NCAA Women Athletes and NIL Pay Disparities: Are They Students Under Title IX, Employees Under Title VII, or Both?

Title IX requires schools to eliminate gender disparities in financial benefits and publicity for athletes. This Article shows that men’s basketball players in major National Collegiate Athletic Association (NCAA) conferences were paid an average of $171,272 in 2024, compared to $16,222 for women. Analysis of a prominent basketball program shows that it coordinates with its Name, Image, and Likeness (NIL) collective to monetize NIL donor access in favor of men. This Article provides legal arguments to show that NIL pay disparities create Title IX liability for NCAA schools: (1) Congress intended Title IX to end sex discrimination against students, (2) the plain text of Title IX applies to NIL pay because the law prohibits schools from discriminating in “any activity,” including a “benefit,” (3) Title IX athletic regulations prohibit schools from discriminating in “publicity,” a term that applies to NIL deals, and (4) women athletes win cases when they present evidence of gender disparities. Title VII, an employment discrimination law, offers another legal path to equality for women athletes. In Johnson v. NCAA, the Third Circuit ruled that college athletes may be considered employees under the Fair Labor Standards Act. A concurring opinion acknowledged that schools could face Title VII liability. Applying Johnson’s factors, women athletes are employees because they (1) perform services for their school, (2) necessarily and primarily for their school’s benefit, (3) under their school’s control and right of control, (4) in return for implied compensation related to the school’s NIL collective. Schools may also be liable as employment agencies for NIL pay disparities under Title VII when they coordinate with their NIL collectives. No employment relationship is necessary because Title VII’s text refers to any “person aggrieved” by a discriminatory practice—including potential job applicants who are denied access to a labor market. This Article concludes that women athletes can successfully pursue damages and remedial orders as students under Title IX, and as employees—or persons aggrieved—under Title VII.