Prominent Title IX lawyer: Utah collective's NIL truck deal 'huge' concern for university

On3 imageby:Eric Prisbell11/15/23

EricPrisbell

Andy Staples on the Congressional Hearing Regarding NCAA and NIL

Editor’s Note: For more information on subsequent NIL activity by the Utah-focused Crimson Collective, here is On3’s story about the collective’s Dec. 13 unveiling of vehicle leases offered to approximately 35 eligible women gymnasts and men’s and women’s basketball players. The value of the deal is believed to be about $2 million.

One of the most lucrative team deals in the 28-month-old NIL Era – in which a Utah-focused collective provided all 85 scholarship football players new Dodge trucks – has now captured the attention of the nation’s most prominent Title IX lawyer.

Bay Area-based Arthur Bryant of Bailey & Glasser, LLP, who has represented more women athletes in Title IX litigation against schools and universities than any lawyer nationwide, said he is “outraged” over what he calls a “blatant, in-your-face” case of “extraordinary sex discrimination.” 

In its headline-grabbing truck unveiling last month, the Utah-focused collective, the Crimson Collective, announced it is leasing the football players – and no female athletes – 2024 Dodge Ram 1500 Big Horn trucks for free.

Legal experts call the Utah football players’ truck deal a high-profile example of the complex Title IX question that the broader college athletics industry is wrestling with more than two years into NIL.

It is a new age in which donor-driven collectives generally provide an overwhelming majority of their dollars to male athletes. Title IX, the 51-year-old federal law that protects students from sex-based discrimination at any school that receives federal funding, stipulates schools must provide male student-athletes and female student-athletes with equal treatment and benefits.

The Crimson Collective is paying for the six-month lease for each truck [plus insurance] – each vehicle retails at $61,000. The total cost of the NIL deal is believed to eclipse $6 million. Leases roll over if a player returns next season. If a player transfers or loses or exhausts eligibility, the athlete returns the truck.

“It should be a huge Title IX concern for the university,” Bryant told On3. “It appears to be a flagrant, stunningly obvious violation of Title IX that could cost the school millions of dollars.”

Are NIL collectives an extension of university?

Seattle-based attorney Julie Sommer, executive director of The Drake Group Education Fund, called the truck deal another sign of a larger issue – the lack of equitable promotion and support for women athletes compared to men. 

“With Utah’s truck deal being closely associated and coordinated by their collective, it’s also another example of collectives, as an extension of the university, also subject to gender equity requirements,” Sommer told On3. “They’re looking to invest almost everything in football and men’s basketball and those teams’ branding – and do it through their collectives. It’s a statement on what an institution values and supports.”

Sommer added that it “may seem perfectly legal to some in the new blurred lines and lack of enforcement of rules NIL world, but with this type of benefit being closely affiliated and coordinated through the institution and its collective, it’s a Title IX problem if they’re not offering something similar for the women.”

Utah officials declined to answer a handful of specific questions from On3 related to the unveiling event for the trucks, the Crimson Collective’s relationship with the athletic department, and what similar NIL deals have been provided to the university’s female athletes. Attempts to reach the Crimson Collective were unsuccessful. 

A source familiar with the university’s NIL policy told On3 in multiple conversations that the Crimson Collective’s in-stadium truck unveiling was entirely their event, just as it would be for any collective announcement nationwide, and that the collective is its own entity that operates in its own space. The university may help with the coordination of the event, the source added, once facility rental agreements and plans have been solidified.

Where’s ‘anything of similar value’ for female athletes?

In terms of how schools can be held accountable, Bryant said, in theory, the federal government could do so but, with limited resources and attention on other matters, it has never sued a school for violating Title IX’s gender equity in athletics requirements. The best avenue for recourse, he said, is women being willing to sue, adding that “almost every female student-athlete at Utah appears to have an extremely strong Title IX claim.”

Penalties for institutions in violation of Title IX could include substantial damages and attorney fees in cases brought to court. The ultimate penalty is the withdrawal of federal funds, a penalty that has never been initiated.

As Sommer noted, a key question is, “What have Utah and its collective similarly done for its women athletes?”

A Utah-centric collective called Who Rocks the House Collective was believed to be the nation’s only gymnastics-specific collective when it was launched in December 2022. It’s unclear how many dollars have been provided to female athletes. The collective did not respond to an email from On3.

The NIL activity of the gymnastics-focused collective “could be an adequate defense if the school is involved with both collectives’ activity and is providing its female and male student-athletes with equal treatment and benefits overall,” Bryant said. “Otherwise, where are the trucks or cars – or anything of similar value – for the women athletes?”

A third Utah-focused collective is the Runnin’ Hoops Collective, which The Salt Lake Tribune reported is specific to the men’s basketball team. The collective’s website states while it directly supports a team affiliated with the university “we do not have any ties to the University of Utah other than as fans!”

Whether schools are responsible for the NIL activity of affiliated, yet technically third-party collectives, is an issue that is stirring increasing debate and scrutiny across the industry. 

The NCAA’s evolving guidance states schools must maintain some distance from collectives. But many schools are ignoring that guidance. Several industry sources linked to schools or collectives tell On3 that more than half of Power 5 collectives are working closely with school fundraising arms. 

95% of collective dollars go to male athletes

The Drake Group, a non-profit advocacy organization, believes Title IX applies to the activity of collectives because schools and most collectives are “entangled, entrenched and integrated with the schools,” according to a 10-page memo the group sent in August to the Office for Civil Rights. The group claims that schools are evading Title IX responsibilities as their affiliated collectives distribute an overwhelming majority of dollars to male athletes. 

Jason Belzer, CEO of Student Athlete NIL, which manages some 30 collectives, said in June that 95% of collective dollars are distributed to male athletes.

“Some schools are hesitant to get too involved with collectives right now because of the uncertainty surrounding how Title IX applies to that relationship,” Mit Winter, a college sports attorney at Kansas City-based Kennyhertz Perry, recently told On3.

If a school is not at all involved in its affiliated collective’s activity, and third parties are treating male athletes far better than female athletes – providing substantially more dollars – there is no Title IX violation because the law applies only to education institutions receiving federal funds. However, if the school is involved, then it raises questions regarding a Title IX violation.

Sarah Wake, who advises universities on athletic compliance issues in her role as an attorney at McGuireWoods, said in the spring that the more entrenched a school becomes with a collective, the more problematic it is. 

Her advice to colleges: “Stay out of it. Don’t touch it with a 10-foot pole.”

It is difficult to ascertain how closely schools are working with collectives – much less how to define what qualifies as a so-called “close relationship” – and it’s not advantageous for schools to publicly divulge if they are indeed tethered to the collective.

Utah’s female athletes ‘need to hold school accountable’

All of this leads to some key questions: What is the Utah football team’s and athletic department’s relationship with the Crimson Collective? And how closely, if at all, did they work with the collective on the truck NIL deal?

The Crimson Collective is a non-profit, 501(c)3 organization whose website says it is dedicated to supporting local charities in the Salt Lake City valley. Its board includes Utah luminaries and alums like Colorado Rockies owner Charlie Monfort and former NFL players Alex Smith and Eric Weddle

Utah’s multimedia rights partner, Learfield, works with more than 50 collectives nationwide across more than 45 universities. A collective may secure a business arrangement with a school’s MMR partner to purchase limited IP rights. 

On Oct. 4, the day of the NIL truck deal unveiling, The Salt Lake Tribune quoted athletic director Mark Harlan saying, “We need everyone to lean into NIL … So let it not be said that it’s not a huge priority of this athletic department.”

And university president Taylor Randall said, “The University of Utah is not going to get left behind.”

The football players arrived at Rice-Eccles Stadium, where the announcement about the vehicles was made in dramatic fashion and ecstatic players were shown some of the trucks on the field. An 85-second social media video of the in-stadium truck unveil shows that some of the trucks were given to the players on the field and in the presence of Coach Kyle Whittingham

The video concludes with a visible logo of the school. The trucks were covered in a Utah-themed wrap consisting of school colors. The school’s official Utah football X account – formerly known as Twitter – celebrated the unveiling in multiple posts.

“Those facts alone undercut any notion that the university was not involved in the truck deal – and that there was a clear separation between the collective and the university regarding this deal,” Bryant said. “Female student-athletes at Utah need to hold the school accountable – no one else will do it. The history of Title IX has shown that women don’t get equality unless they are willing to fight for it.” 

As Sommer concluded: “Wouldn’t it be great if we heard of a collective – not just celebrating Title IX – but doing an initiative to say, ‘We value our women athletes as much as our male athletes. So we plan to come fully in compliance with the law in scholarship monies, participation numbers, and treatment and benefits.’ 

“And if that means the Utah women athletes are also driving around campus in Dodge Ram 1500 Big Horn trucks – 85 of them, then that’s their choice.”