Will the Spirit of Title IX Survive State Legislation Allowing Institutions to Directly Pay Their Athletes?

There is no doubt that name, image, and likeness (“NIL”) deals have been groundbreaking for both men’s and women’s college athletes. It’s the hot topic among everyone in the college sports world — and for good reason. The emergence of NIL deals over the last few years has provided a litany of opportunities for college athletes to gain business experience through brand sponsorship, garner fan interest for their sport, earn income while being a student-athlete, and gain well-earned recognition for their talents.

NIL deals have helped shine a spotlight on women’s athletics. Major brands like Nike, BodyArmor, State Farm, and Gatorade have turned college female athletes such as Caitlin Clark and Livvy Dunne into household names. Fan interest and attention for these highly skilled athletes have significantly increased due in part to their recognition by these brands. Caitlin Clark, a star basketball player for the University of Iowa and now for the Indiana Fever, was ranked as the fourth highest paid college athlete in 2024. Preceding her at number three on the list of highest paid college athletes was Livvy Dunne, a highly touted gymnast at Louisiana State University. In 2024 alone, Clark raked in an estimated $3.5 million from NIL deals.¹ As of May 20, 2024, Dunne’s estimated NIL valuation stands at a whopping $3.9 million.²

While NIL deals have been particularly influential in these women’s lives, that has not been the case for most female athletes. With the arrival of new state legislation, that likely will not change. A plethora of legal debates and issues surround NIL deals. One of the issues being how schools can continue to comply with their requirements under Title IX, with legislation recently being passed allowing their athletic departments to directly pay their athletes for their name, image, and likeness. To understand this issue, a brief overview of how Title IX applies to college athletics is instructive.

What Is Title IX and How Does It Apply to College Athletic Departments?

Title IX, landmark legislation passed in 1972, prohibits sex discrimination at educational institutions, both public and private, that receive federal funding.³ Almost all private colleges and universities must abide by Title IX regulations because they receive federal funding through federal financial aid programs used by their students.⁴ This legislation applies to athletics in three basic ways:

1. 1. Participation: Title IX requires that women and men be provided equitable opportunities to participate in sports. Title IX does not require institutions to offer identical sports but an equal opportunity to play.
   2. Scholarships: Title IX requires that female and male student-athletes receive athletic scholarship dollars proportional to their participation.
   3. Other benefits: Title IX requires the equal treatment of female and male student-athletes in the provisions of: (a) equipment and supplies; (b) scheduling of games and practice times; (c) travel and daily allowance/per diem; (d) access to tutoring; (e) coaching, (f) locker rooms, practice, and competitive facilities; (g) medical and training facilities and services; (h) housing and dining facilities and services; (i) publicity and promotions; (j) support services; and (k) recruitment of student-athletes.⁵ (emphasis added).

Virginia Legislation

In mid-April, lawmakers in Virginia passed novel legislation that removes restrictions on institutions for engaging in NIL deals with their players.⁶ Starting on July 1, 2024, schools in Virginia will be allowed to directly sign athletes to NIL endorsement deals between the player and the university. Although the new legislation does not allow schools to pay athletes for their on-field performance, but rather their appearance in institutional marketing campaigns; in practice, it is uncertain how schools will execute their new ability. Several other states have similar legislation pending, such as Oklahoma, Nebraska, and Louisiana. Some Virginia university officials have already conceded that there might be an issue with implementing this law and maintaining compliance with Title IX. In an interview with ESPN, both Virginia Tech and the University of Virginia’s athletic directors stated they do not yet know with certainty how their schools would interpret Title IX laws when figuring out how to equitably share NIL opportunities with men and women athletes, seemingly admitting that they know Title IX comes into play.⁷

Looking Toward the Future and How to Maintain the Spirit of Title IX

As emphasized above, Title IX requires the equal treatment of female and male student-athletes in the provisions of “(i) publicity and promotions.” Although Title IX specifically requires schools to spend a proportionally equal amount of money on scholarships for men and women, it is unclear whether schools would have to provide equal dollars for endorsement deals. While federal legislators and courts have not yet addressed whether NIL deals fall under the “publicity and promotions” category, it seems intuitive that paying athletes for their appearance in marketing efforts for their school would certainly be what legislators intended when they included publicity and promotions as a category in the law.

The intent of Title IX is to bring treatment of the disadvantaged gender up to the level of the advantaged group.⁸ Maintaining the spirit of Title IX would require a finding that Title IX does in fact apply when schools directly pay their students to participate in marketing deals. Otherwise, female and male athletes will not receive equal treatment or equitable opportunities. In reality, unless a school has a Caitlin Clark or a Livvy Dunne, they will likely focus on their star quarterbacks as the center of their marketing campaigns. It is reasonably foreseeable that schools will shell out more opportunities to male athletes, particularly the programs that rake in the most money such as football and basketball, and female athletes will receive only a fraction in comparison.

Without a ruling from a court on the issue, it is in the hands of the Office of Civil Rights (“OCR”) to issue guidelines. The OCR is responsible for setting out the guidelines for Title IX compliance as well as its oversight. So far, the OCR has issued no guidelines around the co-existence of NIL and Title IX. Only time will tell how the OCR or federal courts will interpret laws such as the new Virginia legislation, but if more states implement similar laws, guidance will have to come sooner rather than later.

[1] https://www.on3.com/nil/rankings/player/nil-100/.

[2] Id.

[3] 20 U.S. Code § 1681 et seq.

[4] https://www.ncaa.org/sports/2014/1/27/title-ix-frequently-asked-questions.aspx.

[5] Id.

[6] Intercollegiate athletics; student-athletes, compensation for name, image, or likeness, §23.1-408.1 (2024), https://legiscan.com/VA/text/HB1505/2024.

[7] https://www.espn.com/college-sports/story/_/id/39967961/virginia-law-allows-schools-pay-athletes-nil.

[8] https://www.ncaa.org/sports/2014/1/27/title-ix-frequently-asked-questions.aspx.