Are schools using NIL to skirt Title IX regulations?

A new lawsuit alleges the University of Oregon is doing just that.

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Inside the Oregon Title IX lawsuit

Last week, a group of 26 female athletes from the University of Oregon sued the school “for depriving women of equal treatment and benefits, equal athletic aid, and equal opportunities to participate in varsity intercollegiate athletics in violation of Title IX.”

In some ways, this is a typical Title IX lawsuit — it alleges that Oregon is discriminating against its female athletes by providing them with resources, aid, and accommodations that are inferior to those received by male athletes at the school. In particular, this lawsuit focuses in on the mistreatment of the women’s beach volleyball team. The details are appalling, and I go into them at the bottom of this newsletter.

But first, I want to talk about what makes this lawsuit stand out: The fact that it includes NIL.

Here are the most relevant parts of the lawsuit, in terms of NIL:

Essentially, the lawsuit alleges that Oregon —directly, and through both its NIL Collective, Division Street, and its NIL Marketplace, Opendorse — provides its male athletes with a lot more NIL-related support than its female athletes. It points out that three of Oregon’s football players are on a list by On3 naming the top 100 NIL earners in the country, while “no female student-athlete receives anywhere near the amounts mentioned on that list.”

These are pretty vague allegations, but I still think this lawsuit has the chance to set an important precedent going forward. Last week, I spoke with one of the attorneys for the plaintiffs, Arthur H. Bryant — an experienced Title IX lawyer and a partner at Bailey Glasser — and tackled a couple of pertinent questions.

Why does this lawsuit include NIL?

For years, people fear-mongered that ending amateurism in college athletics (by allowing college athletes to profit off of their name, image, and likeness (NIL) or get paid directly) would mark the end of Title IX as we know it. Of course, that alarmist rhetoric wasn’t true. All athletes in collegiate women’s sports benefit from being able to profit from their NIL, and some have raked in millions of dollars worth of deals.

But that doesn’t mean that things are working perfectly across the board. Over the past couple of years, I’ve had conversations with advocates in the women’s sports space who fear that schools will use NIL to circumvent Title IX, by helping to facilitate more deals in men’s sports than women’s sports. And this lawsuit tackles that fear head on.

“The point of the lawsuit is that the University of Oregon is discriminating against its female student athlete and treating them way worse than their male student athletes in all of the meaningful areas covered by Title IX's athletics requirements: equal treatment, equal athletic financial aid, and equal opportunities to participate,” Bryant told Power Plays. “The lawsuit is designed to hold the school accountable for all of its sex discrimination, and to make the school comply with Title IX going forward. And one big piece of how the women are being treated worse than the men has to do with NIL, name, image and likeness, activities. So if we're going to deal with everything, we felt we really needed to deal with that too.”

Bryant pointed out that he doesn’t have all of the information about the extent of Oregon’s involvement in NIL deals, but notes that both Opendorse and Division Street have official ties to the University.

“God only knows what all of the NIL deals are at University of Oregon and to what extent the school is involved in other activity or training or other things, we just don't have that information yet,” he said. “This was stuff we could easily find, and it seems clearly linked with the school and its activities.”

How exactly do Title IX and NIL interact?

We are still in the early days of NIL, and new rules and regulations are popping up on a weekly basis. But Bryant is adamant that Title IX already regulates it.

“When NIL started, what you almost immediately had was some people saying that it's the Wild Wild West and no law applies,” Bryant said. “And the truth is, there is a law that applies. It's called Title IX. And schools cannot use NIL to duck their responsibilities under Title IX. And if they violate it with their NIL-related activities, they need to be held accountable.”

It can be a tricky delineation, because Title IX only applies to the schools themselves, not the individuals or companies that are contracting players for NIL deals. Here’s how Bryant breaks it down:

“If Pizza Hut decides it wants to pay $500 a month to every football player at some school, and to no women athletes at the school, and truly is acting independently, then Title IX doesn't apply, because Title IX only applies to educational institutions receiving federal funds,” he said.

“But if Pizza Hut were, for example, to do that in cooperation with the school, where the school were to promote Pizza Hut and Pizza Hut could put the school's logos on their boxes, and they would do PR together, then you have an educational institution receiving federal funds discriminating against women and Title IX would totally apply. So the question is whether that is what's going on here at the University of Oregon. And if you look at what you can just find in the public press and on the web, it certainly does not look like the NIL support the athletes are getting is totally independent from the university of Oregon.”

NIL is a great thing, but it’s crucial that NIL doesn’t become a way for universities to skirt Title IX, and it’s important not to let the success of a handful of female athletes in the NIL space distract from the bigger picture. I’m going to be closely watching this lawsuit going forward, and I have a feeling other schools will, too.

Let’s take a look at the rest of the lawsuit

I don’t know if this lawsuit will be able to prove that Oregon is violating Title IX via NIL. But I do feel pretty confident it will prove its violating Title IX in other ways.

Here are just a few bits that stood out to me — I use quotes when I’m pulling directly from the lawsuit.

• Oregon would have to add at least 94 female student-athletes to its varsity athletic program to achieve proportionality and comply with Title IX.

• To make its financial aid to men’s and women’s programs proportional from 2017-2022, Oregon would need to pay over $4.5 million to its female athletes.

• Women are about 49% of the varsity athletes at Oregon, but Oregon spent only 25% of its total expenditures and 15% of its recruiting budget on women’s sports.

• Oregon has a club women’s rowing team, which is very successful and sometimes competes against varsity programs at other colleges, but Oregon refuses to grant it varsity status. Without varsity status, rowing athletes must pay for their own coaching, travel, gear, and medical services, and pay dues just to participate on the team.

• The lawsuit alleges that women’s teams have to schedule their practice time and training time around the schedules of men’s teams, particularly the football team — even when it’s the football offseason.

But the most egregious allegations come from Oregon’s mistreatment of its women’s beach volleyball team

The bulk of the lawsuit focuses on Oregon’s women’s beach volleyball team. And friends, there are SO MANY appalling parts about the way that Oregon treats its women’s beach volleyball team that I almost made this an entire separate newsletter, but instead I’m going to try to condense the lowlights below.

For background, Oregon added women’s beach volleyball as a varsity sport in the 2015-16 academic year. But despite the fact that it’s been a varsity sport at the school for almost a decade, the school still provides ZERO SCHOLARSHIPS to players on the beach volleyball team. Not even partial scholarships. Zero scholarships.

I can’t get over it.

It is the only varsity sport in the entire Pac-12 in which this is the case.

Additionally, the resources given to the women’s beach volleyball team are paltry. The players often have to buy their own uniforms and practice gear (which has to be Nike, due to the partnership between Nike and Oregon) and make their own travel itineraries.

They aren’t provided with adequate food and water during tournaments or at away games. Here’s how bad it can get, emphasis mine:

Because Oregon does not provide the beach volleyball team with food during all-day tournaments, sometimes the coaches are left with no alternative but to leave the tournament in the middle to get food, leaving some players to compete without a coach. Women on the team have even had to ask fans in the stands to toss them down water bottles so they could have water in the middle of a match.

On road trips, the players often don’t have the option to stay in hotel rooms, and sometimes find themselves staying on air mattresses with family. But it can get worse:

If the beach volleyball team members are lucky enough to receive hotel rooms, they are often required to sleep up to four to a room, including with student team managers, and the hotels are low quality or in unsafe areas. For example, at one tournament, a member of the women’s beach volleyball team contracted a life-threatening case of MRSA after being bitten by bugs in her hotel room.

But the absolute worst part of all of this is that the women’s beach volleyball team does not have its own locker room, practice courts, or even competition court. It has no facilities of its own.

The team uses Amazon Park (pictured below) for its practices and competitions. The lawsuit describes the PUBLIC PARK’s facilities as “grossly inadequate,” adding that players “sometimes have to rake the sand to remove animal feces and drug paraphernalia before the court can be used.”

Another direct quote from the lawsuit: “On November 28, 2023, the players were unable to practice because a deceased person was discovered near Amazon Park, and police closed off players’ access to the sand courts.”

this is where the women’s beach volleyball players practice and hold competitions, via the lawsuit

The park’s bathrooms do not have doors on the toilet stalls or toilet paper “to prevent drug users and unhoused people from living in the bathroom facilities.” The team “has to bring its own toilet paper to practice” and players have witnessed people in the public bathroom “injecting intravenous drugs or using crack cocaine.”

The players “requested a portable toilet to have a semi-private bathroom. Oregon provided this portable toilet for two months before removing it.”

This is what the toilets they use look like:

Here’s another excerpt about the park’s conditions:

A creek runs parallel to a walking path that is adjacent to Amazon Park. Unhoused individuals often lay in the path or overgrowth along the creek. There is a chain-link fence that runs along the creek, which is perpendicular to the back end of the sand courts. Along the fence line, there is often human feces. When volleyballs are hit off the court during practice they are stopped by the fences, and often roll into fecal matter. There are no sanitation or disinfection sources available at Amazon Park to clean balls or hands on site. When the balls go over the fence, the coaches instruct the players to jump the fence to get the balls, which can be dangerous.

There is no place for players to rinse off after practice at Amazon Park. So, they have to go back to the athletic facility and use a locker room for visiting teams after practice. However, when a visiting team from another sport is using said locker room, “the women also lose access to post-practice recovery because they are not allowed to enter the athletic training rooms in the facility with sand on their bodies or feet and often, by the time the women are able to go home and shower, the training rooms have closed.”

Their equipment is stored in a shed at Amazon Park. The local high-school softball team has priority over the Oregon varsity women’s beach volleyball team. The shed is not rain-proof. “During one winter break, the team’s volleyballs were eaten by rats.”

The courts have no official Oregon branding, and this is the only place for spectators to sit during matches:

Just a few more nuggets that pissed me off:

• “When the women’s beach volleyball team had blood tests taken in the fall, the players did not find out their test results until June, after the season was over. One female student-athlete’s test results showed that she was anemic, which required treatment she did not learn was needed until months later.”

• “Athletic trainers never attend women’s beach volleyball practices.”

• “When athletic trainers do not attend beach volleyball competitions, the women have to bring a rolling suitcase with medicine and medical equipment to competitions and student-athletes have to treat each other. When necessary, the female student-athletes gathered to watch YouTube tutorial videos on how to apply elastic sports tape for injuries.”

• “For example, at one beach volleyball practice, a student-athlete suffered a concussion. Since there were no athletic trainers on-site, another student-athlete had to leave practice to drive her injured teammate to the emergency room.”

At this point you might be wondering, why on earth would anyone sign up to play on this team?

Well, of course, when players were recruited for the team, they weren’t shown Amazon Park, and they they were told that financial aid and new facilities were coming soon. But they never did.

One of the plaintiffs organized an in-person meeting with Lisa Peterson, Oregon’s senior women’s administrator at the time, to ask about the failed promises for scholarships and facilities. According to the lawsuit, Peterson told the players that “if they had more fans, they would have more money for resources.”

To make matters EVEN WORSE, players aren’t allowed to fundraise for the women’s beach volleyball program because only teams that are awarded athletic financial aid were permitted to fundraise.

Ridiculous.