University of Oregon Sued for Title IX violations by its own Athletes; Potential Ramifications for the University of North Carolina?

After decades of being unable to make money while participating in college athletics, student-athletes in recent years have enjoyed a newfound ability to profit from their Name, Image, and Likeness (NIL). But as with any burgeoning industry, the emerging intricacies of the NIL world have led to legal issues; and in this instance, a major university is the target of a lawsuit by its own student-athletes.  

Title IX 

2022 marked the 50^th anniversary of the passage of a seminal civil rights law. Title IX of the Education Amendments of 1972, more commonly referred to simply as “Title IX”, prohibited any university or educational institution that receives federal funding from discriminating on the basis of sex. It has become most synonymous publicly with its relationship to college athletics. 

Before Title IX, women made up 15% of college athletes. Today, they make up 44% of college athletes. Though Title IX brought about much needed change to women’s sports, there is still inequity. In recent years, the NCAA has faced criticism for its differential treatment of the Division I Women’s Basketball Tournament and the College Softball World Series, compared to the Division I Men’s Basketball Tournament and College Baseball World Series. Moreover, women across the country are still bringing lawsuits under Title IX alleging they are being treated unequally. 

The history of paying student athletes and NIL 

Generally, athletes make money through NIL by engaging with third party organizations, usually referred to as “collectives.” Collectives, funded by booster donations and not by universities, help facilitate deals between athletes and companies. Once an athlete commits to or enrolls in a school, they can contract with a collective to receive payment in exchange for anything from community service to social media posts to brand endorsement deals. The relationship between a university and the collectives that support NIL efforts can vary; some schools work closely with NIL collectives, while others operate more at an arm’s length. 

University of Oregon sued for alleged Title IX violations 

Every Division 1 athletics program has athletes making money through NIL, including the University of Oregon, one of the most famous brands in college sports. On December 1, 2023, a year after the  50^th anniversary of Title IX, student-athletes from the University of Oregon’s women’s beach volleyball and club rowing teams filed a class action federal lawsuit against their university. The suit contains multiple allegations, such as the school providing inadequate facilities to the women’s beach volleyball team and not providing equitable scholarship funding to women athletes. However, the focus of this blog post will be on the allegations of this suit pertaining to publicity under Title IX and the school’s engagement with what is known as the NIL (Name, Image, and Likeness) industry. Sportico has reported this as the first suit to cite an institution’s NIL activity as the basis for noncompliance with Title IX.  

In the lawsuit, the plaintiffs cite 34 C.F.R. § 106.41(c), which provides for nine non-exclusive areas in which recipients of federal funding must provide equal treatment and benefits, which includes “publicity”. The claim alleges that the university provides better publicity opportunities to its male student-athletes than its female student-athletes. Oregon has denied the allegations, and there is a settlement conference scheduled for July 18, 2024.  

Oregon’s NIL Efforts 

In their lawsuit, the plaintiffs take aim at Oregon’s “Division Street” NIL collective and Oregon’s NIL marketplace, and publicity provided by Oregon’s athletics department. They allege that through these efforts, “Oregon provides its male student-athletes with much greater NIL related training, opportunity, and income than its female student athletes.” They also cite a disparity in the publicity opportunities provided to the women’s athletics teams when compared to the men’s, thus undermining the NIL opportunities available to the female athletes. Oregon’s Division Street collective serves all athletes at Oregon, and is highly regarded, in no small part due to its connections with Phil Knight, founder of Nike and Oregon athletics’ largest donor.  

The level of connection of Oregon’s Division Street collective to the university remains to be seen. The plaintiffs state that Oregon works “with and through its NIL collective” while the University denies having any control over the collective. If Oregon is found to have had control over the collective, it is more likely they could be found to have violated Title IX. 

As highlighted by an article published by the Lead1 Association, a membership association of all athletic directors overseeing Division 1 Football Bowl Subdivision (“FBS”) programs, liability under Title IX can extend to third parties such as NIL collectives. Per 45 C.F.R. 86.31(b)(6), a university may not “Aid or perpetuate discrimination against any person by providing significant assistance to any…organization… which discriminates on the basis of sex in providing any aid, benefit or service to students or employees”. This means that if a third party receives “significant assistance” that allows the third party to become “so connected” with the university, the university may be liable for the third party’s acts according to 40 F.R. 108 at 24132. A finding of “significant assistance” is fact based, considering several factors such as a third party’s use of a university’s “faculty sponsors, facilities, and administrative staff.” 

Comparing the Ducks to Tar Heels 

Other schools will be watching the University of Oregon litigation to see if it will have any effect on their own athletic programs. And considering the similarities between the schools, UNC will likely be one of them. 

The University of Oregon and University of North Carolina are similarly situated schools when it comes to college athletics and academics. Both schools feature nationally prominent athletics programs with success ranging across all sports. Both are members of two of the “Power Four” conferences, which are comprised of the country’s most well supported and successful athletics programs. Both schools receive preferential treatment from two of the most recognizable brands in sports, Nike, and Air Jordan. Additionally, while both programs are successful in athletics, their respective universities are members of the prestigious Association of American Universities and have similarly sized student body populations. 

But more relevant to NIL, both programs rank in the top 30 public institutions in booster support. Considering there are over 350 schools participating in Division I sports, both schools are within the same realm of funding and support.  

What does this mean for UNC? 

Just this year, there has been a shift in attitude toward NIL at UNC and in North Carolina broadly. There is a belief that NCAA will soon lose its grip on NIL industry regulation, and both Governor Roy Cooper and UNC’s Athletic Director, Bubba Cunningham, have addressed the issue.  

Cooper recently rescinded a 2021 executive order that established standards for NIL compensation for student athletes within the state. This rescission positioned the state to “continue to preserve the competitiveness of North Carolina post-secondary institutions in college athletics.” This move was supported by the athletic directors of the state’s four major athletic programs, including UNC’s, Bubba Cunningham. 

Cunningham recently spoke about potential changes in UNC’s NIL policy, hoping to consolidate the efforts of the NIL collective that supports the athletics program. He stated “the three [UNC-supporting] collectives are in discussions to move under one umbrella so that both our Department of Athletics and The Rams Club can collaborate with them more effectively within the rules. This should help streamline communications and the process for those who want to support NIL efforts.” The three NIL collectives Cunningham referenced are Heels4Life (supporting UNC Football), Secondary Break Club (supporting UNC Men’s Basketball), and NC Hall of Fame (supporting all 28 UNC athletic programs.)  

While surely with the best intentions, UNC and its athletics programs should be mindful of how they collaborate with these collectives, whether they operate separately or together under one umbrella. The success of a plaintiff’s NIL argument under Title IX hinges on the connection between the school and NIL collectives and showing unequal treatment by the collectives. By stating the UNC athletics department is hoping to collaborate with collectives and bring them under one umbrella, the program must be sure their work does not go past collaboration. And if it does, UNC must ensure NIL opportunities stemming from collectives are distributed equitably.  

Overall, this move towards consolidation could pose potential legal challenges, but also an avenue to do right for its women’s athletics teams. By unifying the collectives, UNC’s NIL efforts can ensure fair practices and opportunities across all sports, and use the playbook provided by the Oregon lawsuit to ensure they guard against unequal treatment by providing equal publicity opportunities, which will then help equalize NIL opportunities.  

UNC has one of the most successful women’s athletics programs in the country, with 37 total NCAA championships, which is third all-time. Women’s Tennis and Field Hockey won national championships in 2023, and Women’s Lacrosse and Women’s Soccer qualified for their respective championship weekends twice in the last three years. This means that the women’s teams have done more than right by the school; hopefully, the school will do the same for them. 

Darius Baker, Staff Member