Name Image Likeness (NIL) deals—agreements allowing student-athletes to receive compensation for the use of their name, image, and likeness—are undoubtedly the current hot topic dominating conversations surrounding collegiate sports these days. Under the current guidelines, which are limited, collegiate athletes who secure NIL deals are typically being paid through collectives; that is, third-party businesses that are not directly affiliated with the universities and are not federally funded.
As a result, collectives are not obligated to follow the rules promulgated under Title IX, which protects people from discrimination based on sex in education programs or activities that receive federal financial assistance. However, depending on the level of involvement a school has with a particular collective, the school’s Title IX obligations may still be implicated. Moreover, even if a school’s relationship with a collective is not sufficient to trigger Title IX compliance, there are other internal school activities that may still be regulated. Regardless of how that litigation plays out, there are countless ways schools could be liable for NIL-related Title IX violations, most of which fall in gray areas that create endless uncertainty.
At the same time, the NCAA risks losing its relevance by continuing to fight NIL advances rather than embracing what could be a relationship for the greater good. In the months since the splashy announcement, there has been much conversation (and litigation) about conference realignment, antitrust issues, collective bargaining, and other related issues, but little substantive discussion about the interplay of NIL with Title IX of the Education Amendments of 1972. Title IX and NIL are inseparable even if not obviously compatible.
Rather than ignore or even stoke uncertainty, the NCAA could work with its member schools and athletes to create clear guidelines for internal programs. Such programs could exist in addition to third-party collectives and together pave the way for additional and meaningful opportunities.
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The win-win
If colleges start paying athletes directly and operating internal NIL programs, they would have to do so in compliance with Title IX. While adherence to strict rules can be difficult and expensive, all involved could benefit from greater consensus and clarity as to their respective rights and obligations. This could be especially beneficial for female athletes, who currently receive a disproportionately low amount of NIL compensation.
If schools proceed with internally managed, brokered, or otherwise supported NIL deals, they will have to, at minimum, provide equal opportunity to their athletes, regardless of gender. Given the possibility that there could be legitimate, non-discriminatory reasons for disparate pay in various circumstances, actual dollar amounts paid to men and women may not have to be equal in every case. Nonetheless, female athletes have already shown that their personal brands can flourish, even surpassing male athletes, despite receiving unequal NIL support and attention. One can only imagine how female athletes could thrive in an NIL world if they were supported equally by their schools.
The prize
As more female athletes are able to grow their personal brands, more opportunities will arise for both internal and third-party NIL programs. These opportunities will lead to benefits for all involved, and all individual athletes will have a better chance of setting themselves up for success beyond their time as student-athletes.
Whether the NCAA, collectives, or any other constituencies feel a moral obligation to support and elevate female athletes, it is undeniable that the application of Title IX to NIL programs will ultimately inure to the benefit of all collegiate athletes, regardless of gender.
