U.S. Department of Education and NIL

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Since the federal government is actively involved with likely every major public university and most of the private ones, this federal Executive Branch Department has an outsized influence on the implementation of federal policies that are brought to bear on American colleges and universities, as well as high schools and elementary and pre-K schools.  Some would say far too much influence and that pendulum is swinging back towards more autonomous control of some functions by states and localities.  However, the reality is that federal grants, federal matching funds for university research and federal student aid will keep the U.S. Department of Education involved as an agency with some level of oversight of the NIL space.  In large part, as it pertains to college athletics, the influence and repercussions of Title IX is the heavy hammer of influence.

 Title IX of the Education Amendments of 1972 has had a profound impact on college athletics, particularly in promoting gender equity. Here are some key points:

1. Increased Opportunities for Women: Title IX mandates that schools receiving federal funding provide equal opportunities for men and women. This has led to a significant increase in the number of women participating in college sports. Before Title IX, there were fewer than 30,000 women participating in college sports; by 2016, that number had grown to over 190,000.
2. Equal Treatment and Benefits: Schools must ensure that male and female athletes receive equitable treatment and benefits, including equipment, coaching, and facilities. This has helped level the playing field and improve the overall experience for female athletes.
3. Financial Aid: Title IX also requires that scholarships be awarded in a manner that does not discriminate based on sex. This has led to more financial aid opportunities for female athletes, helping to support their education and athletic careers.
4. Impact on Men's Sports: While Title IX has been instrumental in advancing women's sports, it has also led to some challenges for men's sports. Some argue that the emphasis on gender equity has resulted in cuts to men's programs to comply with the proportionality requirement of Title IX.
5. Recent Developments: The U.S. Department of Education has issued new guidance on how Title IX applies to Name, Image, and Likeness (NIL) compensation for college athletes. This guidance emphasizes that schools must ensure that NIL deals do not create disparities based on sex, further complicating the landscape of college athletics.

Overall, Title IX has been a game-changer for women's sports, providing more opportunities and resources for female athletes. However, it continues to evolve and adapt to new challenges and changes in the world of college athletics.

Despite significant gains in women's athletics - be it at the amateur, collegiate, Olympic, professional or semi-professional level, insofar as it relates to the U.S. Department of Education and its Title IX implementation, the sphere of influence is really only in the high school and, particularly, the U.S. collegiate level.   In that regard, the U.S. Department of Education issued a memorandum captioned  as a "Fact Sheet" dated January 16, 2025 with the title "Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) Activities" that seeks to clarify that the Department of Education maintains that any and all NIL compensation shall inure to the proportional benefit of both male and female athletes.  An excellent summary of the impact of that memorandum can be found here (from law firm Ogletree Deakins).  The import of this memorandum, if left intact by the incoming Administration will be substantial as the principal NIL beneficiaries (with a few very notable exceptions) at most school over which The Department of Education has jurisdiction are male football and basketball players where in some cases more than 85% of school and so-called "collective" funds are being directed.  The mechanisms for revealing where dollars go are also under scrutiny as more and more schools and universities - even the prominent public ones - seek to shield their NIL payments from public view.

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