Takeaways
- In a move that was expected, the Trump Administration’s new Department of Education (Department) rescinded the Biden Administration’s January 16, 2025, name, image, and likeness (NIL) guidance applying Title IX to NIL payments between schools and athletes.
- Acting Assistant Secretary for Civil Rights Craig Trainor described the Biden Administration’s guidance as “overly burdensome” and “profoundly unfair,” suggesting that the Biden Department of Education lacked “clear legal authority” to support Title IX’s applicability to NIL payments between schools and athletes. The rescission did not offer alternative guidance, suggesting that the Department believes that Title IX does not apply to NIL payments between schools and athletes, which presumably extends to third-party NIL payments as well. While this may be the Department’s position at this time, many judges, commentators – and importantly, any litigants bringing Title IX claims – will likely have a different view more aligned with the now-rescinded guidance (applying Title IX to institutional NIL arrangements) or even further (applying Title IX to third-party NIL arrangements like Schroeder). We caution departments from viewing the current administration’s position on Title IX as the basis for any compliance planning.
- Schroeder v. University of Oregon’s NIL-related Title IX claims are still in a federal district court in Oregon. Further, as women’s college sports grow in popularity and concerns mount regarding potential revenue sharing and larger NIL deals and female athletes not getting the same access to publicity as male athletes, private litigation – and potentially state attorney general action in this space – will likely play a more prominent role in developing the future of Title IX. Thus, a risk-based Title IX compliance program should consider Schroeder and the now-rescinded Biden Administration Title IX guidance as the “playbook” for Title IX compliance as those interpretations of Title IX more closely align to the sources of risk in departments’ NIL programs and potentially any House-related revenue sharing.
As expected, the Trump Administration’s U.S. Department of Education Office for Civil Rights announced on February 12, 2025, that it rescinded the Biden Administration’s January 16, 2025, guidance, “Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of NIL Activities.”
In its rescission, the Department did not issue full interpretative guidance similar to the memorandum issued by the Biden Department of Education. Instead, the rescission only noted that the previous guidance was “overly burdensome, profoundly unfair, [went] well beyond what agency guidance is intended to achieve,” and lacked the legal authority to conclude that Title IX applied to institutional NIL arrangements.
So, What Now?
As we noted in our client alert published on February 10, private Title IX litigation and the ongoing Schroeder case will shape the future of Title IX compliance for the foreseeable future, as this rescission was expected. So, in developing a risk-based Title IX compliance program, the Biden Administration’s now-rescinded guidance and the Schroeder complaint offer instructive guidance for athletic departments seeking to develop a Title IX-compliant NIL program that reflects the most likely bases for future Title IX complaints from female athletes around NIL (institutional or third-party) or any potential House-related revenue sharing.
In Schroeder, the University of Oregon’s women’s beach volleyball and rowing athletes allege, inter alia, that:
- Title IX applies to third-party NIL arrangements and partnerships with collectives and other third-party vendors often used to support third-party NIL arrangements 1; and,
- the University of Oregon’s athletics department generally provides its male student-athletes with “much greater NIL-related training, opportunities, and income than its female student-athletes” with a particular focus on the disparities between Oregon’s football players and their female athletes.
In what appears to be a matter of first impression, if the District Court in Oregon finds Title IX’s applicability to universities, third-party NIL arrangements, collectives, and any other third-party vendors involved in NIL administration, it is reasonable to assume that direct NIL payments between athletic departments and student-athletes would be implicated as well.
The Biden Administration’s now-rescinded guidance – issued over a year after the Schroeder complaint was filed in December 2023 – sought to update Title IX’s guidance as it related to institutional NIL arrangements, which included the role that third-party-administered NIL arrangements play with respect to Title IX compliance planning. In warning institutions that the “benefits, opportunities, and treatment provided by a school to assist its student-athletes in obtaining and managing NIL agreements” would be considered “athletic financial assistance,” the Biden Department of Education took a position consistent with what the litigants are taking in Schroeder in clarifying Title IX’s applicability to NIL.
Future female athlete plaintiffs will likely consider both the rescinded guidance and Schroeder in developing future Title IX complaints and claims against athletic departments – particularly as women’s collegiate athletics grow in popularity, student-athletes grow increasingly litigious, and concerns mount that an era of revenue sharing and growing NIL deals will not generate comparable opportunities for male and female athletes.
Developing a Compliant Title IX Program Amidst Uncertainty
The best compliance programs are risk-based, and the nature of the risks in this space have been spelled out to a large degree by Schroeder and the now-rescinded Biden Administration Department of Education’s guidance applying Title IX to institutional NIL arrangements. Shifting priorities from the Trump Administration Department of Education’s Office for Civil Rights notwithstanding, private litigation risk, and potentially, enforcement risks from state attorneys general in states where attorneys general would be inclined to align with female athletes, should motivate efforts for departments to review and update their Title IX compliance programs, particularly if they have NIL programs and/or are considering opting into any revenue sharing should the House settlement be approved.
Ice Miller’s Collegiate Athletics Practice includes attorneys from our Title IX, Workplace Solutions, Business, and Government Affairs & Regulatory Law practices who are closely monitoring each of the issues referenced above. Please feel free to contact Jarrod Loadholt, Gai Sher, Tiffany Releford, or Germaine Willett should you have any questions about this client alert, or any collegiate athletics matters where we could potentially be helpful.
[1] See, Schroeder v. University of Oregon, 6:23-cv-1806, Complaint at 55 (“To the extent that schools are involved in helping student-athletes develop, identify, arrange, or receive NIL-related training, opportunities, or income, Title IX’s equal treatment and benefits requirements apply to those activities, opportunities, and income, too.”).
