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SALT LAKE CITY — New U.S. Department of Education guidance defines name, image and likeness payments as financial aid that must be proportionate between male and female college athletes.
The nine-page memo from the department Office of Civil Rights could throw a wrench into how universities would make direct payments to athletes, which could start this year pending a final approval this spring of a legal agreement. Under the House settlement, schools could set aside about $20.5 million in a revenue-sharing plan.
Many universities have publicly stated that the majority of that money would go to football and men's basketball players, which, according to the guidance, would be in violation of Title IX, the Associated Press reported.
"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," according to the memo.
Passed in 1972, Title IX requires schools to provide equal athletic opportunity, regardless of sex. That includes benefits, opportunities and treatment given to male and female athletic teams and athletic financial assistance, including athletic scholarships.
"Schools remain responsible for ensuring that they are offering equal athletic opportunities in their athletic programs, including in the NIL context. A school may violate Title IX if the school fails to provide equivalent benefits, opportunities and treatment in the components of the school's athletic program that relate to NIL activities," the memo says, adding the obligation applies regardless of whether the athlete's NIL is through the school or a third party.
More NIL chaos
The memo throws more confusion into the evolving college sports landscape. And it remains to be seen whether the DOE memo issued in the waning days of the Biden administration stands after President-elect Donald Trump takes office on Monday.
Illinois athletic director Josh Whitman, who serves as the chair of the NCAA Division I Council, said that "the world has changed over and over again just in the last six months," per AP.
"We've been building plans on top of plans for some time now, and this is the most recent example of where we're going to take the guidance under advisement and figure out what, if any, changes we have to make to the strategies we've developed," he said.
The DOE guidance wasn't clear on how money from third-party collectives that are closely affiliated with and often endorsed by the schools will be treated. The memo said those payments, which are the norm but were expected to be reduced under the new rules, were not considered financial assistance, according to the AP.
Collectives are typically founded by alumni and supporters of a school to connect athletes to money-making opportunities as well as negotiate their compensation packages. Collectives allow donors, boosters and fans to contribute money directly to athletes, who typically must provide a small service to get paid.
The memo stated that "it is possible that NIL agreements between student-athletes and third parties will create similar disparities and therefore trigger a school's Title IX obligations."
David Ridpath, a former president of the Drake Group, an NCAA watchdog, called the memo "not surprising, and very consistent with the law," the AP reported.
"There was always a question of how Title IX applies to NIL. Now there is just more guidance," he said. "It's essentially just following the law virtually the way it's always been written."
Lack of transparency
In 2023, the Deseret News attempted to obtain college athletes' NIL contracts submitted to public universities through Utah's public records law. Among the arguments the newspaper made for releasing the records was to see whether schools disproportionately steer NIL deals to male athletes or invest disproportionate resources in marketing male athletes.
The schools denied the requests. The case eventually went to court, where last October a judge sided with the universities after the Utah Legislature passed a law making NIL contracts — past, present and future — private records.
An article in the Temple Law Review by University of Florida legal scholar Frank LoMonte concluded that concealing NIL records does a disservice to the interests of the public, the Deseret News reported in 2023.
"After decades of effort to narrow the equity gap through Title IX, it would be regrettable if NIL reopens or even widens the gap," he wrote. "Without disclosure, there will be no reliable way of knowing."
As schools now await a final decision on revenue-sharing, it is unclear whether direct payments would be a matter of public record.
Dave Cuillier, director of the Joseph L. Brechner Freedom of Information Project at the University of Florida, told the Deseret News last year that payments from public universities to student-athletes should be available for anyone to see. "That is, of course, if the legislatures don't pass an exemption keeping it secret," he said.
