NIL and Collectives: The Title IX Question

Panelists

  • Kelleigh Irwin Fagan, Partner at CCHA (Moderator)
  • Fred Glass, Partner at Taft
  • James Nussbaum, Associate General Counsel at Indiana University
  • Todd Shumaker, Partner at CCHA

Download Presentation Slides Here

Webinar Recap

Many LEAD1 athletics departments have embraced a collective approach to college athlete NIL opportunities whereby groups of alumni from institutions pool resources together to create NIL opportunities for college athletes from their specific institutions. In fact, recently it was reported that 54 of these collectives have been created among 42 different FBS institutions. While these collectives seem to be all the rage, questions remain as to whether they potentially trigger Title IX scrutiny. On that front, on Monday, LEAD1 hosted its latest webinar on the intersection between Title IX and NIL. Here are some of the important takeaways from the webinar. 

  1. While these NIL collectives are described as being distinct and separate from their institutions, generally the more closely aligned an institution is with their collective(s), the greater possibility for legal risk under Title IX. In that vein, it is critical that institutions explicitly define their level of involvement with their collective(s). For that matter, any institutional assistance regarding athlete NIL opportunities must be proportional between male and female athletes. So even if an institution is not discriminating, it can still be drawn into a Title IX violation by assisting an outside third party, like a collective, that is. Thus, any institutional assistance with a collective should be carefully pursued.
  2. As more states repeal and/or scale down their NIL laws allowing for more direct institutional involvement, institutions in these states still must be very careful not to run afoul of Title IX. In fact, just this past week, Tennessee was the latest state to modify their NIL law to allow institutions within the state to directly facilitate NIL payments for their athletes. As more and more states lessen their NIL restrictions, more institution-led collectives will arise, including marketplace exchanges where athletes can directly connect with outside third parties for NIL opportunities under the institution’s umbrella. So even if your state law becomes less restrictive, that still does not obviate Title IX requirements. Thus, any institutional assistance with NIL, even very minimal, could still be viewed as indirect involvement and therefore trigger Title IX.
  3. Title IX analysis regarding institutional involvement with collective(s) is very fact specific, so institutions are best advised to consult with legal counsel. Whether an institution can educate a collective on Title IX requirements, allow the collective to use school colors or intellectual property, or the institution even merely vet the formation of a collective are all fact specific questions that could lead to Title IX scrutiny. Therefore, any interaction with a collective by an athletic department should be treated very carefully. Even if your collective is unaffiliated with your institution, it would still be prudent to seek counsel on these legal issues presented.

So, in short, for Title IX purposes, issues remain as to whether these collectives are truly independent of institutions or whether they are just an extension of them. While the Office of Civil Rights (OCR) has not provided any guidance to this point on the issue, the more involved your institution is with the collective, the more careful you should be.