Title IX ostensibly protects students from sex-based discrimination, yet the law allows religiously affiliated schools to claim an exemption (i.e., to discriminate, while still receiving federal aid). The Office for Civil Rights (OCR) “ensures equal access to education” and “serves student populations facing discrimination” while also facilitating exemption claims. Exemption-claiming schools may be less than forthcoming with their students and student-athletes. Female student-athletes remain unaware of their Title IX rights. A unique and innovative descriptive analysis of 456 OCR letters illustrates that 243 colleges claimed exemptions from specific student-focused Title IX elements. More than 80% claimed exemption to Title IX’s protections for admission and/or marital/parental status while more than half claimed exemptions to athletics. A detailed content analysis of one National Collegiate Athletic Association (NCAA) Division I school’s extensive exemption claims and its Equity in Athletics Disclosure Act report, student policies, Title IX lawsuit resolutions, faith statements, and state law wholly undermined its claim that it did not discriminate. Similarly, the NCAA, National Association for Intercollegiate Athletics (NAIA), and National Christian College Athletic Association (NCCAA), while publicly committed to gender equity, have not addressed the discriminatory effects of Title IX exemptions on gender equity, competitive advantage, the student-athlete experience, or name, image, and likeness (NIL) requirements. Against that backdrop, we recommend clarifying students’ rights to exemption information and clarifying the effects of Title IX exemptions on gender equity in college athletics. Religious organizations and the schools they control are asked to consider disclaiming their Title IX exemptions.
Fan behavior at college sporting events has long been a concern for administrators. Particularly, fan speech—including inappropriate signs, vulgar cheers, and rude images on clothing—has proven difficult for policymakers to address. Yet, as previous scholarship has demonstrated, speech policies at public university spaces intending to curtail such behavior frequently violate the First Amendment protections of students and spectators (see, e.g., Calvert & Richards, 2004; Ulian, 2016). Using a comparative analysis of speech policies published on the athletic department websites for every public university in the Division I Football Bowl Subdivision (FBS) of the National Collegiate Athletic Association (NCAA), we determined that 94 of the 102 evaluated institutions had speech codes for one or more of their sports facilities that could be used to violate the First Amendment rights of spectators. We discuss the implications of such policies for potential litigation against universities and offer recommendations for crafting better policies for fan behavior at university athletic events.
Conference governance is the next frontier in antitrust litigation in college athletics. Conferences have their own bylaws, compliance staff, and power to negotiate broadcasting rights. In this article, we address the background, arguments, and implications of the lead test case in this space: Choh v. Brown University. Tamenang Choh, the lead plaintiff, filed this lawsuit against the Ivy League and its member institutions. The Ivy League has one of the most unique—and restrictive—rules in college athletics, and this will be a significant test case for conference governance in the post-Alston landscape. The language in the original Ivy League agreement, which is still effective today, states that institutions may not offer athletically related financial assistance to athletes at their institutions. Choh’s complaint alleged the Ivy League rule violates the Sherman Act’s prohibition of conspiracies in restraint of trade. The U.S. District Court for the District of Connecticut dismissed Choh’s complaint, holding the plaintiffs failed to allege a relevant market. In this article, we argue the district court’s approach essentially provides conferences a “blank check” to coordinate horizontal restraints on athlete compensation and rights. This approach is flawed for a few reasons: it disregards the distinction between functional and economic substitutes, it ignores geographical restraints surrounding college decision-making for talented students, and it effectively exempts conference agreements from antitrust law. This approach contradicts precedent from the Supreme Court’s decision in Alston, which emphasized the importance of assessing restraints in college athletics based on market realities. Courts should assume a conference may constitute a relevant market and apply the rule of reason, allowing fact-intensive inquiry into market realities and procompetitive justifications. Ultimately, the Choh case will have significant implications for the future of governance in college sports.
In recent years, professional sports organizations such as the National Basketball Association (“NBA”) have increasingly recognized the importance of mental health in athlete well-being, prompting legal and contractual reforms. This article investigates contractual and legal frameworks governing mental health-related leaves of absence for athletes in the NBA, focusing on the evolution of these frameworks from the 2017 to 2023 collective bargaining agreements (“CBAs”). By analyzing the high-profile dispute between Ben Simmons and the Philadelphia 76ers, this article identifies potential ambiguities in the 2017 CBA pertaining to athlete mental health disclosures and illustrates how recent modifications in the 2023 CBA address procedural gaps by mandating more timely and transparent communication between players and their teams. This article’s examination of the updated CBA reframes mental health considerations within professional athletic contracts, situating these developments within broader trends in athlete advocacy and organizational accountability. Furthermore, this article assesses the practical application of these new protocols by analyzing a recent NBA athlete mental health leave that exemplifies a cooperative approach between player and team. This article concludes by recommending the integration of a dedicated place for mental health policies in the next CBA to clarify procedures, reduce disputes, and enhance support for athlete well-being. This legal analysis contributes to ongoing discussions on balancing player privacy rights with organizational needs in sports, emphasizing the increased significance of mental health considerations in the NBA’s governing framework.
There are two ways to sell broadcasting rights to a club competition. The first is individual selling, whereby clubs sell the rights to their home games to broadcasters and negotiate prices individually. The second is collective selling, meaning the rights are sold as one bundle to broadcasters and the revenue is then distributed among the clubs according to the criteria set in the relevant agreement. The Union of European Football Associations (UEFA) uses the latter, which in principle constitutes a restriction of competition under European Union (EU) law, as it forecloses the market for broadcasting rights. Yet the practice is exempted from ordinary competition law. This was decided by the European Commission more than 20 years ago in a decision that put forward the arguments of efficiency gains and solidarity redistribution. However, as has been made clear in the recent European Super League judgment, the arguments are of a theoretical nature and the decision is based on a poor and incomplete analysis. The benefits of the collective sale of broadcasting rights by UEFA may or may not outweigh the disadvantages caused, but the fact that the answer is still highly unclear represents a failure by EU law to respect its own competition law, and to justify any exemptions to it.
College sports changed in March 2020 due to the fiscal impact of multiple seasons of lost revenue and increased health and safety costs created in part by a global pandemic. In the year following, NCAA institutions often looked to eliminating sponsorship of athletic teams to cut costs during a time of such financial instability. This article examines the impact of sport cuts during the COVID-19 pandemic on equity in participation opportunities, ultimately noting whether each institution that eliminated sports would likely be compliant with Title IX. Title IX was passed more than 50 years ago, and many colleges and universities are still non-compliant in providing equitable participation opportunities. College athletics is currently in a period of rapid change and fiscal uncertainty; this research provides a reminder and a road map for institutions to make programming decisions that will be compliant with Title IX in the future.
Between athletes still feeling short-changed despite name, image, and likeness (NIL) compensation and coaches and administrators feeling generally unhappy with the unregulated, “wild west” landscape of NIL, college sports is faced with two competing forces pushing college athletics in two distinctly different directions. There is an obvious solution to all of the strife in college sports: the legal recognition of college athletes as employees and the creation of a formally recognized college athlete labor union, allowing athletes to collectively bargain for a share of media rights revenues and other work conditions, while also allowing the National Collegiate Athletic Association (NCAA) to collectively bargain for more regulations and restrictions on NIL activity without facing antitrust scrutiny by virtue of the non-statutory labor exemption. There are several unique challenges to organizing a labor union comprised of athletes, including the breadth and variety of their negotiating interests. However, there is a robust union that has been in operation since the 1930s that may provide a baseline framework: the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA). In this article, we explore potential frameworks for a college athlete union by using SAG-AFTRA and other major unions as templates. SAG-AFTRA’s unique national-local structure serves as a guide for how to create a robust and effective college athlete union that meets all sides’ interests in reforming college sports.
The Tax Cuts and Jobs Act (TCJA) of 2017 affected many traditional tax deductions for a variety of organizations. One that went under the radar for many, except those in the college sport ecosystem, was the removal of a deduction for donations related to college sport ticket sales. Developed from the Technical and Miscellaneous Revenue Act of 1988, IRC §170(l) provided individual taxpayers the ability to claim 80% of the amount paid over the value of tickets to college athletic events as a charitable contribution. TCJA eliminated this itemized deduction, which concerned several university athletic directors about the long-term effects of this change on their program’s revenue generation. This article assesses the history of the development and application of IRC §170(l) and determines whether these contributions should have been allowed as a charitable deduction overall. The article also examines the impact of IRC §170(l) after TCJA’s implementation, finding the athletic directors’ collective feared impact of reduced contribution revenues was not significant based on available data. Donors appear motivated by more than just the tax benefit, and the removal of the deduction did little to affect overall contributions.
In 2015 the National Collegiate Athletic Association’s (NCAA) monopsony splintered when Judge Wilken ruled that the NCAA could not bar colleges from offering athletes the full cost-of-attendance (O’Bannon v. NCAA, 2015). By 2019, when California Governor Gavin Newsom signed the Fair Pay to Play Act into law, the NCAA’s monopsony fractured, ushering in a quasi-free market wherein college athletes can more freely transfer and monetize their name, image, and likeness (NIL; Cal. Educ. Code § 67456, 2020). Therefore, this article begins by setting forth the necessity of the monopsony fracture in forcing NCAA policy change. Next, the authors examined college athletes’ rate of transfer (freedom to move) and opportunity to secure scarce benefits via NIL (freedom to capitalize) due to NCAA policy change. Last, the authors explore an approach toward understanding college athlete labor migration through push-pull theory (Lee, 1966).
Literature links sport, play, and similar leisure endeavors to numerous physical, psychological, and social benefits critical to a young person’s development. Unlike other nations, the United States lacks a national policy to fund structures supporting youth sport, play, and the like. Instead, a for-profit youth sport industry oversees this sector using a pay-to-play model, creating significant financial and access barriers. The COVID-19 pandemic created an inflection point and call for action to meaningfully reform youth sport. Advocates often claim, without providing legal justification, that access to sport and play is a constitutional right. Therefore, the purpose of this commentary is to move beyond aspiration or hypothetical rhetoric and investigate whether a persuasive legal argument exists that places a constitutional legal responsibility upon the United States federal government to create structures, allocate funding, and provide universal access to free sport, recreation, and play opportunities for youth. While review and analysis of relevant case law found that no constitutional right likely existed under United States law, this process confirmed that that such claims will have little chance of success under current precedent. Therefore, given the improbability of substantive voluntary reforms in the private sector, a deeper exploration of innovative legal theories is required to achieve the necessary structural change.
Buffer zones are a risk management strategy used within sport and recreation to protect participants and spectators from injury. Within the recreational golf sector, buffer zone standards do not exist. Recreational golf courses serve a wide range of customers in terms of age, skill level, and experience. A legal case content analysis of 1,561 golf negligence lawsuits answered research questions related to locations of incidents, circumstances, and injuries or damages that resulted from errant golf shots. A Westlaw search provided 133 cases within the scope of this study, 85 of which could have been possibly prevented with proper buffer zones. In lawsuits in which the golf course was sued, the course prevailed 47.5% of the time and most cases specifically alleged a failure to provide reasonably safe conditions or negligent course design. This article concludes by providing practical recommendations for practitioners to protect golf courses from litigation stemming from errant golf balls.
Roughly seven years ago I wrote my first introduction for an issue of the Journal of Legal Aspects of Sport (JLAS). In that introduction, I wrote about how proud I was to edit the first peer-reviewed journal that’s exclusively dedicated to the study of sports law. I also noted my history with the journal, which published the first of six research papers within JLAS, roughly 20 years ago.
In 2015, Dr. Thomas Baker penned his first ‘Editor’s Note’ in the Journal of Legal Aspects of Sport (JLAS). Eight years and 15 issues of JLAS after his initial editor’s note, I write to say ‘thank you’ to Dr. Baker for his editorial stewardship. Indeed, the entire sport law community owes Dr. Baker a debt of gratitude for his work in advancing JLAS.
The legal duties of high school athletic directors are an under-researched area of sport law. Millions of dollars are paid out annually due to the negligence of high school athletic program administrators, justifying a deep dive into further understanding high school athletic director legal awareness. Utilizing research related to an established 14 legal duties for high school athletics, the authors created a survey to contribute to the limited existing research related to high school athletic director legal awareness. The survey went to a geographically balanced sample of states and the athletic directors within these states. A total of 349 responses were captured. A Rasch analysis identified the most challenging duties for high school athletic directors to manage were areas such as keeping practice plans on file and advising students of warning labels on equipment. Areas that high school athletic directors were better equipped to manage were transportation of students to practice and competition, and ensuring equipment meets industry standards. Multiple regression analysis revealed that smaller schools are most challenged in legal duty awareness due to limited resources (e.g., financial and personnel). Research should continue to build in this area by evaluating other variables that may impact the ability to comply and explanations for the level of awareness of directors.
An important rule that underpins international and domestic labor law is the principle that labor is not a commodity. This principle has interesting application to the labor regulation in professional team sports such as baseball that utilize drafts, salary restraints, the reserve system, and free agency. The article will examine whether these and other labor controls in Major League Baseball in the United States and Nippon Professional Baseball League in Japan commodify labor. Baseball’s labor controls and practices will be assessed to determine if labor is treated as a commodity, and if so, whether there is undue commodification. In doing so, a construct will be created of labor practices that commodify labor on a spectrum. These labor practices and controls will also be evaluated in the context of antitrust law and restraint of trade. The article concludes by suggesting ways to improve the treatment of players that will decommodify labor.
The district court opinion in Pennsylvania State University v. Vintage Brand (2022) offers new legal insight about how judicial interpretations of trademark law in merchandising cases may be evolving to be much less protective of universities than in the past. Whereas successful legal arguments by universities in past trademark infringement cases have largely shielded universities and given them adequate trademark protection, that legal status quo may be shifting to be less protective of the universities as a result of recent case law, including in the instant case. Because of how the logos and emblems are used on the merchandise, the case suggests there may be an opportunity for unauthorized retailers to be able to use the names and past logos of the university without a license, a legal proposition that would curtail the expansive merchandising rights in sport. This article explores these legal issues through the Penn State case and examines how they may affect university athletics trademark licensing practices going forward if the legal climate shifts in how universities approach protection of their intellectual property.
This article offers a new perspective on academic institutions’ engagement with Title IX, notably its provisions on pregnant and parenting students, as laid down in Regulation 34 CFR 106.41 as amended (the Pregnancy Regulation), and the concomitant NCAA model policy on pregnant and parenting student-athletes. That new perspective is achieved through a systematic content analysis of institutional pregnancy statements in schools’ online student-athlete handbooks (OSAHs). There are few, if any, other examples of OSAHs being subjected to this degree of scrutiny, so the authors introduce readers to the rich source of data that OSAHs offer, and provide guidance on their analysis and interpretation.In considering why so few institutions have a pregnancy statement in their OSAHs, and why hardly any of them reflect the NCAA’s model to any meaningful extent, the authors contend that institutions made a deliberate policy choice that was in part facilitated by the Supreme Court’s decision in Gebser v Lago Vista Independent School District 524 US 274 (1998). The issue of pregnancy discrimination thus reflects a recurring feature within college sports: a three-way struggle between legal norms, a regulator with extensive but still limited powers, and member institutions that possess varying degrees of influence. On this occasion, the struggle has resulted in a comparative handful of colleges exercising disproportionate power not only over those other stakeholders, but also over the student-athletes whose wellbeing should lie at the heart of the relationship between them.
We trust you will find the broad topics covered in the articles of this special issue of the Journal of Legal Aspects of Sport both timely and thought-provoking, and we want to thank the contributing authors as well as guest editors Barbara Osborne and Anita M. Moorman for helping create such an impactful contribution to the body of literature on legal issues in college athletics.
Thousands of fans descend onto college campuses every Saturday during the fall to watch National Collegiate Athletic Association (NCAA) Division I Power 5 and Group of 5 college football games. Power 5 is used to describe five of ten athletic conferences (ACC, Big Ten, Big 12, Pac-12, and the SEC) which are considered the most prominent and highest earning athletic conferences in college football whose teams compete in the NCAA Division 1 Football Bowl Subdivision (FBS). Group of 5 is an assembly of five conferences that also compete in NCAA Division I FBS. Group of 5 college football teams often compete against Power 5 and Independent teams during the regular season and bowl games (Vannini, 2022). The largest stadium seating capacity Group of 5 schools is around 40,000 people compared to the Power 5 stadiums, 10 of which seat at least 90,000 people (Chiusano, 2022). While the seating capacity at Group of 5 schools is not as great as Power 5 institutions it still represents a significant population (Vannini, 2022).
State legislation paved the way for college athletes to begin monetizing their name, image, and likeness (NIL) through commercial activities as of July 2021. However, the statutory language utilized in state NIL legislation provides an inconsistent regulatory framework for college athletes as they seek to navigate the NIL landscape. Therefore, the purpose of this study was to conduct a comparative legal analysis of state NIL legislation to determine how these statutes restrain college athlete NIL activities that conflict with institutional agreements, limit NIL activities during official team activities, and establish enforcement or dispute resolution processes for asserted conflicts. We analyzed 26 state NIL statutes containing specific conflict language and found three areas of significant variation between states: the regulatory framework used to define contractual restraints; the definition and treatment of contract types subject to potential conflicts with NIL activities; and the requirements placed upon an institution when a contractual dispute arises. We discuss these areas of discrepancy between state NIL legislations and offer recommendations for legislatures focused on creating an NIL environment for college athletes with minimal restraints.
