Title IX Concerns from the Lack of Transparency in Reporting Intercollegiate Names, Images and Likeness Earnings

Tanyon Boston, NIL Data Transparency, 83 Louisiana L. Rev. (forthcoming 2023)

 Since July 2021, intercollegiate athletes have earned nearly $1 billion from monetizing their names, images, and likenesses (NIL), with some earning more than professionals. Such earnings were made possible by state NIL laws and by the NCAA’s simultaneous retreat from enforcing restrictions on athletes’ ability to earn compensation for the use of their NILs. Commentators argue that the unforeseeably impressive NIL figures are driven by disproportionate institutional support for athletes in certain high-profile sports. If true, this may raise Title IX concerns, as NIL earnings for female athletes lag considerably behind that of their male counterparts. Although most state NIL laws require athletes to report NIL data to their schools, schools are not required to make the information publicly available—not even in redacted form. The current lack of NIL transparency by schools makes it virtually impossible to accurately identify potential gender disparities.

This Essay explores the relationship between the lack of NIL transparency and incentives for colleges and universities to meet Title IX’s requirements for NIL. It argues that shielding NIL data from public scrutiny is inappropriate given Title IX’s culture of disclosure. This Essay further argues that stakeholders will be unlikely to implement a NIL framework that aligns with Title IX’s purpose, without a universal disclosure mandate. After exploring how a lack of NIL transparency frustrates Title IX’s purpose, this Essay concludes with a workable proposal for collecting and disclosing NIL data.