...and a sort of validation of my earlier prediction.
Last week's multi-billion settlement (still in need of final approval by the judge and being questioned by the outgoing Justice Department) in a class action lawsuit against the NCAA prompted OCR to issue a reminder about following Title IX in regard to the provision of equal opportunities as they relate to NIL.
The settlement includes almost $3 billion to be distributed to over 400,000 current and former athletes, will replace athletic scholarship limits with roster size limits, and requires revenue sharing with athletes, i.e., athletes will be directly paid. Some of the initial issues that formed the case (a consolidation in 2020 of several cases regarding athlete compensation that began years earlier) had been settled when the NCAA capitulated regarding athletes' ability to earn money for their name, image, and likeness.
In the wake of what appears to be "official" approval for athlete compensation of all sorts, OCR (somewhat belatedly imo) released the fact sheet reminding stakeholders how equality is assessed under Title IX. The fact sheet entitled "Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) Activities" lays out the mandate for equity in this new era.
Points that struck me:
- OCR has explicitly tied the requirement for equity in publicity to NIL opportunities.
- "A school’s obligation to provide equivalent publicity based on sex continues to apply in the context of NIL. For example, if a school is not providing equivalent coverage for women’s teams and student-athletes on its website, in its social media postings, or in its publicity materials, these student-athletes may be less likely to attract and secure NIL opportunities. In addition, if a school is publicizing student-athletes for the purposes of obtaining NIL opportunities, OCR would examine whether the school is providing equivalent publicity for male and female student athletes (including by examining the quantity and quality of publications and other promotional devices that feature the men’s and women’s athletic teams)."
- Opportunities to access NIL must be equitably supported by the institution. If colleges offer athletes training in how to get NIL deals those must be offer to men and women athletes equally. Also, any administrative support for NIL by employees must be equitably provided. So if the football team has a full-time NIL admin then a full-time admin needs to be meeting the NIL needs of the equivalent number of women athletes.
- NIL provided by a school to athletes IS financial assistance based on athletic participation. In other words, NIL must be distributed equitably similar to scholarships and grants.
- NIL provided by a third party does not fall under the category of financial assistance, but schools are responsible if NIL that comes from boosters, collectives, etc. create disparate effects. Alas, OCR did not offer any examples or guidance about how to address these disparities. But this section does adhere to the longstanding interpretation that the popularity of men's sports historically that draws donations from alum and boosters for things like facilities, trips, turf fields, scoreboards cannot be accepted if the school does not have a way to create an equivalent (not the same necessarily) benefit/treatment for women. I predict that this is going to be the most contentious aspect of NIL's intersection with Title IX.
This interpretation of how Title IX applies to NIL may not last. The new administration could choose to issue new/different guidance. Blogger emerita, Erin, spoke about this to the AP. But I don't think this is going to be a top priority. Though Inside Higher Ed did a quickie piece on this and quoted Ted Cruz saying this guidance was going to be scrapped pretty quickly, so who knows. Even if it is, athletes who are not getting the benefits of NIL are going to bring these issues to courts which will create precedents schools will have to follow.
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