The NIL Era Demands New Legal Protections: Title IX Falls Short in the New Era of College Athlete Compensation

I. Introduction
When NCAA v. Alston (2021) opened the door for collegiate-athletes to profit from their name, image, and likeness (NIL), the case was celebrated as a breakthrough for student-athletes. However, because NIL compensation largely comes from third-party sponsors, rather than educational institutions, it exists outside the traditional bounds laws like Title IX were designed to regulate. Consequently, NIL falls into a legal gray area, with protections like Title IX becoming difficult to enforce. As a result, the playing field hasn’t been leveled for everyone, especially women athletes. If the NIL is to benefit collegiate-athletes as a whole, new legal frameworks must ensure that opportunities are not just dictated by existing disparities. 

II. Legal Foundations of NIL
Prior to NCAA v. Alston, the National Collegiate Athletic Association (NCAA) enforced an amateurism model that prohibited student-athletes from receiving compensation beyond the cost of tuition, limiting other advantages like cash, academic or graduation awards, and benefits unrelated to education.[1] In Alston, the Supreme Court held that the NCAA’s restrictions of compensation violated the federal Sherman Antitrust Act.[2] Though the case focused more narrowly on education-related benefits, its broader implications and skepticism prompted the NCAA to adopt new policies allowing student-athletes to profit from their name, image, and likeness. 

This verdict created a new tension within the NCAA system. Though athletes remain students and are thus embedded within their educational institutions, their deals and earnings now stem from third-parties that largely exist outside university and NCAA control. Traditionally, compensation tied to being a student-athlete (as opposed to an independent professional) has been subject to regulation by legal frameworks like Title IX, but NIL doesn’t fit so neatly within these structures.

III. Where Protections Fall Short
As NIL rapidly evolves and expands, existing legal protections are struggling to keep up. On June 6th, 2025, a U.S. District Court approved the settlement of House v. NCAA, which encompassed three separate federal antitrust lawsuits against the NCAA.[3] The agreement left the “NCAA and Power Five Conferences” set to “pay college athletes more than $2.5 billion for use of their NIL going back to 2016… [and] allow schools to start sharing $20 million in revenue directly with college athletes beginning in the 2025-26 school year.”[4] While this decision expanded potential athlete earnings and marked a significant shift in the economic model of the NCAA, it did little to ensure there was an equitable distribution of compensation, as Judge Claudia Wilken held that these back payments for student-athletes would not be subject to Title IX requirements. For example, through the settlement money given for revenue sharing, university athletic departments could allocate most or all of the money exclusively to their teams like their men’s football and basketball, while neglecting funds for women athletes, reflecting the shortcomings of legislation like Title IX in ensuring equity outside of traditional educational institutions.[5]

Regarding federal guidance, in January 2025, the Biden Administration published a fact sheet stating that Title IX would apply to all athletic compensation for student-athletes, including NIL-related benefits.[6] However, just a month later, the Trump Administration rescinded this guidance, arguing there was no legal authority to support that interpretation.[7]

This rapid reversal highlights the inconsistent nature of NIL regulation and policies as legislators and politicians navigate the uncharted territory of the NIL landscape.  Furthermore, both of these press releases were merely guidelines and held no actual legal power. Rather than establish stable legal standards, there is only inconsistency, leaving no stable frameworks to ensure NILs are extended equitably.

IV. Opportunity for Everyone
Those against extending previous or new protections like Title IX to NIL often point to the ways in which NIL has expanded opportunities for women athletes. High-profile athletes like Livvy Dunne, Angel Reese, and Suni Lee have made millions of dollars in NIL endorsements. But these successes are largely individual, not systemic. 

House v. NCAA established a new revenue-sharing model to the NCAA, allowing schools to directly pay student athletes up to “22% of the average shared revenue generated by Power Five member institutions.”[8] Yet, the reality for most women athletes is reflected in the NCAA’s 2025 report, stating that over 60% of all NIL compensation goes exclusively to men’s football, basketball, and baseball.[9] For the 2025-26 school year, the cap amounts to $20.5 million per school, with data revealing that less than 15% of this, or $2.1 million will go to women’s sports.[10] These figures illustrate a critical issue: while a select group of highly visible athletes can earn millions, the vast majority, who do not have access to the same exposure, have limited opportunities to meaningfully benefit from NIL.

Even if one accepts the argument that NIL simply rewards marketability and should be based on that, the issue still remains: how can we ensure more people have the opportunity to be marketable and get NIL deals? The market itself is not neutral and is instead shaped by decades of unequal investment, media coverage, and institutional support. For example, studies reveal that even as recently as the last decade, broadcasts in major media markets like Los Angeles gave women’s sports a measly 3.2% of coverage time.[11] If NIL rewards visibility, what is being done to correct the structural inequalities that determine who is visible in the first place? 

Without new protections, NIL risks reinforcing existing disparities rather than expanding opportunities for a wider group of athletes. Schools, media and sponsors continue to direct resources toward already profitable and widely visible men’s sports, perpetuating a cycle of greater investment and greater exposure for those who already have it. 

Recent growth in women’s sports demonstrates that when investment and visibility increase, so does audience engagement, marketability, and profit. A 2024 report from Deloitte found that women’s sports surpassed $1 billion in global revenue.[12] However, growth like this does not occur organically, rather, it requires intentional support to overcome these longstanding structural barriers. Without intervention in NIL governance and distribution, the system will continue to lack significant benefit for the vast majority of underrepresented athletes. 

V. A Path Forward
It is clear that if left unregulated, NIL risks reinforcing a system in which historical structural advantages dictate opportunities. To address this, more specific legal guidance is essential. At the very least, federal guidance and legislation must create support systems to help marginalized groups catch up from the decades of exclusion and a lack of visibility and ultimately level the playing field. Requirements like minimum media and broadcasting representation and public reporting on compensation metrics and distribution by gender can work to hold schools accountable. Furthermore, equitable access to NIL education and resources can help all athletes have the opportunity to take control of their NIL opportunities and better navigate the confusing landscape of NIL. Only through intentional regulation and support can NIL become a system that expands opportunity, rather than perpetuating inequality. 

VI. Conclusion
The NIL era represents a transformative moment within collegiate athletics. This transformation presents exciting new opportunities for student-athletes but will not benefit the vast majority if left unchecked. Without deliberate legal safeguards, NIL threatens to reinforce the same disparities that legislation like Title IX sought to remedy. 

If the structures governing NIL fail to prioritize equity, they risk setting a dangerous precedent for society as a whole, in which opportunity favors pre-existing systemic advantages over fairness and merit. The question is no longer whether student-athletes should be paid, but whether the systems overseeing this compensation will ensure benefits are distributed equitably. 

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[1]  In re Nat'l Collegiate Athletic Ass'n Athletic Grant-in-Aid Cap Antitrust Litig., 958 F.3d 1239 (9th Cir. 2020)

[2]  Nat'l Collegiate Athletic Ass'n v. Alston, 594 U.S. 69, 141 S. Ct. 2141, 210 L. Ed. 2d 314 (2021)

[3]supra note 1.

[4]  Mark N. Mallery, Omar F. Hassan, Zachary V. Zagger, et al., “Antitrust Labor Markets: $2.8 Billion NCAA Settlement Reshapes College Athletics,” The National Law Review. Vol XVI, 85 (June 20, 2025)

[5]  Navigating the Title IX Implications of the NCAA Settlement on NIL, Duane Morris LLP, https://www.duanemorris.com/alerts/navigating_title_ix_implications_ncaa_settlement_nil_0625.html

[6]  Office for Civil Rights. (January 2025). Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) [Fact sheet]. U.S. Department of Education.

[7]  Office of Communications and Outreach (February, 2025). U.S. Department of Education Rescinds Biden 11th Hour Guidance on NIL Compensation [Press Release]. U.S. Department of Education.

[8] College Athlete Compensation: Impacts of the House Settlement. (2026, March 30). https://www.congress.gov/crs-product/LSB11349  

[9] NIL Assist Data Dashboard. NCAA 2025

[10] Opendorse. “Women’s Sports: Powering the College Athlete Influencer Movement.” Opendorse, November 2025.

[11] Cooky, Cheryl & Messner, Michael & Musto, Michela. (2015). "It's Dude Time!": A Quarter Century of Excluding Women's Sports in Televised News and Highlight Shows. Communication & Sport. 3. 10.1177/2167479515588761

[12] Jennifer Haskel et al., “Beyond the Billion-Dollar Barrier: Charting the next Phase of Growth: Deloitte Global,” Deloitte, March 17, 2025, https://www.deloitte.com/global/en/Industries/tmt/perspectives/charting-the-next-phase-of-growth.html.