A few days ago, the National Labor Relations Board ruled that football players at Northwestern University are “employees” of the school and have the right to form unions and to partake in collective bargaining. This case is part of a bigger push around workers' rights for college athletes. Right now, the group bringing the case to court doesn’t actually want to be paid for their performances in games—a setup that is often called “pay to play." (They're asking for medical benefits and other perks.) But this ruling could mean that, one day, college players will ask for salaries.
Football has been at the center of this fight. But the ruling from the NLRB would impact women’s sports, too. If men get paid to play, then Title IX says women do too.
Erin Buzuvis, a law professor at Western New England University, explained on her Title IX Blog:
Imagine that, for example, a football players' union succeeds in bargaining for extended health insurance -- the Northwestern football players' stated objective. It would clearly violate Title IX if that benefit only applied to male athletes and not female athletes -- even though the male athletes bargained for it and the female athletes did not. Title IX regulations require schools to provide equal treatment in the aggregate to its men's and women's programs, as measured by a "laundry list" of factors that expressly includes access to medical services, which has been interpreted to include "the equivalence for men and women of...health, accident and injury insurance coverage."
Essentially, Buzuvis is arguing, it doesn’t matter at all if it's male football players who won the case: the result would have to be applied equally to men's and women's sports. But not everybody agrees with her. Marc Edelman at Forbes argues that Title IX doesn’t really apply to payment. Previous court cases have ruled that it’s okay for male coaches to be paid more than female coaches, because men’s sports bring in more money than women’s sports do. Others have argued that pay would have to be based on the revenue that a sport generates for the school.
But Buzuvis thinks that’s the wrong way to look at things. She writes:
Because when it comes to the treatment of student-athletes, the revenue-producing nature of the sport has already been rejected as the basis for unequal treatment among male and female athletes. A school could not decide to provide better locker rooms, or more quality coaching staff, or disproportionately high scholarship dollars, or any other benefit to football players on the grounds that football derives revenue and other sports don't. That is well-settled, "black letter" Title IX law. So the revenue argument would not justify providing extended health insurance to players of one sex. Nor should it justify providing salaried compensation to players of one sex.
And, in regards to men’s coaches being payed more than women’s, Buzuvis points out that “Title IX, through its implementing regulations, contains a clear equal treatment mandate that applies to students, and not to coaches.”
This is a live issue, and it's not clear yet whether any student athletes will ever actually get paid. But as Northwestern appeals the NLRB decision, it's a good bet that universities are starting to worry about their wallets.