The Wild West of name, image, and likeness: Department of Education Does U-Turn, Title IX Does Not Apply to NIL

Part 7 in the series “The Wild West of name, image, and likeness.”

President Donald Trump's administration rescinded Title IX guidance put forth by former President Joe Biden that would have resulted in significant changes to Name, Image, and Likeness (“NIL”) in college athletics, the Department of Education announced on Wednesday.

As outlined in Part 6 of this series, during former President Biden's final days in office, on January 16, 2025, the Department of Education's Office of Civil Rights issued guidance related to Title IX that stated that revenue-sharing payments from schools to athletes must be "proportionately" distributed to men and women athletes. If the revenue-sharing payments did not get distributed equally between men's and women's sports, schools would be in violation of Title IX.

However, less than a month later, on February 12, 2025, the Trump administration rescinded the Biden administration’s guidance by concluding Title IX simply does not apply to NIL.

"The NIL guidance, rammed through by the Biden Administration in its final days, is overly burdensome, profoundly unfair, and it goes well beyond what agency guidance is intended to achieve. Without a credible legal justification, the Biden Administration claimed that NIL agreements between schools and student athletes are akin to financial aid and must, therefore, be proportionately distributed between male and female athletes under Title IX. Enacted over 50 years ago, Title IX says nothing about how revenue-generating athletics programs should allocate compensation among student athletes. 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. That does not exist. Accordingly, the Biden NIL guidance is rescinded," Acting Assistant Secretary for Civil Rights Craig Trainor said in the release on Wednesday.

The Biden administration’s previous guidance put the revenue-sharing plans of several major college football powers in jeopardy. Indeed, many schools cited to the formula for the damages portion of the historic $2.8-billion House settlement – paid out to former NCAA athletes – as a guide for future revenue sharing. The damages formula earmarks the vast majority of the money to football and men’s basketball, the NCAA’s top revenue sports. That sentiment was largely unfazed by last month’s Title IX guidance, as many within college sports expected the new administration to have a different interpretation. Schools like Ohio State, that had one of the sport's most expensive rosters this past season, planned to push most revenue-sharing funds towards its football program. Several other schools were planning a similar approach in order to acquire and retain the sport's best players. School’s athletic departments can now continue with previous plans to push revenue to the sports where they see the most value added. In most cases that will be college football, but in other cases, that will be men's college basketball.

If the House settlement is approved in the coming months, it will allow colleges to share roughly $20.5 million per year in revenue with athletes beginning July 1st. It will be up to each school’s discretion how that money is allocated among its sports and individual athletes, and how Title IX would factor into those decisions has been a lingering question. The Department of Education’s announcement Tuesday provided that clarity.

Colleges may feel more confident in plans for market-based revenue sharing, but plenty of unknowns remain regarding the House settlement. In addition to the now-rescinded education department fact-sheet, the Department of Justice penned a statement of interest last month that expressed concerns about the revenue-sharing cap as an antitrust violation. The current DOJ could similarly amend or rescind that statement of interest under the new administration, but that remains to be seen.

The House settlement also faces considerable objections ahead of the April 7th hearing. And even if approved, the settlement could still face additional litigation on a variety of issues, including Title IX, which is why the NCAA and its power conferences continue to seek involvement from Congress.

One thing is for certain, despite the latest guidance, the legal issues involving NIL and Title IX are sure to heat up. As always, McDonald Hopkins will continue to provide updates on this topic as it unfolds.