What Title IX Fallout Might NIL Legislation Pose?

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Allowing a college student-athlete to make money from the use of their name, image and likeness has seen support from nearly every corner of the country, but the biggest challenge to the concept of amateurism in decades brings all sorts of legal questions. Forbes points to what it calls "a neglected area of the law" — Title IX — as posing potential headaches for schools mandated to keep treatment of male and female student-athletes equitable.

As reported by Forbes contributor Kristi Dosh, schools must offer equitable treatment of male and female student athletes in the areas of participation, financial aid and the provision of things such as equipment, travel, facilities, scheduling, recruitment, publicity and more. Opportunities need not be identical, but they do have to be equitable. Many have dismissed Title IX as a nonissue because payment would presumably be made directly from third parties to student athletes, but legal experts have a different take.

“There are some scenarios that seem to at least require further analysis before dismissing them as third party payments,” says Julie Roe Lach, of Church Church Hittle + Antrim, a group of attorneys with NCAA national office experience who advise institutions and individuals on Title IX matters. 

“For instance, I could foresee some approval process that includes institution involvement if and when student athletes engage with these third parties opportunities. Although no funds would be coming from the institution, the institution would need to administer that approval process in a way that meets Title IX and NCAA compliance obligations and ensure that there are equal standards set to review opportunities for males and females.”

“If that forthcoming legislation allows in any way for this to become a recruiting tool, Title IX tentacles will certainly connect dots to other sports and student athletes,” says Jeff Schemmel, president of College Sports Solutions, who is also a former Division I athletic director and an attorney who’s consulted with athletic departments on Title IX issues. “It is likely that the new legislation will attempt to keep this out of the coaches’ hands relative to recruiting, but the practicality of that is difficult.”

One area of potential impact is recruiting.

“If a local business offers a sponsorship deal to a high-profile prospect, and the school is aware of it — assuming this is all permissible under NCAA rules — there’s a question as to whether that school’s knowledge creates an obligation to try to ensure similar opportunities are offered for the other gender,” Roe Lach says. “Similarly, what if a booster, an institutional employee, or a trustee is also involved with the sponsor? For example, the institutional employee is on the board of a local charity. The charity wants to pay a student-athlete $500 to speak at an event. Does the institutional employee’s involvement bring the payment to the student athlete closer to looking like an institutionally driven payment?”

Outside influences could pose "a very real dilemma," according to Schemmel. “There is also a valid argument that the schools should step in and assist student-athletes in their pursuit of NIL rewards rather than having those student-athletes pursued and distracted by competing outside agencies and agents."

Another issue presented by Dosh is promotion and marketing.

“Title IX policy interpretations clearly point to the need for equitable promotion/marketing for both men’s and women’s programs,” says Dr. Lindsey Darvin, an assistant professor and gender equity researcher within the Sport Management Department at the State University of New York College at Cortland. “This lack of promotion or promotion that is not of the same quality for the women’s teams could directly influence the NIL earnings women student-athletes receive. Those teams with more promotions and higher level promotions will be in essence providing additional opportunities for those athletes to be recognizable.

“If these efforts are not equivalent, women student athletes could argue that their earning potential is in jeopardy. Women student athletes would be required to work harder than their men student athlete counterparts to promote themselves in an effort to benefit from their NIL, if the institution will not do this for their programs.”

Additional factors that may emerge include the quantity and quality of publications and other promotional materials — right down to the number of pages and the specified paper stock — as well as access to other publicity sources for men's and women's programs. Just as with affected athletic departments, the legal experts cited by Forbes are taking a wait-and-see approach.

“Title IX claims relative to NIL will depend greatly on what the new legislation looks like,” Schemmel told Dosh. “The legislation, however it looks, will also be a new area of interpretation for the courts and the Office of Civil Rights. If in fact that legislation will allow a school, an athletic department, or its representatives and employees to become involved in the process of securing monetization of a student athlete’s NIL, it will certainly get the attention of Title IX officials on a national scale.”

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