In long-awaited guidance issued Thursday, the U.S. Department of Education’s Office for Civil Rights (OCR) officially confirmed what many Title IX practitioners and athletics administrators thought to be true: Title IX’s gender equity requirements will in fact apply in the modern-day name, image, and likeness (NIL) era. Specifically referencing three of Title IX’s equity areas — athletics financial assistance, publicity, and support services — OCR’s fact sheet this week emphasizes that Title IX will apply "when student-athletes receive NIL-related compensation and benefits," including (in some cases) payments or benefits received from third parties. 

The news comes amidst a flurry of institutional NIL activity. The House vs. NCAA settlement agreement (assuming the landmark proposal is approved) will permit Division I schools to engage in direct revenue-sharing and NIL payments with student-athletes beginning in the fall of 2025. As a result, many Division I colleges and universities are preparing to dole out direct payments of up to $20.5 million to student-athletes as compensation for the use of athletes’ NIL. Many schools’ NIL reported payment strategies are market-driven and thus heavily favor men’s sports that receive the most media and attention from fans such as football and men’s basketball. However, schools and colleges need to tread carefully in proceeding with this strategy for on-campus NIL payments because this market-based approach could land a school in the penalty box with Title IX’s gender equity requirements. 

While Title IX experts have warned of this concern and school officials should carefully consider OCR’s guidance, athletics administrators should note that Thursday’s memo is one of the final actions undertaken by the Biden administration and may be quickly challenged or revoked outright by the incoming Trump administration. As with everything occurring now in the collegiate athletics landscape, it is critical that schools and athletics departments stay up to date on the evolving web of federal, state, NCAA, and conference requirements.  

NIL Payments

OCR’s position on institutional NIL payments is clear: "When a school provides athletic financial assistance in forms other than scholarships or grants, including compensation for the use of a student-athlete’s NIL, such assistance also must be made proportionately available to male and female athletes."

Title IX has never required that athletic financial assistance (the most common forms of which are athletics scholarships, cost-of-attendance awards, Alston dollars, and, now, NIL payments) be exactly equivalent in number or amount. Athletics departments are not required to award athletics scholarships 50-50 between men and women. A given school is not required to allocate 100 scholarships for women just because it allocates 100 scholarships for men, and the combined dollar amount of those scholarships does not have to be the same for male and female student-athletes. 

Instead, scholarship dollars must be allocated in a manner that is "substantially proportionate" to the gender breakdown of a school’s student-athlete population. If 60% of a school’s student-athletes are men, then between 59 to 61% of the scholarship dollars or grants-in-aid should be awarded to men. Thursday’s OCR guidance suggests that a similar analysis will apply to forthcoming NIL payments. "Compensation from a school for use of a student-athlete’s NIL qualifies as athletic financial assistance which, under Title IX, must be made available to male and female student-athletes in a manner that is substantially proportionate to the number of students of each sex participating in interscholastic or intercollegiate athletics at that school,” claims OCR.

Because they are not education institutions in receipt of federal funding, third parties and off-campus entities are presumed not to be beholden to Title IX: "OCR does not view compensation provided by a third party (rather than a school) to a student-athlete for use of their NIL as constituting athletic financial assistance awarded by the school that must comply with [Title IX]," the recent guidance explains. That’s not to say, however, that third-party NIL payments are entirely immune from scrutiny: "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. 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," OCR clarified in the memo. Depending on the degree of separation between the off-campus entity and the college, imputed liability theories could pierce the relationship and cause the college to be held accountable if the third-party’s NIL payments are not equitably distributed according to Title IX. 

Schools should be wary, then, of attempting to avoid Title IX liability for disproportionate payments to male and female student-athletes simply by routing those payments through off-campus entities like NIL collectives or corporate partners. Instead, schools should also implement important steps to maintain defensible separation from the third-party collectives or organizations, an area we are focusing on heavily with our clients.   

Publicity Resources and Support Services

In addition to staking a position with respect to NIL payments, OCR also clarified that NIL activity will be assessed under two of Title IX’s "equitable treatment and benefits" provisions — the provision of publicity resources and support services. 

Institutional recipients of federal funding are required to provide publicity resources equitably to male and female student-athletes. OCR’s guidance here is straightforward: "A school’s obligation to provide equivalent publicity based on sex continues to apply in the context of NIL." The rationale is simple — especially in today’s NIL environment which requires student-athletes to engage in personal branding and marketing to attract endorsement deals or other monetization opportunities — university-generated publicity and social media attention help raise student-athletes’ profiles and external visibility. That visibility translates directly to market influence and may significantly impact student-athletes’ potential for NIL earnings.

Facilitation of NIL transactions, permitted by the House settlement and several states’ laws, includes services that schools provide to assist student-athletes in securing or managing NIL opportunities. Those services include training sessions on brand building, finances, reporting, entrepreneurship, or similar topics. OCR makes clear that it will examine whether schools provide such training equitably to men’s and women’s teams. The same analysis will apply to any assistance provided by athletics employees to student-athletes with respect to soliciting, obtaining, or negotiating NIL agreements.

Final Takeaway

The OCR memo is the latest update for education institutions navigating the ever-evolving NIL revolution. With several upcoming deadlines in the landmark House settlement (including a January 31 deadline for student-athletes to file claims, opt out of the settlement, or challenge the proposed structure), schools should continue to monitor guidance from the NCAA, Department of Education, and other stakeholders to assess their obligations and opportunities related to student-athlete NIL. For those schools interested in maximizing their opportunities to leverage NIL payments to student-athletes for competitive reasons, we recommend simultaneously working with experienced Title IX legal counsel to best mitigate the risk associated with these strategies.  

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