For schools that plan to pay their football players the majority of revenue-sharing payments come next year, it may be back to the drawing board.
On Thursday, the Department of Education’s Office of Civil Rights (OCR) released a nine-page fact sheet saying that Title IX, the gender equity statute that governs equity in college sports, does apply to NIL (name, image, and likeness). Most notably, the memo says that revenue-sharing payments would be classified as “athletic financial assistance,” and must therefore follow those same rules: Schools would have to provide payments that are “proportionate” between men’s and women’s sports athletes.
It’s major news for athletic departments nationwide, which have been preparing for the House v. NCAA settlement that would allow D-I schools to share revenue with players. The settlement could be finalized in April and allow revenue-sharing starting in July. In the first year, the money will be capped at around $20 million per school. The biggest question, however, was how it would be distributed among the athletes, as the entire athletic department must be included in the payments.
For months, big time football coaches have trumpeted their revenue-sharing plans, saying they expect their players to receive the lion’s share of revenue distributions, and athletic departments have released distribution models where football players get the vast majority of the $20 million.
But now, it appears that athletic departments could be in violation of federal law if their revenues are not distributed equitably among all athletes, regardless of the sport they play.
“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 says. However, the memo did not elaborate specifically on how it would define proportionate.
There was a sense that the OCR wanted to wait until the settlement had received final approval in April to release this guidance, a source familiar with the matter tells Front Office Sports. But because so many schools had publicized their plans to prioritize paying football and men’s basketball players over women athletes, the OCR was compelled to release it sooner—so that schools had time to recalibrate before the revenue-sharing era begins in July.
The OCR could also be forced to change its tune under the incoming Trump administration. The fact sheet is not law, but rather an interpretation of the Title IX statute based on the Education Department’s current leader, Miguel Cardona, who was appointed by President Biden. The department is expected to change its political bent under President-Elect Trump, who is expected to strip Title IX enforcement mechanisms. It could become irrelevant in just five days if Linda McMahon, Trump’s choice for Secretary of Education, doesn’t agree with it. But until the next administration offers new guidance, schools must heed the fact sheet’s warnings.
The memo also noted that, as expected, schools must offer all athletes the same amount of resources for NIL deals, which includes publicity and support services given to players to find deals. The fact sheet didn’t make a specific judgement on whether Title IX applies to deals offered by NIL collectives, but it did say: “the fact that funds are provided by a private source does not relieve a school of its responsibility.”
“Schools remain responsible for ensuring that they are offering equal athletic opportunities in their athletic programs, including in the NIL context,” the fact-sheet reads.
