Equity Implications of Paying College Athletes: A Title IX Analysis

After fifty years of Title IX, the gap in participation rates between men and women in college athletics has closed significantly. In 1982, women comprised only twenty-eight percent of all National Collegiate Athletic Association (NCAA) college athletes. In 2020, they made up forty-four percent. Despite the progress in participation rates, a substantial gap in resources allocated to men’s and women’s sports continues to exist. On average, NCAA colleges spend more than twice as much on men’s sports as they do on women’s. This gap is even greater at schools in the Football Bowl Subdivision (FBS), the most elite level of college athletics. The median FBS institution spends almost three times more on men’s athletics than on women’s.

This situation may get even worse if colleges are allowed to start paying their athletes, which appears a realistic possibility in the not-too-distant future. Justice Kavanaugh’s concurrence in the 2021 Supreme Court decision NCAA v. Alston sent a strong signal that prohibitions on paying college athletes most likely violate federal antitrust law. More recently, some states have introduced legislation that would require colleges to compensate athletes in sports generating positive net income for their schools. Although this requirement could rectify the serious inequity of colleges making tens of millions of dollars from their athletes’ labor without those athletes sharing in the financial benefits they create, it could also widen the gap in resources colleges invest in men’s and women’s sports. With very rare exceptions, football and men’s basketball are the only college sports that produce more revenue than expenses. Consequently, unless Title IX requires otherwise, the difference in the amount of money that colleges invest in men’s and women’s sports could grow significantly if those colleges are allowed to compensate male athletes without compensating female athletes.

This Article provides a detailed analysis of whether the current Title IX regulations require equal payments to male and female athletes. It concludes that they do not. Of course, the controlling Title IX regulations were drafted at a time when paying college athletes was not even contemplated, and therefore this result does not comport with the purpose or spirit of Title IX. This Article goes on to argue that the Department of Education should amend the Title IX regulations to treat payments to college athletes the same as scholarships. This amendment would require male and female athletes to receive proportionately equal payments for their athletic services. Making this change to ensure equitable treatment of all athletes will advance the purpose of Title IX and help to combat the marketplace bias that hampers the economic growth of women’s sports.