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With Payments to College Athletes, Another Fight Looms for Women

After decades of striving, the growing popularity of women’s basketball — including a lucrative new television deal — and recent gains in other sports have put women on closer to equal footing with men in college athletics.

Yet that progress could be stymied by a proposed $2.8 billion settlement announced last week that would allow the first revenue-sharing plan for college athletes. The deal would resolve a class-action antitrust lawsuit between athletes and the N.C.A.A., along with its major conferences.

Perhaps the biggest question about this landmark moment is a familiar one: Will the agreement be fair for women?

The settlement in House v. N.C.A.A., which must be approved by a federal judge, has two main components whose full details are not yet public. Both components could invite scrutiny under Title IX, the federal law that prohibits sex-based discrimination in any school that accepts federal funding, according to lawyers and legal scholars who have followed the case.

One of those components looks forward: Schools would be allowed to set aside around $20 million per year, beginning in the fall of 2025, to pay both male and female athletes. The other looks back: It would essentially allow for back pay of name, image and likeness rights dating to 2016 — largely a share of television revenue from football and men’s basketball.

One familiar barrier for complying with Title IX is the pervasive influence of college football, by far the major cost and revenue driver in athletic department decision-making.

Administrators at two universities in major conferences said they wondered if Judge Claudia A. Wilken, the federal court judge overseeing the class-action lawsuit, might scuttle the settlement over concerns that it violated Title IX. The 1972 law, and lawsuits brought by athletes to ensure its enforcement, have played a role in many of the advances in women’s college sports, which have accelerated lately at a breakneck pace.

The N.C.A.A. recently signed a lucrative television rights agreement worth nearly $1 billion that is anchored by the women’s basketball tournament, a deal that quickly looked undervalued after the women’s championship game in April drew a bigger audience than the men’s title game.

Athletes like the University of Iowa basketball star Caitlin Clark, who played in that title game, and the Louisiana State University gymnast Olivia Dunne became millionaires through endorsement deals. More than 92,000 fans packed the University of Nebraska’s football stadium for a women’s volleyball match last August, and the softball College World Series has drawn more viewers than the baseball College World Series.

The settlement in the class-action case, however, could slow some of the progress toward equality.

Under the proposed deal, the back pay would largely go to football and men’s basketball players because their games have generated most of the college sports revenue since 2016, according to people familiar with the agreement. The future payments would be determined by individual schools, according to an N.C.A.A. official speaking on background because he was not authorized to discuss the details publicly.

“What the N.C.A.A. and the conferences and everybody involved in the settlement need to know is that if the money from these schools is not distributed proportionally to male and females, they’re just asking to be sued,” said Arthur Bryant, a lawyer who has long record of filing Title IX cases against universities.

Kelleigh Irwin Fagan, a lawyer who advises colleges on Title IX compliance, said that without guidance from regulatory agencies or the courts, schools would have to determine how much risk they were willing to accept if they strayed from Title IX guidelines.

The commissioner of the Southeastern Conference, Greg Sankey, acknowledged the difficulties on Monday night in his address to open the conference’s meetings in Destin, Fla., saying that the league had to “wrestle with this new piece.”

College athletic departments do not have a stellar record of complying with Title IX, which requires universities to provide equal opportunity, financial aid and treatment for women and men. For example, if a school’s enrollment is 55 percent women, then 54 to 56 percent of its roster spots and financial aid must go to women, and resources overall must be equal, according to the law.

There is some room for nuance: If football players are given top-of-the-line uniforms, then Title IX can be satisfied by providing women’s basketball players with comparable quality uniforms, even though the cost of outfitting a football team, with far more players, would be far from equal.

Still, a 2019 survey by the nonprofit Women’s Sports Foundation found that 80 to 90 percent of athletic programs did not comply with Title IX. A 2022 analysis by USA Today found that 49 of 107 public schools in the Football Bowl Subdivision, the highest classification of college football, had underfunded women’s programs by a combined $23.7 million in 2020-21.

One of those schools, the University of South Florida, provided $900,000 more in scholarship aid to its 117-player football team than it did to its 10 women’s teams, which had a combined 204 athletes.

Part of the reason that Title IX hasn’t been as effective as envisioned is that the Education Department, which is responsible for enforcement, has been lax in its oversight, according to a report last month from the U.S. Government Accountability Office.

In the absence of strict enforcement, some female athletes have turned to outside pressure — in the form of lawsuits.

Mr. Bryant represents 32 female athletes who filed a Title IX lawsuit against the University of Oregon in December, citing figures showing that it spent only 25 percent of its athletic dollars and 15 percent of its recruiting dollars on women, who make up 49 percent of the school’s enrollment.

He also helped win a settlement with Clemson University two years ago. The school agreed to provide equal financial aid, treatment and benefits to its female athletes, and reinstate the men’s track and cross-country teams, which it had dropped.

In a sense, the N.C.A.A. and its member schools are having to confront Title IX issues now that were deferred three years ago, when payments to college athletes for name, image and likeness rights became permissible.

The N.C.A.A. allowed those payments under pressure from state lawmakers, but ruled that schools could not be involved in helping athletes reach agreements with outside parties. As a result, booster-run collectives soon began delivering money to players, with covert direction from coaches.

Aside from a few exceptions, the money went overwhelmingly to men. Opendorse, which works with schools and athletes on sponsorship opportunities, projected that 88 percent of the $1.1 billion in name, image and likeness deals this school year would go to athletes from the major revenue sports, meaning football and men’s basketball.

Women involved in college athletics for decades have seen advancements, but also know how hard-fought they have been. The pre-eminence of football leaves them cautious about the potential pitfalls of revenue sharing.

When Mary Wise, coach of the University of Florida women’s volleyball team, became the head coach at Iowa State University in 1981 at age 22, the team played in the physical education building where the court wasn’t big enough for players to run up for a jump serve.

Now in her 33rd year at Florida, with the most wins in the collegiate history of the sport, Ms. Wise pointed to major upgrades in the athletic department’s academic center and training table, and noted how women athletes had equal access to both.

“We could say that’s because Florida has financial resources, but it’s also about where the priorities are,” Ms. Wise said, expressing concern that representatives of women’s athletics hadn’t had enough say in the class-action agreement.

She added: “What we’ve seen in the past in women’s athletics is if they don’t have a seat at the table, they’ll be on the menu.”

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