Title IX’s Implications on NIL, Considerations for Cutting Sports and Students Return to Campus
Kelleigh Fagan recently sat down with CEO of Lead1, Tom McMillen, to talk about a number of legal issues currently evolving in the collegiate sports world on a daily basis. Here is a quick summary of their discussion. Listen to the full podcast here.
Considerations for Cutting Sports
We’ve seen budget decisions being made in the form of cutting sports, which has most significant ramifications on Title IX when it comes to financial aid and proportionality requirements; however, opportunities do not have to be equal but do need to be equitable in one of the three Title IX participation prongs:
- Proportional opportunities as compared to overall campus population
- Showing history of adding sports in underrepresented gender
- Survey that shows interest of student body is being met from an athletics standpoint
Before an institution cuts a sport, institutions should be talking with general counsel office as there are a lot of considerations and Title IX should be one of them.
Title IX Implications on NIL
LEAD1 did a recent survey of their 130 FBS Athletic Directors that revealed a huge concern of Title IX consequences from NIL. One of the issues AD’s are concerned about is equitable pay between male and female, but as of now it, does not present a big concern because third parties are paying the student-athletes and not the institution. The real issue of Title IX and NIL could come from the type of support or oversight the schools are providing through the NIL process. For example, if schools are providing educational training on building a brand through a third party, they need to be sure they are providing the education equitably between male and female student-athletes. What you do not want to see is schools signing on with third parties only for the teams of one gender. Title IX has a “laundry list” of items where student athletes need to be treated equitably in terms of medical services, facilities, access to coaching, marketing and publicity, etc. It is currently yet to be seen how NIL could fit into the marketing and publicity aspect. Schools will need to analyze and figure out a system for their student-athletes.
LEAD1 shed light on another concern that the majority of student-athletes that benefit from NIL are going to be male. That could be one concern but some research has shown NIL could actually benefit females significantly. Kelleigh states there would be political or perception concern, but she does not think it is a legal concern as long as schools are not going out of their way to get NIL opportunities for males and completely ignoring female student-athletes. If it is just the fact that more opportunities are coming to star quarterback, that alone should not cause Title IX issues.
Students Return to Campus
We are currently in a unique time where student-athletes are finding their voice now more than ever. Schools should be ready to deal with the potential situation of bringing back sports where some student-athletes are not comfortable participating because of COVID-19. They will need to determine if they will extend their scholarship to them for the year in which they are not participating and potentially one more year if the student-athlete has room on their five-year clock. Some student-athletes may need a clock extension waiver. The NCAA has issued information related to COVID waivers that can be found on www.NCAA.org.
Additionally, we are seeing a lot of pledges that student-athletes are going to take responsibility when it comes to hand washing, sanitation and quarantine expectations, but it is questionable as to whether the liability waivers will hold up in court. College administrators have a difficult job ahead of them to track and trace SA’s – each institution is going to have to come up with their own policies and procedures but NCAA is not issuing anything mandatory. We will see flexibility. What may be working now may not work next week.
If you have any questions or need any assistance as a student-athletes or a campus administrator, contact Kelleigh and our other sports law attorneys at www.cchalaw.com.
Kelleigh Fagan, a partner at Church Church Hittle + Antrim, started the firm’s sports law practice in 2015. Here’s a quick question and answer interview on Kelleigh’s path to creating the only all-female sports law practice in the US.
- Initial business thoughts, ideas, and how business came to fruition
Answer: I was an extern with enforcement as a college student before law school and ever since then, I had been interested in the infractions process. I reconnected with some former colleagues after law school who had since left the NCAA, particularly LuAnn Humphrey and Julie Roe Lach, and we started to talk about how to get into the “defense” side of the infractions business – representing schools, coaches in NCAA investigations – and that there was an opportunity to assist schools with staying out of trouble.
- How did you assemble the team?
Answer: Our team has grown organically and we have been very lucky for the right people to come to us at the right time. After we convinced Julie to partner with CCHA, we began working with Jenna LeClere, who had a compliance background at Indiana and Texas. Jenna was instrumental at the outset of our practice. She is back at Texas today. As we started to get busier with work, there was a need for more attorneys. Molly had significant experience at the national office in enforcement and was a perfect fit for the team. Katie had a law clerk with CCHA and had great experiences on Division I campuses in compliance. Natalie knew one of the partners at our firm and had great experience as a coach and former professional athlete. Jane’s experience filled a void on our team experience wise given she spent several years in the eligibility center. We have not set out to be an all-female practice group but its ended up that way and something we are proud of.
- Biggest successes over the last 5 years?
Answer: The general growth of the practice. Each year, we make strides and in roads into the business. We grow our client and contact base. The team we have developed is top notch in my opinion. We challenge each other and bring different experiences and skill sets to each client to allow to serve each client in the most productive and efficient manner.
- Lessons you’ve learned about growing a successful practice?
Answer: It takes time, patience, hard work, and some experimentation. You can’t rush growth but you can take the right steps to position yourself in the best way to make it happen. And sometimes ideas fail, which is great if you learn from them. Biggest key though is ensuring the people and clients you work with share your values and approach to problem solving.
- Future of CCHA Collegiate and CCHA Sports Law Practice?
Answer: Very bright. We continue to serve our core client base of institutions and coaches in NCAA compliance matters while remaining nimble to provide services on the ever-evolving issues in collegiate sports. We are appreciative of our clients and look forward to new meeting new ones!
Julie Roe Lach talks NIL and Title IX with Forbes Sports
Forbes Sports Reporter, Kristi Dosh, discussed potential Title IX and Name, Image and Likeness issues with Julie Roe Lach. Lach advises that the two may not be as exclusive as many are suggesting, providing examples of booster involvement and what, if any, responsibilities institutions might have if they have knowledge of a student-athlete receiving money from a permissible third party. Lach identifies three areas the law looks at in order determine equitable treatment. Read the full story here:
Jane McGill Talks COVID-19 Blanket Waivers with the Wall Street Journal
Wall Street Journal reporter, Laine Higgins, discussed the NCAA granting an additional year of eligibility to spring athletes with Jane McGill. Read the full story here: https://www.wsj.com/articles/ncaa-is-open-to-granting-an-additional-year-of-eligibility-to-spring-athletes-11585149362
We’ve Changed Our Name
Formerly known as Spectrum Collegiate Sports Consulting, we are now operating under the name CCHA Collegiate Sports Consulting. We wanted to keep things simple for our clients and we are still in a strategic partnership with the law firm of Church Church Hittle and Antrim. Church Church Hittle and Antrim is one of the most established firms in Indiana comprised of some of the most knowledgeable lawyers the Midwest has to offer. Visit the CCHA Law website here. The partnership serves as a one stop shop for all of your institutions needs related to NCAA compliance and representation.
Our twitter will be updated with news and blogs periodically. The blogs will typically cover some recent hot topic and advice from our team to help your compliance office stay informed and get creative on ideas to help your operation run smoothly. You can find the blogs on this website as well and please feel free to reach out to let us know if there are certain items you’d like for us to touch on in our blogs. Give us a follow @cchacollegiate!
If you’re planning to attend the NAAC Convention in DC on June 26-28th, you’ll find our new logo on the gift cards you’ll be receiving for lunch. We’re excited to roll out our new name and continue to provide the same great services we’ve been able to provide over the past few years. If you have any questions, you can contact us at email@example.com.