PREPARING YOUR STUDENT ATHLETE FOR COLLEGE
(NCAA Regulation and Legal Issues to Consider)
The rules governing intercollegiate athletics are not only complicated, but change yearly. This article will attempt to explain and summarizethe regulations of the National Collegiate Athletics Association (NCAA) and laws that your student-athlete will have to abide by to stay eligible and excel during his or her college athletic experience.
The two major regulatory bodies that govern college athletics are NCAA and the National Association of Intercollegiate Athletics (NAIA). The NCAA is a voluntary association of about 1,281 institutions, conferences, organizations and individual conferences, organizations and individuals that organize the athletic programs of colleges and universities in the United States. Its headquarters are located in Indianapolis, Indiana. The NAIA has about 300 member institutions and its rules and regulations are far less complicated and controlling that those of the NCAA. As a college attorney for over ten years, I found that if the NCAA rules were followed, a college would also be in compliance with the rules of the NAIA. Therefore, this article will focus totally on NCAA compliance.
Length of Eligibility
Student-athletes may not engage in more than four seasons of competition in any one sport within five calendar years. The five year clock starts when the student-athlete initially registers in a regular term of an academic year for a minimum full-time program of studies (12 credit hours) and attends his/her first day of classes for that term.
A student-athlete uses a season of competition if he/she participates in any competition, regardless of the length of time, during a season. For example, if an athlete plays in one minute of one game, he/she has used a season of competition in his/her sport. A student-athlete who does not compete at all during one of his/her seasons will not use a season of competition. This is commonly referred to as a “redshirt” year. An athlete only receives one “redshirt” year within his/her five-year period.
A medical hardship is a form of relief that a college athlete will receive after his college’s application to the athletic conference of the college if:
- The athlete’s injury or illness was incapacitating;
- The injury (or illness) occurred during the first half of the season and before competition in more then two contests or 20% of the season’s scheduled contests (whichever is greater); and
- The injury or illness is supported by contemporaneous medical documentation.
If the application is successful, successful, the effect of the medical hardship is that the student-athlete’s participation does not result in the use of a season of competition and the year that has passed does count against the student-athlete’s five-year clock. The hardship year will be treated like a red-shirt year.
NCAA member colleges may provide a student-athlete with a maximum of four complimentary admissions to regular season home and away competitions, regardless of whether the student-athlete competes in the contest. Student-athletes may not receive “hard” tickets, as complimentary admissions may be provided only through a pass list for individuals designated by the student-athlete. Student athletes may assign complimentary admissions to family members, relatives and friends.
Providing complementary admissions without the use of hard tickets lessens the temptation that players will scalp the tickets. Ticket scalping is the process of legitimately purchasing a ticket (or large numbers of tickets) from a legitimate source and then reselling the tickets on the street for more money than the legitimate price. Most States have adopted laws regulating ticket scalpers and provide for civil and criminal penalties. Scalping can be a highly profitable business, particularly when the event is in high demand. Of course scalping tickets is a serious violation of NCAA regulations.
National Letter of Intent
Division I, Division II and NAIA athletes are the beneficiaries of athletic scholarships (sometimes referred to as grants-in-aid). The athlete signs an agreement with the college or university in the form of a letter of intent, which is a binding agreement between the athlete and an institution. This agreement provides that in exchange for the athlete’s services in their sport, they will have tuition, room and board, and books paid for by the institution. However, no financial compensation may be awarded to athletes in exchange for their athletic talents in that particular sport.
There are questions, however, as to the validity of such agreements if a letter of intent were challenged in court. It appears that technically, NCAA formal regulations do not require such an agreement as a prerequisite to participation in NCAA-governed sports, though the NCAA manual does refer to the letter of intent program. The National Letter of Intent Program is actually not administered by the NCAA but rather through the College Commissioners Association (CCA). The CCA has administered this program for 30 years and has no reported lawsuits against it. However, hundreds of appeals are filed each year with respect to letters of intent, particularly when prospective athletes sign to play with a college or university and the coach who recruited them is no longer employed at the college when the athlete later enrolls in school. In such a situation the athlete sometimes desires o transfer to another school.
Many letters of intent are signed by high school seniors who may not have reached the age of 18. This raises an issue to the validity of the contract which is what this letter of intent is meant to be. The law generally presumes that everyone has the capacity to contract. But if a party does lack capacity, then the contract is usually voidable and the party without capacity may avoid the contract. An athlete under the age of 18 is legally not competent to enter into a contract.
With some exceptions, a contract made by a minor is voidable. The minor, in other words, may avoid the legal liability under a contract. Upon reaching the age of majority, a minor may affirm or ratify the contract and therefore make it contractually binding on him. Therefore, the legal capacity of the minor must be taken into consideration in determining the validity of a letter of intent.
This financial agreement brought about by a letter of intent is valid for one academic year only. It does not guarantee that the student-athlete will receive athletics aid in excess of his/her first year of enrollment at the institution. This agreement remains binding even if the student-athlete’s coach leaves the institution with which he/she signed. If the student-athlete does not attend the institution or attends the institution for less than one academic year, the athlete will face the penalty of illegibility should he/she transfer to another NCAA institution?
It is permissible for student-athletes to work during the academic year and vacation periods. There is no limit on the amount of money a student-athlete can earn during the academic year or vacation periods.
Should a student-athlete work, he/she may be paid only for work actually performed and at a rate comparable with the going rate in the locale for the type of work performed. A student-athlete’s compensation may not include any remuneration for value or utility that the student-athlete may have for the employer because of the publicity, reputation, fame or personal following that he/she has obtained because of athletics ability. Student-athletes may not receive any special discounts or services from his/her employer unless they are provided to all employees.
Student-athletes may not receive transportation to and from work, health benefits, vacation/sick time, bonuses, etc. unless the same benefits are available to all employees.
A student-athlete may not receive athletics aid in excess of a full grant-in-aid. A full grant-in-aid is defined as financial aid that consists of tuition and fees, room, board and required textbooks. Institutions cannot award athletics aid to a student-athlete in excess of one academic year. It is a common misconception that an athlete’s aid is guaranteed for four or five years. In reality, at the end of each academic year, the head coach has the option to renew, reduce or cancel the athletics aid.
However, a college may not decrease or cancel a student-athlete’s athletic aid during the period of the award (i.e., for that academic year) on the basis of the student-athlete’s athletics ability, performance or contribution to a team’s success. Such aid cannot be cancelled because of an injury, illness or physical or mental medical condition. A college or university may reduce or cancel a student’s athletic aid during the period of the award if the athlete renders himself or herself ineligible for intercollegiate athletics competition such as by seriously violating an NCAA regulation.
One area that causes serious concern and raises the greatest number of questions involves the receipt by an athlete or his family of an “extra benefit.” An “extra benefit” is defined as any special arrangement by an institutional employee or booster to provide a student-athlete or the student-athlete’s family or friends a benefit not authorized by the NCAA. The receipt of a benefit not authorized by NCAA regulations by a student-athlete or his/her family will immediately place the student-athlete’s eligibility for athletic competition in jeopardy. Examples of extra benefits include, but are not limited to, the following:
- A special discount, payment arrangement or credit on a purchase or service (e.g., dry cleaning, legal representation, or even groceries);
- Free housing or housing at a reduced cost;
- Use of an automobile;
- Free movie tickets, restaurant discounts or discounts at clothing stores; and
- Cash, gift certificates or any other items with value.
An athlete also must be aware that the NCAA has imposed limitations and boundaries on the kinds of interactions an athlete may have with people whom the NCAA defines as “representatives of the college’s athletics interests” or boosters. A booster is an individual who is a member of an organization that supports and promotes a college’s athletic program; made any financial contributions to the athletics department been involved in promoting the school’s athletics program; been a season ticket holder or provided benefits to enrolled student-athletes or their relatives or friends. Student-athletes and prospects are held responsible for understanding rules involving boosters. Contact with a booster that is prohibited by NCAA Regulations could detrimentally affect a prospect or student-athlete’s NCAA eligibility.
There may be circumstances when someone other than a parent or legal guardian (like a friend of the family) may provide a student-athlete with a benefit or service. The NCAA uses the following four questions as guidelines in determining whether to penalize a student-athlete or his or her school for receipt of such benefits.
1. Did the relationship between the student-athlete (or the student-athlete’s parents) and the individual providing the benefit(s) develop as a result of the athlete’s participation in athletics?
2. Did the relationship between the student-athlete (or the student-athlete’s parents) and the individual providing the benefit(s) predate the athlete’s status as a prospective student-athlete?
3. Did the relationship between the student-athlete (or the student-athlete’s parents) and the individual providing the benefit(s) predate the student-athlete’s status achieved as a result of his/ her athletics ability or reputation?
4. Was there a pattern of benefits provided by the individual to the student-athlete (or the student-athlete’s parents) prior to the student-athlete attaining some level of fame as a skilled athlete, and is this pattern of benefits similar in nature to those provided after attaining such fame?
Once a student-athlete begins taking classes at his or her college or university, the athlete will be expected to maintain certain academic standards in order to be eligible for practice and competition. NCAA legislation requires that student-athletes maintain progress toward a degree in order to maintain their academic eligibility.
In general, to be eligible to participate in practice and competition, an athlete must be enrolled in a minimum full-time program of studies (i.e. 12 credit hours). As the athlete progresses through each term, he or she is required to meet additional academic requirements.
- First, student-athletes must complete a minimum of six credits per term (excluding summers) to be eligible for competition the next term.
- In addition, student-athletes must complete a minimum of 18 credits during the academic year.
- In addition to credit hour requirements, athletes must earn a minimum grade-point average each term of enrollment.
- As these students enter their third year of enrollment, they are required to designate a degree and make progress toward that degree by completing a minimum percentage of requirements for that degree program.
- Student-athletes who fail to meet NCAA academic standards will be rendered ineligible for competition until their academic deficiency has been corrected.
Sports Bribery and Game Fixing
The NCAA opposes all forms of legal and illegal sports wagering. Sports wagering includes placing, accepting or soliciting a wager of any type with any individual or organization on any intercollegiate, amateur or professional team or contest. Examples of sports wagering include, but are not limited to, the use of a bookmaker or parlay card; Internet sports wagering; auctions in which bids are placed on teams, individuals or contests; and pools or fantasy leagues in which an entry fee required or there is an opportunity to win a prize.
Sample College Policy
A student-athlete is not eligible to compete if he/she knowingly
- Provides information to individuals involved in organized gambling activities concerning intercollegiate athletics competition,
- Solicits a bet on any intercollegiate team,
- Accepts a bet on any team representing the institution,
- Solicits or accepts a bet on any intercollegiate competition for any item (e.g., cash, shirt, dinner) that has tangible value, or
- Participates in any gambling activity that involves intercollegiate or professional athletics, through a bookmaker, parlay card, or any other method employed by organized gambling
In 1992 Congress enacted the Professional and Amateur Sports Protection Act that prevents states from sponsoring sports-based betting other than in Nevada, Oregon, Delaware, and Montana. Since gambling often involves interstate commerce, Article I of the U.S. Constitution allows the federal government to regulate this activity. Sports gambling involves professional and amateur contests. Gambling can be addictive, a danger to the emotional and financial well-being of the gambler. Sports gambling is a major concern on college campuses. The basis for the concern about sports gambling is that games fixed by players, coaches, trainers, or others defeat the ideal that the outcome of a sporting event is left to chance and skill. An important issue in professional and amateur sports is the role that the athletes, coaches, and even sports officials themselves might play in altering the outcome of a game in order to profit from betting on a loss, victory, or point spread.
Federal legislation and numerous state laws have addressed the issues of fixing games and point-shaving, especially after the gambling scandals involving athletes in the 1990s. Federal and state legislation guards against bribery in sports contests by providing for fines and/or imprisonment.
College athletes have become targets for illegal gambling activities, particularly since student-athletes are not paid for their services. Additionally, there have been recent attempts to outlaw all betting on any Olympic, college, or other amateur sports nationwide. More than $500 million is wagered on intercollegiate sports each year in Nevada.
In October 1951, three University of Kentucky players were arrested for taking bribes to shave points in a game in New York’s Madison Square Garden two years earlier. In November 1981, Rick Kuhn and four others were found guilty and sentenced to jail for game fixing. Kuhn was a member of the Boston College basketball team. In 1995, Kevin Pendergast, a placekicker from Notre Dame placed a bet of $20,185 in Las Vegas that Northwestern University’s basketball team would lose to the University of Michigan by 25.5 points. Pendergast, along with Dewey Williams and Dion Lee (both Northwestern players), agreed to shave points in exchange for money. All three were found guilty and sentenced to prison.
Student-athletes are therefore prohibited from participating in the following activities:
- No wagers may be made for any item (e.g., cash, dinner, and clothing) or for any service (e.g., car wash, house cleaning) on any collegiate, professional, or amateur competition or practice.
- Sorts “pools” are not allowed.
- No Internet gambling on sports events.
- No fantasy leagues that award a prize or require a fee to participate.
- No exchange of information may be made about the athlete’s team with anyone who gambles including information about injuries, new plays, team morale, discipline problems, etc.
- A student-athlete who participates in any sports wagering activity involving his or her school or who engages in activities designed to influence the outcome of an intercollegiate contest or in an effort to affect win-loss margins (“point shaving”) shall permanently lose all remaining regular-season and postseason eligibility in all sports.
Each year college athletics department receive many requests from the community for student-athletes to make public appearances. It is permissible for athletes to participate in promotional activities, provided certain criteria are met.
- Student-athletes may not allow their name, picture or personal appearance to advertise, recommend or promote the sale or use of any commercial products, services or businesses.
- Student-athletes must receive written approval from their school’s Compliance Office prior to participating in any promotional activities.
- The student-athlete may not miss class.
- The athlete may not receive payment for their appearance at a promotional activity.
CONSEQUENCES OF NCAA RULES VIOLATIONS
A violation of NCAA rules by a student-athlete will immediately put his/her eligibility to compete in intercollegiate athletics in jeopardy. In addition, a violation of NCAA rules by the parents, relatives and/or friends of a student-athlete can have a similar affect. As a result, the eligibility status of an athlete may technically be adversely impacted by the actions of their parents or others (e.g., boosters), even if the student-athlete did not have any direct knowledge of the events and circumstances that led to the violation of NCAA rules.
NCAA Contracts and Amateurism
A sample college policy on amateurism and the NCAA is as follows:
As a member of the NCAA, State University requires that all of its student-athletes be amateurs in their sport. You are a professional if you:
- Are paid (in any form) or accept the promise of pay for playing in an athletics contest;
- Sign a contract or verbally commit with an agent or a professional sports organization;
- Ask that your name be placed on a draft list (Note: in basketball, once you become a student-athlete at an NCAA school, you may enter a professional league’s draft one time without jeopardizing your eligibility provided you are not drafted by any team in that league and you declare your intention in writing to return to college within 30 days after the draft);
- Use your athletics skill for pay in any form (for example, TV commercials, demonstrations);
- Play on a professional athletics team; or
6. Participate on an amateur sports team and receive any salary, incentive payment, award, gratuity, educational expenses or expense allowance (other than playing apparel, equipment and actual and necessary travel, and room and board expenses).
NCAA legislation states that only an amateur athlete is eligible for intercollegiate athletics participation. A student-athlete may jeopardize his/her amateur status if he/she has inappropriate contact with an agent or their representatives. Even contact by an agent with the athlete’s parents can be a violation it is an attempt to persuade the athlete to allow the agent to represent the athlete.
A student-athlete may not agree, either orally or in writing, to be represented by an agent for the purpose of marketing his/her athletics ability or reputation in a sport. In addition, it is not permissible for a student-athlete to enter into a verbal or written agreement with an agent for representation in future professional sports negotiations once his/her collegiate eligibility has expired in that sport. In other words an athlete cannot agree in 2009 that in 2014 the athlete will sign a representation agreement with the agent.
It is permissible for a student-athlete to secure legal advice from a lawyer concerning a proposed, professional sports contract, provided the lawyer does not represent the student-athlete in negotiations for such a contract. A lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (in person, by telephone or by mail) with a professional sports organization on behalf of the student-athlete or the athlete will lose his or her eligibility even if he or she chooses not to turn professional at that time. A lawyer’s presence during such discussions is considered representation by an agent. The attorney can only unilaterally advise the athlete regarding a proposed contract and matters related to that contract.
A student-athlete may only sign a contract for representation with an agent when the student-athlete has used up all eligibility or has decided to forego any remaining eligibility. A student-athlete may, however, inquire of a professional sports organization about eligibility for a professional league player draft or request information about his/her market value without affecting his/her amateur status.
Transferring to another Institution
If a student-athlete decides to transfer to another institution (regardless of the division) the athlete must first receive permission from his/her head coach before talking to the second institution. If the student-athlete does not obtain permission to contact the second institution, the coach from that institution may not have any written or verbal contact with the student-athlete. The general rule regarding transferring from one Division I institution to another Division I institution is that the student-athlete must serve one academic year in residence (i.e. must sit out) at the second institution before being eligible for competition.
Criminal law is certainly a factor to be considered in sports. For example, numerous federal and state laws outlaw the use of certain performance-enhancing drugs, sports gambling, ticket scalping, sports bribery, and the influence of organized crime in sports. Additionally, sports agents who fail to register with the appropriate state agency in some states or those who offer financial inducements to a student-athlete may be subject to criminal and civil penalties for such actions. Much of the violence found in sports would constitute crimes against the person if it occurred outside the sports contest. Players hit, punch, check, trip, and commit other aggressive and violent acts during the course of a sporting event. Such conduct is usually considered part of the game, but occasionally the conduct is so outrageous that a criminal charge might be warranted. Some states are adopting legislation to address intentional injuries to sports participants, particularly sports officials.
Athletes in contact sports are trained to be aggressive and are often encouraged to make violent plays even as children. In the sports of football, hockey, and boxing, for example, participants are encouraged from a young age to hurt the opponent. Clearly, this is the ultimate goal of boxing.
Are hockey players encouraged to use their sticks as potentially deadly weapons? Are football players taught to hit each other by leading with their head and hitting a vulnerable opponent? Should the aggressive and sometimes out-of-control behaviors by athletes during a sports contest be subject to criminal law?
General Criminal Law Principles
Burden of Proof: Prosecutors who believe that illegal behavior has occurred during a sports contest must prove their criminal case beyond a reasonable doubt. This is more difficult than the preponderance of evidence test in tort law. It is more difficult to prove that a defendant is guilty of a crime than liable in tort. If the defendant is found guilty of a crime, the judge must then render a sentence. Most criminal laws dictate a minimum and maximum sentence, and the judge must consider mitigating factors that might reduce a sentence.
Defenses to Criminal Charges
The defenses to crimes of consent to contact, self-defense, and a general reluctance by the federal and state government to prosecute alleged crimes have limited the exposure of criminal law in the sports context. Additionally, if a player reasonably fears imminent harm by an opposing player, the defense of self-defense can often overcome the prosecution’s attempt to show intent to injure.
The essence of criminal law is that the perpetrator has formed an intent to commit a crime and then carried out that intent. Such intent is referred to as the mens rea, and the act itself is called the actus reus. Both elements are necessary for most criminal convictions. A person cannot be punished for having criminal thoughts alone. However, the crime of conspiracy does punish wrongdoers for agreeing to commit a future crime. Additionally, if an individual attempts to commit a crime and fails, he or she may be punished; attempted murder is one example. In other words, the attempt was a crime even though it failed. To get a criminal conviction, the prosecutor generally has to prove that the defendant had the intent to commit an unlawful act.
Assault and Battery
The crimes of assault and battery would likely be the most prevalent crimes in sports. An assault is a willful attempt or willful threat to inflict injury upon another person. It is also defined as intentionally placing someone in fear of imminent bodily harm. A battery is the actual intentional physical contact. It is sometimes referred to as a successful assault. When an assault and/or battery involves a weapon, serious bodily injury, deadly force, or when the assault or battery is committed in conjunction with another crime, the term aggravated is often used.
It was in American football that athletic violence was first questioned on a governmental level. In 1901, six American university football players died while playing in games. The press of the day condemned the deadly violence that had occurred and demanded changes in the sport. University presidents threatened to end all collegiate contests. In 1905 The President of the United States, Theodore Roosevelt, a former collegiate boxer at Harvard University, stepped in and forced collegiate officials to change the rules of football to protect the players. He threatened to stop all football playing if the rules were not changed and implemented by the next season. Roosevelt prevailed, and American football survived its first threat.
Illegitimate Sports Violence
In contact sports players often suffer injuries. However, at what point (if any) does an injury as the result of honest play turn into an injury due to intentional and excessive use of force by a player that might subject him to criminal liability? Much of the analysis of the criminal law application in sports context comes from hockey and the Canadian courts. Currently only a few major cases appear to set a standard for prosecuting athletes for violence sorts. Where the line is drawn between acceptable (within the rules) and unacceptable (outside the rules) violence remains unclear.
In 1969, Wayne Maki of the St. Louis Blues hockey team swung his stick at Boston Bruins player Ted Green and fractured his skull in a preseason exhibition game in Canada’s capital of Ottawa. Both players were involved in two fights in the same game, and both were thereafter charged with different forms of assault. Maki’s case was dismissed under the theory of self-defense, but the court refused to differentiate between sports contests and real-world violence. In the Green case, Green was found not guilty because it was held that his actions were an involuntary reflex to be part of the roughness of the game. No conviction resulted in either case, but the court noted that sports were not immune from criminal prosecution.
Criminal assault occurs when one unjustifiably and intentionally uses force upon another with intent to cause injury. The crime usually involves a threat of harm, coupled with improper contact with the other person. As every fan knows, ice hockey involves considerable body contact and occasional fighting. Many consider the hits, blows and fights as a part of the game. The NHL has rules regarding penalties for such infractions. Over the years, many have been hurt in hockey altercations, but few cases have gone to criminal court. However, over the past decade, the courts have begun to convict players more frequently for on-ice assault. And, where the courts initially differentiated between conduct that was incidental to the game and in the heat of the moment, from conduct occurring after the play was over, recent court decisions are now simply finding incidents that occur during the course of play to be excessively violent. Since the most common defense to excessive violence is consent, the court in Regina v. Cey, 48 C.C.C. (3d) 480 (1989) developed a five part test to determine if valid consent exists in the context of an athletic event. They are: “(1) Nature of the game; (2) nature of the act; (3) the degree of force employed; (4) the degree of risk of injury; and (5) the state of mind of the accused.”
Certain individual or collective conduct during a sports contest would likely be prime targets for criminal charges if they occurred outside the sports arena. However, prosecutors rarely charge athletes for acts committed during a game. Many people believe that leagues themselves should regulate violence in sports. There have been several attempts at the federal level to regulate sports violence, such as proposal of The Sports Violence Act of 1980. This act would have imposed up to one year in prison for professional athletes who knowingly used excessive force during a game. However, it failed to gain enough votes. Another proposed act, the Sports Violence Arbitration Act of 1983, failed to create a sports court for excessive violence.
Internal League Controls
Violence in sports has become so prevalent that professional sports leagues and other governing bodies have had to police such activity themselves and provide punishment (i.e., penalties). In some sports, a stick or ball could conceivably be used as a deadly weapon to seriously hurt an opponent. Most spectators and prosecutors believe that such activity is just part of the game. Some scuffles and plays are so violent, however, that professional and amateur sports leagues have had to form rules that penalize players with fines and suspensions.
Hockey, for example, recognizes a variety of penalties and even a penalty box for transgressors. A player may be penalized for numerous violations, including boarding, butt-ending, charging, clipping, cross-checking, elbowing, fighting, high-sticking, holding, hooking, kneeing, roughing, slashing, spearing, and tripping.
Baseball winks at bench-clearing brawls. Pitches intended to bean the batter, will result in the pitchers ejection. Managers may be thrown out of a game for confrontations with the umpire. Football imposes penalties for roughing the passer and kicker, unnecessary roughness, holding, spearing, and tripping. These acts would constitute criminal and civil assaults and batteries but for their occurrence during a sports contest. One of the major objections to leagues controlling violent behavior is that their actions have not gone far enough. When fines or suspensions are handed down, they often have little impact to athletes who make millions for their sports prowess.
Title IX of the Education Amendments of 1972
Title IX of the Education Amendments of 1972 is a federal law prohibiting gender discrimination in athletic programs at institutions that receive federal funds. If such gender discrimination is found, federal funds to that college, including student loan guarantees, can be cut off. A college generally cannot survive financially without federal funds.
Title IX has been a controversial law involving amateur sports. However, since it was enacted, the number and quality of female high school and college athletes have increased tremendously as a direct result of this federal law. Title IX is often referred to as the gender equity statute. Some say Title IX is the necessary equivalent of affirmative action for women in sports. Others argue that Title IX is an unjust quota system that punishes male athletes and programs.
In 1979, the Office of Civil Rights (OCR) published regulations regarding how Title IX should be interpreted. These regulations compared areas of financial assistance and other funding categories for both men’s and women’s sports programs. Based on the OCR’s interpretation, these factors must be taken into account when comparing Title IX compliance between men’s and women’s programs:
- equipment and supplies;
- scheduling of games and practice time;
- travel and per diem allowances;
- locker rooms, practice, and competitive facilities;
- medical and training facilities and services;
- housing and dining facilities and services;
- support services; and
- recruitment of student-athletes (e.g., budget).
Title IX ultimately analyzes whether or not money is being allocated equitably between men’s and women’s programs based on the number of students attending such schools. The key component in a Title IX cases is whether the institution developed a plan and carried out its mission to expand and accommodate the interests of female student-athletes, coaches, and administrators. Developing a plan is not enough: Carrying out its mission is the key.
Title IX Criticism
The fundamental purpose of Title IX is designed to help prevent gender discrimination. However the practical application of this law has generated violent debate. Many opponents of Title IX argue that the law has turned into a quota system and has contributed to the systematic destruction of male sports programs throughout the United States. Many male swimming, wrestling, football, water polo, baseball, and other programs have been eliminated in the name of Title IX compliance. Almost all of the programs that are eliminated are classified as non-revenue producing sports according to the NCAA. Supporters of the law argue that Title IX continues to benefit women socially, economically, and even emotionally. Much of the criticism of this law involves the interpretation of how it is applied.
Title IX Tests
In order to comply with Title IX according to the U.S. Department of Education, a school must meet one of three tests. Currently the OCR oversees compliance in this area and in 1996 offered a clarification of what Title IX compliance really means. If a school passes any one of the three tests, then theoretically there is compliance. Passing these tests is often referred to as the safe harbor interpretations of the statute.
Test 1: Substantial Proportionality
Question: Is an institution providing participation opportunities for women and men that are substantially proportionate to their respective rates of enrollment as full-lime undergraduate students?
The substantial proportionality test is the one that is most often used by plaintiffs and courts to determine whether an institution is in compliance with Title IX. It is usually the easiest method to assess compliance because it is based on numbers. If, for example, 50 percent of women are full-time undergraduates enrolled at a particular college, then 50 percent of the participants in sports programs there must be women. There has been considerable debate as to what the substantial proportionality test means in terms of a specific statistical ratio that athletic departments must adhere to in order to be in compliance. While ideally the ratio would be 50 – 50, such a ratio has been difficult for athletic departments and universities to achieve. What, then, is substantial proportionality? In Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993), the court held that a disparity of 10.5% did not meet the substantial proportionality test.
Test 2: History of Expansion of Women’s Programs
Question: Has an institution demonstrated a history and continuing practice of program expansion for the underrepresented sex? If an institution can demonstrate a history of expansion of women’s sports programs, then the institution is likely to survive a claim against it charging noncompliance. However, virtually no court and no institution was able to address this issue successfully until Syracuse University demonstrated compliance in this area with a potentially major legal victory in 1999.
Test 3: Full and Effective Accommodation of Women’s Interests
Question: Has an institution fully and effectively accommodated the interests and abilities of the under represented sex? Proving that women (or men) are having their interests effectively accommodated is virtually impossible. Recommendations have included conducting on-campus surveys.
Evolution of Title IX
The interpretation of Title IX and its effect on student-athletes and institutions has had its greatest impact in the legal system from cases brought by individuals suing their own institution for failing to comply with the federal law. The case of Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) allows for individuals to sue and recover monetary damages for violations of Title IX.
Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996)
This case is generally regarded as the most influential Title IX case ever to be decided. In 1991, Brown University announced that it was going to eliminate four sports: women’s volleyball, women’s gymnastics, men’s golf, and men’s water polo. Brown University said the teams could still compete as club sports, but it was not going to provide university funding due to financial pitfalls. At that time, Brown’s student body was comprised of 52 percent male and 48 percent female students, though 63 percent of its student-athletes were male. Amy Cohen, a member of the gymnastics team, sued Brown, and the trial court held that Brown failed all three tests under Title IX. An appeal was filed with the United States Supreme Court, which subsequently declined to hear the case.
Women and girls have not always enjoyed the opportunity to participate in sports teams while attending school. In an attempt to assure equality between the sexes, Congress passed Title IX of the Education Amendment in 1972. The major provision of Title IX was that no person would be denied access to participation based on sex in any educational program receiving federal financial assistance. Most schools, even some private ones, receive federal assistance, so that meant all physical education and sports programs had to comply.
Twenty-five years later, the effects of this law are emerging. Some progress toward equality in participation has been made, particularly in the area of intercollegiate sports opportunities for women and more equity in school sports budgets. But not everyone supports the law. It has taken lawsuits against violations of the law across the country to make women’s sports visible throughout the U.S.
Since the passage of Title IX in 1972, participation in college women’s sports has increased. According to NCAA statistics, the total number of female athletes increased by 25 percent in the first 20 years, and between 1992 and 1996, at least 800 women’s teams have been added at the collegiate level.
Although women have welcomed the new opportunities to participate in sports, not everyone is happy. Finding the funding for each of the sports for both boys and girls is not easy. Budgets may have to be cut from one area in order to accommodate another. Football has always been the number one moneymaking sport at colleges and universities. Coaches and administrators argue that taking money away would be crippling to the sport. “You can’t bite the hand that feeds you,” says Michigan State football coach George Perles.
But colleges are finding money to support women’s sports by reducing spending in other men’s sports, sometimes eliminating them outright. For instance, in light of the recent U.S. Supreme Court ruling, Michigan State will reduce funding for men’s fencing and lacrosse in order to add women’s rowing and remain in compliance with Title IX. Since 1972, 256 colleges have dropped wrestling.
Schools would rather do away with low-profile sports than interfere with football. Other men’s sports being cut include field hockey and water polo. Just as racial attitudes could not be changed by legislation overnight; neither can discriminatory attitudes toward women in sports be reversed quickly. Attitude changes have been slow in coming. At the beginning of the 20th century, sports were considered for men only, and women were called “unnatural” and “unladylike” if they showed the slightest interest in participating in sports. According to the New York Times, running was the first sport for women that society finally accepted. But women were not considered physiologically capable of long-distance running. Some believed that a woman who attempted this would not be able to bear children because her uterus might fall out, that she could grow a mustache or that she wanted to be a man. Today these beliefs appear ridiculous, and this generation’s women are stronger and healthier than ever before. Women from all ethnic backgrounds are succeeding in high school, college, professional and Olympic sports.
Men and Title IX
Male sports programs have become victims of Title IX with regard to interpretation of Title IX compliance that has focused on substantial proportionality. Numerous colleges have cut programs that served the interest of male student-athletes. Historically, sports programs for male student-athletes have been larger and better funded than female programs. Are males, therefore, unable to claim reverse discrimination under a Title IX analysis? Title IX is gender neutral and applies equally to men and women – at least in theory. A few cases have been brought by male administrators and student-athletes on the basis of allegations of reverse discrimination, but they have usually failed under a Title IX analysis.
Men’s Programs Funding Women’s Programs
Men’s sports often fund women’s sports for survival. This is the reason for much of the debate that rages among opponents to Title IX. They argue that revenue sports such as football and men’s basketball serve as the cash cow for women’s sports nationwide. Is it fair, then, that men’s programs should continue to be cut in order to comply with Title IX while women’s programs continue to receive aid from men’s programs for their very existence? Though such an argument seems to have merit, it is not usually considered a valid one under a Title IX analysis.
Contact Sports Exception
A recent interpretation of Title IX involves the issue of contact sports. Prior decisions had mandated that schools must provide women with the opportunity to compete on male teams when no women’s team existed. Title IX regulations governing athletics now exempt contact sports to some extent. Sports in this category include boxing. wrestling, rugby, ice hockey, football, basketball, and other sports in which the major activity involves bodily contact. The effect is that women appear to be excluded from participation on all male teams. Once a woman is allowed to compete in that particular sport, the woman may not be treated differently than any other person on account of her gender.
There are no women’s football programs at the intercollegiate level. How does an institution comply with the numerical equivalency requirement in terms of participation and the financial responsibilities associated with Title IX when 85 scholarships may be awarded by any Division I program for which there is no women’s sports equivalent? Such inequity has been dealt with by athletic departments by eliminating men’s programs and adding women’s programs. This balances the numerical imbalance in terms of proportionality. Unfortunately, male athletes in sports such as swimming, wrestling, tennis, and baseball have suffered at the expense of compliance-based numbers and percentages. Many individuals hope that subsequent interpretations of Title IX will exclude the sport of football.
Men’s Programs Cut Due to Title IX
Since Title IX has been enforced, numerous men’s programs have been eliminated from athletic departments. Some of these programs, such as UCLA’s men’s swimming program, provided some of the finest amateur, Olympic, and professional athletes in our country’s history. Male victims of program termination have sued under Title IX claiming that the fundamental purpose of Title IX was not to eliminate men’s programs and such termination amounts to a form of reverse discrimination. However, such claims appear to have no merit under most judicial decisions.
In 1993, the men’s swimming team at the University of Illinois was cut while the women’s was not. The men’s fencing team and both diving teams were eliminated as well. As usual, cutbacks were announced due to financial reasons. Members of the men’s team sued, claiming discrimination on the basis of sex. Both the trial court and court of appeals held that such decision making by the University of Illinois was acceptable under Title IX analysis, particularly since the men’s participation in athletics was 76.6 percent while the overall male enrollment was 56 percent.
Title IX does not require schools to cut men’s teams. College administrators make that choice rather than raise additional funding to support men and women’s programs on an equal footing.
Women Competing on Male Teams
According to the guidelines issued by the OCR, if a college has a men’s team but no women’s team in a given sport, female athletes must be allowed to try out for the team unless it is a contact sport. Duke University allowed Heather Sue Mercer to try out for the football team as a placekicker. Mercer was listed on the spring roster but was not allowed to attend a summer training camp or dress for the games. She was later cut from the team, and she sued Duke University alleging that once she was allowed on the team, Duke has discriminated against her by treating her less favorable than men. In October 2000, a federal jury ordered Duke to pay $1 in actual damages and $2 million in punitive damages.
Men Competing on Women’s Teams
Some men attempt to compete on women’s teams, especially when a comparable male sport is not offered by the college or university. Such exclusions, however, are usually upheld by the courts under the view that Title IX was meant to help the historically underrepresented sex. Still, one recent case may provide hope for those males desiring to try out for women’s teams. In Williams v. School Dist. of Bethlehem, 799 F. Supp. 513 (E.D. Pa. 1992), the court ruled that a boy could compete on a woman’s field hockey team because otherwise his equal protection rights would be violated.
DRUGS AND TESTING
Drug use by athletes has been a controversial issue for many years. Athletes often use artificial stimulants to give them a physical and mental advantage over their opponents. The use of performance- enhancing drugs can be traced to the ancient Olympic Games where fame and fortune were rewarded, just as today, for athletic success. Drug testing of athletes is becoming common in all sports to one degree or the other. This raises constitutional issues including the right to privacy and due process protections from illegal searches and seizures, particularly since testing involves an analysis of a sample from urine or blood. Performance-enhancing drugs are substances athletes inject or consume to increase the human body’s ability to perform during training sessions and sports contests. This includes common, over-the-counter muscle-building supplements, recovery products, and endurance-enhancing blood doping. Performance-enhancing drugs might be consumed orally or via needle injection.
When the government or a governmental entity such as a public school or public college desires to test a student-athlete for drugs, this constitutes state action. There is no state action for private sports leagues, and therefore the fourth, fifth, and fourteenth Amendment issues are generally not applicable in such context unless such testing is established by contract. Federal laws that regulate drug use and distribution include the Anabolic Steroid Control Act of 1990. Steroids are artificial and synthetic forms of hormones, such as testosterone, that improve muscle building, growth, and repair. Since the government (state) desires to invade the privacy of athletes by testing their urine or blood for drugs, athletes have constitutional safeguards that allow a challenge to such a test on the grounds of its constitutionality. Numerous challenges to such policies have failed, and recently courts have given support to the use of mandatory, suspicion- less testing. Still, private organizations have their own testing policies that usually require consent to such policies (including appeals) as a condition for participating in that league.
Any time a governmental agency tests an athlete for drugs, it must comply with the Fourth Amendment, which states:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the persons things to be seized.
While many athletes now understand that being tested is a necessary part of the nature of competition, numerous cases have reached the courts to determine whether or not an individual athlete has a legitimate expectation of privacy when it comes to drug testing. In a decision involving Oklahoma high school’s drug testing policy, the U.S. Supreme Court held in Vernonia School District v. Acton, 515 U.S. 646 (1995) that high school athletes have a lower expectation of privacy than the public in general, and that mandating testing policies nationwide are valid as a condition for participating in high school sports. Additionally, though there may not be probable cause per se in testing high school athletes, the Supreme Court affirmed that public school districts do have special needs. The Court held that random drug testing was valid since such programs serve a compelling interest in public systems to deter the use of drugs.
Another constitutional consideration for drug testing of athletes is the Fifth Amendment, which provides:
No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
An athlete should be granted a process for a hearing and appealing a positive drug test result. The right to go to school or participate in athletics is a property right.
Intercollegiate athletes must sign a consent form in order to play college sports under the National Collegiate Athletic Association’s policies. The NCAA established its own drug testing program in 1986 and comprehensively tests for both illegal street drugs and performance-enhancing drugs. Whether the NCAA is a state actor is subject to debate, though the answer seems to be that it is not and therefore is characterized as a private actor.
Recent publicity about professional and college athlete use of performance enhancing supplements and drugs (PEDs) brings good and bad news to parents and coaches of school-age and high school athletes.
The good news is that some parents and coaches are more aware of the health risks of such drugs as steroids, creatine and ephedra. The bad news is that these supplements may be unduly glorified in the eyes of young athletes seeking to perform at higher levels or improve their physique. Worse, parents and coaches may underestimate the news, thinking that performance-enhancing drugs are only a problem of Olympic caliber athletes. Nothing could be farther from the truth.
So what are performance-enhancing supplements or drugs? And why would teens want to use them? Here’s a brief overview of some of the more common types to which young athletes may be exposed.
Creatine is an over-the-counter nutritional supplement that has been marketed as a safe, ergogenic (performance-enhancing) aid. It’s commonly used in sports that require bursts of energy for a short period of time. Side effects include muscle cramps, dehydration and diarrhea. There is little information about creatine’s effect on children and teens. It is not regulated or tested by the Food and Drug Administration (FDA). A study by well-known sports pediatrician Jordan Metzl, M.D. and others reported creatine use in every grade, 6 to 12. Another study reported that 25% of male high school athletes and 4% of females said they used creatine. Creatine is also known commercially by these names, among others: ATP Advantage, Cell-Tech, Extra Advantage Creatine Serum and Creatine Booster.
Steroids (also known as Anabolic Steroids)
Most anabolic steroids are synthetic versions of testosterone, which is the male sex hormone responsible for the growth of skeletal muscle and sex characteristics. ‘Anabolic’ means building or growing. Available legally only by prescription, doctors often prescribe it to treat muscle wasting, delayed puberty and some breast cancers.
National surveys show that boys and girls in endurance and strength-oriented sports are susceptible to the steroid hook: increased muscle mass and the ability to train faster and for longer, with reduced time needed for recovery. Side effects include a halt in bone growth and damage to the heart, liver and kidneys. Steroids can lead to depression, mood swings, aggressive behavior, and fluid retention, among other effects. Parent and coaches might hear steroids referred to as ‘roids, andro, hype, pump or juice. There are more than 100 anabolic steroids on the market under such names as Anadrol, Winstrol, Oxadrin and Anavar.
Ephedra (also known as Ma Huang)
Ephedra is a stimulant that is similar to amphetamines. Student athletes may use it to drop weight, improve mental alertness and reduce fatigue. Side effects include insomnia, increased heart rate, high blood pressure, heart attacks, seizures and death.
While the FDA banned the sale of ephedra in 2004, some sports drinks and energy foods still contain this supplement or an ephedra “copy cat” that produces the same result. It can also be found in medications meant for other purposes, such as pseudoephedrine (i.e. Sudafed), a decongestant used for colds and allergies. Sold over-the-counter, these medications are increasingly used by athletes for their stimulant-like properties to enhance performance.
What’s A Parent To Do?
Parents have an important role to play in helping to reduce student athlete use of performance-enhancing products and foster ethical play.
First, educate yourself: learn more about the health risks of products your child can easily access. Good starting points include: www.healthycompetition.org, sponsored by the Blue Cross Blue Shield Foundation, and the National Center for Drug Free Sports at www.drugfreesport.com.
Next, talk to you child about performance-enhancing substances. State your expectations and discuss the health risks associated with common products. Get a handle on what they are buying at the store or over the Internet.
Last, determine if your child’s coach, athletic trainer or school has rules in place to reduce the use of such products and learn what the school is doing to help educate your son or daughter about PED use.
Steroids promise bold results, but there is little proof that they deliver any such benefits. Extensive research, however, shows how they can harm developing kids — with some of these ill effects not likely to turn up until years later. And steroids are illegal, too.
In 2005, the National College Athletic Association (NCAA) began requiring universities guarantee their athletes have adequate health insurance due to many years of concerns that college athletes had insufficient health coverage. The association did not, however, establish clear standards for this coverage, which allowed colleges to decide for themselves what was adequate. Although some colleges assume almost all medical expenses, many others accept almost none. In order to turn this problem around, the National College Player’s Association is lobbying for legislation to protect college athletes; the Association believes the NCAA is too focused on doing “right” by the schools themselves, not the players.
Many people claim medical insurance should be required as a cost of having an athletic program. Middlebury College, for instance, ensures all of their varsity athletes and students in club sports have accident insurance paid for by the college. Spalding College pays for secondary coverage for their athletes, pointing out the fact that student athletes represent the school and insurance is ethically the right thing to do. Large universities such as Michigan State and the University of Iowa also give their athletes comprehensive medical insurance.
Many athletes are unfortunately not this lucky. While the colleges that do not insure their athletes claim they go out of their way to inform athletes about their limits of insurance, many students and their parents still find themselves in horrible situations, having to shoulder large and expensive medical bills. An athlete from Colgate University, for example, piled up about $80,000 in medical expenses after injuring her back and legs while in training with the crew team. Insurance only covered about a third of the expenses because of the way her condition was diagnosed, a sickness as opposed to an injury. Also, because many students are insured by their parents, the plan they are under excludes varsity sport injuries, limits out-of-state treatment or does not cover the entire bill. Some colleges buy secondary plans to fill in these gaps, however, these plans have holes as well. Additionally, only players that are hurt enough to require extensive care can turn to the NCAA for coverage; its catastrophic insurance deductible is currently $75,000, but will change to $90,000 next year.
Another problem with health insurance for athletes is how difficult it is to attribute every symptom to a sports injury that the plan will cover and a virus that the plan will not cover; there is an ambiguity in paying for care and treating an athlete who has more than one health concern. Sustaining an injury while sick would be a bad situation, and in the case of an athlete having a disease intermingled with an injury, it is unclear where one stops and the other begins. Within a single state university system, such as the University of Wisconsin, health coverage can vary widely. While at the university’s main campus at Madison, all varsity athletes fall under secondary sports coverage, at the university’s Division III campuses, only treatment for minor sports injuries that can be fixed in the training room is covered. Because it would be too expensive for universities to insure all athletes in the current economic times, it is unlikely the NCAA will require they provide more insurance anytime soon.
William H. Glover, Jr.