NIL, House v. NCAA & Title 9
Why are we doing this again?
Emily Cole is a Duke grad and former All American track star whose recent op-ed calls for federal legislation regulating Name, Image and Likeness (NIL) policy for all sports. She wants more focus on sports that are not football and basketball, and fears that players in other sports are at risk of being left out. It seems that on average, that is true, but gymnast Livvy Dunne is one of the top-5 highest paid players. She published a sports nutrition book during her senior year, The Players Plate demonstrating the incredible focus, commitment and drive of the many athletes that I have taught at Duke University the past 28 years. Her primary worry is differences in state laws regarding NIL:
The current patchwork of state laws creates an uneven playing field, where opportunities and protections vary simply based on geography. Athletes and schools are left to navigate unclear, often contradictory, guidelines — a system that’s neither fair nor sustainable.
Her position is defensible, and many public policy debates are at their base arguments about the tradeoffs of having a uniform national policy or allowing states to vary. For example, here is a piece discussing differences in state taxation of Social Security benefits and private pensions.
Illinois, Iowa, Mississippi, and Pennsylvania are considered to be the most tax-friendly states for retirees.
Thirty-eight states don't tax Social Security income.
Thirty-seven states don’t tax most military retirement pay.
Fifteen states exempt pension income from state taxes.
Nine states have no income tax at all.
This is a far more consequential issue than is NIL, yet state policy is allowed to vary tremendously across state in terms of taxation of a key source of retirement income for most elderly persons. A national law makes the most sense when viewing sports through the lens of the NCAA, a national organization. However, there is currently a bill in Congress to do away with the NCAA and replace it with another organization.
Ms. Cole goes on to summarize her view on the benefits of college sports:
At its core, college athletics is about more than just competition. It’s about education, growth and the lifelong values we develop through sport — resilience, discipline, and teamwork. These are the lessons that prepare us not just for the next race, but for the rest of our lives.
I experienced these great attributes personally playing high school sports, and saw them more recently while coaching little league and middle school football for five years when my youngest child was playing. However, these values can be developed without needing federal NIL policy. Or even without having Division I sports. You could get the above benefits from club sports, and compete against more local teams instead of having a conference spread from North Carolina to California. And there are so many things going on in higher education right now…. this just doesn’t seem like the most important issue.
Title 9 and the House v NCAA Settlement
However, there is a consequential detail of how the judge is moving forward with the final settlement talks that is important and it is the separation of gender equity issues from House v. NCAA. Dr. Molly Harry is quoted as follows
“Judge Wilken’s decision to see gender equity issues as separate from the heart of the House case reflects a longstanding paradigm in which college sport continues to be interpreted and valued through frameworks that were designed by and for men’s high profile teams, namely football and men’s basketball,"
If a title 9 focused settlement were developed perhaps the past damages and the revenue sharing moving forward would be 50/50 female/male. However, a market based approach has been accepted by the judge that sees 75% of funding going to football and 15% to men’s basketball, and the other 10% split between women’s basketball and all other sports. Dr. Harry notes that the consultant who developed the financing sharing estimates for the plaintiffs used 2020 and 2021 data. Those were odd years due to COVID, and the women’s basketball NCAA tournament was notably successful in 2024 and 2025. It seems reasonable to update the estimates. However, Judge Wilkens has essentially waived away objections that could be viewed as Title 9 focused, yet the Knight Commission’s February 12, 2025 report about the case said:
“A disparity in any new institutional payments provided to male and female athletes may be challenged as discriminatory under Title IX. Clarity on how Title IX will apply to these new payments and benefits will most likely be resolved in the courts, in administrative proceedings, or through federal legislation or regulations. Institutions should be mindful of potential legal challenges arising from disparate payments and benefits to male and female athletes.”
This sounds like a mess brewing. Let’s get a lawsuit going against the settlement of a lawsuit. Sounds about right. Perhaps federal legislation that addressed the House v. NCAA settlement, NIL rules and the like could save a bunch of headaches.