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With crossroads looming for NIL and Title IX, universities may face a collision

As NIL is turning a corner, it could face a crash into Title IX obligations based on schools' involvement with third-party collectives

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"As the line between schools and third-party collectives has begun to blur, questions have been raised over whether NIL deals are inching toward Title IX scrutiny."

The ability for college athletes to make money from their name, image and likeness, referred to as NIL, has become among the most powerful forces in college sports. 

As the NIL era continues its third year, several ASU coaches have described ASU’s program as behind what it takes to remain competitive in the upper echelon of big-time college athletics. 

However, in the wake of former Vice President for University Athletics Ray Anderson’s resignation, ASU’s NIL program could be turning a corner. The Sun Angel Collective, ASU’s primary NIL collective, doubled its monthly membership donors since the announcement, and ASU’s athletic department has begun promoting the collective more prominently on its social media.

READ MORE: Ray Anderson steps down as ASU athletic director

However, as ASU and the rest of the country seek to grow its NIL presence and adapt to a new era of college sports, there is increasing discussion over the extent to which the burgeoning world of NIL applies to one of college athletics’ most important statutes: Title IX.

Title IX originates from the Education Amendments of 1972 and requires public universities to provide equal financial assistance, educational opportunities and benefits on the basis of sex, including in athletics. This is why ASU’s 2014 promotion of men’s ice hockey to NCAA Division I was followed by the addition of women’s lacrosse and triathlon in 2015.

The NCAA prohibits universities and athletic departments from negotiating NIL deals for athletes but can and often do provide NIL-related guidance and resources to its athletes. Victoria Jackson, an ASU professor and sports historian whose dissertation analyzed Title IX in big-time college sports, told The State Press that any resources provided by a university regarding NIL should be distributed following Title IX regulations.

“If (universities) are providing education around how to fill out tax forms; if they're providing education about how to evaluate an agent; if they're providing any sort of NIL education, that better be offered equitably to all athletes, and on the basis of gender,” Jackson said. 

Jackson said the University is currently succeeding in providing equitable access to NIL resources.

“We do a really good job,” Jackson said. “Knowing how the people who work in the Office of Student-Athlete Development run things, it's always for all athletes rather than for targeted groups.”

In May, ASU brought on Rachael Bacchus as its NIL General Manager. She is contracted to ASU by Altius Sports Partners, a NIL strategy company partnered with ASU to assist in developing its NIL program. Bacchus said ASU has been ensuring equal access to NIL-related resources, such as education on taxes and compliance, for all of ASU’s 26 varsity sports since before she was brought on and that ASU is prepared for a world in which Title IX scrutiny around NIL resources increases.

“Nobody would be surprised by (NIL resources being subject to Title IX),” Bacchus said. “We always operate from a place of Title IX awareness and making sure that we are always observing those things.”

A more complicated question is whether the distribution of NIL deals from third-party entities affiliated with schools, such as the Sun Angel Collective, applies to Title IX regulations.

Mit Winter, a leading NIL lawyer for Kennyhertz Perry, said that NIL negotiations with private businesses would not receive Title IX scrutiny because they do not directly involve universities.

“There's no requirement that Nike, for example, has to do five deals with men, and they have to do five deals with women,” Winter said. 

However, many NIL deals are not negotiated by athletes directly but arranged by collectives, which could lead to skewed NIL opportunities for male and female athletes. 

The NCAA’s interim NIL policy states that schools can provide NIL education to collectives and donors, alert their athletes to potential NIL deals, and “work with an NIL service provider to administer a ‘marketplace’” that leads athletes to NIL opportunities. Schools cannot, however, provide money directly to collectives, and university staff cannot be employed by or have an ownership stake in a collective.

Sports Illustrated reported in May that some schools in the SEC have begun to supply payments to athletes directly from nonprofits affiliated with the universities. Some schools have also aggressively marketed their affiliated NIL collective on social media and in press conferences. As for ASU, it brought on Bacchus and advertises its NIL program on its athletics website

As the line between holding schools and third-party collectives accountable has begun to blur, questions have been raised over whether NIL deals are inching toward Title IX scrutiny.

Front Office Sports reported in January that only 34% of existing NIL collectives had offered NIL compensation to women’s sports athletes. 79% of that compensation is in brand endorsement deals rather than from donors. One of the reasons for this disparity is that football and men's basketball, the most profitable sport at most big public universities, attracts the majority of NIL spending by donors and businesses. 

Donna Lopiano, a board of directors member of The Drake Group, an organization dedicated to the reform of college athletics, said women are still experiencing aggregate shortfalls in educational support and NIL participation opportunities. Regarding Title IX compliance, Lopiano said the NIL program is still far behind.

“There are still 65 or so of these collectives that are single-sex support systems – they’re only supporting football, or they’re only supporting basketball,” Lopiano said. “The institution, nonprofit, cannot deal with a single-sex entity that discriminates on the basis of sex. That’s an NIL intersection.” 

ASU currently operates 26 varsity NCAA sports, which is more than any other school currently in or planning to join the Big 12. 14 of which are women’s sports. There is no requirement by collectives to disclose the existence or terms of NIL deals, so the extent of the NIL program at ASU and other schools remains unclear.

Brittani Willet, the executive director of ASU’s Sun Angel Collective, said their extensive efforts to cultivate a base of donors and local businesses are not “limited to male or female sports” and said that the collective will continue to adapt to any new NIL regulations, including regarding Title IX. 

Before its transition this month into a full-service NIL agency, Activate Sports Management had been pairing athletes with businesses in Tempe and across the Valley for nearly a year, often pairing businesses with both men’s and women’s sports athletes.

Activate’s founder and CEO Peter Boyle said the gender split was deliberate in hopes of promoting lower-profile and women’s sports. 

“We tried pretty hard to get them to pair a male and a female athlete,” Boyle said. “These are literally world-class athletes. Why shouldn’t they get financial opportunity and recognition just the same as somebody on the football team?”

READ MORE: Activate Sports Management, formerly ActivateASU, is now a full-service NIL agency

In January, The Drake Group sent a letter to the U.S. Department of Education’s Office for Civil Rights, requesting that the DOE work to close the gender inequalities in NIL and determine that some NIL deals are subject to Title IX.

Lopiano said that an assistant director from the DOE responded to their letter, expressing interest in the issue but that the department was tied up in other obligations, including other Title IX-related incidents. They advised The Drake Group to file complaints with individual universities, but Lopiano said that “doesn’t really help,” given that it only targets a single school.

According to Lopiano, universities must build a “firewall” between themselves and the NIL collectives to evade Title IX scrutiny and fulfill their obligations. 

“If they tell the collectives what to do, if they give university assets for the collectives to use like the names of donors, if you donate (to) the collective, (they) get points for seats at the university. If (universities) become part of those collectives, then Title IX needs to apply,” Lopiano said. “They can't use an outside organization to evade their obligations.”

In a report published by LEAD1 Association, the Division I Athletic Directors Association, Dan Cohen and Lexi Trumble of Nelson Mullins law group argue that NIL payments that are made to entire teams rather than to individual athletes based on market value could violate Title IX.

“If the payments can be imputed to the University … then Title IX may require the school to make equivalent benefits proportionately available to male and female athletes," the report reads.

The Sun Angel Collective told The State Press last year that at least one team-wide deal had been negotiated and distributed to ASU’s 2022-23 men’s basketball team members.

The complicated nature of the relationship between Title IX and NIL could become a lot more straightforward due to several pieces of litigation making their way through courts across the country, which are threatening the NCAA’s “amateurism” model. 

Among those lawsuits is a National Labor Relations Board case brought against USC, the Pac-12 and the NCAA that argues college football and basketball athletes are currently misclassified as student-athletes rather than employees. If some student-athletes were to receive employee designation, salaries provided by schools would likely apply to Title IX regulations.

ASU President Michael Crow told The State Press that were the amateurism model to be overturned by the courts, ASU would be “working to undo" the court's decision.

“I don’t know what the outcome of that would be because there’s too many different ways it could come out,” Crow said. “If the court was to rule that we had to give half of the revenue of the profit-making sports to the athletes within those sports, then we would not be able to support 15 of our teams.”

In order to avoid a Title IX and NIL collision, Lopiano calls on holding the NCAA, universities and third-party collectives accountable.

“The government has to tell the institutions what their obligations are, and the institutions have to fulfill their obligations,” Lopiano said. 

Edited by Walker Smith, Jasmine Kabiri and Shane Brennan

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