What does publicity have to do with Title IX compliance?

Good morning, and thanks for your continued support of Extra Points.

I am back from vacation and back at the ol’ Extra Points HQ in Chicago. It appears I have roughly one gazillion emails and DMs to respond to, so I’m going to run one more guest post while I try to catch up on everything I’ve missed over the last few days.

Today, we give the mic back to regular EP contributor Dr. Katie Lever. You can find Dr.Lever’s work here and follow her on Instagram and Twitter. Today, she wants to talk about a lawsuit that has potentially major significance in how big time college sports runs on a day to day basis. No, not that one. Or the other one. A different lawsuit…

The NIL era started in July of 2021, after the NCAA changed their policies. Three years later, many critical questions, like how Title IX fits into this ecosystem, still haven’t been answered.

Just two weeks ago, the University of Oregon filed three motions to either dismiss or significantly diminish Schroeder et al v. University of Oregon, the first known Title IX suit that conceptualizes disparities in NIL opportunities as sex discrimination. The legal saga all started last December, when 32 current and former female rowers and beach volleyball players from the university filed a complaint in federal court in Oregon, claiming that the University of Oregon “systematically deprived them of equal athletic financial aid and other resources, including those that empowered their ability to monetize their name, image and likeness.” 

While plenty of the allegations in the complaint had nothing to do with NIL, the “other resources” mentioned in the complaint include Oregon’s activity in the NIL collective space, which includes its Division Street collective, backed by Nike founder, Phil Knight. The complaint was filed following an investigation published by The Oregonian last July that found that the university was likely deficient in five of nine areas of Title IX compliance. This past March, Oregon published its response to the complaint, denying that the university had “any control” over its NIL collectives. 

Although NCAA policies are changing constantly, Title IX requirements have stayed consistent since 1972. So, too, have Title IX violations. As of 2022, a USA TODAY investigation estimated that 87% of educational institutions in the United States are in violation of at least some Title IX requirements.s. While Title IX compliance includes policies like sport sponsorship and scholarship distribution, it also includes  publicity requirements for athletes. And although the University of Oregon has requested that the courts dismiss its plaintiff’s suit as a “novel legal theory,” the reality is that Title IX isn’t a theory–it’s a federal law.

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