By: Faith Anderson*
Abstract
The history of women in education is frustrating. Although it is commonplace to see women in education and sports today, women were not visible in these places prior to 1972, and they faced discrimination in many facets of life. Women were denied access to educational programs, even education altogether. Women could not go to medical school, faced more rigorous admission standards than men, and were rarely afforded the opportunity to play sports. In response to these inequalities, Congress passed Title IX of the Education Amendments in 1972. After 1972, women had protections that allowed them to become visible in educational settings. Title IX prohibits sex-based discrimination by federally funded institutions. These protections were extended to athletics in 1975.
Recently, the Supreme Court decided NCAA v. Alston, permitting student-athletes to be compensated for use of their name, image, and likeness (“NIL”). This decision, while intended to benefit athletes, will jeopardize female athletes. Commentators have argued that Title IX will not apply to NIL deals, leaving female athletes with no protection from inequalities that emerge from NIL-related benefits. This result would not only undermine Title IX but also the progress made towards gender equality in sports.
This Comment analyzes how Title IX does apply to NIL deals both directly—when a university donates, facilitates, or assists with the distribution of NIL-related compensation and indirectly—when the university provides educational and marketing opportunities for student-athletes. This Comment also argues that Title IX should apply to NIL deals because the statutory language supports its application, and applying Title IX will avoid regressing the progress for women that Title IX has already effectuated. Lastly, this Comment recommends provisions that should be implemented into final NIL legislation so that Title IX unambiguously applies to student-athlete NIL deals.
* J.D. Candidate, The Pennsylvania State University School of Law, 2024.