Since the inception of name, image and likeness (NIL) in college athletics in 2021, there have been, to say the least, a number of unforeseen consequences, including the effect of NIL on the transfer portal and recruiting and the growth of NIL collectives. The latest in that category is the interplay between NIL and Title IX.   

Last week, 32 University of Oregon women's beach volleyball players and rowers filed a class action sex discrimination lawsuit against the university that alleges violations of Title IX by, among other things, based on the disproportionate distribution of resources that Oregon male student athletes receive through Oregon’s NIL collective. Although the collective is a separate legal entity, and not any “official" part of the university athletics department, the reasoning for considering the activities of the private collective for purposes of determining whether Oregon has violated Title IX goes like this: the collective is sufficiently tied to and/or controlled by the athletics department that the NIL opportunities it provides to Oregon student athletes must be considered for Title IX purposes.

To date, there apparently has not been any guidance through the NCAA, Title IX court decisions or federal regulations specifically addressing whether the activities of private NIL collectives should be considered for Title IX purposes. While some female student athletes have had a good deal of success in obtaining NIL opportunities, data indicates that more NIL opportunities, and dollars, go to college football players and men's basketball players than other sports. With the prospect of college athletics departments becoming more directly involved in NIL opportunities, if a private collective's activities are required to be considered in determining a college's Title IX compliance, an overweight of collective opportunities toward a football program could have significant consequences. Athletic departments, the NCAA, Title IX regulators, NIL collectives and student athletes will be watching the Oregon case closely for answers to the question of how NIL collectives and Title IX interact.