The NCAA News - News and Features

August 31, 1998

Governmental affairs report

Following is a report of federal activities from July 16 to August 15 affecting the NCAA membership. This report was prepared by the NCAA federal relations office. Copies of all documents, bills and correspondence in this report are available from the federal relations office, One Dupont Circle, N.W., Suite 400, Washington, D.C. 20036; telephone 202/293-3050.

Gender-equity issues

Office for Civil Rights releases letter on equitable apportionment of athletics aid dollars under Title IX.

On July 23, the U.S. Department of Education's Office for Civil Rights (OCR) issued a letter delineating the requirements of Title IX as they relate to the apportionment of athletics scholarship dollars. The letter was sent to the 25 postsecondary institutions included in a complaint filed by the National Women's Law Center more than a year ago. The National Women's Law Center asserted that the identified institutions were in violation of Title IX. OCR issued its letter in response to an inquiry by one of the named institutions concerning the allocation of scholarship dollars provided to student-athletes.

In the OCR letter, Mary Frances O'Shea, OCR's National Coordinator of Title IX Athletics, states:

"In responding, I wish (1) to clarify the coverage of Title IX and its regulations as they apply to both academic and athletics programs, and (2) to provide specific guidance about the existing standards that have guided the enforcement of Title IX in the area of athletics financial aid, particularly the Policy Interpretation's 'substantially proportionate' provision as it relates to a college's funding of the athletics scholarships budget for its men's and women's teams."

O'Shea indicates that spending on men's and women's athletics scholarships should be within 1 percent of the total participation rates of each sex in campus athletics programs, or within one scholarship. O'Shea writes:

"If the unexplained disparity in the scholarship budget for athletes of either gender is 1 percent or less of the entire budget for athletics scholarships, there will be a strong presumption that such a disparity is reasonable and based on legitimate and nondiscriminatory factors. Conversely, there will be a strong presumption that an unexplained disparity of more than 1 percent is in violation of the 'substantially proportionate' requirement."

Before the National Women's Law Center complaint, it was widely believed that a 5 percent variation was considered acceptable.

Val Bonnette, a Title IX consultant and former OCR investigator, is quoted in The Chronicle of Higher Education questioning whether the July 23 "clarification" was in fact a rewriting of OCR's requirements. Bonnette asserts that "[i]f OCR is attempting to enforce a narrower standard, then what they are doing is enforcing a policy that is counter to their written policy, and I believe it is of questionable legality for them to do so."

The National Women's Law Center praised the OCR clarification. The co-president of the organization, Marcia Greenberger, is quoted in the Chronicle as saying, "We think that the clarification describes what the law has always said."

The guidance outlined in the OCR letter is effective beginning the 1998-99 academic year and will not be applied retroactively.

General Accounting Office asks NCAA to supply data regarding NCAA participation statistics -- data needed to satisfy congressional request.

On July 22, the NCAA received a letter from the General Accounting Office (GAO) requesting a subset of data compiled by the NCAA on behalf of its member institutions. The GAO's inquiry is in response to a congressional request aimed at examining gender-equity issues. Specifically, the GAO has requested information from only those NCAA institutions that were members in both academic years 1985-86 and 1997-98. The GAO has asked for the following information: the number of male and female student-athletes; number of men's and women's teams sponsored by each NCAA institution; and the average squad size for each men's and women's team. The data are to be presented by division and sport and reported in the aggregate. In addition, GAO is seeking to obtain written policies used by institutions and conferences that restrict squad sizes of men's and women's sports teams.

GAO requested that the information be made available by early August in order to meet an August 21 publication date. However, the NCAA does not have the data in a format that makes it readily available and may not be able to satisfy the request.

University of Richmond increases commitment to women's sports -- reduction in men's scholarships and varsity teams planned.

The University of Richmond's athletics department has announced plans to reduce scholarships in three men's sports and significantly increase the school's commitment to women's sports during the next two years. The university will add 45 scholarships to women's teams while eliminating 14 scholarships from men's teams, including eight from its Division I-AA football program and three from golf and tennis. The men's swimming and water polo teams also will be downgraded from varsity to club status. In addition, the university will limit the number of participants in men's sports.

The plan is a response to an 18-month study by the school that was approved after a review of the university athletics department for re-accreditation by the Southern Association of Colleges and Schools and certification by the NCAA.

In 1997, 103 scholarships were available for men and 39 for women. By the 1999-2000 academic year, the university projects that 84 scholarships will be available to men and 84 available to women.

Senate judiciary hearing on Title IX cancelled.

The Senate Judiciary Committee, chaired by Sen. Orrin Hatch, R-Utah, cancelled a planned hearing scheduled for July 14 to review programs and policies of the U.S. Department of Justice, Office for Civil Rights. The hearing was to include separate panels on the Americans with Disabilities Act and Title IX. The Title IX panel was prompted by a federal government initiative to ensure that gender-equity policies apply to all federal grant programs.

The NCAA learned that witnesses scheduled to appear on the Title IX panel included: a representative of the Women's Independent Forum; Leo Kocher, University of Chicago; Kim Schuld, University of San Diego; and Christine Grant, University of Iowa. The hearing was cancelled due to Hatch's schedule. A similar hearing conducted by the House Judiciary Committee did not include any discussion of Title IX.

National Youth Sports Program (NYSP)

NYSP reauthorized by House committee.

On July 29, the House Education and the Workforce Committee passed the Human Services reauthorization bill (H.R. 4241). The National Youth Sports Program (NYSP), which is authorized under the Community Services Block Grant program, was extended for five years. The NYSP authorization was amended to mirror changes adopted by the Senate last month in its companion bill, S. 2206. The changes require local community sites offering NYSP summer programs to create a community advisory committee and to establish year-round linkages with other community-based youth organizations to deliver the NYSP message.

H.R. 4241 is expected to be considered by the House when Congress returns from the summer recess.

$15 million likely to be provided by Senate appropriators in September.

Indications are that the Senate Labor/HHS/Education Appropriations Subcommittee will provide $15 million in fiscal year 1999 funding for NYSP. The subcommittee will act on the appropriations legislation after Labor Day. Earlier, the House Appropriations Committee provided $15 million for fiscal year 1999, which represents a $1 million increase from FY 1998 funding.

Amateur Sports Act

On July 29, the Senate Commerce Committee gave voice-vote approval to a bill (S. 2119) that would expand the power of the U.S. Olympic Committee to coordinate amateur sports. The measure would amend the Amateur Sports Act of 1978 (P.L. 95-606). It would provide the USOC with the authority to hire an ombudsman to protect the rights of amateur athletes to compete in the Olympics, the Paralympics, and the Pan-American Games. The ombudsman provision was amended to reflect concerns expressed by the NCAA, the National Federation of State High School Associations and U.S. Tennis that the ombudsman position was overreaching in its influence over amateur athletics competition. The concerns focused on the ambiguity of the ombudsman's role in negotiating settlements for amateur athletes participating in non-Olympic competitions.

Other provisions contained in the legislation would provide the USOC with the authority to modify arbitration procedures for deciding which groups can qualify as national governing boards and would give the USOC additional legal protections against companies using the Olympic name or Olympic symbols without authorization.

Gambling related issues

Internet gambling legislation adopted by the U.S. Senate.

On July 23, the Senate passed legislation that included language drafted by Sen. Jon Kyl, R-Arizona, aimed at prohibiting Internet gambling. The language was added as an amendment to the Commerce, Justice, State Appropriations bill, S. 2260. On the Senate floor, Kyl indicated that he intended to bring the Internet Gambling Prohibition Act of 1998, S. 474, before the Senate as a stand-alone bill. However, with so few legislative days remaining before Congress adjourns, Kyl was forced to offer the bill's contents as an amendment to other legislation pending before the Senate.

Kyl's amendment was the product of more than 12 months of revisions to the original legislation introduced in 1997. On the Senate floor, two senators offered amendments to Kyl's language. Sen. Richard Bryan, D-Nevada, introduced an amendment aimed at permitting the operation of sports fantasy games that required reasonable administrative fees on the Internet. This amendment was adopted. Sen. Larry Craig, R-Idaho, offered an amendment that would exempt from the bill's provisions an Indian Internet gaming that complied with the Indian Gambling Regulatory Act (IGRA). Kyl and others successfully argued that Craig's amendment would allow Indian tribes to be the only people in the country that would be permitted to engage in Internet gambling. Furthermore, opponents of the Craig amendment argued that the Kyl language was not in conflict with IGRA. Craig's amendment was defeated 18-82. Kyl's language was adopted as part of S. 2260 by a vote of 90-10.

Highlights of the Kyl amendment include an update of existing law that prohibits those engaged in the business of betting or wagering from using wire communications for the transmission in interstate or foreign commerce of bets or wagers on a sporting event or contest. The amendment will extend this prohibition to Internet gambling (whether conducted by wire or through wireless communication) and provides for stiff penalties against the Web site operators and the gambler. In addition, the bill strengthens the enforcement of the prohibition by providing law enforcement with civil remedies. These remedies include the use of injunctive relief, pursuant to specified guidelines, against Internet service providers. This provision was the result of lengthy talks with representatives of the online service provider community.

The House version of the Commerce, Justice, State Appropriations bill did not contain Internet gambling language. This means that the issue will be discussed between House and Senate conferees assigned to work out differences between the two bills. Senator Kyl will not be named as a conferee. It is still not clear what strategy will be adopted to ensure that the Kyl language is included in the final bill sent to the president. The NCAA federal relations office will be in close contact with Kyl's office and will be working with the House Judiciary Committee where a companion Internet gambling bill is pending.

The NCAA federal relations office has forwarded copies of the Kyl language to the Higher Education Alliance for Information Technology (chaired by Graham B. Spanier, president of Pennsylvania State University) and is soliciting its comments.

House Judiciary Subcommittee scheduled to markup Internet gambling legislation in early September.

The House Judiciary Subcommittee on Crime plans to markup H.R. 2380, the Internet Gambling Prohibition Act of 1998, when Congress resumes its business after Labor Day. The markup is, in part, a response to the strong support shown by the Senate in its passage of Kyl's Internet gambling bill, contained in the Commerce, Justice, State Appropriations legislation (S. 2260).

The House Judiciary Subcommittee on Crime planned to markup its version of the Internet Prohibition Act of 1998 on August 7 but the markup was postponed until after the congressional recess. Committee Chairman Bill McCollum, R-Florida, a strong supporter of the Internet gambling legislation, has drafted language that will serve as a manager's amendment to the existing House bill introduced by Rep. Bob Goodlatte, R-Virginia, H.R. 2380. While the bill contains some of the same language contained in the Kyl legislation, there are differences in the structure and content of the proposed amendment.

With fewer than 20 legislative days left before Congress adjourns for the year, the House is hoping to pass its Internet gambling bill with enough time to permit the Senate to adopt its version. It is hoped that the full House Judiciary Committee will markup the legislation shortly after the subcommittee markup is completed. Meanwhile, the NCAA has been in contact with the House Subcommittee staff and may offer modifications to the proposal before the markup in September.

Higher education issues

Collegiate licensing model codes.

The Department of Labor (DOL) is hosting a Codes of Conduct Symposium October 6 at the Smithsonian's Child Labor Exhibit in Washington, D.C., for the collegiate licensing industry. This issue was addressed recently by the U.S. House of Representatives with the adoption of a resolution urging colleges and universities to ensure that collegiate licensing agreements prohibit manufacturers from utilizing sweatshop and exploited adult or child labor either domestically or abroad. This resolution was added to the Higher Education Act (H.R. 6) by Rep. George Miller, D-California. DOL is interested in working with colleges and universities to promote the adoption of licensing codes of conduct.

The symposium will address issues involving the drafting, implementing, and monitoring of licensing codes of conduct. The Secretary of Labor is scheduled to be the keynote speaker.

Those invited to the symposium include college presidents, licensing directors, student group representatives, and members from the sporting goods industry.

ACT scores remain level despite increase in number taking exam.

For the 1997-98 academic year, the average composite ACT score remained steady at 21. The result marked the ninth straight year that the national average has either stayed the same or increased. While the score is the same as last year, ACT reported that 35,000 more students took the test this year. Sixty percent (995,000 students) of America's entering college freshmen took the ACT during the past academic year.

ACT President Richard Ferguson indicated that the performance is improving because more students are taking higher-level courses in subjects covered by the ACT. Ferguson stated that "[t]his period of steady or increasing scores coincides with nationwide efforts to emphasize the need for more demanding college preparatory work. That emphasis seems to be producing results."

Course work in calculus, trigonometry and physics helped boost scores.

Satellite royalty fees

On August 4, the House Judiciary Committee approved by voice vote H.R. 2921. The legislation would delay until December 31, 1999, an increase in the royalty fees paid by satellite operators for the retransmission of distant network and superstation signals. Last year, the Library of Congress adopted an increase in the satellite royalty rate to 27 cents per subscriber per month, up from a range of 6-17.5 cents. The NCAA, as a member of the Joint Sports Claimants, receives a portion of the royalty fees paid by the satellite operators for the retransmission of college sports programming.

The bill, referred to the Judiciary Committee after being approved by the Commerce Committee, does contain a controversial amendment that may impede passage of the legislation in the House. A provision added prior to the Judiciary Committee vote by Rep. Howard Coble, R-North Carolina, would allow satellite operators to provide customers with their local broadcast stations only if they carry all the stations in that local market. The House Commerce Committee version does not contain the local-into-local provision. The amendment now creates a possible jurisdictional tussle between the two committees. Furthermore, the satellite operators oppose the Coble provision arguing there is not enough room on satellites to accommodate all the stations in a given market.

Last month, an amendment was added to the Senate Commerce, State and Justice Appropriations bill, S. 2260, that would delay the new satellite royalty fee until March 31, 1999. The House version did not contain this provision. It is not known whether the provision will be included in the final bill that is negotiated between House and Senate conferees.