It might help to use a hypothetical situation. For purposes of illustration lets imagine 4 teams, 2 male and 2 female. Further, lets say that the two male teams each voted to be represented by a union but only one of the female teams voted for union representation.

If one male team, lets say the football team, negotiated continued medical insurance after playing for the university and the other team, lets say the basketball team, negotiated actual wages while playing, what would the female team members receive? Because each of the male teams is represented by a union, the employer university cannot mandate that they accept the same contract deal. The NLRA prohibits the employer from doing that.

The female team that is represented by a union would also have complete freedom in pursuing the kind of employment compensation its members wanted, without regard to what the male teams received. Any attempt to impose employment terms in that labor contract because of the deal reached with the unions representing the male teams would be an unfair labor practice under the NLRA. Good faith bargaining with the union representing the female athletes might result in a completely different kind of employment compensation than either team of male athletes receive.

The unrepresented female athletes would be entitled to equal treatment compared to the male athletes. But what would that be? Would it be the insurance provided to the male football players or the wages paid to the male basketball players? Would the negotiated agreement with the union representing female athletes have any impact on the question of equal treatment?

I completely support the intent of Title IX. The mandates of that Act will have an interesting impact on the collective bargaining process for each of the unions representing male and female athletes. I don’t think anyone can predict the eventual outcome.

But the majority of college sports are not revenue generating, and it’s worth looking at how the non-revenue-generating sports, and particularly women’s sports, might be affect.

In any case, the Title IX Blog has two excellent articles about this.

In post #1 [link], Erin Buzuvis writes:

What is the effect on Title IX from all of this? I believe that if the decision results in actual bargained-for benefits for student-athletes of one sex, Title IX would continue to require that such benefits inure equally to student-athletes of the other sex. Imagine that, for example, a football players’ union succeeds in bargaining for extended health insurance — the Northwestern football players’ stated objective. It would clearly violate Title IX if that benefit only applied to male athletes and not female athletes — even though the male athletes bargained for it and the female athletes did not. Title IX regulations require schools to provide equal treatment in the aggregate to its men’s and women’s programs, as measured by a “laundry list” of factors that expressly includes access to medical services, which has been interpreted to include “the equivalence for men and women of…health, accident and injury insurance coverage.”

And in post #2 [link], Erin Buzuvis writes:

I think that the same analysis would apply even if the bargained-for benefit is salaried compensation.

And contrary to what other commentators have stated, I do not think that the revenue-producing nature of the sport is the basis for a distinction.

Here’s why: Because when it comes to the treatment of student-athletes, the revenue-producing nature of the sport has already been rejected as the basis for unequal treatment among male and female athletes. A school could not decide to provide better locker rooms, or more quality coaching staff, or disproportionately high scholarship dollars, or any other benefit to football players on the grounds that football derives revenue and other sports don’t. That is well-settled, “black letter” Title IX law. So the revenue argument would not justify providing extended health insurance to players of one sex. Nor should it justify providing salaried compensation to players of one sex.