NCAA’s $2.8 Billion Deal Isn’t Fair to Women, Opponents Say

A Division I women’s soccer player heading into law school saw a potential Title IX problem in the NCAA’s $2.8 billion antitrust deal, so she gathered other female athletes and went to court to oppose it.

“It’s almost like Title IX is a suggestion, not a requirement,” Lexi Drumm, who graduated from College of Charleston this year, said in an interview. “You can clearly see Title IX violations in this settlement.”

The settlement, which would provide back pay to student-athletes and allow colleges to pay athletes directly, was approved by a federal judge June 6. Drumm, who became interested in women’s equity in sports after researching Title IX compliance for an internship, had objected to the deal along with other athletes before approval, and they are now appealing.

John Clune, an attorney with Hutchinson Black & Cook LLC representing objectors whom Drumm helped assemble, said the settlement should fail because only about 10% of back pay is distributed among women, even though nearly half of D-I student-athletes are women.

Drumm’s group, which includes athletes from Charleston and her high school team, isn’t the only one appealing the settlement on Title IX grounds: Three of the seven appeals allege a miscalculation of the money going to female athletes.

Those appeals have halted payments to ex-athletes that were supposed to begin July 1, but current student-athletes can still get paid directly from their schools.

Jeffrey Kessler from Winston & Strawn LLP, who represents the settling plaintiffs, told Bloomberg Law that Title IX doesn’t apply to the damages in this antitrust case.

“They are well-meaning but deeply misguided appeals that border on the frivolous and have no chance of success,” Kessler said. “They shouldn’t self-centeredly block the distribution of money to all the athletes who badly need it, including many female athletes.”

Objections

Leigh Ernst Friestedt, founder of boutique law firm Equity IX LLC and former lacrosse player at Brown University, is representing four female athletes in a separate appeal, including now-professional lacrosse player Charlotte North. Steven Molo of MoloLamken LLP is also representing objectors to female undercompensation and discrimination as part of a larger appeal that also involves roster caps.

Clune and Friestedt’s appeals allege misdistribution of past damages, including broadcast name, image, and likeness, and athletic services compensation, which Clune said has to be paid proportionally by sex because athletes are receiving funds directly from universities.

Friestedt is additionally seeking future injunctive relief because the settlement’s economic formula will be used for the future damages, further marginalizing women, she said.

Judge Claudia Wilken’s approval overruled those Title IX objections, reasoning that back damages pertain only to past antitrust violations.

“To the extent that schools violate Title IX when providing benefits and compensation to student-athletes pursuant to the Injunctive Settlement Agreement, class members will have the right to file lawsuits arising out of those violations,” she wrote for the court.

Kessler also said there may be valid Title IX issues in the future, and if so, the objectors should sue separately.

The seven appeals were consolidated by the Ninth Circuit in a Wednesday order. The first round of briefs is due Sept. 29.

Title IX Argument

Friestedt said she calculated that 94% of the deal’s back pay is for men, which is “essentially sex-based discrimination.”

“Even a five-year-old could tell you that there’s a Title IX problem here,” Friestedt said.

Clune argued schools can’t pay athletes based on market value—the payments have to be based on equity. If nearly half of a university’s student body is women, then the athletic benefits need to be distributed accordingly, he said.

“That’s the exchange when schools agree to take federal financial assistance,” he said.

Clune got connected to Drumm through Olympic gold-medal swimmer Nancy Hogshead, now the CEO of Champion Women, the advocacy group where Drumm interned.

Title IX of the Education Amendments of 1972 was enacted to prohibit sex-based discrimination in education programs and activities receiving federal assistance.

Title IX requires that financial assistance be proportional and benefits be equivalent, Friestedt said, but the economic formula used by the class counsel is flawed because their economists didn’t account for Title IX.

Outlook

Nellie Drew, a sports law professor at the University of Buffalo School of Law, told Bloomberg Law she thinks the objectors have a strong argument because “Title IX can’t be ignored.”

But Drew’s Buffalo law professor colleague, Christine Bartholomew, said she has doubts about whether these appeals will succeed.

Similarly, Michael Lowe from Troutman Pepper Locke LLP said there is “certainly a valid argument to be made that Title IX should apply to this,” but the objectors still have the “weaker of the arguments.”

There is a plausible argument that student-athletes who are in money-generating sports with TV and stadium deals should have more valuable NIL than ones who aren’t, he said.

“The whole point of this was to compensate athletes for their name, image, and likeness, which is their intellectual property,” Lowe said. “The appellants are going to have a hard time.”

Why Are We Here?

Regardless of the outcome, the objectors said they just want to stand for female athletes’ rights.

Mai Nirundorn, a former tennis player at University of Georgia who was nationally ranked and is appealing with Friestedt, said her university never made her team aware of the settlement.

Drumm, who will attend Northwestern Law School, said she surveyed more than 100 female D-I athletes in South Carolina on their Title IX knowledge for her senior thesis.

She said she was shocked by the lack of awareness regarding Title IX rights for anything other than sexual assault and harassment, for which the NCAA requires training.

“The best thing about this is honestly creating conversation,” Drumm said. “We were never even supposed to get to this point because Title IX was put in place to avoid this from happening.”