Labor & Employment Newsletter - June 2019

Date: 06/07/19

Intercollegiate Athletics and Collective Bargaining Agreements

By: Joseph "Ricky" Lefft

For close to a century, intercollegiate athletics under the umbrella of the National Collegiate Athletic Association (the “NCAA”) has operated under the amateurism model, as propagated by the courts, which have consistently held that athletes are students and not employees of the institutions of higher education in which they matriculate.  Thus the origin of the term “student-athlete”, which is a term of art denoting amateurism.  This determination by the courts, although arguably flawed in its reasoning, has provided substantial economic advantages to many of the NCAA member institutions as they generate large amounts of revenue from ticket sales, sponsorships, marketing and sales, lucrative television contracts, merchandising and licensing and sales of paraphernalia to fans with great affinities for their university athletic teams.  The revenue streams, which inure to the most prominent institutions such as those resident in what is referred to as the Power 5 (also referred to as the Big 5) conferences, mirror the sources of revenue generated by professional sports franchises in the major professional sports leagues which have historically been referred to as the Big 4 (i.e. the National Football League (“NFL”); the National Basketball Association (“NBA”); the Major League Baseball (“MLB”); and the National Hockey League (“NHL”)).  The fundamental difference between major college athletics, which has become highly commercialized, and its professional counterpart, in the 21st Century, is that one has access to relatively inexpensive labor costs with limited bargaining power and the other has substantial labor costs with greater bargaining power due to unionization and collective bargaining.  Collective bargaining provides the professional athlete with far greater power to negotiate not only compensation, but also benefits to include health and retirement benefits, long term medical care for catastrophic injuries, termination, guaranteed contracts and standard form playing agreements with clubs as well as a plethora of other issues such as second medical opinions and choice of physician in the case of surgery.  Needless to say, historically, the student-athlete engaged in “amateur intercollegiate athletics” has not enjoyed the benefits of bargaining by virtue of his or her status as decreed by the courts and the NCAA.        
Dr. Myles Brand, the first college president to be elected as the president of the NCAA, in defense of the “amateurism model” first coined the phrase the “Collegiate Model” in his 2009 “State of the Association” address in response to the massive amount of criticism the association was receiving regarding the increasing commercialization of college athletics while steadfastly refusing to pay student-athletes.   Dr. Brand stated that “student athletes should not be exploited for commercial purposes because they are students not professionals.”
The concept of the “Collegiate Model” has been under a constant barrage of scrutiny and criticism for over a decade commencing in 2006 with the White v. NCAA case and most recently culminating with a favorable decision in the Alston v. NCAA case resulting in substantial settlements (i.e. in the aggregate over $400 million dollars) and significant changes in the manner in which student-athletes are being supported financially by their member institutions.  Nevertheless, the concept of the amateur student-athlete persists even after such close examination by the courts as a barrier to pay for play.  The underlying premise of the “Collegiate Model” is essentially codified in the NCAA Bylaws Article 2.9 - The Principle of Amateurism.
Student athletes shall be amateurs in intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived.  Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.
As previously stated, the NCAA and the courts have historically held that college athletes are students and not employees of member institutions of the NCAA and are eligible to participate in intercollegiate competition based upon their amateur status.  Both the NCAA and the courts have defined college athletes as students and amateurs, despite the value of the Grant-in-Aid awarded to the athlete to attend the University which could represent hundreds of thousands of dollars, to include but not be limited to tuition, room and board, fees, and books and other costs of attendance at the institution which are capped by the NCAA.  Student-athletes have sought redress by various means to include unionization and litigation.
In March 2014, the football team at Northwestern University petitioned the Regional National Labor Relations Board to make a determination that the student-athletes receiving grant-in-aid were statutory employees as defined in Section 2(3) of the National Labor Relations Act (“NLRA”) and to direct an election in the unit of grant-in-aid student athletes.  Walk-on student-athletes were not included as they were not recipients of grant-in-aid as a result of their participation in varsity sports and therefore did not meet the requisite requirements to be deemed employees.  The Regional Director of the Chicago regional office found that the grant-in-aid scholarship athletes were employees as contemplated under the NLRA.   In making his ruling, he cited several key factors:
  • The student athletes performed services their employer benefitted from.
  • They received compensation (i.e. grant-in-aid).
  • For the compensation the employees were subject to the control of the employer in the performance of their football duties.
  • The employees spend between 50-60 hours per week during  their one month training camp, prior to the academic year, on their football duties
  • The employees spend 40-50 hours per week, during the academic year, during their 4 month season performing their football duties.
As a result of the decision by the Regional NLRB office, the 85 scholarship players held an election to determine if they would form a union.  Pending the outcome of a review and decision by the National Labor Relations Board, the ballots were left sealed.  The NLRB failed to uphold the regional office decision on the basis that the decision would only apply to private institutions within the NCAA which played FBS level football, most of which by a wide margin are public institutions and would not be subject to the Board’s jurisdiction.  The NLRB stated that it would not rule as to whether they had jurisdiction under Section 2(3) with regards to Northwestern but rather opted not to assert jurisdiction because Northwestern was the only private school in the Big Ten and therefore by asserting jurisdiction they could not promote stability in labor relations which is the intent of the legislation.  Further, the Board stated that because they could not regulate most FBS teams, asserting jurisdiction would not allow them to promote uniformity and stability.  The ballots for the election were never tallied and the outcome was never determined.  The NLRB stopped short of determining that they did not have jurisdiction and the authority to deem the Northwestern scholarship players as statutory employees.  The issue remains unresolved. 
As an alternative, student-athletes beginning with the White case in 2006 have been resorting to anti-trust actions against the NCAA.  The cases have been premised on Section 1 of the Sherman Antitrust Act which makes it unlawful to form a “contract, combination in the form of a trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states.” 15 U.S.C Section 1. 
In the White case the student-athletes argued that the grant-in-aid as capped did not represent the actual cost of student-athletes attending member institutions, but because of the limits placed on the composition and therefore by definition the amount of the scholarship, the student athlete was injured as they faced substantial financial distress due to the artificial cap placed on the value of the grant-in-aid the institution could award to an athlete.  After protracted litigation, the parties settled for $218 Million Dollars however, there was no acknowledgement by the NCAA of any antitrust violations under Section 1 of the Sherman Antitrust Act.  The question as to the legality under the federal antitrust laws of the NCAA’s practice of capping grant-in-aid awards to tuition, fees, room and board and course related books as “cost of attendance”, under Bylaw 15, as the principal means of preserving amateurism in Division I athletics was not resolved by the settlement in the case.
The principle of amateurism would come under further assault again in 2014 in O’Bannon v the NCAA.  Ed O’Bannon a former UCLA standout player filed a lawsuit against the NCAA alleging that the NCAA was engaged in agreements with EA Sports which permitted the use of his name image and likeness and that he had not granted authorization  to the NCAA or EA Sports to use his likeness without compensation.  O’Bannon v NCAA challenged the legality of the NCAA barring student athletes from being able to leverage their name, image and likeness for personal compensation under the guise of amateurism and an athlete’s eligibility (i.e. Bylaw 12). Under NCAA Bylaw 12 an athlete if receiving compensation from third parties based upon their athletic skills and abilities would be deemed to be ineligible for future competition.  O’Bannon’s focus was on Football Bowl Subdivision (“FBS”) and the elite Division I Basketball Schools.  Judge Wilkens, of the U.S. District Court, the N. D. Court of California, ruled that the NCAA rules prohibiting student-athletes from being paid for the use of their names, likeness and image unreasonably restrained trade in violation of Section 1 of the Sherman Act.  The judgement in favor of the plaintiffs permanently enjoined the NCAA from prohibiting its member schools from (1) compensating FBS football and Division I men’s basketball players for use of their name, images and likeness by awarding grant-in-aid up to the “full” cost of attendance at their respective schools through the use of stipends, or (2) paying up to $5,000 per year in deferred compensation to FBS football and Division I men’s basketball players for the use of their Names, image and likeness, through trust funds to be paid after graduation” The district court decision also noted that the NCAA and conferences could cap the amount of the stipends to be paid through the “full” cost of attendance.  The district court did not deem the amateurism model to be a violation of the Sherman Act, per se, but rather under the rule of reason analysis determined that there were some procompetitive benefits of the NCAA system with regards to the viability of intercollegiate athletics for both competitive and business purposes.   The decision stated that the preservation of “amateurism” in college sports and the integration of academics and athletics were prime differentiators from professional sports organizations.  On appeal the Ninth Circuit Court of Appeals overturned the district court’s position with regards to the payment of deferred compensation to student-athletes and their right to receive remuneration for their name, image and likeness stating that such a payment would be deemed non-educationally related compensation and therefore would be contrary to the concept of amateurism.   The key takeaways from O’Bannon are:
  • The NCAA’s rules regarding compensation of student-athletes are subject to antitrust laws.
  • The Plaintiffs were able to establish antitrust violations as a result of the application of the compensation rules. 
  • The application of the “rule of reason” analysis established anticompetitive purposes in terms of the application of the compensation rules with regards to the entitlement of athletes to benefit from their name, image and likeness.
  • The ruling permits member institutions to pay stipends to student-athletes up to the full coat of attendance without fear of retribution from the NCAA or its member conference.
  • The injunctions granted by Judge Wilkens do not require additional payment of cost of attendance by member institutions but permits them at their discretion to make such payments while maintaining the right of the NCAA to cap the cost of attendance.
Alston v NCAA was considered by many legal observers as a continuation of the White v NCAA case in that it directly addressed the issue of caps on athletics scholarships and the prohibition of forms of compensation not related directly to education.  The O’Bannon case set the stage with regards to antitrust challenges to the grant-in-aid system of compensation.  The court cited in its decision the changes in forms of compensation which have been permitted by the NCAA and the Conferences since the decision in O’Bannon.  As a result of the O’Bannon decision schools have been permitted to provide access to funds for disability policies, health care after an athlete completes their matriculation and certain performance base forms of compensation over and above the grant-in-aid as a result of changes in NCAA and conference legislation.  The plaintiffs in Alston sought to completely remove the cap on grant-in-aid to allow institutions to compete based upon the relative value of a recruit to the institution.  The court ultimately held that the NCAA could maintain the cap on full grant-in-aid scholarships, but it was enjoined from limiting the value of educationally related benefits which could be received by a student athlete in return for their matriculation to an institution.  The court also stated that NCAA could determine what the definition of “educational benefits” as it deemed appropriate but could not cap such compensation.  The court did however, reject the payment of performance based non-educationally related compensation deemed “pay for play”.  Thus preserving the principle of amateurism.
What is particularly interesting in both the Alston and O’Bannon cases is that the courts are very critical of the malleable nature of the definition of amateurism.  Judge Wilkens in the decision in the O’Bannon case mocked the idea that amateurism was a core principle of the NCAA as opposed to a mechanism by which to operate a successful business enterprise.
On reflection while the NLRB’s decision not to recognize the Northwestern football players as statutory employees, as defined by the NLRA, the irony of the determination is that as unions and employers, through the Collective Bargaining process, many of the anticompetitive practices of the NCAA, which are under significant scrutiny, would potentially be permissible under a labor exemption to the Sherman Act.  The greatest risk to the NCAA in the future, as it continues to promote the concept or ideal of amateurism is the growing commercialization of college sports and the proliferation of sports betting which will continue to drive more revenue into the FBS and Division I Basketball coffers.  As the Power Five institutions and the NCAA continue derive substantial amounts of revenue by leveraging the athletic abilities of student-athletes, many of whom will never play professionally, public sentiment and the sentiment of the courts may potentially shift as the institutions invest massive amounts of funding into facilities, dormitories, and salaries for coaches and administrators to the exclusion of the student-athlete.

Proposed Title IX Rule Changes Provide Clarity for Schools, Support for Survivors and Due Process Rights for All

By: Kevin McCormick

In November 2018, the U.S. Department of Education (“DOE”) released its proposal for improving a school’s response to sexual harassment and assaults.  The proposed regulation addressing Title IX, the Federal Civil Rights Law that prohibits discrimination on the basis of sex in education programs or activities that receive federal funding, was in the works for more than a year with input from students, advocates, school administrators and other stakeholders, with strong support from Betsy DeVos, the Secretary of Education. 

The DOE’s proposed rule takes important, and controversial, steps of defining sexual harassment under Title IX, how it should be reported, how schools should investigate such reports and insure that due process protections are in place for all students.

Key Provisions

The proposed rule, which is not yet final, would require schools to respond meaningfully to every known report of sexual harassment and to investigate every formal complaint.
The proposed rule also highlights the importance of supportive measures designed to preserve or restore a student’s access to the school’s education program or activity, with or without formal complaint.  Supportive measures could include the following: academic course adjustments, counseling, no-contact orders, dorm room reassignments, leaves of absence and/or class schedule changes.

When there has been a finding of responsibility, the proposed rule would require remedies for the survivor to restore or preserve access to the school’s education program or activity.  The proposed rule would require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to state law “rape shield” protections.

Colleges and universities would also be required to hold a live hearing where cross-examination would be conducted through the party’s advisors.  Personal confrontation between the complainant and the respondent would not be permitted.  Moreover, to promote impartial decisions, schools would not be allowed to use a “single investigator model.”  If an appeal is available under the school’s policy, both parties must have that right. 

Finally, consistent with court rulings in Title IX cases, the proposed rule defines sexual harassment as unwelcomed conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity. 

The goal of the proposed rule is to ensure that Title IX grievance proceedings are more transparent, consistent and reliable in their process and outcome.

Under the prior procedures issued by the Obama administration, the “Dear Colleague letters,” there were serious concerns over the far reaching effect those procedures had on college campuses.  Under the prior policies, virtually everyone on campus was deputized to report anything that could constitute a sexual violation, including rumors and hearsay.  Most school employees were designated as mandatory reporters responsible for alerting Title IX officials about possibly questionable sexual encounters, even if a supposed victim had no interest in reporting.  As a result, students were being labeled as perpetrators and punished even when no victim came forward to press any claims.  Moreover, one of the most criticized mandates was the requirement that schools assess allegations of sexual misconduct using the lowest legal standard or a “preponderance of the evidence.”  Under the proposed rules, schools would have the option to use a higher standard of “clear and convincing evidence” in evaluating Title IX claims. 

The proposed rules would also allow for an accused victim to cross-examine his or her accuser.  Under the prior guidance, such a practice was discouraged. 

Time will tell whether the proposed regulations achieve their stated objectives. The 60 day comment period on the proposed rule changes has closed and now the DOE is wading through the more than 100,000 comments to determine what, if any, changes should be made to the proposed rule that process could take many months to complete. However, the proposed changes are seen by many as a good start in reigning in the excesses of the prior Title IX procedures.

Ethical Misconduct in Coaching

By: Mark C. Franco and Steven E. Bers

The recent news of athletic department recruitment scandals - accepting bribes to gain admissions using dedicated roster spots for non-athletes - and for the practice to so easily escape detection is diagnostic of a greater issue within the results-oriented world of collegiate athletics.1 An environment conducive to ethical misconduct may exist where rules are stretched, improprieties are overlooked and whistleblowing only occurs at great personal risk, both for athletic department employees, as well as students.  Inadequate oversight of unethical misconduct can result in severe consequences, such as the recent and tragic death of a University of Maryland athlete.  In that case, an entire University Board was forced to functionally admit a major athletic program oversight.   Schools and universities must take steps now to ensure that oversight of ethical misconduct, particularly in the athletic department, is being handled appropriately.

Ethical misconduct by coaches and related staff is not confined to small or ill-run universities, with institutions such as Yale University, Stanford University, Georgetown University, Michigan State University, and the University of North Carolina, all named in recent times.  Additionally, the type of alleged misconduct has varied widely from incident to incident, and no sport seems immune, be it football, rowing, gymnastics, basketball or tennis to name some recently involved.   

Universities and even high school programs need competent and experienced legal counsel for guidance in these matters.  Case in point, last year, a lawsuit was filed against a high school, its baseball coaches, and the school district in Albuquerque, New Mexico by parents of a junior varsity player who claimed to have been subject to mental and physical abuse by the coaching staff.2  The parents initially raised their concerns with the varsity head coach, but the abuse continued and even worsened.  The abuse is said to have led the player to abandoning the sport. The attorneys at Whiteford Taylor & Preston have experience with such matters and have been called in to assist with preventative consultations, as no institution can proceed indifferently to the sizable monetary exposure, damage to public reputation and alumni loyalty that can result from missing the opportunity to put pro-active measures in place. 

It is important for institutions at all levels to have a program in place to address ethical misconduct.  The Society for Human Resource Management has promulgated six elements for an ethics policy and program.3  These elements include:  1) written standards of ethical conduct, 2) ethics training, 3) ethics resources, 4) a confidential reporting process, 5) evaluations of ethical conduct and 6) disciplinary procedures.4  Athletic departments, coaches, assistant coaches and trainers will all be less able to engage in unethical conduct if, through instructional sessions and the distribution of materials emphasizing ethical values, ethics are raised to the same importance as winning.  It will certainly be a bitter pill for some institutions, so dependent on athletics as a revenue engine, to abandon “winning at any cost,” as a department credo.

Clear policies alone do not deter or minimize future incidents of unethical conduct if no effective detection or enforcement process is put into place.   The NCAA has extensive rules, yet detection by a school still may not happen until years later by some inadvertent means as was with the case with the University of Louisville’s coaching staff misconduct exposed by Katrina Powell.5  Also, training must occur on both the standards and the process to enforce the standards.  In 2015, a high school coach won a settlement after being ousted following a questionable investigation by the school.6

An open and transparent culture is another key component to a strong ethics program.  Each program needs to overcome any culture deterring whistleblowing.   Retaliation is a very real concern for victims of ethical misconduct and may deter many victims from coming forward with official complaints.  It is no easy task for a student to risk his entire athletic future, as well as his free-tuition, at the risk of complaining about his coach.  It is also difficult for an assistant coach, hoping to move up, to whistle blow about the very people from whom he will seek a recommendation for the next possible opportunity.   No system of ethical expectations will work, unless the developed policies, and the enforcement of those policies, provide the strongest assurance of protection against retaliation.  

Finally, athletic departments are not the only ones susceptible to ethical concerns and should not ever be regarded as the ethical bad boys of any college.   The need to establish ethical expectations must be prioritized across the entire organization – from the researcher who may fudge the data, to the author who may lift ideas or to a member of the Board of Directors who fails to question business transactions with companies in which a director has an economic interest.

Whiteford Taylor & Preston attorneys regularly provide ethical guidance, both pro-active and investigatory, to all industries, to government, to for profits and not-for profits, and are capable of guiding athletic departments at universities, colleges and private schools as well.

Is the Playing Field Level?

By: Tiffany M. Releford & Jennifer S. Jackman

The issue of gender equality in sports is front and center.  While not a new issue, recent lawsuits are challenging the practice of paying female athletes substantially less for similar work than male athletes. 

In 2017, the history of gender inequity in sports was highlighted in the motion picture, Battle of the Sexes.  The film depicted the epic, nationally televised, 1973 tennis match between female tennis star Billie Jean King and her male counterpart Bobby Riggs, portrayed as a male chauvinist.  King was the first female tennis player to win over $100,000 in a year prior to this epic match.  The tennis match between these players sent an important message that women deserved the same amount of prize money and respect as males.  As set forth in this article, this message continues to resonate today in sports.

Title IX:  High School and College

Gender equity in sports starts in preschool, with Title IX prohibiting gender discrimination in athletic programs receiving Federal financial assistance.  Schools must ensure that their athletic programs (1) accommodate the interests and abilities of the students as a whole and (2) that specific program components required under Title IX are equal for males and females.  Although Title IX has been around for over 47 years, schools are still finding themselves in the crosshairs for claims of discrimination in sports programs.  In October 2018, the Lauderdale County School District in Mississippi settled a Title IX lawsuit alleging inequities between the baseball and softball programs.  Eastern Michigan University recently found itself on the receiving end of an injunction requiring reinstatement of the women’s tennis program, despite the fact that the school cut men’s programs too.  Red Bluff Joint Union High School settled a lawsuit arguing that the facilities for girls’ sports were not comparable to those provided for the boys.  After the girls’ varsity coach voiced concerns over the inequality, her contract was not renewed, which gave rise to a retaliation complaint.  Title IX’s reach is far and courts continue to hold that financial hardship does not excuse Title IX’s requirements.  Ensuring the right balance is not easy but schools should conduct audits of their entire programs to identify any possible areas needing balance and not rely on financial burden as an excuse.

Professional Sports

During the last few years, we have seen a number of lawsuits across the country filed by professional female NFL cheerleaders regarding low wages. Historically, cheerleading was a prestigious sport for men, with five former U.S. presidents having been college cheerleaders.  However, the landscape has since changed with the sport being dominated by women, which has brought pay disparity issues to the forefront.  By way of example, in 2014, former Buffalo Jills cheerleaders sued the NFL and the Buffalo Bills alleging they were paid less than minimum wage and required to work team appearances for free.  That same year, an Oakland Raiders cheerleader sued the Oakland Raiders for wage theft.  In 2017, a class action lawsuit filed by a former San Francisco cheerleader, on behalf of other NFL cheerleaders, against the NFL and 26 of its teams alleging the NFL and the teams engaged in collusion to suppress their wages was dismissed.  The Court found no evidence was presented of collusion or violations of antitrust laws.  However, that decision did not prevent other former NFL cheerleaders from filing similar claims regarding pay inequity.   In 2018, former NFL cheerleaders sued the Houston Texans alleging, among other things, that they have been paid less than minimum wage, paid less than what they were promised, and/or not paid overtime for their work on game days and for other team related activities.  While many of the lawsuits are settled, they are an example of the lingering issues regarding pay in sports, especially those generating revenue in the billions.

Bottom line is that pay disparity in professional sports is rampant. Consider the difference between what professional baseball players earn compared to professional softball players and men’s professional basketball players when compared to their female counterparts.  Whether or not they are performing equal work is hotly contested.

A case filed by the U.S. Women’s Soccer team against U.S. Soccer, alleging that U.S. Soccer has a policy and practice of discriminating against the women’s national team, by paying them less than similarly situated members of the men’s team will address the issue of whether the female athletes are doing equal work for less pay.  To prevail on an Equal Pay Act claim, the players must prove that they do equal work for less pay, which can be difficult to prove.  If there is a disparity, U.S. Soccer can prevail if it shows a seniority system, a merit system, a pay system based on quantity or quality, or, the catchall, any fact other than sex.  The Women’s Soccer team has some good facts on their side:  they have consistently been more successful than the men’s team but are paid markedly less.  That said, the collective bargaining agreement could be a hindrance on their claim, and U.S. Soccer will certainly argue that the women’s team is less profitable than the men’s.

There are also success stories for female athletes pursuing equal pay, which are on the rise.  In March 2017, after the women’s national hockey broadcasted that it would boycott the world championship if U.S.A. Hockey did not increase their wages, U.S.A. Hockey responded swiftly by increasing the female athletes training stipend and prize money.   Likewise, female surfers challenged the industry’s practice of having substantially larger prize money for the male surfers than the females, despite participating in the same sport.  In 2018, the California state agency that issues permits for a major surfing competition in Half Moon Bay required equal pay for prize money for men and women as a condition precedent for granting the permit for the event.  While there is a long way to go, we are slowly beginning to see change.

Coaches and Athletic Directors

Is the playing field level for coaches?  Are the women leaders paid the same as their male counterparts for the same work?  College coaches and athletic directors generally have three avenues in federal law to challenge unequal pay:  Title IX, Title VII and the Equal Pay Act.  Challenging pay under Title IX is difficult. The U.S. Department of Education’s Office of Civil Rights (“OCR”) focuses the inquiry on the effect on the athletes – not the coaching staff.  Specifically, according to the OCR, a school violates Title IX with regard to pay to coaching and athletic directors only if it denies the female athletes access to coaching of equivalent quality, nature or availability by paying the women’s coaches less than the men’s coaches. Title VII, however, focuses on the effect on the coach, not the athlete.

State and local statutes may provide additional avenues for pay equality claims.  For example, Massachusetts enacted a pay equity statute that prohibits employers from paying wages less than that paid to employees of the opposite sex for work of like or comparable character. This law and Harvard’s internal review of its compensation structure resulted in Harvard announcing that there was disparity in pay and that it was changing its compensation system for coaches.  This change resulted in proactively adjusting the salaries of some coaches and implementing a compensation system that considers various factors including coaching level, program size, revenue generation, and level of experience.  With other state and local jurisdictions enacting broader laws, universities should be proactive in implementing change before being subject to a challenge.


So how do we level the playing field?  Below are some considerations to minimize pay disparity issues:
  • High schools and colleges should conduct audits of their entire programs, to ensure that their athletic programs comply with Title IX and proactively implement changes.
  • Universities and professional sports programs should review their compensation packages to ensure they are gender neutral, comply with federal law, and be able to articulate and prove factors other than gender as being the cause of any pay disparities. 
  • Universities and professional sports programs should review the state and local laws to ensure they are compliant with broader protections that may exist.

4.  Id.