Kaplan Hecker & Fink Releases Independent Review and Recommendations around Gender Issues in NCAA Championships

August 3, 2021 – Kaplan Hecker & Fink LLP (KHF) is pleased to report that it has completed the first phase of its review for the National Collegiate Athletic Association (NCAA) relating to the gender equity issues that arose out of the NCAA Division I Men’s and Women’s Basketball Championships in March 2021.  A 100 plus-page written report of KHF’s Phase I findings has been delivered to the NCAA Board of Governors. At the request of the NCAA, KHF’s report is being made publicly available online here.

Kaplan Hecker’s report describes in detail various gender disparities in connection with the 2021 Division I Men’s and Women’s Basketball Championships, discusses how and why those inequities occurred, and offers recommendations for specific remedial actions going forward.  Accompanying KHF’s report is a similarly detailed report from Desser Sports Media calculating the estimated annual value beginning in 2025 of the NCAA women’s basketball championship as between $81 million and $112 million and outlining recommendations on how to unlock that value in the future.  KHF Partner Roberta Kaplan stated, “We are grateful to the hundreds of groups and individuals who provided us with valuable information and insights during this process.  We agree with the NCAA that it was important for the NCAA to make these findings public in order to foster the public discussion and follow-up action necessary to achieve gender equity.”

KHF’s report observes that despite the hard work done by dedicated NCAA staff, volunteers, and many others to safely convene the 2021 NCAA Division I Men’s and Women’s Basketball Championships during an unprecedented global pandemic, there were many significant disparities between the experiences of the male and female student-athletes at those tournaments, from weight rooms and COVID-19 testing, to the food, to the signage, to the outdoor recreation areas provided for the student-athletes.

The KHF report further explains that while these issues were readily apparent at the 2021 championships because of the simultaneous, parallel COVID-19 “bubbles” in Indianapolis and San Antonio, they were not new to the NCAA since they are the inevitable result of the current structure of the NCAA itself, which is designed to maximize the value of and support to the Division I Men’s Basketball Championship as the primary source of funding for the NCAA and its membership.  “With respect to women’s basketball, the NCAA has not lived up to its stated commitment to ‘diversity, inclusion and gender equity among its student-athletes, coaches and administrators,’” the Report concludes.

The Report also examines Division II and III basketball, finding that their gender equity problems are not nearly as extensive as Division I’s and making recommendations for improvement.

Kaplan Hecker’s investigative process was both completely independent and comprehensive, relying on thousands of pages of documents and interviews and forums with more than 400 groups and individuals. The NCAA cooperated fully with the investigation, and did not approve KHF’s report or change any of its findings or recommendations before it was issued. In Phase II of the review, KHF will use the information it has learned in Phase I, as well as new information about the other NCAA sports, and apply it to its review of the other NCAA championships. Phase II is expected to be completed this fall.

Key Findings:

Kaplan Hecker organized its review into the following four “buckets” of gender equity issues, suggesting concrete recommendations for how the NCAA can address each of them:

  • First, the NCAA’s current organizational structure and culture prioritizes men’s basketball over everything else, contributing to gender inequity.
    • In both practice and perception, women’s basketball essentially reports to and is subordinate to men’s basketball.
    • The NCAA resources allocated to men’s and women’s basketball differ significantly, even when taking into account the differences in the size of the tournaments. Men’s basketball has substantially more full-time staff and contractor support, and there are material disparities between the budgets for the men’s and women’s tournaments. 
    • The NCAA staff and committees for men’s and women’s basketball operate largely independently from each other in “silos,” with little strategic coordination or common purpose.
    • The NCAA lacks the infrastructure to review budgets, staffing, or any other aspect of the Division I Men’s and Women’s Basketball Championships in order to effectively monitor for gender equity.
    • Recommendations:
      • The NCAA should change the leadership structure of Division I basketball to prioritize gender equity and coordination between the men’s and women’s tournaments.
      • The NCAA should conduct a “zero-based” budget for Division I men’s and women’s basketball to ensure that any gender differences are necessary, appropriate, and equitable.
      • The NCAA should improve transparency and accountability, including by conducting both real-time and annual gender equity audits of the Division I Basketball Championships, as well as a public gender equity assessment after five years.
  • Second, the structure and terms of the NCAA’s existing media agreements perpetuates gender inequity, leading to significant differences in the student-athlete experience for men and women at the Division I Men’s and Women’s Basketball Tournaments.
    • The NCAA’s contract with ESPN (pursuant to which ESPN pays on average $34 million per year for the right to broadcast 29 NCAA championships, including Division I women’s basketball) significantly undervalues women’s basketball.
      • An independent analysis performed by expert Ed Desser concludes that the Division I Women’s Basketball Championship alone is worth somewhere between $81 and $112 million annually beginning in 2025.
    • The NCAA’s contract with CBS/Turner (pursuant to which CBS/Turner will pay on average about $1.1 billion per year from 2024-2032 for the exclusive right to broadcast the Division I Men’s Basketball Championship and to market and to sell the NCAA’s corporate sponsor program) is structured in a way that prioritizes support for men’s basketball to the exclusion of women’s basketball and other sports.
    • The involvement of corporate sponsors at the men’s tournament, and the synergies between the corporate sponsors and CBS/Turner, mean that the men’s championship has a meaningfully different “look and feel,” with professional quality events, venues, and broadcasts.
    • The disparate financial investment made by both sponsors and the NCAA means that NCAA women’s basketball players do not currently have the same championship experience as their male counterparts.
    • Recommendations:
      • The NCAA should ensure that items impacting the student-athlete experience at the championships are equitable. This does not mean that the championships need to be identical, but items that directly impact the student-athlete experience should be substantially the same. 
      • The NCAA should take steps to maximize value through gender equity in marketing, promotion, and sponsorship, including marketing the rights to the Division I Women’s Basketball Championship as a stand-alone property, using “March Madness” for both the Division I Men’s and Women’s Basketball Championships, and negotiating for a new tier of corporate sponsors.
      • In the future, the NCAA should hold a combined Final Four over the same weekend in the same city on at least a test basis for a number of years. This will require careful planning and implementation, but in light of the structure of the NCAA’s existing broadcast and sponsorship contracts, it is the only realistic way to obtain the same or similar level of corporate sponsorship and promotional synergies at the women’s championship, which is essential to the student-athlete experience. 
  • Third, the NCAA’s current revenue distribution model prioritizes and rewards investment in men’s basketball, but not women’s basketball, by allocating revenue based on its members’ relative performance at the Division I Men’s Basketball Championship. As a result, NCAA member institutions are incentivized to invest in their men’s basketball programs.  There is no similar financial reward or incentive structure with respect to the Division I Women’s Basketball Championship.
    • Recommendations: Over time, and in a way that minimizes disruption to NCAA members and their athletic budgets, the NCAA should modify its revenue distribution plan to account for gender equity. 
  • Fourth, certain disparities in participation opportunities that exist with respect to men’s and women’s basketball should be remedied.
    • Recommendations: The NCAA should provide an equitable number of participation opportunities, including by increasing the bracket from 64 to 68 with respect to the Division I Women’s Basketball Championship and by striving to offer financial, promotional, and other support for participation opportunities on an equitable basis.
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