The legal ramifications of a massive imbalance
On a beautiful Saturday in the US Virgin Islands, the No. 1 nationally ranked Oregon Ducks lost to No. 8 Louisville in an early season upset. Both teams entered Saturday’s game unbeaten, the Ducks having started their year with a win in an exhibition game over Team USA. Louisville’s 72-62 victory earned the Cardinals the 2019 U.S. Virgin Islands Paradise Jam champ status and knocked the No. 1 team off the top spot. And no one saw the game.
Ok, no one is an exaggeration. A very limited number of people who were, 1) aware, and 2) willing and able to pay $29.99 for a monthly Flohoops subscription, saw the game as well as those that were there in person. I say “aware” because even in the promotion of the game from the Paradise Jam twitter account and the NCAA women’s basketball twitter account, there was no indication that the game was viewable via a streaming service. The Paradise Jam website itself gave no clear indication of where someone could watch this top 10 matchup.
On Monday night, ESPN3 will be broadcasting the Luther College v. Northern Iowa University men’s basketball game, Luther College being a Division III team. How is it possible that one can view random men’s basketball matchups on any given night on readily available cable networks or streaming services but one cannot view a highly anticipated game between top 10 women’s teams, one of which touts the national phenom Sabrina Ionescu, whose #20 Oregon jersey sold out the day after Nike released it?
In terms of common sense, nothing about the above seems right. But let’s take it a step further. Does a lack of television coverage of women’s college basketball actually violate Title IX? The main language of Title IX is a meager 37 words (I became aware of that when interviewing the legendary hockey coach Digit Murphy). It states:
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"“No person in the United States shall, on 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 financial assistance.”"
The key words in this case being “denied the benefits of” on the basis of sex. In order to clarify what equal opportunity actually meant under Title IX, the US Department of Education released a Policy Interpretation that specifically lists “publicity” as a benefit under Title IX.
This means that Title IX compliance is assessed by examining, between men and women’s sports, access to publicity resources and the “quantity and quality of publications and other promotional devices featuring men’s and women’s programs.” In this case, I’d argue that television coverage should certainly be covered under “promotional devices.”
So is the NCAA actually in violation of Title IX when you consider the Oregon v. Louisville situation from this past weekend? First, there’s the fact that the NCAA itself does not actually have to comply itself with Title IX. That’s right. The 1988 Supreme Court case NCAA v. Tarkanian effectively ruled that the NCAA is not a state actor and therefore not subject to the requirements of Title IX. But should they be?
They are, after all, raking in millions of dollars selling broadcast rights and tickets and corporate sponsorships. If you look at March Madness, the NCAA & CBS signed an 8 year, $8.8 billion dollar extension for the broadcast rights to the men’s college basketball tournament, with the broadcast rights to the tournament alone rising to over $1 billion a year.
By contrast, as of March 2018, the NCAA and ESPN came to terms on a $500 million deal that included the broadcast rights to 24 collegiate championships, including the NCAA women’s basketball tournament.This means the NCAA negotiated a deal for about $35 million per season that gives ESPN rights to women’s basketball as well as a collection of other sports.
David Berri, a sports economist at Southern Utah University, says it appears the NCAA isn’t putting forward the same effort to promote women’s basketball as it does to promote men’s basketball: “Men’s college basketball is getting nearly 30 times more per year than women’s college basketball. Maybe that is justified. But there is a history of men negotiating better deals for men’s sports. A recent example is Major League Soccer getting a $75 million television contract while the WNBA — with better television ratings — only getting $25 million.”
While the men’s NCAA tournament certainly generates more money for the NCAA and its member institutions, that should not necessarily mean that men’s and women’s sports are exempt from receiving the same publicity as required under Title IX throughout the season. Title IX does not differentiate on revenue. Clearly, by the NCAA’s own standards of distinguishing between collegiate and professional opportunities, a professional model of market demand should not then apply to college athletics. Unless the NCAA means that difference only applies to the student athletes.
The counter argument to the above is that a school’s compliance with Title IX is not dependent on where a for-profit network chooses to spend their money. If CBS wants to spend billions on the men’s basketball and nothing on women’s, so be it. However, the NCAA and its member institutions are not for-profit entities. The NCAA already redistributes money to non-revenue generating sports.
College athletics should not be purely commercial activities. So can a valid argument be made that the large difference in ability to view collegiate women’s basketball games versus men’s college basketball games is a violation of Title IX? I think so.
As Title IX compliance is assessed by publicity, the ability to actually view a sporting event should certainly quality as publicity. And the ability to view the men’s game versus the women’s game is vastly unequal. It’s so unequal that you can’t easily watch the No. 1 team in the country fall to the No. 8 team in country on a weekend afternoon but you can watch a Division III men’s team face-off against an unranked men’s team on a Monday night. Again, such an outcome doesn’t suggest the NCAA is trying as hard to promote women’s college basketball as it tries to promote the men.
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