Hey, NCAA, This Looks Bad…Really Bad.

Over the past few years, BSELS contributor, Joe Schafer (@jwschafe), has reported on the NCAA’s long history of inequitable and questionable conduct. Yesterday marked another example of that inequitable conduct. Yesterday, March 18, University of Oregon Women’s Basketball player, Sedona Prince, used social media to reveal the glaring discrepancy between the men’s and women’s weight room facilities during this year’s NCAA Basketball Tournament. Photos and videos showed an expansive weight room at the men’s bubble in Indianapolis, compared to a single rack of weights and a stack of yoga mats in a large, almost exclusively empty room at the women’s bubble in San Antonio.

@sedonerrr

it’s 2021 and we are still fighting for bits and pieces of equality. #ncaa #inequality #fightforchange

♬ original sound – Sedona Prince

NCAA senior vice president of basketball Dan Gavitt apologized Friday for the lack of weight room equipment available to players at the women’s NCAA Tournament in San Antonio, saying his “leadership may have fallen short this time.” You think?! The NCAA attributes the weight room discrepancy to “limited space” inside San Antonio’s controlled environment, however, it appears from Prince’s video that there is ample space available. But it wasn’t just the weight room, either. Not only was there a massive discrepancy there, but the women’s NCAA sponsored swag bag (that every athlete receives) was painfully lacking compared to the men’s bag:

Photo Credit: @danhenry3 (Twitter)

It only gets worse. Apparently, there is also a disparity in the COVID-19 tests being administered at the men’s and women’s tournaments. The men’s teams are using daily PCR test while the women’s teams are using daily antigen tests. For background, the antigen test, frequently referred to as a rapid test, are are much less expensive and less likely to detect the virus early in the course of infection. On the other hand the PCR test, the turnaround time of which is longer, is considered the “gold standard” in detecting the coronavirus. UConn women’s head coach, Geno Auriemma, confirmed that the daily tests at the two tournaments are indeed different. Additionally, based on social media posts, players and staff at the women’s tournament are eating pre-packaged meals, while the men’s tournament features full buffets. On Thursday night, Price posted a food log to TikTok, showing the type of food offered at the women’s tournament. You cannot make this stuff up.

What About Title IX?

Everyone’s first thought goes to Title IX. Doesn’t there have to be “equality” between men’s and women’s sports? The simple answer to that is yes and no.

Big picture: Title IX protects student-athletes from sex-based disparate treatment. Title IX specifically states “[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 subjected to discrimination under any education program or activity receiving Federal financial assistance.” College institutions are required to provide equitable access and resources to their men’s and women’s programs and student-athletes. This does not mean that schools have to provide an equal amount of scholarships or spend the same amount of money on men’s and women’s sports. It does mean, however, that there cannot be disproportionate access and support for men’s and women’s sports. 

But the NCAA is not an educational institution or program and its explanation of “limited space” does not actually explain why the NCAA can get away with what appears to be a blatant Title IX violation. Member institutions of the NCAA pay the NCAA dues that the NCAA uses to support things like its annual championship tournaments. So, technically wouldn’t the NCAA qualify as an educational program receiving federal financial assistance such that it would have to follow Title IX? Unfortunately, the answer is no.

In 1999, the Supreme Court of the United States addressed that exact question in NCAA v. Smith and ruled that although the NCAA collected fees from its federally-funded member institutions, it was not bound by Title IX. In a unanimous decision, written by Justice Ruth Bader Ginsberg, the Court held that dues payments from recipients of federal funds were insufficient to subject the NCAA to suit under Title IX. Justice Ginsburg wrote, “[e]ntities that receive federal assistance [like the University of Oregon], whether directly or through an intermediary, are recipients within the meaning of Title IX; entities that only benefit economically [like the NCAA] from federal assistance are not.” She concluded that “the Association’s receipt of dues demonstrates that it indirectly benefits from the federal assistance afforded its members,” which, without more, “is insufficient to trigger Title IX coverage.” This holding means that the NCAA is not under a legal duty to provide equal level of facilities or “swag bags” to the men and women participating in the tournaments, even though University of Oregon is required to provide equitable support to its athletes.

In her video, Prince said, “[i]f you aren’t upset about this problem, then you’re a part of it.” While the NCAA apologized and said that it would “get it fixed as soon as possible,” that does not rectify the harm already done. Women’s sports in general have always been seen as lesser, not as important, or not as exciting. When the highest–and most profitable–collegiate athletic association does something that essentially reinforces that belief, that’s hard to swallow. The NCAA has faced much backlash across the country, especially from professional athletes and industry influencers condemning its efforts as unacceptable and disrespectful. Even though that support is heard and appreciated, it still doesn’t change the fact that we as a society have a long way to go to reach “true equality” in men’s and women’s sports.

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