OSC Feature | Title IX in the World of NIL
This week's feature focuses on possible Title IX implications in the evolving world of NIL. Institutions and Athletic Departments should be aware of Title IX as it pertains to NIL
Title IX in College Athletics
History and Enforcement
Title IX of the Education Amendments of 1972 (“Title IX”) 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.” Title IX applies to all functions of a University or other institution receiving federal funding, such as through Federal Student Aid programs. As commonly understood today in collegiate athletics, Title IX ensures that Universities receiving federal funding must provide equal athletic opportunities based on sex. According to the Office for Civil Rights, equal opportunity in collegiate athletics is measured by three factors: the benefits, opportunities, and treatment given to men’s and women’s teams; how a school awards athletic scholarships and financial assistance; and how a school is meeting students’ athletic interests and abilities. More on these factors from the Office for Civil Rights is available HERE.
Enforcement of Title IX is assigned to the Office for Civil Rights, and any student, parent, guardian, coach, athletic director, or employee may file a complaint through their University’s procedures. Notable cases include Cohen v. Brown University, in 1996, which held that Brown discriminated against female athletes by discontinuing the gymnastics and volleyball teams. Four years later, LSU female students sought to force the University to add women’s soccer and softball. They succeeded in Pederson v. Louisiana State University.
Current figures regarding University compliance may be found HERE. Information on nearly every Public University can be found on that site, including participation, revenues, expenses, and coaches by sex.
Title IX & Name, Image, Likeness
Current Disparities in NIL Activity and Compensation
In the past few months, informational surveys and leadership changes at the NCAA level have brought Title IX into a number of discussions surrounding NIL. Opendorse, an NIL-focused marketing platform for athletes, conducted research on over 100,000 student-athletes looking for sex- and team-based pay disparities. The results, while perhaps not surprising, were certainly informative. For perspective, about 53% of NCAA Division 1 athletes are men. This gap grows in Divisions 2 and 3, where around 58% of athletes in both divisions are men. While the plain numbers would indicate a disparity in NIL compensation, they understate the vast discrepancy that actually results. From July 2021 to February 2023, approximately 61% of NIL activities are directed to men’s student-athletes. The gap is even larger in terms of NIL compensation, with men’s athletes receiving approximately 77% of total compensation. However, if Football is removed from the data, then women’s sports receive 60% of the NIL activity and nearly double their compensation level, from 23% to 42%. More facts and figures from Opendorse are available HERE.
On3, a college recruiting and NIL database, released information regarding NIL activity and payments from collectives, which already account for approximately 50% of all compensation to student-athletes. From the 23 respondents, On3 found that only 23% of student-athletes receiving payments from collectives are women. Although there are collectives specifically supporting women, such as the Lady Vol Boost Her Club at Tennessee, only 34% of collectives have engaged in or were created to implement NIL activities for women in collegiate athletics.
Industry Responses
As more states have changed or repealed their NIL laws, Universities have begun working even closer with school-specific NIL collectives. NCAA President Baker addressed this matter just last month, stating: “The Office for Civil Rights would say, right now, that if a a collective is affiliated — and there will be a discussion on what that means — then they need to be spending as much money on women’s sports as they spend on a men’s sports and as much money on on women athletes as they spent on men athletes.” He views disparities in NIL activity and compensation from collectives as one of many issues to be addressed in comprehensive federal NIL legislation.
Recently, The Drake Group, a think tank focused on equity and student-centered reform, wrote a letter to Federal policymakers and the Office for Civil Rights (“OCR”): “We do not write to suggest that OCR stem this flow of cash to college athletes, but rather to alert OCR that this cash is, with the blessing and/or cooperation of the 1000-plus universities in the NCAA, flowing predominantly to men. Such inequitable financial aid, treatment and benefits provided to men are a violation of Title IX.” Attorney Julie Sommer provided her approach to the issue: “Absent national uniformity, one easy reform that can be made right now at the state or institutional level is to simply require that all collectives provide funding and outreach to women athletes and teams. Not only would these changes respect Title IX, but they would be good business—for the schools and the athletes.”
Bart Lambergman, General Counsel and COO at Lead1, asked the Officer for Civil Rights to further define parameters for institutional assistance under Title IX. From a recent article by Lambergman, the defining question governing Title IX and NIL is whether the institution and NIL collective are separate entities. If they are, it appears quite clear that the NIL collective may choose to operate as they choose. If, however, they appear as one entity, then NIL collectives, and their unequal compensation models, may provide a basis for Title IX liability.
For a further discussion of the legal bases of Title IX claims and NIL, as well as recommendations for Athletic Departments, we encourage you to read THIS ARTICLE from Jonathan Israel of Foley & Lardner.