Leveling the Playing Field in the NIL Era
Design by Diego Acevedo
Flashes of dusted yellow, green and black fly across the sand. She dives for the volleyball– sunglasses bobble on the brim of her nose.
Next point. She soars–gliding through the air, a sunbeam catches her chest. “OREGON 3” shines like a marquee light.
Bam. She crashes–the ball floats across the net and plummets.
Batia Rotshtein’s last season as an University of Oregon Beach Volleyball player ended in a 3-1 loss to the University of Utah. But her and her teammates' legacy on the program was a far more impressive battle than this final duel.
Just months before this match, Rotshtein and teammates got dressed for court instead of practice. Tank tops were traded in for long-sleeve button downs and Oakley sunglasses were kept in their cases.
In December of 2023 the University of Oregon Beach Volleyball team filed a federal class action lawsuit, Schroeder v. University of Oregon, against the University of Oregon for Title IX violations. The team, alongside members of the University of Oregon Women’s Club Rowing team alleged inequitable publicity, scholarship disbursement and facility quality in comparison to other sports on the men’s side of the athletic program.
The burden of financial inequities for women college athletes does not stop at poor facilities and scholarship money. Now, Name Image and Likeness (NIL) has contributed to a bright-siding facade of achievement and financial success for women athletes. But the catch: Title IX does not apply to NIL despite its close relationship to universities.
Title IX is a quick phrase that holds a heavy load in college athletics. And despite NIL giving substantial and impressive opportunities to women athletes across the country, its unregulated policies and rules have undermined the spirit of Title IX, perpetuating a culture of shortchanging women from deserved equal opportunity.
“Just reading the 37 words [of Title IX], you don't really have a full picture of everything that goes into it,” Rothstein said.
NIL is a two-year-old policy that allows college athletes to profit off their popularity, otherwise name, image and likeness in the sporting world. It is a National Collegiate Athletics Association (NCAA) policy, which previously restricted college athletes from accepting gifts, compensation or monetary awards. NIL’s history traces back to University of California, Los Angeles basketball player Ed O’Bannon who sued the NCAA (O’Bannon v. NCAA) in 2015 for the organization’s commercial use of his name and image in a video game. O’Bannon and plaintiffs were awarded over $42 million dollars. NIL today also utilizes collectives for athletes to earn an income.
Collectives are school-specific, pooled funds received from supporters, boosters and donors that are used to create financial opportunities for athletes. These collectives are supposed to be separate from university administration and athletic department jurisdiction.
However, on May 23 the top five athletic conferences and NCAA agreed to a $2.77 billion settlement where universities will directly pay some of its athletes. However, the lawsuit does not provide guidance on how a school should distribute money to its athletes. According to the WSJ, legal experts suggest that this undefined revenue-sharing model may mean that high-generating revenue teams like basketball and football will receive the most from schools, which would mean potential Title IX violations.
As a result, Title IX has zero bearing on ensuring equitable financial and resource disbursement to these third-party groups. In contrast, schools and university athletics departments receiving federal funding are required to present equitable resources to all of its athletes.
The University of Oregon in response to the complaint denied that it owns, controls or operates the University of Oregon specific collective, Division Street. If Division Street were to be considered an “in-house” affiliate of the University of Oregon, Title IX would in theory require that it disburse its resources equitably.
The plaintiffs of the complaint allege that the University of Oregon publicizes it male student-athletes more than women student-athletes. This lack of publicity “hinders women’s teams’s fundraising efforts and reduces the teams’ visibility on campus.” Additionally, the plaintiffs allege that the school “provides its male student-athletes with much greater NIL training, opportunities, and income than its female student athletes” through its actions with Division Street.
This alleged invisible hand at Division Street would make the University of Oregon at risk of Title IX noncompliance.
Arthur H. Bryant, one of the lead attorneys for the athlete plaintiffs and prominent Title IX lawyer, encourages simply going online and typing in University of Oregon and NIL in the search bar to determine if the University of Oregon is involved in the Division Street collective and University of Oregon NIL Marketplace.
“It does not look like independent third parties that the university is not at all involved with,” Bryant said. “That is why we focused the [complaint] on this whole area too.”
“You can't discriminate against people to make money or to avoid losing money, or because some third parties are willing to work with you to give away more money,” Bryant said.
The plaintiffs seek damages for inequitable resources and financial disbursement by the University of Oregon.
“I think the possibility of the women winning this lawsuit is over 95%. The school is blatantly discriminating,” Bryant said. “I’m amazed that the school wants to fight.”
There are two ways for athletes to earn NIL money: collectives and brand deals. Brand deals include companies and other sponsorships that athletes partner with to publicize products or the brand itself. The athletes in return are compensated for posting on social media or awarded gifts. Women collegiate athletes receive the majority of NIL deals–nearly 58%. Alas, a brightside in women’s athletics: outperforming men and being compensated for it.
Yet, as of March 2024, only 6% of the On3’s NIL Top 100 earning athletes list were women. But, as of 2022, 44% of collegiate athletes are women. And, according to the U.S. Senate Education Committee, male athletes earn over 75% of NIL revenue while only constituting 61% of the collegiate athlete population.
As of May 9, 2024, On3’s NIL Top 100 earning athletes list showed four University of Oregon athletes making the cut–none of those athletes were women. However, all of those athletes were football players.
A handful of successful women athlete stories outshine the lack of equal pay, equal opportunity, and equal respect that some women collegiate athletes are experiencing in the NIL space.
Livvy Dunne, Caitlin Clark, Angel Reese are all extremely successful examples of collegiate athletes tapping into the NIL market. All three have NIL valuations that surge over $1 million, but these high-valued, women athletes are far and few between despite women earning a higher number of NIL deals compared to men. And still, women athletes expected half as much in compensation compared to their male counterparts, according to an NIL equity analysis study at the University of Michigan.
For Rotshstein, pursuing NIL deals as a collegiate athlete was not worth the time, effort or money. She reached out to multiple brands to initiate a deal when NIL first became legal she said.
“There was only a handful that would respond and a handful that would make me a deal that was even worth it to pursue,” Rotshtein said.
The writing was on the wall. Some brands even asked her to buy the company's product first. The promise of NIL financial opportunity was fleeting.
For the women that have found success, brand deals were their main financial supporter compared to their university’s collective fund. These brand deals are often social media-dependent. The more followers, clout and influence an athlete has online helps them garner attention from brands.
Social media popularity and publicity drives NIL financial success for women athletes, but poses other barriers to entry such as the oversexualization of women in sports.
Ding. Ding. A red bubble appeared on the corner of Victoria Bossong’s email icon. She is a Harvard University Track and Field athlete, record-setter and international competitor.
Bossong received a content brief for an NIL deal with a well-known athletic clothing brand that she did not disclose.
Bossong was initially honored that the company chose her, she said. Then she received the brief.
One new message: Re: Victoria Bossong. Inside the email was a reminder of a sad truth in women’s sports. She recalled that the brief asked her to explicitly show off angles of herself that oversexualized her body to post on Instagram.
“Our value in the NIL space is often tied more to our physical appearance than to our athletic prowess,” she said.
But after this revelation, she recalled other Harvard University teams like the Field Hockey team experiencing similar situations.
“We just talked about it because it’s something we’ve all noticed and it’s kind of implicit,” Bossong said. “It’s in many different sports and with numerous companies, which kind of just highlights how big of an issue it is and how ubiquitous it is within the sporting world.”
Bossong still says that NIL is the step in the right direction for college athletes. But practices like this set a bad example for impressionable young girls–especially with such a fragile topic like body image, she said.
A 2012 study found that over 25% of female Division I college athletes reported disordered eating habits–a time before social media gained popularity. Since, Dr. Kathryn Vidlock, Sports Medicine Specialist studied the influence of social media triggering body image and disordered eating issues amongst female athletes, finding that “ideal” body image standards on social media encourages these athletes to aspire to unrealistic goals and practice unhealthy habits.
It was after this experience that Bossong and Rotshtein’s paths would cross.
The sun just managed to carve through the clouds on a gloomy February day earlier this year in Washington, D.C. Stray light beams reflected off the Capitol building’s formidable white facade and dome that pierced the sky. Ever so slightly, a path was lit below the clouds, revealing a trail of a hundred athletes knocking at the doorstep of the nation’s capital–amongst them was Rotshstein and Bossong.
The athletes’ uniforms were not school-sponsored. Rotshtein’s attire today didn’t bleed green and yellow. Instead, later-shared Instagram photos revealed that the athletes suited up in pantsuits, ponytails and a white t-shirts displaying the “Voice in Sport'' organization logo across their chests.
Today, the name on the front meant more than the names usually across their backs.
Voice in Sport (VIS) is an organization of women athletes that advocate for transparency and equity in women’s sports for all ages across the country. Their current policy initiative is the passage of the Fair Play for Women Act that would “prohibit certain discrimination against athletes on the basis of sex by intercollegiate athletic associations.” The bill was introduced by Connecticut Senator Chris Murphy in 2022 and reintroduced in 2024.
In the Capitol building’s Kennedy room, Bossong, a VIS advocate, spoke about her uncomfortable brand deal experience and urged for the passing of the Fair Play for Women Act.
This bill would strengthen the enforcement of Title IX through data and reporting transparency in women’s sports and in theory resolve equity issues within intercollegiate athletic associations. Yet, without NIL and its collectives under university administration jurisdiction, there is still no legal claim to ensure its enforcement within collectives at post-secondary institutions.
Meanwhile, more legal efforts are being made to ensure gender equity in the NIL space.
California State Senator Nancy Skinner, D-Oakland introduced SB 906 Collegiate athletics: student athlete compensation at the beginning of 2024. The bill would require that California colleges and universities with NIL-earning athletes of over $5,000 “make the total compensation and the value of the items and services [earned through NIL] publicly available.”
The intended effect is to increase data transparency and reporting of NIL money earned through collectives that coordinate with university funding and programs. Consequently, “there is not enough information about the scope and size of NIL collective payments to know whether there is a serious Title IX issue,” according to Skinner's executive summary of the bill.
This bill would affect all California post-secondary institutions.
The California Senate Judiciary Committee unanimously approved SB 906 on April 16 and referred it to the Appropriations Committee. At the beginning of the year, the Division I Council of the NCAA adopted a proposal to be implemented on Aug. 1 where student athletes must disclose NIL earnings over $600, the federal threshold amount for tax filing, offer a voluntary registration hub for services, and educate students on contracts and NIL resources.
However, athletes in California are already required to disclose all deals no matter the size, according to Ryan Merz, Santa Clara University Associate Athletic Director of Compliance. SB 906 looks for transparency specifically in collectives, requiring that post-secondary academic institutions also collect this information to disclose the value of deals, athlete’s gender and sport’s team publicly.
“You're just in a unique place where people are trying to judge [women] on some kind of equal footing that doesn't exist in that space,” Merz said.
Nevertheless, the NIL landscape is ever-changing. There are seven active federal bills about NIL currently at Congress and potentially more to come. A few of these include the Fairness in Collegiate Athletics Act, Collegiate Athlete Economic Freedom Act, Student Athlete Level Playing Field Act and Student Athlete Equity Act. Some address equity issues, while others address compensation and economic rights.
“It's the Wild West. It really is. It's nuts. Every day there's something new,” Merz said.
White cowboy hat, gold-mirrored sunglasses and a gold cross necklace that swings in sync with the most recognizable stride in college football today. When these three accessories step out onto Folsom field on a Saturday morning, everyone knows it's time for University of Colorado, Boulder football.
Deion Sanders and the University of Colorado, Boulder Football team had an extremely successful NIL year. Deion Sanders’s son, starting quarterback of the team, Shedeur Sanders has the highest-grossing NIL valuation at an estimated $4.6 million according to On3.
The amount of money an athlete can earn through brand deals is heavily dependent on their initiative if they are not an uber-popular social media star, or the child of sports legends like Shedeur Sanders or Bronny James, son of Lebron James and the third highest valued NIL athlete, who played for the University of Southern California Men’s Basketball team. For many, it is a self-starting initiative that rewards those who have the time, legal resources and internet recognition.
Rachel Rosen, Captain of the CU Boulder women’s soccer team is among many of the female athletes who initiated the process for finding NIL deals independently–without legal representation or millions of social media followers.
“For men, I get it, they have bigger following bigger audiences. And so there's more incentive for these companies to really make an effort to have them promote their product or their brand just because it's probably way more beneficial for them,” Rosen said.
Still, Rosen took the initiative to seek out brand deals with major companies like Sprouts.
“It's definitely harder to find deals as the girl, but there's definitely opportunities,” she said.
Still, the ever-changing NIL landscape and requirements from brand deals can make it difficult for athletes to balance this with sports, school and now influencer-status.
Social media is unavoidable in the NIL space.
With more than 500,000 followers on Instagram, and an estimated NIL valuation at over $300,000, Mia Mastrov, University of California, Berkeley Women’s basketball player has found serious success in NIL.
“I think that playing at an elite like institution with both academics and athletics in Division I, you're in the public eye more for NIL opportunities and social media deals,” Mastrov said.
Mastrov is represented by Raymond Representation, a sports agency specializing in NIL, which has been a crucial part of her NIL experience, she said.
“I would probably be 20 times more stressed if I didn't have someone to email companies back and forth,” Mastrov said.
At a Sports Law Conference at Santa Clara Law School, Joe Ferrari, Associate General Counsel at Athletes First, a leading sports representation agency explained that if women on average are getting less-valued deals, then there is less incentive for agents to seek out those athletes as their cut of the deal would also be less.
Successful NIL-earning football and male basketball players make the most out of all collegiate athletes partaking in NIL. They have higher viewing, popularity and exposure and oftentimes legal representation. But according to Jagjoth Bhullar, Senior Legal Counsel of Legal & Business Affairs at PAC-12 Networks, there are other ways to access bigger deals.
If an athlete is attached to an agency and other major athletes, “then [they can] get a deal just off the kind of tailwinds of somebody else and then eventually they’ll see the merits” Bhullar said.
Bhullar deals with NIL laws frequently. He said building a brand on social media is essential for NIL success and garnering attention.
“When you go to somebody's Instagram, you can tell whether they've curated a profile or whether they're just posting photo dumps,” Bhullar said. “And what is that brand representing? Are you like a fashionable person? Are you athletic? Are you traveling all the time? You can tell right away.”
Maggie Munson, University of Wisconsin Track & Field athlete and VIS advocate posts on her shared Instagram profile @therunningrates with three other University of Wisconsin, Madison Track and Field athletes.
Their profile surges over 37,000 followers. The larger deals for her shared platform started to roll in after they hit 20,000 followers on Instagram, she said. Their posts consist of running videos and what it is like to be a student-athlete. And just recently, the group signed their biggest NIL deal with Under Armour.
“I would say putting in some effort and a design around what you want to represent to the world will dictate what kind of deals you get. Because if you're the fashion girly or you're the fitness guy, whatever it is, brands will see that too and they'll see the impressions,” Bhullar said.
Despite how women are viewed online, Munson still sees inequities in how women are compensated through NIL deals.
“It's not nothing that women are getting some money. That's a good thing,” Munson said. “But I just think that there is not a regulated market really, and I think that's where we see so many discrepancies.”
Instagram Search Bar: goducks. The official page for University of Oregon athletics.
Since Oct. 7, there have been four Instagram posts dedicated solely to beach volleyball. For football and basketball there were a lot more.
“There were no marketing efforts for beach volleyball,” Rotshtein said. “So we were really underrepresented throughout the university my whole four years. Despite the changes we tried to make, we didn't even have any merchandise in the bookstore.”
There was a lack of exposure for Rotshtein and her team. Their Instagram was barely active when University of Oregon Football and Basketball teams were posting consistently, she said. In the ongoing lawsuit, Rotshstein and plaintiffs claim that this type of inequitable publicity between men’s and women’s sports is a clear Title IX violation. This increased marketing effort creates opportunities for male athletes to be in higher demand, Rotshtein said.
“When you look at other athletes and sports, mainly the male football players and basketball players, they have people, a lot of people helping them with that and we just weren't given those resources,” Rotshtein said.
The University of Oregon Athletics Department has a Creative Services department who creates social media content for the @GoDucks Instagram, the University of Oregon’s official athletics page. They produce content for specific athletic team accounts and @GoDucks accounts, said Jimmy Stanton, Senior Associate Athletics Director of Communications at the University of Oregon.
The complaint states that The University of Oregon pays full-time photographers for football team practices and games whereas the beach volleyball team does not have one for practice and rarely at competitions. There are also customized media spaces for men’s football but the women’s beach volleyball team did not have its own social media account until 2019, according to the complaint.
“We post equitably on our @GoDucks channels and also provide original content for all team accounts to utilize and grow their audiences,” Stanton said.
Publicity is on the laundry list of equal treatment and benefit considerations for Title IX regulations, according to The Office for Civil Rights of the United States Department of Education.
“So in theory, what the school is supposed to be doing is providing comparable or equivalent publicity for the women as a whole and all the teams and the men as a whole,” lead co-counsel of lawsuit Arthur Bryant said. “And of course, it's not believable.”
When the Oregon duck posed with a football player for Instagram, athletes in the same department felt shorted.
“We definitely felt like outsiders, so I didn't really have the confidence to be like, hey, I am a D1 athlete and I should be getting [NIL] deals,” Rotshtein said.
All the while, Rotshtein has graduated. Mastrov has completed her senior season. Bossong and Munson will compete in their senior season’s next year. And, Rosen will return for her fifth year at Boulder.
The only constant is the continued battle for equity and representation that women athletes face in the sporting world.
Developments on NIL and what the future holds is unpredictable. The Schroeder case continues and so does NIL. For the women, their seasons will continue as well as their fight to level the playing field despite inequitable resources, publicity and compensation. It is unfortunate that some women’s sports do not receive the attention that a men’s basketball team would get, Merz said.
“And that's just life in America,” he said.