Why potential NIL changes would open the 'Title IX door wide'

During the first two-plus years of the NIL Era, schools could create the perception – perception being the operative word – of separation between the university and its donor-driven collective.

Here’s why that’s important: If the collective distributes 95% of dollars to male athletes, the school could claim Title IX shouldn’t apply because the collective is a third-party entity operating outside the school’s umbrella.

But an NCAA NIL subcommittee will meet later this week to discuss significant potential changes, first reported by ESPN, that would enable schools to be far more involved with athletes’ NIL activity. If those changes take hold, here’s what leading stakeholders are already saying: Schools had better get their Title IX house in order.

Gone will be the subterfuge. Gone will be the spin. And when it comes to NIL deals and dollars, schools will be on the hook for Title IX compliance related to NIL.

Many schools have been clamoring for more freedom to help athletes with NIL activity. With these potential changes – which would benefit athletes – they may get their wish.

“Be careful what you wish for – as you just may get it,” one prominent college administrator told On3 on Monday. “Bringing NIL in-house opens the Title IX door wide.”

What are the proposed NIL changes?

According to meeting notes obtained by ESPN, the potential NIL changes on the table include: 

• Schools could proactively assist in the development and creation of NIL activity.
• They could provide services such as tax preparation and contract review; access to equipment (cameras, podcast studios, etc.) for NIL activity
• Plus, they could communicate with school sponsors about NIL opportunities for their athletes, including “securing specific opportunities.”

Mit Winter, a college sports attorney with Kansas City-based Kennyhertz Perry, said Title IX compliance would be paramount if schools are permitted to secure NIL opportunities for athletes with school sponsors.

“If a school is only putting resources into sponsors doing deals with male athletes, or is only suggesting that sponsors do deals with male athletes, that would be problematic from a Title IX standpoint,” Winter told On3 on Monday. “They would no longer be able to rely on the argument that it’s a private third party – who is arguably not subject to Title IX – that is putting a disproportionate amount of NIL resources towards male athletes. Many schools are already out of compliance with Title IX as it is. So adding onto that wouldn’t be good from a legal standpoint.”

Seattle-based attorney Julie Sommer, executive director of The Drake Group Education Fund, told On3 that the NCAA changes reflect what’s already happening within many, if not most, athletic departments.

“I think schools are proactively assisting in the development and creation of NIL activity — just as the collectives have been doing — and we know schools are creating in-house NIL centers, like the University of Alabama, to provide a space as well as equipment for college athletes to promote their NIL,” Sommer said. “This rule change to allow for more intentional school participation absolutely means all activity is subject to Title IX. Under the Title IX treatment, benefits and financial aid requirements, schools are required to treat all athletes equitably.”

NIL space barreling toward Title IX reckoning

Title IX is the 51-year-old federal law that protects students from sex-based discrimination at any school that receives federal funding – and the NIL space is barreling toward a Title IX reckoning.

“NIL and Title IX are about to collide – and it’s just a question of when and where,” lawyer Arthur Bryant, widely viewed as the nation’s foremost Title IX expert, told On3 last month. “Title IX says schools have to provide male student-athletes and female student-athletes with equal treatment and benefits, and almost no school in the country is doing that now without NIL. 

“With NIL, it is far, far worse.”

The prevailing notion among legal experts has been that if NIL formally moved in-house it would compel schools to comply with Title IX. If these changes take effect, NIL wouldn’t fully be an in-house operation, of course; compensation would still flow from boosters through third-party collectives. 

But the permitted activity, efforts and resources schools could provide would place Title IX responsibility right at their university’s doorstep. Schools could take a hands-on approach to assist in the development and creation of NIL activity – but would risk Title IX violations if the overwhelming majority of that activity goes to male athletes.

The Drake Group, a nonprofit advocacy organization, has been a leading voice calling out schools that, it claims, evade Title IX responsibilities as their affiliated collectives distribute an overwhelming majority of dollars to male athletes. 

In a 10-page pointed memo The Drake Group sent to the U.S. Department of Education’s Office for Civil Rights on Aug. 1, the group stated that OCR guidance related to collectives and Title IX compliance is “urgently necessary,” calling the OCR’s silence on the issue “inexplicable.”

Schools need to make sure Title IX house in order

The memo notes, that during the first two years of the NIL era, Texas A&M male athletes earned $8,412,816.96, while female athletes earned $134,661.

It also references comments made by Jason Belzer, CEO of Student Athlete NIL (SANIL), which manages some 30 collectives, at a June college athletics panel in Washington, D.C. Belzer said that 95% of NIL money is distributed to men. 

“The schools have a true and obvious ‘hands-on approach’ that is no longer murking below the surface,” the memo said. “The relationship is direct and obvious. Indeed, this new reality is prompting many athletics directors and others to argue that the NIL monetization should just be officially brought in-house to avoid the subterfuge.”

If the NIL changes come to fruition, schools will be able to have a more hands-on NIL approach. But with Title IX top of mind, that can be a double-edged sword.

“To be clear, if the school is not at all involved and third parties are treating male athletes at the school far better than women athletes and giving them tons of money that women aren’t getting, there is no Title IX violation, because Title IX only applies to educational institutions receiving federal funds,” Bryant said. 

“But if the schools are involved and the men are getting way more than women, then there is a blatant Title IX violation – and it needs to be stopped.” 

And if these NIL changes come to pass – changes that will benefit the athletes – schools would be best served making sure their Title IX house is in order.