Works in Progress Group 17: Education and Higher Education

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Session Type: Works-in-Progress

Session Capacity: N/A

Hotel: N/A

Room: Union Square 14

Floor: 4th Floor

Group #17: Education and Higher Education

Student-Athlete NIL Commercialization: An Economic Empowerment Model
Casey Faucon, University of Alabama School of Law

This Article proposes a student-athlete name, image, and likeness (“NIL”) regulatory and programmatic model that introduces the use of an NIL “cap,” akin to a salary cap used in professional sports. In determining the goals of any NIL regulation, which differ among interested stakeholders, this Article argues that any NIL commercialization scheme should proactively promote four strategic outcomes: (1) maximizing student-athlete NIL opportunities; (2) harnessing the emergent NIL market to promote economic empowerment and community development; (3) benefitting student-athletes in the women’s athletics department and non-revenue generating athletics programs; and (4) protecting against coercion. To achieve these goals, any regulation or approach should, instead, focus on regulating a university’s use of a student-athlete’s NIL and limit both the number and value of such deals, in certain types of endorsements. This Article then details an NIL program model in which student-athletes can benefit from both university co-licensed endorsements and non-university affiliated endorsements. This proposal more particularly details how to address NIL revenue distributions, conflicts, and “morality” restrictions. By creating an NIL commercialization scheme that prioritizes these four values and adopts the revenue caps, this model has the potential to: (1) spur regional economic development, especially in rural or college towns; (2) create more economic stability for student-athletes and their families, including more post-graduation professional preparation and increased graduation rates; (3) increase funding options for athletic programs, women’s college sports, and non-revenue generating sports; and (4) increase the competitive pool of players within college sports.

Elusive Equal Protection & the Ratification of School Sexual Harassment
Emily Suski, University of South Carolina School of Law

In theory, students who suffer sexual harassment in school have multiple civil rights claims available. The Supreme Court has recognized that sexual harassment is sex discrimination that violates both the Equal Protection Clause of the Fourteenth Amendment and Title IX. It has also said that the Fourteenth Amendment’s protections against sexual harassment are in some ways broader than those available under Title IX. Yet, courts treat students’ Equal Protection claims almost identically, or identically, to their Title IX claims. Because students’ Title IX claims are replete with judicially-created barriers and rarely succeed, when courts evaluate students’ equal protection claims under Title IX frameworks, they import those barriers and condemn the claims. This article argues that ratification, an under-explored theory of equal protection liability, can circumvent these obstacles. Although a few federal courts have identified that schools violate students’ equal protection rights when they ratify student sexual harassment, they have done little to explain this theory of liability. This article contends that ratification offers an avenue for invigorating students’ right to be free from sexual harassment in school. It develops ratification of sexual harassment as a violation of students’ equal protection rights and offers a framework for its evaluation.