The Sky is Not Falling: Why Name, Image, and Likeness Legislation Does Not Violate Title Ix and Could Narrow the Publicity Gap between Men's Sport and Women's Sport Athletes

Abstract

In 2021, the NCAA amended its Bylaws to allow NCAA athletes to financially benefit from their names, images and likenesses ("NIL"), better known as the Right of Publicity. The change came after numerous states enacted laws prohibiting the NCAA and other athletics governing bodies from preventing college athletes from benefiting from their NIL. This article argues that allowing NCAA athletes to benefit from their NIL rights will further effectuate the plain language and intent of Title IX and its 1979 Policy Interpretation by giving women’s sport athletes the ability to generate more equal publicity for their athletic efforts. Section I of the article provides an overview of Title IX and outlines what is required by NCAA athletics departments to comply with the statute. Section II provides an overview of selected individual state and federal bills that have been enacted or proposed related to intercollegiate athletes’ NIL rights. The section also highlights portions of each bill that could cause Title IX-related concerns. Section III explains that because payments to NCAA athletes for use of their NIL would likely come from third-parties—and not federally funded educational settings—Title IX is not likely triggered. In the alternative, it posits the possible Title IX risks that could emerge as NCAA athletes are allowed to benefit from their NIL. Section IV makes the case for why restoring NCAA athletes’ NIL rights will further effectuate the legislative and regulatory intent of Title IX by providing women’s sport athletes the opportunity to more fully ensure equal publicity of their athletic endeavors. Section V outlines recommendations for Congress and the NCAA to adopt to ensure that women’s sport athletes’ NIL rights are optimized to the level of men’s sport athletes when their NIL rights are restored.