Utah football deal sparks a debate: Has NIL been fair to women?

Because NIL opportunities have disproportionately gone to male athletes, Title IX lawyers believe there could be concerns for schools across the country.

(Chris Samuels | The Salt Lake Tribune) Utah football players react at Rice Eccles Stadium after being given pickup trucks by the Crimson Collective name, image and likeness organization in Salt Lake City, Wednesday, Oct. 4, 2023.

Update: On Dec. 13, Utah’s Crimson Collective announced it would offer SUV and truck leases to members of the men’s basketball, women’s basketball and gymnastics teams.

In the end zone of Rice-Eccles Stadium last October, 85 scholarship football players gathered around a fleet of new Ram Big Horn 1500 trucks.

With University President Taylor Randall, athletic director Mark Harlan, and head coach Kyle Whittingham watching, players found out they were about to be given the keys as part of a Name, Image and Likeness deal (NIL).

It was a fleet of trucks worth an estimated $6 million, according to the dealership that provided the leases to each player.

“We all need to lean into NIL. It is here,” Harlan said that day. “So let it not be said that it’s not a huge priority of this athletic department, and this athletic director.”

The announcement was met with fanfare. College GameDay’s Kirk Herbstreit, one of the most prominent voices in college football, heaped praise on the athletic department.

“That’s amazing,” he said to a national audience on the Pat McAfee show.

Attorney Arthur Bryant saw it another way.

“It appears to be blatant, illegal sex discrimination in violation of Title IX,” said Bryant, a California attorney who specializes in such cases. “It is in-your-face discrimination against the women athletes. Where are their pickup trucks?”

Utah’s NIL collectives do have plans for women’s teams at the university, however, and expect to announce them in the near future, according to sources who were not authorized to publicly speak on the matter.

But how NIL fits within Title IX remains a question for college athletics at large.

As NIL nears its third year of existence, the majority of the money has been funneled to football and men’s basketball players. According to Opendorse, the average Power Five football player makes 3.5 times more than the average women’s basketball player (the top earners on the women’s side at most universities). A men’s basketball player makes 2.3 times more.

That is legal since NIL allows third parties to pay players without university involvement and outside Title IX oversight.

But multiple lawyers who spoke to The Tribune say they’ve seen increased school involvement with deals across the country — and they predicted NIL and Title IX are on a collision course.

“University officials keep saying that NIL is the wild, wild west and there’s no rules and no laws,” Bryant said. “That’s not true. There is a law. It’s Title IX.”

The legal issue

Last year marked the 50th anniversary of Title IX, which prohibits federally funded education programs from discriminating on the basis of sex.

But when NIL was introduced, some coaches sounded the alarm that progress was being undone.

“It feels like we’re going back 25 years,” UCLA women’s basketball coach Cori Close said.

UCLA coach Cori Close reacts on the sideline during the second half of an NCAA college basketball game against Arkansas, Sunday, Dec. 3, 2023, in Fayetteville, Ark. (AP Photo/Michael Woods)

In college athletics, Title IX requires schools to provide equitable opportunities for participation, proportional scholarship funding, and equal treatment when it comes to facilities, equipment, travel and other benefits.

In the case of NIL, experts say, equal treatment is the concern.

“It used to be that the men got to charter to games and the women had to go commercial,” Close said. “Or the male coaches got to fly around on private planes to go recruiting but the women couldn’t.

“They said, ‘Well, this is coming from donor funds. So it’s not a gender equity issue.’ Well, Title IX spoke up and said, ‘No, that’s not a valuable argument. You’re still providing a different opportunity and different advantage based solely on gender.’

Title IX only applies to institutions that receive federal funds. If a private company only wants to pay football players, that is within the law.

But Title IX lawyers who spoke to The Tribune said they’ve seen schools increasingly involved in the process of NIL: They endorse NIL collectives and actively promote them; some schools ask players to submit NIL contracts for review; and in certain states, such as Texas, laws allow schools to direct athletes to companies.

“It’s been a theme to try to get the schools a bit more involved,” said Christina Stylianou, a New York labor law attorney who handles Title IX cases. “With respect to at least knowing what’s going on in these NIL deals, like for instance, asking for athletes to provide their contract to the school and they’re just trying to stay on top of things.”

If a school is involved with an NIL deal, Bryant said, then Title IX should apply. That would mean money would have to be distributed proportionally between male and female athletes, just as donations have worked for the last 50 years.

If a donor gives money to the university’s foundation account, it cannot only be used to benefit one team.

“Whether a donor wants to give money to men and not women doesn’t matter,” Bryant said. “You can’t discriminate against women to make money or to avoid losing money or because some donor wants you to. Similarly, if you say about NIL, ‘Well we’re operating this as a business not so much as an educational operating activity.’ That doesn’t matter. Because businesses cannot discriminate against women.”

Close argued that even if collectives truly operated on their own, entirely independently of the university, it should still raise Title IX concerns.

“I do not think it’s accurate or right, or in the spirit of the law,” Close said of the argument the NIL collectives are independent from the school. “And that’s where we need the courts to step in. We need Congress to say, ‘No, no, no that isn’t how Title IX was intended or written. We see it as a violation.’ The Department of Education came out with a statement saying, ‘No collectives really are under Title IX.”

The Utah truck deal

In the case of the truck deal, officials said the leases and the event were organized independently by the Crimson Collective.

“We are separate from athletics,” Krista Parry, a spokesperson for the collective said, “although we work with the athletes who are obviously associated with the collective as well as Utah athletics.”

Parry said the collective independently arranged the deal to give each scholarship player a truck lease and automobile insurance. The collective also rented Rice-Eccles Stadium for the announcement, Parry said, just as any other company would for an event.

“Utah Athletics is grateful for the Crimson Collective for the opportunities it has provided to our student-athletes to participate in NIL activity and engage in meaningful community outreach,” the athletic department said in a statement. “... NCAA guidelines surrounding NIL continue to evolve, and Utah Athletics closely follows those guidelines as well as the University of Utah’s institutional policies to form the department’s approach to supporting our student-athletes in their NIL pursuits.”

(Chris Samuels | The Salt Lake Tribune) Utah athletic director Mark Harland talks to the football team at Rice Eccles Stadium after the team was given pickup trucks by the Crimson Collective in Salt Lake City, Wednesday, Oct. 4, 2023.

Utah’s gymnastics team has its own third-party collective, Who Rocks the House, and the Runnin’ Hoops Collective serves the men’s basketball program. The university, meanwhile, launched a program called Elevate U in 2020 “to help student-athletes across all 20 of our sport programs to thrive and maximize their ability to be compensated for their NIL participation.”

But as NIL has evolved, lawyers who spoke to The Tribune said they fear the line is being blurred between schools around the country and NIL collectives.

When NIL deals were first announced, schools often weren’t involved in publicizing them. But the biggest NIL deals soon became promotional and recruiting opportunities. Not being involved would mean getting left behind.

“I don’t think that was a mistake,” New York Title IX attorney Andrew Miltenberg said of why schools weren’t very public in promoting NIL at first. “I think to get it to this point, it needed to appear a certain way that schools were staying out of it. And now I think the go sign is on, the green light has been given.”

It is why some lawyers believe NIL has the potential to do damage to women’s sports.

“Title IX is meant to close the gap between women’s sports and men’s sports,” Miltenberg said. “NIL is going to, I think, further highlight or exacerbate it again. It’s certainly not going to help it.”

A battle ahead?

As Close considered the problems facing universities concerning NIL and Title IX, she predicted it might take a lawsuit to bring clarity.

“Until someone is willing to sort of fall on the sword, historically speaking, there hasn’t been a lot of accountability,” she said.

Not long after Close predicted that, students at the University of Oregon filed a lawsuit against their school and athletics program. Players on the beach volleyball team and women’s rowing team included NIL in their Title IX lawsuit. Among other things, it contended that male athletes at Oregon are given more training on receiving NIL money and getting more publicity from the school to help bolster their marketability and likeness.

There hasn’t been a ruling. And Stylianou questioned if courts will see enough involvement from schools to invoke Title IX. Is just reviewing a contract submitted by an athlete enough to say the school was involved in NIL and invoke Title IX?

“I think it’s too early to say,” she said. “Title IX can be involved, particularly if the schools are more involved, but it depends on what the school’s involvement really is.”

There are other avenues outside of lawsuits to help the issue. Utah State athletics director Diana Sabau, the former deputy commissioner of the Big Ten Conference, said she has seen some success in encouraging the collectives to distribute funds more equally.

“We’re working with them, but we can’t govern them,” she said. “And so we’re giving them guiding principles of what we would like to happen with NIL, or how we would like to maintain some equity in that space. But we certainly don’t have the authority to tell them the policies that they’re writing.”

But Bryant said he believes the question will ultimately be settled in the courts.

“Once the schools realize the law is going to be enforced, they’re gonna stop violating,” Bryant said. “It’s like you’re standing by the highway and the speed limit is 60 miles per hour and cars are going 100. Unless and until some speeders get pulled over and held accountable, everybody’s going to keep speeding.”