ORLANDO, Fla. — There are many us who have been led to believe that “NIL” is an acronym for Name, Image and Likeness, but it’s becoming more and more clear that another acronym might be more accurate.
NIL — Not Inherently Legal.
In fact, Title IX watchdogs and women’s sports advocates are drawing battle lines to legally fight the many universities who are indirectly funneling most of the money from booster-funded NIL collectives to football and men’s basketball players.
“These pay-for-play collectives are not going to pass muster under Title IX,” says nationally renowned Title IX attorney Nancy Hogshead-Makar. “Believe me, lawyers are getting ready to challenge this.”
Says Donna Lopiano, the former CEO of the Women’s Sports Foundation: “This is a time bomb that universities are going to have to deal with.”
It’s hard to argue with Lopiano and Hogshead-Makar, both of whom have spent decades fighting for gender equity in sports.
Hogshead-Makar is a three-time Olympic gold medalist in swimming who used her Duke law degree to become one of the nation’s foremost Title IX attorneys. She has taken on the male-dominated sports establishment for equal opportunities for women in sports and against sexual abuse of female athletes. A rape victim herself, Hogshead-Makar was prodding the U.S. Olympic Committee to protect its athletes from sexual abuse long before Dr. Larry Nassar’s heinous crimes surfaced. Her non-profit organization, Champion Women, provides legal advocacy for girls and women athletes who have been abused, harassed or minimized in any way.
Lopiano was the longtime women’s athletics director at the University of Texas who has battled gender bias in sports ever since she was an 11-year-old baseball star who was not allowed to play on the local Little League team because she was a girl. Early on in her 19-year tenure as women’s AD at Texas, Lopiano feared she might be fired by the football-fanatical administration when she testified against an amendment that would have exempted college football from Title IX regulations. During her 15 years heading the Women’s Sports Foundation, Lopiano made it her mission to ensure university athletic programs were compliant with Title IX — the federal civil rights law enacted in 1972 that prohibits sex-based discrimination in any public school that receives funding from the federal government.
Lopiano also is a member of The Drake Group — an influential academic think tank with the stated mission of working to better educate the U.S. Congress and higher education decision-makers about critical issues in intercollegiate athletics. Since the toothless NCAA has turned a blind eye to NIL violations, the Drake Group recently sent a letter to the federal Department of Education’s Office for Civil Rights (OCR) asking it to step in and warn universities that their booster collectives are in violation of Title IX laws.
“We do not write to suggest that OCR stem this flow of cash to college athletes, but rather to alert OCR that this cash is, with the blessing and/or cooperation of the 1000+ universities in the NCAA, flowing predominantly to men,” The Drake Group wrote it its letter. “Such inequitable financial aid, treatment and benefits provided to men are a violation of Title IX.
“The schools, for their part, seem either happy to allow this gender disparity, or simply confused as to their obligations,” the letter continued. “In either case, OCR guidance is badly needed, and quickly. The schools have never been enthusiastic about gender equality in sports, having unsuccessfully attempted to exempt revenue-producing sports like football from Title IX, and having dragged its feet for decades on gender equality. The ‘Wild West’ scene we see today, involving compensation for athletes’ names, images, and likenesses, has simply provided the schools an opportunity to feign ignorance or confusion as to the implications for women athletes. OCR should eliminate that ignorance and clarify any confusion.”
It’s certainly hard to argue The Drake Group’s premise that these NIL collectives are really just university-sponsored pay-for-play organizations meant to raise money so schools can recruit and retain football and men’s basketball players. To say the collectives are independent from the university itself is laughable. Universities across the country, including Florida, Florida State and UCF, recognize and promote these so-called “independent” collectives as their own and urge their fans and boosters to donate money to them.
And it’s certainly no secret that the vast majority of the money raised by NIL collectives is going to male athletes. Opendorse, considered the top NIL platform in college sports, estimates that more than 75% of NIL money goes to football (55.5%) and men’s basketball (20.7%). Others estimate that football players receive an even higher percentage of NIL compensation.
The age-old argument perpetuated by male-dominated college athletic departments is that football and basketball programs make most of the money and therefore those athletes should get more benefits. Sorry, but that argument simply doesn’t fly with the federal government.
As the NCAA’s own website says about Title IX mandates: “Male and female student-athletes must receive equitable ‘treatment’ and ‘benefits.’ … The basic philosophical underpinning of Title IX is that there cannot be an economic justification for discrimination. The institution cannot maintain that there are revenue productions or other considerations that mandate that certain sports receive better treatment or participation opportunities than other sports.”
Of course, the NCAA is ignoring what looks to be obvious Title IX violations just as it has ignored all other transgressions involving NIL. Let’s not forget, NCAA rules explicitly state that boosters cannot be involved in recruiting or offering athletes any sort of financial inducement to attend or remain at an institution. The booster collectives are obviously circumventing these NCAA rules under the guise of NIL while the litigation-weary NCAA refuses to do anything about it.
The question is will the federal government, like the NCAA, just ignore the collectives that seem to be in blatant violation of Title IX laws or will something be done?
Let’s hope something is done.
Women’s sports have been getting short-shrifted for decades and this is just the latest example.
You can almost picture the good ol’ boy booster collectives in the SEC holding their weekly meeting and hanging a sign on the closed door:
“NIL — Not Invited, Ladies.”
