College Sports NIL Is Headed for a Collision With Title IX

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Today’s guest columnists are Arthur Bryant and Cary Joshi, attorneys at Bailey Glasser LLP.

Male and female athletes at colleges and universities throughout America now have a new opportunity to make a lot of money off of their name, image and likeness (NIL). But, if their schools don’t treat men and women equally, these colleges will have a problem: liability for discriminating against their athletes on the basis of sex, in violation of Title IX.

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Before July 1, 2021, activities such as appearing in advertising or promotions, selling autographs, or tweeting endorsements were violations of NCAA rules, and potential grounds for declaring a student ineligible to compete in college athletics.

That has all changed. With several state legislatures proposing or passing laws to allow college athletes to profit from NIL and a California federal court allowing athletes to pursue damages against the NCAA for its NIL rules, the NCAA saw the writing on the wall and relented. It suspended its NIL restrictions for all incoming and current students in all sports. Those athletes can now engage in NIL activities consistent with the laws of the states where their schools are located. College athletes who attend a school in a state without an NIL law can engage in all these activities without violating NCAA rules.

Since the NCAA made this change, there has been a flurry of headlines and social media posts about college athletes around the country signing up to promote everything from local fast food restaurants to their own apparel lines. This seems like a positive step for athletes, long denied any portion of the vast sums their athletic performances generate for the NCAA and many schools. It could benefit the NCAA and the schools, too. But potentially serious problems await colleges and universities that jump into the NIL mix and don’t treat male and female athletes equally.

Why? Title IX.

Passed almost 50 years ago by the U.S. Congress, Title IX says, “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.” (20 U.S.C. § 1681(a))

In college athletics, Title IX regulations require almost all schools to “provide equal athletic opportunity for members of both sexes.” (34 C.F.R. § 106.41(c))

“Equal athletic opportunity” includes equal treatment of male and female athletes throughout the athletic program. The regulations identify numerous non-exclusive areas in which colleges and universities must provide equal opportunity to male and female athletes—including equipment and supplies, facilities, travel, meals, coaching, training and tutoring. The list also specifically includes publicity and, with it, the potential for universities to run afoul of Title IX when they get involved in the world of NIL.

The stakes are high; the potential for making money is huge. Here is the issue: As soon as a university, its employees, or its booster clubs play any role in helping athletes earn money or make deals, the school is necessarily providing a benefit to them. And Title IX requires that male and female athletes be treated equally. If the university arranges or offers deals for men and not women, or vice versa, it has trouble under the law.

Here are some examples that could lead to Title IX violations:

  • The university trains its men’s basketball team on how to navigate the world of contracts and agents, but does not similarly train any women’s team.

  • The university allows the football team members to use its trademarked logo in an ad for a sports apparel brand, but not any women’s team members.

  • The women’s swimming and diving team coach holds meetings with various vendors to feature her team members on their website, but no men’s team coaches hold similar meetings.

  • The men’s baseball team members are paid by the university’s apparel partner to have jerseys sold with their names on the back, but no female athletes are offered similar deals.

The list of potential deals could go on and on. And most schools will often have no choice—they have to be involved.

How could schools not be involved? Most athletes with the potential to profit from the use of their name, image and likeness can do so because they play on the school’s team. As soon as an athlete appears in an ad in a uniform with a trademarked logo, the university is involved. The moment a sponsor or agent talks with a coach about a deal with a player on the school’s team, the university is involved.

So, universities, administrators, compliance officers, employees, boosters, athletes and supporters, pay attention: Male and female athletes have to be treated equally.

NIL is a new twist, but Title IX is still the law.

Bryant and Joshi have successfully represented female and male athletes in recent Title IX cases against La Salle University, Clemson University, Dartmouth College and many other colleges and universities nationwide.

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