March Madness and the Absence of Title IX Regulations

It has been almost one year since the NCAA was put in the spotlight for equity disparities in their men’s and women’s basketball championship tournament. Just about one year ago, Oregon standout, Sedona Prince, put the NCAA in the spotlight via TikTok videos, exposing the inequities of the female athlete’s weight room, their NCAA Tournament gear, and their meals. With the NCAA facing this inequity crisis, a common question came to mind: How can the NCAA avoid Title IX requirements?

The answer is an often-forgotten 1999 Supreme Court ruling. NCAA v. Smith was brought to court by a female intercollegiate volleyball athlete. Smith played two seasons at St. Bonaventure University, and after graduation, she sought to complete her athletic eligibility at a school she could begin a postgraduate program. The Postbaccalaureate Bylaw allows postgraduate student-athletes to participate in intercollegiate athletics only at the institution where they received their undergraduate degree. Smith petitioned the NCAA to waive these restrictions, as was often done. Smith was denied multiple times. Smith then sued the NCAA for violating Title IX, claiming the NCAA discriminated on the basis of sex by granting more waivers from eligibility restrictions to male athletes than female athletes. The question before the court became: Is the NCAA, a private organization that does not receive federal financial assistance, subject to Title IX? The answer, sadly, was no. Basically, the court said that even though the NCAA profits from federally funded colleges that are subject to Title IX regulations, the NCAA themselves are not subject to Title IX regulations. NCAA v. Smith, 525 U.S. 459, 119 S. Ct. 924 (1999)

Even though there is no Title IX protection over the NCAA’s actions, there has been social pushback for the NCAA to address its equity issues. As a result, last spring, the NCAA retained the law firm of Kaplan Hecker & Fink LLP (“KHF”) to conduct a comprehensive review of gender equity issues in the NCAA. You can read KHF’s executive summary report here. Some of the headlines from the report include:

“The NCAA’s organizational structure and culture prioritizes men’s basketball, contributing to gender inequity.”

“The structure of the NCAA’s media agreements perpetuates gender inequity.”

As we gear up for another year of March Madness, the questions will be: Did the NCAA learn from last year? Will they step up and provide the true NCAA Championship experience female athletes deserve? I am unhopeful, but to give credit where credit is due, the NCAA has already agreed to include the use of the “March Madness” slogan for the NCAA women’s basketball tournament. That’s right, 2022 will be the first year the NCAA women’s basketball tournament will be allowed to use the branding “March Madness,” a brand the NCAA has only been using for men’s basketball since 1939. I suppose the slow burn of change is better than no change.

Rachel Emendorfer is a 1L at the University of Minnesota Law School. Prior to law school, she attended the University of Wisconsin-Platteville, where she captained the Pioneer women’s basketball team. She can be found on twitter (@_rachel_15) and on LinkedIn under her name.