No NIL for you!

 This much belated post about the administration's reversal of Biden (out-the-door) era guidance on distribution of NIL monies is cross-posted at After Atalanta. 

I feel a lot of anger...I feel, and not just anger because of a [military] ban, I feel anger and disappointment at large, just you know trans and non binary people have become public enemy one; and once you start taking away the rights of trans and non binary people, the rest of the chips begin to fall.  

            Sam Rodriguez, Petty Officer US Navy (Today, Explained; Vox Podcasts)

This has clearly come to bear already and I would hope most of us are not surprised. Appalled, yes. Surprised, no. The Kennedy Center canceling the Gay Men's Chorus performance is just one example of how public acceptance for violence against trans people.

Denying women athletes equitable shares of NIL monies is another chip. This news is old by now. (Though to be fair these days news seems to get old within hours.) But the presidential administration basically scoffed at the idea that women athletes--those folks so in need of protection that bills and executive orders galore have banned transwomen from sports--will get anything resembling what men will receive. I have yet to see much from the save women's sports folks about this. In a somewhat paradoxical commitment to ideological consistency The Independent Women's Forum, via lawyer Beth Parlato, has said that Title IX does not apply to NIL and that the left needs to stop trying to expand and distort Title IX's original intent. I am not convinced she knows what the law's original intent was or who was supporting it. Also, what group that has Independent Women in its title is arguing against greater economic power for women?? I mean, this one, it seems. I did not see any mention of this on the web pages of Champion Women, the Independent Council on Women's Sports or any of Riley Gaines's socials. 

This is the memo from the Department of Education website (which still exists at the time of this writing). It is short and the case is not compelling. Craig Trainor, the acting assistant secretary for civil right, called the Biden guidance "burdensome." We have heard this before. Probably in a lot of places. But it was a sentiment many white men expressed when Title IX was passed. Certainly we cannot give women the same number of opportunities or the same amount of money, they protested. And Title IX did not require that. Those protests are the reason the three-part test exists. It was so opportunities for participation do not have to be 50/50. Budgets do not have to be equal. Coaching salaries do not have to be equal (though I still think there is more to be done in this area). Things need to be equitable; needs--for medical care for example--need to be met. And financial aid does not need to be equal--but it needs to be equitable. 

The issue is not that is it burdensome to work toward equality. The issue is that it is hard for some people to fathom giving up their privilege. 

What can be done?

1. Lawsuit(s). As soon as things start getting divvied up, someone(s) is going to sue. This seems like a class action type of thing so I predict a campaign around it will emerge. Word of advice to athletes: choose your lawyers and your allies carefully. Make sure you know what their commitment to equality looks like; make sure they understand intersectionality. 
2. Strikes. Withhold your labor, women athletes. I know this is a sacrifice. But a lot of people make a lot of money off of women's collegiate sports these days. Leverage that. 
3. Solidarity. If you are one of those women athletes who gets a lot of attention--use your platform. If the women's golf team's strike is not going to draw eyes because people do not care about women's golf where you are, but they do care about seeing the softball team go to Oklahoma City and you are a member of that softball team...stand with them. Women basketball players are in a great position right now and there are notable activists among them (hey there, Paige Bueckers!). Take a lesson from your comrades in the WBNA and all they have done (and maybe WNBAers should head back to their alma maters and do some strategizing). Also--MEN--some of you are getting screwed by this too. Stand together. Also, also--men who are benefitting--your presence and voice in the name of equality is required. 

Finally a win for a Title IX

 ...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.