Title IX and Dollar Signs: Where the New NIL World May Be Heading

by Haley Dominique, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

As of July 1, 2021, new policy allows National Collegiate Athletic Association (“NCAA”) athletes to profit off their name, image, and likeness (“NIL”).1Michelle Brutlag Hosick, NCAA Adopts Interim Name, Image, and Likeness Policy, NCAA Media Ctr., https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx [https://perma.cc/D6GD-2GJG] (last visited Oct. 18, 2022). This is a monumental win for athletes who have been exploited at the hands of the NCAA since the founding of the organization, and seems to positively impact all athletes equally on its face.2Alicia Jessop & Joe Sabin, The Sky Is Not Falling: Why Name, Image, and Likeness Legislation Does Not Violate Title IX and Could Narrow the Publicity Gap Between Men’s Sport and Women’s Sport Athletes, 31 J. of Legal Aspects of Sport 253, 253-55 (2021), https://doi.org/10.18060/25602 [https://perma.cc/4BMB-WJTR]. However, this new NIL world could open up the potential for Title IX violations if institutions are not careful with the opportunities presented to its male athletes and not its female athletes. This article discusses the implications of NIL and Title IX within intercollegiate athletic programs. Section II discusses the Title IX and NIL. Section III discusses the different ways a university in the new NIL world could violate Title IX and ways to prevent that from happening. Finally, Section IV concludes with restating how easy schools could violate Title IX, and how this must be prevented in order to continue strides to provide female athletes with equivalent opportunities that male athletes have.

II. Background

In order to understand how the NIL world and Title IX intersect to create a potential Title IX violation, the concepts must be discussed individually. Subpart A of this section introduces Title IX and its history and impact on collegiate sports and subpart B introduces NIL and the immediate impact it has had on college athletics.

A. Title IX

Title IX of the Education Amendments of 1972 states: “No person in the United States shall, on the basis of 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.”320 U.S.C. § 1681(a) (2022). In other words, for an education program to receive financial assistance from the federal government, the education program must be run in a nondiscriminatory way.4Title IX and Sex Discrimination, U.S. Dep’t of Educ., https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html [https://perma.cc/F5EN-DGYD] (last visited Oct. 19, 2022). College athletic programs are incorporated in Title IX, and there are three broad, overarching categories that universities must comply with in a nondiscriminatory way regarding athletic programs: (1) student interests and abilities; (2) athletic benefits and opportunities; (3) and financial assistance.5Requirements Under Title IX of the Education Amendments of 1972, U.S. Dep’t of Educ., https://www2.ed.gov/about/offices/list/ocr/docs/interath.html [https://perma.cc/JCA8-4HMK] (last visited Oct. 19, 2022).

Contrary to what some might think Title IX does, institutions are not required to provide “equal” opportunity for student interests and abilities; athletic benefits and opportunities; and financial assistance.6Id. Rather, institutions are required to provide equivalent opportunity.7Id. This difference is important because this means that male and female locker rooms, for example, do not have to be identical.8Id. So long as the effect is insignificant, the differences are allowable.9Id. Even if the differences in the locker rooms are significant, institutions may still be compliant with Title IX if the reason for the disparity in facilities is nondiscriminatory.10Id. However, if the disparities of a benefit are either (1) “of a substantial and unjustified nature in a school’s overall athletic program;” or (2) “[the] disparities in individual program areas are substantial enough in and of themselves to deny equality of athletic opportunity” regardless if there is a nondiscriminatory reason, then an institution may be noncompliant with Title IX.11Id. Title IX can get complex, which is why there may be problems with institutional compliance once NIL is thrown in the mix.

B. NIL

The three words that make up the acronym NIL—name, image, and likeness—are all components of the overarching idea of the right of publicity.12NCAA Name, Image, Likeness Rule, NCSA, https://www.ncsasports.org/name-image-likeness [https://perma.cc/W2RE-7KG8] (last visited Oct. 19, 2022) (scroll down to “What does name, image and likeness mean? What is the right of publicity?”). Before July 1, 2021, student-athletes at NCAA institutions were not allowed to profit off their personal brand as a student-athlete.13Hosick, supra note 1. However, NCAA v. Alston changed the college athletics landscape.14NCAA v. Alston, 141 S. Ct. 2141, 2165-66 (2021). The Supreme Court ruled that the NCAA amateur rules that denied athletes eligibility to compete if they used their name, image, or likeness as a student-athlete were a violation of the Sherman Act.15Id. Some examples of profiting off a personal brand for student-athletes include agreeing to a brand deal with a company, promoting athletic lessons using the accolades earned at the institution, getting paid to autograph a photo, or even receiving a free meal at a local restaurant because an athlete’s team won a big game the night before. Now, in the new NIL world, student-athletes, coaches, administrators, and the personnel that work for the NCAA are navigating this poorly regulated area.16Lack of Detailed NIL Rules Challenge NCAA Enforcement, Assoc. Press/ESPN (Jan. 29, 2022), https://www.espn.com/college-sports/story/_/id/33173542/lack-detailed-nil-rules-challenges-ncaa-enforcement [https://perma.cc/886C-FVBJ]. The NCAA currently has no specific NIL bylaws,17The NCAA has an interim NIL policy, but it is not part of the bylaws. Hosick, supra note 1. and schools and athletes simply must adhere to the current NCAA bylaws and state specific NIL law when conducting NIL business.18Lack of Detailed NIL Rules Challenge NCAA Enforcement, supra note 16. Because the NIL realm is vague, issues could arise when schools are helping athletes with the new NIL world, particularly with how NIL and Title IX intersect.

III. Discussion: How Universities in the New NIL World Could Violate Title IX and How to Prevent Violations

Institutions must be conscious when involved in the NIL world. While good practice for these institutions is to invest in training, education, and help promote and facilitate brand deals and events for the student-athletes,19S.B. 2392, 112th Gen. Assemb., Reg. Sess. (Tenn. 2022). these institutions need to make sure Title IX is followed regarding these opportunities. Title IX is still the law, and institutions must comply regardless of the opportunity to cash in on male athletes that likely have higher brand deal potential than their female counterparts.20Erica Hunzinger, ‘It’s a Man’s World’: Male Athletics Leading Way in NIL Money, Assoc. Press (Jan. 27, 2022), https://apnews.com/article/entertainment-sports-business-washington-volleyball-83b597ad309c74e224faa030665a016b [https://perma.cc/54CC-R3NM]. See also Requirements Under Title IX, supra note 5. The “equivalency” standard that is required by Title IX does not mean that opportunities and benefits need to be identical. Id.

Training and education for student-athletes should be the number one priority for institutions in this new NIL world. Providing training in marketing, social media, contract negotiations, and finances will allow the athletes—whether the deals are large or small in compensation—to responsibly navigate this realm. Male athletes are likely to make more money than their female counterparts in the limited data gathered regarding NIL compensation.21See Huzinger, supra note 20. Regulation and true statistics are still not entirely concrete, but early rough percentages indicate that Division I male athletes received 67.4% of total NIL compensation to Division I female athletes who received 32.6%. Id. As a result, male sports will have more opportunities for significant NIL deals22Id. and will likely be targeted for these types of educational training courses provided by the university. While an institution is permitted to provide these types of trainings for their high revenue male sports, there likely needs to be a similar opportunity for the non-revenue female sports in order to comply with the benefits and opportunities area of Title IX as it relates to athletics.23Requirements Under Title IX, supra note 5. While true that an institution can point to a nondiscriminatory reason for an inequivalent opportunity to the opposite sex, if “disparities are of a substantial and unjustified nature in a school’s overall athletic program” it is in violation of Title IX regardless of the reasoning.24Id. While this determination of compliance or noncompliance would come down to a fact specific case-by-case analysis, institutions must proceed with caution and should ultimately provide equivalent benefits and opportunities for all athletes regarding training and education to avoid any potential Title IX noncompliance. 

Another problem that could arise regarding Title IX and NIL is when universities start getting involved in facilitating brand deals or developing relationships with third party entities.25LEAD1 Association, NIL and Collectives: The Title IX Question, YouTube (May 3, 2022), https://www.youtube.com/watch?v=tqyd9EJBr-U&t=2846s [https://perma.cc/D3SY-7JR6]. State laws are either being altered or lifted to allow student-athletes to profit off their NIL, and some are allowing institutions to become involved in facilitating deals.26See S.B. 2392, 112th Gen. Assemb., Reg. Sess. (Tenn. 2022) for an example of a state enacting this type of legislation. S.B. 2392 repealed the state’s law that denied student-athletes the opportunity to profit off their NIL and allows institutions to become involved with facilitating NIL deals. The more involved an institution is in these deals and the closer the relationship is to these third-party entities, the more likely Title IX violations could come into play if the institutions are neglecting female-athletes equivalent benefits and opportunities.27LEAD1 Association, supra note 25. Institutions are not required to push for their female athletes to acquire a large brand deal contract that is equal to a highly publicized male athlete at the institution. However, facilitating brand deals is like providing education and trainings, and would come down to a fact specific case-by-case analysis. To avoid any Title IX problems, institutions should put in equivalent effort into similar benefits regarding brand deal facilitating for its female athletes.

IV. Conclusion

Title IX was developed to lift women up and offer them the opportunities that were never available before. Strides in the past fifty years have brought women closer to the level and opportunities that men have had since the beginning of humanity, but there is still a large gap.28Jacob Richman & Alexandra Gopin, Title IX Has Not Meant Equality For High School Girls Sports, Cap. News Serv. (Apr. 11, 2022), https://cnsmaryland.org/2022/04/11/title-ix-girls-sports-equality/ [https://perma.cc/3XUX-R539]. NCAA member institutions must stay conscious and not become solely consumed by money when conducting business and becoming involved in NIL deals regarding its student-athletes. The goal at each of these institutions should ultimately be providing equivalent access to opportunities presented by the NIL world to all its athletes. Although this is a new and ever-growing area, disparaging treatment regarding NIL deals will become an issue in the coming years, especially due to the blatant sexism seen in sports historically for generations.29See Sexism In Sport, Women In Sport, https://womeninsport.org/about-us/sexism-in-sport/ [https://perma.cc/E6A7-ML6Y] (last visited Oct. 20, 2021). It is only a matter of time until NIL and Title IX collide and cause disruption in college athletics.


Cover Photo by Duffy Brook on Unsplash

Author

  • Haley Dominique received her bachelor's degree in Business Administration (2020) and a Graduate Certificate in Public Administration (2021) from Ball State University. She is interested in legal issues pertaining to mental health, economic development, sports, and social media.

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