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Why the NCAA's Title IX excuse no longer works

Non-revenue sports don't have to be casualties of the new NCAA. But if it's actually all about the money, they will be.

NCAA president Mark Emmert
NCAA president Mark Emmert
Jamie Squire

Up to this point, the NCAA's biggest defense against increased compensation for players is that it will cause the downfall of non-revenue sports.

This argument hinges on the federal government's Title IX law, which essentially requires players on a school's revenue-generating teams (usually football and men's basketball) to receive treatment similar to all other teams. In an NCAA talking points memo published by's Jon Solomon, the point is clear: "Athletic scholarships would be cut or eliminated... Smaller sports would lose funding."

Trouble in Indianapolis

While citing Title IX is a weak defense, the criticism that paying players for their likenesses would inevitably lead to the elimination of non-revenue sports has gained considerable traction. It wouldn't violate Title IX, but it would seem to undermine the traditional purpose of college athletics. Schools would have smaller budgets than they otherwise would, so in order to keep up with their rivals, they would have to make cuts to smaller sports.

But now the NCAA has a big problem: A judge ruled that it can't use that argument when the Ed O'Bannon player-rights lawsuit goes to trial in June. From

Wilken wrote that the NCAA "could mandate that Division I schools and conferences redirect a greater portion of the licensing revenue generated by football and basketball to these other sports. ... The NCAA has not explained why it could not adopt more stringent revenue-sharing rules."

Judge Wilken decided that claiming to be unable to govern revenues is not an acceptable defense for an organization that claims to have oversight over its members.

Locker rooms might no longer have waterfalls, but college sports would otherwise stay similar.

The NCAA's membership can, in fact, enact rules that would save non-revenue sports. It's really quite simple: Mandate that a certain percentage of football money go to fund non-revenue sports if they cannot be funded elsewhere. This means coaches' salaries might decrease and locker rooms might not have waterfalls, but the playing field would be relatively similar to what it is now.

That might sound anti-free market, but the NCAA's purpose is to control the collegiate sports market, for which it's currently being sued.

Judge Wilken's opinion perfectly illustrates the NCAA's hypocrisy: If the primary goal of the NCAA and its membership was really to protect student-athletes in all sports, then they could very easily do so, even in the shadow of the O'Bannon lawsuit. This is especially true at the bigger schools, which could be doubling their TV revenue within the decade. Surely, some of that money could go back into non-revenue sports.

There's a reason the NCAA has, in the words of Wilken, "not explained why it could not adopt more stringent revenue-sharing rules." It's because that would force the NCAA to acknowledge that it's driven more by money than it is by helping non-revenue sports. It's easier to just avoid that suggestion altogether.

The NCAA has conveniently created a future with two possible scenarios: One in which athletes are paid and non-revenue sports are eliminated, and one with the current model. In reality, a mandate forcing football spending to decrease is also very feasible. But the NCAA and the universities won't do it, because that would mean they couldn't continue to build up their football cash cows.

If the NCAA were to mandate increased revenue-sharing between sports, there's a chance the larger schools would leave, demoting their smaller sports to the club level and reaping the rewards of their football dynasties. That would be the result of a completely free-market system, and without a mandate like the one Judge Wilken described, that model is coming, with or without the NCAA on board.

But if it's really about the "student-athletes," and if it's really about the non-revenue sports, then that's a chance the NCAA should take.

The current model is the only one that allows the NCAA and its member schools to make billions of dollars and still pretend it's about the non-revenue sports. Now, because of Judge Wilken's decision, the NCAA has been forced to acknowledge an inconvenient truth: There is a clear route to paying players and a clear route to saving non-revenue sports.

Is it really about the kids?

Is it really about the field hockey team?

Or is it about the money?

We might be about to get a clear answer.