The Sky Is Not Falling: Why Name, Image, and Likeness Legislation Does Not Violate Title IX and Could Narrow the Publicity Gap Between Men’s Sport and Women’s Sport Athletes

For decades, the National Collegiate Athletic Association’s (“NCAA”) amateurism rules have largely prevented NCAA athletes from commercializing their names, images, and likenesses (“NIL”). The right to license and profit from one’s own image, often referred to as the “Right of Publicity,” is explicitly recognized by statute or common law in 35 states. No federal Right of Publicity statute exists, but in 1977, the United States Supreme Court recognized the right. However, until 2021, NCAA athletes were precluded from benefiting from this right, as under the NCAA’s amateurism principle, “An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport ...” if he “[u]ses athletics skill (directly or indirectly) for pay in any form in that sport.” Until July 1, 2021, by becoming an NCAA athlete and complying with the NCAA’s Bylaws to maintain eligibility, NCAA athletes gave up their right to benefit from their NIL while competing in NCAA athletics. This relinquishment put full commercial marketing control of the athlete, their team, and the college sport in the NCAA’s hands. Research shows that despite the application of Title IX to sport in 1975, NCAA women’s sports have not been commercially marketed in parity with NCAA men’s sports, with NCAA men’s sports experiencing significant publicity and sponsorship windfalls. This article examines the recent decision by the NCAA to allow NCAA athletes to benefit from their NIL, the potential Title IX implications of the decision, and how the decision could narrow the publicity gap between NCAA men’s and women’s sport athletes in furtherance of the plain language and intent of Title IX.

Sport Is for Everyone: A Legal Roadmap for Transgender Participation in Sport

Sport is a vehicle for social change and should be leveraged as such in 2021 and beyond to address matters of equality. In recent years, the public has paid greater attention to transgender athletes participating in sport at all levels—high school, collegiate, professional, and Olympic—despite the fact that transgender athletes have been competing in sports for decades. Backlash has arisen in general but also more specifically in response to several recent Supreme Court cases that have both solidified and extended rights of lesbian, gay, bisexual, transgender, and other gender and sexual minorities. In turn, state laws that seek to limit the rights of transgender students to participate in sports have been drafted around the country. To be sure, these laws are often built on erroneous data, a misunderstanding of facts, and ignorance, but their existence continues to fuel the public debate on whether transgender athletes should be allowed to participate based on their gender identity or their sex as determined at birth.

If You Build It, “They/Them” Will Come: The Misgendering of Transgender Nonbinary Athletes Is Discrimination on the Basis of Sex

This article provides necessary context to adequately engage in a discussion about transgender and nonbinary individuals, including defined terms. It then provides a brief history of Title IX, articulates the requirements for compliance with the statute, and discusses its application to transgender athletes. Next, this article provides an overview of Title VII of The Civil Rights Act of 1964 and the recent statutory analysis of its prohibition on employment discrimination because of sex in Bostock v. Clayton County extends that analysis to the statutory language of Title IX, and summarizes the recent interpretation by the Department of Education applying that analysis to Title IX. The article then discusses the implications of the persistent misgendering of transgender nonbinary athletes and argues that only by allowing all athletes to compete as their true gender will the inclusive goals of Title IX be realized. The article concludes that the requirements for Title IX compliance are not inclusive of transgender nonbinary athletes and contradictory to the prohibition on discrimination on the basis of sex articulated by the statute itself. The article proposes several necessary changes to the language of those requirements for compliance and argues that the Department of Education must make changes in its interpretation toward more inclusive language to truly achieve the goals of Title IX.

The Butterfly Effect? Title IX and the USWNT as Catalysts for Global Equal Pay

It is commonly believed that Title IX has had one of the greatest impacts on women and girl’s involvement in sport in the United States and beyond. In 2021, 50 years on from its inception, the development of women’s sport and women’s opportunity within the sporting sphere has increased dramatically. It is doubtless that Title IX has increased participation opportunities and “the question is no longer, ‘can women play?’ The critical question is ‘at what level?’ That’s the 21st century question.”

Addressing Gender Discrimination in the NBA with a “Hammon” Rule

The purpose of this conceptual study was to examine how the National Basketball Association (NBA) should address gender discrimination in sports by implementing the “Hammon” Rule for head coaching and general manager hiring processes. Drawing from societal perceptions (Sagas & Cunningham, 2004; Schaeperkoetter et al., 2017), leadership (Burton, 2015) and the infusion of the Ecological-Intersectional Model (EIM) (LaVoi, 2016) as conceptual focal points, this article asserts that the NBA has important opportunities to lead other professional sports leagues to aid in its recruitment and retention of women in front-facing leadership roles. Utilizing Lapchick’s (2020a) report on race and gender for the NBA, this study calls for progressive action. As the current literature documents, legal and cultural factors, as well as leadership and lack of advocacy, all play a crucial role in how women are perceived within sport. This study provides a multi-faceted approach to addressing gender discrimination at the coaching and general manager levels, including accountability measures necessary for structural and organizational change to address gender discrimination in the NBA and beyond.

A More Just, Inclusive Future for Sports

This issue of the Journal of Legal Aspects of Sport (JLAS) was dedicated to women in sports law, with a specific emphasis on inclusiveness and new ideas. For decades, the central focus of the law and policy directed to women and sports was Title IX enforcement and securing opportunities for participation. As we approach Title IX’s 50th anniversary, it is clear that the law has greatly expanded participation opportunities for women and powerfully altered the norms around women and sports. Nevertheless, much work remains. Women and girls still do not enjoy the full measure of equality that Title IX guarantees, and women’s sport at all levels still does not get the attention, resources, and respect that it should. The COVID-19 pandemic has only exacerbated this issue.

Raising the Bar: Increasing Protection for Athletes in the Olympic Movement from Sexual Harassment and Abuse

After the Larry Nassar and USA Gymnastics scandal surfaced in 2016, the United States enacted a federal act titled “Protecting Victims from Sexual Abuse and Safe Sport Authorization Act of 2017.” This Act requires immediate mandatory reporting to the U.S. Center for SafeSport for any alleged child abuse of an amateur athlete who is a minor. An increasing amount of legislation is being passed to address sexual harassment and abuse in sports in the United States; however, the International Olympic Committee (IOC), which governs the Olympic Movement, is lacking in its sexual harassment and abuse policies. This article will address how the IOC’s sexual harassment and abuse policies are not as robust as they should be. The amount of attention that the Olympics receives worldwide gives the IOC a global platform to be a leader in taking a stance on sexual harassment and abuse policies.

The COVID-19 Pandemic, the Empowering Olympic, Paralympic, and Amateur Athletes Act, and the Dawn of a New Age of U.S. Olympic Reform

In the fall of 2020, Congress enacted the first substantive changes in the governance of the Olympic Sports system in over four decades. The new law, The Empowering Olympic, Paralympic and Amateur Athletes Act, was passed in the wake of sexual abuse scandals that rocked certain sport governing bodies. In amending the 1978 Amateur Sports Act, the new law grants Congress the power to decertify the United States Olympic bodies, mandates greater athlete representation in governance, and increases funding to protect athletes through greater support of the U.S. Center for SafeSport. Aside from the decertification power, the most significant provision of the new law is the establishment of a Commission on the State of U.S. Olympics and Paralympics to review the governance of the United States Olympic and Paralympic Committee (“USOPC”) and make proposals for change. The Commission’s creation comes at a crucial time in U.S. Olympic governance. Due to the governance scandals, uncertain funding and the general national sports upheaval caused by the COVID-19 pandemic, this article advocates for more significant changesto the Olympic structure that the commission should consider, such as direct or indirect government funding for the USOPC and the sport governing bodies in return for adherence to more stringent transparency and ethical rules. Ideas that the Commission could consider include mandatory disclosure of information such as sponsorship agreements as well as compensation and bonus limitations for those in key leadership positions, the appointment of an inspector-general, and greater athlete involvement in the U.S. Olympic movement. The article also proposes more statutory changes such as a limited antitrust exemption and the end of special trademark protections for the USOPC.

Operation Varsity Blues and the NCAA’s Special Admission Exception

“Operation Varsity Blues,” the university admissions scandal and ensuing federal investigation, made national news and captivated the public. Fascination with the scandal could have stemmed from the involvement of celebrities such as Lori Loughlin and Felicity Huffman and/or the sheer ridiculousness of the scheme, in which wealthy and prominent families paid exorbitant amounts of money to secure their childrens’ admission to elite universities. Others may have closely followed the resulting legal proceedings that included federal criminal charges like racketeering against 50 individuals and civil lawsuits against elite universities and celebrities with one suit seeking $500 billion in damages. Lawmakers’ attempts at preventing future university admissions scandals legislatively may have also caused curiosity. This article, though, explores the scandal’s intricate ties to college athletics and seeks to determine the most effective and practical means to mitigate the likelihood of a future similar admissions scandal. More specifically, the article explores how head coaches and an athletics administrator used their positions at academically elite universities to exploit a little-known NCAA rule permitting universities to use more lenient admissions standards for incoming student-athletes. Scheme participants falsely indicated dozens of applicants were incoming student-athletes in order to trigger the less rigorous standards and secure admission to elite universities. The criminal proceedings resulting from the scandal have yielded relatively light sentences for involved coaches, and civil suits against universities have been unsuccessful. California attempted to address the scandal legislatively, but, as this article explains, its reform package contains holes that fail to address many of the scheme’s key components. The article concludes that the NCAA, as opposed to lawmakers, the legal system, or individual universities, is in the best position to prevent, or mitigate the likelihood of, a future university admissions scheme like Operation Varsity Blues. Doing so would require only eliminating a single NCAA rule that is inconsistent with myriad other NCAA rules and principles and has resulted in decades of poor academic results.

An Examination and Analysis of Division I Football Game Contracts: Legal Implications of Game Cancellations Due to Hurricanes

In recent years, extreme weather events, namely hurricanes, have compromised the college football schedule in the United States. Incidents of extreme weather have caused the cancellation, postponement, relocation, or otherwise alteration of dozens of Division I college football games in recent years. Focusing primarily on hurricanes, this study will present several concerns related to these storms and extreme weather in the US, and contractual law principles of common law defenses and force majeure clauses as they relate to college football game contracts. The purpose of the present study is to begin to better understand the football game contract inconsistencies that can lead to legal disputes faced by college football programs that deal with these storms, and gain a better insight of the contractual considerations made in light of these storms that are becoming increasinglyfrequent and severe. To do so, college football game contracts were obtained through Freedom of Information Act (FOIA) requests to select NCAA Division I colleges, internet-based searches, and media exchanges. Analysis of force majeure contract language revealed inconsistent definitions of force majeure events, a limited number of contracts containing specific weather-related force majeure language, and a range of force majeure events leading to the absence of a clear and consistent understanding of how extreme weather-related cancellations would impact the contractual relationships. Recommendations, asa result of the document analysis, are then made for provisionary revision and reconstruction to meet current realistic needs for individual schools. Societal consciousness regarding climate change is adjusting, therefore sport and legal practitioners can reflect this modernization by scrutinizing potential prudent risks.