Unequal Promotion and its Effect on Title IX

A recent ESPN analysis found that a majority of Power 5 athletic departments tweet more about men’s sports teams than women’s sports teams.[2] In February 2023, ESPN analyzed over 3 million tweets from both athletic departments and individual team accounts of the 65 Power 5 schools. The analysis showed that 84% of the Power 5 mentioned men’s teams more than women’s teams. The findings of this analysis reveal an imbalance in the promotion of men’s and women’s sports teams.

Why does this matter? Under Title IX, institutions must equally publicize men’s and women’s sports teams.[3]The Department of Education’s Office for Civil Rights (OCR) is responsible for enforcing Title IX. When assessing equality of promotion, the OCR looks at: (1) the availability and quality of sports information personnel; (2) access to other publicity resources for men’s and women’s programs; and (3) quantity and quality of publications and other promotional devices featuring men’s and women’s programs. In the past, the OCR has recognized that inequalities in publicity may be legitimate and nondiscriminatory; however, universities have an obligation under Title IX to market and promote interest in all of their teams equivalently.

Title IX consultant W. Scott Lewis stated that inequality in social media posting alone can lead to a Title IX lawsuit. As long as a student is able to show that the school is not complying with equal promotion and it has a detrimental effect on the women athletes’ ability to access the education and to have an equitable experience in the program, the school will be liable.

Inequality in promotion has become extremely relevant with the advent of name, image, and likeness (NIL). Through NIL deals, athletes are able to profit from sponsorships and endorsements. NIL deals often require athletes to promote products and services on social media. If athletes can show how much money they lost on NIL deals due to unequal promotion, schools may be liable for greater damages in a Title IX lawsuit.

The amount of followers an athlete has along with the amount of engagements an athlete receives are huge factors in securing a good paying deal. The unequal promotion of men’s and women’s teams may lead to less women getting NIL deals.

Although there is currently no case precedent on unequal promotion in violation of Title IX and loss of NIL deals, it appears that women may have a strong argument to support a claim that they missed out on NIL opportunities because they were not promoted as much as their male counterparts.

[1] Featured Image: https://columbiachronicle.com/college-prevails-in-title-ix-court-decision

[2] https://www.espn.com/espn/feature/story/_/id/38632774/notre-dame-power-five-schools-gender-bias-tweets-analysis?appsrc=sc&RuleNumber=14&consent_mode=ccpa

[3] 34 C.F.R. § 106.41(c)(10).

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