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The law governing amateur athletes is an amalgam of statutes, regulations, rules, procedures, and judicial decisions that apply to individual athletes, the academic institutions for which they compete, and most persons employed by those academic institutions. This body of law spans several areas of American jurisprudence, including tort law, tax law, antitrust law, and civil rights law, among others. Thus, the law governing amateur athletics is not a single body of law unto itself.
Amateur vs. Professional Athletes
The most basic difference between amateur and professional athletes lies in the rewards that each group receives for athletic performances. Generally speaking, amateur athletes are not paid for their athletics performances, though the U.S. Gymnastics Association and the U.S. Figure Skating Association now allow member athletes to sponsor commercial products so long as the money earned is placed into trust. Professional athletes, by contrast, are typically paid annual salaries plus incentives tied to individual and team performance.
Athletic scholarships are the biggest reward offered to amateur athletes. Athletic scholarships pay for some or all of a student-athlete's tuition, including room and board, as long as the student-athlete remains enrolled at the school, continues to participate in the athletic program for which the scholarship was awarded, and maintains academic eligibility. Amateur athletes who are compensated for their performance in any way beyond their athletic scholarships can be stripped of their amateur status by National Collegiate Athletic Association (NCAA) or other college athletic organizations.
High School Athletic Associations
Each state has established an athletic association that establishes rules and guidelines under which most schools in that state must adhere. These rules and guidelines cover topics such as, for example, the general eligibility of student athletes, including age restrictions; residency requirements; restrictions on supervised practices when a sport is not in session; policies related to broadcasting and sponsorship; Page 568 | Top of Articleand codes of conduct. These associations also set forth rules for individual sports.
Collegiate Athletic Associations
Headquartered in Shawnee, Kansas, the NCAA is the governing body that regulates athletic competitions among many colleges and universities. Colleges and universities must elect to join the NCAA, and once they do they relinquish ultimate jurisdiction over their athletic programs, student-athletes, and coaches. To remain a member of the association, colleges and universities have to abide by NCAA rules, regulations, and policies.
Pursuant to its governing authority, the NCAA has established criteria that college athletes must satisfy to stay eligible for NCAA sanctioned athletic competitions. One of these criteria is that student-athletes be in good academic standing and maintain a certain minimum grade-point average. Schools and coaches are subject to NCAA restrictions regulating how high school students may be recruited, while both coaches and athletes are subject to discipline for violating NCAA rules relating to use of illegal or banned substances, gambling, point-shaving, and bribery.
The NCAA conducts its own investigations of alleged rule violations and assesses penalties based on the severity of the violation, after giving the suspected offender an opportunity to be heard during a public proceeding in which most fundamental legal rights may be invoked. Penalties may be assessed against an offending school, coach, or athlete and entail loss of scholarships and loss of post-season awards, including fines, probation, suspensions, forfeiture of games, and forfeiture of tournament and playoff opportunities.
Schools with repeat offenses may receive particularly harsh punishment. For instance, the NCAA cancelled the entire 1987 football season for Southern Methodist University (SMU) after investigators found numerous rules violations related to the football team, including payments to players that amounted to more than $600,000. The so-called "death penalty" that the NCAA administered in the SMU case is the harshest punishment that the NCAA has ever administered, but it is indicative of the level of power that the NCAA holds over athletic programs.
Some schools, particularly smaller colleges, choose not to be members of the NCAA. More than 280 colleges belong to the National Association of Intercollegiate Athletics (NAIA), which is based in Olathe, Kansas. The NAIA sanctions more than a dozen sports for men and women. Two-year colleges, on the other hand, belong to the National Junior College Athletic Association (NJCAA), based in Colorado Springs, Colorado. Member schools of the NAIA and NJCAA are subject to similar rules as schools that are members of the NCAA.
Most colleges and universities also belong to athletic conferences. These conferences establish additional rules under which their members must operate. Athletic conferences also coordinate efforts to market their sports teams and provide for plans by which revenues from athletics are shared by member schools.
Professional Sports Associations
Professional sports teams in the National Football League (NFL), Major League Baseball (MLB), the National Hockey League (NHL), and the National Basketball Association (NBA) are also governed by voluntary associations, but their associations are comprised of individual owners who purchase professional sports franchises and agree to abide by the rules, policies, and procedures established by the league. Also known as the constitution and by-laws, these rules, policies and procedures generally govern the circumstances under which franchises may move their team from one city to another; players may be drafted, sign contracts, become free agents, and receive retirement pensions; and owners, coaches, and players may be fined, suspended, banned, or otherwise punished. The league's constitution and by-laws may also be influenced by the terms of any collective bargaining agreement entered into between franchise owners and labor representatives for the players' union and by any applicable antitrust laws (i.e., federal laws that protect trade and commerce from restraints, monopolies, price-fixing, and price discrimination).
Relationship Between Professional Sports Leagues and College Athletics
Professional sports leagues generally do not have an official relationship with college athletic associations. In some sports, especially baseball and hockey, the best high school players often develop their skills in minor professional leagues rather than colleges. On the other hand, most highly talented football and basketball players traditionally have played in college as amateurs before moving on to play professionally.
Beginning primarily in the 1990s, top high school basketball stars began skipping the college ranks altogether and joining professional teams. With the success and popularity of such individuals as Kevin Garnett, Kobe Bryant, and LeBron James, each of whom were drafted directly out of high school, more NBA teams began selecting high school players in the NBA draft. Football players, however, have not had this option because the NFL forbids players from entering the NFL draft until a minimum of three years has elapsed since the players have graduated from high school.
In 2004, Maurice Clarett, a standout running back with Ohio State University, challenged the NFL's three-year rule on the grounds that it violated federal antitrust laws. A federal district court agreed with Clarett, ruling that the NFL could not prevent him from entering the 2004 draft. After the ruling, Mike Williams, a star receiver for the University of Southern California who had been out of high school for less than three years, announced that he would enter the draft and turn professional as well. The Second Circuit Court of Appeals, however, disagreed with the district court's opinion in the Clarett case, thus requiring Clarett to wait until 2005 to become eligible for the draft. Because Williams had hired an agent, even though it was prior to the Second Circuit's opinion, he was also ineligible to return to play college football. As a result of the Clarett case, the vast majority of football players who eventually turn professional must still first play at the college level.
Other Legal Issues Confronting Amateur and Professional Athletes
Amateur and professional athletes must comply with state and federal laws that exist independent of the rules established by the athletic association in which they are members. Nonetheless, many professional and amateur athletes are surprised to learn of the extent to which they must understand the intricacies of civil and criminal law if they want to stay out of court. For example, professional athletes are required to pay income tax to every state in which they appear to play a game, and not just to the state in which their teams play home games. Amateur athletes may be taxed on the funds they receive for athletic scholarships when those funds exceed the cost of tuition, room, board, and necessary supplies.
Many amateur and professional athletes are also surprised to learn that they can be held civilly and criminally liable for injuries they inflict on other athletes during competition, even in contact sports such as hockey and football. Contact-sport athletes consent to some contact as part of the game and assume the risk for injuries that are sustained during the normal and ordinary course of an athletic contest. But under the common law, no athlete assumes the risk for injuries that result from the reckless or intentional misconduct of another athlete. Depending on the laws of the state in which an injury is inflicted, the blameworthiness of the misconduct, and the severity of the injury, athletes who recklessly or intentionally injure competitors during an athletic contest may be prosecuted in criminal court or sued in civil court for battery, assault, or other such related unlawful acts. A minority of jurisdictions allow athletes to recover for injuries sustained from the negligent conduct of competitors.
In some cases academic institutions may be held liable for injuries suffered by athletes. As a general rule, coaches, trainers, and referees must exercise reasonable care to prevent foreseeable injuries to athletes, and under no circumstances may a school employee encourage athletes to injure opponents or competitors. If a school employee fails to exercise the degree of care that is reasonable under the circumstances, the school itself may be held vicariously liable under the doctrine of respondent superior, which makes principals liable for the wrongful acts of their agents, when those acts are committed in the ordinary course and scope of the agent's authority.
Because the relationship between the law and amateur and professional athletes can be complicated, many colleges, universities, and pro sports franchises require athletes to attend classes that introduce them to a variety of legal issues. Some of these classes are geared solely toward male athletes. Given the number of highly publicized cases in which male athletes have been accused of sexual assault and violence, these classes are intended to help male athletes avoid situations where they can get themselves into trouble.
Title IX and Sex Discrimination in Amateur Athletics
Sex discrimination is a hotly debated and litigated issue in amateur athletics. Title IX of the Education Amendments Act of 1972 provides that "[n]o person in the United States may, upon the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal finan-Page 570 | Top of Articlecial assistance." 20 U.S.C.A. §§ 1681 et seq. The phrase "education program or activity" has been broadly interpreted to include athletic programs. Title IX may be enforced by the federal government in an administrative proceeding or by a private individual in civil court. The law guarantees equal protection at all federally funded academic institutions for both male and female student-athletes and male and female persons employed by school athletic programs.
Congress enacted Title IX to serve as a catalyst against sex discrimination at federally funded academic institutions, to encourage the development of athletic programs for female student athletes, and to stimulate female participation in school sports. Within eleven years of Title IX's enactment, statistics revealed that progress was being made toward these goals. In 1983, more than 150,000 women were participating in college sports, compared with 32,000 in 1972, while the number of colleges and universities offering athletics scholarships to women increased from 60 in 1974 to 500 in 1981. By 2000, about 151,000 women engaged in athletics in the NCAA and 2.8 million females engaged in high school sports.
The U.S. Department of Education (DOE), acting through the Office of Civil Rights (OCR), is primarily responsible for implementing Title IX. The OCR promulgates regulations to enforce Title IX, initiating administrative proceedings against alleged violators, and terminating federal funding for proven violators. Although neither Title IX nor any of its amendments expressly authorizes an individual to bring a lawsuit against a violator independent of an action brought by the DOE or OCR, the U.S. Supreme Court has ruled that Title IX implies a private cause of action pursuant to which aggrieved individuals may seek redress for sex discrimination in federal court without first having exhausted their administrative remedies. Cannon v. University of Chicago (1979).
Parties Subject to Liability
Title IX conditions the offer of federal funding on each funding recipient's promise not to discriminate on the basis of sex, in what amounts to a contract between the government and the funding recipient. Elementary schools, junior high schools, high schools, and both undergraduate and graduate colleges and universities must comply with Title IX if they receive federal funding and wish to continue receiving it. However, federally funded recipients may be exempted from liability under Title IX if they have had a continuous policy and tradition of admitting students of only one gender. 20 U.S.C.A. § 1681(a)(5). Federally funded recipients are also exempt from Title IX suits that arise from employment discrimination claims over jobs in which sex is a bona fide occupational qualification, as might be the case for persons hired to clean or monitor locker rooms and toilet facilities.
As noted above, athletic departments and athletic programs infrequently receive federal funding directly from the federal government. The same holds true for directors, coaches, trainers, and other individuals employed by school athletic programs. Instead, school boards, school districts, colleges, and universities are the most common recipients of federal funding, and thus they are also the most common targets of Title IX litigation. Since Title IX has been interpreted as abrogating the states' Eleventh Amendment immunity in this area of law, state governments themselves may also be sued in federal court for discrimination that occurs at one of their federally-funded, state-sponsored academic institutions.
Standards for Liability
Title IX bars sex discrimination in any interscholastic, intercollegiate, intramural, or club athletic program offered by a federally-funded academic institution. This prohibition has two prongs. The first prong prohibits sex discrimination against students participating in or seeking to participate in a school-sponsored sport. The second prong prohibits sex discrimination against persons employed or seeking employment with a school sponsored athletic program, including persons employed or seeking employment as athletic directors, athletic coordinators, coaches, physical therapists, trainers, or any other job within a school's athletic program.
Under both prongs, the law requires federally funded academic institutions to guarantee equal opportunity for student-athletes and employees without regard to gender. Ten specific factors may be considered in determining whether this obligation has been met: (1) the particular sports and levels of competition selected by an institution to accommodate members of both sexes; (2) the quality and quantity of equipment and supplies that are provided to teams of each gender; (3) the scheduling of games and practice time; (4) travel and per diem allowances; (5) the opportunities to receive coaching and academic tutoring; (6) the compensation of Page 571 | Top of Articlecoaches and tutors; (7) the provision of locker rooms, as well as practice and competitive facilities; (8) the provision of medical and training facilities and services; (9) the provision of housing and dining facilities and services; and (10) the publicity afforded to each gender's athletic programs. 34 C.F.R. § 106.41.
The circumstances of each case determine how much weight is allotted to a given factor in resolving Title IX disputes. Nonetheless, a significant portion of litigation has focused on the first factor, and courts will normally ask three questions when evaluating whether an academic institution has taken steps to effectively accommodate athletes of both sexes: (1) does the number of athletic opportunities provided for males and females proportionately represent their respective overall enrollments to a substantial degree?; (2) does the academic institution have a history of expanding programs to accommodate female interests and abilities in sports; and, of so, (3) has that institution fully and effectively accommodated those interests and abilities? If a preponderance of the evidence offered during a Title IX proceeding answers these questions in the affirmative, the defendant will normally prevail. Plaintiffs are more likely to prevail when the defendant has a poor or inconsistent record on these issues.
Student-Athletes' Title IX Claims
A court's analysis will also depend on whether the plaintiff is a disgruntled student-athlete or a disgruntled employee. For disgruntled student-athletes, Title IX does not compel federally funded educational institutions to sponsor one program for each gender in every sport the institution sponsors. However, if a school sponsors only one program for a sport, then that school must allow members of both sexes to try out for the team, unless the sport is a contact sport, in which case the school may limit participation to one gender. Conversely, if a school sponsors only one program for a contact sport and then allows members of both sexes to compete for the team, the school may not exclude an athlete from the team on account of his or her gender. "Contact" sports include boxing, wrestling, rugby, ice hockey, football, and basketball. 45 C.F.R. § 86.41.
Disgruntled students may also allege that they have been victims of sexual harassment in violation of Title IX. Sexual harassment typically consists of receiving unwanted sexually oriented comments, receiving unwanted sexually oriented physical contact, or working in a sexually charged environment. The threshold of liability is higher for sexual harassment than it is for sex discrimination. To prevail on a Title IX sexual harassment claim, a plaintiff must show that the institution was aware of the harassment, exercised control over both the harassed and the environment in which the harassment occurred, and that harassment was serious enough to have the systemic effect of denying the victim equal access to participate in an athletic program. Mere name-calling or teasing will not give rise to a Title IX harassment claim, even when the offensive comments single out differences in gender.
Courts are more inclined to find that offensive comments give rise to Title IX liability when they are made by a coach or a person acting in an official capacity for the academic institution. Plaintiffs are less likely to prevail when the offensive behavior takes the form of student-on-student or athlete-on-athlete harassment. In such instances, the plaintiff must not only prove that the academic institution was aware of the harassment and had authority to stop the harassment, but also that the harassment was "so severe, pervasive, and objectively offensive" that it amounted to "deliberate indifference" by the institution in failing to stop it. Davis Next Friend LaShonda D. v. Monroe County Board of Education (U.S. 1999). Thus, sexual harassment by fans, athletes, or coaches from opposing schools is generally not actionable.
Coaches' Title IX Claims
The statutory proscription against sex discrimination in education programs and activities encompasses employment discrimination, which means that any person working for an athletic program at a federally funded academic institution is entitled to protection from Title IX. The law protects employees in all aspects of their employment, ranging from hiring and compensation to promotion, demotion, suspension, and termination, regardless of the position held by the employee and regardless of whether the federally funded academic institution is a tiny elementary school or an enormous Division I university.
Since 1990, a large number of Title IX employment discrimination complaints have been filed by college coaches. Frequently, these claims allege that the head coach of a women's college team is being discriminated against because she is being paid less than the head coach of the men's team for the same sport and from the same school. Courts will consider several factors in evaluating these claims, including the following: (1) the differing rates of compensa-Page 572 | Top of Articletion; (2) the duration of the contracts; (3) provisions relating to contract renewal; (4) the relative training and experience of the two coaches; (5) the nature of the coaching duties performed by each; (6) working conditions; (7) professional standing; (8) other terms and conditions of employment; and (9) other professional qualifications.
A plaintiff instituting a private action to enforce Title IX may not ordinarily recover compensatory damages, unless the plaintiff offers evidence that the discrimination was willful, deliberate, or intentional. Injunctive relief is the remedy most regularly sought in Title IX actions. Injunctions may take the form of an order compelling an academic institution to cease an offending practice or an order compelling the institution to take specific action to level the playing field for the victims of discrimination. Prevailing Title IX plaintiffs may also recover attorney's fees and expert witness fees pursuant to 42 U.S.C.A. § 1988. Additionally, when the Title IX defendant is a state government, plaintiffs may pursue remedies available under the Civil Right Act, which prohibits discrimination by state actors. 42 U.S.C.A. § 1983. Both compensatory and punitive damages are recoverable in section 1983 actions.
Litigants who are unhappy with a federal agency's decision made pursuant to Title IX may generally appeal that decision to a federal district court as provided in 20 U.S.C.A. § 1683. However, if the agency's decision involves terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with a Title IX requirements, then judicial review may only be pursued as provided in 5 U.S.C.A. § 701 et seq. Title IX does not contain a statute of limitations, so both administrative agencies and judicial bodies rely on the most analogous statute of limitations provided by the law of the state from which the discrimination complaint originated.
Criticisms of Title IX
Title IX is not without its critics. This is particularly true of those who are involved with low-profile men's sports, such as wrestling or diving. According to some critics, schools have eliminated some smaller men's sports in order to finance women's sports. Supporters of Title IX have countered that the reason why the smaller sports have been sacrificed is because schools refuse to divert money from men's sports that produce the most revenue, particularly football and basketball. In 2003, a 15-member Commission on Opportunities in Athletics studied Title IX in order to make recommendations for strengthening and improving the statute. The report suggested that the Department of Education should reaffirm its commitment to enforcing Title IX and should aggressively enforce its provisions in a uniform way. Nevertheless, the debate about the positive and negative effects of this statute has continued.
American Jurisprudence. Thomson/West 2005.
Managing Legal Issues in College Athletics: Proactive Strategies for Administrators. LRP Publications, 2004.
A Place on the Team: The Triumph and Tragedy of Title IX Suggs, Welch, Princeton University Press, 2005.
West's Encyclopedia of American Law, 2nd Edition, Thomson/Gale, 2004.
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