAA has already relaxed some of its rules and granted some benefits for athletes: In the last year, it has eased transfer rules, allowed multi-year scholarships and changed meal allowances so players can have a snack without fear of losing their eligibility.

"Instead of treating athletes like employees, what the NCAA should say is, 'We've got to pull this back into an educational model,'" Lopiano said.

Lopiano and Zimbalist have joined with Gurney to propose Congress grant the NCAA a limited antitrust exemption -- something only the legislative branch can provide -- which would prevent the organization from being sued when educational decisions have commercial consequences.

As strange as it may seem, asking Congress to put a halt to the escalation that has arrived in college sports, it may be one of the few things that can unclench a fist holding tightly to billions of dollars. But knowing how fast Congress moves, change might not be imminent.

Even so, for many women's athletes, the stated aims of college sports -- a learning laboratory on the grass or in a pool, a place where education continues in preparation for competition; leadership, discipline -- is to discover your own limits and surpass them.

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