The world of college athletics is going through a seismic shift right now, thanks to the advent of NIL—the ability of athletes to market their name, image, and likeness and receive financial renumeration. Strictly speaking, NIL issues and Title IX do not have conflict. In practice, however, there is a huge swath of gray area where university administrators, athletic department officials, and coaches must proceed wisely if they are to avoid legal problems arising from NIL and Title IX.
The NIL Backdrop
The National Collegiate Athletic Association (NCAA) has had a long-standing rule preventing athletes from accepting compensation for anything beyond what was covered in the standard university scholarship. Programs found to have violated these rules were frequently sanctioned, with everything from probation to scholarship reductions to a ban on television and postseason play being used to keep university athletics as amateur.
But as certain sports—primarily college football—continued to generate huge revenues, there became a growing public belief that the players ought to share in that windfall, at least beyond the benefits offered in the standard scholarship. That growing public conviction was reflected in state legislatures taking unilateral action to say that yes, athletes in their states could market their name, image, and likeness and receive payment for doing so.
The NCAA’s hand was being forced, and subsequent court defeats led to a major decision in the summer of 2021. All athletes, regardless of what state they lived in, could negotiate NIL deals with any business willing to pay them. The world of college athletics was turned upside down.
It also opened the door to questions about Title IX impact. Universities are strictly obligated, under Title IX to “provide equal athletic opportunity for members of both sexes.”
How NIL will work in practice is still unfolding. Private booster clubs may be set up to raise money, and then use those funds to make NIL offers to players and potential recruits.
Football will likely draw the most attention, but men’s basketball—with the prestige involved with its NCAA Tournament every spring—will be included. While there will undoubtedly be high-profile women's programs with NIL deals for some of their stars, it seems reasonable to assume that the majority of NIL money will go to male athletes, primarily football players.
One might believe that if all the fundraising is done through private booster clubs with no involvement from the university, there is no Title IX issue. That might not be the case, though
3 Issues That Universities Must Be Aware Of
Even if universities aren’t directly funding NIL agreements with players, there are still at least three ways they could run afoul of Title IX rules.
The booster clubs that offer NIL deals will be a big part of the recruiting process. They will also be a big part of player retention, particularly with new NCAA rules allowing athletes to transfer schools without sitting out a year.
Given that, how realistic is it that a booster club conducts all its business without any contact from the university. Is the booster club really going to be able to recruit football players without input from the head coach?
In theory, it’s possible. In practice, it seems quite unlikely. And once any university official gets involved with advising the booster club at all, the school is involved. That means the same financial opportunities have to be offered to all sports.
Let’s say a running back for the popular college football team gets a NIL agreement with a local car dealership. The dealer believes the advertisement will be even more effective if the school logo is used. But that logo is trademarked, and the university has to give permission. As soon as that permission is granted, Title IX applies.
It's possible that university officials could work through this issue by setting a standard fee that any player wanting to use the logo in their NIL endeavors would have to pay, and then simply apply that equally across the board. Legal counsel can advise schools how to approach this on a case-by-case basis.
Athletes need to know how to access the tremendous financial opportunities that NIL offers them. Not everyone will be a star recruit, but players in all sports develop over their time in a program and grow in name recognition. As opportunities present themselves, the athletes will need to know how to negotiate contracts and navigate the complexities of these agreements.
The university can take proactive steps to protect themselves by having standard NIL classes and training sessions that are available to all sports.
A Brave New World
Some of the issues involved have straightforward solutions. But those solutions still need to be implemented. Other issues are going to be complex and require ongoing compliance reviews. And anytime an institution like college athletics goes through this type of change, there are going to be issues not yet anticipated that will become pertinent.
A steady hand at the wheel is invaluable. That’s what Parisi, Coan & Saccocio, PLLC offers. A nationwide firm that focuses exclusively on Title IX affairs, we’re here to help universities protect themselves and the integrity of their athletic programs. Call today at (737) 200-2332 or contact us online to set up a consultation.