The Fair Play for Women Act: A Legislative Solution That Can Close Title IX Loopholes
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In the fifty years since its enactment, Title IX has helped level the playing field for women athletes across the nation by prohibiting discrimination on the basis of sex by institutions that receive federal funding. As a result, millions more women participate in sport today than in 1972. But while the progress resulting from this landmark legislation is undeniable, it still contains some gaping loopholes that have allowed universities and intercollegiate athletic associations to engage in discriminatory practices without consequence.
In an effort to tighten up Title IX and address persistent gender disparities in sport, Senator Chris Murphy (D-Conn.) and House Representative Alma Adams (D-N.C.-12) introduced a bill called the Fair Play for Women Act in December of 2022. The intended effects of this proposed legislation are threefold: (1) to “expand reporting requirements of college and K-12 athletics data,” (2) to “hold athletic programs and athletic associations like the NCAA more accountable for Title IX violations,” and (3) to “improve education and awareness of Title IX rights among athletes, staff, and stakeholders.”
1. Expand Reporting Requirements
The first objective of the Fair Play for Women Act is to increase data transparency and impose more stringent reporting requirements on universities, secondary schools, and primary schools. If this law is passed, institutions would be required to report a list of metrics to the Secretary of Education every year concerning expenditures spent on men’s and women’s sports teams, the distribution of athletic scholarships, and the number of female and male athletes in participation. This information would also be made available to the public on the Department of Education’s website.
Furthermore, schools would no longer be permitted to double and triple-count women athletes that compete in multiple sports, nor will they be allowed to factor in male practice players that participate on women’s teams in their reports. An investigation by USA Today released last May revealed that deceptive techniques such as these have been employed by a majority of NCAA member institutions to misconstrue the number of women competing in athletic programs. By doing so, schools created the illusion that there were 3,600 more opportunities for women to participate in sport than there actually were, without having to add any new teams.
By increasing transparency and precluding schools from manipulating roster data, this bill would allow athletes and stakeholders to better identify inequities and assess whether their university is in compliance.
2. Increase Accountability of Athletics Programs and Associations
The second objective of the bill is to hold athletic programs and associations such as the NCAA to a higher standard of accountability when it comes to Title IX compliance. Because the NCAA is a private entity and does not receive funding from the federal government, it does not currently have any legal obligation to abide by Title IX. The Fair Play for Women Act seeks to change this.
The NCAA has a well-known history of undervaluing women’s sports. In 2020, the organization faced backlash after Sedona Prince, a former University of Oregon women’s basketball player, posted a video on social media revealing the disparate treatment received by athletes competing at the women’s March Madness tournament. Following this incident, the NCAA enlisted the services of Kaplan Hecker & Fink LLP to perform an investigation. The findings revealed “significant disparities” between the men’s and women’s tournaments including differences in funding, food quality, weight room equipment, and COVID-19 testing.
If the Fair Play for Women Act is passed, athletes will no longer have to rely on social media as a means of exposing and addressing Title IX violations. Instead, they will have a private right of action against the NCAA and any other intercollegiate athletic association that engages in discriminatory practices.
3. Improve Awareness of Title IX Rights
Lastly, the bill seeks to improve education and awareness of Title IX rights by requiring all covered school systems, intercollegiate athletic associations, and institutions of higher education to provide annual trainings on the subject of player rights and violation reporting procedures. Trainings would be administered to athletes competing from the elementary level all the way up to the collegiate level so that all age groups have a clear understanding of their protections under the law. Title IX coordinators and other athletics employees would also be required to receive annual training on compliance matters and how to protect players from unequal treatment.
Despite all of Title IX’s success, women in sport are still being discriminated against by schools and intercollegiate athletic associations. The Fair Play for Women Act presents a long overdue legislative solution that can close existing loopholes and hold these institutions to a higher standard of accountability. The passing of this bill into law would be a groundbreaking win for women and girls participating in sport and would ensure greater protection for future generations of athletes.
 Amanda Christovich. Federal Lawmakers Introduce Bill To Strengthen Title IX, FRONT OFFICE SPORTS (20 Dec. 2022) https://frontofficesports.com/bill-strengthen-title-ix/  Lindsay Crouse. We Can Do Better Than Title IX, NEW YORK TIMES (22 Jun. 2022) https://www.nytimes.com/2022/06/22/opinion/title-ix.html  Fair Play for Women Act, S. 5307, 117 Cong. § 2 (2022).  Kenny Jacoby et al. Title IX was intended to close the gender gap in college athletics. But schools are rigging the numbers., USA TODAY (26 May 2022) https://www.usatoday.com/in-depth/news/investigations/ 2022/05/26/college-sports-title-ix-and-dark-illusion-gender-equity/7438716001/  Daniel Libit. New Title IX Bill Seeks Fines for Sports Gender-Equity Violations, SPORTICO (20 Dec. 2022) https://www.sportico.com/leagues/college-sports/2022/title-ix-new-bill-1234699019/  Chris Murphy. Murphy, Adams Introduce Legislation to Promote Gender Equity in Sports. (20 Dec. 2022) https://www.murphy.senate.gov/newsroom/press-releases/murphy-adams-introduce-legislation-to- promote-gender-equity-in-sports#:~:text=The%20Fair%20Play%20for%20Women,athletic%20 associations%20more%20accountable%20for  Id.  Fair Play for Women Act, S. 5307, 117 Cong. § 5 (2022).  Id.  Lindsay Schnell. As US celebrates 50 years of Title IX, a new bill aims to improve gender equity in sports, USA TODAY (23 Jun. 2022) https://www.usatoday.com/story/sports/2022/06/23/new-bill-gender- equity-sports-title-ix-50/7703186001/  Jacoby et al., supra.  Schnell, supra.  Murphy, supra.  Id.  Christovich, supra.  Schnell, supra.  Jacoby et al., supra.  Amelia Nierenberg. The Video That Changed the N.C.A.A., NEW YORK TIMES (16 Mar. 2022) https://www.nytimes.com/2022/03/16/us/the-video-that-changed-the-ncaa.html  Paul Myerberg. Investigation into gender disparities finds NCAA 'significantly' undervalues women's basketball, USA TODAY (3 Aug. 2021) https://www.usatoday.com/story/sports/ncaaw/2021/08/03/ ncaa-significantly-undervalues-womens-basketball-investigation-gender-disparity/5469623001/  Josie Fischels. A Report Found The NCAA Undervalues Women's Basketball, Prioritizes Men's Teams, NPR (3 Aug. 2021) https://www.npr.org/2021/08/03/1024481199/report-ncaa-undervalues-womens-basketball-prioritizes-mens-teams#:~:text=The%20report%20found%20numerous%20instances,to%20feed%20men's%20tournament%20players.  Murphy, supra.  Id.  Id.  Id.  Jacoby et al., supra.