University of St. Thomas Law Journal

Equal Play: Promoting Awareness and Holding Universities Accountable for Gender Inequalities in College Sports’ NIL Era

By Gabrielle Tremblay*

As a former women’s college student-athlete, I knew my sport was less important to the university than men’s basketball. The basketball players got their own court, exclusive time slots in the workout center, and tutors on road trips, and the justification was that they were the “money-making” sport. Yet no one asks, “Why are basketball and football the most lucrative sports?” This blog will show how one large factor is the systematic under-investment in women’s sports. Instead of addressing this issue, the narrative too often masks gender inequalities by pretending they have been solved by Title IX or allowing women to profit off their name, image, and likeness (NIL). Title IX and NIL are necessary but insufficient. For equality, college sports’ NIL era needs constant awareness of inequalities and university accountability.

Mismatched: Gender Inequalities in NIL

Although NIL compensation to women is generally increasing in amount and number of deals, large disparities still exist. Teamworks, the official NIL reporting service of the NCAA,1 reported that the value of women’s college sports transactions set a record in February 2024.2 Additionally, women’s basketball saw the highest increase in NIL compensation of all college sports in 2024.3 Nevertheless, “the gap in average total deals between revenue-generating and women’s sports continues to widen.”4 The average value of women’s sports transactions was $1,020 while the average value of all sports transactions was $4,422.5 Additionally, Livvy Dunne of LSU Women’s Gymnastics is the only woman currently in the top ten rankings for NIL valuation, coming in second behind Colorado quarterback Shedeur Sanders.6 Six women are in the top one hundred.7

One contributing factor toward these disparities is the majority of NIL collective money going to football and men’s basketball. Collectives are business entities that pool money from businesses and donors to fund NIL activities.8 In 2024, 81.6 percent of NIL compensation came from collectives.9 Collective budget allocation substantially favored men’s sports in 2024: 67.8 percent football, 22.6 percent men’s basketball, 4.1 percent baseball, 4.1 percent women’s basketball, less than 1 percent women’s volleyball, and less than 1 percent softball.10

Throwing the Flag: Title IX Does Not Apply to Most NIL Compensation

Title IX does not apply to most NIL compensation. Title IX, as it relates to college sports, requires that each institution provide equal opportunities to men and women in the selection of sports and level of competition.11 Universities must also award scholarships in proportion to the amount of women and men participating.12 Title IX only applies to federally funded institutions.13 Since collectives are not federally funded and independent from universities, they are not subject to Title IX.14 Thus, Title IX does not apply to at least 81.6 percent of NIL funding.15

Title IX could apply to NIL benefits as federally funded universities become more involved with NIL. Jessop and Sabin argue universities acting as agents for student-athletes, assisting student-athletes with endorsements, or providing NIL education could trigger Title IX.16 Nevertheless, they wrote that “it is difficult to imagine” the possibility of NIL compensation triggering Title IX.17 However, Jessop and Sabin, writing in 2021, did not have the benefit of hindsight. In October 2022, the NCAA released new guidelines on institutional involvement with NIL.18 Permissible activities include “[e]ducational sessions for [student-athletes]: Financial literacy, taxes, entrepreneurship, social media, etc.,” “[e]ducational sessions for NIL entity (e.g., Collectives),” “[e]ngage NIL entity to inform [student-athletes] of NIL opportunities,” or “[i]ntroduce [student-athletes] to representatives of NIL entity.”19 Since then, many officials in athletic departments have endorsed NIL collectives or even appeared in the collective’s commercials.20 All of the NCAA’s permissible institutional activities resemble those that Jessop and Sabin said could trigger Title IX.21 Therefore, the possibility of institutions getting involved in NIL is no longer “difficult to imagine.”22

Although good arguments have been made for possible litigation under Title IX for NIL inequalities,23 such an approach would not lead to total equality because Title IX does not reach all NIL activity. Even assuming Title IX applies to institutions’ NIL education, endorsements of collectives, etc. and universities increase these activities, Title IX would never reach all NIL compensation until the institutions become involved with every single collective.24 Overall, Title IX has made great strides toward gender equality in college sports, but it is insufficient in the college sports’ NIL era.

Evening the Playing Field: Greater Awareness and University Accountability

Just as Title IX is a necessary but insufficient solution, so too are opportunities for women to build their brand through NIL. Some have expressed excitement for NIL opening opportunities for women. For instance, Opendorse co-founder said, “What has been really cool to see is how many athletes on our platform, especially the women, lean into the opportunities to be creative and build a brand. They don’t want to get paid just for going to practice and games.”25 Similarly, Jessop and Sabin argue that the most effective route to gender equality in college sports is giving women opportunities to find their own endorsement deals, since athletic departments have failed to invest in them.26 Even if women do take this initiative, it does not let universities off the hook for underinvesting.

Neither Title IX nor NIL solves the systematic under-investment in women’s sports. Even before student-athletes could profit off of their NIL, the Women’s Sports Foundation reported not only Title IX noncompliance,27 but also “gross gender inequities across all college divisions, including disproportionately more athletic opportunities provided to men athletes and a shortfall in the investment of resources in women’s athletic programs such as dollars allocated for athletic scholarships, recruiting, and coach compensation.”28 Additionally, Title IX does not require equal funding in endorsements for men’s and women’s sports.29 In 2017–18, more than double the funds on Division I programs were spent on men than women.30

Title IX and NIL are necessary steps but do not replace university compliance and investment. Especially given Title IX’s general inapplicability to the gender disparities in NIL compensation, gender inequality cannot be masked by excitement for women building their brands. Rather, Title IX and NIL opportunities for women must work together with greater university investment in women’s potential.

* Gabrielle Tremblay, JD Candidate, University of St. Thomas School of Law Class of 2026 (Associate Editor).

  1. Michelle Brutlag Hosick, NCAA Selects Teamworks to Provide NIL Services, NCAA (Apr. 25, 2024), https://www.ncaa.org/news/2024/4/25/media-center-ncaa-selects-teamworks-to-provide-nil-services.aspx [https://perma.cc/2LXP-D7HT]. ↩︎
  2. Teamworks Influencer, NIL Year 3 Data Report, Teamworks 3, https://explore.teamworks.com/hubfs/TW%20Influencer%20NIL%20Data%20Year%203.pdf [https://perma.cc/K2KT-U89B] (last visited Sept. 10, 2024). ↩︎
  3. Joe Drape & Allison McCann, In College Sports’ Big Money Era, Here’s Where the Dollars Go, N.Y. Times (Aug. 31, 2024), https://www.nytimes.com/interactive/2024/08/31/business/nil-money-ncaa.html [https://perma.cc/7U2J-ZMXP] (interpreting Opendorse, NIL at 3: The Annual Opendorse Report, https://biz.opendorse.com/blog/nil-3-opendorse-report/ [https://perma.cc/D69K-NNJ9] (last visited Sept. 22, 2024)). ↩︎
  4. Teamworks, supra note 2, at 3. ↩︎
  5. Teamworks, supra note 2, at 3–4. ↩︎
  6. On3 NIL 100, On3NIL, https://www.on3.com/nil/rankings/player/nil-100/ [https://perma.cc/46QH-AVTJ] (last updated Sept. 14, 2024).
    ↩︎
  7. Id. ↩︎
  8. Pete Nakos, What are NIL Collectives and How Do They Operate?, On3NIL (July 6, 2022), https://www.on3.com/nil/news/what-are-nil-collectives-and-how-do-they-operate/ [https://perma.cc/HZ5N-X7ZE]. ↩︎
  9. Opendorse, supra note 3, at 5. ↩︎
  10. Id. at 10. ↩︎
  11. Alicia Jessop & Joe Sabin, The Sky Is Not Falling: Why Name, Image, and Likeness, Legislation Does Not Violate Title IX and Could Narrow the Publicity Gap Between Men’s Sport and Women’s Sport, 31 J. Legal Aspects Sport 253, 261 (2021) (citing Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71413 (Dec. 11, 1979)). ↩︎
  12. Id. at 263 (citing 34 C.F.R. § 106.37 (2020)). ↩︎
  13. 20 U.S.C.A. § 1681 (2020). ↩︎
  14. Nakos, supra note 8. ↩︎
  15. Opendorse, supra note 3, at 5. ↩︎
  16. Jessop & Sabin, supra note 11, at 271. ↩︎
  17. Jessop & Sabin, supra note 11, at 270. ↩︎
  18. See generally NCAA Division I Institutional Involvement in a Student-Athlete’s Name, Image, and Likeness Activities, NCAA (2022), https://ncaaorg.s3.amazonaws.com/ncaa/NIL/D1NIL_InstitutionalInvolvementNILActivities.pdf [https://perma.cc/Y3KA-WEY9]. ↩︎
  19. Id. at 3. ↩︎
  20. Abigail Oliphant, NIL Collectives and Title IX: A Proactive Consideration of Title IX’s Application to Donor-Driven Collectives, 57 Ind. L. Rev. 531, 550–51 (2023). ↩︎
  21. Jessop & Sabin, supra note 11, at 271. ↩︎
  22. Jessop & Sabin, supra note 11, at 270. ↩︎
  23. See generally Oliphant, supra note 20. ↩︎
  24. See supra notes 13–16 and accompanying text. ↩︎
  25. Drape & McCann, supra note 3. ↩︎
  26. See Jessop & Sabin, supra note 11, at 274–81. ↩︎
  27. Women’s Sports Foundation, 50 Years of Title IX: We’re Not Done Yet 8 (May 4, 2022) https://www.womenssportsfoundation.org/articles_and_report/50-years-of-title-ix-were-not-done-yet/ [https://perma.cc/X7K7-HD8H]; see also Rachel Axon, What Happens if a School Doesn’t Comply with Title IX? Not a Whole Lot., USA Today (Dec. 15, 2022), https://www.usatoday.com/in-depth/news/investigations/2022/12/15/title-ix-enforcement-essentially-toothless-mired-red-tape-delays/10803850002/ [https://perma.cc/9SG7-RGXC]. ↩︎
  28. Women’s Sports Foundation, supra note 27, at 8. ↩︎
  29. Jessop & Sabin, supra note 11, at 274. ↩︎
  30. Ellen J. Staurowsky et al., Chasing Equity: The Triumphs, Challenges, and Opportunities in Sports for Girls and Women, Women’s Sports Foundation 49 (Jan. 2020), https://www.womenssportsfoundation.org/wp-content/uploads/2020/01/Chasing-Equity-Full-Report-Web.pdf [https://perma.cc/3NGP-9Q8A] (“Of the more than $13 billion spent on athletic programs at the NCAA Division I level in 2017–18, 45% was spent on men’s programs ($620+ million), 22% on women’s programs ($301+ million).”). ↩︎

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