The U.S. Department of Education announced on Wednesday it had rescinded a fact sheet issued by the agency shortly before President Joe Biden’s term expired that asserted Title IX should apply to distributions from the NCAA’s pending settlement to resolve the House, Carter and Hubbard antitrust litigations.
As Sportico detailed, a fact sheet is not a law, regulation or ruling, and has no force of law. Courts have expressed skepticism toward the power of fact sheets in shaping legal interpretations. Unlike a rule or regulation, which goes through a multistep review process in which stakeholders and the general public have opportunities to weigh in consistent with Constitutional due process, a fact sheet is more akin to an expression of opinion.
Still, the fact sheet sparked headlines since in its current form, the settlement envisions colleges being able to opt into an arrangement where they can directly pay athletes 22% of a defined formula for averaged shared revenue. The shared revenue includes use of NIL, media rights, ticket sales and sponsorships and is expected to be initially capped at about $21 million a year. Whether colleges can pay athletes according to market value—a metric that, at many schools, would mean football players receive most of the money—or must pay men’s and women’s athletes equally is an unresolved question.
In a statement, acting Assistant Secretary for Civil Rights Craig Trainor said the guidance was “rammed through by the Biden administration in its final days” and “is overly burdensome [and] profoundly unfair.”
Trainor went on to insist that the Biden administration read into Title IX what the law doesn’t actually say.
“Title IX says nothing about how revenue-generating athletics programs should allocate compensation among student athletes,” Trainor asserted. “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.”
While the fact sheet has been rescinded, the underlying substantive question of Title IX’s potential application to the settlement remains a debatable topic. In all likelihood, this question will ultimately be decided by the courts, not an agency.
There is a sensible reading of Title IX, which governs financial assistance and other aid provided by schools to students, including athletes, that colleges paying athletes for their NIL ought to fall under the long-standing federal law. A college’s payment for an athlete’s NIL is, obviously, linked to the athlete participating in a school-sponsored sport. In contrast, a classmate who is not on a school team would not be paid for their NIL.
To that point, U.S. Rep. Lori Trahan (D-Mass.), the only former Division I woman athlete in federal elected office, objected to the Trump administration rescinding the fact sheet.
“College sports may change, but schools’ legal obligations under Title IX doesn’t,” Trahan expressed in a statement. “If Donald Trump and Republicans in Congress won’t defend women’s sports, the courts will have to.”
The counterview is that NIL concerns the unique, individualized features of an athlete’s right of publicity. Under intellectual property law, the right of publicity forbids the commercial use of another person’s identity without their consent. The right is central to athlete endorsement and sponsorship deals, which reward an athlete for their marketability and can range from the very lucrative for mega stars to the non-existent for ordinary athletes. Title IX has normally governed payments related to athletes’ direct participation in athletics as students, such as tuition reimbursement, housing, travel, equipment or support services and is standardized by university policies. To apply Title IX to more individualized aspects of athletes’ identity could prove beyond its intended scope.
Which interpretation is correct remains to be seen. Both a school that pays the football team much more and a school that pays men’s and women’s athletes roughly the same total amounts could face litigation. The former could be accused of violating Title IX by directing most of the money to men’s athletes, while the latter could be accused of misappropriating NIL value and discriminating against male students on the basis of sex.
The prospect of litigation could also motivate Congress to consider ideas on amending Title IX to clarify its application to revenue sharing. Trahan announced on Wednesday that she and U.S. Senator Chris Murphy (D-Conn.) will reintroduce the Fair Play for Women Act. The Act would authorize the Department of Education to fine schools for gender disparities in athletics.
Wednesday’s announcement might not be the last time the Trump administration rescinds a Biden administration policy impacting college sports. The Department of Justice, on the last full day of the Biden administration, filed a statement of interest objecting to the cap feature of the settlement. The statement could be rescinded or altered by the DOJ, which is now run by Attorney General Pam Bondi.
Scott Soshnick contributed to this story.
(This story has been updated with the news that the Fair Play for Women Act will be reintroduced in Congress.)
