Michael LeRoy
L. Brian Stauffer/UI
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The U.S. women’s soccer team is once again in the hunt for Olympic gold. Their team elevated the prominence and commercial appeal of women’s sports.
For NCAA female athletes, this team has created a blueprint to achieve pay equity, a term that means that women are paid comparably to men.
While the women’s team won worldwide competitions, and their male counterparts were mediocre, the men earned twice as much pay from the U.S. Soccer Federation.
In 2016, the women sued for pay equity.
The soccer federation settled the lawsuit in 2022, paying $24 million in back pay and promising equal pay.
The pending NCAA antitrust settlement allows power conference schools to pay up to $22 million annually to athletes.
Will schools pay women the same as men?
If not, will female athletes sue under Title IX, a law that prohibits schools from sex discrimination in providing benefits to students?
Arthur Bryant, a leading Title IX lawyer, recently told The New York Times: “What the NCAA and the conferences and everybody involved in the settlement need to know is that if the money from these schools is not distributed proportionally to male and females, they’re just asking to be sued.”
More recently, the athletic directors at Ohio State and Illinois said that they will split revenue sharing in accordance with Title IX.
This is welcome news, in principle and practice.
Universities should not discriminate against women; and no one relishes more lawsuits in college athletics.
Parity in NIL pay
But what about sharing name, image and likeness pay equitably?
My research shows that at one power conference school (not Illinois), football and men’s basketball players earned about 89 percent of the NIL money.
In non-revenue sports, women earned 6 percent and men earned 5 percent.
The business model that schools have rapidly developed in the NIL era is heavily skewed in favor of paying football players and men’s basketball players.
This trend seems irreversible.
If schools compete for elite men players with NIL deals, they won’t likely limit this system so that women receive comparable pay.
This would lower the talent in the sports that generate revenue and fan engagement.
As long as NIL deal-making occurs beyond a school’s control, this pay disparity can’t be challenged in a Title IX lawsuit.
But a recent NCAA policy brings NIL deal-making inside athletic departments.
The NCAA explained: “Under the new rule … member schools would be able to increase NIL-related support for student-athletes, including identifying NIL opportunities and facilitating deals between student-athletes and third parties.”
This policy legalizes what already happens.
Coleman Hawkins’ recent signing at Kansas State shows that schools are already “identifying” and “facilitating” NIL deals.
Notably, there is no report of Kansas State signing any female athlete to a $2 million NIL deal.
Revenue vs. non-revenue
But while some schools will equalize pay from their athletic department revenues, they have not said they will equalize NIL pay deals from collectives.
Given Arthur Bryant’s widely known reputation for pursuing Title IX lawsuits for female athletes, it is reasonable to anticipate legal challenges over pay disparities from NIL collectives.
A lawsuit would test whether a school’s role in “identifying” and “facilitating” NIL deals makes an NIL collective part of the school for purposes of Title IX compliance.
In short, the NIL collective model appears to conflict with Title IX’s equity principles.
Is there a solution that avoids future Title IX lawsuits while responding to an NIL marketplace that tilts in favor of men?
Possibly.
If major athletic programs spin off their football and men’s basketball programs as privately owned joint ventures, these teams will likely fall outside of their schools’ governance structures.
Football and men’s basketball players could still be required to maintain an academic program while playing for a privately owned corporation.
A licensing agreement could allow schools to earn money from the corporations that use their brand for the teams.
This separation from schools would likely limit liability for Title IX lawsuits.
The remaining non-revenue sports would pose little risk for Title IX liability.
As my study shows, men and women in non-revenue sports split NIL money almost equally. This looks like Title IX compliance.
In addition, it makes sense to operate non-revenue sports in universities under one athletic department and run football and men’s basketball programs outside the university.
This would quiet the discussion about universities locked into coaching contracts that range from $30 million to $100 million.
This would restore more regionalized games because university budgets can’t afford transcontinental trips.
Less travel would mitigate unhealthy stress for most Big Ten athletes and improve their education.
Private-equity talk
NIL supporters could continue to invest in their favorite football and men’s basketball teams, perhaps as shareholders who buy into these joint ventures.
Private-equity funding would fit more naturally in this structure.
Athletic directors around the country have likely thought of this concept.
It’s not brilliant nor pie-in-the-sky.
In fact, reports of private-equity deals at Florida State and the Big 12 are consistent with this approach.
But athletic directors are captive to an NCAA governance structure that inhibits this approach.
And athletic directors are locked in a brutal competition with each other to survive in a new age of mega media deals.
While they need to innovate and cooperate, they are paying billions of dollars for court rulings and settlements that reflect their failure to implement long-term planning and their continuing unwillingness to admit that football and men’s basketball are professional enterprises.
That’s not all — a major lawsuit by college athletes seeking to be declared employees, and two National Labor Relations Board unionization cases are still pending.
As recent events have shown, when athletic directors cannot manage change, courts manage change for them.
At news-gazette.com Now hear this: Illinois Athletic Director Josh Whitman talked extensively about the financial forecast for his department during a weekend appearance on “Illini Pella Saturday SportsTalk” with Steve Kelly and Loren Tate. To hear the podcast, click on the “multimedia” tab on our website.
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June 25, 2024 at 10:06PM
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