One of the biggest gaps in the new world of NIL was the Title IX standards and whether the new money flooding to athletes would be subject to the same gender-equity compliance as other things like facilities, roster spots, and scholarships. The Office of Civil Rights (OCR) in the Department of Education announced today that NIL pay is subject to Title IX standards, which sends a chill through NIL planning ahead of a crucial legal deadline.
The DOE released a fact sheet providing the first formal information on NIL and revenue sharing, confirming these will be subject to Title IX standards. This sheet clarified that money paid to athletes under ‘NIL’ umbrellas need to be considered the same as athletic scholarships in regard to gender-equity, regardless of if the money is coming directly from the school.
This document comes after thirty-two University of Oregon student-athletes brought a lawsuit against the school for “depriving its female student-athletes of equal treatment, equal athletic financial aid, and equal opportunities to participate in varsity athletics in violation of Title IX.” One of their primary complaints is the near-constant publicity the male sports, primarily football and basketball, receive and how this gives them increased opportunity for NIL deals.
The OCR document directly addresses this issue in their sheet, stating:
“A school’s obligation to provide equivalent publicity based on sex continues to apply in the context of NIL. For example, if a school is not providing equivalent coverage for women’s teams and student-athletes on its website, in its social media postings, or in its publicity materials, these student-athletes may be less likely to attract and secure NIL opportunities. In addition, if a school is publicizing student-athletes for the purposes of obtaining NIL opportunities, OCR would examine whether the school is providing equivalent publicity for male and female student-athletes.”
OCR specifically discusses NIL deals from the school and from outside entities. The fourth section of the sheet focuses on schools, saying “When a school provides athletic financial assistance in forms other than scholarships or grants, including compensation for the use of a student-athlete’s NIL, such assistance also must be made proportionately available to male and female athletes”
The document also discussed payments from booster-clubs, NIL collectives, and other donors, emphasizing that these types of payments are not exempt from Title IX standards simply because they aren’t coming from the school. “The fact that funds are provided by a private source does not relieve a school of its responsibility to treat all of its student-athletes in a nondiscriminatory manner.”
Read the full document from OCR here.
The release comes two weeks before settlement objections in the House vs NCAA case are due, and the lead attorney in the Oregon case, Arthur Bryant, told Sportico the sheet “makes clear our approach in the Title IX lawsuit is correct and strengthens our case. It also signals that the proposed settlement in House v. NCAA should not be approved.”
There is so much to unpack across this entire issue. Everything so far seems to have been one-sided, rulings in favor of the athletes, NIL? Check. School revenue? Check. But what role does the school itself play in making the athletes marketable? Are donors and tickets and television revenue coming in because of the athletes, or because of the school name on the jersey? Face it, unless you’re a slam dunk pro out of HS, your best marketing tool is your school. They have provided the platform, the competition, the TV exposure. The fans are rooting for the school. I think where the school is concerned they never should have been on the hook for House.
NIL was serving its… Read more »
So exactly, how do schools police NIL money that they are not involved in? Private businesses, contracts, etc. that the school is not involved in.
With the new administration taking over and their “anti-woke” and anti-DEI policies, will they strike down Title IX?
A judge today already threw out Biden administration extension of Title IX protections for LQBTQ+ students (reminder that there’s a lot more to Title IX than sports stuff).
The president would be hard pressed to end Title IX unilaterally. Would probably require a congressional action, and given that the Republicans in the senate who have historically been most willing to vote against the tide are women, that feels unlikely.
A president could sort of…tweak things, though that’s what the Biden admin tried to do and it didn’t work out. Kind of depends on how much judicial consistency is shown – something that’s kind of been eroded recently. For sure would at least kick off a long court battle.
I only… Read more »
I believe, sadly, the normative boundaries will not hold in the next 4 years. The incoming circus, replete with organ grinders & tin cup chimps, won’t care a whit about Title IX.
(Disclaimer: not a political position, merely a sober observation.)
The circus is actually leaving
This judgement may only last 5 more days….
Somebody help me out here… why are schools giving house case payments already to athletes if we’ve got over 2 months till it hits court? Like what happens if the whole case gets dismissed in court
They aren’t, as far as I know.
Athletes are receiving estimates, not actual payouts.
Meaning the allocation NIL money on a percentage of dollars? At a school like Texas, I think about 60% of students are female.
If so, this makes no sense. Football pays for everything. And they’re probably being allocated about 80% of a school’s NIL money.
If 60% of NIL money has to go to women, the backup shortstop on the softball team would likely earn more than most of the starters on the football team.
And to comply, all men’s sports but football and basketball likely will get zero NIL.
That’s so fair.
The original sin by NCAA & its institutions was to fail to bifurcate football from NCAA athletics. It’s always been a business adjunct of the member institutions & has never been a plain NCAA sport or could it ever be. There is no natural women’s sport offset to football & that point is exacerbated by football being a 100+ roster size sport. That is especially burdensome for institutions like Texas which are now materially over 50% femal student bodies institutions. As you wrote the compliance restrictions are intentionally irresponsible, irrational & just plain bad from an economics perspective. You’re right; football is the revenue center for the entire complex. The complex needs a better structure – spin off football from… Read more »
I can’t see how this is even close to sustainable. I understand regulating the institution, but I can’t imagine this would pass a judicial review. I feel like there are first amendment protections that we’re talking about when you’re forcing private parties to fund people that they don’t want to.
Clearly you have no legal background. The First Amendment does not protect NIL payments. Title IX is the law and has passed constitutional challenges. This is also not about private parties. It is about money in public institutions. Go back to school.
You may be right, but no one needs this level of snarkiness.
“The document also discussed payments from booster-clubs, NIL collectives, and other donors, emphasizing that these types of payments are not exempt from Title IX standards simply because they aren’t coming from the school.”
Directly from this article.
Additionally, the 1st does protect freedom of association and recognizes some monetary spending as a form of protected speech. Someone would have to challenge it, and the argument would have to be made.
Currently, the case law regarding spending is about political speech, but it wouldn’t be a stretch to extend that to NIL. What if an NIL collective or private doner created a deal regarding a political stance for a specific athlete to endorse. How will the government force that private 3rd party to have… Read more »
I don’t know… I appreciate your reply and wish we had more people with knowledge sharing factual information online. This “first amendment” reaction to everything people disagree with is out of control. And, clearly by people who have never even read the first amendment. The first amendment protects you from legal recourse by government. It doesn’t protect from Title IX, defamation suits, libel, slander or job loss due to acting like an asshole. Too many people think it’s the 1st is an Uno reverso card. It’s not.
There are a lot of situations I wouldn’t have imagined passing judicial review, but when you look at Supreme Court’s decisions over the past few years, who knows anymore.
The article, in attempting to summarize the OCR document left out an important quote regarding third parties:
“By contrast, OCR does not view compensation provided by a third party (rather than a school) to a student-athlete for use of their NIL as constituting athletic financial assistance awarded by the school that must comply with 34 C.F.R. § 106.37(c).”
When it goes on to describe that it doesn’t relieve a school from its obligations, it also says that it is a fact-specific query and doesn’t offer guidance.
I suspect that when a school works closely with a booster-run NIL collective to pay football players for example, that additional funding might be seen as impacting Title IX. On the other hand,… Read more »