The Title IX Diversion

The idea that NCAA players should not be allowed to be compensated, directly or by third parties, in anything but company scrip even if their labor generates large amounts of revenue for universities and even though various coaches and administrators involved in NCAA athletics can have dumptrucks full of money driven to their houses on a daily basis is transparently indefensible. As a result, apologists for the status quo have a wide variety of diversions to try to evade the heart of the issue.  As we saw here yesterday, one of these diversions is to appeal to Title IX, which allegedly presents insurmountable problems for compensating players and effectively requires the maintenance of a peonage system (unless universities which to spend large amounts of money compensating players in sports that don’t generate significant revenues, which they obviously won’t.)

In fact, the argument that Title IX’s prohibition on gender discrimination in education requires the University of Alabama to pay members of the women’s golf team an equivalent amount if they decide to pay members of the football team, or the University of Connecticut could only pay players on the women’s basketball team if they were willing to pay the members of the men’s diving team the same amount, is 1)a really terrible one that 2)has essentially no chance of being adopted by the federal courts in the very unlikely event that the Department of Education would interpret the statute as requiring it.

Let’s start here:

Courts have rarely analyzed Title IX in terms of pay — perhaps because NCAA members have historically fixed student-athlete pay at $0 despite the obvious antitrust risks of doing so.

However, in those rare instances where pay issues have emerged under Title IX, courts have typically viewed the act as coextensive with the Equal Pay Act of 1963 and the Civil Rights Act of 1964. Thus, courts have upheld greater pay for male coaches where the male coaches’ work has been found to involve greater “skill, effort or responsibility.”

While the terms “skill, effort or responsibility” are rather opaque, the ability to generate revenue is one factor that seems to fall reasonably within this criteria. For example, in Stanley v. University of Southern California, 13 F.3d 1313 (9th Cir. 1994), the U.S. Court for Appeals for the Ninth Circuit noted that it may be permissible for the University of Southern California to offer higher pay to its men’s basketball coach because the men’s team generated far greater annual revenues.

Stanley was not a Supreme Court case, nor did it consider these issues in its later proceedings. Nevertheless, NCAA members seem to rely on Stanley based on their history of allowing disparate pay based on coaches’ revenue generating abilities.

Implicitly based on Stanley, the NCAA’s already large pay gap between male and female coaches has only continued to widen. For example, statistics obtained by the New York Times from the U.S. Department of Education show that from 2003 to 2010 the average pay of NCAA Division I men’s team coaches increased by 67 percent. During this same period, the average pay for NCAA Division I women’s team coaches increased just 16 percent.

If the federal courts use the same standards to assess pay equity that they have used in interpreting the Equal Pay Act and other provisions of the Civil Rights Act, then this is a very easy question. Obviously, an argument that a bench player for the Seattle Storm is entitled to the same salary as LeBron James would be laughed out of court. The NCAA’s lickspittles are pretending to believe in a theory of labor value — that quantity of work is the only permissible criterion for compensation — that is far more radical than anything seen in any liberal democratic labor market, and that the people pretending to believe don’t believe applies in any other context (including other aspects of NCAA athletics.) When was the last time you read an outraged editorial about how it’s outrageous that Nick Saban is making a dime more than the coach of the women’s rowing team? The chances that the federal courts would read Title IX this way are approximately the same as the odds that Samuel Alito would find a right to state-provided health care in the 14th Amendment. And any federal court that did read Title IX that way would be engaged in Bush v. Gore “this principle is good for this case only” hackery, as there’s no chance that this argument would get a hearing outside of the context of NCAA athletics.

To be clear, just as there are many issues of gender discrimination in labor markets even if we allow that not all labor has to be valued equally, permitting the direct compensation of NCAA players certainly might produce civil rights issues at the margin. If players on negligible-revenue men’s teams but not women’s teams were paid stipends, this obviously raises serious Title IX issues. But there is no reason whatsoever to assume that paying athletes in sports that generate enormous revenues but not athletes in programs subsidized by the university violates the Civil Rights Act. And preemptively assuming that Title IX will be read to the left of the Communist Manfiesto by the many followers of Bob Avakian who sit on the federal courts is a unfathomably lousy reason to uphold a status quo in which no players are permitted to be compensated. (While I’m here, let me knock down another pretext for refusing to pay players: cross-subsidization. The first problem with the idea that most athletic programs will vanish if players are compensated is that the vast majority of athletic scholarships are given by schools that either don’t have football or have football and men’s basketball programs that don’t make money, strongly suggesting that there’s no basis for this assumption. The second problem is so what? There no fixed number of teams it’s inherently desirable for universities to maintain, and again this implausible preemptive assumption is not a good reason to maintain an unjust status quo.)

And finally let us return to an issue the NCAA’s apologists would prefer to avoid: the ban on the third-party compensation of players. I don’t think anybody could possibly argue that removing this ban would raise any Title IX issues. Nobody thinks that, say, a music student is forbidden from playing a paid gig unless every member of the music department gets the same gig for the same pay. And yet most of the people who grasp at Title IX as a pretext for defending the NCAA still favor maintaining the ban on third party compensation. This is because the defense of the NCAA has nothing to do with gender or labor equity and everything to do with a sentimental attachment to the fiction that big-time NCAA athletics are played by “amateurs.” The other pretexts emerge only because “players should be forced to work in a peonage system for my aesthetic pleasure” isn’t an argument most people want to make openly.