Name, image and likeness opportunities came about to help student-athletes financially.
But athletic departments find there’s a fine line to walk to stay on the right side of the rules.
When former West Virginia University Athletic Director Shane Lyons reflected on the reasons for his sudden departure, the main explanation was the disappointing performance of the number one revenue sport, football.
Lyons also described a second factor, disagreement about how the athletic department should interact with Country Roads Trust, the collective spearheading efforts to financially reward student athletes for their names, image and likeness.
Lyons, now at Alabama, described that as a conflict in his final meeting with West Virginia University President Gordon Gee.
“One thing that came up was about the trust. ‘Well, we’re not aggressive enough in name, image and likeness.’ I tried to explain to him, we’re as aggressive as we can be without crossing the line in order to protect ourselves in getting involved in Title IX issues,” Lyons recalled.
“The trust has come up since it started, that the athletic department needs to be more involved. We’re involved as much as we can be as a department without crossing the line of saying ‘dollar for dollar, for male and female student athletes and person to person, the number of male and female.’”
That line on how involved athletic departments should be with the collectives supporting name, image and likeness is at the center of debate all across the country.
The collectives are independent entities established under a range of structures that support name, image and likeness opportunities for athletes. Universities can’t live with ‘em and can’t live without ‘em.
Athletic departments, collectives, lawyers – all are trying to identify the line on how the missions can blend.
Among the biggest questions is one that Lyons raised.
Where’s the line between an athletic department’s responsibility under federal Title IX to avoid discrimination on the basis of sex versus the likelihood that a collective independently promoting athletes for name, image and likeness would gravitate toward the high-profile teams dominated by males?
Direct involvement with collectives represents risk to universities
This is a saga playing out at the University of Iowa, where the athletic department is navigating its way through a relationship with The Swarm Collective, an organization to support name, image and likeness.
There, Athletic Director Gary Barta has taken a position against supplying the collective with donor contact information. “Access to Hawkeye season ticket holder and contributor databases are never released directly to a third party,” Barta wrote in a letter to supporters.
That would be useful information for a collective that would want to contact donors who already have a track record of support. But that kind of direct involvement represents risk to the university.
In comments to The Athletic, the chief executive of The Swarm said he understands the conflict.
“The answer that they’ve given us is that it hasn’t really been privacy concerns, which I would have expected to be the answer,” Brad Heinrichs told The Athletic.
“It’s really been more about that there’s a line for which they feel like they can support us because of Title IX; that’s sort of the answer that I get. We don’t adhere to Title IX. We don’t need to adhere to Title IX. We’re set apart from the university.”
Lyons, in his interview on MetroNews’ “Talkline,” briefly elaborated to describe a similar situation: “From what I understand, they wanted us to be more involved in identifying potential donors for fundraising aspects.”
He continued, “If we start making the deals ourselves or identifying actual sponsors or people to give to the trust then that starts getting closer that you as an athletic department are involved, and it could run Title IX implications. If it’s all done by them then it’s not an issue.”
The level of involvement is the central question, said James Nussbaum, a former associate general counsel at Indiana University and now a lawyer at Church, Church, Hittle + Antrim in Indiana. The firm has a sports law section.
Legally, he said, colleges and universities may incur Title IX liability when they provide significant assistance to an NIL collective that does not equally support men’s and women’s sports.
“What constitutes significant assistance turns on the facts and circumstances of specific situations, and colleges and universities across the country are trying to determine where to draw the line and how much risk they are willing to take,” Nussbaum said in an emailed response to MetroNews questions.
His colleague in the sports unit at the law firm, Kelleigh Irwin Fagan, described a simple rule of thumb in a webinar on the intersection between Title IX and name, image and likeness.
“The more that a collective is acting as an ‘arm of an institution,’ the more risk there is that Title IX could apply to those collectives’ activities,” Fagan concluded.
Roughly, a difference in risk assessment is what Lyons described during his late-November interview on “Talkline.”
“I believe the trust wants us to be more involved in the fundraising. And they want us to be involved in a variety of different areas that we just can’t be. I was not going to cross the line in order to jeopardize the integrity of the department.
“I was not going to cross the line in order to jeopardize the integrity of the department. In federal funding, if you’re found to be ocr investigation then I was not willing to cross that line. I was willing to go up to the line as far as I could to promote it and be involved.
Asked for more specifics for this story, Lyons declined to elaborate. “I have closed this chapter and have moved forward,” he wrote in an emailed response.
Country Roads Trust was formed by prominent West Virginia University alumni Ken Kendrick, a businessman who is principal owner of baseball’s Arizona Diamondbacks, and Oliver Luck, business executive and former WVU athletic director. There are other investors too.
So far, the trust says, 260 WVU athletes have signed up and 155 have benefited.
The numbers of “Trust Athletes” shown on the Country Roads website are a little different, 176 total, but a count shows a sharp difference between the number of male and female athletes.
It’s almost two to one: 115 male athletes to 61 female athletes.
Asked for comment about the concerns Lyons expressed about the intersection between direct support for the collective and the implications of Title IX, Country Roads Trust opted not to elaborate.
“As for what Shane Lyons said in his interview, we defer to him for clarification,” wrote Stephen Ford, general manager and chief operating officer of Country Roads Trust in response to MetroNews questions.
West Virginia University, in a written response to questions about the university’s relationship with the collective, said it would be inappropriate to speculate on the specifics of Lyons’ concerns.
“However, we do encourage NIL opportunities for all of our student athletes as permissible by the NCAA,” the university responded in comments provided by Michael Fragale, senior associate athletics director for communications.
“Furthermore, WVU remains committed to fulfilling its Title IX obligations in all areas of the campus community, including within Athletics.”
Lyons, in his own broadcast interview, said it’s important but tricky not to cross the line.
“That’s why there’s a separation, an arm’s length, between what the department can do and what they can do,” he said. “As long as they’re doing it, we don’t have Title IX issues.”