Loopholes in Licensing Agreements Discriminate Against Female College Athletes

College athletes are allowed to monetize their skills and fame by selling or licensing their names, images and likenesses (NIL)—but the share of NIL money going to male athletes is between 80 and 95 percent.

Kutztown University celebrates a goal against East Stroudsburg University during the 2023 Division II Field Hockey Championship on Nov. 19, 2023, in Manchester, N.H. (Winslow Townson / NCAA Photos via Getty Images)

For decades college athletes were not allowed to monetize their athletic skills and fame by selling or licensing their names, images and likenesses (NILs). Any such activities—such as entering into an endorsement contract with Nike, or with a local car dealer, or signing autographs—made the athletes “professionals” in the eyes of the NCAA and eliminated their college athletic eligibility, which was based on questionable principles of “amateurism.”  

Beginning in 2020, many state legislatures began to pass laws that declared that college athletes had NIL rights and that their eligibility for athletics could not be taken away due to their exercise of those rights. A series of federal court cases challenging NCAA amateurism restrictions, culminated on June 21, 2021, with a Supreme Court decision in an antitrust case called Alston. Although Alston did not involve NIL, it did involve other financial benefits provided to athletes.

The decision sent shockwaves through the NCAA and the college sports world by questioning the NCAA’s long-standing amateurism rules and permitting schools to provide unlimited educationally tethered benefits to athletes. Alston’s only reference to Title IX was Justice Brett Kavanaugh’s prescient comment in his concurring opinion that Title IX presents a difficult practical and policy problem in the context of commercialized college sports. He was right.  

New NCAA rules passed in July 2021 permit athletes to monetize their NILs, as long as the payments come from third parties. However, these rules did not include any requirement that the rates be commensurate with going rates in the locale. The new rules provided that:

  1. the work be performed (quid pro quo);
  2. not be pay for play, and
  3. not be an inducement to recruit or retain an athlete.

Rule-constrained NIL payments quickly morphed into a system permitting third-party NIL and other arrangements made by boosters of the universities to funnel money to athletes disguised as the newly permissible third-party NIL payments. These payments were incentives for the athlete to matriculate at, transfer to or stay at a particular university. Individual boosters or what became called “collectives” of boosters raised money and dangled it in front of athletes to assure that those athletes would play at their school, rather than another. Consider a few illustrations of how this system is currently operating.    

The founder of the University of Florida collective, Gator Guard, an auto industry innovator worth a half-billion dollars, donated $1 million and stated,

“What I’ve learned is, everybody is doing it now, the landscape is, if we [Florida fans] don’t get the money, we’re going to lose players. No matter how well a kid likes Florida, if a school comes in at the last minute and says, ‘We are going to pay you $100,000’ and we have $10,000, they’re gone.”

Many collectives have been formed to assist only one or two men’s sports, such as the Irish United men’s basketball (University of Notre Dame) collective, the Twin Cities football (University of Minnesota) collective, Arizona Assist men’s basketball (University of Arizona) collective, or the Lions Legacy Club football (Pennsylvania State University) collective. See also the Business of College Sports national tracker of collectives and On3’s national guide to view other single sex entities. Institutions are openly encouraging support of organizations that discriminate on the basis of sex. 

In 2021-22 at Michigan State University (MSU), the men’s basketball and football teams—numbering 133 athletes—received $500 monthly for promoting United Wholesale Mortgage (UWM), a company owned by a former MSU basketball player, and was criticized for “blatant sexism.”

In 2022-23, UWM extended its program to 17 women’s basketball and 12 volleyball players. Equitable treatment under Title IX requires an equal proportion of all female athletes to receive equal benefits. MSU is assisting by assigning the social media promotional posts to be delivered by each athlete. 

At an institution’s football stadium club luncheon for hundreds of influential businesspeople, LSU’s football coach was more direct than others: “We’re paying players now: name, image and likeness. So, if you guys wanna start paying our players, you can go ahead!”

Attendees understand exactly what is being suggested, and no mention or effort is made regarding female athletes. 

A South Florida businessman offered 90 University of Miami football players $500 a month to endorse American Top Team, his chain of mixed martial arts training gyms and founded Bring Back the U, a collective focused on football. The businessman explained:

“The NIL legislation is an amazing opportunity for businesses and fans to directly impact the lives of these players and the national reputation of our team. I originally planned to just enter into deals with a few players and then it hit me that there is a way bigger play here. With the right contacts, effort and financial commitment, we can reach every player and get this city firmly behind this team where it should be. We can BRING BACK THE U.”

Ohio State University hosted an event at which the head football coach asked 100 attending business leaders to contribute $13 million to keep the football team roster together. Again, women athletes were not mentioned, nor was a comparable ask made elsewhere.  

The Matador Club, a nonprofit Texas Tech collective, offered 85 scholarship players and 20 walk-on football players one-year, $25,000 contracts in exchange for community service. Cody Campbell, a member of the club’s board of directors, explained: “This is kind of a base salary for the guys. They’re not going to be restricted from doing any other NIL stuff with anybody else. In fact, we’re going to encourage and help them do that.”

No mention was made of providing female athletes similar NIL opportunities.

A Georgia Tech assistant athletic director explained how TiVo dealt directly with the school to provide an 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. In addition, TiVo provided the university with an upgrade to its audio-visual equipment, worth reportedly $100,000.

No mention was made that female athletes would be provided with similar NIL opportunities.

The Mississippi State University president, Mark Keegan, summed it all up: “What NIL has become is universities going out through their foundations and collectives and raising dollars to give to athletes. They’re just paying them to come play, and there is no limit on that.” 

As these examples demonstrate, although the schools briefly watched this activity from the sidelines, when the NCAA declined to take any action or issue any guidance, the schools began to frequently assist the collectives in their efforts.

After many months of activities, the NCAA issued some guidance about these activities, but it did not prohibit university involvement or encouragement; in fact, it gave guidance as to how the schools could facilitate the deals. Certainly, there was no guidance as to how the schools might satisfy Title IX and there is virtually no evidence that the schools are even bothering to encourage the third parties to provide equal benefits to women.

Institutions also started operating in ways not previously permitted under NCAA rules by entering into third-party sponsorships, co-licensing and group licensing agreements that included compensation, exposure and/or other benefits to athletes. 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.

As of January 2024, almost two and a half years since the NCAA greenlit a system of constrained NIL payments, the NCAA has issued no rulings against university-centered collectives. With no guidance from the NCAA for months, followed by only weak guidance, this form of college-endorsed NIL seems here to stay.

The monetization of athlete NILs through legitimately independent third parties is not problematic, but once there is university cooperation and involvement, Title IX requires equal treatment of women. There is ample evidence of close and growing university involvement with the collectives and various estimates put the share of NIL money going to male athletes ranges to be between 80 and 95 percent.

The Office of Civil Rights (OCR) is responsible for setting out the guidelines for Title IX compliance as well as its oversight. To date, the OCR—under-resourced, under-staffed and largely preoccupied with fixing rules around transgender participation and sexual harassment—has issued no guidelines around the co-existence of NIL and Title IX.  

A compounding factor is that most institutions have failed historically to support equally male and female athletes in publicity, promotion, recruiting and athletics financial aid—failures that are compounded by this NIL inequality.

It is high time for the executive and legislative branches to take a serious look at what needs to be done. Among other things, the future of Title IX and gender equity hangs in the balance.

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