By Matthew A. Reed, Counsel, Thompson & Horton

Amateurism in intercollegiate athletics is dying. A combination of state legislation and federal court orders has resulted in a largely unregulated “Wild West” environment in which college athletes have gained an unprecedented ability to capitalize on their status by receiving payments for use of their names, images, and likenesses (“NIL”). Not surprisingly, most NIL payments seem to be flowing to men. What responsibility do educational institutions have to ensure gender equity in NIL payments to athletes in their sports programs?

Potential Title IX Implications of NIL Deals

An athletic department’s knowledge of, facilitation of, and certainly active involvement in, NIL-related deals may expose their institutions to Title IX liability.

The money for a collegiate athlete’s NIL deal come from third parties—such as a sportwear manufacturer or a local car dealership—that are unaffiliated with the institution. But, of course, the local car dealership is often run by an institution-adjacent booster. Moreover, boosters are organizing to form “collectives” to raise large amounts of NIL money and distribute it in systematic ways to ensure the retention of athletes that in turn boost the competitiveness of an institution’s athletic teams. These collectives often favor the football and men’s basketball teams, meaning institutions are at least aware of disparate gender outcomes in their athletic programs even if they don’t have an active hand in it.

But institutions’ involvement in NIL deals often extends beyond mere awareness. For example, each Michigan State University’s football and men’s basketball player received $500 per month in exchange for promoting on social media a mortgage company owned by a former MSU basketball star. The university facilitated this deal by actively assigning which social media posts were to be made by each athlete. Similarly, Georgia Tech dealt directly with TiVo to broker a deal that not only provided NIL compensation to each of its football players, but also upgraded the school’s audio/visual equipment.

In short, collegiate athletic programs are not only aware of, but facilitating—and sometimes directly benefiting from—NIL deals that favor male athletes. On one hand, this reality sits uneasily with Title IX’s requirement that colleges and universities accepting federal funds ensure gender equity in their athletics programs. On the other hand, Title IX never contemplated the breakdown of amateurism and or the regulation of college athletes’ commercial transactions.

Drake Group Urges OCR Guidance on Title IX Application to NIL Deals

Recently the Drake Group, a college sports reform organization, has raised the Title IX implications of the unequal distribution of NIL payments in a letter to the Department of Education’s Office for Civil Rights (“OCR”). Yet despite acknowledging that Title IX does not easily mesh with the new and rapidly developing context of commercialized college sports, the group did not seek revision of Title IX or its regulations. It instead simply urged the OCR to issue clear guidance as to when and how NIL deals violate existing Title IX requirements. Whatever the merits of that approach, OCR’s attention has now been drawn to what the Drake Group believes are Title IX violations resulting from NIL deals. Whether and how OCR responds remain to be seen.

If your institution is navigating these or other issues in the NIL landscape and you have any questions regarding Title IX implications, or any other Title IX athletics issue, please contact Matt Reed at mreed@thlaw.com or our Thompson & Horton Title IX team at TitleIX@thlaw.com.