The Next NCAA Rights Fight Should Be for Para-Sport Athletes

Today’s guest columnist is Professor Rick Burton of Syracuse University.

If American intercollegiate athletics and the NCAA are headed for a major overhaul due to the Supreme Court’s recent 9-0 decision in the Alston case and the NCAA’s ensuing hands-in-the-air stance on Name, Image and Likeness (NIL), does the potential exist for reformers to suggest increasing opportunities for athletes with impairments?

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Almost every sport industry practitioner is aware of the landmark decision to create a federal regulation called Title IX. This Federal civil rights measure was enacted as part of the omnibus Education Amendment of 1972 and signed into law by then President Richard Nixon. This influential provision stated “no person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

For sports, what Title IX subsequently produced, often despite early resistance, was a tidal wave of female sports participation in high school and college, which indirectly blossomed into growth at the professional level. Suddenly, due to federal intervention, NCAA institutions needed to make it easier for women to enjoy the same educational benefits men had long enjoyed—like playing intercollegiate sports.

What seems to be forgotten from that Nixon era is another law called the Rehabilitation Act of 1973. This legislation (particularly Section 504), ultimately led to the Americans with Disabilities Act (ADA) of 1990, signed by President George H.W. Bush. The ADA statute made clear public and private entities receiving Federal financial assistance could not discriminate “on the basis of disability.”

Translation? Much like with Title IX, NCAA institutions, almost all of which receive federal aid, must accommodate the desires of Americans with hearing, visual or mobility impairments. This means, with certain exceptions, if an American in a wheelchair wants to play competitive rugby or basketball, the institutions bear noteworthy obligations to facilitate “equal opportunity.” One notable analog involved professional golfer Casey Martin, who famously won a legal battle with the PGA regarding his right to use a cart during tournaments.

This concept is, admittedly, difficult for collegiate institutions to administer because adaptive sports (activities where all competitors are made equal) are costly, and audits of interest are not actively sought. Still, many sports have long used systems whereby differing skill levels could make “playing together” work.

Want examples? Good golfers can play with duffers because of a system that gives the weaker competitor a reduction of fixed “strokes” after each round is completed. Skiing and dragsters also have timing systems allowing one racer to leave the gate earlier than the other.

In wheelchair basketball, one adaptive version requires each competitor to use a wheelchair, even if he or she can stand and walk away after the game. The intent is to place all athletes on equal footing.

Another possible solution can be found in the Paralympics and Special Olympics, where every athlete qualifies based on an official (or formal) recognition of impairment. In wheelchair rugby, a classification system—tied to functional mobility—delivers competitive parity.

This classification arrangement is explained in the powerful 2005 documentary Murderball, where a competitor details how players are placed in different point classes based on their specific range of mobility. There is a limit to the number of mobility points a team can put on the floor at any one time.

In the introduction to his book Law & the Contradictions of the Disabilities Rights Movement (2009), Samuel Bagenstos made clear “the [ADA] statute takes the concept of forbidden discrimination beyond intentional and overt exclusion; it also treats as discrimination the failure to provide ‘reasonable accommodations’”. Then, he added, “Congress recognized that society’s institutions and structures have been designed without people with disabilities in mind, and that justice requires society to make changes today to include them fully in the life of the community.”

That statement, to be blunt, suggests a big societal force like the NCAA should immediately open its doors a little wider. To create context, think of things this way: There were distinct times when the NCAA did not allow athletes of color, women, international students or those identifying as transgender to participate, even though their eventual presence did not fundamentally alter the sport. Race, gender or place of origin didn’t require re-codifying the participation rules. Having an athlete in a wheelchair or competitor with visual impairment does.

Simply stated, it seems a major remaining source of NCAA discrimination involves athletes with impairments. Given last month’s upheaval surrounding NIL, now is as good a time as any for the NCAA, despite its many distractions and detractors, to think about whether “reasonable accommodations” should finally be introduced for more members of our growing athletic universe.

Living up to the intent of the Rehabilitation Act of 1973 won’t be easy. Then again, neither was granting NIL rights. And, if there’s going to be a massive overhaul of the NCAA’s foundational premise of amateurism, maybe there’s room for the NCAA to offer more sports and greater inclusion.

Burton is the David B. Falk Professor of Sport Management at Syracuse University and former chief marketing officer for the U.S. Olympic Committee. The second edition of his co-authored book, 20 Secrets to Success for NCAA Student-Athletes, was released on Aug. 2.