DOE & Title IX requirements for school-provided NIL

Athletic Recruits
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We have a few threads that sometimes mention this topic, but we don’t really discuss the monster in the athletics room these days: the settlement in NCAA v. House and the absolute chaos that this has unleashed around scholarships, roster spots and sizes, athletic department revenue and payouts, etc.

I’m not going to write a summary of everything that’s happened - I’d need to block off a whole night for that! - but we do have yet another potential wrench thrown in the works, to mix metaphors: the Department of Education came out this week and said that NIL payments from schools are subject to Title IX requirements.

Why does this matter? Well, the NCAA v. House settlement, among other things, allows DI programs that opt in to pay $20.5MM per year to their athletes through school-sponsored NIL programs. Essentially every program was planning to use this to primarily pay football and men’s basketball players, since that’s the most in line with market expectations. The DOE has said that you have to spread that $20.5MM equally across men’s and women’s sports. (If you think I’m misunderstanding this, please correct me.) Sportico provides their own summary.

Note that this interpretation does not apply to outside NIL payments, like collectives, though the DOE would like schools to act as if it does - see Section 5 of the DOE document. The DOE “does not offer specific guidance” on that matter.

If you’re wondering if the $20.5MM is too small to matter, it’s not - I don’t know the size of every collective, and of course there’s the news that Larry Ellison gave $10MM to the new QB coming into Michigan, and who knows what might happen in the future, but right now $20.5MM is still a substantial percentage of NIL-available funds.

So this is yet more chaos in the college sports landscape. It’s a DOE interpretation, not a law - the next DOE could interpret this rule differently, and one might assume that this will happen (Ted Cruz thinks so).

If CC is going to be a reliable source of information for parents of athletic recruits, one thing it could do is provide some real-world interpretations and experiences of how programs are responding to this current landscape. I don’t really understand what’s happening with these “Roster Limit Objections” that I’m reading about, for example: they seem like spitting into the wind but I might be missing something.

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Thank you for posting that. There is still much that is up in the air, but my big takeaway is that schools will be on the hook for the actions of NIL collectives in terms of title IX compliance. This stance feels “right” to me, but I wasn’t sure how it would be handled.

There was also some language that there could be exceptions to strict 50/50 rules, with the examples of Olympic athletes or national champions. I have heard the phrase “fair market value” attached to some discussion along these lines. It feels like an attempt to draw a distinction between an athlete you are paying to help your team, and an athlete who will truly bring marketing value if they endorse a product. I bet that distinction will get pushed, abused and negotiated, but not until we see how it plays out a bit.

I am not a lawyer, and this is just me reading and speculating, so would love to hear what others think.

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I agree so much is still up in the air. House vs NCAA terms haven’t even been finalized yet.

NIL collectives at the power 5 schools are either going to go away, or be brought in house.

Title IX is may be a problem, and I predict some litigation if things aren’t crystal clear…which they won’t be.

This is such big business for the Power 5 teams (assuming we can still call the Pac a power conference.) Many teams are hiring GMs for their football teams because there are so many moving parts. Andrew Luck is Stanford’s GM: Stanford Names Andrew Luck to Football General Manager Position - Stanford Cardinal - Official Athletics Website

By the time all is said and done the 70 power 5 teams will all have football GMs. It’s just too much money. And it’s so stupid that the portal is open in December during playoffs.

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I’ve been saying for the past couple of months that the DOE will be significantly neutered in the next few months and with it Title IX will likely be watered down or go away completely. There is no reason to pay women’s sports the same as men’s sports based on the revenue model for each athletic department.

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I’m not sure where to put this, because pieces of it are in multiple threads. But..Judge Wilken delayed the House vs NCAA settlement because of the roster limit issue. (She wants it phased in the limits as we discussed on another thread). I agree phasing in the limits would be better.

A federal judge told the NCAA and its members Wednesday that she would not approve the multibillion-dollar antitrust settlement that is expected to reshape the business of college sports unless they change a proposed policy for limiting roster sizes.

Judge Claudia Wilken said the NCAA’s insistence on immediately implementing roster limits would cause some college athletes to lose their spot on their current teams and that she could not approve a settlement that would cause harm to some members of the plaintiff’s class. She wrote that she did not have issues with any other parts of the proposed settlement and that the court “tentatively finds it can grant final approval” to the remainder of the settlement if the roster limits issue is resolved.

Full article here:

Prescient comment!

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I feel terrible for all the athletes that preemptively got cut, several of whom had to commit to other schools as a transfer, as the many 25s who go had offers pulled late into the fall.

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That situation has also directly led to the transfer portals being crazy in terms of numbers (and therefore effort that coaching staffs have to expend if looking to bring anyone in). And of course, HS recruiting has been really impacted as well as you note.

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Yep. D26 was told that by some coaches earlier this year that 2026s were being put on hold, presumably because they wanted to see how the portal and displaced 2025s shook out.

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Another interesting development that I don’t think was posted elsewhere:

Eight female student-athletes filed an appeal to the 9th Circuit Court of Appeals on June 11 arguing that the back pay damages portion of the House settlement, recently approved by Judge Claudia Wilken, violates the gender discrimination provisions in Title IX.

In their appeal, the student-athletes contend that women would not receive their fair share of the $2.8 billion. They maintain that the calculation used to distribute the damages violates Title IX because female athletes would receive less money than football and men’s basketball players.

According to the terms of the final settlement, the damages are set to be distributed as follows:

  • 90% to football and men’s basketball student-athletes at Power Five schools that competed between June 15, 2016, to September 15, 2024;
  • 5% to women’s basketball student-athletes; and
  • 5% to all remaining student-athletes.

How Can These Athletes Challenge the Settlement?

The athletes have standing to appeal because they previously filed objections to the proposed settlement. Notably, many of the objections that challenged the terms of the settlement were related to Title IX. Judge Wilken rejected those objections determining that the antitrust case had nothing to do with Title IX. However, she left the door open to possible future challenges based on Title IX relating to how future payments from schools to student would be made.

Full article here:

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obviously, in the US, anyone can sue for anything. That said, the attorneys that I follow and who are connected to athletics are confident that House is revenue sharing, and to the extent that women’s sports bring in revenue, they get to share.

Under House, P4 football (TV) reigns supreme and pays many of the other bills; there will be plenty of non-rev men’s sports that don’t share either.

Cleaning up this mess will require Congressional action.

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Note that the appeal only covers the $2.8B back payment (which covers compensation for lack of NIL from 2016-2023), at least for now. The future revenue sharing is not part of this appeal, at least based on my current understanding.

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same issue; the case was about anti-trust of NIL payments, aka, sharing in the revenue, not gender equity, per the federal judge. Other than Livvy Dunne, not sure how many other women have a strong claim. (And the cynic in me is that the ‘settlement’ was primarily so the attorneys can get paid.)

Judge did not preclude future T9 claims.

btw:, here’s an attorney’s opinion who has repped plenty of T9 cases, some of which the federal judge already rejected.

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