The Stars are (Re)Alinging: Extending Title IX to NCAA Conference Realignment in the NIL Era

Abstract

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 on the verge of a groundbreaking settlement that will reshape the NIL system. If 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 women athletes by exacerbating NIL earning disparities and neglecting to consider travel-based costs for women 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.