More than a year has passed since the NCAA adopted a policy permitting student-athletes to be compensated for their name, image, and likeness (“NIL”). Colleges and universities are now into their second academic year of implementing their approaches to handling NIL in their athletic programs. This blog post explores how the actions and practices of federally-funded schools implementing NIL policies may implicate Title IX of the Education Amendments of 1972.
Title IX aims to protect people participating in education programs or activities that receive federal financial assistance from discrimination on the basis of sex. It provides: “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.” The Department of Education’s Office for Civil Rights, which enforces Title IX, requires that federally-funded schools provide members of both sexes: (1) equal athletic financial assistance; (2) equal athletic benefits and opportunities; and (3) effective and equal accommodation of student interests and abilities. See 34 C.F.R. § 106.37(c), §106.24(c)(2)(10); § 106.41(c)(1). At least two of these areas pose potential Title IX implications with respect to implementing NIL policies: equal athletic financial assistance and equal athletic benefits and opportunities.
With respect to athletic financial assistance, Title IX requires federally-funded schools to provide reasonable opportunities for awards of financial assistance for members of each sex in proportion to the number of students of each sex participating in athletics.
In other words, while Title IX does not require schools to provide aid to one sex that is equal in dollar value to the amount provided to the other sex, it does require that the total amount of aid available to men and women be proportionate to their participation in athletics.
This also applies to financial aid that is provided in forms other than scholarship money, such as work-related aid or loans. The Office for Civil Rights has cautioned that “[a] disproportionate amount of work-related aid or loans in the assistance made available to the members of one sex, for example, could constitute a violation of Title IX.”
While schools are still precluded from actually providing the NIL deal to the student athlete (sometimes referred to as “pay for play”), many schools have begun actively facilitating the deals. For example, as reported by ESPN, LSU recently promoted a former compliance staff member to the position of “assistant athletic director of NIL and strategic initiatives,” who is responsible for “building tools to make it easy for fans and brands to connect with their athletes.” Several schools, including LSU, have also engaged with outside NIL consulting firms. As reported by Sports Business Journal, Altius Sports Partners has developed a program of placing an NIL “general manager” within the school’s athletics department to help facilitate NIL deals and act as an NIL resource for coaches and athletes. These actions could implicate Title IX issues if the school’s actions are construed as providing financial aid and/or assistance to the student athlete, and if a disproportionate amount of money in NIL deals is made available to members of one sex over the other.
With respect to equal athletic benefits and opportunities, Title IX requires schools to provide “equivalence in the availability, quality and kinds of other athletic benefits and opportunities provided to male and female athletes.” Mansourian v. Regents of Univ. of California, 602 F.3d 957, 964-65 (9th Cir. 2010) (internal quotation omitted). Sex-based differences in schedules, equipment, clothing and “other factors affecting participants in athletics” can serve as a basis for violating Title IX. Id.
A school could be in violation of Title IX’s mandate of providing equal benefits and opportunities to student athletes where a school’s actions could be construed as providing different opportunities to student athletes based on sex. For example, where a school facilitates NIL deals such that members of one sex secure the more lucrative or otherwise valuable deals, this action may violate Title IX. Or where a school facilitates NIL deals that lead to more benefits for one sex – such as more publicity, more athletic equipment, or more exposure to professional coaches – such could constitute a Title IX violation. The following factors could be important in deciding whether a Title IX violation has incurred: (1) the level of the school’s involvement in securing or facilitating NIL deals, as that impacts whether a court would construe the school’s action as providing benefits and opportunities, and (2) what specific financial assistance, benefits, and opportunities were made available to the student athletes and how they compare as between male and female athletes.
Read Part I of this NIL series here.