Dennis: Why Is Your Your Grass Greener Than Mine?: The Need For Legal Reform To Combat Gender Discrimination in Professional Sports

Why Is Your Grass Greener than Mine?
:
The Need for Legal Reform to Combat
Gender Discrimination in Professional
Sports
TANYA E. DENNIS
ABSTRACT
A sport is [a]n activity involving physical exertion and skill in which
an individual or team competes against another or others for
entertainment. The Industrial Revolution increased leisure time for the
working class, freeing time for their engagement in sports. As a form of
relaxation, spectators gathered to enjoy their favorite sports. With
technological advancements, such as mass media, spectators were willing
to pay to watch the very best athletes play sports. To elicit the best
players and to encourage the best performances, athletes received
remuneration and endorsements to maintain their top performances. This
exchange of pay-for-play elevated male athletes from amateurs to
professionals,
but
not
women.
Past
oppression
and
the
underrepresentation of women in sports affect professional female athletes
who continue to experience gender discrimination in professional sports.
This Note argues that the Civil Rights Act and the Equal Pay Act,
which prohibit discrimination against a protected class of individuals, fail
to reach gender-discriminated professional athletes because of the statutes
narrowly drafted provisions. Specifically, the Civil Rights Act excludes
gender as a protected class and applies only to discriminatory conduct by a
state actor. As well, proof of an Equal Pay Act violation is predicated on
Candidate for Juris Doctor, New England Law | Boston (2016). Bachelor of Arts,
Psychology, University of Nebraska-Lincoln (2008). The author was a member of the
Canadian Womens Soccer team in the 2003 and 2008 Womens World Cup. I would like to
thank my family for all their love and support in writing this article. Many thanks to my
editors Anthony Serdynski and Heather Reid for their thoughtful insights and words of
encouragement.
347
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inherently discriminatory factors rather than factors specific to each sport.

This Note proposes new legislation for professional athletes to
accommodate for the shortcomings of current anti-discrimination
legislation.
INTRODUCTION
uring the primitive era, sports emerged as an activity to train

warriors to hunt and battle opposing clans.1 These activities were
highly competitive.2 The skills necessary for survival were akin to
the skills of sports.3 If an essential activity (like archery to hunt and fight)
no longer served a meaningful purpose in everyday life, the activity
became a sport.4 Today, sports embody elements of their prehistoric form.5
They not only function as human training and skill development, but also
bring communities and civilizations together.6
A sport is [a]n activity involving physical exertion and skill in which
an individual or team competes against another or others for
entertainment.7 The Industrial Revolution increased leisure time for the
working class, freeing time for their engagement in sports.8 As a form of
relaxation, spectators gathered to enjoy their favorite sports.9 With
technological advancements, such as mass media, spectators were willing
to pay to watch the very best athletes play sports.10 To elicit the best
players and to encourage the best performances, athletes received
remuneration and endorsements to maintain their top performances.11 This
exchange of pay-for-play elevated men, but not women, from amateur to
ROGER I. ABRAMS, SPORTS JUSTICE: THE LAW AND THE BUSINESS OF SPORTS 6 (2010).
See id.
3 Id. at 7.
4 See DANIEL D. MCLEAN & AMY R. HURD, KRAUS RECREATION AND LEISURE IN MODERN
SOCIETY 25 (10th ed. 2015).
2
See ABRAMS, supra note 1, at 7.

See id.
7 OXFORD ONLINE DICTIONARY, http://www.oxforddictionaries.com/us/definition/american
_english/sport (last visited Apr. 6, 2016).
8 ABRAMS, supra note 1, at 100.
9 Daniel Allott, The Cult of (Watching) Sports: Is Our Sports-watching Obsession Killing Us?,
AM. SPECTATOR (Dec. 14, 2011), http://spectator.org/articles/36421/cult-watching-sports.
10 ABRAMS, supra note 1, at 16.
11 See Marc Edelman, Economic Realities & Legal Issues of Professional Athletes, 8 DEPAUL J.
SPORTS L. & CONTEMP. PROBS. 133, 134, 137 (2012).
6
2016 C o m b a t t i n g G e n d e r D i s c r i m i n a t i o n i n P r o f e s s i o n a l S p o r t s
349
professional athlete status.12 Past oppression and the underrepresentation

of women in sports continues to effect professional female athletes today.13
This Note argues that the Civil Rights Act and the Equal Pay Act,
which prohibit discrimination against a protected class of individuals, fail
to reach gender-discriminated professional athletes because of the statutes
narrowly drafted provisions. Specifically, the Civil Rights Act excludes
gender as a protected class and applies only to discriminatory conduct by a
state actor or employer. As well, proof of an Equal Pay Act violation is
predicated on inherently discriminatory factors rather than factors specific
to each sport. This Note proposes new legislation for professional athletes
to accommodate for the shortcomings of current anti-discrimination
legislation.
Part I of this Note provides an overview of the exclusion of women in
sports and their struggle for inclusion. Part II discusses the antidiscrimination laws available to professional athletes in the United States.
Part III provides a summary of gender discrimination in professional
sports from an international perspective. Part IV explains the current status
of gender discrimination in professional sports. Part V criticizes the current
anti-discrimination laws inability to adequately address gender
discrimination claims in professional sports. Part VI argues that a new law
prohibiting gender discrimination in professional sports is timely. Lastly,
Part VII proposes legislation specific to gender discrimination in
professional sports.
I.
The History of Sports

A. The Rise of Female Participation in Sports
The popularity of sports during the industrial era did not extend to
women.14 Societal norms at this time encouraged strict adherence to gender
roles.15 For women this meant that sports were too violent and aggressive
for their fragile and delicate bodies.16 Women who played sports were
considered masculine, hyper-aggressive, homosexual, and were
12 See Syda Kosofsky, Note, Toward Gender Equality in Professional Sports, 4 HASTINGS
WOMENS L.J. 209, 214 (1993).
13
See id. at 210.

ABRAMS, supra note 1, at 100.
15 See DEBORAH L. BRAKE, GETTING IN THE GAME: TITLE IX AND THE WOMENS SPORTS
REVOLUTION 6 (2010); Kosofsky, supra note 12, at 216. See generally EQUAL PLAY: TITLE IX AND
SOCIAL CHANGE 68 (Nancy Hogshead-Makar & Andrew Zimbalist eds., 2007) [hereinafter
EQUAL PLAY].
14
16
See Kosofsky, supra note 12, at 218.
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categorized as low ranking, working class women.17 Despite these negative

stereotypes, women continued to play sports with the hopes of one day
gaining societal acceptance.18 It was not until women received acceptance
at higher education institutionsin order to balance rigorous studiesthat
physical activity was deemed necessary.19 Those activities included:
gymnastic exercises . . . bowling, horseback riding, swimming, flower
gardening, and ice skating.20 With the success of these physical activities,
college programs introduced team sports such as, basketball, volleyball,
and field hockey.21
By the 1960s, the publics attitude towards women participating in
sports shifted.22 Television networks began broadcasting womens
competitions,23 and colleges became interested in implementing womens
intercollegiate athletics.24 Progressive women, uninspired by the collegiate
atmosphere, sought athletic opportunities in semipro sports at private
clubs, on corporate teams, and opportunities . . . by the Amateur Athletic
Union (AAU) . . . .25 The Division of Girls and Womens Sports
(DGWS)26 recognized the need to provide female athletes with
competition at the highest level.27 The DGWS sponsored the first national
collegiate championship in golf.28 The profitability of these championships
led to the integration of womens teams into the National Collegiate
Athletic Association (NCAA).29
B. Gender Discrimination and Inequality in Professional Sports
Although women received permission to participate in sports, society
17 Susan Cahn, Coming on Strong: Gender and Sexuality in Twentieth-Century Sports, in EQUAL
PLAY, supra note 15, at 9, 10; see EQUAL PLAY, supra note 15, at 7.
18 See Cahn, supra note 17, at 1112.
19 U.S. COMM. ON CIVIL RIGHTS, MORE HURDLES TO CLEAR: WOMEN AND GIRLS IN
COMPETITIVE ATHLETICS 2 (1980) [hereinafter MORE HURDLES TO CLEAR].
20
Id.
Id.
22 Welch Suggs, Heroines as Well as Heroes, in EQUAL PLAY, supra note 15, at 14.
23 Id. Typically in individual sports, such as gymnastics and tennis. Id.
24 Id.
25 Id. at 15.
26 The DWGS was renamed the Commission on Intercollegiate Athletics for Women
(CIAW) and later replaced by the Association for Intercollegiate Athletics for Women
(AIAW). Richard C. Bell, A History of Women in Sport Prior to Title IX, SPORT J., (Mar. 14,
2008), http://thesportjournal.org/article/a-history-of-women-in-sport-prior-to-title-ix/.
21
27
Welch Suggs, Heroines as Well as Heroes, in EQUAL PLAY, supra note 15, at 15.
Id. at 14.
29 See id. at 29.
28
351
looked on disapprovingly30 resulting in gender discrimination.31 An

early form of gender discrimination was the denial of female participation
in certain sports such as football and hockey, where the violent and
aggressive nature of these sports was considered characteristically
masculine.32 Today, female athletes experience gender discrimination and
inequality in the form of lower wages, lack of endorsements, minimal
media coverage, disparity in economic and social benefits, and differences
in quality of playing surfaces.33
Gender stereotypes still exist, where the media portrays female athletes
as inferior to their male counterparts.34 The viewing public desires to watch
the best athletic performances and attributes high performance with
masculine musculature.35
Women athletes also receive minimal financial opportunities because
of their underrepresentation in the media.36 Financial sponsorship is
contingent on adequate media exposure.37 On average, during a six week
study of sports news broadcasting conducted in 1989, mens sports
received 92% airtime, womens sports 5% ,and other topics 3%.38 In 2013,
womens sports coverage increased to 7%.39 As a result of inadequate
30
See ABRAMS, supra note 1, at 101; MORE HURDLES TO CLEAR, supra note 19.
See MORE HURDLES TO CLEAR, supra note 19, at 3.
32 See id. But see John Belaska, Top 10 Female MMA Fighters, THE RICHEST (Mar. 31, 2014),
http://www.therichest.com/sports/mma-sports/top-10-female-mma-fighters/ (listing the top
ten female Mixed Martial Arts (MMA) fighters). MMA is a combination of kickboxing,
wrestling, Judo, and Jui Jitsu to create a new style of organized fighting. Id.
31
33 See Michael McCann, Players Anti-Turf Lawsuit for Womens World Cup Not a Clear-Cut
Win, SPORTS ILLUSTRATED (Oct. 31, 2014), http://www.si.com/soccer/planet-futbol/2014/10/31/
womens-world-cup-artificial-turf-lawsuit-analysis-wwc (arguing the mens world cup has
never been played on turf fields, therefore allowing the womens world cup to be played on
turf is a form of gender discrimination). See generally Dennis Brackin, Complaint Alleges Gender
Discrimination Against U Athletics, STARTRIBUNE (Jan. 23, 2015, 5:52 PM),
http://www.startribune.com/sports/gophers/289636661.html (discussing that the initial
construction plan of a new athletic village did not take into consideration the housing of
womens athletic teams).
34 Harvard Law Review, Cheering on Women and Girls in Sports: Using Title IX to Fight Gender
Role Oppression, 110 HARV. L. REV. 1627, 163132 (1997) [hereinafter Cheering on Women].
35
See id.
See Margaret Duncan et al., Gender Stereotyping in Televised Sports, LA84 FOUNDATION,
http://www.la84.org/gender-stereotyping-in-televised-sports/ (last visited Apr. 6, 2016).
36
37
K.S.C., Why Professional Womens Sport Is Less Popular Than Mens, THE ECONOMIST (July
27, 2014, 11:50 PM), http://www.economist.com/blogs/economist-explains/2014/07/economistexplains-19 [hereinafter Womens Sport Is Less Popular Than Mens].
38
39
Duncan et al., supra note 36.

Womens Sport Is Less Popular Than Mens, supra note 37.
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media coverage, sponsorship opportunities for professional female athletes

are sparse.40
C. The Attempt to Level the Playing Field with the Enactment of Title
IX
1.
Introduction, Adoption, and Implementation of Title IX
In 1970, Bernice Sandler, a university teacher bypassed for a promotion,

complained of sexual discrimination to the Department of Labor.41 Aware
of Ms. Sandlers lawsuit, Representatives of Congress, for the first time,
discussed gender discrimination in education.42 Thereafter, Congress
sought to address equal opportunity for women in sports.43 Senator Birch
Bayh, a strong advocate against gender discrimination in schools,
captained Title IXs initiation.44
The Tower Amendment was the first challenge to Title IX requesting
the exclusion of all intercollegiate athletics.45 After altering the Tower
Amendment to exclude only revenue gathering programs such as
footballa substantial revenue source for athletic programsthe Javits
Amendment replaced the Tower Amendment.46 Title IX of the Education
Amendment of 197247 prevents gender discrimination in federally funded
education institutions.48 The drafters of Title IX mimicked the language of
Title VI of the Civil Rights Act of 1964.49 Title IX states [n]o person in the
United States shall, on the basis of sex, be excluded from participation in,
40 See Cheering on Women, supra note 34, at 1630; Womens Sport Is Less Popular Than Mens,
supra note 37.
41 Christine I. Hepler, A Bibliography of Title IX of the Education Amendments of 1972, 35 W.
NEW. ENG. L. REV. 441, 44546 (2013).
42 Id. at 446.
43 EQUAL PLAY, supra note 15, at 60; see Hepler, supra note 41, at 447.
44 Hepler, supra note 41, at 448.
45 Id.
46 Diane Heckman, Women & Athletics: A Twenty Year Retrospective on Title IX, 9 U. MIAMI
ENT. & SPORTS L. REV. 1, 1112 (1992); Hepler, supra note 41, at 448.
47
Also known as the Javits Amendment. Paul M. Anderson, Title IX at Forty: An

Introduction and Historical Review of Forty Legal Developments That Shaped Gender Equity Law, 22
MARQ. SPORTS L. REV. 325, 330 (2012).
48 1 EDUC. LAW Title IX of the Education Amendments of 1972Generally 4:3 (2014); Title IX of
the Education Amendment of 1972, U.S. DEPT OF JUST., http://www.justice.gov/crt/about/cor/
coord/titleix.php (last visited Apr. 6, 2015).
49 See 42 U.S.C. 2000d (1964); Anderson, supra note 47, at 326 (No person in the United
States shall, on the ground of race, color, or national origin, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.).
353
be denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assistance . . . .50
The statute sought to minimize gender discrimination by removing funds
from educational programs that intentionally discriminated in the
administration of educational support, interscholastic opportunities, and
varsity sports.51
The Javits Amendment directed the Department of Health, Education
and Welfare (HEW) (currently the Department of Education) to
implement Title IX.52 Statutory interpretation set out three standards to
evaluate an educational institutions compliance with Title IX:
participation, scholarships, and the treatment of benefits provided to male
and female athletes.53 These broad concepts led to Title IXs three-part test
of compliance.54
2.
Title IXs Three-Part Test of Compliance
Under the Javits Amendment, HEW proposed, and promulgated

regulations related to Title IXs prohibition against gender discrimination
in education.55 The regulations were published in 1975 and formed two
parts: the prohibition of discrimination in athletics and financial funding
for education programs.56
To assist education programs in its compliance with Title IX, the
Department of Education (DOE), through its Office for Civil Rights
(OCR), published memorandums, Dear Colleague Letters,
clarifications, and guidance.57 Despite these clarification attempts, by July
50
20 U.S.C. 1681 (1972).

See Hepler, supra note 41, at 44749.
52 BRAKE, supra note 15, at 19; Hepler, supra note 41, at 449.
53 See Catherine Pieronek, An Analysis of the New Clarification of Intercollegiate Athletics Policy
Regarding Part Three of the Three-Part Test for Compliance with the Effective Accommodation
Guidelines of Title IX, 32 J.C. & U.L. 105, 10607 (2005).
51
54
See id. at 107.

Education Amendments of 1974, Pub. L. No. 93-380, 844, 88 Stat. 484, 612 (1974);
Anderson, supra note 47.
56 Financial Assistance, 34 C.F.R. 106.37 (1980); Athletics, 34 C.F.R. 106.41 (1980);
Anderson, supra note 47, at 33032. Since the creation of these regulations, opponents have
challenged their validity. Id. at 335. In NCAA v. Califano, the claimants argued that the
regulations were not specifically related to the purposes of the statute and that the NCAA
should be exempt because it does not receive federal funding. 444 F. Supp. 425, 429 (D. Kan.
1978).
55
57
Anderson, supra note 47, at 333; see Heckman, supra note 46, at 16; see, e.g., Memorandum
from Peter Holmes, Dir., Office for Civ. Rights, U.S. Dep't of Health, Educ., and Welfare, to
Chief State School Officers, Superintendents of Local Educ. Agencies, and Coll. and Univ.
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1978, the DOE received nearly 100 complaints alleging discrimination in

athletics against more than 50 institutions of higher education.58 The
Department determined that more guidance was necessary.59 In 1979, OCR
issued its Policy Interpretation with three categories: (1) Compliance in
Financial Assistance (Scholarships) Based on Athletic Ability; (2)
Compliance in Other Program Areas;60 and (3) Compliance in Meeting the
Interests and Abilities of Male and Female Students.61 These three areas
shaped what is known as Title IXs three-part test of compliance.62
Compliance is based on whether the available opportunities
proportionately represent the enrollment figures of females and males;
whether the needs of the underrepresented gender require intercollegiate
program development; or whether intercollegiate program development is
unnecessary because the current program adequately meets the needs of
the underrepresented gender.63
Cohen v. Brown University first challenged Title IXs three-part test.64 In
that case, Brown University defended its elimination of two female athletic
programs to meet budget requirements, by arguing that the three-part test
discriminates against male athletes who are more interested in sports than
women.65 In rejecting Brown Universitys argument, the First Circuit
acknowledged its responsibility for shaping gender equality in collegiate
sports.66
Presidents, Elimination of Sex Discrimination in Athletic Programs (Sept. 1975), available at

http://www2.ed.gov/about/offices/list/ocr/docs/holmes.html.
58 EQUAL PLAY, supra note 15; A Policy Interpretation: Title IX and Intercollegiate Athletics,
OFFICE FOR CIV. RIGHTS, DEP'T OF HEALTH, EDUC., AND WELFARE, http://www2.ed.gov/about/
offices/list/ocr/docs/t9interp.html (last modified Oct. 16, 2015) [hereinafter A Policy
Interpretation].
59
EQUAL PLAY, supra note 15; Anderson, supra note 47, at 336.
Including [e]quipment and supplies; games and practice times; travel and per diem,
coaching and academic tutoring; assignment and compensation of coaches and tutors; locker
rooms, and practice and competitive facilities; medical and training facilities; housing and
dining facilities; publicity; recruitment; and support services. A Policy Interpretation, supra
note 58.
60
61
Id.
See David S. Cohen, Title IX: Beyond Equal Protection, 28 HARV. J. L. & GENDER 217, 238
(2005).
63 Title IX of the Education Amendments of 1972: A Policy Interpretation: Title IX and
Intercollegiate Athletics, 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979); Cohen, supra note 62.
62
64
Cohen v. Brown Univ., 809 F. Supp. 978, 989 (D.R.I. 1992).

Id. at 981, 987.
66 Cohen v. Brown Univ., 101 F.3d 155, 187 (1st Cir. 1996).
65
3.
355
Title IXs Applicability to Collegiate and Professional

Sports
Title IX has inspired many athletes to initiate lawsuits against

collegiate programs for non-compliance.67 However, there is no statutory
language directly related to athletics.68 Title IX specifically prohibits gender
discrimination in educational programs.69 Brenden v. Independent School
District established the connection between education and athletics
through the statutes prohibition of gender discrimination in educational
programs.70 The Brenden court recognized that a high school rule barring
girls from participating with males in athletics violated the Fourteenth
Amendment.71 According to the court, education is important for the wellbeing of society and interscholastic activities play a significant role in
educating students.72
Pursuant to Title IX regulations and Brendens connection to
intercollegiate athletics, Biediger v. Quinnipiac University exemplifies
institutional accountability for lack of equality in collegiate sports
programs.73 Womens volleyball players at Quinnipiac University fought
against the removal of its volleyball program.74 The plaintiffs also alleged
insufficient opportunities in rugby and cheerleading, and inadequate
accommodation for female athletes.75
Title IXs recognition of female participation in sports has impacted
professional sports.76 As a result of increased recognition and improved
media coverage, several professional womens sports leagues were created,
including the Womens National Basketball Association (WNBA) and the
Ladies Professional Golf Association (LPGA).77
67 See, e.g., Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 851 (9th Cir. 2014);
Equity in Athletics, Inc. v. Dept of Educ., 639 F.3d 91, 95 (4th Cir. 2011); Biediger v.
Quinnipiac Univ., 928 F. Supp. 2d 414, 41819 (D. Conn. 2013).
68
See Anderson, supra note 47, at 336.

Id. at 327.
70 Brenden v. Independent Sch. Dist., 477 F.2d 1292, 1298 (8th Cir. 1973).
71 See id. at 1302.
72 See id. at 1298.
73 Biediger v. Quinnipiac Univ., 928 F. Supp. 2d 414, 41819 (D. Conn. 2013).
74 Id. at 418.
75 See id. at 420.
76 See Cheering on Women, supra note 34, at 1627. More than 135,000 women currently
participate in college sports, up from 30,000 in 1971. Close to 2.4 million girls play organized
high school sports, up from 300,000 in 1971. Id.
69
77
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II. The Legal Platforms and Remedies for a Gender Discrimination

Lawsuit
Generally, state actors and employers are prohibited from
discriminating against protected classes based on race, color, or national
origin.78 The following sections discuss the various legal options available
to a professional athlete complaining of gender discrimination.79
A. Title VI of the Civil Rights Act of 1964
Title VI of the Civil Rights Act prohibits discrimination on the ground
of race, color, religion, sex, or national origin . . . .80 The first Supreme
Court cases to challenge the constitutionality of the Civil Rights Act of 1964
were Heart of Atlanta Motel v. United States81 and Katzenbach v. McClung.82
These cases alleged racial segregation under Title II of the Act, which
prohibits discrimination in places of public accommodation.83 Title VI, like
Title IX, bars discrimination by federally funded government agencies that
provide public facilities.84 Any party claiming a civil rights deprivation
may bring a civil suit under 42 U.S.C. 1983.85 A plaintiffs civil rights
claim must allege a deprivation of a right guaranteed by the Constitution
and that the deprivation resulted from state action.86
Examples of amateur athletes utilizing their civil rights protections
include: Bally v. Northeastern University, in which a male athlete claimed a
civil rights violation for mandatory drug testing of student athletes.87 In
another case, female wrestlers alleged a civil rights violation after
university officials prohibited them from joining the mens wrestling
team.88 The crux of the plaintiffs argument was that the university must
78
See infra notes 8490, 99 and accompanying text.

See infra Part II.AD.
80 See 42 U.S.C. 2000d (2012) (No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance.).
81 379 U.S. 241, 242 (1964) (refusing hotel accommodation to African Americans).
82 379 U.S. 294, 295 (1964) (refusing restaurant service to African Americans).
83 Heart of Atlanta, 379 U.S. at 242; Katzenbach, 379 U.S. at 295.
84 See 2000d.
85 42 U.S.C. 1983 (2012).
86 See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Adickes v. S.H. Kress & Co.,
398 U.S. 144, 150 (1970).
79
87
88
Bally v. Northeastern Univ., 532 N.E.2d 49, 50 (Mass. 1989).

Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 96263 (9th Cir. 2010).
357
provide equal accommodations for both genders and that excluding

women from the wrestling program was unlawful.89
B. Equal Pay Act of 1963
The phrase equal pay for equal work taken from the Equal Pay Act
of 1963, requires substantially similar jobs to receive equal pay, whether
performed by men or women.90 The job similarity is measured by factors
such as: skill, effort, responsibility, working conditions, and
establishment.91 In order to establish a prima facie case, the plaintiff must
demonstrate the positions held by the opposite sex are substantially
similar.92 Title VII of the Civil Rights Act provides a similar pay equity
protection.93 However, a violation of the Equal Pay Act is not necessarily a
violation of Title VII.94
c.
Title VII of the Civil Rights Act of 1964
Title VII prohibits employers from discriminating against their

employees.95 Unlike typical workers who know the identity of their
employers, an athlete may report to different entities throughout his or her
career.96 Professional athletes are not independent contractorsthey are
employees of the team they play for and the league that oversees the
team.97 Determining a professional athletes employer is dispositive of Title
VIIs applicability to gender discriminatory practices.98
89
Id.
29 U.S.C. 206(d)(1) (2012) (No employer . . . shall discriminate . . . between employees
on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he
pays wages to employees of the opposite sex . . . .); see 26 AM. JUR. 3D Proof of Violation of Equal
Pay Act 269 (1994) [hereinafter Violation of Equal Pay Act].
90
91
See The Equal Pay Act 29 C.F.R. 1620.18 (2014); Violation of Equal Pay Act, supra note 90.
Gregory Szul, Sex Discrimination and the Equal Pay Act in Athletic Coaching, 5 DEPAULLCA J. ART & ENT. L. & POLY 161, 162 (1995). The plaintiff need not prove the sexes possessed
similar skills or job experiences. Id.
93 Ivan E. Bodensteiner & Rosalie Berger Levinson, Relation to Title VII, in 4 ST & LOC. GOVT
CIV. RTS. LIABILITY 7:23 (2014) [hereinafter Relation to Title VII]; see 42 U.S.C. 2000e-2 (2012).
92
94
29 C.F.R. 1620.27 (2014); see also Relation to Title VII, supra note 93.
See 2000e-2. The statute states in part that, [i]t shall be an unlawful employment
practice for an employer . . . to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to . . . compensation, terms,
conditions, or privileges of employment, because of . . . sex . . . . Id.
95
96 See Kelly B. Koenig, Mahmoud Abdul-Raufs Suspension for Refusing to Stand for the National
Anthem: A Free Throw for the NBA and Denver Nuggets, or a Slam Dunk Violation of AbdulRaufs Title VII Rights?, 76 WASH. U. L.Q. 377, 384 (1998); see also Elliot S. Rozenberg, Leveling
the Playing Field, 30-SPG ENT. & SPORTS L. 1, 19 (2012).
97
See, e.g., Dortz v. City of New York, 904 F. Supp. 127, 145 (S.D.N.Y. 1995) (noting that
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In order to file a Title VII claim, a complainant must first file a charge
with the Equal Employment Opportunity Commission (EEOC) within
180 days of the alleged discrimination.99 The EEOC evaluates the claim,
and if valid, proposes mediation or grants the aggrieved party a Right-toSue.100 A prima facie case for employment gender discrimination requires
the plaintiff to prove: (1) membership in a protected class; (2) satisfactory
job performance; (3) the existence of an unfavorable or adverse
employment action; and (4) that individuals in a relatively similar position
received more favorable treatment.101 A plaintiff must exhaust all
administrative procedures with the EEOC before a Title VII federal lawsuit
may commence.102 The EEOC may also enforce Title VII by filing its own
lawsuit.103
There are two theories of liability courts recognize in gender
discrimination claimsdisparate treatment and disparate impact.104
Disparate treatment, through direct or circumstantial evidence, involves
intentional discrimination.105 On the other hand, a disparate impact theory
entities may be found mutually accountable as employers where common economic interest
and control over the players created an integrated enterprise); Bryant v. Fox, 515 N.E.2d
775, 776, 779 (Ill. App. Ct. 1987) (stating NFL Chicago Bears players were not independent
contractor because the Bears had exerted considerable control over the players on and off the
field); Rozenberg, supra note, 96.
98 See 2000e-2. An employer is defined as a person who employs 15 or more employees to
work in an industry related to commerce. Id. 2000e-2(b).
99 How to File a Charge of Employment Discrimination, U.S. EQUAL EMP. OPPORTUNITY
COMMISSION, http://www.eeoc.gov/employees/howtofile.cfm (last visited Apr. 4, 2015)
[hereinafter How to File].
100 42 U.S.C. 2000e-5(f)(1) (2012); Melissa Beck, Fairness on the Field: Amending Title VII to
Foster Greater Female Participation in Professional Sports, 12 CARDOZO ARTS & ENT. L.J. 241, 255
(1994); The Charge Handling Process, U.S. EQUAL EMP. OPPORTUNITY COMMISSION,
http://www.eeoc.gov/employees/howtofile.cfm (last visited Apr. 4, 2015) [hereinafter The
Charge Handling Process].
101 Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 250 (1981); CHARLES R. RICHEY, 1
MANUAL ON EMP. DISCRIMINATION 1:141 (2015) [hereinafter MANUAL ON EMP.
DISCRIMINATION]. A prima facie Title VII case is proven when the plaintiffs evidence
submitted to the trier of fact meets the standard of a preponderance of the evidence. This
means the establishment of a legally mandatory, rebuttable presumption as opposed to
enough evidence to permit the trier of fact to infer the fact at issue. Id.
102 Jordon J. Feist, Discrimination, Retaliation, and the EEOC: The Circuit Split over the
Administrative Exhaustion Requirement in Title VII Claims, 118 PENN. ST. L. REV. 169, 102 (2013).
103
Id.
LINDA A. SHARP ET AL., SPORTS LAW: A MANAGERIAL APPROACH 107 (2007).
105 Davis v. District of Columbia, 949 F. Supp. 2d 1, 78 (D.D.C. 2013); e.g., Biver v. Saginaw
Twp. Cmty. Sch., Nos. 85-1434, 85-1575, U.S. App. Lexis 32878, at *2 (6th Cir. Oct. 27, 1986)
(citing intentional discrimination with a school superintendent stating that hell would freeze
over before he would hire a woman for a boys coaching position). Id.
104
359
relates to an employers neutral employment practice [that] has had a

discriminatory effect on a protected class of which the plaintiff is a
member.106
An employer may respond to a prima facie case of discrimination
citing a legitimate nondiscriminatory reason, business necessity, or a bona
fide occupational qualification (BFOQ).107 The burden then shifts back to
the plaintiff to establish that the employers defense is a pretext.108
D. Amateur Sports Act of 1978
Congress passed the Amateur Sports Act of 1978 in order to quiet the
concerns about the Amateur Athletic Unions (AAU) shortcomings as the
U.S. representative at international competitions.109 The United States
Olympic Committee (USOC) replaced the AAU.110 Congress was intent
on keeping amateur athletic disputes out of the courtroom.111 Congress
designated arbitration as the remedy to solve amateur athletic disputes.112
The USOC possesses exclusive jurisdiction over the United States
participation in the Olympic Games, the Paralympic Games, and the PanAmerican Games . . . .113 The USOCs functions include the supervision of
amateur athletic conduct, enforcement of amateur athletes rights, and
dispute resolution for National Governing Bodies (NGB).114 An NGB is a
nonprofit corporation that promotes amateur athletic competitions in the
sport it represents.115 NGBs resolve disputes among amateur athletes and
106
SHARP ET AL., supra note 104, at 107.

See Melissa K. Stull, Permissible Sex Discrimination in Employment Based on Bona Fide
Occupational Qualifications (BFOQ) Under 703(e)(1) of Title VII of Civil Rights Act of 1964 (42
U.S.C.A. 2000e-2(e)(1)), 110 A.L.R. FED. 28 (1992) (citing the following examples of BFOQs:
needs and privacy interests of the employers clientele; business necessity; safety concerns for
female employees; reliance on statutes or government policy); SHARP ET AL., supra note 104, at
113.
107
108
SHARP ET AL., supra note 104, at 108.

See 36 U.S.C. 220501 (2012); MICHAEL JONES, SPORTS LAW 28 (1999).
110 See JONES, supra note 109.
111 See Konstantinos Yiannopoulos, Save Amateur Sports: Protection from Liability Under the
Amateur Sports Act in Eleven Line v. North Texas Soccer Assn, 8 VILL. SPORTS & ENT. L.J. 387,
393 (2002).
109
112 Melissa R. Bitting, Mandatory, Binding Arbitration for Olympic Athletes: Is the Process Better
or Worse for Job Security?, 25 FLA. ST. U. L. REV. 655, 657 (1998).
113
30A C.J.S. Entertainment & Amusement 2 (2015).

WALTER T. CHAMPION, JR., FUNDAMENTALS OF SPORTS LAW 21:3 (2014).
115 Id. Examples of NGBs include: U.S. Figure Skating Association (USFSA), USA Cycling
Federation, USA Swimming, USA Triathlon Association, and U.S. Soccer Federation. JONES,
supra note 109; U.S. National Governing Bodies Jobs!, U.S. NATL GOVERNING BODIES JOB BD.,
114
360
Vol. 50 | 347
amateur sports organizations.116 The Supreme Court determined that

neither the USOC nor NGBs are state actors, therefore an individual
aggrieved by their action is afforded no constitutional protection.117
III. An International Perspective: Sports Tribunals and International
Sports Law
The International Olympic Committee (IOC) and the Court of
Arbitration for Sport (CAS) effectively address and resolve international
sports discrimination claims.118 The following sections discuss antidiscrimination mandates at the Olympics and other international events,
and the procedures used by the IOC and CAS to battle gender
discrimination in professional sports.119
A. The Court of Arbitration for Sport
In response to sports disputes at the international level, CAS was
convened in the early 1980s as the first independent body to adjudicate
these disagreements.120 The IOC approved CAS statutes and formed the
CAS in 1984.121 The CAS, sometimes referred to as the sports supreme
court, utilizes arbitration or mediation to settle sports disputes pursuant
to procedural rules called the Code of Sports-Related Arbitration and
Mediation Rules (CAS Code), which are tailored to each sport.122 There
are four types of procedures mandated by the CAS Code: (1) the Ordinary
Arbitration Procedure; (2) The Appeal Arbitration Procedure; (3) the
http://usngbjobs.teamworkonline.com/teamwork/jobs/default.cfm (last visited Mar. 21, 2016)

(look at the bar across the top of the page for the logos of various NGBs).
116 36 U.S.C. 220523 (2012).
117 SHARP ET AL., supra note 104, at 311; see also San Francisco Arts & Athletics, Inc. v. United
States Olympic Comm., 483 U.S. 522, 542 (1987); Harding v. United States Figure Skating
Assn, 851 F. Supp. 1476, 1479 (D. Or. 1994); Defrantz v. United States Olympic Comm., 492 F.
Supp. 1181, 119293 (D.D.C. 1980).
118 See infra Parts III.AB.
119 See infra Parts III.AB.
120 See Symposium, Louise Reilly, An Introduction to the Court of Arbitration for Sport (CAS) &
the Role of National Courts in International Sports Disputes, 2012 J. DISP. RESOL. 63, 63 (2012);
History of the CAS, TAS/CAS, http://www.tas-cas.org/en/general-information/history-of-thecas.html (last visited Mar. 21, 2016).
121 JACK ANDERSON, MODERN SPORTS LAW: A TEXTBOOK 79 (2010); History of the CAS, supra
note 120.
122 See Reilly, supra note 120, at 64; see also Court of Arbitration for Sport, WORLD ANTIDOPING AGENCY, https://www.wada-ama.org/en/who-we-are/anti-doping-community/courtof-arbitration-for-sport; SHARP ET AL., supra note 104, at 30910; History of the CAS, supra note
120.
361
AdHoc Division; and (4) Mediation.123 The CAS applies the rules and
regulations of the various sport organizations as the governing substantive
law.124 If inconsistencies or ambiguities within the rules and regulations of
these sport organizations exist, the law where the organization is domiciled
will control.125
B. The International Olympic Committee
The IOC, created in 1894 and located in Switzerland, oversees
Olympism in sport worldwide.126 The IOC is an international non-profit
organization with its role and purpose set by the Olympic Charter.127
Among its many roles, such as combating drug doping in sports and
celebrating the Olympic Games, the IOC act[s] against any form of
discrimination affecting the Olympic Movement.128
When an athlete or team violat[es] . . . the Olympic Charter, the World
Anti-Doping Code, or any other regulation, punishment consists of their
removal from the Olympic Games, suspension, or both.129 Although the
IOCs determinations are final130 there is some recourse.131 The Executive
Board will resolve disputes as to the finality of IOC decisions and the CAS
will offer arbitration for all disputes related to the Olympic Games.132
123 COURT OF ARBITRATION FOR SPORT, STATUTES OF THE BODIES WORKING FOR THE
SETTLEMENT OF SPORTS-RELATED DISPUTES, available at http://www.tas-cas.org/fileadmin/user_
upload/Code20201320corrections20finales20_en_.pdf (last visited Apr. 6, 2015) [hereinafter

CAS, STATUTES OF THE BODIES WORKING]. The Ordinary Arbitration Procedure decides
international arbitration cases pertaining to sponsorship contracts, licensing and
broadcasting and media rights. Reilly, supra note 120, at 6465. The Appeal Arbitration
Procedure oversees rulings of sport agencies related to compensation disagreements in
football and punishments for doping violations. Id. The Ad Hoc Division operates as an
extension of the CAS, to provide on-site arbitrative support at major sport events. Id.
Mediation is not commonly used, but offered as the first option in the arbitration process. Id.
124 Reilly, supra note 120, at 68.
125 Id. at 69. In most cases, Swiss law is applied to supplement sports regulations because
thirty-six international federations are located in Switzerland. Id.
126 INTL OLYMPIC COMMITTEE, OLYMPIC CHARTER 12, 18, 33 (2015) [hereinafter OLYMPIC
CHARTER], available at http://www.olympic.org/Documents/olympic_charter_en.pdf (stating
Olympism is an enjoyable way of life combining sport, education, and culture).
127 Id. at 18, 33.
128 Id. at 18; The Organisation, OLYMPIC.ORG, http://www.olympic.org/about-ioc-institution
(last visited Apr. 6, 2015).
129
OLYMPIC CHARTER, supra note 126, at 10102.

Id. at 105.
131 See id.
132 Id.
130
362
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IV. Gender Discrimination Continues in Professional Sports Today

The lawsuit against the Federation International Football Association
(FIFA) and the Canadian Soccer Association illustrates a modern
example of gender discrimination in professional sports.133 The competitors
at the 2015 FIFA Womens World Cup in Canada played primarily on turf
soccer fields.134 Historically, all FIFA Mens World Cups have enjoyed
natural grass surfaces.135 U.S. Womens soccer team members claimed that
the difference in playing surfaces amounted to gender discrimination.136
Since the World Cup was in Canada, a gender discrimination complaint
was filed under Canadian law as a violation of the Ontario Human Rights
Code.137
As the law stands in the United States, an athlete seeking
compensation for inequalities in wages, facilities, or endorsements must
file multiple claims under various bodies of law to receive adequate
redress.138 Because there is no statute pertaining to gender discrimination in
professional sports, the inefficient and arduous task of filing numerous
claims, may force an athlete to abandon a valid discrimination claim at
inception.139
133
See Michael McCann, Players Anti-Turf Lawsuit for Womens World Cup Not a Clear-Cut
Win, SPORTS ILLUSTRATED (Oct. 31, 2014), http://www.si.com/soccer/planet-futbol/2014/10/31/
womens-world-cup-artificial-turf-lawsuit-analysis-wwc.
134 See Laurent Dubois, Artificial Turf Controversy a Constant in Backdrop of Womens World
Cupi, SPORTS ILLUSTRATED (June 24, 2015), http://www.si.com/planet-futbol/2015/06/23/
womens-world-cup-artificial-turf-canada; Statement of FIFA Secretary General Jrme Valcke on
the Withdrawal of the Lawsuit on Artificial Turf, FIFA.COM (Jan. 21, 2015), http://www.fifa.com/
womensworldcup/news/y=2015/m=1/news=statement-of-fifa-secretary-general-jerome-valckeon-the-withdrawal-of-2509836.html.
135
See Female Soccer Players File Discrimination Suit over Womens World Cup, CBS NEWS (Oct.
1, 2014, 3:38 PM), http://www.cbsnews.com/news/female-soccer-players-file-discriminationsuit-over-womens-world-cup/.
136
Id.
See id.; McCann, supra note 133.
138 See infra Part III.AD.
139 See infra Part III.AD.
137
363
ANALYSIS
V. Title IX and Other Legal Remedies for Gender Discrimination Fail to
Reach Professional Sports
A. Title IX Does Not Incentivize Professional Sports Leagues and
Associations to Enforce Gender Equality
Although Title IX paved the way for various womens professional
leagues, the statute does not have regulatory power over these leagues, and
therefore does not enforce gender equality in professional sports.140 Title IX
applies solely to educational institutions.141 Therefore, the financial
incentives provided by Title IX to educational facilities to maintain gender
equality do not apply to professional sports.142
The term educational institution applies [o]nly to institutions of
vocational education, professional education, and graduate higher
education, and to public institutions of undergraduate higher
education.143 In contrast, professional sports leagues generate revenue,
provide entertainment, and function similar to business organizations.144
The National Football League (NFL), the National Hockey League
(NHL), and the National Basketball Association (NBA), for example,
exist as unincorporated, non-profit associations with a Commissioner [a]s
the chief executive officer (CEO) of the league.145 Therefore, a
professional sports league operating as a non-profit organization cloaked
as a business entity is not an educational institution within the meaning of
Title IX.146
A cause of action against a professional league with no connection to
140

20 U.S.C. 1681 (2012); RAY YASSER ET AL., SPORTS LAW: CASES AND MATERIALS 134 (MB
6th ed. 2006); Hepler, supra note 41, at 449.
141
142 Cf. Mark Kelman, (Why) Does Gender Equity in College Athletics Entail Gender Equality?, 7
S. CAL. REV. L. & WOMENS STUD. 63, 80 (1997); Kosofsky, supra note 12, at 234.
143 1681.
144 See Gregor Lentze, The Legal Concept of Professional Sports League: The Commissioner and an
Alternative Approach from a Corporate Perspective, 6 MARQ. SPORTS L. REV. 65, 66, 7172 (1995).
145
NBA, CONSTITUTION AND BY-LAWS OF THE NATIONAL BASKETBALL ASSOCIATION art. 2

(2012) [hereinafter NBA CONSTITUTION], available at http://mediacentral.nba.com/media/
mediacentral/NBA-Constitution-and-By-Laws.pdf; NHL, CONSTITUTION OF THE HOCKEY
LEAGUE art. 2, 2.2 [hereinafter NHL CONSTITUTION]; NFL, CONSTITUTION AND BYLAWS OF
THE NATIONAL FOOTBALL LEAGUE art. 2, 2.2 (rev. ed. 2006) [hereinafter NFL CONSTITUTION],
available at http://www.nfl.com/static/content/public/static/html/careers/pdf/co_.pdf; Lentze,
supra note 144.
146 NBA CONSTITUTION, supra note 145; NHL CONSTITUTION, supra note 145; NFL
CONSTITUTION, supra note 145; Lentze, supra note 144.
364
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educational opportunities does not trigger Title IX.147 Title IX provides

equal opportunities for males and females in athletic and interscholastic
opportunities at an educational institution.148 Participation in a professional
sports league offers no formal educational opportunities similar to that of a
high school or collegiate program.149 While the equal education of all
students results in well-adjusted and productive citizens, professional
leagues that confer membership to only elite athletes do not guarantee the
same societal benefit.150
Title IX protects the fundamental, universal right to education.151 Title
IX attempts to preserve the primary intent and motivations of the studentathlete, which are to study first and play later.152 Student-athletes enroll as
students and participate in a competitive sport offered by their college or
university.153 The NCAAs requirement that all student-athletes maintain
amateur status while enrolled and competing at the collegiate level
excludes professional athletes from NCAA coverage.154 An amateur athlete
is not affiliated with professional leagues or teams and cannot receive
financial compensation for play, while professional athletes receive pay for
play.155 Section 2.9 of the NCAAs constitution supports Title IXs
protection of the amateur athlete and its separation from the professional
147 See Anderson, supra note 47, at 336. This is true even when public funding is used for the
construction of stadiums to revitalize a city. See id. at 33637.
148
See id.
See Denver Rockets v. All-Pro Mgmt., Inc., 325 F. Supp. 1049, 1057 (1971); Lindsay J.
Rosenthal, From Regulating Organization to Multi-Billion Dollar Business: The NCAA Is
Commercializing the Amateur Competition it Has Taken Almost a Century to Create, 13 SETON HALL
J. SPORTS L. 321, 321 (2003). See generally EDUCATION JUSTIFICATION FOR PROFESSIONAL SPORTS
DRAFT RULE 2450.22 (2015) (distinguishing educational pursuits from professional careers,
where a draft rule requires a prospective professional athlete complete four years of college
prior to starting a professional athletic career).
149
150 See Brown v. Board of Educ. of Topeka, 347 U.S. 483, 493 (1954) (stating education is
important to government, our democratic society, and good citizenship); Brenden v.
Independent Sch. Dist., 477 F.2d 1292, 1292 (8th Cir. 1973).
151
See Brenden, 477 F.2d at 1298.

See Adidas America, Inc. v. NCAA, 40 F. Supp. 2d 1275, 1285 n.7 (D. Kan. 1999); NCAA,
DIVISION I MANUAL OCTOBER 2014-15 art. 2.9 (2014) [hereinafter NCAA MANUAL], available at
http://www.ncaapublications.com/productdownloads/D115OCT.pdf.
153 See NCAA MANUAL, supra note 152, art. 2.2.
154 Play Division I Sports, NCAA, http://www.ncaa.org/student-athletes/play-division-isports (last visited Apr. 6, 2015).
152
155 But see WALTER T. CHAMPION, SPORTS LAW IN A NUTSHELL 273 (4th ed. 1993) (explaining
that the strict definition of an amateur athlete has been somewhat blurred where athletes
today receive athletic scholarships and bursaries or seek admission into an athletic program
for the prospect of professional status in the future).
365
athlete.156 This focus on educating student-athletes and deterring

commercial exploitation explains Title IXs legal protection for studentathletes, not professional athletes.157Because Title IX only promotes athletic
equality in education, a new law is necessary to advance equality in
professional sports.158
B. The Civil Rights Act of 1964 Is Too Narrow to Address Gender
Discrimination Claims in Professional Sports
A civil rights violation under Titles II, VI, and VII does not provide a
professional athlete with a viable lawsuit because neither professional
leagues nor sporting accommodations receive federal funds, meaning they
can discriminate based on gender without violating the Civil Rights Act.159
Accordingly, drafters of new legislation prohibiting gender discrimination
in professional sports must include professional leagues and public
accommodation as entities capable of committing gender discriminatory
actions.160
1.
A Professional League Is Not a Federally Funded Program

and Therefore Does Not Discriminate Against Professional
Athletes That Use Public Facilities
Professional athletes alleging that their sporting facility is inferior in

quality and access to the athletic facilities of the opposite gender might
look to 42 U.S.C. 2000d to intiate a claim, but because the operation of the
facility implicates no state action, the claim will fail.161 To invoke Title VIs
156 NCAA MANUAL, supra note 152, art. 12.01.1. Article 2.9 of the NCAA's constitution
specifies: Student-athletes shall be amateurs in an intercollegiate sport, and their
participation should be motivated primarily by education and by the physical, mental, and
social benefits to be derived. Student participation in intercollegiate athletics is an avocation,
and student-athletes should be protected from exploitation by professional and commercial
enterprises. Id. art. 2.9; see also JONES, supra note 109, at 9. See generally Ronald J. Waicukauski,
The Regulation of Academic Standards in Intercollegiate Athletics, in LAW & AMATEUR SPORTS 163
(1982) (noting the NCAA imposes four requirements on student-athletes to encourage the
importance of academics). Student-athletes must maintain good academic standing, be
admitted pursuant to regular entrance requirements, be enrolled in full-time coursework, and
make sufficient progress towards obtaining a degree. Id.
157
See 20 U.S.C. 1681 (2012). See generally NCAA MANUAL, supra note 152.
See infra notes 16063 and accompanying text; see discussion infra Part V.AC.
159 See 42 U.S.C. 2000d (2012).
160 See discussion infra Part V.AC.
161 See 2000d. See generally Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 851
(9th Cir. 2014) (noting female high school softball players complaints of fewer equipment,
smaller locker rooms, and field uneven and poorly maintained compared to the male
program).
158
366
Vol. 50 | 347
prohibition against discrimination in public facilities, the program or

activity must receive federal funds.162 Section 2 of the statute defines a
federally conducted program as one directed by an executive department
or agency.163 Further, the statute refers to education and training activities
such as internships, scholarships, enrichment camps, and training
programs.164 A professional sports league or a stadium hosting the leagues
games is neither a federally funded program nor an executive agency
within the statutory definition.165 The statutes promise of equal access to
programs under federal assistance, namely education, resembles Title IXs
guarantee of equal accommodations for student-athletes.166 The simple fact
that professional sports leagues and teams do not receive federal funding
should not preclude an athlete from bringing a gender discrimination
complaint; therefore a flexible gender discrimination statute for
professional athletes is necessary.167
2.
A Professional Athlete Using a Public Accommodation Is

Not Protected from Discrimination Because Title II Does
Not Recognize Gender as a Protected Class
Even if a stadium or athletic training facility is considered a public

accommodation, gender is not a protected class under Title II of the Civil
Rights Act and therefore a complaint for inadequate playing surfaces will
fail.168 Title II prohibits discrimination in a place of public accommodation
related to commerce; or, if state action encourages segregation.169 Places of
accommodation affecting interstate commerce include lodging,
establishments offering food, gas stations, and places of entertainment or
exhibition.170 Similar to Heart of Atlanta Motel and Katzenbach, in which
162
See 2000d.
2000d(2-201).
164 2000d(2-202).
165 Compare 2000d(2-201), with MICHAEL J. COZZILLIO & MARK S. LEVINSTEIN, SPORTS LAW:
CASES AND MATERIALS 11 (1997) (describing leagues as joint-ventured, commercial enterprises
with a corporate structure).
163
166
Compare 2000d(2)(201), with Financial Assistance, 34 C.F.R. 106.37 (2014), Athletics,

34 C.F.R. 106.41 (2014), and Anderson, supra note 47, at 33032 (describing the similarity
between U.S.C. and C.F.R.).
167 See discussion infra Part V.BC.
168 See 2000a(c)(3); Note, A Public Accommodations Challenge to the Use of Indian Team Names
and Mascots in Professional Sports, 112 HARV. L. REV. 904, 907 (1999).
169 2000a(b); 12 TEX. JUR. 3D CIVIL RIGHTS Discrimination in Places of Public Accommodation
15 (3d ed. 2015) [hereinafter Discrimination in Public Accommodation]; 15 AM. JUR. 2D CIVIL
RIGHTS Generally 223 (2015) [hereinafter CIVIL RIGHTS Generally].
170 2000a(b) (listing any motion picture house, theater, concert hall, sports arena,
stadium or other place of entertainment as places of public accommodation).
367
citizens claimed a civil rights violation for being denied access to motels
and restaurants, an athlete analogizing a motel and restaurant to a stadium
or sporting facility may argue that subpar facilities are equivalent to being
denied access, thereby violating their civil rights.171 A stadium is a public
accommodation, providing entertainment or exhibition, which necessarily
impacts commerce.172 However, there is no language in 42 U.S.C. 2000a
precluding discrimination in a public accommodation based on gender.173
Consequently, a civil rights claim alleging gender discrimination in a
public accommodation will not succeed under Title II.174
However, a professional athlete may still bring a civil rights claim for
discriminatory exclusion from a public accommodation under the
Americans with Disabilities Act (ADA).175 In Martin v. PGA Tour Inc., a
professional golfer argued that the PGA Tours policy of disallowing carts
at the third stage of the tour prevented his access to the fairways and
greens of its golf courses because his disability limited his walking
ability.176 The plaintiff alleged the defendant offered a place of public
accommodation and the ADAs demands of reasonable accommodations to
allow for the equal enjoyment of these goods, services and facilities to
those with disabilities were not met.177 The trial court agreed that the
defendants golf courses were public accommodations and preliminarily
enjoined the PGA from preventing the plaintiff from using a cart because
the cart was a reasonable accommodation.178 Even so, absent a qualified
disability, a professional athletes lack of accommodation based on gender
will not succeed under this statutes narrow qualifications; the solution is
171 Compare Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 24344 (1964), and
Katzenbach v. McClung, 379 U.S. 294, 296 (1964), with Martin J. Greenberg, Sports Facility
Financing and Development Trends in the United States, 15 MARQ. SPORTS L. REV. 93, 10304
(2004) (noting sports facilities have glass-enclosed luxury suites, premier seating, retractable
roofs, restaurants and microbreweries, and private clubs).
172 2000a(c). A place of entertainment takes the form of direct participation in an activity
or sport. United States v. Lansdowne Swim Club, 713 F. Supp. 785, 790 (E.D. Pa. 1989).
Courts have recognized other sporting facilities as places of entertainment. E.g., Olzman v.
Lake Hills Swim Club, Inc., 495 F.2d 1333, 1340 (2d Cir. 1974) (swim club); Brown v. Loudoun
Golf & Country Club, 573 F. Supp. 399, 402 (E.D. Va. 1983) (golf club); United States v. Slidell
Youth Football Assn, 387 F. Supp. 474, 482 (E.D. La. 1974) (youth football league).
173
2000a(b); Discrimination in Public Accommodation, supra note 169; CIVIL RIGHTS

Generally, supra note 169.
174 See sources cited supra note 173.
175 42 U.S.C. 12112(a) (2012); see Discrimination in Public Accommodation, supra note 169.
176 Martin v. PGA Tour, Inc., 984 F. Supp. 1320, 1322 (D. Or. 1998).
177 Id. at 1323.
178 Id. at 1326. The Supreme Court agreed with the trial courts decision and ruled the
plaintiff exempt from the walking rule. PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001).
368
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the promulgation of a statute for gender discrimination in professional

sports without these narrow classifications.179
3.
Title VII of the Civil Rights Act Does Not Provide

Adequate Compensation for Gender Discrimination in
Athletic Employment Situations
Title VII prohibits discriminatory actions in employment situations.180

At first blush, the statutes inclusion of the word sex makes it an
attractive avenue for professional athletes seeking redress for gender
discrimination; but the statutes retroactive approach to gender
discrimination in professional sports is disappointing.181 Although athletes
complain of an employers use of bona fide occupational qualifications as a
defense for discriminatory actions, the success rate of the defense is limited
because it is construed narrowly.182
Professional athletes do not use Title VII for gender discrimination
claims because it lacks the ability to shape gender discrimination law in
professional sports.183 The remedies for successful Title VII claims include
either retroactive monetary relief, injunctions, or both, aimed at curing
present discriminatory pains.184 This type of punishment for offenders, and
the relief provided to aggrieved individuals, is highly specific to the facts
and circumstances of a case, which is localized and central in its range.185
To reach a large market and prevent future discriminatory offences,
179
See supra Part IV; infra notes 18689 and accompanying text.
42 U.S.C. 2000e-2(a) (2012).
181 See id.; 2 ROBERT C. BERRY & GLENN M. WONG, LAW AND BUSINESS OF THE SPORTS
INDUSTRIES: COMMON ISSUES IN AMATEUR AND PROFESSIONAL SPORTS 315 (2d ed. 1993).
180
182
SHARP ET AL., supra note 104, at 113; see, e.g., Morris v. Bianchini, No. 86-0742-A, 1987 WL
11822, at *78 (E.D. Va. Feb. 24, 1987) (noting health clubs hiring of only males to maintain
macho image as unlawful); Press Release, EEOC Resolves Sex Discrimination Lawsuit Against
NBAs Phoenix Suns and Sports Magic for $104,500, U.S. EQUAL EMPT OPPORTUNITY COMMN
(Oct. 9, 2003), http://www.eeoc.gov/eeoc/newsroom/release/archive/10-9-03b.html (settling
lawsuit where employer attempted to restrict Zoo Crew to male members with athletic
talent).
183 See Beck, supra note 100, at 27879. Settlements offers may explain the lack of Title VII
actions. See Steven S. Gensler, 1 FED. R. CIV. P. 68 practice commentary (2015) (noting
settlement offers prevent an action from presentation in court because it occurs before trial
and often contain a nondisclosure clause).
184
BERRY & WONG, supra note 181.

Weingarten Realty Investors v. Miller, 661 F.3d 904, 910 (5th Cir. 2011) (stating a party
moving for an injunction must prove: (1) strong showing of success on the merits; (2)
irreparable injury absent a stay; (3) issuance of the stay will substantially injure other parties
interested in the proceedings; and (4) public interest favors a stay); Colleen P. Murphy, Money
as a Specific Remedy, 58 ALA. L. REV. 119, 14445 (2006) (referring to forms of damages or
money as specific relief).
185
369
Congress should amend Title VII so that when an employer discriminates

on the basis of gender, a mandatory injunction is issued and the employer
must train and educate its employees on proper non-discriminatory
practices.186 This proposals widespread application and its future-focused
implications is a step towards curing gender discrimination.187
Absent the proposed amendment and adequate compensation for
gender discrimination claims, professional athletes will continue to ignore
Title VII as a viable legal option.188 A new law tailored to address gender
discrimination claims in professional sports, will both retroactively and
prospectively compensate athletes and encourage future claims to help
shape the law in this area.189
C. The Equal Pay Acts Substantially Similar Work Qualifiers Are
Naturally Gender Discriminatory
Initiating a claim under the Pay Act is an unsatisfactory approach for
gender discrimination in professional sports because proving similar work
conditions is inherently gender discriminatory where the skills necessary to
play a sport vary among the sexes.190 The Pay Acts guarantee of equal pay
to all employees regardless of gender for substantially similar work arises
in cases where athletic coaches allege differences in pay between male and
female coaches.191 A complaint for unequal pay is difficult to prove because
the employer may justify its actions with a showing, by a preponderance of
the evidence, that the pay difference qualifies as a statutory exemption.192
The factors listed in the statute include: seniority, merit, quantity or
quality of production, or a factor other than sex.193 Courts also accept
market conditions, previous salary, exceptional experience, education and
186
Beck, supra note 100, at 27980.

Id. at 279.
188 See BERRY & WONG, supra note 181; Beck, supra note 100, at 27980.
189 See infra Parts VII.AB.
190 See infra notes 20004 and accompanying text.
191 See 42 U.S.C 2000e-2(a) (2012); GEORGE W. SCHUBERT ET AL., SPORTS LAW 109 (1986); see
also Bartges v. Univ. of North Carolina, Charlotte, 908 F. Supp. 1312, 131718 (D.N.C. 1995);
Clay v. Bd. of Tr. of Neosho Cty. Cmty. Coll., 905 F. Supp. 1488, 149293 (D. Kan. 1995); Deli v.
Univ. of Minnesota, 863 F. Supp. 958, 959 (D. Minn. 1994).
187
192
29 U.S.C. 206(d)(1) (2012); Cherrey v. Thompson, 805 F.Supp. 1257, 1262 (D. Md. 1992)
(explaining that once a prima facie case is presented, the burden shifts to employer under
Equal Pay Act to prove that differential in wages is justified by preponderance of evidence
under one of four affirmative defenses: seniority system; merit system; system pegging
earnings to quality or quantity of production; or any factor other than sex).
193
Barbara Osbourne, Gender, Employment, and Sexual Harassment Issues in the Golf Industry,
16 J. LEGAL ASPECTS SPORT 25, 64 (2006); see also 29 U.S.C. 206(d)(1) (2012); Strag v. Craven
Cmty. Coll., 55 F.3d 943, 948 (4th Cir. 1995).
370
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skill, and additional duties as reasons that qualify for factors other than
sex.194 These factors seem patently legitimate, however, factors such as
salary history, experience, and skill stem from past gender discrimination
in general.195 Outside the professional sports arena, men earn more money
than females, men are hired more often than women, and men dominate
over women in academia.196 These factors breed further gender
discrimination by affirmatively defending an employers discriminatory
pretext in hiring and salary decisions.197 As for professional sports, men
have a longer history of sports participation than women, which has led to
increased salary expectations, skill, and experience.198 The Pay Act cannot
minimize the head start men have over women in professional sports when
the act allows gender discrimination as an affirmative defense.199
Another shortcoming of the Pay Act is the requirement that the
positions are equal qualitatively; that is, employment is compared
categorically based on skills, effort, responsibility, and working
conditions.200 The skill and job responsibilities between male and female
194
See, e.g., Brinkley v. Harbour Rec. Club, 180 F.3d 598, 606 (4th Cir. 1999) (accepting the
male candidates salary history and superior experience as legitimate, nondiscriminatory
reasons for pay disparity); Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1074 (9th Cir. 1999)
(explaining that the mens basketball program, compared to the womens program, generates
more revenue, experiences more pressure from the media, and higher expectation to win from
the fans); Harker v. Utica Coll. of Syracuse Univ., 885 F. Supp. 378, 38990 (N.D.N.Y. 1995)
(justifying a nine-year experience difference between women's and men's basketball coaches
for difference in pay).
195 See Jeanne M. Hamburg, Note, When Prior Pay Isnt Equal Pay: A Proposed Standard for the
Identification of Factors Other Than Sex Under the Equal Pay Act, 89 COLUM. L. REV. 1085, 1102
(1989);
Women
and
Physical
Ability
Tests,
AM.
CIV.
LIBERTIES
UNION,
https://www.aclu.org/issues/womens-rights/womens-rights-workplace/women-and-physicalability-tests (last visited Apr. 7, 2016). But see Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat.
56; Hamburg, supra note 195, at 1093 (stating Congress intent with the promulgation of the
Equal Pay Act was to eliminate sex-based wage-setting practices).
196 See U.S. DEPT OF LABOR, WOMENS BUREAU, FACT SHEET 1 (2014), available at
http://www.dol.gov/wb/media/pay_secrecy.pdf (stating that in 2012, for every dollar a man
earned, a woman earned 77). Womens median earnings are lower than mens in nearly all
occupations, whether they work in occupations predominantly held by women, . . . men, or
occupations with a more even composition of men and women. Id. Accord U.S. DEPT OF
COMMERCE,
WOMENS
HISTORY
MONTH:
MARCH
2014
(2014),
available
at
http://www.census.gov/content/dam/Census/newsroom/facts-for-features/2014/cb14ff05_womens_history.pdf (citing the following statistics in 2012: women median annual
earnings $37,791, compared to men $49,398; women represented 47.4% of the civilian labor
force).
197

MICHAEL J. COZZILLIO & ROBERT L. HAYMAN, JR., SPORTS AND INEQUALITY 347 (2005).
199 29 U.S.C. 206 (2012); Violation of Equal Pay Act, supra note 90, 15.
200 Osborne, supra note 193, at 65; see also Szul, supra note 92, at 164.
198
371
athletes differ for biological and sociological reasons such as the physical
attributes of males versus females and the societal belief that male
performance is the highest level of human achievement.201 Therefore
because skill is measured on a male scale th[en] womens athletic skills
are deemed lower than mens.202
The Pay Act is more appropriate in employment settings, where skills
like communication, management, or technical abilities are not predicated
on ones gender.203 The enactment of a statute that is specific to each sport
without inherently gender discriminatory qualifiers offers an appropriate
law for a professional athlete with a gender discrimination claim.204
VI. Combatting Gender Discrimination in Professional Sports: The
Need for Legal Reform
A. The United States Gender Discrimination Laws Are Unremarkable
Compared to Gender Discrimination Prohibition in Professional
Sports in Other Countries
As the nation with the four largest professional leagues in the world,
the United States approach to gender discrimination in professional sports
is neither unique nor followed by other nations.205 Canadas Constitution,
201
See Kosofsky, supra note 12, at 239. There can be no equal comparison of men to women
for skills in sports such as strength, speed, accuracy, and throwing and hitting ability. See id. at
214. The same holds true for skills where female athletes thrive: grace, technique, poise, and
endurance. Id. at 23233. Physically, men have larger muscles, hearts, and lungs, whereas
womens sweat glands are more efficient, their bodies store more fat making womens bodies
heavier than mens. Id. at 214.
202 Id. at 239.
203 See id. at 240. There are many lawsuits filed by employees of professional sports
institutions but few by athletes. Lorna Lunney, Game Time for Civil Rights: Gender & Age
Discrimination in the Professional Sports Industry Is on the Table Again, LAB. & EMP. L.F. (Nov. 19,
2012), http://aulaborlawforum.org/2012/11/19/game-time-for-civil-rights-gender-age-discrim
ination-in-the-professional-sports-industry-is-on-the-table-again/ (citing a female employees
$3 million gender discrimination lawsuit against the NBA under Michigans Civil Rights Act).
204 See infra Parts IV.BC; cf. Reilly, supra note 120, at 64; see also SHARP ET AL., supra note
104, at 132 (illustrating the success of the CAS in handling disputes between athletes, athletic
organizations, and governing bodies through independent and totally objective arbitration).
See generally History of the CAS, supra note 120; infra Parts IV.BC (discussing the history of the
CAS and its success as a totally objective and independent athletic arbitration institution).
205 These leagues are the NBA, NHL, MLB, and NFL. Glenn M. Wong et al., Going Pro in
Sports: Providing Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment,
28 CARDOZO ARTS & ENT. L.J. 553, 555 n.4 (2010) [hereinafter Going Pro]. See generally Alfred
Dennis Mathewson, Black Women, Gender Equity and the Function at the Junction, 6 MARQ.
SPORTS L.J. 239, 240 (1996) ([T]he difficulty in defining gender equity results in part because
gender equity principles, rooted in equality jurisprudence, are applied to a setting in which a
372
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granting equal protection of the law to all citizens, is analogous to the Civil
Rights Act of 1964.206 In Europe, gender discrimination in professional
sports is geared toward combatting racial discrimination; while in India,
the Sport Authority of India (SAI), which governs sport culture in India,
corroborates Indias recognition of gender in sport.207
Compared to these countries, the United States is well behind the
curve.208 Like SAI, the Amateur Act promotes amateur competition at the
Olympic level and protects the interests of amateur, not professional,
athletes.209 Both the Canadian constitutional provisions and Title VII of the
1964 Civil Rights Act lack clear language reasonably related to protecting
professional athletes from gender discrimination.210 Unlike the IOC and
CAS, which specifically forbids all discrimination in the Olympic
Constitution and provides a sports supreme court, the United States
offers no such law or forum to hear professional athletes gender
discrimination claims.211
Now is the time for the United States to step up and lead the fight
against gender discrimination in professional sports by passing a law
specifically outlawing gender discrimination in professional sports.212
VII.The Proposal to End Gender Discrimination in Professional Sports
A proposed bill,213 set out in Exhibit A,214 and court enforcement of
normative goal is the attainment of inequality. The ultimate objective of athletics competition
is superiority.).
206 Compare Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act, 1982, c. 11 (U.K.), available at http://lawslois.justice.gc.ca/PDF/CONST_E.pdf (Every individual . . . has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, based on
race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.), with
42 U.S.C. 2000d (2012), and 42 U.S.C. 2000e-2 (2012).
207 See COUNCIL OF EUROPE PUBLISHING, SPORT AND DISCRIMINATION IN EUROPE 1317
(William Gasparini et al. eds. 2010), available at http://www.coe.int/t/DG4/EPAS/resources/
6722-4-ID8707-Sport%20and%20discrimination%20in%20Europe.pdf; Ministry of Youth Affairs

& Sports, Government of India, SPORTS AUTH. OF INDIA, http://www.sportsauthorityofindia.nic.
in/index1.asp?ls_id=831 (last updated Nov. 17, 2015) [hereinafter Ministry of Youth Affairs &
Sports, SIA]. But see CENTRE FOR GENDER EQUALITY ICELAND, SPORTS, MEDIA AND
STEREOTYPES: WOMEN AND MEN IN SPORTS AND MEDIA 79, 1416 (2006).
208
See Beck, supra note 100, at 24445.

36 U.S.C. 374 (2012).
210 See 2000d; 2000e-2; Canadian Charter of Rights and Freedoms, supra note 206.
211 OLYMPIC CHARTER, supra note 126, at 14; see History of the CAS, supra note 120.
212 See supra Part V.BC.
213 Titled after the bills enactment: The Professional Sports Act of 2015. See infra Exhibit A.
209
373
gender discrimination complaints215 in violation of the bill are necessary to

address the inadequate legal remedies currently available for professional
athletes.216
A. The Professional Sports Act of 2016
In order to address and eliminate gender discrimination in professional
sports, a new statute, titled the Professional Sports Act of 2016 (Sports
Act), should be enacted.217 The following sections discuss the important
provisions of the Sports Act and why this new law effectively combats
gender discrimination in professional sports.218
1.
Purpose and Jurisdiction
The purpose of the Sports Act is to enforce gender equality in all

aspects of professional sports.219 Not to be confused with other statutes or
bodies of law, this Act pertains exclusively to professional athletes and
issues of gender discrimination.220 Through the Sports Act, professional
athletes have the opportunity to bring a valid gender discrimination claim
at the federal level rather than rely on various inconsistent state laws that
often depend on where the association is domiciled and where the
discriminatory action occurred.221 As such, the Commission has exclusive
jurisdiction over all professional athletes, leagues, associations, and
franchises operating in the United States, and the law applied in all gender
discrimination matters will be the Sports Act.222
2.
The Language of the Professional Sports Act of 2015
The language of the Sports Act must include the word sex or
214
See infra Exhibit A (proposing a new bill prohibiting gender discrimination in

professional sports).
215
See infra Exhibit B (outlining a suggested complaint submitted to the court).

See supra Parts VVI.
217 See infra Exhibit A.
218 See infra Part VII.A.13.
219 See OLYMPIC CHARTER, supra note 126; The Organisation, supra note 128.
220 See, e.g., 29 U.S.C. 206(d)(1) (2012); 42 U.S.C. 2000d (2012); 42 U.S.C. 2000e-2 (2012);
29 C.F.R. 1620.27 (2012); 34 C.F.R. 106.37 (2012); 34 C.F.R. 106.41 (2012).
221 RESTATEMENT (SECOND) OF CONFLICT OF LAWS 1 (1971) (stating that conflict of laws
rules exists to resolve disputes between the states). But see Reilly, supra note 120, at 69; infra
Exhibit A.
216
222
See infra Exhibit A. Cf. 36 U.S.C. 220503 (2012) (endeavoring to resolve conflicts and
disputes among amateur athletes, national governing bodies, and amateur sports
organizations).
374
Vol. 50 | 347
gender as a ground for nondiscriminatory treatment.223 Although Titles II

and VI of the Civil Rights Act could qualify a professional athletes
discrimination claim, the omission of sex and gender renders these
statutes inapplicable because a gender-discriminated athlete is not a
member of a protected class.224
Additionally, to eliminate the Pay Acts unequal comparative factors,
the Sports Act makes no reference to categorical comparisons linked to the
physical attributes of the sexes.225 A subsection listing the skills and
responsibilities unique to each sport based on the history, rules, and
operation of the sport, offers a fair and equal comparison of employed
professional athletes.226
As such, the proposed statute reads as follows: No active or inactive
athlete in the United States shall, on the basis of sex, race, color, or national
origin, be subjected to any form of discrimination, denied any benefits of,
or excluded from participation in any program, activity, facility or
accommodation, or compensation related to the operation of professional
sports.227 By including the term sex, gender-discriminated athletes are
now a protected class.228 There is no reference to an employer or
employment relationship to allow for claims by professional athletes who
compete individually with no affiliation to any professional team or
league.229 However, the Sports Acts silence as to an employer-employee
relationship does not disqualify an athletes employment discrimination
claim if Title VII or the Pay Act is inapplicable.230
3.
Complaints, Resolution of Disputes, and Forms of Relief
An effective complaint must specify with particularity the incidents
223 E.g., 206(d)(1) ([N]o employer . . . shall discriminate . . . between employees on the
basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays
wages to employees of the opposite sex . . . .); see also infra Exhibit A.
224 See 2000d ([N]o person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.).
225 See infra Exhibit A. See generally COZZILLIO & HAYMAN, JR., supra note 198, at 587
(excluding factors such as height or weight of the athletes).
226 See infra Exhibit A. See generally COZZILLIO & HYMAN, JR., supra note 198, at 587
(proposing that separate events . . . have separate standards of skill and quality, but . . . pay
equally . . . .).
227
See, e.g., 42 U.S.C. 2000a (2012); 2000d; infra Exhibit A.

See 42 U.S.C. 2000a(c)(3) (2012); infra Exhibit A.
229 See infra Exhibit A. Cf. 29 U.S.C. 206(d)(1) (2012) (stating that an employer may not
discriminate against an employee); 42 U.S.C. 2000e-2 (2012) (discussing discrimination in the
context of employment practices).
228
230
See 206(d)(1); 2000e-2; infra Exhibit A.
375
giving rise to the alleged gender discriminatory actions.231 The accused is

given the opportunity to explain the basis for his or her actions.232
Opponents may argue that such a broad complaint will welcome claims
covered by other statutes or laws, thereby giving a complainant wide
latitude to shop around for the law most favorable to his or her position.233
As sole authority over professional institutions and athletes, the
Commission funnels clearly wage-related complaints to the Pay Act or
Title VII, and clear civil rights violations towards the Civil Rights Act.234
The Commission must resolve disputes through arbitration.235 In the
sports industry, arbitration is the go-to method for dispute resolution.236
Arbitration, compared to a judicial proceeding, offers a quick, inexpensive,
informal, and private disposition of a case.237 Informality and privacy cut
both ways, where private resolutions with no precedential value do not aid
in shaping the law, and informality may elicit imbalances in bargaining
power and force parties to accept unfair settlement agreements.238 Despite
these disadvantages, to maintain uniformity and predictability in
professional sports, arbitration is proper.239
The appropriateness of the legal remedy will vary based on the
circumstances.240 Monetary damage, both retroactive and prospective, is a
suitable award for discriminatory pay wages, deprivation of sponsorship
or endorsement opportunities, disparity in tournament winnings, or
231 See, e.g., MANUAL ON EMP. DISCRIMINATION, supra note 101; How to File, supra note 99;
infra Exhibit A.
232
See, e.g., 206(d)(1); Osbourne, supra note 193; infra Exhibit A.

This is similar to the concept of forum-shopping, where a plaintiff selects a state where
the law is more advantageous to their claim. See Walker v. Armco Steel, 446 U.S. 740, 745
(1980).
233
234
See 206(d)(1); 2000e-2; infra Exhibit A.

Arbitration is the final determination of a dispute by . . . persons selected by the parties
rather than by a judicial tribunal. MARTIN J. GREENBERG & JAMES T. GRAY, SPORTS LAW
PRACTICE VOL. 1 1.09(2)(a) (2d Lexis Publishing 1998); see infra Exhibit A.
236 GREENBERG & GRAY, supra note 235, at 1.09(1)(e) (noting arbitration is used in Major
League Baseball, the National Football League, and the National Basketball League).
235
237
Id. 1.09(2)(c); Entertainment and Sports, AM. ARB. ASSN, https://www.adr.org/aaa/faces/

aoe/commercial/entertainmentsports?_afrWindowId=150754w82g_308&_afrLoop=2238364226
236319&_afrWindowMode=0&_adf.ctrl-state=150754w82g_238 (last visited Apr. 7, 2016); see
also Lawrence Mortorff et al., Before Closing That Killer Deal: Considerations for Negotiating and
Drafting Appropriate Enforceable Arbitration Provisions, 2012 UCLA ENT. L. SYMP. SYLLABUS 47
(Mar. 2012), available at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_012247.
238
See Mortorff et al., supra note 237.

See id.
240 Compare Murphy, supra note 185, at 14445 (referring to forms of damages or money as
specific relief), with Beck, supra note 100, at 269, 27980 (discussing the appropriateness of
injunctions).
239
376
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inadequate media coverage.241 If money damages do not satisfy the

aggrieved party, an injunction (a court order commanding or prohibiting
an action) is proper for a complaint of unequal access to equipment,
accommodations, sporting facilities, or non-monetary opportunities such
as a tryout or seminar.242
The Sports Act allows professional athletes to bring claims related to
all aspects of professional sports, such as wage, endorsements, playing
surfaces, and equipment quality, where other statutes like the Equal Pay
Act and the Civil Rights Acts do not provide adequate legal options for
gender-discriminated athletes.243
B. The Tribunal for the Promotion of Gender Equality in Professional
Sports
The proposal to end gender discrimination in professional sports
includes a domestic tribunal, the Court of Equity in Professional Sports
(CEPS), to enforce the Professional Sports Act of 2016 and promote
gender equality in professional sports.244
1.
What the Tribunal Will Look Like and How It Will Operate
in the United States
CEPS, with disciplinary and rule-making authority, exercises exclusive

jurisdiction over professional athletes, professional leagues, and
association[s] with powers conferred by contract with the members . . . in
the United States.245 Initially, the tribunal will respond solely to gender
discrimination claims from professional athletes triggered by the Sports
Act.246 Similar to CAS, CEPS consists of members with sports knowledge
and legal training.247 In a formal trial-like setting, after discovery and other
241
See Murphy, supra note 185.

See BLACKS LAW DICTIONARY 904 (10th ed. 2014).
243 See Kosofsky, supra note 12, at 240; Lisa Pike Masteralexis, Title VII of the Civil Rights Act
of 1964, in SPORT LAW FOR SPORT MANAGERS 505 (Doyice J. Cotton & T. Jesse Wilde eds., 1997).
242
244
See infra Part VII.B.12.

See BLACKS LAW DICTIONARY 1738 (10th ed. 2014).
246 See infra Exhibit A. Depending on the success of the tribunal, its scope may be expanded
to coaches, and those employed by professional leagues and associations. See infra Exhibit A.
247 CAS, STATUTES OF THE BODIES WORKING, supra note 123; see also Reilly, supra note 120, at
65 (noting all CAS members must have legal training, general knowledge of sport,
competency in sports law and/or international arbitration, and the ability to communicate in
either French or English); List of Arbitrators (General List), TAS/CAS, http://www.tascas.org/en/arbitration/list-of-arbitrators-general-list.html (last visited Apr. 9, 2016).
245
377
pre-trial formalities, parties present their arguments to CEPS members.248

After the hearing, the tribunal issues an order or sanction to the parties,
which will have binding effect and future policy implications.249 CEPS also
drafts regulations and publishes industry guidelines to educate
professional sports participants and affiliates of the tribunals expected
conduct and practices.250
2.
The Advantages of a CEPS Hearing for Professional

Athletes Far Outweigh the Disadvantages of Ordinary
Litigation
The advantages of a CEPS hearing attract and encourage professional

athletes to bring gender discrimination claims.251 The cost of this one day
proceeding and minimal court filing fees addresses the complaint that a
lack of financial resources causes professional athletes to abandon
discrimination suits in United States courts.252 As well, the CEPS court
procedures are not complex; therefore professional athletes can represent
themselves and avoid the cost of an attorney.253 Of importance, the
members of CEPS hold legal degrees and possess sport knowledge, which
ensures that the athletes sport-specific complaints are disposed of in
accordance with the appropriate law, but also contemplates the challenges
present in each sport.254
Professional athletes with major endorsements and sponsorships shy
away from the publicity of a gender discrimination lawsuit in United States
courts fearing the termination of their endorsements for filing a
discrimination claim.255 An athlete pursuing a claim through the CEPS need
248 See Ann Wise, Louisianas Division of Administrative Law: An Independent Administrative
Hearings Tribunal, 68 LA. L. REV. 1169, 1193 (2008).
249 Gil B. Fried, The Legal System, in SPORT LAW FOR SPORT MANAGERS 5 (Doyice J. Cotton &
T. Jesse Wilde eds., 1997) (citing regulations promulgated by administrative agencies have the
force and effect of law).
250
See, e.g., CAS, STATUTES OF THE BODIES WORKING, supra note 123; OLYMPIC CHARTER,
supra note 126, at 1718.
251
See infra notes 25256 and accompanying text.

But see Lisa Bernstein, Understanding the Limits of Court-Connected ADR: A Critique of
Federal Court-Annexed Arbitration Programs, 141 U. PA. L. REV. 2169, 222829 (1993) (discussing
the costs involved in litigation).
252
253
See Wise, supra note 248, at 119293.

See, e.g., Kristin Knudsen Latta, The Role of Non-Lawyers on Administrative Tribunals: What
Lay Members Think About Law, Lawyers, and Their Own Participation in Alaskas Mixed
Administrative Tribunals, 31 ALASKA L. REV. 37, 40 (2014).
255 Cf. Michele Morris, Olympic Gender Discrimination, HUFFINGTON POST (May 25, 2011, 3:30
PM), http://www.huffingtonpost.com/michele-morris/olympic-gender-discrimina_b_
254
461592.html.
378
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not fear public judgment for instigating a gender discrimination claim

because a hearing at CEPS offers privacy and informality.256 However, the
benefit of a private hearing is mitigated in certain circumstances where lack
of some supervision or observation can lead to unfair practices.257
Despite the disadvantages of an informal court proceeding, the
advantages of a CEPS hearing such as cost, efficiency, and privacy make
this an attractive course of action for gender-discriminated professional
athletes.258
CONCLUSION
Surveying the legal options currently available to a professional athlete
wishing to bring a gender discrimination lawsuit, it is clear Title IX, the
Civil Rights Act of 1964, and the Equal Pay Act are inefficient and
inadequate. Professional athletes facing gender discrimination may file a
claim under these governing statutes with no guarantee of success because
these statutes narrow provisions exclude professional athletes. The Sports
Act and CEPS will prohibit gender discrimination in professional sports,
provide guidance to athletes and leagues, and will promote equality in
professional sports. As such, the Sports Act and CEPS are necessary to
change and encourage professional athletes to bring gender discrimination
claims.
EXHIBIT A
The text of the proposed bill highlights provisions from the Civil
Rights Act of 1964, Title IX, the Equal Pay Act, and the Constitution of the
IOC.259 The proposed bill is set out below:
AN ACT PROHIBITING GENDER DISCRIMINATION IN PROFESSIONAL SPORTS
This Act is cited as the Professional Sports Act of 2016.260
Preamble: The purpose of the Sports Act is to prohibit gender
discrimination against professional athletes and enforce gender equality in
all aspects of professional sports.261
Section 1. No active or inactive athlete in the United States shall, on the
basis of sex, race, color, or national origin, be subjected to any form of
discrimination, denied any benefits of, or excluded from participation in
256
See Wise, supra note 248, at 119293.

See Latta, supra note 254, at 4041.
258 See supra text accompanying notes 25155.
259 See supra Parts II.AC, III.B.
260 See supra Part VII.A.
261 See OLYMPIC CHARTER, supra note 126, at 14; The Organisation, supra note 128.
257
379
any program, activity, facility or accommodation, or compensation related

to the operation of professional sports.
Section 2. Definitions:
(a) A professional athlete means any person who accepts any form of
compensation, directly or indirectly, for his or her athletic participation;262
(b) A sporting event means any practice or training, exhibition,
game, tournament, all-star game, tryout, contest, or any event where a
professional athlete competes or receives remuneration;263
(c) An athletic facility means any location, tangible or intangible,
where sporting events are held, including privately and publicly funded
and operated facilities;264
(d) A professional association means any league, franchise, or any
sports organization that carries on professional sporting events;265
(e) A commission means the governing authority over all
professional associations in the United States and oversees gender
inequality issues that arise in professional sports.266
Section 3. Scope: This Act applies to all persons, corporations,
associations, and/or business entities in connection with gender
discrimination in professional sports in the United States. The Court of
Equity in Professional Sports applies the rules and regulations
of
the
various professional sports organizations as the governing substantive law.
If inconsistencies or ambiguities within the rules and regulations of these
sport organizations exist, the law of the state where the organization is
domiciled will control.
Section 4. Jurisdiction: This Act is valid in all states in the United States.
Section 5. Enforcement: The Court of Equity in Professional Sports is
charged with exclusive authority over all claims initiated through this Act.
262 Going Pro, supra note 205, at 559; see also CHAMPION, supra note 155, at 273; NCAA
MANUAL, supra note 152, art. 12.02.9 at 58.
263 36 U.S.C. 220501(b)(2) (2012) (defining an amateur athletic competition as a contest,
game, meet, match, tournament, regatta, or other event in which amateur athletes compete).
264
See Athletic Facility, THE FREE DICTIONARY, http://www.thefreedictionary.com/

athletic+facility (last visited Apr. 7, 2016) (defining an athletic facility as a facility for athletic
events).
265 Compare 36 U.S.C. 220501(b)(3) (2012) (defining an amateur sports organization . . .
[as] a not-for-profit corporation, association, or other group organized in the United States
that sponsors or arranges an amateur athletic competition), with 28 U.S.C. 3701(3)(A) (2012)
(defining a professional sports organization to mean a person or governmental entity that
sponsors, organizes, schedules, or conducts a competitive game in which one or more
professional athletes participates).
266
See supra Part VII.A.1.
380
Vol. 50 | 347
Section 6. Remedies: Any athlete injured by a violation of Section 1, is

entitled to file a complaint with the Court of Equity in Professional Sports.
Section 7. Enactment Date: This Act shall take effect on January 1, 2016.
EXHIBIT B
The following section is an example of a complaint submitted to the
CEPS alleging gender discriminatory practices in professional sports.267
I.
Description of the Action
This is an action under the Professional Sports Act of 2016, to prevent

gender discriminatory practices that negatively impact professional
athletes in the course of their athletic career and provide relief to affected
parties.268 Plaintiff [athlete] alleges the defendant [association, league,
teams, facility] engaged in gender-based discriminatory conduct in
violation of the Professional Sports Act.269
II. Statement of Claims
An effective complaint must state: (1) the affected individual or party is
a qualified professional athlete[s]; (2) the corporation and/or entity is a
professional sports league, professional sports association, or entity
carrying on professional sporting events; (3) that gender was the
motivating factor for the discriminatory treatment; and (4) an adequate
showing of a comparable situation with unequal distribution or allocation
between the genders.270
III. Relief Sought
The complaint must request that CEPS find the defendants gender
discriminatory conduct unlawful, and order a permanent injunction, but
not limited to other forms of relief as deemed appropriate by the
tribunal.271
267
See infra Exhibit B.IIII.

See OLYMPIC CHARTER, supra note 126, at 11; The Organisation, supra note 128; supra
Exhibit A.
268
269
See, e.g., Amended Complaint at 24, Coll. Sports Council v. Dept of Educ., No. 03-2588EGS, 2004 WL 3704452 (D.D.C. Jul. 30, 2004); Complaint at 15, Swanbeck v. Minn. State
Univ., No. C4-06-1747, 2006 WL 5616701 (Minn. Dist. Ct. Aug. 24, 2006).
270
271
See 42 U.S.C. 2000e-2 (2012); see also MANUAL ON EMP. DISCRIMINATION, supra note 101.
See supra notes 23536 and accompanying text.

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Why Is Your Grass Greener than Mine?

New England Law Review

inherently discriminatory factors rather than factors specific to each sport.

uring the primitive era, sports emerged as an activity to train

See ABRAMS, supra note 1, at 7.

professional athlete status.12 Past oppression and the underrepresentation

The History of Sports

See id. at 210.

See Kosofsky, supra note 12, at 218.

New England Law Review

categorized as low ranking, working class women.17 Despite these negative

looked on disapprovingly30 resulting in gender discrimination.31 An

Duncan et al., supra note 36.

New England Law Review

media coverage, sponsorship opportunities for professional female athletes

Introduction, Adoption, and Implementation of Title IX

In 1970, Bernice Sandler, a university teacher bypassed for a promotion,

Also known as the Javits Amendment. Paul M. Anderson, Title IX at Forty: An

be denied the benefits of, or be subjected to discrimination under any

Title IXs Three-Part Test of Compliance

Under the Javits Amendment, HEW proposed, and promulgated

20 U.S.C. 1681 (1972).

See id. at 107.

New England Law Review

1978, the DOE received nearly 100 complaints alleging discrimination in

Presidents, Elimination of Sex Discrimination in Athletic Programs (Sept. 1975), available at

Cohen v. Brown Univ., 809 F. Supp. 978, 989 (D.R.I. 1992).

Title IXs Applicability to Collegiate and Professional

Title IX has inspired many athletes to initiate lawsuits against

See Anderson, supra note 47, at 336.

See Kosofsky, supra note 12, at 211.

New England Law Review

II. The Legal Platforms and Remedies for a Gender Discrimination

See infra notes 8490, 99 and accompanying text.

Bally v. Northeastern Univ., 532 N.E.2d 49, 50 (Mass. 1989).

provide equal accommodations for both genders and that excluding

Title VII of the Civil Rights Act of 1964

Title VII prohibits employers from discriminating against their

New England Law Review

relates to an employers neutral employment practice [that] has had a

SHARP ET AL., supra note 104, at 107.

SHARP ET AL., supra note 104, at 108.

30A C.J.S. Entertainment & Amusement 2 (2015).

New England Law Review

amateur sports organizations.116 The Supreme Court determined that

http://usngbjobs.teamworkonline.com/teamwork/jobs/default.cfm (last visited Mar. 21, 2016)

upload/Code20201320corrections20finales20_en_.pdf (last visited Apr. 6, 2015) [hereinafter

OLYMPIC CHARTER, supra note 126, at 10102.

New England Law Review

IV. Gender Discrimination Continues in Professional Sports Today

See Kosofsky, supra note 12, at 234.

NBA, CONSTITUTION AND BY-LAWS OF THE NATIONAL BASKETBALL ASSOCIATION art. 2

New England Law Review

educational opportunities does not trigger Title IX.147 Title IX provides

See Brenden, 477 F.2d at 1298.

athlete.156 This focus on educating student-athletes and deterring

A Professional League Is Not a Federally Funded Program

Professional athletes alleging that their sporting facility is inferior in

New England Law Review

prohibition against discrimination in public facilities, the program or

A Professional Athlete Using a Public Accommodation Is

Even if a stadium or athletic training facility is considered a public

Compare 2000d(2)(201), with Financial Assistance, 34 C.F.R. 106.37 (2014), Athletics,