What is the Relationship between NIL, College Athletes, and Title IX?
March 23, 2023
NIL is an acronym for Name, Image, and Likeness and is used to refer to an athlete’s ability to profit off their celebrity. The NCAA previously had a long-standing rule against student athletes receiving NIL profits, instead limiting athletes to stipends and scholarships in order to maintain their amateur status. However, that changed in June 2021 when the Supreme Court held that the NCAA could not legally prevent college athletes from receiving any education-related payments.
After the Court’s ruling, the NCAA kept in place two major restrictions: students cannot play for pay and quid pro quo arrangements are not allowed, but it did not establish overall rules to govern NIL policies. Then in 2022, the NCAA Division I Committee on Infractions established a standard of review to determine whether a member school violates NIL rules. The Committee presumes the “quack like a duck” metaphor; if available information supports a violation, the Committee presumes that a violation has occurred. To overcome this presumption, the school must “clearly demonstrate” that all associated conduct complied with NCAA rules and interim NIL policies.
In a notable case since the new NIL rules, the NCAA alleged that the University of Miami women’s basketball team head coach violated recruitment rules when she did not consult with the school’s compliance department regarding her involvement with a booster; she was directly involved with arranging for prospects and that booster to meet in-person, off-campus, before the recruits had signed with the school; and the booster provided the prospects a meal. The coach was unable to clearly refute the allegations, and the Division I Committee on Infractions allowed the matter to be settled with a negotiated resolution. Because boosters are now heavily involved with prospects and student-athletes, it is important to keep an eye on similar situations that may result in impermissible booster conduct.
Institutions may also be confused about whether the whether NIL deals cause violations of Title IX. One primary area of concern centers on disparities in the number of NIL deals made and the dollar amount earned among male and female athletes. For instance, of the top 10 NIL earners for 2022, seven were male football players, two male basketball players, and one female gymnast. The number one player’s NIL valuation was $7.5M; two, $3.6M; three and four, $3.5M; five, $3.2M; six, $2.7M is the female; seven, $2.4M; eight, $1.8M; nine, $1.7M; and ten $1.6M. Simply put, males earned more than 10 times what females earned: $28.8M to males versus to $2.7M females.
Though these amounts earned are rare, the bigger deals clearly favor men’s sports and make it appear that female athletes don’t have the same opportunities as males. For this reason, in January, The Drake Group, a college athletics advocacy group, requested the U.S. Department of Education (DOE) and the Office for Civil Rights (OCR) to examine the relationship between NIL deals and Title IX and to provide guidance on how to determine whether an NIL deal implicates Title IX.
ICS provides a wide range of Title IX consulting services, including in athletics. As this NIL space continues to evolve, contact us if you’d like assistance with your institution’s Title IX compliance.