The NCAA News - News and Features

The NCAA News -- September 13, 1999

Governmental affairs report

The following is a report of federal activities from July 12 through September 3 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 310, Washington, D.C. 20036; telephone 202/293-3050.

Gender-equity issues

Federal appeals court determines that ousted female football kicker can sue Duke University for discrimination under Title IX.

On July 12, a federal appeals court panel ruled that a female place-kicker, cut from Duke University's football team, could sue the university for discriminating against her because of her sex under Title IX.

In 1995, Heather Mercer, an all-state kicker in high school, tried out for the Duke football team for a second time after being cut in 1994. She became a member of the team after kicking the winning field goal in the spring intrasquad scrimmage. Although a member of the team, she did not play in the 1995 season. Before spring drills began in 1996, she was cut again.

Mercer brought several suits against the coach and Duke University. Her 1997 Title IX action was considered by the federal district court and dismissed. The judge ruled that Title IX guidelines state that women do not have the right to participate on coeducational teams in contact sports, such as football. Mercer appealed.

In the July 1999 ruling, the U.S. Court of Appeals for the Fourth Circuit in Richmond found that the contact-sports provision means only that women "need not" be allowed to try out for contact sports. Universities can decide whether to allow women to try out for contact sports. However, if a university permits women to try out for a team in a contact sport, then it must not discriminate against female players once they are on the team.

The case now returns to the district court for trial.

Male coach of women's track and cross country teams files Title IX suit against Vanderbilt University.

The women's track and cross country coach at Vanderbilt University has sued the institution alleging violations of Title IX of the Education Amendments of 1972 for discriminating against female athletes. In his suit, the coach alleges that Vanderbilt does not pay him at a level commensurate with coaches of men's teams and did not increase the budget for his team. The coach is seeking a salary increase, compensation for his reduced wages and benefits, and punitive damages. The case marks one of the few times that a male coach has challenged a university on gender-discrimination grounds.

Former athletics director sues Tennessee State University alleging gender bias.

A former athletics director at Tennessee State University has sued the school, claiming that the institution fired her in January for complaining about inadequate support for female athletes. According to her lawsuit, the former athletics director asserts that the university officials obstructed her efforts to improve the treatment of women's teams and ignored and diminished her contributions to the institution. In addition, the institution claims that the former athletics director was fired because she failed to follow university procedures. The former athletics director seeks reinstatement and unspecified damages from Tennessee State.

Meeting with Department Of Education takes place to address problems with coordinating 1999 submission of EADA data.

On July 30, the NCAA federal relations office met with the U.S. Department of Education to discuss the Department's plans for collecting Equity in Athletics Disclosure Act (EADA) data forms from colleges and universities this fall. As a result of amendments made to the Higher Education Act, for the first time, campuses are required to provide the Department with a copy of the completed form by October 30. In the past, campuses merely were required by law to share their EADA data forms with the public, upon request, by October 15. The NCAA also collected the forms by this date for use in the compilation of aggregate gender-equity statistics in NCAA reports.

Four years ago, in order to ease the burden on institutions and to ensure more uniformity in the data reported, the NCAA developed a model form for institutions to use. The NCAA form was designed to satisfy both the federal and NCAA data reporting requirements. The NCAA has recently updated the form to include additional data elements required to comply with changes resulting from other amendments to the Higher Education Act and those forms have been mailed to all NCAA member institutions for the October 15 reporting deadline. The NCAA's goal was to update the forms for use by NCAA member institutions so that completion of only one form would be required to satisfy both the federal and NCAA gender reporting requirements this year.

Since the Department has not finalized any of the details regarding this year's data collection, the NCAA had assumed that completion of the updated NCAA form also would satisfy the federal requirement. On August 9, the Department indicated by phone that it had reviewed the NCAA form and found it to be substantially comparable to the proposed rules. The Department agreed to accept the NCAA form in place of any new form the Department may produce for this year's reporting period. The Department has committed to working with the NCAA in the development of next year's form. In order to ease institutional burden, the NCAA is exploring the creation of an electronic medium to receive the reports when they are submitted in October 2000.

EADA proposed rules published -- NCAA to comment.

On August 10, the Notification for Proposed Rule Making (NPRM) for the Equity in Athletics Disclosure Act (EADA) appeared in the Federal Register. Amendments to the Higher Education Act of 1998 are addressed in the proposed rules. The NPRM provides the public with an opportunity to comment on the proposed regulations that will guide the implementation of the new law. Comments are due by September 15.

The NCAA will provide comments on the proposed rules. The NCAA comments will primarily address concerns brought forward by the membership at the NCAA's EADA Workshop held in conjunction with the Title IX Seminar last May. In addition, issues identified by the NCAA research staff and others will be included in the comments.

Higher education issues

Family Educational Rights and Privacy Act proposed regulations published in Federal Register -- NCAA submits comments.

On July 22, the NCAA submitted comments to the U.S. Department of Education on the Notice of Proposed Rule Making (NPRM) related to new amendments to the Family Educational Rights and Privacy Act (FERPA). In its response, the NCAA requests that the final regulations (to be published by the Department following the two-month comment period) address the role of a third-party recipient of education records in cases where the records are needed to defend against a lawsuit in a court of law. Specifically, further clarification was sought on the right of a third party to disclose a student's education records, without the consent of the student, in cases where the student or student's parents have brought a lawsuit against the third party. As currently written, the proposed rules allow an educational institution to disclose a student's record in a court of law if an institution has been sued. However, there is no mention of the right of a third-party recipient (such as the NCAA) to disclose the records in a court of law if it is sued by a student or student's parents, although it is assumed the same right applies.

In a letter dated October 22, 1998, the U.S. Department of Education informed the NCAA that the same right to disclose educational records in a court of law applied to a third-party recipient of the records. The NCAA's comments suggest that this policy regarding third-party recipients be discussed in the final regulations so that the public will be aware that this right also applies to other parties that have access to student education records to eliminate any ambiguity that may exist.

Student Right-to-Know proposed rules published -- NCAA to comment.

On August 10, the Notification for Proposed Rule Making (NPRM) for the Student Right-to-Know Act (SRTK) appeared in the Federal Register. Amendments to the Higher Education Act of 1998 are addressed in the proposed rules. The NPRM provides the public with an opportunity to comment on the proposed regulations that will guide the implementation of the law. The NCAA will comment on the proposed rules.

The NCAA comments primarily will address issues related to future electronic transfer of data and a change proposed by the Department of Education to discontinue the current practice of allowing institutions to add a student-athlete after the fall add/drop period has concluded.

NCAA attends White House briefing on Campus Week of Dialogue '99, part of the President's initiative on race.

On June 28, the NCAA federal relations office attended a briefing at the White House on the Campus Week of Dialogue '99, an initiative put forward by the President's Initiative for One America and the U.S. Department of Education. Various higher education leaders were asked to attend the meeting. The focus of Campus Week is to stimulate discussion on racial issues with a goal of providing an avenue for better racial relations on campus. Each participant at the White House briefing was asked to explore ways that their organization could engage its membership in a discussion on race-related issues during the week of October 4-8. A packet of information on the Campus Week has been sent to every accredited American college and university asking campus presidents and student leaders to look for ways to participate in the week-long initiative. The NCAA specifically was asked to consider hosting a teleconference on race-related issues in college sports. This proposal currently is being discussed.

Gambling issues

Update on Internet gambling prohibition legislation.

Sen. Jon L. Kyl, R-Arizona, and his staff are optimistic that S 692, the Internet Gambling Prohibition Act of 1999, will be considered by the full Senate shortly after Congress returns from recess in early September. In recent weeks, Kyl's staff has resolved many of the outstanding issues that have been raised by various interested parties.

It appears that the House is ready to turn its attention to drafting legislation. It is expected that Reps. Bill McCollum, R-Florida, and Bob Goodlatte, R-Virginia, will introduce a bill in the fall and hopefully conduct a committee hearing before Congress adjourns for the year.

New York state court finds offshore Internet gambling operation In violation of state and federal laws.

On July 26, a New York State Supreme Court found that an offshore Internet gambling operator that targets and conducts business with New York residents is subject to federal and state gambling laws. The New York-based World Interactive Gaming Corporation (WIGC), owners of an Antiguan-licensed sports book (The Golden Chips Casino), argued that because their computer servers were located and licensed in Antigua the company was not subject to New York gambling laws.

In a 20-page decision, Judge Charles Edward Ramos ruled that "it is irrelevant that Internet gambling is legal in Antigua. The act of entering the bet and transmitting the information from New York via the Internet is adequate to constitute gambling activity within New York State." Judge Ramos ruled that WIGC had broken both state and federal gambling laws, including the Federal Interstate Wire Act.

The case arose out of an investigation of WIGC and its officers by the New York Attorneys General Office. The New York company was selling shares in the casino gaming business for $10,000. As a result of its investigation, Judge Ramos also found WIGC liable for violating state securities laws for failing to register with the Attorney General before selling securities and failing to disclose that 46 percent of investors' funds would be used to pay salaries, commissions and consulting fees to the corporation's principals. Through its examination of WIGC business practices, the Attorney General later extended its investigation into WIGC's Internet gambling activities.

WIGC is expected to appeal the decision.

Specter chairs hearing on National Gambling Impact Study Commission recommendations -- NCAA submits testimony for hearing record.

On July 12, the NCAA submitted testimony to the Senate Appropriations Subcommittee on Labor/HHS/
Education focusing on the impact of sports gambling on college students and the vital need for greater research in this area. The statement discussed the NCAA's concerns about the growing prevalence of betting on college sports and youth involvement in sports gambling and offered several recommendations on federal research instruments that could be used to gather additional research on gambling behavior among young people. The Labor/HHS/Education Appropriations Subcommittee is charged with the responsibility for allocating funding and setting priorities for the nation's research agenda at various federal agencies, including the Departments of Health and Human Services, the Centers for Disease Control, National Institutes of Health, and the U.S. Department of Education. Sen. Arlen Specter, R-Pennsylvania, expressed interest in establishing more research in the area of gambling behavior at all of these agencies.

The NCAA's statement was provided at Specter's request. On June 30, the subcommittee conducted a hearing on addictive gambling behaviors, examining how the federal government could assist in building the body of research available on the topic. The hearing was in response to recommendations made by the National Gambling Impact Study Commission on ways the federal government could expand existing research agendas to include gambling-related research topics.

NCAA to seek federal legislation to ban all legal betting on amateur and college sports.

On August 5, the NCAA Executive Committee agreed to support an effort to initiate federal legislation to prohibit collegiate sports gambling in all states. The Executive Committee asked the NCAA federal relations office to mount a campaign to secure congressional sponsors for the legislative change with a dual goal. First, securing passage of the legislation, if possible, and second, making the public aware that collegiate sports gambling is widespread and problematic even though it currently is prohibited in most states. Members of the Executive Committee indicated that they would be willing to write letters and testify before Congress on the issue, as needed.

In 1992, President Bush signed the Professional and Amateur Sports Protection Act (P.L. 102-559), making sports gambling illegal in most states. The legislation prohibited the further spread of state-sponsored or state-authorized gambling schemes based on the outcome of sports contests. However, the final version of the bill permitted the continuance of sports gambling schemes already authorized by state law and gave the state of New Jersey one year to approve a constitutional amendment authorizing casino-based sports betting in that state. The states exempted from the federal law were Oregon (operates a sports lottery related to professional football), Nevada, Delaware (state law authorizes a sports lottery, but the scheme has never become operational) and Montana (operates a sports "pull tab" betting game). The NCAA and the professional sports leagues defeated an attempt to pass legislation in New Jersey and the "window" closed without a change in that state's law. Nevada is the only state that currently operates collegiate sports betting schemes.

On June 18, 1999, the federally appointed National Gambling Impact Study Commission issued its final report after a two-year study on the impact of legal gambling activities on the nation. The report, issued to the President, Congress, Governors and Tribal leaders, included a recommendation urging a federal ban on all currently legal sports betting on college and amateur sporting events. On the same day, the NCAA held a press conference expressing its support for the recommendation regarding college sports gambling and issued a press release endorsing the proposal.

Court case results in federal government lifting gambling ad ban in all 50 states.

In response to a recent Supreme Court decision that found unconstitutional a restriction banning broadcasters from transmitting casino gambling advertisements in any state that prohibits such activities, the Federal Communications Commission and the Justice Department acknowledged that they would no longer enforce such regulations. Outlined in a government brief, the Justice Department stated that "[I]t is the position of the defendants that [the law], as currently written, may not constitutionally be applied to broadcasters who transmit truthful advertisements for lawful casino gambling, whether the broadcasters are located in a state that permits casino gambling or a state that does not."

It is expected that Nevada casinos will now start airing TV advertising depicting the full array of gambling activities available for guests, including sports book gambling.

Taxes -- charitable donations and skybox seats

On July 7, the R.L. French Corporation received from the Internal Revenue Service a Technical Advice Memorandum (TAM) related to tax deductibility of a portion of a 1996 contribution the corporation made to Iowa State University to help fund the construction of skyboxes as part of renovations made to the football stadium. In return for the donation, R.L. French received the right to purchase tickets for seating in one of the skyboxes, tickets for the skybox, the right to use the skybox, passes to visit the skybox and parking. R.L French took a deduction for 80 percent of the amount associated with the right to purchase tickets to the skybox. The IRS had initially denied the tax deduction based on a part of the tax code that is limited to deductions for the operation of trade or businesses (which excluded deductions where the right to lease a skybox at professional sporting events was provided) and not the generally applied section of the tax code that addresses the right to purchase tickets at college and university athletics events.

In a June 10 meeting between the R.L. French Corporation and the IRS, the IRS indicated that they would be reversing the earlier opinion and would allow the deduction.

In the July 7 TAM, the IRS confirmed the interpretation made at the June 10 meeting.

On July 14, the IRS responded to a letter sent to the IRS by the Division I-A Athletic Directors Association, NCAA, NACDA and ACE asking for guidance on the matter. The IRS provided a full analysis of the legal issues and explained how the value of the goods and services received in exchange for the payment are to be determined by the institution receiving the gift. The IRS concludes that 80 percent of the portion of a donation made directly to colleges and universities that is attributable to the right to buy tickets for seating at a university or college athletics event is generally deductible. This applies even if the right to buy tickets is for seating located in a suite, skybox or other special viewing area within the university's athletics facility.

Eligibility issues

Department Of Education proposes to eliminate SAT and ACT tests for home-schooled students receiving student financial aid.

On July 16, the U.S. Department of Education published a Notification of Proposed Rule Making (NPRM) related to the implementation of a portion of the Higher Education Act Amendments of 1998. Included in the proposed rules is a change in the way home-schooled students would qualify for federal student financial aid. If the proposed rule becomes final, home-schooled students would no longer be required to take a federally approved test, such as the SAT or ACT, to be eligible for federal student aid.

The current practice requires home-schooled students to take a test to demonstrate that they have the "ability to benefit" from a college education. Since 1990, the government has required students without a high-school degree or its equivalent to pass such a test before qualifying for financial aid. Instead, the Department is now proposing that to be eligible for federal aid, a home-schooled student must satisfy the home-school completion requirements of the state in which they reside. Fewer than 10 states now require home-schooled students to obtain any kind of completion credential.

Department of Education proposes that students "self certify" whether they have been convicted of drug-related offenses.

On July 16, the U.S. Department of Education published a Notification of Proposed Rule Making (NPRM) related to the implementation of a portion of the Higher Education Act Amendments of 1998. Included in the NPRM is a proposal to require students to "self certify" on their financial aid applications whether they have ever been convicted of drug-related offenses. If they have been convicted, they could be denied financial aid.

The Higher Education Act Amendments of 1998 included a provision to deny federal aid to students who have been convicted in state or federal court for possessing or selling drugs. College and university officials worried that the new provision would require them to look into the past of prospective students and identify those who have had drug-related convictions. However, in the preamble to the proposed regulations, the Department says it will "not require institutions to question their federal aid recipients about drug-related matters." The provision is slated to become effective July 1, 2000.

National Youth Sports Program -- fiscal-year 2000 appropriations

The House and Senate adjourned for the August recess without considering their respective Labor/
HHS/Education Appropriations bills, which provide funding for all education-related federal programs. The House has set September 9 as the date the Appropriations Subcommittee will consider their version of the legislation. The Senate will move shortly thereafter. The House has already considered the other 12 appropriations bills. Difficulties have arisen with the Labor/
HHS/Education Appropriations bill because the spending caps established as part of the deficit reduction plan adopted in 1992. These spending caps are placing a squeeze on the bill's programs to such extent that legislation doesn't have enough votes for passage. Unless a decision is made to exceed the caps, either directly or through a technical loophole, it is uncertain how the legislation will make it through the two Houses of Congress.

Uniform Athlete-Agents Act -- model state legislation

During the week of July 26, the National Conference of Commissioners on Uniform State Laws (NCCUSL) reviewed the latest draft of the Uniform Athlete-Agents Act at its annual meeting in Denver. In 1997, NCCUSL agreed to develop a uniform state law regulating athlete agents after the NCAA committed to fund the costs of the effort.

For the past two years, the NCCUSL Drafting Committee has worked on writing model legislation regulating athlete agents. Currently, 28 states have enacted athlete-agent legislation. The NCCUSL hopes that by drafting a model law that all state legislatures will adopt the legislation that will result in a uniform set of regulations applying to athlete agents.

At the NCCUSL annual conference, the Drafting Committee presented the draft legislation to the Conference for a first reading. About 100 commissioners attended the session. Many constructive comments were offered. Commissioners raised concerns regarding an exemption for individuals acting on behalf of professional teams. Some thought that professional sports team representatives should be required to register as athlete agents if they solicit student-athletes to enter into professional sports-services contracts. Several commissioners argued that the prohibited acts section was too broad and needed to be narrowed in scope. In addition, there was some discussion that the administrative penalty section should not include student-athletes in its scope and that the civil remedies provision allowed for too many outside parties to sue agents for damages.

All suggestions will be reviewed at the next NCCUSL Drafting Committee this fall. At the fall meeting, the NCAA will have the opportunity to offer comments and to provide suggested revisions to the draft. The NCCUSL will then forward the legislation to the American Bar Association for approval. The draft will then be submitted for a final reading before the NCCUSL at their annual conference in July 2000. If the legislation is approved, it will be forwarded to state legislatures in January 2001.

The NCAA federal relations office will provide a detailed summary of the draft and will work with selected NCAA staff to develop comments and suggested changes to the draft.

Miscellaneous

ACLU sues Ohio school district over football team prayers.

In June, the American Civil Liberties Union (ACLU) of Ohio sued an Ohio school district in federal court for allegedly allowing football coaches to orchestrate prayers and other religious activities with players. The ACLU asked the court to bar the Loundon City High School head football coach and his assistants from preaching sermons or orchestrating prayer among student-athletes.

The ACLU argues that the coaches have been endorsing religion by holding mandatory prayer sessions before and after games and even pressured students to join particular churches. The coaches are also accused of speaking in tongues and making attempts at spiritual healing.

The suit alleges that the school district is violating the U.S. Constitution's Establishment Clause, which bars government involvement in religion.

Senate Commerce Committee to conduct hearing on use of performance-enhancing drugs by athletes -- NCAA to be asked to testify.

The Senate Commerce Committee will conduct a hearing October 20 on the use of performance-enhancing drugs by athletes. The NCAA will be invited to testify along with members of the USOC and other athletics organizations.