This year marks the 50th anniversary of the Patsy T. Mink Equal Opportunity in Education Act, which was passed as part of the Education Amendments in 1972. You might know this law by its much-more-common moniker of Title IX. And while 50 years might seem like ancient history to many of us, Title IX is still making headlines in the 21st century.

Title IX In a Nutshell

Title IX was passed to prevent, and protect people from, discrimination based on gender in any educational program or activity that is funded, in part or in total, by the federal government. This includes:

• School districts
• Charter schools
• For-profit schools
• Postsecondary institutions
• Education agencies
• Vocational rehabilitation agencies
• Libraries
• Museums

Title IX and College Athletics

Almost every aspect of postsecondary education is affected by Title IX, including admissions, campus health services, housing, research labs, and financial assistance. College athletics programs, however, are among the entities that felt the effects of Title IX most extensively and seriously.

This law mandates equitable treatment of all student-athletes, regardless of gender, in terms of athletic recruitment, scholarships, and teams, as well as funding for equipment, travel, facilities, publicity, and many other aspects of athletic programs. In the vast majority of situations, this meant providing equal opportunities to female athletes. Those opportunities do not need to be identical to those that male athletes already enjoy, but they must be equitable.

New Name, Image, and Likeness Opportunities

One such type of opportunity that's currently making headlines is that of using one's name, image, and likeness (NIL) for financial gain. Under rules established by the National College Athletics Association (NCAA), student-athletes have traditionally been ineligible to receive sponsorship or endorsement deals, to sell their autographs or branded merchandise, or to appear in advertisements—until July 2021, that is. Now, several states have either proposed or passed legislation allowing college athletes to pursue NIL-related money-making ventures, with more states sure to follow suit.

However, this landmark shift in the realm of college sports opens a veritable Pandora's box when it comes to Title IX and the potential for schools and their sports teams to violate the law.

How Do NIL Opportunities Affect Title IX Compliance?

At issue is the very real possibility that the institution, its employees, or its athletic booster programs will necessarily become involved with NIL opportunities. In so doing, these entities offer benefits to the student-athlete—and they will run the risk of Title IX violations if they don't provide equal opportunities to all athletes.

One major concern? The relationship between marketing and promotional efforts on the part of a university athletic team or the university itself, and the NIL deals and offers that an individual athlete could receive. Women's athletic teams and individual female team members could argue that their institution is violating Title IX if their events aren't being afforded the same level of marketing efforts as men's teams are—and therefore potentially missing out on NIL opportunities.

Here's another situation that Title IX experts are concerned about. Let's say a local restaurant wants to partner with a male college basketball player. They make a television advertisement that features the athlete practicing free throws—while wearing his team uniform—and then stopping by the eatery to refuel and relax. The ball player has the school to thank for his athletic accomplishments, and by extension, for the money he’ll make from this deal with the restaurant. In other words, the school is involved. Is the college then responsible, under Title IX rules, to actively seek out and provide a similar opportunity for its female sports team members?

Only Time Will Tell How Title IX Is Affected by NIL

Given that this is such uncharted territory, it's impossible to predict just how big an impact the revenue potential of name, image, and likeness guidelines will have on gender equality in postsecondary athletics programs. One thing is for sure, though: it's going to be very interesting for anyone involved in college sports to see what happens when NIL, the NCAA, and Title IX intersect.

If you have been a victim of discrimination or bias under Title IX, whether in athletics or any other arena, contact attorney Joseph D. Lento and the his team at the Lento Law Firm to learn about your rights and how to safeguard them. Give us a call at 888-535-3686.