Tan Boston (Northern Kentucky University) has posted Proportionate NIL Paradigms in Kansas Law Review, Volume 75, on SSRN. Here is the abstract:
Gender equality is the prerequisite for a fair and just society. To this end, Title IX of the Education Amendments of 1972 (“Title IX”) seeks to end sex discrimination in educational settings and, ultimately, society as a whole. Yet despite storied progress in higher education, women still experience unequal treatment. Recently, this has become more noticeable in intercollegiate athletics, where name, image, and likeness compensation (NIL) for male athletes exponentially outpaces that of female athletes. This persistent reality has produced national uncertainty over the applicability of Title IX to NIL generally, and to the multibillion-dollar House v. NCAA settlement specifically. The U.S. Department of Education sought to resolve this uncertainty by issuing guidance that categorized NIL as “financial assistance” subject to Title IX’s proportionality requirement. However, the new administration rescinded the guidance less than a month later. This Article examines the effect of the rescission on Title IX’s promise of gender equality in educational settings. It concludes that the rescission does not alter Title IX’s reach. Rather, it defers resolution of the issue to other authorities. Because Title IX applies to the activities of educational institutions, the operative question for these authorities is not whether Title IX’s promise of equality applies to NIL provided by colleges and universities, but rather, how it applies. This Article argues that although Congressional authority would be ideal, ultimately, the responsibility will fall on the courts. Lastly, given the lack of statutory direction regarding NIL, this Article evaluates prevailing approaches to statutory interpretation and proposes that courts adopt the approach that best harmonizes Title IX’s text, purpose and legislative intent.
To receive a daily summary of posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.