NCAA Athlete NIL Pay Must Be Title IX Compliant, Dept. of Education Says
The Department of Education's Office for Civil Rights (OCR) has issued guidance regarding college athlete name, image and likeness, putting the onus on schools to ensure their male and female athletes receive proportionate NIL opportunities and resources—regardless of whether the funding comes from external sources.
In a nine-page "fact sheet" released Thursday, OCR clarified that, under Title IX, NIL money paid to college athletes should be held to the same gender-equity standards as athletic scholarships. Specifically, it stated that the amounts paid to athletes through NIL deals should be considered part of a school's athletic financial assistance, just as grants-in-aid and cost-of-attendance funds are.
OCR's release comes two weeks before settlement objections are due in House v. NCAA, a monumental case the parties have reached an agreement to resolve by allocating billions in future revenue sharing for college athletes, with an overwhelming portion favoring male athletes in football and men's basketball.
Although OCR had previously issued a general statement to ESPN last July, asserting that federal gender equity laws would apply to NIL payments, this is the first formal guidance on the matter.
Despite the NCAA currently forbidding schools from directly entering into NIL agreement, a number of state laws explicitly provide for those relationships. OCR now says that in such instances, NIL agreements would be considered a form of "athletic financial assistance," and would be used for calculating whether schools are providing equal athletic opportunities for men and women.
OCR further stressed that even when NIL payments are made by third parties, such as booster clubs or collectives, schools remain responsible for ensuring that these funds do not create sex-based disparities.
"OCR has long recognized that a school has Title IX obligations when funding from private sources, including private donations and funds raised by booster clubs, creates disparities based on sex in a school's athletic program or a program component," OCR wrote. "The fact that funds are provided by a private source does not relieve a school of its responsibility to treat all of its student-athletes in a nondiscriminatory manner."
The timing of the guidance comes amid an ongoing lawsuit filed by former female athletes at the University of Oregon, who allege Title IX violations related to unequal NIL opportunities provided by the school and its affiliated collective, Division Street. Although OCR stipulated that its guidance is not legally binding and does not apply to any specific matter, lead attorney Arthur Bryant, representing the plaintiffs against OU, praised the fact sheet as a critical affirmation of their claims.
"It makes clear our approach in the Title IX lawsuit is correct and strengthens our case," Bryant told Sportico. "It also signals that the proposed settlement in House v. NCAA should not be approved."
An Oregon spokesperson and lawyers for the House plaintiffs did not immediately respond to a request for comment.
The OCR fact sheet constitutes one of the final acts of the Department of Education's OCR under President Joe Biden. As such, this guidance could soon be amended or reversed under President-elect Donald Trump.
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