Tan Boston, Northern Kentucky University – The NIL Glass Ceiling

On Northern Kentucky University Week: There’s a glass ceiling in college athletics.

Tan Boston, assistant professor at the Salmon P. Chase College of Law, discusses.

Tan Boston is an assistant professor at Northern Kentucky University Salmon P. Chase College of Law, where she teaches Sports Law, Property and Sales & Secured Transactions. In addition to teaching, Professor Boston holds multiple leadership positions, serving as Chair-elect of the Sports Law Section of the Association of American Law Schools (AALS) and Chair of the DEI Committee for the Sports and Recreation Law Association (SRLA). Her academic research focuses on intercollegiate athletics, particularly its commercial and civil rights aspects. Her most recent scholarship The NIL Glass Ceiling, NIL Data Transparency, and As California Goes, So Goes the Nation: A Title IX Analysis of the Fair Pay to Play Act appear in the Louisiana Law Review, Richmond Law Review, and Stanford Journal of Civil Rights and Civil Liberties, respectively.

The NIL Glass Ceiling

Name, image, and likeness activities, or N.I.L., have produced nearly a billion dollars in earnings for intercollegiate athletes since 2021.

LSU’s Angel Reese, for example, saw her NIL valuation skyrocket to over $1 million after the Lady Tigers won the NCAA women’s basketball championship. However, Reese is an outlier, male athletes currently receive over 80 percent of total N.I.L. earnings.

This massive gender disparity not only raises eyebrows. It also raises questions as to whether NIL violates Title IX, a federal law that prohibits gender discrimination in “education program[s] or activit[ies]” that receive federal funding. The law covers most U.S. colleges and requires equal treatment in athletics program areas, such as, recruiting and publicity.

Although schools rely on NIL for recruiting and to a certain extent publicity, some commentators argue that TIX is irrelevant. This is presumably because third parties provide NIL funding, as opposed to schools. However, schools are increasingly becoming more involved in facilitating NIL deals. Additionally, courts and other regulatory bodies have long held schools accountable for third party activities that widen gender disparities.

Therefore, the real question is, how should regulators measure NIL compliance with Title IX? Well my research has identified three options. The first is equal opportunity for each gender to earn NIL compensation. The second is absolute equality, where men’s and women’s athletics programs would each receive equal NIL compensation. Third is proportionate equality, where, similar to athletic scholarships, NIL compliance with Title IX would be determined based on the number of a school’s male and female athletes.

Either way, schools should begin to seriously consider the Title IX implications of NIL gender disparities.