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The NIL Glass Ceiling

Name, image, and likeness (“NIL”) produced nearly $1 billion in earnings for intercollegiate athletes in its inaugural year. Analysts argue that the shockingly high totals result from disproportionate
institutional support for revenue-generating sports.

Although NIL earnings have soared upwards of eight figures to date, first-year data reveals that significant gender disparities exist. Such disparities raise Title IX concerns, which this Article illustrates using a hypothetical university and NIL collective. As such, this Article reveals how schools can facilitate gender discrimination through NIL collectives, contrary to Title IX. Although plainly applicable to NIL transactions in which schools are involved, Title IX’s current regulatory scheme did not anticipate, nor does it mention NIL. This ongoing omission has produced confusion regarding Title IX’s applicability, especially as it relates to NIL financed by third parties. Accordingly, this Article argues that Title IX should be modernized to explicitly address NIL and offers several recommendations for doing so.

Tan Boston *

* Assistant Professor of Law, Northern Kentucky University.