“In a nine-page ‘fact sheet’, OCR clarified that, under Title IX, NIL money paid to college athletes should be held to the same gender-equity standards as athletic scholarships.”
Why this is important: On January 16, in a final effort to address Title IX before the Biden administration ended, the U.S. Department of Education (ED) issued a Fact Sheet explaining that compensation issued by schools for use of student-athletes’ name, image, and likeness (NIL) will be treated as athletic “financial assistance” under Title IX; and as such, that a school must treat NIL compensation for students like other athletic financial assistance, such as athletic scholarships and grants, and make it available to male and female student-athletes in a manner that is substantially proportionate to the number of students of each sex participating in interscholastic or intercollegiate athletics at that school. In addition, the guidance indicated that in assessing Title IX compliance, ED would also consider whether schools are providing equivalent athletic opportunities in the areas of publicity, support services, and other benefits as well.
As this article highlights, the timing of the guidance and its impact on the pending House v. NCAA settlement was no coincidence. Coming just two weeks before the deadline for settlement objections in that case, which stands to allocate billions in future revenue sharing for college athletes in a manner that is more favorable to male basketball and football players than other athletes, the guidance teed up another wrinkle to that plan. As numerous athletes, parents, and other stakeholders filed objections this week before the January 31 deadline per Front Office Sports, it is no surprise that gender inequality in the revenue sharing framework has been challenged. On April 7, Judge Claudia Wilken of the Northern District of California will consider these objections and others, including challenges to roster limits and potential antitrust violations, and determine whether to finally approve the House v. NCAA settlement.
While the Trump administration has yet to opine on this guidance, the Fact Sheet is not law or regulation and could be revoked or not enforced by ED moving forward. Given that Title IX has been one of the most politically charged laws in higher education for more than a decade; the Trump administration previously overhauled Title IX under the 2020 regulations; President Trump and his Education Secretary nominee Linda McMahon very likely view NIL revenue sharing as a beneficial business opportunity for schools and athletes; and the Trump administration previously rescinded Title IX guidance issued by ED under the Obama administration, President Trump may direct ED to revoke this guidance as well, replace it with new guidance, or advocate for the passage of federal legislation that exempts NIL payments from Title IX coverage altogether.
For schools that move forward with the issuance of NIL payments without following the “substantially proportionate” framework, a withdrawal of this guidance will not stop the inevitability of litigation by student-athletes who contend such actions violate Title IX. Absent a change in the law that clearly directs otherwise, the impact of Title IX on NIL payments will likely become the subject of protracted Title IX litigation, which could nevertheless treat NIL payments as financial assistance under Title IX. Schools navigating these issues should work closely with their legal counsel to assess the risks and determine how evolving guidance in this space affects their revenue sharing plans. --- Erin Jones Adams
