LISTEN / READ: New NIL rules for college athletes means some cash in, while others are left behind
The new name, image, and likeness rules in college sports lets athletes seek endorsements and monetize their brands. But there are already divides showing in the NIL cash flows.
Oklahoma quarterback Spencer Rattler eating Raising Cane's chicken fingers. Ohio State football players driving Chevrolet trucks. Michigan State offensive linemen drinking beer at Jolly Pumpkin Brewery.
These are just a few of the endorsement deals signed by college athletes since the NCAA’s recently revised Name, Image and Likeness (NIL) policy went into effect on July 1.
But there is one notable omission. Fewer female athletes gained sponsorship under those deals.
If the university athletic departments at Oklahoma, Ohio State and Michigan State facilitated those NIL deals and didn’t offer similar opportunities to female athletes, that could represent a Title IX violation, according to attorney Karen Truszkowski.
“My initial thought about it is that if the college or the university encourages, you know, ‘ABC
tile’ company to come in and sponsor some of their athletes, and they proposed only male athletes as opposed to the entire athletic department, that could possibly be a violation,” Truszkowski said. “It just really depends on the university or college's role in securing the name, image and likeness opportunities.
“It would really rely on, you know, is Smith University saying, ‘come here and just sponsor our male athletes,’ that could probably be construed as a Title IX violation.”
Title IX, which went into law in 1972, prohibits sex-based discrimination in any public school or other education program that recieves Federal money.
Michigan State’s female athletes broke through on Oct. 26, as the basketball team inked an endorsement deal with Michigan State University Federal Credit Union. The deal will provide financial compensation for the players for the entire 2021-22 season.
Other NIL endorsements agreed to by Michigan State male athletes include 133 basketball and football players signing with United Wholesale Mortgage for monthly $500 checks, and quarterback Payton Thorne partnering with East Lansing restaurant HopCat to add the “Payton Thorne Burger’ to its menu.
Jaime Miettinen, a sports law professor at University of Detroit Mercy and founder of Miettinen Law PLLC, said that endorsement deals such as United Wholesale Mortgage’s are Title IX compliant because companies are free to sponsor whoever they choose.
“What United Wholesale Mortgage is doing is O.K., according to how things stand right now, because it is a third party,” Miettinen said. “It is not subject to Title IX like Michigan State University is. They can decide who they want to offer their endorsement and sponsorship deals to without having to worry about equality issues all when it comes to male and female athletes.”
Truszkowski agreed, shifting the responsibility away from companies but also noting that if universities facilitate NIL opportunities, they have to solicit them equally to men’s and women’s teams.
“They (companies) don't have an obligation to sponsor anybody,” Truszkowski said. “So, yes, as long as the university or the college makes it an even playing field, from their perspective, I don't see a title line violation.”
Even though individual companies have no requirement to sponsor female athletes, Miettinen believes that they must show accountability and sign with women in order to slim the gender gap within NIL.
“They're taking responsibility because they have this platform, and they have the money to do so,” Miettinen said about companies who sponsor women. “I think it's going to increase the popularity of female sports, which will then create revenue for the school and hopefully more potential professional-level opportunities for some of these athletes.”
Despite having to wait until October to become the first Michigan State women’s team to receive an NIL deal, the players said they didn’t dwell too much on it.
“I don't really feel a lot of pressure about it,” senior forward Tory Ozment said. “I think I just kind of go on about my day more than feel pressure.”
Senior guard Nia Clouden agreed, adding that she believes NIL deals for female athletes hinge on how much emphasis they put on earning them.
“I think it all just depends on how you go about it,” Clouden said. “Some people go about NIL deals, like they look for them, and they put out their own stuff, make their own T-shirts, and then some people take what they get. So I think it's all about how the person approaches it and their intentions.”
Michigan State women’s basketball Head Coach Suzy Merchant, in her 15th season with the Spartans, thinks that the college years are the best time for female student athletes to build their personal brand.
“There's never a better time for a female student athlete to brand herself than the four years she's in college,” Merchant said. “Because the WNBA is great, but it's not there yet. They're still fighting for equity. They're still fighting for some of their challenges. I think for us, you have a built in fan base, you have the Big 10 network.”
Merchant believes inequities in NIL opportunities between men’s and women’s teams aren’t seen when it comes to top female athletes.
“I think on the women’s side, where the gap won’t be is when you see individual players. You’ll see a Caitlin Clark, a Paige Bueckers, an Ashley Owusu, people who are elite, those kids I think will be the ones that'll get really good deals and big deals and whatnot,” Merchant said. “And then the rest of the kids, I think, have an opportunity, but I don't think it'll be what the men are getting right now or football is getting.
“And that's just the reality of our time. I think in time when we invest in women's sports, and they can see the value to market and sponsor, I think over time we'll get there, but it's not going to happen right now. I think that's where there will continue to be a little bit of a gender gap.”
According to Miettinen, it’s important to note that NIL deals are negotiated between companies and individual athletes as opposed to companies and universities.
“It's really important to highlight the fact that this United Wholesale Mortgage deal isn't a deal with Michigan State,” Miettinen said. “This company is coming on its own and it's placing market value on the men's football and basketball players, and it wants to support them.”
A statement from Michigan State athletics clarifies its role in NIL agreements with athletes.
“NIL agreements are between individual student-athletes and outside third parties. Michigan State Athletics has provided NIL education to student-athletes through its EverGreen program. MSU athletics equips student-athletes to build their brand, make informed decisions within the framework of applicable legislation and be positioned to maximize their earning potential. Neither the institution nor any institutional staff member are involved in the development of any student-athlete’s name, image, and likeness activities.”
Truszkowski does foresee Title IX concerns with NIL agreements in the future.
“I certainly think that at some point, it is going to be an issue,” Truszkowski said. “Have I seen any instances of that thus far? Nothing that I can point to other than obviously that any school that I've seen talking about companies sponsoring athletes, all I've seen is male athletes.”
“I don't see that the NCAA is necessarily responsible for that,” Truszkowski said. “And the corporation's themselves have no obligation. So I think it does fall on the athletic departments primarily to say, hey, can you consider Team B instead of just Team A? But do they have a legal or ethical obligation to push that? I think that that's to be determined. Now, I don't see that someday we're gonna have ‘if you're gonna sponsor 10 men, you have to sponsor 10 women.’ Ideally, that would be great, but I don't see that happening. I don't know that there's any way to enforce that.”