Increasingly, college sports are becoming more and more like pro sports. Football and basketball players are being paid millions of dollars for their name, likeness and image (NIL).
Cooper Flagg Duke Basketball Forward $4.8 million.
Carson Beck Miami Football Quarterback $4.3 million.
But NIL is colliding with Title IX, the federal law requiring male and female athletes to be treated equally.
And Arthur Bryant, one of the leading Title IX attorneys in the country, is ready to litigate on behalf of female athletes.
Bryant has successfully represented more men and women in Title IX lawsuits charging their schools with discriminating against them on the basis of sex than anyone in the country.
After spending more than thirty years at the public interest firm Public Justice and a few years with other private firms, he has now opened his own law firm in Oakland, California.
“Congress said, in effect, if we are going to give money to schools, we’re going to provide that they can’t discriminate on the basis of sex (Title IX) or on the basis of race (Title VI),” Bryant told Corporate Crime Reporter in an interview last week. “Title IX has had a massive impact. The law is 53 years old. When it was first passed, there were entire schools, law schools, business schools, professional schools, and medical schools closed to women entirely. There were nursing schools closed to men. There were entire jobs and programs off limits to women, entire teaching positions in schools, off limits to women. All that has changed, but the reason athletics has been the place where it’s gotten the most recognition is because athletics is the one area of education where there are separate programs legitimately for men and women, and there the law is that men and women have to be treated equally.”
“You cannot discriminate against women to make money. You cannot discriminate against women to avoid losing money. You can’t discriminate against women because some people would rather give money to men than women, or would rather pay money to see men compete than women.”
“You can’t justify discrimination because it makes money. That’s not allowed under the law. And so, yes, if a school wants to stop taking federal funds and set up its own professional football league, it can do so.”
“But, if schools are taking federal funds and they have separate programs for men and women, they have to treat the men and women in those programs equally.”
“A school can’t say – we’re going to treat the football players or the football players and the men’s basketball players way better than everybody else and claim that it’s not discriminating. It’s blatantly and openly discriminating, and that’s what, sadly, way too many schools in this country are doing.”
Schools are paying millions of dollars to student-athletes to play football and basketball.
How is that money affecting Title IX litigation?
“Well, it’s actually the opposite,” Bryant said. “The Title IX litigation is going to massively impact that. In theory, there is a difference between name, image and likeness payments and Title IX. I co-authored an article in 2021 for Sportico titled – College Sports NIL Is Headed for a Collision With Title IX.”
“Let’s say Pizza Hut promises 500 dollars a month to every football player at a school and nothing to any of the women athletes. Pizza Hut, if it’s acting on its own, is not violating Title IX because it’s not an educational institution receiving federal funds.”
“On the other hand, if Pizza Hut is doing it in concert with the university, and it’s the official pizza provider of the school, and it has the school’s logo on the Pizza Hut boxes, or it’s helping to recruit the star football players at the school, then the school is involved, and Title IX absolutely applies. That’s what we wrote about in the article.”
“And I just said it’s only a question of time, because what these schools were doing is pretending they weren’t involved. They had something they would call a collective that was all their boosters, providing all the money to the athletes, and the school often knew exactly what was going on and was intimately involved.”
“I said – when that happens, the school is going to get held liable because it has to provide equal treatment and equal athletic financial aid to men and women, and it’s not doing that.”
Let’s say a basketball player at a major university is being paid $10 million a year by these collectives. Are you saying that a woman basketball player has to be paid that much?
“The law is very clearly established for booster clubs. That’s because booster clubs give the money to the school and the school gives it out. There is a good case law that says if the money is given to school, the school has to use it equally, proportionally.”
It doesn’t matter, for example, that the men’s football and basketball programs bring in, say, 1000 times more than the women’s programs?
“You cannot justify discrimination on the basis that you’re making money doing it.”
“Here’s some background. Name image and likeness (NIL) payments were illegal. They couldn’t take place. That’s what the House v. NCAA litigation is about. The NCAA rules prohibited name, image and likeness payments.”
“What was going on for a few years was that these supposed third-party collectives were making the payments. The schools were pretending they had no involvement, and, basically, it was the wild wild west. Everybody was doing what they wanted. That’s why we sued the University of Oregon, and that was the first Title IX case to take on the NIL payments as part of the discrimination against women.”
“Unlike in my Pizza Hut example, the University of Oregon appeared to be working hand in hand with its collective, called Division Street, and with Opendorse, its NIL marketplace. And the men were getting way more money than the women. We are arguing that violates Title IX and the school has to pay the women.”
“Now that’s still being litigated. But the key part here is that, since that happened, the House v. NCAA litigation has come along and, in that litigation, there is a proposed settlement that would, among other things, get rid of the NCAA rules prohibiting NIL payments by schools and authorize schools that want to do so to distribute $22.5 million dollars a year in NIL payments to its men and women athletes.”
“The law is very clear under Title IX that if the school itself, an educational institution receiving federal funds, is giving money to its athletes in separate programs for men and women, that money has got to be distributed proportionally based on the number of athletes in the program. So some schools – I’ve been told Ohio State is one of them – have announced that they’re going to participate in this program and they’re going to split the $22.5 million proportionally between their men and women athletes.”
“But other schools have announced they’re not going to do that. They’re going to give 90% of it to the football and men’s basketball players. And if they do that, they’re going to be opening themselves up massively for Title IX litigation. Title IX is clear, they have to treat the men and women equally.”
The major university athletic programs are becoming semi-pro leagues. It has nothing to do with education anymore. Some of these student-athletes are choosing to stay in college because they can make more in college than they could in the pros.
“It is true that, to the extent that the schools want to act like they are pro football teams and not educational institutions, Title IX gets in the way of that,” Bryant said.
How will they get around Title IX?
“Right now, they are getting around it because there is not sufficient enforcement of Title IX. But there will be. It is blatantly illegal and a violation of Title IX.”
“To be clear, most schools are not making money on athletics. In fact, there are only about 25 schools in the country where the athletic programs make money. All the other schools are losing money on athletics. And a huge percentage of both are violating Title IX.”
Where is all of the money going?
“Ridiculous football coaches’ salaries, absurd perks for some athletes – things that have nothing to do with education.”
“If the schools want to create pro teams, go into the private marketplace and don’t take federal funds. You can then say – we’re running a men’s professional football league and we’re no longer an educational institution.
But, otherwise, you have to comply with Title IX.”
Are they going to be able to get around it by going through these collectives and having enough separation between the school and these private boosters?
“No, quite the opposite. Everything is moving toward pushing all the responsibility into the schools. That’s part of what the House v. NCAA settlement does. These collectives were a fig leaf. Everybody knew the schools were really involved. They were just pretending they weren’t to try to avoid accountability under Title IX. It was a joke.”
Is there a role model school when it comes to Title IX?
“I can’t name one off the top of my head.”
“What we’re talking about here fundamentally is right and wrong; it’s fairness. There is no basis in our law or Constitution to treat our sons better than our daughters, to treat men better than women, or to say the reason is because we’re going to make more money doing that.”
Given all the schools that have come into compliance because of your litigation, it seems remarkable that no school comes to mind as a poster child for supporting women and men equally.
“When we approached the University of Oregon, that was my pitch to them. I said – you have so much money, it’s ridiculous. You could become the poster child, the shining example of treating women and men equally in college sports. It wouldn’t be that hard. You just have to want to do it.”
“Instead, they have become the poster child for discrimination against women athletics. They are cheating their women athletes out of close to a million dollars a year in terms of equal athletic financial aid.”
“They created a women’s beach volleyball team that was the only team in the entire school – and the PAC 12 and the Football Conferences – that didn’t get a single dollar of athletic financial aid. They gave them no facility. They had to practice and compete at a state park where they had to use as their bathroom the cinder block public bathroom with no doors on the stalls because of public drug and alcohol abuse – and they thought that was somehow acceptable?”
Isn’t it a little obscene that we spend so much money on college athletics while cutting back on academic programs?
“All of this reflects the misplaced priorities of college administrators. What’s been so striking is how many colleges and universities have basically put millions and millions and millions of dollars into football and some into basketball, while degrading all of the rest of the men’s sports, including the Olympic sports, and all of women’s sports, except in maybe women’s basketball. It shows such misplaced values.”
“Title IX is one of the most powerful legal weapons for stopping it and holding them accountable. But obviously, it can’t solve the problem all on its own. All it can do is make sure the women get equal opportunities and athletic financial aid and treatment.”
[For the complete q/a format Interview with Arthur Bryant, see 39 Corporate Crime Reporter 22(11), June 2, 2025, print edition only.]