How to End NIL?

[OrediggerPoke]

This thought came to me when bringing up lawsuits came up over NIL. I hope an attorney out there will bring a case to sue on behalf of some women athletes somewhere claiming that what is going on in the NIL world is violating Title IX. Perhaps that could save college sports as we know them.

Title IX prohibits gender based discrimination at universities and has been interpreted as requiring universities to provide equal opportunities to men and women athletes. We know that NIL collective money is largely going to men’s basketball and men’s football with very little going to other sports and women in particular. If university collusion in the collection or distribution of NIL funds can be proven, that seems to be a potential violation of Title IX. So if the university who is communicating with the private collective isn’t providing instructions that funds should be distributed equally to men and women, that seems to be a good case to try.

Here is my suggestion for any attorney out there who may be looking to save college sports and women sports in particular:

1) FOIA the public schools for all communications between the school and collective.
2) Identify women athletes who are good at their sports but who aren’t receiving much in the way of NIL dollars and who are willing to be plaintiffs.
3) Identify a university employee/coach/AD directly communicating or soliciting NIL funds from the collective.  We know this is happening given the facts set forth in the Tennessee case.   
4) Bring a lawsuit followed by a subpoena to both the athletic department and the collective for all communications between the two and an accounting of NIL funds generated and disbursed.  
5) Perform a simple analysis of how much of this NIL money is going to men’s sports versus women’s sports.  
6) If you can tie the communications between the university to the funds and prove that more money is going toward men’s sports, you might have identified a title ix violation and completely alter the current NIL Wild West model.

 

[Poke in New England]

Interesting scenario. At one point, I think some of the highest paid individual athletes in terms of NIL were actually female. Gymnasts I think. But I suspect most of this money came from outside collectives.

Up here in the Northeast, the Dartmouth men's basketball team just voted to join a local union. The school is pushing back hard, should be an interesting fight if nothing else. They are 6-21 and won 2 conference games all year, BTW

 

[OrediggerPoke]

Interesting scenario. At one point, I think some of the highest paid individual athletes in terms of NIL were actually female. Gymnasts I think. But I suspect most of this money came from outside collectives.

Correct that a gymnast from LSU was a high earner. But the aggregate of funds is nowhere close. Probably closer to men 90 percent and women 10 percent.

 

[doreno5]

Interesting scenario. At one point, I think some of the highest paid individual athletes in terms of NIL were actually female. Gymnasts I think. But I suspect most of this money came from outside collectives.

Correct that a gymnast from LSU was a high earner. But the aggregate of funds is nowhere close. Probably closer to men 90 percent and women 10 percent.

I read where Caitlin Clark is pulling down in excess of $10 Million a year. Mostly in endorsement money.

 

[OrediggerPoke]

Correct that a gymnast from LSU was a high earner. But the aggregate of funds is nowhere close. Probably closer to men 90 percent and women 10 percent.

I read where Caitlin Clark is pulling down in excess of $10 Million a year. Mostly in endorsement money.

That’s definitely amazing. But probably a small portion from collectives.

 

[laxwyo]

Nil does need to end. I could see the title IX argument working. Odd they’ve used title IX for all sorts of things except when a dude is swimming on the girls team.

 

[WestWYOPoke]

The way NIL currently exists, collectives are private entities. They are not run or funded by schools. This means Title IX does not apply as private organizations don't fall under that umbrella.

However, with the recent court rulings that are moving everything closer to schools paying athletes directly, this could definitely come into play in the near future. Then it might come down to an argument of Title IX vs fair market value compensation... no clue how that ends up.

 

[OrediggerPoke]

The way NIL currently exists, collectives are private entities. They are not run or funded by schools. This means Title IX does not apply as private organizations don't fall under that umbrella.

However, with the recent court rulings that are moving everything closer to schools paying athletes directly, this could definitely come into play in the near future. Then it might come down to an argument of Title IX vs fair market value compensation... no clue how that ends up.

You are absolutely right that Title IX only applies to academic institutions which receive federal funding. It does not apply to a collective directly.

The focus, if a Title IX case were brought, is not on what some private entity does but what the academic institution does. To me - it’s a good argument if someone affiliated with the athletic department is actively soliciting funds for men’s basketball and men’s football and not doing the same for women’s sports (or with knowledge where the money is going).

 

[ragtimejoe1]

Saban thinks a profit sharing model might be workable but not employees.

 

[WYO_Fan_inPA]

Nil does need to end. I could see the title IX argument working. Odd they’ve used title IX for all sorts of things except when a dude is swimming on the girls team.

Yeah I agree.

Why shouldn't athletes make money off their name and image? They have been getting screwed for decades with schools and the NCAA making gobs and gobs off money off them. If I was a student athlete and a local business wanted to have me in a commercial, why couldn't I be? It doesn't have anything to do with being a student because they are showcasing my athletic abilities.

 

[OrediggerPoke]

Nil does need to end. I could see the title IX argument working. Odd they’ve used title IX for all sorts of things except when a dude is swimming on the girls team.

Yeah I agree.

Why shouldn't athletes make money off their name and image? They have been getting screwed for decades with schools and the NCAA making gobs and gobs off money off them. If I was a student athlete and a local business wanted to have me in a commercial, why couldn't I be? It doesn't have anything to do with being a student because they are showcasing my athletic abilities.

I don’t think any one is arguing that we should prevent businesses from actually using athletes’ likeness for legitimate business marketing purposes.

Collectives have nothing to do with marketing. They are simply a vehicle for boosters to funnel money to college athletes wholly unrelated to actual marketability value.

 

[ZapPoke]

NIL may just die anyway with the athlete’s lawsuits making them employees and unionizing. I seriously think they are going to kill college athletics with all of these changes. The NFL and the NBA are going to have to step up and turn these into farm leagues and contract with the schools since they already have the facilities and fan bases. At least then there could be some parity built in instead of an NIL bidding war.

 

[ragtimejoe1]

Yeah I agree.

Why shouldn't athletes make money off their name and image? They have been getting screwed for decades with schools and the NCAA making gobs and gobs off money off them. If I was a student athlete and a local business wanted to have me in a commercial, why couldn't I be? It doesn't have anything to do with being a student because they are showcasing my athletic abilities.

I don’t think any one is arguing that we should prevent businesses from actually using athletes’ likeness for legitimate business marketing purposes.

Collectives have nothing to do with marketing. They are simply a vehicle for boosters to funnel money to college athletes wholly unrelated to actual marketability value.

It's still free market enterprise. The only solution is some sort of structure that players agree to. I'm not sure that will be possible. Why would the players give anything up at this point? The courts have put the ball in their court and they have no motivation to give it up.

Tiered football will be the first step. The further down the tiers, the less nil money floating around. We'll be somewhere at or just above fcs when the dust settles. I believe some of the current p5 won't be able to survive and will create the level below the big dogs. Nil will still matter some in that group. Bsu et al will get in that group; we won't.

 

[OrediggerPoke]

I don’t think any one is arguing that we should prevent businesses from actually using athletes’ likeness for legitimate business marketing purposes.

Collectives have nothing to do with marketing. They are simply a vehicle for boosters to funnel money to college athletes wholly unrelated to actual marketability value.

It's still free market enterprise. The only solution is some sort of structure that players agree to. I'm not sure that will be possible. Why would the players give anything up at this point? The courts have put the ball in their court and they have no motivation to give it up.

Tiered football will be the first step. The further down the tiers, the less nil money floating around. We'll be somewhere at or just above fcs when the dust settles. I believe some of the current p5 won't be able to survive and will create the level below the big dogs. Nil will still matter some in that group. Bsu et al will get in that group; we won't.

The players won’t give up anything. But what they are doing is actually moving the needle in the direction of less opportunities for student athletes in future years because schools will begin dropping athletics.

While I’m all for the free market, Title IX decisions have been pretty clear that equal opportunities must exist for men and women in higher education and college athletics regardless as to any revenues actually generated. Congress can and has legislated around the free market in this regard.

 

[ragtimejoe1]

It's still free market enterprise. The only solution is some sort of structure that players agree to. I'm not sure that will be possible. Why would the players give anything up at this point? The courts have put the ball in their court and they have no motivation to give it up.

Tiered football will be the first step. The further down the tiers, the less nil money floating around. We'll be somewhere at or just above fcs when the dust settles. I believe some of the current p5 won't be able to survive and will create the level below the big dogs. Nil will still matter some in that group. Bsu et al will get in that group; we won't.

The players won’t give up anything. But what they are doing is actually moving the needle in the direction of less opportunities for student athletes in future years because schools will begin dropping athletics.

While I’m all for the free market, Title IX decisions have been pretty clear that equal opportunities must exist for men and women in higher education and college athletics regardless as to any revenues actually generated. Congress can and has legislated around the free market in this regard.

It's not a title ix issue. Just because football dominates revenue doesn't mean it's unjust. It just means it has a market. In many cases, if football is removed, many sports would be dropped.

Tiered athletics is probably the only answer or seperate football.

 

[OrediggerPoke]

The players won’t give up anything. But what they are doing is actually moving the needle in the direction of less opportunities for student athletes in future years because schools will begin dropping athletics.

While I’m all for the free market, Title IX decisions have been pretty clear that equal opportunities must exist for men and women in higher education and college athletics regardless as to any revenues actually generated. Congress can and has legislated around the free market in this regard.

It's not a title ix issue. Just because football dominates revenue doesn't mean it's unjust. It just means it has a market. In many cases, if football is removed, many sports would be dropped.

Tiered athletics is probably the only answer or seperate football.

It is a title ix issue if the university is working closely with the collective.

 

[ragtimejoe1]

It's not a title ix issue. Just because football dominates revenue doesn't mean it's unjust. It just means it has a market. In many cases, if football is removed, many sports would be dropped.

Tiered athletics is probably the only answer or seperate football.

It is a title ix issue if the university is working closely with the collective.

Define working closely with and how they are preferentially favoring men other than marketplace value. Men in non-revenue sports have the same value as women. It's free market. It might destroy but it's free market.

The one thing they could do is put college back in athletics. Increase the academic astringency for eligibility. If you aren't eligible, you can't play and likely won't demand much in nil. They won't do that because it will kill their cash cow.

At the end of the day, like it or not, the courts set the stage. There's no going back.

 

[OrediggerPoke]

It is a title ix issue if the university is working closely with the collective.

Define working closely with and how they are preferentially favoring men other than marketplace value. Men in non-revenue sports have the same value as women. It's free market. It might destroy but it's free market.

The one thing they could do is put college back in athletics. Increase the academic astringency for eligibility. If you aren't eligible, you can't play and likely won't demand much in nil. They won't do that because it will kill their cash cow.

At the end of the day, like it or not, the courts set the stage. There's no going back.

Several lawyers believe different than you and the lawsuits have started.

https://www.nixonpeabody.com/insights/alerts/2023/12/12/title-ix-complaint-against-university-of-oregon-features-nil-arguments

https://www.hklaw.com/en/insights/publications/2023/12/lawsuit-with-claim-of-unequal-access-to-nil-opportunities-raises

https://www.mondaq.com/unitedstates/sport/1405678/lawsuit-with-claim-of-unequal-access-to-nil-opportunities-raises-new-title-ix-concerns

 

[ragtimejoe1]

Define working closely with and how they are preferentially favoring men other than marketplace value. Men in non-revenue sports have the same value as women. It's free market. It might destroy but it's free market.

The one thing they could do is put college back in athletics. Increase the academic astringency for eligibility. If you aren't eligible, you can't play and likely won't demand much in nil. They won't do that because it will kill their cash cow.

At the end of the day, like it or not, the courts set the stage. There's no going back.

Several lawyers believe different than you and the lawsuits have started.

https://www.nixonpeabody.com/insights/alerts/2023/12/12/title-ix-complaint-against-university-of-oregon-features-nil-arguments

https://www.hklaw.com/en/insights/publications/2023/12/lawsuit-with-claim-of-unequal-access-to-nil-opportunities-raises

https://www.mondaq.com/unitedstates/sport/1405678/lawsuit-with-claim-of-unequal-access-to-nil-opportunities-raises-new-title-ix-concerns

Well, we can revisit in a few years to see what it turns out like. They all have access to nil if they can create a market for themselves. It's easier to create a market in football because football has a bigger market.

There will be a new system eventually that allows players in the biggest conference(s) to capitalize on the market potential. We won't be part of that system. We're going to be with bottom end g5 and fcs teams eventually. According to this board, that is probably where we belong.

 

[laxwyo]

Nil does need to end. I could see the title IX argument working. Odd they’ve used title IX for all sorts of things except when a dude is swimming on the girls team.

on cue! a group of like women athletes suing for title IX violations.

https://www.cnn.com/2024/03/15/sport/ncaa-title-ix-violations-transgender-spt-intl/index.html