Connor Recck ’23
Amidst the 2021 NCAA men’s and women’s basketball tournament, scholars, athletes, and activists are examining a relatively unknown Supreme Court decision handing the college athletic governing body nearly full autonomy to discriminate on the basis of sex.
As the men’s and women’s college basketball tournament for the 2020-2021 season began to ramp up, a firestorm found the NCAA drowning in controversy. As they prepared to once again host these athletic competitions, shocking videos began popping up on social media. The spark was ignited by Sedona Prince, a player on the University of Oregon’s women’s basketball team. In a video posted to TikTok, Prince exposed the training facilities provided to the men’s teams compared with the women’s teams. The women were provided with a weight room that contained nothing more than a small rack of dumbbells and some yoga mats. The men, however, enjoyed an entire gym facility that included a full squat racket, benches, barbells, and heavy plates.
It didn’t take long for more incidents to emerge online. According to Maggie Mertens, a writer for The Atlantic, a separate incident involved the food these athletes were provided. The men enjoyed a full banquet of food, including steak to shrimp, while the women received prepackaged meals. Another involved the men receiving a “swag bag” full of gear heavily marketed as “March Madness” whereas the women received minimal standard-issued merchandise without any reference to the tournament they themselves were participating in.
The visibly unequal treatment by the NCAA of its male and female athletes has once again sparked a conversation about Title IX and the extent to which it can ensure gender equity in college athletics. Over the past few weeks, activists and athletes have publicly called on NCAA officials to not only correct these inequalities but to also examine the institutional frameworks that allowed this to happen in the first place.
Title IX, passed as part of the Education Amendments of 1972, is one of the most well-known federal statutes mandating gender equality in schools. Specifically, all institutions that receive federal financial assistance are required to provide equal access and opportunity within academic programming for men and women. Under the umbrella of “academic programming” are college and high school athletics, which have been at the center of the statute’s most heated controversies since its passage.
If Title IX mandates gender equality in sports, why isn’t the NCAA facing a lawsuit for this behavior? Well, technically, they haven’t violated Title IX. In 1999, the Supreme Court ruled in NCAA v. Smith that because the NCAA did not receive any direct federal funding, it was not subject to Title IX compliance. Surprisingly enough, Justice Ginsburg, a standout litigator and jurist credited for decades worth of female advancement toward equality in the law, wrote the court’s majority opinion. In the context of accountability for the NCAA, Ginsburg writes, “entities that receive federal assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX; entities that only benefit economically from federal assistance are not” (NCAA v. Smith 1999, 1). The NCAA has positioned itself in a particularly lucrative place. Not subject to Title IX regulations, the organization acts as a middleman between the schools that receive federal funding and the athletic competitions that produce a profit. Through the court’s jurisprudence, the NCAA is not bound by federal rules in the treatment of its male and female athletes. The organization does not receive federal funding; it simply profits off institutions that do.
Realizing the magnitude of the controversy, NCAA president Mark Emmert released a statement on behalf of the organization. In response to the social media posts, Emmert said, “I want to be really clear: This is not something that should have happened and, should we ever conduct a tournament like this again, will ever happen again.” Some NCAA officials have gone so far as to defend their actions, stating the full weight room accommodations for women were to be implemented in the 3rd round of the tournament. Yet, the male athletes have enjoyed these facilities since the beginning of the tournament.
The organization has made clear the unequal treatment of female athletes is premised on the notion that these female teams cannot produce a profit comparable to the men’s teams. Although the NCAA refuses to disclose any in depth records of its financial statements, Emmert has argued the accommodations, advertising, and marketing of the men’s March Madness tournament is neither realistic nor feasible for the women’s tournament because their event operates at a loss to the organization. Economist Daniel Rascher has since refuted these claims. Testifying before the federal government’s ongoing antitrust litigation, the expert witness, through an independent analysis of the NCAA’s financial records, has concluded that women’s basketball produced $1 billion in profits during the 2018-2019 season. Many question the validity of the statements released by NCAA officials on the profitability (or apparently lack thereof, according to them) of women’s basketball, as they are an organization designed around a revenue-producing system.
Does the women’s tournament not drive up business for the NCAA compared with the men simply because the American audience isn’t interested? Doubtful. Realistically speaking, the NCAA doesn’t put nearly as much time or energy into its marketing strategy of the female teams. They do little to nothing to drive up business for women. There are no live apps, no interactive brackets, no minute-by-minute updates on female games: all strategies devised for the male athletes to drive up audience interest and ad revenue. While Emmert enjoys $2.7 million in compensation, his opinions are clear: the women should be lucky they even have a seat at the table and grateful that the organization gives them any attention at all.
If there is any substantive change to come from this situation, it will take place in the courts and the halls of Congress. I never thought I would say this, but Justice Ginsburg was wrong in NCAA v. Smith. Although the NCAA as a legal entity does not receive funding from the federal government, if its business model is fully reliant on institutions that do, it should be subject to the same regulations colleges are required to adhere to.
Situations like these arise as a direct result of the ruling from the Supreme Court. Clearly, the NCAA cannot be trusted to exercise its own discretion with ensuring gender equality; they have shown us this time and time again. If the only way organizations that profit off college athletes can be held accountable is through government regulations, I say implement them as quickly as possible. Ultimately, the NCAA v. Smith decision must be overturned. The precedent set in that case gives private companies the confidence to act as they please, as they have in many ways been given a license to discriminate. Why should female athletes suffer embarrassment and trauma as a direct result of inequities described earlier? The NCAA racks in the Benjamins because of the athleticism of these women. Denying them fair treatment under the law calls for a serious investigation into the activities and history of the organization and an ultimate reversal of the 1999 judicial ruling.