The Department of Education’s Office for Civil Rights (OCR) has issued guidance regarding college athlete name, image, and likeness (NIL), putting the onus on universities to ensure their male and female athletes receive proportionate NIL opportunities and resources – regardless of whether the funding comes from external sources. This guidance ties NIL outside payments to Title IX and will likely be challenged in court.
According to the OCR, NIL money paid to college athletes should be held to the same gender-equity standards as athletic scholarships. Specifically, the guidance states that the amounts paid to athletes through NIL deals should be considered part of a school’s athletic financial assistance, similar to grants-in-aid and cost-of-attendance funds, and must be distributed in a ‘proportional’ manner (between men’s and women’s sports).
Under current rules, the NCAA prohibits schools from directly entering into NIL agreements with their student-athletes. According to the directive, “The fact that funds are provided by a private source does not relieve a school of their responsibility to treat all of its student-athletes in a nondiscriminatory manner.”
Thus, outside NIL agreements would be considered a form of “athletic financial assistance,” and would be used to calculate whether schools provide equal athletic opportunities for men and women.
In the case of DU’s alumni-run Crimson and Gold Collective for basketball, according to the directive, it is the University’s responsibility to ensure compliance with NIL external partners. How that will be accomplished going forward is hard, if not impossible to determine. Plus, the new administration in Washington, D.C. may alter or outright eliminate the directive.
This guidance letter is separate from the expected upcoming resolution of the House v. NCAA legal case, which will determine the future revenue-sharing model for college athletes in the surviving Power Four conferences. For the larger programs, the sum could be over $20 million in payouts by some schools to their student-athletes. All this when the vast majority of current athletic department revenue is generated by male athletes in football and men’s basketball. One can only assume that the same Title IX interpretation may apply House v. NCAA legal case as well.
In the future, how could this impact DU if this guidance passes legal muster and applies to the House v. NCAA legal case? In men’s and women’s soccer at the Power Conference level (Atlantic Coast Conference (ACC), Big Ten Conference, Big 12 Conference, and Southeastern Conference (SEC), using ‘proportionality,’ schools may elect to ‘pay’ both their men’s and women’s teams but women’s soccer may theoretically receive more money to offset payments to male football players.
In this example, DU would be recruiting against CU’s highly-paid recruits. The same could also hold true for lacrosse, gymnastics, and other women’s sports. The Power Four are already expecting to pay all their student-athletes, regardless of the revenue those sports generate or sex. So, DU men’s soccer would be impacted as well when Jamie Franks must recruit and compete against the likes of Power Four schools North Carolina and Clemson.
As for hockey, hypothetically, if DU made a million-dollar profit a year and wanted to split half of that with student-athletes, they would have to ‘proportionately’ share the $500,000 across the athletic department to meet Title IX requirements even if all the other sports teams were losing money.
As an aside, Power Four athletic departments used to take the TV, ticket, and sponsor revenues from football and basketball and funnel them back into operations, recruiting, and capital projects. Ironically, should this revenue-sharing decision make it through the inevitable legal challenges, those sports (football and basketball) may actually receive less institutional financial support at the Power Four level than they do today while other sports, particularly women’s sports, may financially benefit.
As we have stated before, these piecemeal decisions will only trigger more lawsuits and even more confusion. It seems at this point that we are moving closer and closer by the day to a complete breakaway of the Power Four conferences and a professional college division. However, no matter what happens in collegiate athletics over the coming, the legal challenges and unending lawsuits are not going anywhere. Buckle up.
What a complete disaster this mess has turned out to be.
College sports has increasingly had money as an important component. Now, it seems, money, (along with unrestricted transfers), will be the only component that dictates the success or failure of college athletic programs going forward.
NIL opportunities now go way above and beyond what could be called ‘reasonable’ compensation.
For better or worse, athletes are essentially becoming employees of the college they attend.
As the lines are increasingly being blurred between amateur vs professional, it’s more and more difficult for those of us who provide outside support for student athletic programs to continue pouring money into what I’m afraid is becoming a black hole…..So disappointing.
My hope is an antitrust exemption for NCAA sports, like the NFL has to stop the lawsuits. The NCAA would need a commissioner, a governing body, a student-athlete advisory board and establish a negotiation structure to establish equitable ‘rules of the road’. This would stop the endless lawsuits which will continue unabated.
I’m confused. Carson Beck is going to the University of Miami and will be paid $4,000,000. Is this a contract with Miami or a Nil deal? Such an astronomical amount will virtually make it impossible for the U to compensate its other athletes in any kind of equal
It’s all very confusing and headed to the courts.