Department of Education says Title IX applies to payments to athletes

Plans made by many major college athletic departments for how they will distribute new direct payments to their athletes would violate Title IX law, according to a memo released Thursday by the U.S. Department of Education.

The memo provides much-anticipated guidance on how gender equity laws will apply to a new era of college sports that is set to begin this summer. It’s unclear whether the Department of Education will interpret Title IX law the same way when new 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 through name, image and likeness agreements, as one of the terms of a pending antitrust settlement. Many schools from these power conferences have developed plans to distribute the majority of that money to athletes in the sports that generate the most revenue — primarily football and men’s basketball players.

In some cases, athletic directors have publicly stated that they intend to provide more than 75 percent of that money to their football players.

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

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

Title IX is a federal law that prohibits discrimination on the basis of sex in educational programs. The law requires schools to provide opportunities to play varsity sports that are commensurate with the overall gender composition of students. It also requires schools to provide financial aid proportional to the number of students of each gender who play a sport on campus. If 50% of a school’s athletes are women, then 50% of the school’s financial aid to athletes must be allocated to women.

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

Male and female athletes also deserve equal publicity, including to sports information staff, in terms of quantity and quality of promotion, and even in social media posts. If a school fails to provide fair advertising, these students risk losing out on zero opportunities, the memo says. ESPN reported just over a year ago that 55 athletic departments — or 84 percent 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 do so. need to share social media managers with other teams.

Although the Department of Education has the authority to punish schools that fail to comply with Title IX requirements, historically all cases regarding the law’s application to college sports have come from athletes suing their school and allege unequal treatment. There are several pending Title IX lawsuits related to NIL compensation from third parties. The memo released in the final two days of that department’s tenure could provide material for potential future lawsuits if athletes sue their schools over how future direct payments would be made to athletes.

“I would be surprised if schools that announced they were planning anything other than proportional distribution continued with those plans,” said attorney Arthur Bryant, who is in the midst of a Title IX lawsuit against the University of Oregon. “They would knowingly and intentionally plan to violate the law.”

Bryant said he believes the department’s clarifications could also derail the pending antitrust settlement. A hearing to finalize this settlement is scheduled for April.