Billions in Revenue, Pennies for Women: NIL Creates NCAA Title IX Violations

Sports programs at NCAA Power 5 schools generated almost $6 billion ($5,772,515,049) combined. Women's sports accounted for approximately 2.2% of that figure, while men’s sports generated approximately 97.8%. In dollars, women generated $128,415,761 and men brought in $5,644,099,288. These figures represent the revenue generated by the universities, not money from athletes’ NIL deals.

Current NIL deals are paid by third parties, not the universities. The House v. NCAA Stipulated Settlement (“Settlement”) allows each Power 5 school to pay a total of $23.1 million directly to their student-athletes. Each school will create their own pay structure for their athletes. Inevitably, some athletes will be paid more than others. The question is, if male athletes are paid disproportionately more of that money than female athletes, is that a violation of Title IX?

What is Title IX?

Title IX is a federal civil rights law and is part of the Education Amendments of 1972 signed into law by President Richard M. Nixon on June 23, 1972. One hundred ninety-five (195) of your U.S. Congress representatives voted against Title IX, but, fortunately, 281 of them had reason to vote for fairness and favored equity. 

Title IX requires that male and female student-athletes receive equitable treatment and benefits in federally funded education programs, which includes athletics. 

That sounds vague. What the law really requires is equality in three areas: 1) effective accommodation of student interests and abilities (known as participation); 2) athletic financial assistance (scholarships); and 3) what’s known as the “Laundry List,” which is 11 categories of benefits, including equipment and supplies, scheduling of games and practice times, travel and daily per diem allowances, access to tutoring, coaching, locker rooms, practice and competitive facilities, medical and training facilities and services, publicity, recruitment of student athletes and support services.

Compliance with Title IX is evaluated globally at a university, across entire athletic programs rather than individual sports. Doing so allows for differences in the type and number of opportunities offered to each sex, provided the opportunities meet the interests and needs of underrepresented groups. Title IX also prohibits economic justifications for discrimination, meaning schools cannot prioritize revenue-generating sports like football at the expense of equitable opportunities for women.

Who Should Get What?

Despite Title IX protections, demand for the largest share of the $23.1 million will be from the highest generating sports at any particular university. Statistically, that sport will be a men’s sport, either football or basketball. Those sports would account for 77.4% and 18.3% of the revenue share, respectively. Such a plan is rooted in economic logic, but not fully aligned with Title IX’s principles of equity. If a university’s allocation plan for that $23.1 million leaves little money left over for the school to field competitive women’s teams or provide comparable scholarships, training, or resources, then that allocation plan will violate Title IX. 

In practical terms, it’s understood that there is already a significant gap between men’s and women’s sports at colleges. The men’s facilities for higher revenue-generating sports are of higher quality than women’s facilities, recruitment budgets aren’t equitable, men’s sports even get the more desirable practice times, all Title IX violations. Those violations, among others, will be exacerbated if the schools’ allocation of the $23.1 million increases that gap in participation opportunities between male and female athletes.

Arthur Bryant, an attorney who has represented both female and male athletes in gender equity lawsuits against schools like San Diego State, Clemson and Oregon, reported, “Most colleges in America are violating Title IX and depriving women of equal opportunities to participate in intercollegiate athletics. The federal government isn’t enforcing the law and making them comply like it should. So this illegal sex discrimination is continuing. If girls and women want it to stop, they have to be willing to stand up, fight, and sue.”

Lawsuits charging the NCAA, conferences, and universities are commonplace at this point. It’s conceivable— even likely —underpaid student-athletes will file fresh lawsuits next year. Inevitably, the softball player who receives just a few thousand dollars will file suit when their school forks out over $1 million to a football player. 

The argument that all student-athletes should be paid equally is akin to sentiments surrounding unequal pay between men and women professional basketball players in the United States. Some feel it’s unfair for the lowest paid NBA player— say, Bronny James at  $1,157,153 —to make almost more than a million dollars than star WNBA player Caitlin Clark at her $76,535 salary. The highest earning WNBA player is Jackie Young with the Las Vegas Aces with a base salary of $252,450.

The counterargument is that the NBA brought in $11.34 billion last season, while the WNBA generated $200 million. The WNBA is projected to lose approximately $40 million this year.

The same can be said for non-revenue-generating sports at the university level. Often, the football and basketball programs at Division I schools fund most, if not all other sports. But students at a university are not professional athletes. Because of that, they are afforded the right under Title IX to be treated equally. If all student athletes were treated equally under the new revenue-sharing model, each of the approximate 480 athletes at a Division I school would receive $48,125, no matter their sex or sport. 

Student-Athletes or Employees?

But if we choose to be more accurate and remove the “student” from the student-athlete moniker that was placed on college athletes in order to prevent paying them in the first place, the path forward becomes more clear. 

The pending lawsuit of Johnson v. NCAA will decide if college athletes are, in fact, employees of universities rather than student-athletes. Given the rulings from the U.S. Supreme Court, along with the initial, unambiguous ruling in the Johnson case where the Third District Court said the days of the NCAA's long-successful “amateurism” argument are over, it’s more probable than not athletes will be classified as employees. If that’s the case, then courts are far less likely to find schools have violated Title IX if they pay male athletes (football and basketball players) more than female athletes. While it’s true that Title IX applies to employees of universities, all pay doesn’t need to be equal across the board between men and women employees; schools can pay employees based on the value that particular employee brings to the campus. 

In that case, it would be reasonable to pay an individual who is responsible for bringing in millions of dollars to the university a substantially higher salary than the person who generates virtually no revenue. 

The Johnson case hasn’t been concluded yet, and college athletes are still considered student-athletes, and Title IX still applies and will likely still apply when universities begin implementation of their rev-share allocation. Consequently, if the disparity in revenue-sharing funds reinforces existing inequities in participation, benefits, or resources for women’s sports, it will trigger legal challenges under Title IX. Courts will examine whether the allocation perpetuates systemic inequities, even if the revenue numbers justify the unequal split. 

What’s Likely to be Done?

Undoubtedly, the schools will end up paying a small handful of players— football and basketball players —large paychecks. All other athletes, from both the women's and men’s sports, such as softball, baseball, track and field, will earn substantially lower salaries. Disproportionately, however, women’s sports will receive less revenue-sharing money.

Even if schools violate Title IX under the new revenue-sharing rules, nothing will be done to enforce the lack of compliance. A report publicly released by the U.S. Government Accountability Office confirmed what university officials and athletes already know: Title IX is routinely violated and rarely enforced. 

The GAO report, aptly titled “Education Should Improve its Title IX Enforcement Efforts,” found that during the 2021-22 academic year, 93% of universities had female athletic participation rates lower than their enrollment rate, while 63% of schools had participation-enrollment gaps of 10% or more. Overall, the athletic participation rate for collegiate women was 14% less than their enrollment rate. 

To date, no school has ever had their funding pulled because of Title IX noncompliance, nor been sued by the federal government.