Athletes need facts on Title IX revenue share
By: Andre Hiltenberg
and Kristen Mohr
Your turn
Guest columnists
..... This spring, [2024] the National Collegiate Athletic Association and the "power five" college athletic conferences agreed to a settlement that would allow colleges to pay athlete directly for the first time in history of college sports. The agreement, part of a class-action suit known as House. NCAA, will end the tradition of amateurism in college sports. In the past, recruiting scandals involving gifts of cars, houses and under-the-table finical compensation have been the height of controversy, and the definition of amateurism has significantly shifted thanks to legislation that has allowed student-athletes to profit form the sue of their name, image and likeness, or NIL.
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Now we see the shift even more, as the House v. NCAA settlement introduces the never-before-seem aspect of revenue sharing with student-athletes across the country, which could be set into effect as early as summer 2025. while this is an exciting idea to reward the very students who draw crowd attendance and profit to the universities, it leaves the universities with one crucial question in an attempt to avoid inevitable and highly contested litigation: Does Title IX apply to renege sharing?
..... The simple answers is yes. Title IX is a federal law that prohibits schools that receive federal funds form discrimination based on sex in the course of the schools' programs or activities. In the context of university athletic programs, Title IX requires that universities provide equal opportunity based on sex, Equal opportunity in athletic programs isn measured by a three-prong analysis,. First are the beneifts, opporutnites and treatment given to men's and women's teams; second is how a school awards athletic scholarships and financial assistance; and third is how a school is meeting student's athletic interests, and abilities. In determining whether Title IX applies to revenue sharing, the second prong is the focus - that is, does compensation received as part of a revenue sharing model qualify as financial assistance?
..... Historically, the term :financial assistance: in the context of Title IX, has referred to the budgets and scholarships allocated for men's and women's athletic programs. while financial assistance does not have to be equal, the total amount of scholarship aid enviable to men's and women's athletic programs must be proportionate to the given enrollment rates. For example, if 48% of the individuals participating in the school's athletic program are women, then about 48% of the available athletic scholarship aid should be awarded to women. Further, the budgets allocated for men's and women's athletic programs must be such that the benefits received by them are nearly equal.
..... Several schools, including Big 10 Ohio State and the University of Illinois - but not Rutgers University - have affirmed that revenue sharing compensation will be awarded in compliance with Title IX among male and female athletes. however, this is a potentially unsustainable view for smaller colleges and universities. it is almost certain that there will be a split in application among universities, and some may take the riskier approach and deem revenue sharing to be compensation for a service - pay for play - rather than financial assistance akin to scholarship money. the issue with the latter is that it appears to go against current case law, which requires that numerous forms of payments from outside sources be compliant with Title IX.
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For example, courts have held that even voluntary donations and support from booster programs (which appear to be even further removed form the notion of finical assistance must comply with Title IX: "[A] public university cannot avoid its legal obligations by substituting funds form private sources for funds tax revenues. once a university receives a monetary donation, the funds become public money, subject to Title IX's legal obligations in their disbursement."
..... Even when booster programs do provide more money to men;s programs than women;s programs, the university must ensure that the opportunities and benefits received by the women's programs are equal.
..... It is likely that the revenue sharing program will be subject to Title IX. However, the implementation of such a model requires clear guidance from the
Office of Civil Rights. Absent such guidance, it is sure that an overwhelming majority of revenue sharing compensation, like free-market NIL endorsements, will be awarded to male athletes - in particular the high-grossing football and men's basketball players. in that case, colleges and universities must remain dedicated to providing equal opportunity and pay to both men's and women's programs. Given this uncharted territory and the changing NCAA landscape, litigation regarding Title IX equality in the revenue sharing model is almost inevitable.
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In this regard, it is crucial that student-athletes request upfront disclosure of payments and benefits to be received from potential universities so that they are not taken advantage of by practices that may run afoul of Title IX. In the event that a college is not compliant with Title IX, harmed student-athletes may have the ability to sue a university under Title IX. However, an important not is that student-athletes will have the opportunity this coming fall [2024] to object to terms of the settlement or opt out of the settlement fully. It is critical that student-athletes carefully review the settlement and may potential releases involved in receiving payment from the NCAA in order to understand how this settlement may affect a student-athlete's ability to pursue a lawsuit against an individual university or the NCAA in the future.
..... Andrew Milterberg, a Franklin Lakes [NJ] resident, is a Title IX expert at the law firm of Nesenoff and Miltenberg. Kristen Mohr, a Rutgers University graduate and varsity athlete, is an associate at the firm specializing in student-athlete disciplinary and NIL representation.