Dept. of Education says Title IX applies to payments to athletes todayheadline

The plans that many major college athletic departments are making for how they will distribute new direct payments to their athletes would violate Title IX law, according to a memo published by the U.S. Department of Education on Thursday.

The memo provides some long-awaited guidance about how gender equity laws will apply to a new era of college sports that is on track to begin this summer. It’s not clear if the Department of Education will interpret Title IX law the same way when incoming President Donald Trump’s administration installs new officials in the near future.

The NCAA and its power conferences have agreed to allow each school to share up to $20.5 million in direct payments to its athletes via name, image and likeness deals as one of the terms of a pending antitrust settlement. Many schools from those power conferences have developed plans to distribute the majority of that money to athletes in sports that generate the most revenue — mostly football and men’s basketball players.

In some cases, athletic directors have publicly shared that they intend to provide upward of 75% of that money to their football players.

However, the Office for Civil Rights — the division of the Department of Education that enforces Title IX law — said in its memo Thursday that those future payments should be considered “athletic financial assistance” and therefore must be shared proportionally between men and women athletes.

“When a school provides athletic financial assistance in forms other than scholarships or grants, including compensation for the use of a student-athlete’s NIL, such assistance also must be made proportionately available to male and female athletes,” the memo said.

Title IX is a federal law that prohibits sex-based discrimination in education programs. The law requires that schools provide opportunities to play a varsity sport that are proportional to the student body’s overall gender makeup. It also requires schools to provide financial assistance that is in proportion to the number of students of each sex who play sports on campus. If 50% of a school’s athletes are women, then 50% of the school’s financial aid for athletes must be allotted to women.

The memo is not as clear in providing guidance on how payments from booster collectives closely associated with their schools are impacted by Title IX law. It states that the department does not consider money provided by a third party in an NIL deal as athletic financial assistance like the future revenue sharing payments or scholarship dollars. But if money from private sources ends up creating a disparity in an athletic program, it is possible that NIL agreements could “trigger a school’s Title IX obligations.”

Male and female athletes also deserve equivalent publicity, including in sports information personnel, the amount and quality of promotion, and even in social media postings. If a school fails to provide equitable publicity, those students risk losing out on NIL opportunities, the memo states. ESPN reported a little over a year ago that 55 athletic departments — or 84% of the then-Power 5 — mentioned men’s teams more often than women’s teams on their main accounts on what was then Twitter, and women’s teams were more likely to have to share social media managers with other teams.

While the Department of Education has the authority to punish schools for failing to meet Title IX requirements, historically all cases regarding how the law applies to college sports have come from athletes who sue their school and allege unequal treatment. There are multiple pending Title IX lawsuits related to NIL compensation from third parties. The memo published during the final two days of this department’s time in power could provide some fodder for future potential lawsuits if any athletes sue their school over the way future direct payments are made to athletes.

“I’d be astonished if schools that have announced they are planning something other than proportional distribution continue with those plans,” said attorney Arthur Bryant, who is the midst of a Title IX lawsuit against the University of Oregon. “They would be knowingly and intentionally planning to violate the law.”

Bryant said he thinks the clarifying language laid out by the department also has the potential to derail the pending antitrust settlement. A hearing to finalize that settlement is scheduled for April.