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Written Recap

The first episode features Church Hittle + Antrim’s Collegiate Sports Consulting, Managing Principal, Kelleigh Irwin Fagan, a former student-athlete, who discussed Title IX implications with respect to some of the hot-button issues in college sports, scenarios for student-athletes returning to campus, and other compliance issues for athletics directors to consider.

With regard to Title IX, Fagan mentioned that athletics departments that cut sports could face significant compliance consequences as under Title IX’s “proportionality” requirement, the statute requires athletics departments to treat male and female student-athletes “equitably” (not necessarily “equally”). As it relates to the intersection between Title IX and NIL, Fagan confirmed that even if institutions do not directly administer student-athlete NIL opportunities, institutions merely educating student-athletes on NIL could have significant Title IX application; as the NCAA has not finalized its legislative proposals and the Office of Civil Rights (OCR), which administers Title IX, has not yet released specific guidance on this narrow issue, such ramifications, however, may now be more conjecture. Fagan noted, however, that parallels may be drawn from Title IX’s “laundry list” applied to athletics, which requires male and female student-athletes to receive equitable treatment. Fagan, for example, explained how the “publicity and promotions” prong under the laundry list could be used as a parallel for OCR once the NCAA passes legislation.

Fagan also questioned the enforceability of COVID-19 eligibility waivers (which some institutions have reportedly instituted), describing them as “contracts of adhesion,” where one party has substantially more power than the other, which courts may be reluctant to enforce. Alternatively, Fagan explained that institutions have more likely offered “responsibility pledges,” such as requiring student-athletes to, in good faith, perform basic actions like frequently washing their hands and quarantining when reasonable.

Finally, Fagan described some of the risks involved for athletics directors with respect to the NCAA’s recently enacted attestation of compliance legislation, which requires athletics directors to certify compliance even with third parities, as well as possible enforcement mechanisms with respect to a potential NIL model.