Last week, the U.S. Department of Education rescinded a nine-page fact sheet on Title IX distributed under the previous presidential administration that suggested name, image and likeness (NIL) payments to college athletes must be proportionate between a school’s male and female athletes.

With the pending $2.8 billion House v. NCAA settlement set to enable direct NIL compensation from colleges to athletes in the form of annual revenue sharing, the since-rescinded guidance could have impacted how schools allocate and distribute those revenue sharing dollars.

Instead, the fact sheet, originally released on Jan. 16, was described by the current Department of Education as an “11th-hour guidance” from the Joe Biden administration that was “sweeping and would require clear legal authority to support it. That does not exist.” President Donald Trump took office on Jan. 20, and many in college sports anticipated the Trump administration would have a different interpretation of Title IX’s role in NIL payments than the fact sheet.

In light of the guidance being rescinded, and with the House settlement’s final approval hearing scheduled for April 7, let’s examine the role Title IX could play in future revenue sharing within college sports.

What is Title IX?

Title IX is a federal civil rights law enacted in 1972 that prohibits sex-based discrimination in schools that receive federal money. For college sports, this is largely represented by equitable participation opportunities and proportional scholarship dollars for male and female athletes on each campus. That’s jargon for equal scholarship offerings, more or less.

This is why schools with football tend to have more women’s scholarship sports: Football has a large scholarship number, plus most schools have higher female enrollment than male, and the breakdown of male and female opportunities have to align with those proportions. Title IX also requires equal benefits among male and female athletes, such as equipment, facilities and support services.

How could Title IX apply to the House settlement and revenue sharing?

The NCAA and power conferences have faced numerous Title IX lawsuits over the years, some still ongoing. The House settlement, however, aims specifically to address antitrust claims in college sports — not Title IX. Under an approved settlement, schools would still be beholden to Title IX in terms of participation opportunities and scholarships dollars, and the settlement features no directives on how revenue sharing should be allocated, as long as it stays within an annual cap.

“The injunction does not require the schools to spend the new compensation and benefits that are permitted to any particular group of athletes and leaves Title IX issues up to the schools to determine what the law requires,” Jeffrey Kessler, one of the lead plaintiff lawyers in the House case, said in an interview with The Athletic. “We resolved antitrust claims — not Title IX claims.”

Judge Claudia Wilken, presiding over the House settlement in the Northern District of California, did not express concerns with that argument during a preliminary approval hearing last September.

“Her role is not to look at whether there are implications on other federal rules (such as Title IX), but rather from an antitrust perspective whether the settlement makes sense and is reasonable for the class as a whole,” said Paia LaPalombara, a partner at Church Church Hittle Antrim and former college athletics administrator who advises colleges and collectives on NIL.

Even under Title IX policy, budgets and resources for individual sports have often been unbalanced within college athletics. And since NIL compensation was permitted starting in 2021, the majority of NIL dollars (from third-party collectives affiliated with schools in particular) have gone to football and men’s basketball players in the traditional revenue-generating sports — and were not subject to Title IX compliance.

The House settlement aims to resolve antitrust suits against the NCAA and power conferences in two parts. One is the backward looking damages portion, which will pay out $2.8 billion in retroactive backpay over 10 years to former college athletes who missed out on NIL earning opportunities. The formula for those damages estimates the vast majority of that NIL backpay (roughly 90 percent) will be paid out to former football and men’s basketball athletes.

The other part of the settlement includes future (and optional) revenue sharing between colleges and athletes that classifies as internal NIL, with an initial cap of roughly $20.5 million per school in the first year. When terms of the House settlement were agreed to last spring, there were questions about how the revenue share would be distributed by each school and whether it would need to be Title IX compliant. Most FBS athletic departments plan to use the damages formula as a blueprint, earmarking roughly 75 percent of revenue share to football, roughly 15-20 percent to men’s basketball and, for some schools, roughly 3-5 percent each for women’s basketball and baseball, with the remaining amount dispersed among other Olympic and non-revenue sports.

Last month’s Department of Education memo on Title IX injected some doubt into those plans, though many in the industry waved it away, assuming — correctly — it wouldn’t stand up under the Trump administration.

The upshot is that most schools that intend to opt into approved revenue sharing are proceeding as originally planned, with the lion’s share of the funds slated for men’s revenue sports.

Tracking how different schools value women’s sports under an approved settlement and the competitive impact that has could be revealing. Will women’s basketball or volleyball programs, for instance, have more or fewer dollars available for athlete compensation than those sports have in the current NIL era? Star athletes in the mold of Caitlin Clark, Livvy Dunne and NiJaree Canady would likely command significant revenue share resources and could still earn big paydays through traditional third-party NIL deals, but how will the settlement financially impact their teammates?

The concern among many supporters of women’s college athletics is that overall, the revenue share arms race in football and men’s basketball and further professionalization of college sports will lead to diminished resources on the women’s side.

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What’s next?

The House settlement awaits final approval. Title IX law (and the rescinded guidance) is unlikely to impede final approval, though Judge Wilken will have to consider a range of objections.

If final approval is ultimately granted, as many in the industry still expect, Title IX will continue to be a factor. Scholarship distribution will have to remain compliant under the settlement’s proposed changes to roster limits, which could result in either cuts or additions to total scholarships, depending on the school.

The Title IX debate over revenue share will continue as well, as advocates insist the law applies to those funds despite the DoE’s about-face.

“The NIL compensation athletes are receiving is directly linked to their involvement in a school-sponsored sport and therefore, must be distributed equally between men and women in order to comply with Title IX,” said Michelle Simpson Tuegel, a Title IX attorney.

And because the House settlement does not address Title IX claims, colleges will remain at risk of subsequent litigation.

“Campuses should be thinking through Title IX implications, because federal litigation will always be a possibility,” said LaPalombara. “It’s going to be more of an institutional issue and have less to do with the overall settlement agreement.”

(Photo: Mitchell Layton / Getty Images)