COVID-19’s Legal Ramifications Part 4: Not Returning Seniors may Violate Title IX

This series is a discussion of the legal issues in the sports world amid the novel coronavirus. This is a first for our forum, where each of our contributors will be authoring at least one post, discussing either the sports world now, or what will likely happen in the future, during this unprecedented time. One post will be published each day, focusing on a new topic. Please check in each day for updates and feel free to comment with your questions or comments. Together, we will navigate this new landscape. #ubsportslaw #ublawsportsforum

Not Returning Seniors may Violate Title IX

There is no doubt that COVID-19 has changed the way the world acts, especially for those on college campuses. Gone are the days of in-person classes, all-you-can-eat dining hall visits, and pretending to play Grand Theft Auto while stealing someone’s parking spot. In a world that has increasingly become dependent on computers, the dependence is at an all-time high as students across the world are using Zoom and other services to learn. However, some students have had more taken away from them other than the experience of sitting in a 300 person lecture hall: the ability to compete in their spring sport. The NCAA canceled the athletic spring schedule on March 12, 2020. Gone are the practices, road trips, and games that these student-athletes worked their lives for. Additionally, seniors would never receive the proper ending to their athletic careers. But, the NCAA remedied the situation.

On March 30, the NCAA decided to extend Division I eligibility to spring-sport student-athletes. By enacting an across-the-board Five-Year Rule Waiver under Bylaw 12.8.1.7, the NCAA would allow seniors to experience their senior day, and the rest of the spring student-athletes to compete after the months of hard work. That is, unless you play for the Wisconsin Badgers. Wisconsin-Madison Athletic Director Barry Alvarez stated that the seniors at Wisconsin would not have the privilege of many seniors in the NCAA by not allowing them back in Madison. Alvarez sent a PSA to all Badger seniors, “. . . graduate and move on with your life.” That statement is damming in itself to all of those who worked hard for the University of Wisconsin-Madison. However, it is even more damning when you look at who the majority of spring senior student-athletes are.

Research conducted by compiling all of the names, genders, sports, years, and seasons of athletes at the University of Wisconsin-Madison establishes that Alvarez’s statement prematurely ended the careers of 29 women who are seniors or redshirt-seniors. Only ten men are affected in the same way. The negligent statement made by A.D. Barry Alvarez is a clear act of de facto discrimination on the basis of sex, the exact issue that Title IX, the federal statute banning discrimination based on sex in any educational program receiving federal financial assistance, was designed to address.  De facto discrimination occurs when the discrimination is not clearly expressed through a statement or a law. However, the end result occurs in favoring one party over the other based on a protected class, such as race, color, religion, creed, and sex.

Season Men Women Grand Total
Fall 154 79 233
Winter 99 72 171
Spring 65 162 227
Grand Total 318 313 631

The chart breaks down the number of men and women student-athletes participating in fall, winter, and spring NCAA sports.                                                                                    Source: Univerisity of Wisconsin-Madison / Uwbadgers.com

Additionally, as the chart above shows, 162 of the 227 spring student-athletes are women. The same subset also is the largest group overall, beating the number of men engaging in fall sports. Numbers-wise, A.D. Barry Alvarez’s position is akin to taking away another year of eligibility from the football team – and then some. However, A.D. Alvarez has previously courted controversy, allowing a then-graduate student transfer, Russell Wilson, to become the starting quarterback for the Badgers. Alvarez is on record, stating that adding Russell Wilson to the team “was like hitting the lottery for us.

Well, what about the lucky women who had their seasons canceled and were kicked out of the door? What lottery did they win?

An institution must meet all of the following requirements in order to be in compliance with Title IX:

  1. For participation requirements, institutions officials must meet one of the following three tests. An institution may:
    1. Provide participation opportunities for women and men that are substantially proportionate to their respective rates of enrollment of full-time undergraduate students;
    2. Demonstrate a history and continuing practice of program expansion for the underrepresented sex;
    3. Fully and effectively accommodate the interests and abilities of the underrepresented sex; and,
  2. Female and male student-athletes must receive athletics scholarship dollars proportional to their participation; and,
  3. Equal treatment of female and male student-athletes in: (a) equipment and supplies; (b) scheduling of games and practice times; (c) travel and daily allowance/per diem; (d) access to tutoring; (e) coaching, (f) locker rooms, practice and competitive facilities; (g) medical and training facilities and services; (h) housing and dining facilities and services; (i) publicity and promotions; (j) support services and (k) recruitment of student-athletes.

NCAA.org

The Wisconsin discrimination issue that will recur in many programs, as several schools have to make tough decisions regarding the future of some of their athletic programs. Teams may get cut. The University of Cincinnati cited COVID-19 as the reason why their men’s soccer team was cut. However, what is certain is that the result of these decisions must still be in compliance with Title IX.

The attached spreadsheet details Wisconsin’s student-athlete demographic breakdown for the 2019-2020 academic year. 

6 thoughts on “COVID-19’s Legal Ramifications Part 4: Not Returning Seniors may Violate Title IX

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  1. While Alvarez’ statement lacked tact, Wisconsin is not the only school that has said no to spring seniors coming back next year. A number of schools in the Ivy League have done the same thing.

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    1. Thank you for reading!

      That is correct, the Ivy League is not allowing seniors to come back. The NCAA used the Five Year Rule waiver to give spring athletes an extra year of eligibility. The Five Year Rule allows undergraduate and graduate students to play four athletic seasons in five academic years. However, the Ivy League does not follow the Five Year Rule. The Ivy League’s policy has been that only undergraduates can play a varsity sport within four years. The Ivy League is staying on course with their policy. Wisconsin, a school that uses the Five Year Rule, has 104 redshirt student-athletes, meaning that these student-athletes have the ability to play four seasons during five years.

      https://www.thedartmouth.com/article/2020/04/athletics-director-spring-sport-seniors-react-to-ivy-league-decision-to-deny-eligibility-extensions

      https://www.si.com/college/2020/04/02/ivy-league-reject-extended-eligibility-fifth-year-athletes

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