The Department of Education says Title IX applies to payments to athletes

Plans by several major college athletic departments for how to distribute new direct payments to athletes would violate Title IX, according to a memo published by the U.S. Department of Education on Thursday.

The memo provides some long-overdue guidance on how gender equity laws can be applied to a new era of college sports that is on track to begin this summer. It’s not clear whether the Department of Education will interpret Title IX the same way when incoming President Donald Trump’s administration appoints 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 deals as one of the terms of a pending antitrust settlement. Many of the schools in those power conferences have developed plans to distribute the majority of that money to athletes in the sports that generate the most revenue — mostly football and men’s basketball players.

In some cases, sporting directors have publicly announced that they intend to offer up to 75% of this money to 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 should be shared proportionately between men and women. Athletes.

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

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

The memo is not clear in providing guidance on how payments from booster groups closely tied to their schools would be affected by Title IX. It states that the department does not consider funds provided by a third party in an NIL deal to be athletic financial aid such as future revenue-sharing payments or scholarship dollars. But if funds from private sources create disparities in the athletic program, no-failure agreements could “trigger the school’s Title IX obligations.”

Male and female athletes also deserve equal publicity, including among sports information staff, the volume and quality of promotion, and even in social media posts. If the school fails to provide fair publicity, these students risk losing opportunities to nothing, the memo states. ESPN reported just over a year ago that 55 sports departments — or 84% of the then Power 5 — mentioned men’s teams more than women’s teams on their main accounts on what was then Twitter, and women’s teams were more likely to Socialize with other teams.

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

“I would be surprised if schools that have announced they are planning something other than apportionment continue with those plans,” said attorney Arthur Bryant, who is in the midst of a lawsuit against the University of Oregon. “They knowingly and intentionally plan to violate the law.”

Bryant said he believes the department’s declaratory language also has the potential to derail the pending antitrust settlement. A hearing to finalize this settlement is scheduled for April.