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97 Mention the prospect of acknowledging “big-time” college football players as employees who have a right to collectively bargain for purposes of shaping the rules that govern their lives or basketball players as deserving of having their value recognized for the contributions they make to the multi-billion-dollar industry of college sport and somewhere in the conversation Title IX1 comes up. In an interview with espnW in April of 2016, consultant and lobbyist Donna Lopiano commented that litigation filed by college athletes seeking fair recognition of their market value and employment rights—most particularly Northwestern University and College Athletes Players Association (Petitioner) (Pearce, Miscimarra, Hirozawa, Johnson, & McFerran, 2015); In re: NCAA Athletic Grantin -Aid Cap Anti-Trust Litigation (2015); Jenkins et al. v. National Collegiate Athletic Association et al. (2014); and O’Bannon v. NCAA (2015)—“is the biggest potential game-changer” the college sport industry confronts (McManus, 2016, ¶15). Depicting those lawsuits as simple attempts on the part of players to “get paid” rather than efforts to gain control and influence over an exploitative system, Lopiano presented a foreboding consequence (McManus, 2016). She claimed that the revenue needed to respond to athletes challenging the NCAA structure that unilaterally imposes rules that limit player value in the most lucrative sports and serve as mechanisms to redirect revenue to other areas of the enterprise could “hurt men’s and women’s sports,” with that effect being more pronounced because Title IX compliance would require that female athletes receive compensation as well (McManus, 2016). Other college sport officials have offered similar warnings. As a case in point, former Baylor University President Kenneth Starr testified in May 2014 before the U.S. House Education and Workforce Committee discussing the potential consequences of college athletes unionizing that, “it really is raising a host of serious questions. I think it could, in fact, at a minimum cause programmatic 5 College Athletes as Employees and the Politics of Title IX ELLEN J. STAUROWSKY 98 ELLEN J. STAUROWSKY curtailments” and disrupt an important “gender balance in athletic programs that threatened public policy and perhaps violated the law” (Kline, 2014). Law professor Ron Katz (2016) reached the same conclusion, arguing that it would be impossible to reconcile compensating college football and men’s basketball players beyond the limits imposed by the NCAA with the mandate of Title IX barring sex discrimination. He went further in writing, “Title IX will prevent such salaries from being paid to football and men’s basketball players” (Katz, 2016) because women’s college sports do not have the capacity to generate as much revenue. Confronted with football players signing union cards at Northwestern and seeking the right to organize and collectively bargain in January 2014 (Staurowsky , 2014a), the NCAA developed a media campaign characterizing college football player unionization efforts as a money grab that had the potential to undermine other college sports (NCAA, 2014). Issuing a set of talking points to athletics administrators around the United States under the headline “Pay for Play/Unionization” (NCAA Staff, 2014), the NCAA urged them to write op-eds and to convey the message to media outlets that athletic scholarships would be reduced, championship opportunities would be cut back, “smaller sports” would lose funding, and athletic support services (academic support, counseling , tutoring) would be eliminated or severely cut. By way of countering the threat of college football players attempting to affect the balance of power in the decision-making structure of the industry, the NCAA and its thousands of spokespeople were urged to send a message that college football player empowerment would “signal to society and high school students that making money is the reason to come play a sport in college, as opposed to getting an education . . .” (NCAA Staff, 2014, ¶4). But are the interests of college athletes in the sports of football and men’s basketball really on a collision course with female college athletes and sports that have come to be referred to as the “smaller sports” by the NCAA? Is advocacy for the employment rights of a labor force in the sports that have been selected by NCAA member institutions to generate revenue that forms the basis for the business model of college sport a zero-sum game? Is it really the case that employment status represents an automatic forfeiture of educational opportunities for college football and basketball players in the sports that serve as the financial anchors for the college sport industry? On what basis did college...


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