Almost fifty years after Congress enacted Title IX, the NCAA adopted
its interim Name, Image, and Likeness (NIL) policy, permitting college
athletes to be compensated for use of their NIL. While some athletes gain
significantly from the NIL regime, most athletes do not capture its benefits.
Further, earnings under the NIL regime are distinctly stratified between
men’s and women’s sports. The vast majority of NIL money flows to football
and men’s basketball. Athletes in other programs—especially women’s
sports—struggle to find space in the NIL market.
Today, the NCAA is approaching a groundbreaking settlement that will
reshape the NIL system. If finally approved, the proposed settlement in House
v. NCAA, a class action lawsuit challenging the NCAA’s prior prohibition on
compensating athletes for use of their NIL, will create two significant
changes. First, universities will be allowed to facilitate NIL deals between
student athletes and third parties. Second, universities will be allowed to
participate in a revenue sharing program in which they can directly pay
student athletes a portion of the schools’ annual athletic revenue, including
money from television broadcast rights.
Conference realignment, the process by which universities reorganize
themselves into different athletic conferences for financial gain by bargaining
for larger television broadcast deals, will amplify gendered consequences of
the NIL regime and any inequities arising from the post-House revenue
sharing system. Conference realignment will expose the NIL “winners” to
larger media markets while imposing travel-based “human costs” on the NIL
“losers,” who are unable to offset these costs by generating NIL money.
Likewise, by increasing the revenue schools receive from selling their
broadcast rights, conference realignment will directly impact inequities in
revenue sharing earnings between male and female athletes.
This Comment explores the effects of NCAA conference realignment
on student athletes in the NIL era and emphasizes that these effects should be
considered when implementing a revenue sharing system like that proposed
in the House settlement. This Comment argues that by exacerbating sex-based disparities baked into the current NIL regime and likely to be perpetuated by
future policies, universities’ conference realignment decisions constitute
disparate impact discrimination under Title IX. These decisions
disproportionately impact female athletes by exacerbating NIL earning
disparities and neglecting to consider travel-based costs for female athletes.
Universities do not engage in conference realignment out of educational
necessity, but rather to maximize profits generated from contracts for
television broadcast rights. To ameliorate the gendered impacts of conference
realignment, this Comment urges the NCAA to address the underlying gender
disparities in the NIL regime. In doing so, this Comment analyzes the
proposed House settlement and recommends that the House settlement
confront looming Title IX problems by creating a revenue sharing system for
university-facilitated NIL and athletic revenue based on Title IX’s
proportionate equality standard.
