The NCAA Shifts the Blame
By: Kacey McCann* Posted: 02/17/2022
Last week the National Collegiate Athletic Association (“NCAA”) Board of Governors voted to change the organization’s policy on transgender athletes’ participation in sports. Under the former policy, the NCAA allowed transgender female athletes to participate in any women’s sport after one year of suppression medication treatment, and transgender male athletes could receive a medical exception for treatment with testosterone. In contrast, the new policy allows for a “sport-by-sport approach” to these issues. Now, the NCAA plans to leave the policy decision-making on transgender sport participation regulations up to the prospective sport’s governing body. The reasoning given by the NCAA is that this new approach allows the NCAA to align with and strengthen the relationship between college sports and the Olympics.
Setting Up the Pitch
The NCAA’s decision came amidst the controversy around University of Pennsylvania swimmer Lia Thomas. But what does this policy change present to the public? Many see it as a “cop-out” and a way for the NCAA to avoid the liability of making decisions regarding participation by transgender athletes. But with the NCAA’s long history of being sued by athletes, this may be a way for the organization to shield itself from lawsuits.
Most recently, the NCAA lost in a lawsuit brought by athletes on an antitrust matter revolving around name, image, and likeness rights. As a result, this new policy may be a way for the NCAA to reduce their legal fees. In the 2019-2020 sports season, the NCAA spent $67.7 million on legal fees, although $37.9 million was spent just on the name, image, and likeness case.
Out on Second
The NCAA’s decision to essentially “outsource” the transgender athlete policies and wash their hands of liability has created a wide-scale uproar, potentially opened the organization up to further lawsuits, and caused the organization to gain critics from many fronts. One college admistrator, who volunteered for the NCAA LGBTQ+ diversity and inclusion program, withdrew following the NCAA announcement, citing “a devolving level of active, effective, committed, and equitable support for gender diverse student-athletes within the NCAA’s leadership.” Meanwhile, Chris Mosier, a transgender athlete and advocate, criticized the NCAA’s new policy noting that the NCAA’s previous policy had been in place for ten years and there was no need to change it.
This new policy also lacks the clarity that many athletes and schools were hoping to gain from the NCAA on what the set guidelines for transgender athletes would be. Rice University swim coach, Seth Huston, said he believes the NCAA has proven again “that it is not leading” and wants to be a “bystander waiting for other organizations to make tough decisions.” Meanwhile, Anne Lieberman, director of policy for Athlete Ally, said she could not say “whether the policy [is] a step in the right or wrong direction.”
Attempt to Avoid Discrimination Clutters the Field
However, the question stands on if the NCAA has now welcomed lawsuits concerning discrimination. In his comments about the policy change, Mosier noted that this new policy created confusion for schools and athletes. Recently, the National Labor Relations Board issued a memo stating that college athletes will be considered employees and that “schools, conferences, and NCAA” need to be aware of athlete’s rights. If the NCAA forces schools to adopt policies on a sport-by-sport basis, the door could open for a discrimination lawsuit over how the NCAA is requiring colleges to treat transgender athlete-employees more harshly in one sport over another. With the NCAA’s history of expensive litigation, this is certainly not the result the organization desired; nonetheless, it has put itself in a vulnerable position by not taking a clearer stance.
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2023, Villanova University Charles Widger School of Law
 See Board of Governors Updates Transgender Participation Policy, Nat’l Collegiate Athletic Ass’n (Jan. 19, 2022, 8:41 PM), https://www.ncaa.org/news/2022/1/19/media-center-board-of-governors-updates-transgender-participation-policy.aspx [hereinafter Participation Pol’y] (discussing NCAA’s Board of Governors vote in support of new transgender participation policy).
 See NCAA Transgender Policy Background, Resources, Nat’l Collegiate Athletic Ass’n (Apr. 26, 2021, 2:00 PM), https://www.ncaa.org/news/2021/4/26/ncaa-transgender-policy-background-resources.aspx (discussing NCAA’s former transgender athlete policy while explaining exact qualifications for transgender person to participate in NCAA sanctioned sport competitions); see also NCAA Inclusion of Transgender Student-Athletes, Nat’l Collegiate Athletic Ass’n, 1-38, 12 (Aug. 2011), https://ncaaorg.s3.amazonaws.com/inclusion/lgbtq/INC_TransgenderHandbook.pdf (providing former policy).
 See Participation Pol’y, supra note 1 (noting how NCAA’s new policy will differ from former policy in place since 2010).
 See id. (“The updated NCAA policy calls for transgender participation for each sport to be determined by the policy for the national governing body of that sport, subject to ongoing review and recommendation by the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports to the Board of Governors. If there is no NGB policy for a sport, that sport's international federation policy would be followed. If there is no international federation policy, previously established [International Olympic Committee] policy criteria would be followed.”).
 See id. (“The new policy, effective immediately, aligns transgender student-athlete participation for college sports with recent policy changes . . . from the United States Olympic and Paralympic Committee and International Olympic Committee.” (internal citation omitted)).
 See Billy Witz, As Lia Thomas Swims, Debate About Transgender Athletes Swirls, N.Y. Times (Jan. 24, 2022), https://www.nytimes.com/2022/01/24/sports/lia-thomas-transgender-swimmer.html (commenting on how hot topic of transgender athletes in college sports became major controversy due to recent record breaking by University of Pennsylvania’s swimmer Lia Thomas).
 See Kaylee McGhee White, NCAA’s Transgender Policy Change Proves It’s Losing the Debate, Wash. Examiner (Jan. 24, 2022), https://www.washingtonexaminer.com/opinion/ncaas-transgender-policy-change-proves-its-losing-the-debate (noting how critics of NCAA’s decision have found it as way for organization to cop-out of making hard decisions, avoid criticism).
 See Important NCAA Lawsuits: History, Athnet, https://www.athleticscholarships.net/important-ncaa-lawsuits.htm (describing history of lawsuits against NCAA).
 See Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2144 (2021); see also Steven Berkowitz, New Name, Image, Likeness Lawsuit Against NCAA Could Put Hundreds of Millions of Dollars at Stake, USA Today (June 15, 2020), https://www.usatoday.com/story/sports/college/2020/06/15/ncaa-lawsuit-over-athletes-images-likeness-puts-big-money-stake/3189283001/ (describing NCAA’s most recent legal battle brought against them by student athletes).
 See Owen Poindexter, NCAA Sticks Conferences with 90% of Alston Legal Bill, Front Office Sports (Aug. 17, 2021), https://frontofficesports.com/ncaa-sticks-conferences-with-90-of-alston-legal-bill/#:~:text=The%20NCAA's%20total%20legal%20fees,
I%20football%20and%20basketball%20players (noting NCAA’s extensive, monumental legal fees accrued due to name, image, likeness lawsuit, which NCAA ultimately ended up losing).
 See id. (noting entire year’s legal fees versus that of just one lawsuit).
 See White, supra note 7 (noting criticism to NCAA for out-sourcing their policy drafting to sport governing bodies, further commenting that washing their hands of issue does not necessarily mean it will go away).
 See Julie Kliegman, Diversity Facilitator Withdraws From NCAA Program in Wake of Association’s Trans Eligibility Change, Sports Illustrated (Jan. 24, 2022), https://www.si.com/college/2022/01/24/lgbtq-one-withdrawal-letter-dorian-rhea-debussy-transgender-eligibility (discussing Dorian Rhea Debussy, “associate director for diversity, equity and inclusion at Division III Kenyon College,” troubled by how NCAA decided to roll out new policy).
 See Adia Robinson, NCAA Criticized For Changing Policy On Transgender Athletes, ABC News (Jan. 21, 2022), https://abcnews.go.com/Sports/ncaa-criticized-changing-policy-transgender-athletes/story?id=82380905 (discussing comments of Christ Mosier, transgender athlete, advocate, who pointed out NCAA missed opportunity to update policy instead of “knee-jerk” reaction to current situation with Lia Thomas).
 See Jo Yurcaba, NCAA’s New Trans Athlete Guidelines Sow Confusion Amid Lia Thomas Debate, NBC News (Jan. 21, 2022), https://www.nbcnews.com/nbc-out/out-news/ncaas-new-trans-athlete-guidelines-sow-confusion-lia-thomas-debate-rcna13073 (noting NCAA’s new policy has caused more confusion than former policy despite NCAA claiming this new policy “preserves opportunity for transgender student-athletes while balancing fairness, inclusion and safety”).
 See Brittany Bernstein, Rice Swim Coach on Transgender Debate: ‘Compete as What You Were Biologically Born’, Nat’l Rev. (Jan. 25, 2022), https://www.nationalreview.com/news/rice-swim-coach-on-transgender-debate-compete-as-what-you-were-biologically-born/ (drawing comparison to NIL issue, adding “[NCAA governance] hoped NIL would continue to be suppressed and now they are scrambling to make it fit their construct. Now they sit on the sidelines with Transgender issues”).
 See Yurcaba, supra note 15. (noting NCAA has “advocates on both sides of the issue,” many transgender athlete advocates find this new policy alarming, feeling it provides more questions than answers, while also noting Anne Lieberman’s comment reveals she is unsure of whether this new policy will benefit transgender atheltes or hurt them).
 See Autumn A. Arnett, Stakeholders Applaud NCAA’s Re-Examination of Transgender Athlete Policies, Diverse: Issues In Higher Educ. (Aug. 4, 2021), https://www.diverseeducation.com/sports/article/15113620/stakeholders-applaud-ncaas-re-examination-of-transgender-athlete-policies (quoting NCAA advisor describing new policy as attempt to be “very deliberate and thoughtful” but quoting critic of NCAA policy, saying “NCAA has created rhetoric of inclusion in their institution that doesn’t correspond with their actions . . . .”).
 See Robinson, surpa note 14 (“It's going to be difficult for both the NCAA to manage compliance with these rules, as well as for athletes and coaches to figure out what they need to do to be in compliance with these rules.”).
 See Glynn A. Hill, College Athletes Can Now Earn Money and Other Benefits. Are Unions Next?, Wash. Post (Sept. 30, 2021) https://www.washingtonpost.com/sports/2021/09/30/nlrb-memo-ncaa-college-athletes-employees/ (noting Nat’l Lab. Rel. Bd. issued memo after Supreme Court decision in NCAA v. Alston that allows players to profit off name, image, and likeness, stating college athletes will not be considered employees threatening schools, conferences, NCAA over athletes rights).
 See id. (discussing how this new policy is similar to issue between states where there are different laws or regulations on transgender rights).
 See supra note 10 (noting NCAA has extensive history of massive legal bills, arguing new policy does not seem to curve possibility of lowering those numbers).