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Sports Law Outline
1) The Role of the Commissioner
a) Pete Rose v. Bart Giamatti – Rose bet on games and the Commissioner banned
him from baseball for life. “Major League Baseball is a unique organization with
extraordinary power invested in the Commissioner.”
i) The Commissioner can investigate any act not in the best interests of baseball
and determine what punitive action is appropriate and take it.
ii) Supervise Officials, Establish schedules, negotiate TV deals, Direct labor
management issues – powers of the commissioner.
b) The Legal scope of the Commissioner’s authority –
i) Yankees v. Johnson – Mays walked off the field during a Red Sox game, the
Sox sold Mays to the Yankees then the President of the AL suspended Mays
he was later overturned by the court (before Commissioner’s)
ii) Milwaukee v. Landis – The Commissioner creates a free agent. The court says
he has unlimited discretion as an arbiter to secure observance of the provisions
of agreements and rules and prevent conduct detrimental to BB.
iii) Finley v. Kuhn – The Commissioner stoped the A’s from selling the contracts
of three of its MVP’s court allowed him to do this with the “best interests of
baseball clause”.
(1) The commissioner is hired by the owners and has broad sweeping powers
(2) The Commissioner can act on any matter that involves the integrity of or
public confidence in baseball. Integrity and public perception of baseball
are to be determined by the Commissioner.
2) Reserve System & Restraint of Trade –
a) Sherman anti-trust act 15 USC § 1,2
i) Trusts illegal – Every contract or conspiracy in restraint of trade or commerce
among the States is illegal.
ii) Monopolizing illegal – Every person who shall monopolize or conspire to
monopolize any part of the trade or commerce among States is illegal.
b) Reserve system – Each team is entitled to exclusive rights with certain players
i) Other teams respect and do not tamper with the other teams players
ii) There is only one standard form contract and the team retained an option to
renew the contract for a season under the same provisions except salary.
iii) Draft – teams select in reverse order of finish from the minors. MLB.
c) Flood v. Kuhn – Congress had no intention of including the business of baseball
within the scope of the federal antitrust laws. Four reasons for not overturning.
i) Congressional awareness of court rulings coupled with inaction.
ii) Baseball was left alone to develop the reserve system outside antitrust law.
iii) Reluctance to overrule retroactively
iv) Any needed remedy has to come from legislative action.
(1) Only baseball is exempt from antitrust law no other sports.
(2) Professional baseball is a business engaged in interstate commerce.
d) Piazza v. MLB – Baseballs exemption from anti-trust law is limited to the reserve
system and not the game generally. (moving franchises)
i) Case settled out of court.
e) The Curt Flood Act of 1998 – Major league players are under antitrust laws.
i) The act does not change the application of antitrust law in any other context or
with respect to any other person or entity.
ii) Baseball Umpires or other individuals employed in the business of organized
baseball are not covered under this act and are exempted from antitrust.
iii) The minor league still enjoys its reserve clause antitrust exemption. The
amateur and first year player draft are also exempt from antitrust.
iv) Franchise expansion, location or relocation, franchise ownership issues
including transfers are still under an exemption to antitrust law.
v) Only Major league players have standing to sue under this law.
3) Antitrust and the Players Market –
a) Brown v. Pro Football (Redskins) – The exchange of a service for money is
commerce and the antitrust act applies to restraints involving the sale of services.
i) Per se rule – courts can condemn forms of conduct the judge disapproves of
for social, political, or economic reasons. These organizations can be
overruled even though they offer consumers lower prices and greater quality.
ii) Rule of reason test – an agreement is unlawful if the anticompetitive injury it
causes outweighs the pro-competitive benefits it generates.
b) Smith v. Pro Football – The per se rule will be invoked when the challenged
action is a naked restraint of trade with no purpose except stifling of competition.
i) rule of reason - A restraint must be evaluated to determine whether it is
significantly anticompetitive in purpose or effect
ii) If the restraint has legitimate business purposes and promotes competition
those must be balanced against the anticompetitive evils.
iii) A restraint is unreasonable if it has the net effect of substantially impeding
competition. The inquiry must be confined to a consideration of the
restraint’s impact on competitive conditions.
c) (dissent) – A natural monopoly results from economies of scale, a relationship
between the size of the market and the size of the most efficient firm, such that it
can continually expand its capacity at less cost than a new firm.
i) A player draft is a natural for league sports. Competitive equality among
component teams is an inherent requirement for meaningful sports.
ii) A player draft artificially holds down player salaries. The draft operates to
restrain the team from dealing with other players.
iii) It is necessary to have a draft that reaches the maximum number of potential
players who are absolutely necessary to preserve competitive balance.
d) Brown v. Pro Football (part II) – The fixed salary’s anticompetitive evils cannot
be balanced against its pro-competitive virtues and the fixed salary restraint can
be upheld only if the latter outweigh the former.
e) Mackey v. NFL (Part I) – The NFL is like a joint venture in that each member
club has a stake in the success of the other teams.
i) The NFL has a strong and unique interest in maintaining competitive balance
among its teams.
f) Fraser v. MLS – Striking down a combination that does not threaten present
competition could be justified, in the hope of obtaining more competition in the
future, only in already concentrated markets.
4) Labor Exemption from Antitrust Law – labor unions organizes and coordinates the
efforts of employees in dealing collectively with their employer.
a) Norris-LaGuardia Act of 1932 – federal courts could not enjoin strikes, pickets,
and other forms of employee self help. Economic pressure by unions enjoys
blanket immunity from antitrust liability.
i) Employer self-help through tactics such as lockouts and strike insurance is
similarly protected.
b) Mackey v. NFL (Part II) – The basis of the non-statutory exemption is the policy
favoring collective bargaining and its benefits extend to both parties.
i) The policy gives pre-eminence over the antitrust laws where the restraint on
trade primarily affects only the parties to the collective bargaining relationship
ii) The policy is implicated only where the agreement being exempted concerns a
mandatory subject of collective bargaining.
(1) The mandatory subjects of collective bargaining are wages, hours, and
working conditions
iii) Antitrust laws are overridden only where the agreement is the product of bona
fide arm’s length bargaining.
c) Leon Wood case – federal legislation explicitly prevents employees, whether in or
out of a bargaining unit (union) from seeking a better deal where that deal is
inconsistent with the terms of a collective agreement.
i) National labor policy attaches prime importance to freedom of contract
between the parties to a collective agreement.
(1) To the extent the term of the K was unjustifiably discriminatory to rookie
players the proper legal action was to charge the union with unfair
representation of new employees under the NLRA.
d) Brown v. Pro Football (Part III) – After an impasse, labor law permits employers
to unilaterally implement changes in preexisting conditions, but only so far as the
new terms meet carefully circumscribed conditions
i) The new terms must be reasonably comprehended within the employer’s pre-
impasse proposals.
ii) The collective bargaining proceeding must be free from unfair labor practices
such as an employers failure to bargain in good faith.
iii) Labor law permits employers, after an impasse, to engage in joint behavior,
including joint lockouts and replacement hiring.
iv) Labor law limits employers to four options at impasse
(1) Maintain the status quo
(2) Implement their last offer
(3) Lock out their workers and either shut down or hire temporary
replacements
(4) Negotiate separate interim agreements with the union.
e) (dissent) – A market wide agreement among employers setting wages at levels
that would not prevail in a free market may violate the Sherman Act.
i) The judicial exemption ensures unions which engage in collective bargaining
will enhance employees’ wages and enjoy the benefits of the agreements.
ii) The non-statutory exemption has its source in the strong labor policy favoring
the association of employees to eliminate competition over wages and
working conditions.
5) Collective Bargaining – each union established collective allegiances and engaged in
direct negotiations with the owners under the umbrella of the NLRA.
a) Baseball Clubs v. Players Assoc. – The law of K does not prevent parties from
agreeing to successive renewals of the terms of their bargain provided the K
expresses that intention with explicit clarity.
i) Free agency would encourage clubs with the largest monetary resources to
engage free agents thus unsettling the competitive balance between clubs.
b) Duty to bargain in good faith = meet at reasonable times and confer in good faith
(not engaging in surface bargaining) with respect to wages, hours, and other terms
and conditions of employment.
i) An obligation of the employer (and on occasion the union) to supply all
relevant information that is needed by the bargaining representative for the
proper performance of its duties.
ii) The obligation to refrain from unilateral changes in employment conditions
whether to the employees’ benefit or detriment, at least until impasse has been
reached in bargaining.
c) Silverman v. MLB Player relations (Part I) – An employer is required to disclose
its financial condition only when the employer claims an inability to pay, however
phrased, during the course of bargaining.
i) Individual expressions of opinion cannot serve to bind the entire bargaining
unit in the absence of authority to speak for the group.
d) Silverman v. MLB Player relations (Part II) – In the sports context the constituent
parts of reserve/free agency systems are mandatory subjects of bargaining.
i) Matters such as salary caps, minimum individual salaries, fringe benefits,
minimum aggregate team salaries, guaranteed revenue-sharing, and first
refusal provisions are all mandatory subjects of bargaining.
ii) There are two types or arbitration interest and rights
(1) Interest arbitration concerns disputes over terms of new or renewal K.
(2) Rights arbitration for disputes over the interpretation or application of a K.
(3) Interest arbitration not about existing terms and conditions of employment
and therefore is a non-mandatory topic of bargaining.
(4) Salary arbitration is a current term of employment and is the collectively
bargained wage in the party’s agreement. (mandatory)
iii) The protections of the NLRA extend to non-monetary bargaining topics that
are terms and conditions of employment.
iv) The NLRA is the only one that can declare an impasse.
e) NFL Management Council and NFLPA – If the impact on employee rights of the
discriminatory conduct is comparatively slight, an antiunion motivation must be
proved to sustain the charge if the employer has come forward with evidence of
legitimate and substantial business justifications for the conduct.
i) The right to strike includes the right to full and complete reinstatement upon
unconditional application to return.
f) Kansas City Royals v. MLB Players Ass’n – Review of the merits of an arbitration
panel’s award is limited. The award must be sustained so long as it draws its
essence from the collective bargaining agreement.
g) Union and the individual player – a player in a K dispute with his club must rely
on the private arbitration mechanism and on his player association’s
administration of the process.
i) A breach of the statutory duty of fair representation occurs only when a
union’s conduct toward a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith.
h) Peterson v. Kennedy & NFLPA – A union must serve the interests of all members
without hostility or discrimination toward any, to exercise its discretion with
complete good faith and honesty, and to avoid arbitrary conduct.
i) Courts should accord substantial deference to a union’s decision. Mere
negligent conduct does not constitute a breach of the union’s duty.
ii) A union acts arbitrarily when it simply ignores a meritorious grievance or
handles it in a perfunctory manner. Arbitrary = without rational basis or is
egregious unfair and unrelated to legitimate union interests.
iii) The union must fail to perform a procedural or ministerial act and that act
must not require an exercise of judgment.
(1) Unions are not liable for good faith, non-discriminatory errors of judgment
made in the processing of grievances.
(2) It is for the union to decide whether and in what manner a particular
grievance should be pursued.
6) Agent Representation – The collective agreement plays the ultimate governing role
a) The most prominent agents are lawyers who must know the collective agreement
for the sport. It exercises considerable influence on the player K.
b) Alvin Moore & Atlanta Braves – There are 3 reasons for the league president to
disapprove a special covenant (Baseball)
i) If the covenant does not actually or potentially provide additional benefits to
the Player
ii) If the covenant violates an applicable law or is prohibited by a League rule not
inconsistent with the collective agreement.
iii) If the covenant purports to bind some third party whom the Club and Player
have no authority to bind.
(1) Individual Player-Club negotiations are conducted within the framework
of the attendant rules, agreements, and regulations that govern the sport.
(2) Variations in any of the provisions might give a Player additional benefit
beyond the Club’s power to make.
c) Raymond Bourque & Boston Bruins – There are a series of considerations to be
reviewed for purposes of salary arbitration (Hockey)
i) The overall performance including official statistics prepared by the League
both offensive and defensive of the player in previous seasons.
ii) The number of games played by the player in the League and/or with the Club
iii) The length of service of the player in the League and/or with the Club
iv) The player’s overall contribution to the competitive success or failure of his
Club in previous seasons.
v) Any special qualities of leadership or public appeal not inconsistent with the
fulfillment of his responsibilities as a playing member of his team.
vi) The overall performance in the previous seasons of any players who is alleged
to be comparable to the player whose salary is in dispute
vii) The compensation of any player comparable to the player.
(1) Account for the disparate nature of respective agreements by adjusting to
the extent reasonable to attempt to compare fairly.
d) Zinn v. Parrish – Agents are obligated to act in there clients professional interest
by providing advice on tax and business matters, by seeking endorsement K’s,
and by making efforts to obtain gainful off-season employment.
i) Each obligation is subject to an implied promise to make good faith efforts to
obtain what was sought.
ii) Attorney agents are held to the higher standard of fiduciary duty to client.
e) Brown v. Woolf – The tort of constructive fraud is characterized as
i) Acts from which an unconscionable advantage may be derived
ii) A breach of confidence coupled with an unjust enrichment which shocks the
conscience
iii) A breach of duty, including mistake, duress or undue influence, which the law
declares fraudulent because of a tendency to deceive, injure the public interest
or violate the public or private confidence.
iv) The making of a false statement, by a dominant party in a confidential or
fiduciary relationship, or by one who holds himself out as an expert, upon
which plaintiff relies to his detriment.
f) Detroit Lions & Billy Sims v. Jerry Argovitz – The agent has a duty to call a
competing team and receive a final offer in order to present both offers to the
client so that he can make an intelligent and knowing decision.
i) Generally an agent is not liable for losses occurring as a result of following his
principal’s instructions however he is liable when the agent places himself in a
position adverse to that of his principal.
g) NCAA Rule 12.3 – Use of Agents
i) A collage player will lose his eligibility to play all collage sports if he agrees
orally or in writing to be represented by an agent.
ii) 12.3.1.2 – Benefits from Prospective Agents – If a player or his relatives or
friends accepts transportation or other benefits from an agent he will lose his
eligibility to play all collage sports
(1) The receipt of such expenses constitutes compensation based on athletics
skill and is an extra benefit not available to the student body in general.
iii) 12.3.2 – Legal Counsel – advice from a lawyer concerning a proposed pro K
is not contracting for an agent and is allowable.
(1) The lawyer may not have any direct contact with the team on behalf of the
student that is considered being represented by an agent.
h) Norby Walters & Lloyd Bloom v. Brent Fullwood – a court should not enforce
rights that arise under an illegal K.
i) An agreement may be unenforceable as contrary to public policy if it is
contrary to the social judgment on the subject implemented by statute.
ii) The legislature has spoken by expressing a concern for the integrity of
sporting events and particularly for the status of amateur athletics.
iii) Courts cannot enforce K’s the which would provoke conduct established as
wrongful by independent commitments undertaken by either party.
i) California athlete agents act – Requires agents to register before soliciting or
conducting business within the state.
i) Before making contact with any family member of the athlete the agent must
disclose in writing that they are registered with the state.
ii) Requires every agent contract to be in writing with a description of the types
of services to be performed and a schedule of fees charged.
iii) Prohibits an agent from owning or having any financial interest in any entity
that is involved in the same sport as the athlete
(1) If giving the athlete investment advice must provide full disclosure of all
investments or ownership interests in any business.
(2) No agent can pay a school to speak to its players
(a) If the agent and athlete enter into a pro K they must notify the school.
(b) The athlete has 15 days to rescind the K.
j) Collins v. NBPA & Grantham – A player agent must sign a “Standard Player
Agent Contract” which (Basketball)
i) Limits player agent fees by prohibiting any fee or commission on any K
which entitles the player to the minimum salary.
ii) Contain a “code of conduct” which prohibits an agent from offering money or
anything of value to a player, family member, or coach for the purpose of
inducing the player to use the agent’s services.
(1) The agent cannot engage in conduct that appears to be a conflict of interest
(2) Engage in any unlawful conduct or conduct that reflects adversely on his
fitness to serve in a fiduciary capacity as a player agent.
iii) Agents must be certified by the union and pay a fee.
(1) The union must unilaterally develop the regulatory system for the benefit
of its members.
(2) There can be no combination with a non-labor group or persons not a
party to a labor dispute.
iv) Any dispute between agents and the union regarding the representation of
union workers is a “labor dispute” outside the purview of the antitrust laws.
k) Barry Rona & MLB Players Assoc – Any institutional policy that penalizes a
lawyer for providing zealous representation within the limits of the code of
professional responsibility transgresses public policy.
i) Lawyers can only be judged in terms of the ethics of their behavior, by the
standards set forth in the Code.
ii) It is the Code’s position that lawyers do not act unethically merely because
they represent individuals or institutions that are found to have engaged in
wrongful activities.
(1) Players cannot be agents because it is a conflict of interest.
l) U.S. v. Norby Walters – The NCAA is a private body and its rules are not directly
enforceable in court.
i) Cheaters depress the price, causing the monopolist to lose money.
ii) The NCAA is a cartel, having power in the market for athletes and depressing
there income by restricting payments to the value of tuition, room, and board,
while receiving services of substantially greater worth.
(1) The NCAA uses it monopoly power to obtain athletes services for less
than the competitive market price.
7) NCAA & Eligibility – only an amateur student athlete is eligible for intercollegiate
participation in a particular sport.
a) Colorado Seminary v. NCAA – The NCAA’s eligibility regulations can only be
invalidated if they bear no rational relationship to the NCAA’s legit. objectives
i) Which are maintaining intercollegiate athletics as an integral part of the
educational program and
ii) The athlete as an integral part of the student body.
(1) The NCAA Const. requires that any aid received be administered by the
student-athlete’s educational institution.
(2) Play during the periods while not in school cannot be considered as
coincidental to or in conjunction with obtaining an education.
b) Wiley v. NCAA – The rule must bear a rational relation to the NCAA’s policy
objective of preserving collage amateurism.
i) (dissent) – The regulations seem to prevent one member institution from using
its access to economic resources to obtain an advantage over other member
institutions in the fielding of athletic teams.
c) Rule 12.5.2 – prohibits student-athletes from having their name or picture on any
product that is being sold, even if the student gets no money from it.
i) Member schools can use their student-athletes name, pictures, and images in
various ways that help support and finance the schools’ educational activities.
d) Shelton v. NCAA – A student who has signed a K, regardless of its enforceability,
is ineligible to participate in intercollegiate athletics in that sport.
i) The rule must rationally further some legitimate purpose.
ii) The application of the rule may produce unreasonable results in situations.
iii) The rules enforcement provisions might not be the best means for achieving
the desired goal but it is not judicial business to tell a voluntary athletic
association how best to formulate or enforce its rules.
(1) The courts function is only to determine whether the NCAA has selected a
method of protecting amateurism which is reasonably related to that goal.
8) NCAA & Antitrust – All collages with major athletic programs are members of the
NCAA and they have all agreed to abide by the NCAA’s rules and not to play against
any school the Association declares ineligible.
a) NCAA v. Univ. of Oklahoma & Georgia – An agreement among competitors on
the way they compete with another are ordinarily condemned as a matter of law
under an “illegal per se” approach.
i) Some activities can only be carried out jointly like league sports.
ii) Restrictions on price and output are examples of restraints of trade the anti-
trust act was intended to prohibit.
iii) Price and output must be responsive to consumer preference
(1) Under the rule of reason there is a heavy burden of establishing an
affirmative defense which competitively justifies the apparent deviation
from the operations of a free market.
b) Byron “Wizzer” White (dissent) (football player) – Other, non-commercial goals
play a central role in collage sports programs.
i) The fact that a restraint operates on nonprofit educational institutions as
distinguished from business entities is as relevant in determining whether it
violates anti-trust law as is the fact that a restraint affects a profession rather
than a business.
ii) Non-economic goals may require a particular practice, which could properly
be viewed as a violation of anti-trust, in another context be treated differently.
c) Rule 12.2.4.2 – Draft list – An athlete will lose amateur status when he asks to be
placed on the draft list in a pro sport regardless of whether he gets drafted or not.
i) Exception – An enrolled student-athlete in basketball may enter the draft once
during his collegiate career provided he is not drafted and declares his
intentions to resume intercollegiate participation within 30 days of the draft.
ii) An athlete may request information about professional market value without
affecting his amateur status. The player, his family, or school may enter into
negotiations with a pro team without loss of amateur status.
d) Banks v. NCAA – An NCAA member institution may not waive or change the
rules at its discretion. Only the NCAA can waive or change one of its rules.
i) Any school that sought to waive or change the rules would forfeit its ability to
participate in NCAA sanctioned events.
ii) The NCAA’s regulatory controls are a justifiable means of fostering
competition among the amateur athletic teams and are pro-competitive
because they enhance public interest in intercollegiate athletics.
(1) In order to preserve collage football as a product athletes must not be paid,
must be required to attend class, and the like.
(2) In order for the NCAA Rules to be considered a restraint of trade in
violation of anti-trust laws the no-draft and no-agent rules must be terms
of employment that diminish competition in the college football market.
iii) The operation of the NCAA eligibility and recruiting requirements prohibits
member colleges from engaging in price competition for players.
(1) All NCAA member colleges require student-athletes to carry a minimum
number of semester credits and maintain a minimum GPA equivalent to
the academic program the non-athletic students follow.
e) (dissent) – If the no-draft rule were scuttled, colleges that promised their athletes
the opportunity to test the waters in the NFL draft before their eligibility expired,
and return if it did not work out, would be more attractive to athletes.
i) The no-draft rule operates to the players detriment and the colleges benefit
ii) In the college football labor market players exchange their labor for in-kind
benefits, not cash and all of these things are “terms of employment.”
iii) The purposes of the antitrust laws are served when employers are prevented
from tampering with the employment market because antitrust law seeks to
preserve the free market opportunities for buyers and sellers of employment.
iv) A plaintiff must demonstrate the challenged practice causing him harm also
harms consumers by reducing output or raising prices.
(1) Concerted action among consumers that lowers prices harms competition
as much as concerted action among producers that raises prices.
(2) College football is a vast commercial venture that yields substantial profits
for colleges and an athlete’s participation is labor.
9) Title IX – a general statutory prohibition of sex-based exclusion from participation,
denial of benefits, or discrimination under educational programs.
a) The test for compliance is a comparison of the availability, quality and kinds of
benefits, opportunities and treatment afforded members of both sexes.
i) The compared program components must be equivalent or equal in effect and
identical benefits, opportunities or treatment is not required, provided the
overall effect of any differences is negligible.
b) Unequal allocation of resources and its three prong test – A school is in
compliance with the law if any of the following is met.
i) The intercollegiate levels of participation opportunities for male and female
students are substantially proportionate to their enrollments.
ii) The institution must show a continuing practice of program expansion that is
responsive to the developing interest and abilities of the underrepresented sex.
iii) The institution must demonstrate the interests and abilities of members of the
underrepresented sex have been fully and effectively accommodated by the
present program.
c) Cohen v. Brown University – the third prong demands full and effective
accommodation of the underrepresented sex.
i) The institution must ensure participatory opportunities to the extent there is
sufficient interest and ability among members of the excluded sex to sustain a
viable team.
ii) The fact that the overrepresented gender is less than fully accommodated will
not excuse a shortfall in the provision of opportunities for the girls.
iii) The third benchmark’s purpose determine if a student has been excluded from
participation in or denied the benefits of an athletic program based on sex.
(1) It requires an assessment of whether there is unmet need in the
underrepresented gender that rises to a level sufficient to warrant a new
team or the upgrading of an existing team.
d) Kelley v. Uni of Illinois – If the percentage of student-athletes of a sex is
proportional to the percentage of students of that sex in the general student
population the athletic interests of that sex are presumed accommodated.
i) Schools must have some means of establishing that despite offering single-sex
teams, they have provided equal athletic opportunities for both sexes.
ii) Title IX’s stated objective is to prohibit educational institutions from
discriminating on the basis of sex.
e) Cohen v. Brown (Part II) – Title IX is an anti-discrimination statute and permits
affirmative action and an inference that a significant gender-based statistical
disparity may indicate the existence of discrimination.
i) Race and gender conscious remedies are both appropriate and constitutionally
permissible under a federal anti-discrimination regime.
ii) Title IX operates to ensure that the gender-segregated allocation of athletics
opportunities does not disadvantage either gender.
iii) Prong three requires evidence of interest in athletics and permits the use of
statistical evidence in assessing the level of interest in sports.
(1) Institutions determine interest and abilities by nondiscriminatory methods
of their choosing provided
(a) The process take into account the nationally increasing levels of
women’s interests and abilities
(b) The methods are responsive to the expressed interests of students
capable of intercollegiate competition (girls).
(i) Club and intramural sports, sports at feeder schools, community
and regional sports programs, and phys ed classes.
iv) A gender-conscious remedial scheme is constitutionally permissible if it
directly protects the interests of the disproportionately burdened gender.
(1) Prong three is implicated where a gender based disparity with respect to
athletic opportunities has been shown to exist.
v) An academic institution may operate separate teams for members of each sex
where selection of such teams is based upon competitive skill or the activity is
a contact sport.
(1) The regulation is not meant to promote athletics on college campuses and
a school is not required to sponsor an athletic program of any size.
(2) To fully accommodate the interests and abilities of the underrepresented
sex is an extraordinarily high requirement.
(3) The mere fact that there are some female students interested in a sport
does not ipso facto require the school to provide a varsity team.
vi) Unmet interest of the underrepresented sex must be completely
accommodated before any of the interest of the overrepresented gender can be
accommodated.
(1) The test requires proportionate participation opportunities for both sexes
(prong 1) unless one sex is simply not interested in participating (prong 3)
f) Neal v. Cal State – Schools should take into account the nationally increasing
levels of women’s interests and abilities and avoid disadvantaging members of an
underrepresented sex.
i) It’s central aspect is to encourage women to participate in sports.
ii) Title IX envisions continuing progress toward the goal of equal opportunity
for all athletes and recognizes that, where society has conditioned women to
expect less than their fair share of the athletic opportunities women’s interest
in participating in sports will not rise to a par with men overnight.
