One of the worst developments of the COVID-19 pandemic has been its impact to college sports and the unfortunate sacrifice of athletics programs across the country affecting all levels of NCAA and NAIA competition.

Since March, hundreds of collegiate varsity programs have been discontinued, with more cuts likely coming.

Eliminating a varsity sport is never an easy decision for college administrators. However, the current economic reality caused by the pandemic has forced many institutions to make this difficult decision. Although the elimination of sports is typically economic-motivated, the potential impact of these decisions on federal law compliance must be considered prior to taking an action.

Prior to finalizing the decision to eliminate a sport, administrators should appropriately calculate the impact that reclassifying or eliminating a sport will have on the institution’s compliance with Title IX.

Title IX requires each institution to appropriately provide athletic opportunities accommodating the interest and athletic abilities of its students. To comply with the Interests and Abilities component of Title IX, institutions must provide competition opportunities at the appropriate competition level while meeting at least one part of the “three-part test” for competitive opportunities. Both aspects are critical.

Competition Level. Institutions should look to the two-part test in assessing whether their school would still be providing competition at the appropriate competition level after elimination or reclassification of a program. A school should be able to demonstrate that it is still providing competition at the appropriate level, even after elimination or reclassification of a program, by meeting one of the two tests offered.

The first test requires institutions to assess information related to the competitive level of scheduled competition for its remaining varsity programs. A close proportionality of the percentage of events scheduled at the equivalent competition level for men’s and women’s sports is indicative of compliance with the first test for competition levels.

The second test for competition levels involves a demonstration that the institution has a history of and is continuing to upgrade the competition level for the underrepresented sex. Declassification of sports participated in by the underrepresented sex on campus will present an issue for institutions who rely on the second test to demonstrate that they are providing the equivalent quality of competitive opportunities for men’s and women’s sports.

Competition Opportunities. In addition to assessing the competitive levels of men’s and women’s sports, schools must ensure that they continue to provide equivalent competitive opportunities for men and women student-athletes after reclassifying or eliminating varsity sports. This assessment involves an analysis of the three-part test for competitive opportunities. To comply, institutions will need to demonstrate that they accommodate interests and abilities under at least one of the following three parts:

Part I:            Proportional participation of male and female athletes in varsity  athletics program; or

Part II:          A history of program expansion for the under-represented sex; or

Part III:        Present accommodation of interests and abilities.

While cutting the over-represented sex’s (often, men’s) sports opportunities has been supported by some courts as a legal method to comply with Part I – Proportionality, the reclassification or elimination of a sport may jeopardize an institution’s ability to demonstrate compliance with Part II or Part III. Institutions cutting sports should take care in ensuring they will be able to manage the rosters of its remaining sports to stay within an appropriate threshold of proportionality.

Institutions unable to demonstrate equitable proportionality under Part I will be left with either Part II or Part III of the three-part test to demonstrate compliance. Part II of the competition opportunity test assesses whether the institution has a continued history of program expansion for the underrepresented sex. Part III of the three-part test for participation opportunities is the most complex. The reclassification or elimination of a varsity sport will not help an institution demonstrate that it is actively and fully accommodating the interests and abilities of students on campus, as the existence of a varsity sport carries with it a presumption that there is sufficient interest and ability to sponsor the sport at the varsity level. Therefore, institutions will have to intensively evaluate all aspects of Part III in order to demonstrate that the university is still adequately accommodating for interests or abilities under Part III, even though the school cut or reclassified sports programs.

Attorneys in Jackson Lewis’ Collegiate and Professional Sports Practice Group and Higher Education Group are available to assist and answer any questions that may arise relating to the elimination of athletic programs while maintaining Title IX compliance.

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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.