Would the NCAA's trust fund, NIL proposal ensure Title IX compliance?

The elephant in the college sports room the last few years has now come to the forefront: Title IX.

Just four days after 32 female athletes filed a class-action sex discrimination lawsuit against Oregon, NCAA President Charlie Baker unveiled a revolutionary proposal that would enable schools to compensate athletes from a trust fund and enter into NIL deals with athletes.

Hovering over the entire plan – which Baker references in Tuesday’s letter to members – is Title IX, the 51-year-old federal law that protects students from sex-based discrimination at any school that receives federal funding.

Would this proposal ensure Title IX compliance?

“With the majority of schools out of compliance with Title IX and a billion-dollar shortfall in scholarships for women, should we finally make compliance with Title IX a condition of membership?” Seattle-based attorney Julie Sommer, executive director of The Drake Group Education Fund, told On3.

Baker’s plan entails creating a new subdivision of institutions with the highest resources to invest in their student-athletes. Those schools will be committed to creating rules that may differ from the rules in place for the rest of Division I, specifically as it relates to scholarship commitment and roster size, recruitment, transfers or NIL.

Within the framework of Title IX, the NCAA’s letter states requirements for schools in the subdivision should include annually investing at least $30,000 per athlete into an enhanced educational trust fund for at least half of the institution’s eligible student-athletes. Importantly, athletes could spend the money any way they choose, and there is no limit on how much schools could provide any subset of athletes – as long as schools remain Title IX compliant. 

Also of great significance: Baker proposes that rules should change for any Division I school, at their choice, to enter into name, image and likeness licensing opportunities with their student-athletes. That is a radical departure from the current system, where third-party, donor-driven collectives distribute NIL dollars to athletes, the majority of whom are men.

Baker said the significant change to NIL policy “will also help level what is fast becoming a very unlevel playing field between men and women student-athletes because schools will be required to abide by existing gender equity regulations as they make investments in their athletics programs.”

Schools ‘prioritize some over others in wasteful ways’

Legal experts have told On3 they believe some schools have been evading Title IX responsibilities as their affiliated collectives distribute an overwhelming majority of dollars to male athletes. The 115-page Oregon suit is believed to be the first-ever complaint to address a collective’s NIL activity. Oregon said in a statement that school officials believe they are Title IX compliant.

But even after the NCAA’s proposal – widely applauded as a progressive step in the right direction – questions remain over whether schools will be Title IX compliant while compensating athletes through a trust fund and striking NIL deals for athletes.

Before the proposal was unveiled, Maddie Salamone, vice president of the College Football Players Association, believed it was only a matter of time before collective NIL activity was going to be scrutinized and schools were going to have to oversee them more. Regarding the trust fund concept, she said, is where you wade into “some interesting territory” and it will put more of an onus on schools to properly budget.

“It’s important to emphasize the fact that these are choices – and it’s not that schools can’t necessarily find the funds to actually pay for all these sports,” said Salamone, adding that if the NCAA requires some schools to spend more money actually on the athletes, then the football teams can’t employ an exorbitant number of coaches.

“They are choosing to prioritize some over others in wasteful ways,” she added. “And I think that that’s where the college model has needed to be rehauled – the philosophy that allows these obscene amounts of money to be spent on coaching staffs and on facilities that are unnecessary. If your priority is to be able to fund all the sports and that’s a worthwhile goal and you want to provide opportunities to all athletes, then that would be where you would choose to spend money and choose to budget more tightly. So, maybe that would be the result of it as you start to get money going in that direction.”

Arthur Bryant, widely considered the nation’s most prominent Title IX attorney and the lead attorney for the plaintiffs in the Oregon suit, recently told On3: “NIL and Title IX are about to collide – and it’s just a question of when and where. 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.”

In-house collective model good for women athletes?

With NIL activity moving in-house under the school’s umbrella, it means schools can enter into NIL deals with athletes and that schools would undoubtedly be subject to Title IX requirements. In that scenario, some still harbor concerns that a narrative will form that male athletes are worth more in the marketplace, therefore schools should strike more lucrative deals with them regardless of Title IX gender equity requirements. 

“There’s no acknowledgment of equal or equitable money for women,” Sommer said. “Watch for ‘NIL is gender neutral… men are worth more in the marketplace.’ NIL payments are not sex-based aid or scholarships. But schools have created this male-dominated marketplace value by investing in promoting, televising, and publicizing men’s sports over women’s sports.”

Sommer called the proposal a “bold, interesting move – certainly the most significant effort we’ve seen by the NCAA and this is the right debate to be having, even if the complications are many.” She said it could ultimately end the current NIL collective system by bringing the third-party entities in-house, which she believes is a good thing because the current model was not sustainable and far from equitable.

“At the very basic level,” Sommer said, “the NCAA should advocate for fair national standards for athlete compensation and accountability, fight for Title IX equity and preservation of women’s and Olympic sports, be a voice for the long-term health and well-being of athletes, and create a level playing field with checks and balances that ideally reflect near-term Congressional action. This move addresses some of those issues but many legal and policy level questions remain.”