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Trans Women in Women's Sports: Yea or Nay?

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2&2 Slider To Leyritz said:
Thank you for posting all of these. The NCAA is a joke. If they want to get out ahead of this, just allow the schools or their affiliates to pay the players as employees and, as a condition of their paid employment...
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The idea of classifying athletes as employees seems appealing as a way to solve a lot of the current problems facing the NCAA and its member schools. However, among all the reform proposals out there, this idea seems to be the one that colleges dislike the most.

I don't fully understand all the reasons why colleges seem dead set against the athletes-as-employees model of reform. But the issue has come up several times in recent years and the NCAA and its member schools have been successful in getting courts and the federal bureaucracy (the Labor Department and the NLRB) to rule that athletes are students and not employees.

Given the losing streak that the NCAA is on now, that rule could get suddenly overturned (like other NCAA rules have been overturned) and become the main means by which colleges sports undergoes a revolution. But for whatever reasons, the NCAA and members schools seem to prefer other routes to major reform. The NCAA is now resigned to making big reforms but it still seems to not want to use the route of having athletes classified as employees. One big concern seems to be the potential effect of Title IX:

www.jdsupra.com

College Athletes as Employees: Landmark Case Could Reshape Collegiate Athletics | JD Supra

In a pivotal legal battle, the Third Circuit is currently deliberating whether college athletes should be considered employees under the Fair Labor...
www.jdsupra.com www.jdsupra.com

...If college athletes are deemed employees, there could be a “cascading effect” of opening the door to various legal challenges under federal anti-discrimination laws, such as Title IX and Title VII.

Title IX, which prohibits sex-based discrimination in education programs and activities, has been instrumental in promoting gender equity in college sports. If athletes are considered employees, Title IX obligations may extend to ensuring equal wages and opportunities for female athletes, potentially leading to changes in funding and resources allocation within athletic departments. Jodi Balsam, a sports law expert and professor at Brooklyn Law School noted that schools may need to change the way they manage the athletic programs in order to justify, for example, why the football players are paid more than the women’s lacrosse team by holding the women players to fewer or lower expectations. She explained:

“In any job classification system, when it comes to addressing gender disparities, you need to justify those disparities by job classifications and expectations and market values.”

Furthermore, Title VII of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex, or national origin. If college athletes are recognized as employees, universities may face increased scrutiny over issues of racial discrimination within their athletic programs. This could have implications for hiring practices, coaching staff diversity, and opportunities for athletes of different backgrounds.

Conclusion​

As the Third Circuit deliberates on whether college athletes should be considered employees, the outcome of this case has the potential to reshape the landscape of college sports. The debate over athlete compensation is just the tip of the iceberg. A decision in favor of the players could lead to the implication of federal anti-discrimination laws, impacting issues of gender equity and racial fairness in college athletics. It remains to be seen how the Third Circuit will rule, but the outcome will likely have a profound impact on the future of college athletics and the broader conversation about athletes’ rights and equitable treatment.
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Former Coastal Carolina head football coach Joe Moglia is an interesting guy and, given his diverse experience as a coach and an entrpreneur (founder of TD Ameritrade), he is someone worth listening to when he speaks about the current troubles of the NCAA and college sports.

Moglia writes about the current issues in today's issue of Sportico, a relatively new publication focusing on the business of sports (similar to Sports Business Journal). It's a good column but he doesn't address the BIG question of whether to classify athletes as employees. Can "student-athletes" have a union without being employees? I don't know, though it's very common in Europe (especially France) for college and even high school students to belong to their own unions. :rolleyes:

www.sportico.com

Is College Athletics Ready to Take On Players Unions?

Whether NCAA president Charlie Baker's proposal takes effect or not, this is where college athletics is headed.
www.sportico.com www.sportico.com

...On Nov. 6, U.S. District Judge Claudia Wilken ruled that lawsuits against the NCAA and college athletics conferences—including the Power Five—could proceed as a class action. She’s the same judge who handled the Alston case at the district level before the Supreme Court ruled against the NCAA, ushering in the NIL era in 2021. Now, the potentially $4.2 billion class action suit, brought by Arizona State swimmer Grant House, TCU basketball player Sedona Prince and former Illinois football player Tymir Oliver, has framed the obvious question: Do universities and conferences profit from college athlete’s name, image, and likeness when they broadcast games on TV?

Judge Wilken has already indicated that she finds the athletes’ claim to be owed at least 10% of TV revenues to be worth considering (as Sportico previously noted, this would be in line with group licensing royalties for professional sports). If the NCAA loses this lawsuit, it will greatly shift power toward the biggest conferences, who could then freely pay players. The NCAA’s move to establish the subdivision seems to be a proactive effort to get ahead of that lawsuit, which I would applaud.

But what happens next?

College athletics cannot do what they did with NIL, which is make believe it wasn’t happening. Instead, they need to step up and be proactive. Direct NIL deals between schools and athletes or TV revenue sharing would almost certainly mean players unions would soon follow. It doesn’t really matter whether it’s the result of a lawsuit or a proactive rules change by the NCAA. The rise of unions is inevitable due to the gusher of NIL and TV money flowing into college athletics. Now, athletics directors and schools must not wait to prepare themselves for those labor negotiations.

Whether the subdivision is established or the NCAA loses in court (or both), it will instantly push student athletes to join together to ensure those revenues and deals are shared fairly. This isn’t theoretical. The Dartmouth men’s basketball team has already sought to unionize. More teams will likely follow in their footsteps, pushing to support the entire team, even as superstars earn supersized NIL deals.

...Do we really believe that the average athletics director is prepared for this? Probably not. For proof, just look at how poorly they negotiate severance clauses in coaching contracts, handing out millions and throwing away leverage in desperation to fill open positions at the end of the year. If the NFL was run the way college athletics are currently being run, the league would go out of business.

It’s wishful thinking to suppose that college athletics departments are able to effectively launch into a negotiation with a players union right now. They’ve got a lot of work to do, and in an ideal world would have already started figuring out how they’re going to deal with this years ago.

Making collective bargaining work in college sports is going to take a while. The first step is for someone to show proactive leadership on it, whether that’s the NCAA, the Power Five or a university president with a lot of clout. The second step is looking at what the professional leagues already do and shaping it to the unique requirements of college athletics. And the third step is actually cutting a deal with the players.

College athletes will be paid as professionals sooner rather than later, whether loosely under the auspices of the NCAA or via an independent Power Five. Players unions will come soon after. It’s time for athletics directors and their superiors to go to school and learn how to negotiate.
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The NCAA waves the white flag yet again:


A temporary restraining order against the NCAA's two-time transfer rule has been extended through the spring of 2024.

The ruling will now allow athletes who were denied the chance to play immediately after transferring a second time to return to competition without facing a penalty...



www.on3.com

Ohio Attorney General announces agreement with NCAA on temporary restraining order, transfer guidelines

The NCAA has agreed to new terms regarding a temporary restraining order granted this week, the Ohio Attorney General announced.
www.on3.com www.on3.com
After a judge granted a temporary restraining order in a lawsuit against the NCAA’s waiver policy, the organization has now agreed to new terms, Ohio Attorney General Dave Yost announced. The terms have been jointly submitted to a federal court for approval.

Under the terms, the NCAA agreed not to retaliate against athletes who play during the two-week TRO, which was granted by a judge in West Virginia earlier this week. In addition, the TRO is now a preliminary injunction, which will last through the end of the spring sports seasons.

The NCAA later released a statement confirming the injunction is in place through the end of the school year, and an athlete would use a season of eligibility of they play....

Judge John P. Bailey issued the two-week TRO earlier this week as part of the Ohio v. NCAA lawsuit, and allowed immediate eligibility for athletes who are either waiting on a waiver decision or had theirs denied during that time. It was effective Wednesday, although the NCAA wasn’t ready to say if those athletes would lose a year of eligibility if they participated in game action.

That set a hearing for Dec. 27 on the TRO. As a result of the agreement on Friday, that hearing will be off.

The lawsuit came about after West Virginia guard RaeQuan Battle fought for immediate eligibility after having his waiver denied. Earlier this calendar year, the NCAA announced it was cracking down on its two-time transfer policy, which led to more high-profile waiver denials. Under current rules, athletes can transfer one time with immediate eligibility, but need a waiver if they do so a second time as an undergraduate. Otherwise, those athletes would have to sit out a year.

As part of the court ruling this week, athletes waiting on a decision or who have had their waivers denied are now able to play.
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When does the rule requiring athletes to be students in good academic standing go bye bye?

Football teams in playoff games that run past the end of the semester could theoretically recruit guys from teams no longer playing.

Also, baseball would get interesting if teams in Omaha could pickup players from teams whose seasons and spring semester had both concluded.
 
While that could be where things are headed, I think that as long as the sports are still tied to the school at large, it will be difficult for there to be in-season transfers from an admissions perspective. I'm not naive enough to think schools won't try and game the system by allowing this, but I wonder if there are broader considerations re: credentials where this would be a hangup
 
CaptRenault said:
Former Coastal Carolina head football coach Joe Moglia is an interesting guy and, given his diverse experience as a coach and an entrpreneur (founder of TD Ameritrade), he is someone worth listening to when he speaks about the current troubles of the NCAA and college sports.

Moglia writes about the current issues in today's issue of Sportico, a relatively new publication focusing on the business of sports (similar to Sports Business Journal). It's a good column but he doesn't address the BIG question of whether to classify athletes as employees. Can "student-athletes" have a union without being employees? I don't know, though it's very common in Europe (especially France) for college and even high school students to belong to their own unions. :rolleyes:

www.sportico.com

Is College Athletics Ready to Take On Players Unions?

Whether NCAA president Charlie Baker's proposal takes effect or not, this is where college athletics is headed.
www.sportico.com www.sportico.com
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If they are employees of the university, I would imagine they need to have the same benefits as a university employee - healthcare, retirement, PTO/sick days, W2 salary, etc. I am assuming the schools don't want to deal all of that.

And if athletes are now employees, can you just fire a player if they stink on the field? Do you get a raise if you are a starter? Doesn't an employee have to justify their benefits with revenue? How does that work for every sport outside of men's basketball and football that is a net loss on the balance sheet?

It may take a decade+, but think we head towards some kind of league model, where the players, coaches, etc are operating entirely outside of the academic institutions. The league itself makes revenue from the media deals, ticket sales, etc. Either they buy or rent the campus stadiums. And maybe they have some kind of licensing and revenue share agreements with universities to use their name/logo as part of the teams. I have no idea what that means for non-rev sports. The league may choose to subsisize those as part of the league, or perhaps they just take MBB and football, leaving the schools with the other sports under Title IX/NCAA if they would even want them at that point. Maybe they just become club sports.
 
PaddyWF said:
If they are employees of the university, I would imagine they need to have the same benefits as a university employee - healthcare, retirement, PTO/sick days, W2 salary, etc. I am assuming the schools don't want to deal all of that.

And if athletes are now employees, can you just fire a player if they stink on the field? Do you get a raise if you are a starter? Doesn't an employee have to justify their benefits with revenue? How does that work for every sport outside of men's basketball and football that is a net loss on the balance sheet?
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The question of classifying college athletes as employees is maybe the most complicated issue faced by the NCAA and its member schools.

This Spring 2023 article from the Marquette Sports Law Review explores the topic in depth. One of the points in the article is that there are two laws under which athletes could be classified as employees: the NLRA (National Labor Relations Act) and the FLSA (Fair Labor Standards Act). The NLRA is a 1935 law that establishes the right of employees of private companies to form unions and strike--but it does not apply to public employees and most college athletes "work" for public universities. The FSLA is a later law that establishes certain other rights for all employees, such as the rights to receive a minimum wage and overtime pay. Technically, the NLRA could be used to classify athletes at both public and private schools as employees, but that could wind up giving different groups of athletes different rights based on whether they play at a private or public school.

Classifying athletes as employees could also result in negative, unintended consequences for both schools and many athletes:

...if pandora’s box were to be opened, and the NLRB decided to consider college athletes as “employees,” there may be undesirable consequences. The major consequence is the common argument that unionization would burden schools so much that institutions would be left with insufficient revenues to adequately fund their non-revenue generating sports.154 This could strip athletic and academic opportunities to large amounts of college athletes. In addition, there may be some NLRA, FLSA, or even antitrust law ramifications that hurt college athletes. If college athletes gain “employee”status under the NLRA, there could be even greater amounts of scholarship revocations due to injuries or performance issues and would cut against theNCAA’s academic focus. In regard to the FLSA, colleges and universities could likely show that fringe benefits, like housing, meals, medical coverage, and certain other in-kind compensation, could be considered “pay” under FLSA’s federal wage and hour laws.155 This could lead institutions to cut back on these fringe benefits, potentially making the everyday life harder for the majority of college athletes. As to antitrust law, collective bargaining rights go both ways which could lead to undesirable outcomes for college athletes like lock outs or increased regulations.
 
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Wakeforest22890 said:
While that could be where things are headed, I think that as long as the sports are still tied to the school at large, it will be difficult for there to be in-season transfers from an admissions perspective. I'm not naive enough to think schools won't try and game the system by allowing this, but I wonder if there are broader considerations re: credentials where this would be a hangup
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As the UNC academic-athletic scandal demonstrated, schools may try to get away with anything and not fear consequences from the NCAA. But schools do still seem to fear judgment from academic accrediting agencies, the general public and their own sources of funding (alumni and legislators). Those sources do still influence schools to maintain, at least, an appearance of academic legitimacy.
 
Article in The Athletic today about the QB flipping from Georgia to Nebraska and how it shows that the "little guys" like the Huskers can still compete for the top players if they have a mil$ or so in NIL to throw at somebody, and that somebody just happens to be a legacy who's dad and uncle played there. I still don't know how Wake is supposed to compete in this new era of college fb, but this article sure didn't give any hints unless Riley Skinner's kid is a top prospect in a decade or so.
 
DownEastDeac said:
Article in The Athletic today about the QB flipping from Georgia to Nebraska and how it shows that the "little guys" like the Huskers can still compete for the top players if they have a mil$ or so in NIL to throw at somebody, and that somebody just happens to be a legacy who's dad and uncle played there. I still don't know how Wake is supposed to compete in this new era of college fb, but this article sure didn't give any hints unless Riley Skinner's kid is a top prospect in a decade or so.
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How does WF compete in this new era of college football?

Signing the GA Max Preps POY is a good start!

 
I mentioned before that it would be interesting to hear what AD Currie has to say about Charlie Baker's NCAA proposal of December 5 and all the issues that are causing chaos in the world of college sports.

Well, on Monday he released the latest issue of From the Quad and, after mentioning a whole bunch of other topics first, he finally said this:

Then on Dec. 5, NCAA President Charlie Baker shared a concept that would create a new subdivision of NCAA Division I. While there are a number of legal and other issues still to address, and there are still many, many complexities and ramifications to consider, I salute President Baker for having the courage to elevate the discussion outside of the same-old track. At Wake Forest, we are uncompromising in our commitment to a true academically based student-athlete experience, and steadfast in our determination to continue to excel at the highest level of intercollegiate athletics.

Well, at least he's aware of the December 5 proposal-that much is good. But I was kind of hoping that he would say something of substance about pay-for-play, NIL, transfer rules, antitrust, Title IX, athletes as employees, etc.

I'm reminded of the apocryphal story of King Louis XVI of France who supposedly wrote in his diary on July 14, 1789: "Nothing of importance happened today." :)
 
The word choice in that statement is strange and makes it hard to tell where Currie is.

"Uncompromising" when it's unclear what a compromise would be.
"True academically based" when it's unclear what the concept has to do with academics.

There's an opportunity for ADs to lead on this issue. Wake would benefit if Currie is one of those leaders.
 
BlackjackMc said:
It will be interesting to see how private universities known for high quality academics respond to the changes that are sure to come.
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If this heads to making athletes employees, then two different systems apply depending on whether the institution is public (state school) or private.
 
I’m not sure that is true now with Currie. I think he wants to win. Dude was the only big time AD to fire the basketball coach in the middle of a pandemic, while things more important than winning were going on.

Narrator: Nothing was ever more important than winning.
 
Deaconblue said:
If this heads to making athletes employees, then two different systems apply depending on whether the institution is public (state school) or private.
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How could that work in favor of private universities?
 
PhDeac said:
How could that work in favor of private universities?
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If the National Labor Relations Board were to rule under the National labor Relations Act that college athletes were employees, that would technically only apply to private employers and so only athletes at private schools. The law's intent as passed in 1935 was to guarantee the right to employees of private companies to organize a union and bargain collectively. It's not illegal in many states for public employees to organize and bargain collectively but the NLRB doesn't have the authority to force public employers to allow unions. Athletes at private schools could theoretically use the threat of striking to bargain for better wages and benefits while athletes at public schools could not. Whether that is an advantage or not is debatable.

The NLRB could use its power to classify all athletes in private and public schools as employees, but it could not guarantee the same rights to organize and bargain collectively to athletes of public schools.

I've read that, because the situation is so messy, the NLRB has been reluctant to get involved in the "athletes as employees" question.

In the 2014 case involving Northwestern football team's attempt to unionize via the NLRB, this is what happened:

...It’s not the first time unionization has been discussed. In April of 2014, the National Labor Relations Board agreed to review a request from Northwestern University...football players who sought to unionize so they could collectively bargain with the university for greater benefits. At the regional level, the NLRB director ruled the players were employees under federal labor law and could unionize.

However, 16 months later the NLRB in D.C. declined jurisdiction over the matter, saying that although Northwestern is under its purview as a private institution, its “primary competitors” in its conference were public institutions subject to varying state laws on unionization (including states that don’t allow state employees—like university employees—to unionize). Essentially, the NLRB declined to govern Northwestern when it couldn’t govern the far greater number of public institutions competing at the same level in college football.
 
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When he was president of the NCAA Division I board of directors, President Hatch co-authored this Wall Street Journal column in 2014 with the president of Michigan State.

Given what has happened to college sports since then, Hatch clearly failed, along with everyone else in the NCAA, to anticipate the threats that lay ahead. Giving top athletes "trips home" and "professional clothing" was not going to help avoid the current chaos.


Why Unionizing College Sports Is a Bad Call​

Change at the NCAA can be achieved without turning student-athletes into employees.​

By LouAnna Simon
And Nathan Hatch
April 7, 2014

The National Collegiate Athletic Association's Division I men's and women's basketball championship games on Monday and Tuesday mark the culmination of a month that saw more than 10,000 student-athletes participate in 23 different championships at all levels of the NCAA.

We are proud to be a part of an organization that inspires the fervor and intensity of March Madness. For us, though, the championship games are about more than spectacle and excitement. Big events like these help the NCAA to provide opportunities for more than 460,000 student-athletes to get an education, to grow under the guidance of the world's finest coaches and professors, and to become leaders on the field and off.

Those opportunities are being jeopardized by a push from people who believe that unionization for a few is the best and only way to address the current dynamic of college athletics. For now, the unionization push is focused on Northwestern University football student-athletes, but we must see if the National Labor Relations board upholds its recent ruling in favor of Northwestern players who seek to unionize.
We oppose the effort to bring labor unions into college sports. One group of athletes is not more hardworking, more dedicated or more driven than another. Unionization will create unequal treatment not only among student-athletes competing in different sports, but, quite possibly, even among student-athletes on the same team.

Our concerns about this movement extend beyond the economic and practical difficulties created by transforming the college-sports relationship into one of employer-employee. To call student-athletes employees is an affront to those players who are taking full advantage of the opportunity to get an education.

Do we really want to signal to society and high-school students that making money is the reason to come play a sport in college, as opposed to getting an education that will provide lifetime benefits? The NCAA's philosophy, proven by where the organization spends its money, is education first. More than 90% of NCAA revenue is redistributed to member schools, which provide $2.7 billion in athletics scholarships in addition to other direct support to student-athletes. Most member schools depend on this revenue, as only 23 out of 1,100 generated more money than they spent on athletics in the past fiscal year.

The model we have today enables more than 150,000 young men and women playing more than 20 different Division I sports to attend college and earn a degree while competing—and after their eligibility is complete. Many of these student-athletes would not be able to attend college were it not for the athletics scholarships they received: 15% of Division I student-athletes are the first in their families to attend college. This model provides similar educational opportunities for hundreds of thousands of Division II and III student-athletes every year.

Are those seeking representation by a union raising legitimate concerns? Certainly. We already have begun addressing those concerns by:

• Allowing schools to provide scholarships to student-athletes to return and complete their degrees even many years after their eligibility has expired.
• Designing a new governance model that includes student-athletes—with votes—at the highest levels.

• Allowing schools latitude to provide student-athletes with resources that enhance their educational experience.

Division I is completely reworking its governance structure, with the student-athlete voice central to its design. After our structure is reconfigured in the coming months, we will pursue a number of other student-athlete benefits within a year. The Atlantic Coast Conference, Big Ten Conference, Big 12 Conference, Pacific-12 Conference and Southeastern Conference are committed to using the autonomy they hope to gain to better meet the needs of student-athletes at their 65 schools. Among the top issues to be addressed:

• Redefining a scholarship to include extra money for things such as trips home and professional clothing.
• Providing set times for student-athletes to get a break from the rigor of Division I sports.
• Keeping the health and safety of student-athletes a priority.

Research shows that less than 2% of men's basketball and football student-athletes go on to compete professionally in their sport. Most student-athletes play college sports as part of their educational experience and simply because they love their sport. We believe that the current model for college athletics, while in need of changes, is worth preserving. We look forward to making student-athletes more complete partners with the NCAA as we shape the future of college sports.
 
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