As settlement talks ramp up in the blockbuster
House v. NCAA antitrust case, one of the most significant unanswered questions is how a revenue-sharing model will operate within the parameters of
Title IX.
The 52-year-old federal law that protects students from sex-based discrimination at any school that receives federal funding stipulates schools must provide male and female student-athletes with equal treatment and benefits.
What will that mean in a new world in which schools can potentially share upwards of $20 million with athletes? Even among legal minds, there is no consensus.
“There is not a clear answer on whether Title IX applies to market-based payments to college athletes, whether those payments are for
NIL rights or athletic performance,”
Mit Winter, a college sports attorney with
Kennyhertz Perry and board member for the players’ association
Athletes.org, told On3. “You’ll get different answers depending on who you talk to, and there are legal analyses going both ways.”
Bay Area-based
Arthur Bryant of
Bailey & Glasser, LLP – who has represented more women athletes in Title IX litigation against schools and universities than any lawyer nationwide – said that institutions, conferences and the
NCAA need to be aware that whatever revenue-sharing model is implemented, Title IX requires that female and male student-athletes receive equal treatment and benefits.
Under Title IX, Bryant told On3, when it comes to “straight-out payments” – like scholarship dollars – “equal” means proportional.
“If 60% of the student-athletes are women and Title IX applies, they basically need to receive 60% of the revenue-sharing dollars shared,” said Bryant, who is currently representing current and former
Oregon athletes in a class-action Title IX
lawsuit.
Bryant added if a revenue-sharing model does not provide equal treatment and benefits, “they will be held accountable.”
Will gender disparities grow even wider?
Just Thursday, the
U.S. Government Accountability Office released a
report that underscored how schools nationwide routinely violate Title IX compliance.
The report showed that, during the 2021-22 academic year, women accounted for 56% of the undergraduate population but just 42% of the student-athlete population. Institutions that receive federal funding are required to offer athletic participation opportunities for men and women that are proportionate to their enrollment numbers.
In addition, the report showed that the
U.S. Department of Education’s Office for Civil Rights rarely opens Title IX investigations of schools on its own and that there are long delays in the OCR’s communication with schools that are being monitored following investigations.
Julie Sommer, executive director of
The Drake Group Education Fund, is concerned about schools maintaining Title IX compliance in a revenue-sharing ecosystem because she says there’s
already an absence of an equal playing field. Cash for education [scholarships] and cash for NIL is financial aid, she said, and the use of revenues that must equally benefit male and female athletes.
“We know most institutions are already not in compliance with Title IX in opportunities, scholarships and spending,” Sommer told On3. “It’s easy to see how the additional funding and support available to college athletes – which is a good thing – could make those disparities grow even wider with revenue sharing. Creating wider disparities isn’t the direction we should be going in college sports when we’re trying to make it more equitable.”
Schools will need to share an equal amount of dollars with female and male athletes to remain Title IX compliant, she said. For instance, if a so-called cap is $20 million, will $10 million need to be shared with female athletes?
Will schools fulfill Title IX requirements?
Sommer said the Title IX proportionality requirement is female athletic participation opportunities equal to the percent of full-time undergraduates in the student body, which must be achieved first if the institution is not in compliance. Then, financial aid is distributed in proportion to the percentage of male and female athletes. This obligation is always males in the aggregate and females in the aggregate – never a sport-to-sport comparison, she added.
“When you introduce this level of revenue into the equation, it’s clear institutions could run into new problems with legal compliance,” Sommer said.
In Winter’s view, if Title IX factors for college athletics are strictly applied to market-based payments, Title IX does not apply to those payments. But there won’t be a firm answer until the
U.S. Department of Education weighs in or the issue is litigated.
Also of note: Among Title IX’s many factors is publicity, which requires schools to promote their men’s and women’s athletics teams equally. But that promotional activity can be the same even if it costs more for, say, the football team.
The same types of marketing materials featuring athlete NILs can be created for all teams, but the cost of those materials for football and basketball will often be higher because it costs more to acquire the rights to use those athletes’ NILs in those materials.
“I don’t think that presents a Title IX issue,” Winter said.
NIL collectives won’t go away
Overall, expect many schools to proceed as if Title IX
does apply to direct payments they make to athletes, Winter said, unless or until the DOE or a court says otherwise.
In that proceed-with-caution scenario, with roughly an equal amount of NIL dollars going to male and female athletes at a school, you’ll likely see money going to male athletes concentrated in football and basketball. That means athletes in other sports may receive only a small amount of NIL compensation, if any, from their schools.
As several industry sources told On3, this is why many donor-funded
collectives are likely to stick around – to add compensation
on top of what schools are providing. That’s because Title IX might act as a limit to what schools can give to football and basketball athletes, as well as those in other sports.
“Relatedly, some schools will still likely make NIL payments through third parties,” Winter said. “Not only because they don’t want to try and replicate everything that collectives or other third-party entities do. But because they view it as providing some insulation from Title IX [because the third party is outside the school’s umbrella] and providing other liability protections.”
jasonstahl.substack.com
