Will the NCAA Invoke Title IX to Influence College Athlete Name, Image & Likeness (NIL) Legislation?

New Hampshire’s HB 1505 has progressed through the Education Committee at the House of Representatives. It is less dense than California’s Fair Pay to Play Act that triggered over 20 states to follow suit proposing similar bills. New Hampshire’s current iteration of the bill is nearly cut and pasted from the National College Players Association (NCPA) website. This bill would go into effect 60 days after the Governor’s signature. In Washington, the Senate Committee on Science, Commerce, and Transportation will have a hearing on the status of NIL legislation and amateurism on February 11.

Forbes and some other media outlets have recently published articles that raise questions about the impact of Title IX on proposed NIL legislation. Title IX is complex and was passed to create gender-equitable education opportunities. Free association of Title IX in recent decades leads most to reply women’s sports. Unsurprisingly, Julie Roe Lach, of Church Church Hittle + Antrim, a group of attorneys with NCAA national office was quoted in the Forbes article warning about the perils of NIL when viewed through the powerful, federal Title IX lens. Prior to this article, proponents of NIL bills and the NCAA had not publicly raised Title IX concerns.

A core purpose of NIL legislation is to place college athletes in a free-market to profit as any other student would be able – such as a concert pianist signing a Steinway endorsement deal. The hypotheticals raised by Title IX implications are not frivolous, however, they assume the institution to be an involved intermediary between the athlete and sponsor. The disbursement of funds in this fashion would certainly trigger Title IX.

Title IX implications are more likely the more intertwined institutions are with the marketing, promotion, or disbursement of NIL funds Of course, the major revenue producing sports of football and men’s basketball are far more likely to generate athlete revenue than any other sport. The prospective insertion of Title IX into this argument would end up hurting female athletes and is a subterfuge to achieve the NCAA goal of federal legislation drawn to its own benefit – to keep the system as status quo as possible in the face of a national, bipartisan effort towards athletes NIL rights. Female college athletes typically have an even smaller window to capitalize on their talents than male athletes due to massive salary and endorsement differences between genders at the professional level. Taking the NIL tool away from college athletes and giving it back to athletic departments would preclude a free market for male and female athletes.