Tuesday Talk*: Are Sponsorships The Next Title IX Violation?

When the NCAA was compelled to allow college athletes to enjoy million dollar sponsorships for their name, image and endorsement, many applauded that the students would finally be allowed to partake of the bounty that had previously gone only to their colleges. Yay? Well, kinda, but for the fact that the bounty wouldn’t be distributed equitably.

To most of us, this was so obvious that it was accepted as a given. Star athletes would make big bucks. Lesser athletes, less, if anything. Meritocracy would vote with its wallet, as it should. But what of the age-old sport conundrum, that women don’t get the opportunities and benefits that men do?

A higher education policy group wants the Biden administration to launch a Title IX civil rights investigation into collegiate athletics programs because the vast majority of so-called name, image, likeness sponsorships go to male athletes.

In a letter to Secretary of Education Miguel Cardona and assistant secretary for civil rights Catherine Lhamon, the Drake Group said that the disproportionate amount of sponsorship money going to male college athletes, often with the cooperation of university athletic programs, was a violation of Title IX’s prohibition on sex-based discrimination and warrants a federal investigation.

Why yes, that’s the same Catherine Lhamon, yet again head of the DoE Office of Civil Rights, who has made it overwhelmingly clear that she cares nothing for due process in sex tribunals and shrugs off the innocent men harmed by her callousness. What will Lhamon do about this new oppression of women?

“We do not write to suggest that [the office for civil rights] stem this flow of cash to college athletes, but rather to alert OCR that this cash is, with the blessing and/or cooperation of the 1000+ universities in the NCAA, flowing predominantly to men,” the group said in the letter. “Such inequitable financial aid, treatment and benefits provided to men are a violation of Title IX. OCR must provide guidance to the schools that this is improper and will be pursued with enforcement proceedings as necessary.”

It seems too obvious to need to be said that sponsors aren’t universities. They aren’t within the DoE’s jurisdiction. Not even Lhamon, on her most vicious day, has anything to say about whom companies choose to give millions. But does that mean Lhamon won’t find, and draw, a connection on the other side to try to make either the men, the companies, or the universities, suffer for their sexism?

The schools, for their part, seem either happy to allow this gender disparity, or simply confused as to their obligations. In either case, OCR guidance is badly needed, and quickly. The schools have never been enthusiastic about gender equality in sports, having unsuccessfully attempted to exempt revenue-producing sports like football from Title IX, and having dragged its feet for decades on gender equality. The “Wild West” scene we see today, involving compensation for athletes’ names, images, and likenesses, has simply provided the schools an opportunity to feign ignorance or confusion as to the implications for women athletes. OCR should eliminate that ignorance and clarify any confusion. To be clear, we do not seek any statutory or regulatory amendments. The activities of many of the schools working hand in hand with boosters violate Title IX. We seek only that OCR promulgate clear guidance as to what does, or does not, implicate Title IX concerns in the new NIL space.

Do colleges play a role by boosting the fortunes of male athletes but not women? Are they promoting their boosters to pay for athletes on the men’s teams but not the women’s? Is the promotion of men’s sports like football and basketball creating this atmosphere where men are valued more highly than women? More importantly, even if not, will Lhamon not be able to see the connection that the rest of us can’t and impose guidelines on colleges to “correct” this sponsorship disparity?

What can she do about it? My mind is not fertile enough to imagine the mechanisms someone like Lhamon might impose to guarantee “equity,” but that doesn’t mean she won’t come up with something.

*Tuesday Talk rules apply.

18 thoughts on “Tuesday Talk*: Are Sponsorships The Next Title IX Violation?

  1. Miles

    Not that I think it would accomplish anything, but I could see Lhamon imposing a guideline stating that for every men’s sport that airs on television, there must be a women’s sport. Of course, that can’t force networks to carry it or people to watch it, but that wouldn’t be Lhamon’s problem.

    1. LY

      I’m thinking more along the lines of “Those evil men must give X% of their (wrongful) earnings to women athletes.” Where X > 50. And make it a rule that if colleges don’t enforce this they lose federal funding.

  2. Dan J

    Seems hard to pin down exact numbers, but according to some sources 4 of the top 6 earners are women. Is Lehmon only concerned with total dollars? Or will some woman in the top have to give up her money to make Lehmon happy?

  3. Mike V.

    Our local afternoon sports talk show had a person on recently (I wish I could remember the name) familiar with the inner workings of the NCAA. He said the NCAA is trying to find a way to regulate NIL money; but so far can’t find a way that doesn’t violate anti-trust laws. Our local major college has a fund run by former athletes and splits NIL money donated to it among athletes who aren’t recognizable enough to get their own NIL deals.

    1. David

      I can see kids getting shamed into tip-sharing with the losers nobody wants to sponsor. Peer pressure is a bitch. But can Lhamon impose forced sponsorship sharing in light of the law? I can see her trying even if it’s not lawful.

      1. Mike V.

        The pool is separate to NIL deals the stars can sign. It makes sure everyone who plays a varsity sport gets something.

  4. B. McLeod

    Well, probably the universities will be required to make their male athletes share their sponsorship payments with the underappreciated female athletes. Or, alternately, a substantial portion of the objectively male athletes must declare “female” identities for purposes of the sponsorship equity tests.

  5. orthodoc

    Look at the bright side: if Catherine Lhamon and her Office of Civil Rights are spending time investigating the disproportionate sponsorship money going to male college athletes, they have less time to meddle in other cases. (Think of filings like this akin to a Distributed-Denial-of-Service Attack that floods a website with so much traffic that it cannot function.) Then again, tying up the Office of Civil Rights might not do much good, as too many colleges are willing executioners on their own. One can only hope that enterprising minds will deduce that similar complaints can be filed at every school, on behalf of every female athlete….

    1. Rengit

      This is a nice thought, but remember, when OCR got overloaded in the wake of the Dear Colleague Letter with cases investigating colleges for failure to prevent sexual harassment and assault during Obama’s second term, DOE ran to Congress and the press stating that OCR needed more funding to hire many more attorneys and investigators to handle the rapidly expanding caseload.

  6. rxc

    From each student athlete according to their abilities, to each according to their need. And everyone gets an award for participating, even the ones who don’t actually participate.

  7. Mike Guenther

    If it weren’t for the money generated by the major men’s sports, football and basketball, there would be no money to fund the other various and sundry men’s and women’s sports programs.

    As far as the NIL money, I think it’s a bad idea, but as long as they’re going to have it, the program should be restricted to senior year athletes. Anecdotally, I’ve seen sports blurbs about high school freshmen and sophomores potentially being offered multi-million dollar offers to attend a specific college or university.

    1. Mike V.

      At the local big time University, 3 sports operate in the black. Football, and Mens and Womens basketball. They fund everything else.

    2. Tom B

      I heard a sports show host report that a single donor decided every player on SMU’s football team should get $35,000 a year. So $3.5 million (ish) a year.
      Without restriction of NIL, seems likely we will see a return of the 70’s and 80’s where players from oil producing states take pay cuts to go to the NFL.

    1. Will J. Richardson

      As an interesting aside, Vonnegut also predicted the demise of “amateur” college football in Chapter 28 of Player Piano.

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