Jensen: 'Roster management' bedevils Title IX compliance

A pair of panelists who spoke last week at Villanova's law school spend their careers working on Title IX gender equity issues from different angles. A third spends much of her time studying Title IX.

The panel on "Gender Equity in Sports: Analysis of Title IX and Effective Compliance Strategies," touched on 90 minutes worth of topics around the current college sports landscape.

They hit on some interesting corners of the issue. One was how the counting of participants, part of the test for gender equity compliance, is an area of increasing controversy and sometimes comes into play during litigation.

"Recently, I have seen a growing movement to use what is called roster management by the schools," said Terry Fromson, managing attorney of the Philadelphia-based Women's Law Project.

By this, Fromson meant having rosters for certain women's sports expand beyond the needs of those sports to compete simply to comply with Title IX. Fromson called the practice "a way of adding athletes to a squad list instead of adding new sports."

In its benign state, Fromson pointed out, roster management is adding walk-ons and additional team members to help a team.

"What we're talking about is abuse of roster management," Fromson said, mentioning how some schools are requiring minimum roster limits, "requiring coaches to fill those spots," while at the same time capping limits on men's teams.

The problem? Fromson talked about athletes not getting the same opportunity to compete, "not getting as much coaching. They may not get real uniforms."

But they count. Fromson talked of "ghost athletes" who may have signed up but never showed up and are counted on the roster for Title IX purposes.

Timothy O'Brien, partner at New England-based Libby O'Brien Kingsley & Champion (and brother of the late Dave O'Brien, former Temple athletic director), said he spent a whole session at an NCAA seminar on the subject of counting.

"I'm here to tell you this is the most complex subject in Title IX," O'Brien said.

Among the issues are that women running cross-country were told at one school, Fromson said, that they had to run indoor track and spring track so they could count three times.

"There's this over-counting that results," Fromson said.

O'Brien represents colleges on Title IX compliances issues. When he gets to a campus, O'Brien said, he has a quick question in his own mind: "Are they padding the numbers? . . . You pull out the squad list. Are they actively participating?"

Keynote speaker Val Ackerman, the Big East commissioner, hit at using common sense in a different way, noting that while Title IX has changed the landscape - and the arc of her own career - from so many angles and that compliance must be monitored, "it's important that this reflexive cry of equity can't be used as a substitute for creativity."

An example she used was the idea that all women's NCAA tournament games should be at neutral sites simply because the men do it. That would be a big mistake, Ackerman said.

The marketplace has to be part of the argument as well.

So one message of the day was that, while Title IX has brought about many positive changes from all sorts of directions, there needs to be common-sense application of it, not just a clever attempt to use the letter of the law.

A strange offshoot was brought up by one of the moderators, former Villanova athletic director Vince Nicastro, now associate director of the Jeffrey S. Moorad Center for the Study of Sports Law at the Villanova School of Law.

Nicastro pointed out that in reporting participant numbers to the Department of Education, males who are full-time practice players with women's teams are counted as females for reporting purposes.

Absurd, obviously. All the participants agreed on this and seemed confident it wouldn't hold up if cases reached litigation. (Nicastro said Villanova noted the number of these practice players in its filing; there was no attempt to deceive. The school just followed the guidelines.)

"The practice has been expanding," Drexel professor of sports management Ellen Staurowsky, also on the panel, said of using male practice players and counting them.

"It used to just be used in basketball. Now you see it in soccer."

The issue isn't whether male practice players should be used but how they are counted as women if they practice with women's teams.

"So, as soon as we go to a campus and look at [a Department of Education Equity in Athletics Data Analysis report], and it lists these people, we begin, 'Of course we're not going to count them. . . . They're not women,' " O'Brien said.

Without that advice, let's guess some schools would try.

"We have to go back to expanding opportunities. We have to go back to what the law says," O'Brien said.

mjensen@phillynews.com

@jensenoffcampus