Biden Title IX Regulations Will Intersect with NIL & Employment Rights

https://www.sportico.com/law/analysis/2024/biden-title-ix-regulations-nil-employee-1234776305/

Biden's Title IX Rule Lands as NCAA Athletes Gain NIL, Employee Rights

Michael McCann

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Major changes are coming to Title IX as the Biden administration last Friday released a new rule and accompanying regulations that will impact college athletes, including as some see schools make direct NIL payments and others become unionized employees.

A 1,577-page document issued by the U.S. Department of Education details numerous changes and explanations. The rule will go into effect on Aug. 1 and will apply to alleged conduct that occurs on or after that date. 

Title IX prohibits sex discrimination at educational institutions that receive federal money. It plays an instrumental role in college sports. Among other effects, Title IX requires that athletic departments provide equitable treatment to men and women athletes. It also mandates procedures to resolve accusations of sexual assault and harassment, domestic violence, dating violence and stalking. 

The new rule could make it harder for students accused of misconduct to rebut allegations. Colleges will no longer be required to hold live hearings that include opportunities for cross-examination. Schools can instead hold separate meetings with the accuser and the accused, with a school-appointed official asking questions. The school must then provide the parties with recordings or transcripts. Even when live hearings are held, a student must be able to participate remotely instead of in-person. 

One argument in favor of holding separate hearings is survivors may be more likely to report incidents if they don't have to face their attacker again. When Title IX live hearings were mandated by the Trump administration, survivors' rights advocates criticized the move as undermining Title IX's goals.

On the other hand, the ability to confront one's accuser is a hallmark of the American legal system. The Sixth Amendment contains the Confrontation Clause, which guarantees the right to confront witnesses in criminal trials. The underlying logic is that before someone is found guilty, they should be able to test the credibility and reliability of witnesses and evidence. In a similar vein, the U.S. Supreme Court has held that "due process requires an opportunity to confront and cross-examine adverse witnesses" in a setting where "important decisions turn on questions of fact."

Title IX is not a criminal law, but its impact on students' lives can prove profound. A college student accused of misconduct can be suspended, including from a sports team, or expelled. Although there is no "right" to play a college sport or even to attend college, the loss of continued eligibility can be challenged in court as a denial of a protected property interest. 

Some data indicates college athletes have, on average, experienced more problems than others with Title IX. In 2018, an ESPN study found that college athletes at Power Five schools are three times more likely than ordinary students to be accused of sexual misconduct. 

A college's ability and, arguably, duty to remove an athlete from a team surfaced earlier this year with a high-profile player. The University of Illinois suspended guard Terrence Shannon Jr., a projected first round pick in the 2024 NBA draft, after he was charged with felony rape and misdemeanor sexual battery in Kansas following an alleged incident at a bar. According to court documents, Shannon allegedly "grabbed a woman's buttocks and digitally penetrated her vagina without her consent." 

Shannon sued the school, which as a public university must meet Constitutional safeguards, arguing it misapplied Title IX and other procedures. He also insisted Illinois failed to provide him with due process, including his presumption of innocence. Agreeing with some of Shannon's arguments, a federal judge issued an injunction against the college, which closed its investigation earlier this month. Shannon was reinstated. 

The new Title IX rule also expands the scope of actionable claims of sexual harassment. Currently, harassment must be "severe, pervasive and objectively offensive." But the new rule drops "objectively offensive," which means the harassment no longer must be offensive from an objective viewpoint (typically called the "reasonable person" perspective in law), and adopts "severe or pervasive." 

The standard of proof necessary to establish sexual harassment is also decreasing in certain situations. Currently, universities can opt for the "clear and convincing evidence" standard, which though lower than the "beyond a reasonable doubt" standard used in criminal trials, is higher than the "preponderance of evidence" (more likely than not) standard used in civil trials. The new rules say that schools must use preponderance of the evidence unless clear and convincing is used "in all other comparable proceedings," in which case the school can elect to use it.

Although the new rule explicitly states that sex-based harassment includes harassment over gender identity, it eschews the politically controversial topic of trans athletes' eligibility to play sports. That topic is at issue in federal litigation as well at the state government level, with 24 states banning transgender students from participating in sports consistent with their gender identity. Earlier this month, the National Association of Intercollegiate Athletics effectively banned transgender athletes for all women's sports other than for two co-ed sports, competitive cheer and competitive dance.

The new Title IX rule arrives at a tumultuous time for colleges as their legal relationship with athletes hastily evolves.

So far this year, an NLRB regional director has recognized Dartmouth College's men's basketball players as employees and those players unionized. An administrative law judge is weighing whether USC football and men's and women's basketball players are employees of their school, conference and the NCAA. Last week, an advocacy group charged Notre Dame with an unfair labor practice for unlawfully using the "student-athlete" label. The U.S. Court of Appeals for the Third Circuit is evaluating Johnson v. NCAA, a case where athletes argue they are employees. Meanwhile, NCAA president Charlie Baker has called for colleges to be able to directly pay athletes for their NIL and that approach will be the law of Virginia as of July 1.

Colleges that pay athletes, whether at those colleges' choosing or as compelled by law and whether in an employer-employee relationship or via some other workplace vehicle, will need to comply with Title IX since those athletes are students. Colleges that pay football and/or men's basketball players but not pay other athletes would undoubtedly face Title IX litigation. They might also face claims under the Equal Pay Act and Title IX of the Civil Rights Act, laws that prohibit sex discrimination in compensation and employment. There has been talk of several dozen college football programs spinning off into a "super league," where the employer might be a conference or professional league (neither of which is governed by Title IX) rather than a college (which is governed by Title IX), though the mechanics of that happening remain cloudy and speculative.

The new rule does not address college athlete employment, NIL or pay-for-play compensation as standalone topics, but it does contain relevant language. It mentions that "nothing in these regulations interferes" with an employee's right to use a grievance process contained in a collective bargaining agreement to protect and advance their rights. The rule also refers to rights contained in an employment contract, handbook, or institution-specific set of policies as potentially supplying additional legal rights that might complement those accorded to students. In other words, a collegiate employee-athlete could initiate a grievance related to harassment or defend themself from an allegation through procedures related to their employment relationship with a school. The rule cautions, however, that use of such rights must not "prevent" a school from fulfilling its Title IX obligations. 

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