OCR Releases Fact Sheet on Title IX and NIL: What it Means for High Schools and Colleges and Universities
On January 16, 2024, the Office of Civil Rights (OCR), the organization that enforces Title IX, including athletic gender equity, released a nine-page informal Fact Sheet labeled: Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) Activities (Fact Sheet).
The timing of the release signals a last-minute effort by the Biden administration to provide clarity in a space that is already chaotic. Therefore, the guidance may be short-lived. Nonetheless, this article highlights the main points of the guidance and what it means for high schools and higher education institutions.
NIL and Financial Assistance (Colleges and Universities only)
Starting July 1, 2025, if the House Settlement is approved this spring, Power Five institutions must compensate athletes directly for use of their NIL. All other Division I schools will have the choice to provide settlement-related benefits, including compensating athletes directly for the use of their NIL, and must decide by March 1, 2025.[1] For Power Five institutions and those schools who “opt-in” to the settlement, the outstanding question has been whether these "House payments” are subject to Title IX scrutiny, and, if so, to what extent.
The Fact Sheet provides clarity on this issue, stating: “Compensation provided by a school for the use of a student-athlete’s NIL constitutes athletic financial assistance under Title IX because athletic financial assistance includes any financial assistance and other aid provided by the school to a student-athlete that is connected to a student’s athletic participation; it is not limited to scholarships or grants.” (emphasis added). This means that House payments must be proportionately available to male and female athletes.[2]
To put a finer point on this, under this guidance, if a school plans to provide the full $20.5 million in payments to its athletes, and men athletes make up 45% of the athletic population, men athletes would receive around $9.2 million. Women athletes who make up 55% of the athletic population would receive more than the men under this hypothetical, around $11.3 million.
Some institutions have expressed their preference to allocate the majority of direct NIL payments to football and men’s basketball players, as they are the primary drivers of multimillion-dollar media rights deals. However, this approach would conflict with newly released Fact Sheet guidance. For those institutions to be able to do this, the Fact Sheet would either need to be vacated – recognizing the Trump administration took office last week. Or, this guidance, if still in effect, may become a prime case to challenge the authority of OCR guidance under the Loper Bright test.[3]
The Fact Sheet offers limited guidance on a school's Title IX responsibilities concerning NIL payments from third parties (such as collectives) to athletes, which is a more prevalent scenario. It states that OCR does not consider compensation from third parties to athletes for their NIL as athletic financial assistance requiring proportionality. However, it emphasizes that funds from private sources do not absolve a school of its obligation to treat all athletes in a non-discriminatory manner.
NIL and Benefit and Treatment Areas
The Fact Sheet states that schools must provide equivalent[4] publicity based on sex in the context of NIL because equivalent publicity allows athletes to attract and secure NIL opportunities. Publicity includes coverage of athletes on its website, social postings, and other materials (e.g., posters, press guides, recruitment brochures, game programs, and pocket schedules).
The Fact Sheet also states that schools must provide equivalent administrative support based on sex in the context of NIL. Administrative support includes providing training sessions to its athletes on brand building, finances, reporting, entrepreneurship, or similar topics and providing assistance from athletics department employees for obtaining and negotiating NIL agreements.
The Fact Sheet does not address how NIL payments, particularly at the collegiate level, impact the recruitment program component. If NIL deals, whether from an institution or a third party, are used by a coach as a recruitment tool or inducement to get the athlete to attend that school, is that money subject to recruitment scrutiny under Title IX? Right now, recruitment for men and women athletes must be financially funded in a way that is equivalently adequate to meet the needs of each men’s and women’s athletic program.[5]
What it Means for Colleges and Universities
For those offering direct NIL payments to athletes (Power Five institutions and Division I institutions that opt-in), consider applying the Fact Sheet’s guidance to your approach while closely monitoring additional, future developments.
For all colleges and universities, including Division I institutions that “opt-out,” ensure that you are proportionately distributing traditional forms of athletic financial aid, including scholarships, cost of attendance, and Alston awards. Also, ensure you are providing equitable publicity and support services to your men’s and women’s programs with respect to NIL.
What it Means for High Schools
For states where high school athletes are allowed to receive compensation for their NIL, the high school should continue to provide equivalent publicity based on sex in the context of NIL. Also, to the extent a high school offers support services to assist their athletes in securing NIL deals, the high school should provide equivalent administrative assistance to the girl's and boy’s programs.
For states where high school athletes are not allowed to receive compensation for their NIL (i.e., Ohio), the Fact Sheet offers little additional guidance, besides reinforcing the main pillars of gender equity.
[1] See Question 12 of NCAA Updated Question and Answer: Impact of the Proposed Settlement on Division I Institutions (last accessed January 17, 2025).
[2] Citing 34 C.F.R. § 106.37(c); 1979 Policy Interpretation, 44 Fed. Reg. at 71,415 (“When financial assistance is provided in forms other than grants, the distribution of non-grant assistance will also be compared to determine whether equivalent benefits are proportionately available to male and female athletes.”)
[3] In June 2024, the U.S. Supreme Court reversed “Chevron deference,” which allowed courts to give deference to the interpretive guidance of administrative agencies to create and enforce regulatory efforts. Loper Bright Enterprises v. Raimondo, 603 U.S. ___, 2024 WL 3208360 (June 28, 2024) (“Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority. . .”). For more information about the Loper Bright case, see U.S. Supreme Court Overrules the Chevron Doctrine.
[4] That is, equal or equal in effect. As the Fact Sheet states, “Identical benefits, opportunities, or treatment are not required to show that program components are equivalent, as long as the overall effect of any differences is negligible.” (citing 1979 Policy Interpretation, 44 Fed. Reg. at 71,415).
[5] OCR also takes into account recruitment activities when assessing equal opportunity in intercollegiate athletic programs, including recruitment activities. See 34 C.F.R. § 106.41(a); Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413, 71,415 (1979).
