The Latest Title IX Battleground: Publicity Rights in College Sports

The vast majority of payments to student athletes for use of their names, images and likenesses goes to men’s sports—a direct violation of Title IX.

name-image-likeness-brand-sponsor-title-ix-women-college-sports
Two college athletes at the Division I Men’s and Women’s Singles and Doubles Tennis Championship on May 28, 2022, in Champaign, Illinois. (Steve Woltmann / NCAA Photos via Getty Images)

Fifty years after the passage of Title IX, approximately 90 percent of intercollegiate athletic programs are still discriminating on the basis of sex. Colleges and universities are shortchanging female athletes by $1 billion annually in athletics scholarships, and $162.5 million in recruiting support, causing female athletes to lose an average of 148,030 sport participation opportunities. Most institutions today are failing to support female athletes equally to males in publicity, promotion, recruiting and athletic financial aid. These failures are now significantly compounded by a new form of inequality: payments to student athletes for use of their names, images and likenesses, known as NILs—which are currently on the rise.

For decades, college athletes were not allowed to make money by selling or licensing their names, images and likenesses. Entering into an endorsement contract with Nike, or with a local car dealer, or signing autographs made athletes “professionals” in the eyes of the National Collegiate Athletic Association (NCAA) and therefore ineligible to participate in college sports. Athletes had to be “amateurs” to play in the NCAA.

Beginning in 2020, state legislatures began to pass laws creating publicity rights for college athletes to receive payments for the use of their names, images and likenesses. These laws protected students’ eligibility for athletics if they exercised their publicity rights. A series of recent federal court cases challenged NCAA amateurism restrictions and a June 2021 Supreme Court decision called into question NCAA’s long-standing amateurism rules, permitting schools to provide expanded benefits to athletes.

New state laws enabled what is called “third-party NILs”—payments to athletes from entities not affiliated with the university, like Nike or a local grocery store. This process quickly morphed into a system where boosters of the universities funneled money to athletes disguised as newly-permissible, third-party NIL payments. These payments were actually incentives for athletes to matriculate, transfer to or stay at a particular university. Individual boosters or collectives of boosters raised money and dangled it in front of athletes to assure that those athletes would play at their school over others.

While NILs are not inherently discriminatory, the vast majority of NIL money goes to men’s sports. Many collectives formed to assist just one or two men’s sports, such as football or men’s basketball, and schools have openly encouraged and supported these deals, despite their discriminatory nature.

For example, at Michigan State University, the 133 members of the men’s basketball and football teams received $500 monthly in 2021-2022 for promoting United Wholesale Mortgage, a company owned by a former MSU basketball player. In 2022-2023, the company extended its program to just 17 women’s basketball and 12 volleyball players, less than 18 percent of the number of men receiving NIL money. MSU is assisting United Wholesale Mortgage by assigning the delivery of social media promotional posts to athletes.

“This sort of blatant sexism is unacceptable,” said MSU alum Laurie Phutsky at the time.

Another example is a South Florida businessman who offered 90 University of Miami football players $500 a month to endorse American Top Team, his chain of mixed martial arts training gyms. In Georgia, TiVo and Georgia Tech worked together to provide a NIL deal for every football player to receive silk pajamas, yellow jackets, prepaid debit cards worth $404 and a streaming device from TiVo in exchange for promoting TiVo on social media. TiVo also provided the university with an upgrade to its audio/visual equipment, reportedly worth $100,000. Women athletes were not provided with similar NIL opportunities.

Some institutions are also permitting athletes to use their institution’s logos, brands or other assets for the athlete’s commercial NIL deals at no cost to the athlete, facilitating and encouraging this male-predominated NIL-collective activity, and potentially violating schools’ non-profit status.

The NCAA initially declined to take any action or issue any guidance, then they issued guidance about how the schools could facilitate these deals—but said nothing about how the schools might satisfy their Title IX obligations. Schools are not even bothering to encourage the third parties to provide equal benefits to women. The Office of Civil Rights of the Department of Education (OCR), responsible for enforcing Title IX, has also been silent.

In response, The Drake Group, which advocates for sport equity and academic integrity, is demanding change. The group argues that once universities cooperate or become involved in NIL deals, Title IX requires equal treatment of women. If institutions are entering into third-party sponsorships or co-licensing/group licensing agreements that include compensation, exposure and/or other benefits to athletes, Title IX applies.

In a recent letter sent to OCR, The Drake Group requested that the agency issue guidance warning institutions, their conferences and national governance organizations of their obligations under Title IX and how they apply to these new NIL-related activities, and that actions by “collectives” may be attributed to the universities. The Drake Group is now working to build support for this change.

“This cash is, with the blessing and/or cooperation of the 1000+ universities in the NCAA, flowing predominantly to men,” according to the letter. “Such inequitable financial aid, treatment and benefits provided to men are a violation of Title IX. OCR must provide guidance to the schools that this is improper and will be pursued with enforcement proceedings as necessary.”

To support this effort, demand OCR take action to ensure that universities protect female athletes’ rights to benefit equally from NILS deals by contacting:

  • Dr. Miguel Cardona, secretary of education, at the Office for Civil Rights: ocr@ed.gov
  • Catherine Lhamon, assistant secretary for civil rights: Catherine.lhamon@ed.gov                  
  • Suzanne B. Goldberg, deputy assistant secretary for strategic operations and outreach at the Department of Education: Suzanne.goldberg@ed.gov

Up next:

U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.

About and

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.
Andy Zimbalist is an Economics Professor at Smith College and president of The Drake Group, advancing positive legislative change in college athletics.