Michael W. Carroll

Within the field of intellectual property law, there are not too many legal or economic developments that would qualify for an event study. But, on July 1, 2021, such an event occurred when a new rule issued by the National Collegiate Athletic Association (NCAA) took effect. Prior to that date, intercollegiate athletes were prohibited from exercising their right of publicity or any other rights in their name, image, or likeness (NIL) to endorse products, services, or businesses in a commercial manner. Under the rule change, these athletes, numbering nearly 500,000 at the time, suddenly became free to license or otherwise use their NIL rights commercially, and a new market was suddenly born.

In The NIL Glass Ceiling, Professor Boston explains how the market for intercollegiate NIL rights has quickly evolved in a way that provides these athletes with long-denied revenue but with disparate outcomes for athletes who identify as men or women.¹ She argues that these disparities are problematic both because female athletes should be entitled to a greater share of the revenue in this market and because these disparities send an unwelcome message to female athletes about the state of gender equity in intercollegiate athletics and in the workplace. She argues that more gender-equal outcomes could arise if schools were subject to scrutiny under Title IX, applicable Department of Education regulations under Title IX, and NCAA rules that govern certain third-party support for intercollegiate athletic programs in the case of disparities in NIL revenues paid by certain third parties directly to athletes.

This article makes three main contributions to the literature. First, it explains that the NIL market is comprised of three main forms of agreement or licensing. Athletes are paid either from deals they self-arrange, from deals they make with their schools, or from those made with third-party Collectives that pool assets to finance NIL licensing. The second contribution is to focus on the outsize role of the Collectives in this market and to argue that the relationships between these and the schools whose athletes they support are sufficiently close to subject payments made by these Collectives to scrutiny under the school’s legal duties, under applicable law, to not discriminate on the basis of gender. The third contribution is to argue that the important role that this new NIL market is playing in intercollegiate athletics requires legal reform to account for this development. Professor Boston discusses a range of options for how such reform might be achieved.

One feature of Professor Boston’s description of this market I found interesting is that even though the right of publicity is not recognized in every state, as she notes, and only some athletes have made uses in commerce of their name, image, or likeness in a way that would qualify for trademark protection, the market for NIL licenses appears to disregard these differences and treat all athletes as being able to supply consideration by granting NIL permissions in exchange for payment. I have no doubt that a court would treat such permission as sufficient consideration under contract law, but it would not be surprising if this new market were to lead to judicial or legislative recognition of a right of publicity where none exists today.

Professor Boston explains that in this market, some athletes represent themselves, or work with an agent, to negotiate NIL endorsement deals. Some sponsors, however, seek NIL arrangements with an entire team. In these situations, the sponsor may seek an alternative to individual negotiations. One alternative is for schools to facilitate NIL transactions on behalf of their athletes. Some states permit this practice, while others prohibit it. Even when a school is permitted to provide this facilitation, the NCAA’s rules prohibit such facilitation for prospective student-athletes.

Most schools do not provide such facilitation, which leaves space for third parties to play a role, which they quickly have moved to do. Professor Boston divides these into third parties that provide technology platforms for NIL licensing, talent agents, and other advisors who provide support for NIL transactions, and traditional Boosters, supplemented by a new entity, the Collective.

There are more than 100 of these Collectives, which use different mechanisms, such as crowdfunding or membership tiers, to create an asset pool that they use to pay athletes for their NIL endorsements. To date, these Collectives limit their support to individual schools. These Collectives focus their resources on schools’ football and men’s basketball teams, which helps fuel the gender disparities in NIL revenues.

Professor Boston explains that advocates for athletes’ ability to monetize their NIL rights thought that such opportunities would play a potentially equalizing role between men’s and women’s sports. That is not how it has turned out so far. Overall, male athletes receive three times as much as female athletes in all three of NCAA’s divisions. She shows that because Collectives provide a significant share of NIL revenues, the gender disparities in their practices substantially contribute to overall disparities in NIL revenues. That raises the question this article addresses: should schools be held legally responsible under Title IX for the gender disparities attributable to Collectives’ NIL practices?

Professor Boston provides a very nice, succinct explanation of applicable law. Under applicable regulations interpreting Title IX, schools’ compliance obligations fall within three categories: (1) athletic scholarships, (2) benefits and services, and (3) effective accommodation of students’ interests and abilities. Within the “benefits and services” category, equal treatment obligations extend to a school’s recruiting and publicity activities.

Professor Boston argues persuasively that even though schools are prohibited from explicitly using potential NIL revenue as a recruiting tool, they do, and they do so in a gender-disparate manner. Similarly, publicity enhances athletes’ NIL licensing opportunities, and women’s sports on average receive less publicity than men’s. Professor Boston shows, for example, how when all women’s NCAA basketball tournaments games became televised, players’ NIL opportunities increased measurably.

She further demonstrates how schools have been, and can be, held responsible if athletes receive gender-disparate benefits and services from third-party sources. She argues that the relationship between Collectives and schools and the gender disparities arising from Collectives’ focus on men’s NIL licensing are actionable under Title IX.

Professor Boston offers regulators and Congress a menu of options to update Title IX from the easiest, most feasible options, to the most difficult but most desirable outcome, which would be legislative amendments to Title IX.

I learned a lot from this article. Like Professor Boston, I recognize some of the challenges involved in holding schools responsible for NIL licensing done between third parties and athletes. But, I agree with her that schools are not in a fully arms-length posture with these Collectives. I found most persuasive her argument about how potential NIL revenue is playing a significant role in recruiting in at least some sports. Since recruiting is an equal treatment factor, and gender-disparate potential NIL revenues fueled by Collectives’ practices have gender-disparate impacts on recruiting practices, that seems like a Title IX problem in need of a solution.

1. Recognizing that not all athletes so identify, for purposes of discussing NIL revenues from intercollegiate sports, Professor Boston’s article and this review are constrained by existing NCAA rules, under which athletes must select from its binary sports classifications, and must meet its requirements for those classifications.