Visiting columnist today is Professor Rick Burton of Syracuse University.
What if American intercollegiate athletics and the NCAA head for a major overhaul based on the recent 9-0 Supreme Court ruling in the Alston case and the NCAA’s stance on Name, Image and Likeness (NIL)? the potential for reformers to propose more opportunities to athletes with disabilities?
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Almost every practitioner in the sports industry is aware of the landmark decision to create a federal regulation called Title IX. This federal citizenship measure was enacted as part of the Omnibus Education Amendment of 1972 and enacted by then President Richard Nixon. This influential provision states: “No person in the United States should be excluded, denied benefits, or discriminated against on the basis of gender in any educational program or activity that receives federal funding.”
For sport, Title IX later led, often despite early opposition, to a tidal wave of female sport participation in high school and college, which indirectly led to growth on a professional level. Suddenly, through federal intervention, the NCAA institutions had to make it easier for women to enjoy the same educational benefits that men had long enjoyed – such as playing college sports.
What seems to have been forgotten from that Nixon era is another bill called the Rehabilitation Act of 1973. That bill (specifically Section 504) eventually led to the Americans with Disabilities Act (ADA) of 1990, signed by President George HW Bush became. The ADA statute made it clear that public and private institutions that receive federal financial aid may not discriminate “on the basis of a disability”.
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Translation? Similar to Title IX, the NCAA institutions, almost all of which receive government aid, must serve the needs of Americans with hearing, visual, or mobility impairments. This means that if an American in a wheelchair wants to play rugby or basketball competitively, the institutions, with certain exceptions, have significant obligations to promote “equal opportunities”. A notable analog was the professional golfer Casey Martin, who is known to have won a lawsuit with the PGA over his right to use a cart in tournaments.
Admittedly, this concept is difficult for higher education institutions to manage because adaptive sports (activities in which all competitors are put on an equal footing) are costly and do not actively seek out interesting exams. Nonetheless, many sports have long used systems where different skill levels could make “playing together” work.
Would you like examples? Good golfers can play with buffers, as a system allows the weaker player to reduce the number of fixed “strokes” after each round. Ski and dragsters also have timing systems that allow one racer to exit the gate earlier than the other.
In wheelchair basketball, each participant must use an adaptive version of a wheelchair, even if he or she can stand and walk after the game. The aim is to put all athletes on an equal footing.
Another possible solution is the Paralympics and Special Olympics, where each athlete qualifies based on an official (or formal) recognition of a disability. In wheelchair rugby, a classification system linked to functional mobility ensures competitive parity.
This classification arrangement is explained in the powerful 2005 documentation Murderball, in which a competitor details how players are categorized into different point classes based on their specific mobility area. There is a limit to the number of mobility points a team can put on the floor at the same time.
In the introduction to his book Law & the Contradictions of the Disabilities Rights Movement (2009), Samuel Bagenstos made “the [ADA] The law takes the concept of prohibited discrimination beyond willful and overt exclusion; it also treats failure to “take reasonable accommodation” as discrimination ”. Then he added, “Congress has recognized that the institutions and structures of society were designed without considering people with disabilities and that justice requires society today to make changes to fully incorporate them into the life of the community.”
That statement, to be honest, suggests that a great social force like the NCAA should immediately open its doors a little wider. For context, think of things this way: There were times when the NCAA didn’t allow colored athletes, women, international students, or transgender people to participate, even though their ultimate presence didn’t fundamentally change the sport. Race, gender or place of origin did not require a recodification of the rules of participation. Having an athlete in a wheelchair or a competitor with visual impairment does this.
Simply put, it appears that athletes with disabilities are one of the main remaining sources of NCAA discrimination. Given last month’s unrest over NIL, now is a good time for the NCAA, despite its many distractions and critics, to consider finally introducing “reasonable accommodation” for more members of our growing sports universe.
Living up to the intent of the Rehabilitation Act 1973 will not be easy. On the other hand, it was also not possible to grant NIL rights. And if there is a massive overhaul of the NCAA’s basic premise of amateurism, there may be room for the NCAA to offer more sports and more inclusion.
Burton is the David B. Falk Professor of Sports Management at Syracuse University and the former Chief Marketing Officer of the US Olympic Committee. The second edition of his co-authored book, 20 Secrets to Success for NCAA Student-Athletes, was released on August 2nd.
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