NIL Deals Implicate New Landscape of Title IX Obligations

Paige Gilbert is a junior in the Georgetown University’s College of Arts and Sciences at Georgetown University, majoring in Government and Justice and Peace Studies.

Since the introduction of NIL (Name, Image, and Likeness) deals for college athletes in July 2021, there has been ongoing debate over whether these benefits will create conflicts between universities and their Title IX obligations. Given the newly available benefits, debate has emerged over whether the deals will trigger inequities between female and male athletic programs, constituting a Title IX violation. For background, Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex by schools that receive federal financial assistance; this requirement extends to all school-related programs and activities, including athletic teams.¹ Thus, schools are required to ensure that any disparity in benefits, opportunities, or treatment between male and female athletes is not a result of discrimination.

The NIL policy passed in 2021 by the NCAA gives student athletes legal control over their name, image and likeness, enabling them to make deals and profit from their fame.² In practice, NIL deals can look like endorsements, sponsorship, or direct financial assistance from the University or a third party.³ Given the evolving nature of Title IX and NIL deals, the Department of Education’s Office for Civil Rights (OCR) has been faced with addressing the question of to what extent schools are subject to compliance with Title IX requirements if their male athletes are receiving greater NIL opportunities compared to female athletes. For example, Arch Manning, a sophomore on the University of Texas football team, currently holds the highest NIL valuation of all college athletes with a deal worth $6.6 million.⁴ These deals, combined with the fame they carry, could lead to a potential Title IX violation for the University of Texas if they capitalize on Manning’s public appeal by elevating his image further. While Texas may want to leverage Manning’s fame to draw in more resources and attention for their football program, they must ensure that they are not disproportionately publicizing or promoting male athletes over their female counterparts.

The OCR released a 9-page fact sheet in January 2025 outlining the requirements schools must abide by in terms of equal benefits, opportunities, and treatment while navigating the NIL atmosphere.⁵ The OCR maintains that athletic programs must “provide equivalent benefits, opportunities, and treatment in the components of the school’s athletic program that relate to NIL activities.”⁶ Specifically, the OCR holds that a school could be in violation of Title IX if the publicity used for the purposes of obtaining NIL opportunities is not equivalent between male and female student-athletes. Publicity can be measured through information personnel, publicity resources, and quality and quantity of promotional devices. Department employees and NIL resources must be equally accessible to all student-athletes, so they have equal knowledge and support in negotiating NIL deals. Moreover, when schools compensate athletes for the use of a student-athlete’s NIL, the compensation constitutes “athletic financial assistance” under Title IX, which mandates that such assistance be distributed “proportionately” between male and female athletes.”⁷

Perhaps the most controversial tension between Title IX and NIL deals are the third party agreements because while the compensation does not qualify as “athletic financial assistance,” it has the ability to create disparities based on sex in a school’s athletic program. For example, the University of Texas might run afoul of its Title IX obligations if it began to flood its co-ed athletic social media accounts with images of Arch Manning or reserve auditoriums every Friday for meet and greets with Manning because of the attention he has received from third party agreements. The OCR addresses this aspect by stating that “the fact that funds are provided by a private source does not relieve a school of its responsibility to treat all of its student-athletes in a nondiscriminatory manner.”⁸ Thus, if male athletes receive greater NIL deals from third parties, schools are prohibited from treating these athletes disproportionately to female athletes through publicity or special treatment. Disproportionate treatment by schools as a result of third party NIL deals would constitute a Title IX violation.

Some individuals push back against the “proportional financial assistance” requirement by claiming that mandating equal pay when “not all sports generate equal revenue” will force some colleges out of athletics.” ⁹To counter this, attorneys argue that this debate is not about profitability but about “sex discrimination by nonprofit educational institutions receiving federal funds.”¹⁰ Further, college athletics are governed by Title IX because they are an integral part of the educational system, and as such, they should not be discussed similarly to professional sports leagues which operate under a different model where men are often paid more than women.

In sum, the January 2025 OCR fact sheet ensures that the new landscape of NIL deals falls in line with Title IX compliance by not allowing federal financial assistance to create disparities between the treatment and opportunities between male and female athletes. However, the fact sheet was released days before the presidential administration changeover, so it is unclear how the Trump Administration will proceed and choose to enforce or not enforce the OCR’s application of Title IX.