The University of Nebraska-Lincoln Woman's Athletic Department is definitely opposed to the Tower and O'Hara Bills. We feel that any bill designed to weaken Title IX will be a. detriment to the advancement of equal educational opportunity. Women's Intercollegiate Athletics, as well as many other areas in education need Federal support in order to move closer to our country's goals of non-discrimination and equality. If the Tower and O'Hara Bills are passed, needed support would be taken away from Women's Athletics, therefore resulting in a definite setback of women in sport. Please include this letter in the formal record of the hearings on the Tower Bill, and on any other bill which would cut back on Title IX coverage. United States of America Vol. 121 Congressional Record PROCEEDINGS AND DEBATES OF THE 94th CONGRESS, FIRst session WASHINGTON, THURSDAY, JULY 10, 1975 Senate FAIR PLAY FOR INTERCOLLEGIATE ments along the lines of those made in ATHLETICS Mr. HRUSKA. Mr. President, a number of major higher education institutions, including the University of Nebraska, have expressed grave concern with the potential impact on revenue producing intercollegiate athletics of the new Department of Health, Education, and welfare regulations on Nondiscrimination on Basis of Sex in Education. These are the so-called title IX regulations. I have consulted at length on this matter with University of Nebraska Presi: dent D. B. Varner, with the University's athletic director, Bob Devaney and with head football coach Tom Osborne. These are good and reasonable men. They are not resisting title IX. They are positive in their views on how the University of Nebraska will comply. But they do fear greatly that football, the one sport which pays its own way at the university, will be seriously damaged by compliance based on the law and regulations in their current form. They believe that this will lead to a weakening of the university's total athletic program and that sports for both men and women will suffer. I was pleased to note this week that the House Education and Labor Committee has been considering an amendment to title IX which would relieve the concerns of the universities in question. The amendment has been recommended by the Subcommittee on Postsecondary Education, which has been conducting well-published hearings on the regulations pursuant to section 431(d) (1) of the General Education Provisions Act. That section requires congressional review of the regulations for consistency with the language and intent of title IX. Senators who were present in the 93d Congress will recall the amendment to title IX offered by the distinguished senior Senator from Texas on May 20, 1974, to exempt intercollegiate athletic activities to the extent that they provide gross receipts or donations to educational institutions that are necessary to support the sports or teams generating the funds. The Senate agreed to the Tower amendment, which, it was my pleasure to support by a statement on the floor of the Senate. Subsequently, the conference committee proposed and the Congress agreed to much more general substitute language, the so-called Javits amendment, which requires "reasonable provisions" in the sections of the title IX regulations covering intercollegiate ath letics. The Department of Health, Education, and Welfare has proceeded on the basis of the Javits amendment and title VI of the Civil Rights Act to dismiss argu support of the Tower amendment. These arguments were made vigorously to the Department during the comment period legiate Athletic Association and by many on the regulations by the National Colindividuals and groups who recognize the basic unfairness to revenue producing sports. The Department's final position on this matter is stated clearly in the summary accompanying the regulations transmitted to the Congress and printed in the Federal Register on June 4, 1975. I include in the RECORD pertinent excerpts from the Department's summary: A substantial number of comments was received by the Department on the various issues raised concerning the athletic provisions of the proposed regulation. Numerous comments were received favoring a proposal submitted by the National Collegiate Athletic Association that the revenues earned by revenue-producing intercollegiate sports be exempted from coverage under this regulation. Other comments were submitted against this proposal. The NCAA proposal was not adopted. There is no basis under the statute for exempting such sports or their revenues from coverage of title IX. An amendment to the Education Amendments of 1974 was introduced by Senator John Tower on the floor of the Senate specifically exempting from title IX revenue from revenue-producing intercollegiate athletics. 120 Con. Rec. S 8488 (daily ed. May 20, 1974). The "Tower Amendment" was deleted by the conference committee and was, in effect, replaced by the so-called "Javits Amendment" which became § 844 of Pub. L. 93-380 mandating that the Department pub11sh proposed title IX regulations which would include "reasonable provisions" covering intercollegiate athletics. Mr. HRUSKA. Mr. President, the Secretary of Health, Education and Welfare in testimony on June 26, 1975, before the Subcommittee on Postsecondary Education of the House Education and Labor Committee spoke candidly about the difficulties of interpreting title IX and of accommodating the many con-, cerns expressed by interested parties. He said that: concerns of a The language of the statute is general, providing no specific guidance as to Congressional intent. It has been extraordinarily difficult first, to interpret the intent of Congress and second, to accommodate the wide diversity of interest groups and individuals. . . . However, I believe that we have reached a middle ground in the final regulation which allows the flexibility desired by institutions while protecting the interests of students and employees of these institutions. Whatever may be the case for the middle ground for the regulations as a whole, I submit, Mr. President, that no middle ground has been reached on the question of the proper disposition of athletic revenues. The American Football Coaches Association and the National No. 108 Collegiate Athletic Association testified on June 17 and 20, respectively, before the House Postsecondary Education Subcommittee on the potential dangers to the goals of title IX. These organizations made clear that, first, if sports or mitted to plow back sufficient moneys teams generating revenues are not perto keep operating on a basis which would assure continued revenues, funds which would be available to achieve the aims of title IX will be lost. Second, and inseparable from the first point, there is the danger of a decline in the level and quality of major intercollegiate sports such as football, basketball and, in some region of the Nation, ice hockey. These sports provide entertainment for and elicit the interest and loyalties of millions of Americans. They are very much a part of the American scene and of the identities of the schools involved., I want to emphasize, Mr. President, that the NCAA is not asking that revenue producing sports be exempt from title IX, as some believe would be reasonable, but only that the revenues produced by a sport be, spent first on that sport. Is this not fair? If a sport produces revenues should not those funds be applied first to that sport at least at a level necessary to sustain it.. On Monday of this week the President of the United States considered the intercollegiate athletic issue sufficiently serious to meet and discuss the matter with the President of the American Football Coaches Association, coach Darrell Royal, of the University of Texas, in company with the distinguished junior Senators from Michigan and Oklahoma and the head football coaches of the University of Michigan and the University of Oklahoma. The current efforts of the House Education and Labor Committee to address Tower amendment issues raised in the Senate in May 1974 indicate that the other body is far from unanimous on the question. Mr. President, it is clear to this Senator that an amendment to title IX along the lines proposed in 1974 by the Tower amendment is the only fair course open to Congress. I hope that the House will offer soon an effective amendment to title IX that the Senate can accept and clear for action by the President. If that prospect does not develop, opportunities remain for Senate initiatives. by the Congress without passage of a The new regulations could be approved simultaneous amendment to title IX to forestall the dangers to revenue producing intercollegiate athletics. Those who directly face the dangers would prefer simultaneous action, of course. We -2 should not wait until the last minute to act. Although the new regulations would allow a 3-year adjustment process for intercollegiate athletic programs, the adverse impact on athletic budgets will be felt quickly. Major sports require long lead times for the recruiting of players and coaches. Schedules are arranged years in advance. If agreement cannot be reached quickly on an amendment, I would hope that the appropriate Senate committees would assure early consideration of the impact of title IX on intercollegiate sports which are a source of pride to all Americans. These sports have provided minority and disadvantaged young men and women with great opportunities to better themselves. No American would want to see that pride tarnished and those opportunities lost. To demonstrate that these concerns are not theoretical, I include in the RECORD three tables of data on the athletic budget of the University of Nebraska at Lincoln, the central campus in the State university system. UNIVERSITY OF NEBRASKA AT LINCOLN-ATHLETIC BUDGET DATA: REVENUE AND PROFIT FOR FISCAL YEAR 1973-74 Note: Guarantees to visiting teams is a percentage of the income from ticket sales when that team plays in Lincoln, Mr. HRUSKA. As the first table Indicates, football was the only University of Nebraska sport with positive net revenues in 1973-74. In that fiscal year theUniversity of Nebraska football team paid its own way and still provided $814.000 to finance other sports including women's teams. The total athletic program is operating on a barely balanced budget this year. Deficits are estimated for the 2 years immediately ahead. Should substantial portions of football revenues in excess of profits be diverted to title IX compliance, a serious decline in the quality of the football program would result. This will lead to falling receipts from ticket sales and donations and thus a shrinking pool of football revenues to support those sports which cannot pay their own way. The deficits now facing the university's athletic budget planners would quickly become unmanageable with a decline in football revenues. The implications are obvious, Mr. President. A profitable major sport or team which helps to support other athletic programs could be forced through title IX to become a liability to the university and the total athletic program. I do not believe that Congress intended this result when it passed title IX. Does Congress intend that cities destroy their tax base in the process of complying with laws and regulations governing other forms of discrimination? It is evident, however, from the statements of the Department of Health, Education, and Welfare and from testimony before the House Postsecondary Education Subcommittee that the "reasonable provisions" standard of the Javits amendment does not remove genuine fears about the impact of title IX on those major intercollegiate sports which do pay their own way. Senator PELL. Is Senator Bayh here? No. Senator Tower? No. Well, I think we will continue with the understanding that whenever they might come up they will be permitted to proceed. Now, we will move to the panel representing the NCAA, National Collegiate Athletic Association. On the panel are John Fuzak, president of the association, Stanley Marshall, secretary-treasurer of the association; and I believe certain others. STATEMENT OF DR. JOHN A. FUZAK, PRESIDENT, NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; STANLEY MARSHALL, SECRETARY-TREASURER, NCAA; KAROL KAHRS, ASSISTANT ATHLETIC DIRECTOR, UNIVERSITY OF ILLINOIS; BILL IRELAND, DIRECTOR OF ATHLETICS, UNIVERSITY OF NEVADA AT LAS VEGAS; LARRY ALBUS, DIRECTOR OF ATHLETICS, ST. LOUIS UNIVERSITY; SUE JONES, COORDINATOR OF WOMEN'S ATHLETICS, ST. LOUIS UNIVERSITY; ED SHERMAN, DIRECTOR OF ATHLETICS, MUSKINGUM COLLEGE, NEW CONCORD, OHIO; TOM HANSEN, ASSISTANT EXECUTIVE DIRECTOR, NCAA; PHILIP B. BROWN AND MICHAEL SCOTT, LEGAL COUNSEL, NCAA, WASHINGTON, D.C., A PANEL Dr. FUZAK. Thank you, Mr. Chairman. I am John Fuzak, president of the National Collegiate Athletic Association, and also a member of the faculty and administration of Michigan State University. On behalf of the NCAĂ I would like to thank the subcommittee for the opportunity to appear before you this morning. Accompanying me are several individuals responsible for the administration of intercollegiate athletics for both men and women, at five NCAA member institutions. We believe that for purposes of these hearings that the member institutions comprising this panel are reasonably representative to the total membership of the NCAA. They range in terms of student enrollment and magnitude of athletic budget from the smallest in the NCAA, or among the smallest in the NCAA, to among the largest. Some of the programs represented provide all or almost all of the costs of the program through their revenue producing sports, down to programs which do not provide the cost for their own sport, let alone supporting the total program. After I make my remarks, with your permission, Mr. Chairman, I intend to call upon each of the members of the panel for a brief commentary in terms of the impact, on the effect of the Tower amendment in relation to their programs. Allow me to introduce them at this point, if I may. On my right is Stanley Marshall, the director of athletics at South Dakota State University, and also currently the secretary treasurer of the NCAA. On my left, the second person over is Karol Kahrs, who is the assistant athletic director of the University of Illinois; and on my far right, Bill Ireland, who is the director of athletics at the University of Nevada, Las Vegas; and then Larry Albus and Sue Jones, respectively the director of athletics and the coordinator of women's sports at the University of St. Louis; and on the far left Ed Sherman, director of athletics at Muskingum College in New Concord, Ohio. Also with us are Tom Hansen, who is the assistant executive director of the NCAA; and Mr. Phil Brown, and Mike Scott of the law firm of Cox, Langford & Brown, our legal counsel here in Washington. The NCAA, on behalf of its member institutions has been studying and publicly commenting on the proposed title IX regulatory activity of the NCAA for more than 2 years. During this period the NCAA has at no time, contrary to popular belief, opposed the expansion of intercollegiate athletic opportunities for women. Indeed, the NCAA has encouraged and supported the development and expansion of women's athletic programs. We fully understand that the only issue before us is the modification of title IX as proposed in the Tower amendment. We assume for purposes of these hearings, without agreeing to the correctness of the assumption, that HEW's title IX regulations represent valid law. The purpose of our attendance then is to attempt to assist the subcommittee in its consideration of S. 2106 introduced by Senator Tower this past summer. As we read S. 2106 its essential and limited effect is to exempt from the nondiscrimination mandate of title IX, and therefore from its regulations, the gross receipts and donations generated by the intercollegiate athletic activity to the extent necessary to support that activity. Enactment of the Tower bill would thus mean, for example, that whatever may be the program-balancing requirements created by the title IX regulations at a particular institution, self-generated income of let us say the football team at that institution will not be taken into account in evaluating equality of opportunity existing in the intercollegiate athletic program to the extent, and only to the extent, of the amount of that self-generated income required to cover necessary expenses of the football program. Simplifying further, the football program at my institution, Michigan State, generates at gate receipts, television income, alumni donations, and other miscellaneous revenues, a total of $2 million annually, and $600,000 annually is required to operate the football program. Of the $2 million, $600,000 is exempt from the equal athletic opportunity requirements of title IX, but the remaining $1,400,000 is subject to the equal opportunity requirements of title IX, whatever they may be. It's also important to us to state our understanding of what the Tower bill does not say. It does not say if an intercollegiate team generates a nickel, or $5, or some other amount of revenue, that team or that sport is exempt from the requirements of title IX. To the contrary, it is our understanding that if the men's wrestling program of Michigan State University generates $10,000 in revenue and donations, and the cost of the wrestling program is $50,000, then only the $10,000 of self-generated wrestling revenue is exempt under the Tower bill from the application of title IX, from the equal opportunity principles. Consistent with that principal, the remaining $40,000 proposed to be spent on wrestling may only be devoted to the team, as the Tower bill is written, if expenditure of that additional $40,000 for men's wrestling can be justified along with amounts spent on other men's teams in equal opportunity comparisons with the amounts spent on women's teams. |