Dept. of Ed: Title IX does not apply to athlete pay

Title IX does not apply to name-image-likeness deals, the U.S. Department of Education said in a statement Wednesday, rescinding the Biden administration’s guidance that schools must equitably distribute direct payments to male and female athletes.

“Without a credible legal justification, the Biden Administration claimed that NIL agreements between schools and student athletes are akin to financial aid and must, therefore, be proportionately distributed between male and female athletes under Title IX,” according to a statement from Acting Assistant Secretary for Civil Rights Craig Trainor. “The claim that Title IX forces schools and colleges to distribute student-athlete revenues proportionately based on gender equity considerations is sweeping and would require clear legal authority to support it.”

The decision comes a week after President Donald Trump spoke about his support for women and girls in sports while surrounded by female athletes before signing an executive order banning transgender women from competing on women’s and girls’ teams, citing compliance with Title IX.

The Trump administration’s statement Wednesday overturns a memo the Office for Civil Rights — the division of the Department of Education that enforces Title IX law — issued in December about how gender equity laws will apply to a new era of college sports that is on track to begin this summer.

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 major college athletic departments plan to distribute the majority of that money to athletes in sports that generate the most revenue — mostly football and men’s basketball players — leaving a small portion, often less than 5%, to women’s sports.

The Biden memo said that future payments should be considered “athletic financial assistance” and therefore must be shared proportionally between men and women athletes. It also said the department does not consider money provided by a third party in an NIL deal as athletic financial assistance. 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.”

In the department’s statement Wednesday, Trainor referred to the Biden memo as “NIL guidance” and did not mention the direct payments.

ESPN reached out to the education department via email with additional questions on the decision and did not receive a response. Catherine Lhamon, the former assistant secretary of the Office for Civil Rights, also did not respond to a request for comment.

Andrew Zimbalist, Smith College economics professor and former president and member of the government relations team with The Drake Group, which advocates for college sports reform, called the department’s decision “reprehensible.”

“It’s incomplete and misleading and it doesn’t align with Trump’s … support of Title IX, which is where he says he cares about women’s sports and doesn’t want women playing against biological men,” he said. “It’s not surprising. There will be an attack on Title IX coming up the next four years.”

Beth Parlato, senior legal advisor with the Independent Women’s Forum, which supported the transgender athlete ban, said the organization supports the NIL decision, writing in a text, “There is no legal basis under Title IX to treat NIL payments the same as athletic scholarships. [We] will continue to oppose the left’s attempts to expand and distort the original intent of Title IX.”

Title IX is a federal law enacted in 1972 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.

One of its longstanding measures of compliance is whether schools provide financial assistance — such as scholarships — 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.

In his statement, Trainor noted that Title IX, enacted over 50 years ago, “says nothing about how revenue-generating athletics programs should allocate compensation among student athletes.”

Arthur Bryant, an attorney who often represents female athletes in Title IX disputes including a group of Oregon volleyball players who sued the school for allegedly violating multiple Title IX requirements, said legislative action dating back to the early 1970s clearly established the law’s reach over revenue-generating sports.

“When Title IX was first proposed, and repeatedly after that, opponents of it, or strong supporters of men’s sport including the NCAA, tried to get revenue-producing sports exempt from it,” he said. “Congress repeatedly rejected those efforts because it wanted Title IX to be what it is: a federal statute prohibiting sex discrimination in all aspects of educational institutions, including their athletic programs. Schools could not discriminate against women to make money, to avoid losing money or because some donors liked men and men’s sports more than women and women’s sports.”

Noah Henderson, a clinical instructor in sport management at Loyola University Chicago who has previously advocated for universities to provide equal access to NIL opportunities but not proportional distribution of NIL funds, said Wednesday that he supported the department’s ruling, noting that NIL dollars are separate “market driven” funds unlike university-provided financial aid.

Regardless of the education department’s decision, he said the issue likely will face legal challenges from female athletes who feel the system “violates Title IX and unduly burdens them.”

That sentiment was echoed by Rep. Lori Trahan, D-Mass, a former Division I volleyball player. “College sports may change, but schools’ legal obligations under Title IX doesn’t,” she said in a statement. “If Donald Trump and Republicans in Congress won’t defend women’s sports, the courts will have to.”

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