There are persuasive arguments that Title IX ought to apply to distributions from the NCAA’s pending settlement to resolve the House, Carter and Hubbard antitrust litigations.
But just because the Department of Education says Title IX applies, according to a fact sheet issued Thursday, doesn’t make it so. The DoE’s Office of Civil Rights published the memo in the waning days of a presidential administration, and it is not a law, regulation, opinion, ruling or other document that shapes the law.
Agencies can, and do, promulgate regulations, which have the force of law. Regulations are borne through a multifaceted rule-making process, which includes opportunities for stakeholders and the public to weigh in on how an agency has interpreted a federal statute. Required procedures are detailed in the Administrative Procedure Act, and they entail public notice via publication in the Federal Register, followed by a comment and review period and then issuance of a final rule that can be challenged in court by opponents. In short, there’s a lengthy, public-facing process with regulations and rules.
A fact sheet, in contrast, is an agency advisory that offers suggestions and recommendations; it doesn’t reflect the multiple channels of input described above. As the authors of the NIL fact sheet tellingly concede, their document “does not have the force and effect of law.” It is also “not meant to be binding” beyond what is required by actual law.
From a legal vantagepoint, these caveats can’t be overstated in importance. To the extent the government, athletes or schools rely on the NIL fact sheet in Title IX and related litigation, a court need not follow its findings or recommendations.
In other cases where agency fact sheets are introduced as sources of authority, federal judges have pointed out their limited authoritativeness.
For example, in a 2017 case involving an agency fact sheet, a federal judge said, “these would be strange caveats to add to documents intended to be interpretative guidance.” In a case from 2020, another federal judge bluntly wrote the court “declines to give deference to the unpersuasive [Department of Education] guidance documents . . . because they lack thoroughness, valid reasoning, and consistency.” Analogously, the NCAA’s use of a Department of Labor “Field Operations Handbook,” which is another kind of agency document not created through rulemaking, has been downplayed by a federal judge in Johnson v. NCAA as being owed only minimal deference.
There are also recent changes regarding judicial deference of agencies that could play an instrumental role in diminishing the NIL fact sheet’s importance.
Last year, the U.S. Supreme Court overruled the Chevron doctrine, which for 40 years had obligated courts to defer to agency interpretation when a statute was ambiguous and when the accompanying agency interpretation was reasonable or permissible. Per the Court’s ruling in Loper Bright Enterprises v. Raimondo, judges may no longer defer to an agency interpretation because the statute is ambiguous. Chief Justice John Roberts stressed that “agencies have no special competence in resolving statutory ambiguities.” Instead, he wrote, “courts do.”
There’s also the possibility President-elect Donald Trump’s administration, which will take over from President Joe Biden’s administration next Monday, will swiftly rescind the NIL fact sheet. Trump has nominated former Small Business Administration administrator Linda McMahon as the next DoE Secretary; her viewpoints might not align with those of current secretary Miguel Cardona. Trump’s DoE could also replace the fact sheet with one that offers a very different take. But the same basic limitation would exist: a Trump administration fact sheet, just like a Biden administration fact sheet, is not the law.
As to the substance of the NIL fact sheet, its arguments could have legs in court.
The House settlement contemplates colleges paying athletes for media rights, ticket sales, sponsorships and NIL. The NIL fact sheet contends that colleges paying athletes for their NIL counts as athletic financial assistance under Title IX. The fact sheet says “financial assistance” ought to be interpreted as “any financial assistance and other aid provided by the school to a student-athlete that is connected to a student’s athletic participation.”
This means, as the fact sheet tells it, NIL assistance “must be made proportionately available to male and female athletes.” Given that distributions from the settlement are expected to range anywhere from 75% to 95% to male athletes (mainly football players), those distributions would need to be dramatically altered if, in fact, Title IX applies. Otherwise, they’d attract Title IX litigation.
On one hand, the use of an athlete’s NIL is “connected” to a college student participating in a sport. The athlete’s NIL is a function of being an athlete for the university. If the athlete were a non-athlete student, the school wouldn’t pay them for their NIL. The fact sheet’s analysis seems logical in that regard.
On the other hand, NIL payments are supposed to reflect the commercial use of the athlete’s right of publicity, an intellectual property law concept that forbids the commercial use of another person’s identity without their consent. From that lens, NIL is centered on the unique characteristics of a person—such as their name, image, likeness, voice, personality and other individualized features. NIL values range widely by athlete, too. That lens complicates how the fact sheet depicts NIL, since it is not akin to how an athlete is compensated via a tuition reimbursement, housing, support services or some other metric standardized by NCAA rules or universities policies.
There are also competing arguments about Title XI’s applicability to paying athletes for revenue generated by appearing on television—which the House litigation has coined “broadcast NIL” or “BNIL.” The fact sheet suggests they are subject to Title IX because they are (clearly) connected to an athlete playing a sport. The athlete wouldn’t be on a televised broadcast of a college game as a player if not for being a player.
But when Title IX became law in 1972, the concept of massive TV deals for college sports was hardly on anyone’s mind. To construe Title IX to include broadcasting rights could be portrayed as overreach. Also, to the extent NIL is about private media companies’ broadcasts of individual athletes and their unique qualities, there’s further room for debate.
If Title IX applies to the House settlement, the settlement’s parties might consider restructuring their deal so that instead of the college, which is subject to Title IX, paying the player would be the conference or NCAA, neither of which courts have held is governed by Title IX. But that type of tectonic change would require major tweaks. U.S. District Judge Claudia Wilken would need to approve them–and quickly, too, if the settlement is going to go into effect this year as planned.
It’s also possible Congress and Trump could act by amending Title IX so that it explicitly doesn’t apply to NIL and related intellectual properties. That is possible, but given the struggles both parties have faced in trying to advance NCAA-related federal legislation, it doesn’t seem likely. Further, amending Title IX would need to be done carefully to avoid compliance uncertainties or unwanted consequences.
It’s also possible that NIL collectives could play a central role in a world where Title IX governs the House settlement. While a college might pay athletes equitably by sex in terms of NIL, college-aligned NIL collectives, which are at least technically separate from a school, could pay the football players much more. That type of end-around practice, however, could beget Title IX litigation, especially if it appears the school is given direction behind-the-scenes.
One thing is for sure: the DoE’s NIL fact sheet will lead to a lot more questions than answers.
