Women’s sports are on the rise, and so are the conversations regarding Name, Image, and Likeness (“NIL”) in connection with women athletes.  NIL activities have created an exciting new area for college athletes, and with that the importance of equity in opportunities and support for women’s teams.  The legal framework of NIL is evolving on a near-daily basis — many states are creating their own legislation,[1] while discussions of a federal NIL law continue.[2]  With differing NIL laws and no regulatory or governing body over NIL activities, the question remains:  How will universities and colleges ensure equity? 

On December 1, 2023, 32 current and former University of Oregon female student athletes filed a Title IX class-action lawsuit against the University, alleging sex discrimination in participation opportunities, financial aid, benefits, and publicity, including support for NIL opportunities.  The lawsuit could provide the first ruling on whether NIL activities are subject to Title IX, the federal law that prohibits sex discrimination in education programs that receive federal funding.

The lawsuit argues that schools’ NIL support activities qualify under Title IX’s requirements that athletic departments provide equitable opportunities between men and women athletes.  The athletes allege that Oregon “provides its male student-athletes with much greater NIL-related training, opportunities, and income than its female student-athletes.”  As an example, the female athletes allege that “the men’s football team members are given so much publicity and NIL support that Oregon’s quarterback, running back, and wide receiver are listed in On3’s NIL 100 list as, respectively, the 8th, 28th, and 76th highest NIL recipients in the country, the women’s beach volleyball players receive so little publicity and NIL support that none of them—or any other Oregon female student-athlete—receives anywhere near the amounts mentioned on the list.”  The athletes further allege that the work and services provided by Oregon’s NIL collective, Division Street, and larger NIL marketplace Opendorse, are also subject to Title IX. 

The lawsuit further describes the alleged inequities:

Oregon gives more than a third of its male student-athletes—the men on its football team—unbelievably better treatment than it gives to any of its female student-athletes: palatial locker rooms, “fitting” rooms, and player lounges; state-of the-art, personalized gear and equipment in seemingly endless quantities; preferential scheduling for training, practices, and games; chartered flights to away games; hotel stays before home games; huge quantities of food and travel per diems for more food, whether the money is needed or used for food or not; professional-quality practice and competitive facilities; their own theatre with seats upholstered in Ferrari leather, where they can watch movies and sporting events together; round the-clock access to trainers and medical professionals; nearly-unlimited publicity, including to advance their name, image, and likeness (NIL) opportunities and income; highly-paid coaches and assistant coaches with plush offices and special amenities, including their own hot tub; and myriad other forms of support that one can hardly imagine. 

In contrast, the athletes allege that the University failed “to give [the female athletes] any athletic scholarships; adequate locker rooms, practice and competitive facilities; sufficient travel accommodations and daily allowances; appropriate equipment and supplies; even minimal publicity and recognition; and honest or fair recruiting support.”  The athletes request monetary damages connected to the alleged discriminatory practices.

How the case will evolve remains to be seen.  What is certain: the result could impact not only colleges and universities across the United States, but how Title IX will be interpreted going forward.  In the interim, regularly reviewing equity across collegiate sports programs – specifically in resources, budget allocations, and NIL opportunities – is essential for athletic departments to avoid accusations and lawsuits such as this.  It is further important for colleges and universities to ensure proper channels of communication between athletic departments and campus Title IX coordinators when faced with allegations of sex discrimination.  Stay tuned for developments in NIL legislation, and this class action.

[1] https://splc.org/2023/02/the-state-by-state-nil-legislation-guide/

[2] https://www.forbes.com/sites/kristidosh/2023/07/29/4-new-federal-nil-bills-that-have-been-introduced-in-congress/