The University of Oregon Ducks have had a winning season on and off the football field: The team reached the Pac-12 Conference title game, and star players achieved among the highest name, image and likeness (NIL) valuations for college athletes in the nation. But a lawsuit filed against the soon-to-be Big Ten Conference program on Nov. 29, 2023, puts the university at the center of a dispute over gender equity in college sports, including with respect to its involvement in NIL benefits.
Notably, the lawsuit is one of the first legal challenges to unequal access to NIL opportunities as a violation under Title IX of the Education Amendments of 1972 (Title IX). More broadly, this litigation raises Title IX compliance concerns for any institution with an intercollegiate athletics program in the era of NIL. This Holland & Knight alert focuses on the lawsuit's allegations relating to disparities in NIL opportunities and the implications for college athletics programs nationwide.
The University of Oregon Lawsuit
The named plaintiffs in Schroeder et al. v. University of Oregon are members of the university's women's beach volleyball and club rowing teams. The plaintiffs allege the university is violating Title IX through its "vastly superior treatment" of football players in comparison to female student athletes. The complaint punctuates its claims by highlighting the stark contrast between the beach volleyball team's practice space – a public park that is often littered with feces and drug paraphernalia – and the football team's practice facilities, which include a hot tub, barber shop and "athlete fitting room" modeled after the tailor shop from The Kingsman movie franchise. But the alleged inequities extend beyond practice facilities and include academic support, meals and snacks, scholarships and NIL opportunities.
With respect to NIL, the lawsuit alleges the university provides its male athletes "much greater" NIL opportunities through Division Street, its NIL collective, and Opendorse, the Oregon Ducks NIL Marketplace. Though Division Street is a legal entity separate from the university, the lawsuit attempts to hold the university responsible for the disproportionate opportunities allegedly afforded to male athletes through the collective. The lawsuit attributes the disparity in part to the fact that Division Street is, according to recruiting website On3, the third-most ambitious NIL collective in the nation.
NIL and Publicity Under Title IX
NIL opportunities likely fall under Title IX's purview. The base of NIL is publicity rights. The equivalence for men and women of "access to publicity" is a factor relevant to determining whether an institution's athletics program complies with Title IX. (See 34 C.F.R. § 106.41(c)(10).) Thus, any NIL benefit generated by an institution would trigger Title IX compliance concerns via an extension of the equal opportunity for publicity requirements. An allegation of unequal access to NIL opportunities may, in turn, form the basis for a Title IX claim as seen in the University of Oregon lawsuit. The 1979 "Policy Interpretation: Title IX and Intercollegiate Athletics" published by the U.S. Department of Education's Office of Civil Rights provides:
[Title IX] [c]ompliance with regard to publicity will be assessed by examining, among other factors, the equivalence for men and women of:
(1) Availability and quality of sports information personnel;
(2) Access to other publicity resources for men's and women's programs; and
(3) Quantity and quality of publications and other promotional devices featuring men's and women's programs[.]
44 Fed. Reg. 71417 (emphasis added)
An institution or an agent under its direction and control assisting its athletes with securing NIL deals may be considered a "publicity resource" or "promotional device." Therefore, an institution must have a careful evaluation of the legal structure supporting its NIL program or prepare for defending its program's compliance.
Future Considerations
A university program that operates to assist only a high predominance of male student athletes in securing NIL deals will raise Title IX concerns. In that case, asserting a legitimate, nondiscriminatory reason for the disparity as a defense would face difficult legal challenges. By contrast, the risk of Title IX noncompliance may be greatly reduced if an institution limits involvement on respective NIL deals and 1) evaluates deals brought for consideration solely for legal and compliance reasons, 2) applies equal criteria in its assessment of deals and 3) refrains from involvement in structuring, negotiating or proposing terms for deals. Access to NIL support programs such as education, financial literacy and compliance must be provided on an equal basis.
NCAA President Charlie Baker's recent action in asking member institutions to assess the possibility of direct NIL deals with Division I-level institutions provides another area in which universities should consult with counsel to assess the collective and individual implications for their athletics programs.
