College football is not separate from other NCAA sports.

Stanford women’s soccer celebrates its 2019 national championship. Source: John Todd / ISI Photos.

There is a way to have college football this season. Every conference could have a bubble, and teams would play Thursday through Saturday. Academics would not be an issue, as multiple colleges have opted to the virtual education route anyways.

But, it would force the NCAA to finally admit that student-athletes are in a class alone, separated from the rest of the student body.

And, it may also be a violation of Title IX.

Quarterbacks Trevor Lawrence of Clemson and Justin Fields of Ohio State are leaders of the #WeWantToPlay campaign. However, their demands go beyond just wanting to play. Most notably, the players ask for the creation of a players’ union — College Football Players Association — precisely what the NCAA does not want.

However, while the ACC — the conference where Lawrence leads the Clemson Tigers — decided not to suspend play, the Big Ten — home of Fields’s Ohio State Buckeyes — suspended play. On Sunday, Fields responded with a petition, asking for signatures to allow for the Big Ten to resume fall football. So far, the petition has gained more than 167,000 signatures and shows no signs of slowing down.

Fields’s efforts show a shift of power, from the institutions to student-athletes. Or in more familiar terms, from management to labor. The catalyst of the change could be attributed to Ed O’Bannon, former NCAA national champion, and All-American at UCLA. O’Bannon decided to sue the NCAA for restraint of trade because his scholarship agreement gave the NCAA perpetual rights to use his name, image and likeness without compensation. Since his filing in 2009, courts have ruled that the NCAA could not hold rights in perpetuity, and the NCAA could not cap the amount of non-cash educational expenses through student-athletes grant-in-aid scholarships.

After the Ninth Circuit affirmed the holding in O’Bannon’s favor, and the Supreme Court refused to hear the case, states from California to Florida have passed, or are currently negotiating, bills that would allow student-athletes to make money off of selling their names, images, and likenesses. Knowing that the shift is continuing rapidly, the NCAA went to Congress to attempt to convince lawmakers to supersede state name, image, and likeness laws with a national standard. Those efforts have not progressed and have even backfired, as Senators Kamala Harris and Cory Booker co-endorsed a College Athlete Bill of Rights, allowing student-athletes to obtain more privileges than the NCAA’s national proposal.

The shift from management to labor, along with social media enabling student-athletes to speak directly to their fans, has created the platform by which Fields can gain traction on his petition. However, Title IX should prevent Fields from being successful.

Title IX of the Education Amendments of 1972 states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational program or activity receiving federal financial assistance.” Schools must provide equitable opportunities to participate in athletics, along with equitable competitive facilities, according to the NCAA.

The NCAA also makes an important statement in regards to revenue.

Under Title IX there are no sport exclusions or exceptions. Individual participation opportunities (number of student-athletes participating rather than number of sports) in all men’s and women’s sports are counted in determining whether an institution meets Title IX participation standards. The basic philosophical underpinning of Title IX is that there cannot be an economic justification for discrimination. The institution cannot maintain that there are revenue productions or other considerations that mandate that certain sports receive better treatment or participation opportunities than other sports.

Title IX Frequently Asked Questions – NCAA

Creating a football-only “bubble,” or allowing only football to return, would create a sport-specific exception for football, a clear violation of the NCAA Title IX guidelines. Additionally, creating a “bubble” for men to play college football would create another distinction, through a difference of equitable competitive facilities. If one men’s sport is playing in a “bubble,” and no women’s sport is playing, Title IX is violated. Allowing only football to return, and no other sport, would create an inequitable opportunity to participate in athletics, a violation of Title IX.

The only way college sports can continue is if at some point during the 2020-2021 academic year, each institution fielding a football team somehow finds a way to provide competitive opportunities to enough women athletes to balance the football players’ participation.

Title IX also requires that schools must provide equal treatment of medical and training facilities and services. Thus, schools must provide equal COVID protections to all student-athletes. Some conferences — like the MAC, Big Ten, and Pac-12 — have postponed all fall sports. Others have decided to keep their options open and not cancel the season. Regardless of what occurs, it is crucial to remember that football is not the only sport in the fall NCAA season: women’s soccer, women’s volleyball, field hockey, and men’s soccer also occur during the fall. Creating an exception for college football, is not only unfair, but also illegal. 

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'21 J.D. Candidate at the University at Buffalo School of Law.​

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