Miltenberg: “Has NIL been fair to women?,” The Salt Lake Tribune


On Dec. 13, Utah’s Crimson Collective announced it would offer SUV and truck leases to members of the men’s basketball, women’s basketball and gymnastics teams. In the end zone of Rice-Eccles Stadium last October, 85 scholarship football players gathered around a fleet of new Ram Big Horn 1500 trucks. With University President Taylor Randall, athletic director Mark Harlan, and head coach Kyle Whittingham watching, players found out they were about to be given the keys as part of a Name, Image and Likeness deal (NIL). It was a fleet of trucks worth an estimated $6 million, according to the dealership that provided the leases to each player. “We all need to lean into NIL. It is here,” Harlan said that day. “So let it not be said that it’s not a huge priority of this athletic department, and this athletic director.” The announcement was met with fanfare. College GameDay’s Kirk Herbstreit, one of the most prominent voices in college football, heaped praise on the athletic department. “That’s amazing,” he said to a national audience on the Pat McAfee show. Attorney Arthur Bryant saw it another way. “It appears to be blatant, illegal sex discrimination in violation of Title IX,” said Bryant, a California attorney who specializes in such cases. “It is in-your-face discrimination against the women athletes. Where are their pickup trucks?” Utah’s NIL collectives do have plans for women’s teams at the university, however, and expect to announce them in the near future, according to sources who were not authorized to publicly speak on the matter. But how NIL fits within Title IX remains a question for college athletics at large. As NIL nears its third year of existence, the majority of the money has been funneled to football and men’s basketball players. According to Opendorse, the average Power Five football player makes 3.5 times more than the average women’s basketball player (the top earners on the women’s side at most universities). A men’s basketball player makes 2.3 times more. That is legal since NIL allows third parties to pay players without university involvement and outside Title IX oversight. But multiple lawyers who spoke to The Tribune say they’ve seen increased school involvement with deals across the country — and they predicted NIL and Title IX are on a collision course. “University officials keep saying that NIL is the wild, wild west and there’s no rules and no laws,” Bryant said. “That’s not true. There is a law. It’s Title IX.” … “I don’t think that was a mistake,” New York Title IX attorney Andrew Miltenberg said of why schools weren’t very public in promoting NIL at first. “I think to get it to this point, it needed to appear a certain way that schools were staying out of it. And now I think the go sign is on, the green light has been given.” It is why some lawyers believe NIL has the potential to do damage to women’s sports. “Title IX is meant to close the gap between women’s sports and men’s sports,” Miltenberg said. “NIL is going to, I think, further highlight or exacerbate it again. It’s certainly not going to help it.”

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