National Collegiate Athletic Association |
CommentMAY 12, 1997
The Faculty Voice -- Courts' rulings mean it's time to comply
BY CHARLES F. WELLFORD By now you have read the interpretations of the U. S. Supreme Court's decision not to review the 1st U.S. Circuit Court of Appeals' ruling that Brown University's intercollegiate athletics program was in violation of Title IX because it did not meet the law's proportionality test.
All of us can recite the financial difficulties our universities face in achieving the goals of Title IX. For reasons that I will specify below, I believe it is time to achieve the goals of Title IX set by the 1st Circuit. As one of the plaintiff's attorneys in the Brown case stated: "This (the action of the Supreme Court) should send a very clear and unequivocal message to the institutions. They should just sit down and see if there is anything for them to do (under Title IX) and do it." As educators, we should be at the forefront of making sure that our universities do it -- that is, achieve compliance with Title IX by having parity in our men's and women's intercollegiate athletics programs. The concept of the student-athlete is grounded in a vision of education that emphasizes the total development of the individual. Achieving the fullest development of one's intellectual and physical potential is the cornerstone of our defense of the student-athlete and of our conception of education. Title IX requires us to achieve equally this vision of education for men and women. While few will debate this vision of education, they will reject the criteria of parity by arguing that women are not as interested in intercollegiate athletics as men. The Brown University defense was, in part, that they had surveyed their women students and found they were not as interested as men in intercollegiate competition. Even if this were true, which the Court rejected and which my experience suggests is false, it should not be an argument to which we grant merit. For if it were true, it is likely to be so because we have denied girls the intercollegiate role models to validate and encourage their involvement in sports. Only by making participation by women as accessible as it is for men will we be able to test the theory that women are less interested than men in intercollegiate athletics. The sociologist George Herbert Mead once used the metaphor of a baseball team to explain the functioning of social organizations. By doing so, he also demonstrated how important sports are to success in life. From the lessons learned through competition, including the ability to learn from defeat, to the opportunities sports give to access those who can influence one's life and career, sports have proven to be a powerful factor in postgraduate success. By achieving the goals of Title IX as interpreted by the 1st Circuit, we will assist some women to overcome the sexism that continues in our society. With athletics programs struggling to remain financially solvent, how do we overcome the legitimate concerns about how to afford parity? While it is presumptuous for me to tell you how to achieve the goal at your school, I can tell you what we have done at mine. First, we set as a goal (to be achieved in no longer than five years) participation rates for women and men equal to their proportions in our student body. This meant proportionate equality in participation and scholarships, and equity in operating budgets, facilities and marketing. Second, we developed a plan to achieve these goals that was widely reviewed on campus and approved by the athletics council, the director of intercollegiate athletics, and the president. Third, we established systems to collect data and monitor compliance with the five-year plan. Finally, we required the athletics director to report each year to the campus on our progress in achieving the plan's goals. We have cut no men's sports although we have removed some scholarship support from men and shifted it to women. We added women's softball (which in its second year of competition is cochampion of the Atlantic Coast Conference). It has not been easy, but at the end of the third year of our plan, we are on schedule to fully achieving our goals by 1999. Commitment, a plan, data, monitoring and public review of progress are the elements we have used to help us achieve our goals in as challenging a financial situation as you can find in Division I intercollegiate athletics. Achieving gender parity in intercollegiate athletics is good for our students, the girls and women of our society, our competitiveness, and our educational integrity. Let's find out what we need to do achieve the goal set for us by the 1st Circuit and just do it. Charles F. Wellford is professor of criminology and criminal justice at the University of Maryland, College Park, where he also is faculty athletics representative and chair of the athletics council. Letter to the Editor -- Amateurism criteria in need of reviewMr. Campbell expressed concern that the NCAA eligibility appeals staff and NCAA Eligibility Committee were not imposing appropriate conditions for restoration of a student-athlete's eligibility in amateurism cases involving international tennis student-athletes. While I admit to having only a few answers to the questions Mr. Campbell is asking, I will attempt to explain the staff's decision in the specific international tennis case cited in his editorial. In the case to which Mr. Campbell refers, this international tennis student-athlete began her participation at age 13 and competed in approximately 54 tournaments over a six-year period and received approximately $62,000 in prize money based on place finish. It was a requirement for this young woman to turn over all prize money won to her country's tennis association. The association made all the arrangements for the young woman, including travel expenses and applications for entry into the tournaments. In order for the association to receive maximum prize money, the association entered the young woman into these tournaments as a professional. This young woman was not the individual who checked the professional box and was unaware that her amateur status was jeopardized as a result of the association entering her into tournaments as a professional. This young woman intended to remain an amateur and believed that she did so by returning her prize money to the association and only accepting money from the association to pay for her actual and necessary expenses to compete. Receipt of expenses to compete is permissible, in some instances, under NCAA rules. In all cases, the staff has the responsibility to determine the most appropriate conditions for restoration after an analysis of the facts and possible mitigating factors. The staff and Eligibility Committee attempt to impose conditions for restoration that hold a student-athlete reasonably responsible for his or her involvement in a violation of NCAA rules. In amateurism cases, the Eligibility Committee has determined that these cases should be evaluated using an "intent to professionalize" standard. That is, the staff and committee evaluate whether the individual has demonstrated, through his or her actions, an "intent to professionalize." Keeping this standard in mind, the staff considered the following factors as mitigating in this case: (1) The tennis association (rather than the student-athlete personally) entered this young woman into tournaments as a professional to maximize its own profits; (2) the young woman was required to return all prize money to the tennis association, and the tennis association provided her with only actual and necessary expenses; and (3) the young woman consistently believed that she was an amateur because she was only accepting money from the tennis association for her actual and necessary expenses. In this case, the staff believed that this woman did not demonstrate an intent to professionalize herself, as indicated by her actions. Had she personally checked the professional box, or kept all of the prize money won, or in some way promoted herself as a professional, then it is likely she would not have been restored to eligibility. While it may seem natural, at first blush, to conclude that a student-athlete should not be restored to eligibility if he or she has received $62,000 in prize money based on place finish, it is the view of the staff and Eligibility Committee that significant mitigation should reduce an otherwise harsh condition for restoration. In this case, the staff determined that this young woman did not intend to professionalize herself (as demonstrated by her actions), and that significant mitigating factors were present. As a result, the staff required the institution to withhold the student-athlete from the 1995-96 season (the young woman already had participated in limited competition in the fall of 1995 when the violations were discovered). While the staff believes its decision in this case is defensible, the membership could instruct the staff to treat these types of cases differently. It is clear that the area of amateurism needs this type of review by the membership. The application of Bylaw 12 provisions is fairly clear for student-athletes who participate in athletics activities in the United States, but for those individuals who participate in athletics activities in foreign countries, the issues are considerably less clear. Young men in Britain who reach their 16th birthday can choose to participate in soccer and be financially compensated by the government (Youth Training Scheme). There are men's ice hockey programs in Sweden that characterize their players and league as amateur yet pay their players $15,000 to $20,000 per year and claim this payment is less than the player's actual and necessary expenses. Finally, there are teams that participate in the Australian Women's National Basketball League that are supported financially by the men's professional league, have corporate sponsors and pay their premier players financial "stipends" (the league does not consider this to be a salary), and yet contend their players and league are amateur in nature. The membership, in the near future, must determine the kinds of violations that will result in some conditions for restoration but still would permit an individual to participate in its programs. Alternatively, it also must determine the kinds of violations it will not tolerate and would result in an individual not being permitted to participate in an NCAA program. Once the membership engages in a thorough review of amateurism issues and makes these types of determinations, it may conclude that a different standard of evaluation should be applied and these types of cases should be treated differently. Until that thorough review occurs, however, the staff will continue to apply the "intent to professionalize" standard to cases and provide relief from the strict application of amateurism rules when appropriate.
Carrie A. Doyle Opinions -- Response varied to court's action on Title IX case
Editorial "The surprising news from the front lines of America's battle against discrimination is that it's OK to measure discrimination by counting heads. "Recently, America has slipped away from letting numbers influence justice. Counting, after all, was only steps away from that American dirty word: quotas. "But on April 21 the Supreme Court let stand a lower court ruling on gender discrimination in college and university athletics. Fairness, the prevailing ruling in Cohen v. Brown said, means playing a strict numbers game of making sure that the percentage of women's varsity sports opportunities equals the percentage of enrolled women. "Brown University and other schools balked at the ruling. Fairness, they said, should be measuring the percentage of sports opportunities against the percentage of interested athletes. Brown argued that given its finances, the only way it could comply would be to cut opportunities for men. "In a compliance plan given to the court, the university wrote: 'Brown takes no comfort in proposing this Compliance Plan, which denies participation to many interested and able student-athletes, but...Brown has proposed a plan which, among distasteful alternatives, is the least distasteful.' "The fight comes down to a school's right to run itself vs. the ideal of creating athletics programs that welcome women as much as they have always welcomed men. Unfortunately, America has yet to master fair play in such situations. Public policy is often grudging: Here's your equality, but we're hurting others to give it to you. "The courts are right: Counting can be a measure of inequality, but it is a blunt tool. Brown and other schools may jerry-rig numerical equality, but real parity will take a systemic approach that includes better K-12 sports programs for girls, as well as more aggressive marketing of women's professional sports."
Alan Cubbage, vice-president for university relations "We're disappointed the Supreme Court decided not to hear the case because it's a concern of colleges and universities everywhere and we would have appreciated some guidance."
Maureen E. Mahoney, Brown University attorney "I will never be convinced that the 1st Circuit's decision results in equal opportunity. It is quite clear that it instructs universities to neglect the interests of men."
Leo Kocher, wrestling coach ''You have people who insist that the only possible reason that we would have more male athletes than female athletes is discrimination. I would say, 'Are we going to look everywhere in our society and say that if we don't have the exact representation of every ethnic group, gender, etc., are we going to ask the federal government to intercede and endorse a quota?' "
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If your university is not in the 1st Circuit, your lawyers may have told you the action is not binding for your school. Others may have suggested that you do nothing until efforts already underway in Congress to impose a legislative "remedy" to the Court's action are completed.