Title IX’s Journey: From NIL Beginnings to the House Settlement (Part 1)

The transformation of college athletics over the past three and a half years has brought a myriad of challenges, with perhaps none greater than how Title IX compliance is achieved.  A post-House world will assuredly amplify these challenges. This series explores: 1) current and future Title IX challenges with name, image, and likeness (NIL); and 2) impacts of the inevitable House Settlement. In case you missed it, check out our recent publication for an overview of the House v. NCAA Settlement.

Title IX Athletic Compliance: What exactly is it?

Title IX is a federal anti-discrimination statute that prohibits institutions that receive federal financial assistance from engaging in sex-based discrimination in any education program or activity, including athletic programs.^[1] Institutions of higher education have three primary legal duties under Title IX athletic compliance: 1) providing equitable athletic opportunities for men and women; 2) offering equitable athletic scholarships to both genders; and 3) ensuring equitable benefits for male and female athletes. In the context of NIL, there is growing concern that NIL practices may disproportionately benefit men over women. But does this disparity constitute a Title IX violation? We’ll dig in.

The Early Days of NIL

Title IX issues began to surface as soon as NIL became permissible in July 2021. The disparity in both the number and value of NIL deals was evident, with male athletes receiving more lucrative deals than their female counterparts. Initially, this wasn’t a major concern because Title IX liability requires institutional action, and early NIL deals were primarily between athletes and third parties, with minimal involvement from coaches, staff, and administrators. However, as institutions became more involved in NIL and collectives emerged, claims arose that athletic departments were favoring men’s sports. This issue escalated with the loosening of rules, and as of August 1, 2024, the NCAA now explicitly allows institutions to provide assistance and services to athletes.^[2] Consequently, the first NIL-Title IX lawsuit was filed in December 2023, alleging that the institution did more for its men’s sports in NIL.^[3]

Given the landscape, the question of how to address Title IX in relation to NIL remains unresolved. Many believe that NIL falls under Title IX’s obligation to provide equitable benefits, particularly in terms of “publicity.” Institutions are required to offer equal publicity for its men and women athletes, which means staff members must fairly assist and provide support to both sexes with NIL opportunities.^[4] For instance, if an institution’s designated NIL staff member only helps male athletes (e.g., football, men’s basketball) secure NIL deals and does not devote similar time and effort to female athletes, it will raise Title IX concerns.

On the other hand, some believe that NIL money should be considered a form of athletic financial aid, which would subject it to Title IX’s strict proportionality standards, which require institutions to award athletic scholarships to men and women athletes in proportion (within 1%) to their participation rates.^[5] However, this perspective is less realistic because NIL payments come from external entities (e.g., businesses, collectives) rather than the institution itself, and thus do not meet the definition of athletic financial aid under Title IX.

Finally, note that Title IX regulations broadly prohibit sex discrimination, stating that “a school may not aid or perpetuate discrimination by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit, or service to students or employees.”^[6] The Office for Civil Rights (OCR) considers a variety of facts when determining whether an institution is providing significant assistance to an outside organization, including but not limited to: 1) financial support, provision of tangible resources (e.g., staff, equipment, and facilities); 2) intangible benefits (e.g., recognition and approval); 3) the terms under which the institution provides similar privileges and resources to other organizations; and 4) whether the relationship is occasional and temporary or permanent and long-term.^[7]

This means that if an athletic department supports collectives – especially collectives that only provide NIL deals to one sport – they must ensure their practices do not favor one sex over another. Simply claiming that collectives are third parties and are independent from the athletic department may not be sufficient to fend off a Title IX claim. OCR indicated that a school district might be seen as providing significant assistance to an organization in the following scenario:

“A school district [or higher education institution] encourages students to contact its administrative office to register for participation in an outside organization’s program and allows the organization to use the school district’s facilities (when those facilities are not otherwise open to the public).”

Therefore, if athletic administrators and coaches are encouraging athletes to contact and enter into deals with a collective that discriminates based on sex, and the collective receives special access or benefits to the athletics department, it could be considered “significant assistance,” resulting in a potential Title IX inquiry. That is why it is crucial for institutions to ensure collectives pay the going rate for using the institution’s facilities and other benefits, and to enter into standard sponsorship agreements with collectives.

Overall, to avoid the risk of Title IX complaints, institutions should monitor staff involvement in NIL activities to ensure that men and women athletes are treated similarly. Stay tuned for Part 2 of this series, which will examine what is on the horizon: Title IX implications of the House Settlement.

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[1] “No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.” 34 C.F.R. § 106.41(a).
[2] NCAA Division I Bylaw 22.1.1.
[3] Schroeder et al. v. University of Oregon, No. 6:23-cv-01806 (D. Or.) (beach volleyball and women’s club rowing athletes filed a class action lawsuit alleging that the University of Oregon violated Title IX through its "vastly superior treatment" of football players in comparison to female student-athletes. This case is ongoing.)
[4] 34 C.F.R. § 106.41(c)(10).
[5] Dear Colleague Letter: Bowling Green State University (July 23, 1998), last accessed November 10, 2024.
[6] 34 C.F.R. § 106.31(b)(6).
[7] Dear Colleague Letter: Voluntary Youth Service Organizations (December 15, 2015), last accessed November 10, 2024.