Re: Title IX
That's the crux of it...they explicitly stated that they were not deciding on whether the NCAA should or should not be covered by title ix:
"We do not address alternative grounds in support of Title IX’s application to the NCAA in this litigation, and leave resolution of those grounds to the courts below on remand."
And as such, specifically leave the legislation alone. NCAA vs. Smith is irrelevant.
No, it's not irrelevant. It is a specific ruling that Title IX does not apply to the NCAA itself under a hypothesis that the plaintiffs, presumably, thought was their best argument. That's pretty much the opposite of "irrelevant."
Based upon that ruling, if you want to argue that the NCAA is covered by Title IX, then you need to come up with some other way in which the NCAA is the recipient of federal funds. The Court didn't rule on any others because the plaintiff only alluded to the possibility of two other hypotheses and never actually developed them in any form that would constitute a legal argument. In fact, the plaintiff never did develop them before the lower courts.
However, we don't have to speculate as to what a court would rule on those two theories, because they have been litigated. The case
Cureton v. NCAA didn't make it to the Supreme Court, but it was ruled on by the 3rd Circuit. (Which, as an interesting sidenote, is the same circuit that ruled for the plaintiff in
Smith.) This was a Title VI case rather than Title IX and the rules for Title VI are different than for Title IX, so a part of it does not hold directly but that doesn't actually matter, as I'll get to. The 3rd Circuit ruled that neither possible method for claiming that the NCAA is a recipient of federal funds holds for purposes of Title VI.
One of those ideas was that, because the NCAA controls intercollegiate sports, it therefore inherits the Title VI restrictions of the member schools. The 3rd Circuit held that it does not. In language that makes it plain that the same ruling would apply to Title IX. The NCAA may set the rules but the member schools still control the choices. There's a legalistic definition of what constitutes control or autonomy here, so just approaching the question in what you think might be a common sense way isn't sufficient. So this hypotheses was rejected.
The second hypothesis was that, because the National Youth Sports Program received federal funds and the NYSP was controlled by the NCAA, the NCAA was therefore a recipient of federal money. The 3rd Circuit rejected this argument on the grounds that the regulations for Title VI specified that it was the individual program that received the grant that was covered by Title VI, not the entire institution that controlled the program. This is a difference between Title VI and Title IX, which explicitly states that the entire institution is covered. (A quick check suggests that the rules for Title VI have been changed since then and now apply to the entire institution.) So the receipt of money by the NYSP could have been the uncertainty that you are looking for, though it would still need to be litigated. However, that question is entirely moot because Congress hasn't appropriated any funds for the NYSP since 2005 and so the NCAA could no longer be considered a recipient of federal funds on these grounds.
So the hypotheses that you are saying the Court left open have either been litigated and found in the NCAA's favor or are based upon factual conditions that no longer exist. So far as I can tell, every significant hypotheses for why the NCAA should be considered a recipient of federal funds has failed. If you can come up with some other approach that has validity I'll be happy to listen but just throwing wild speculation at the wall to see if anything sticks isn't persuasive. Simply saying that the court has said that it is only ruling on the specific issues before it doesn't count; that's all that a court ever does. They're almost never going to say, "There is no possible theory that someone could raise that would cause us to hold differently." They'll only rule on the arguments actually made. But if something keeps getting rejected on every idea that someone does raise in court, it's hard to make much of an argument that the something is true.
Come up with some actual legal reasoning; I'm done doing your research for you.
There's lots of money available to the folks that could crack title ix and nobody has tested it because its rock solid.
And I would assume the NCAA knows that they are well within the scope of title ix. Their actions show that quite clearly. No lawyer worth a dime would encourage them to admit they are in scope though. American universities can't simply skirt major US legislation by having any third party break the law for them. If folks disagree, show me a similar case of breaking the law that is allowed.
Can you point to any examples of the NCAA, and not its member schools, behaving as if they are within the scope of Title IX? The biggest reason no lawyer would advise the NCAA to admit that it is within the scope is that courts have consistently ruled that it is not. If you disagree with me, point to a single instance of a court holding otherwise that was not overturned on appeal. Your personal idea of what you think should be illegal is irrelevant given that we have actual courts that have ruled.
