Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) Activities
The Department of Education’s Office for Civil Rights (OCR) guidance asserts Title IX applies to Name, Image, and Likeness (NIL) activities. The guidance, “Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness Activities,” classifies school-provided NIL compensation as “athletic financial assistance,” requiring it to comply with Title IX’s proportionality rules. It reinforces that Title IX prohibits sex-based discrimination in athletic programs at schools receiving federal funds, including K-12 and higher education institutions, and focuses on five key areas:
Title IX’s Equal Opportunity Requirements: Schools must ensure equitable opportunities, benefits, and treatment for male and female student-athletes in their athletic programs. OCR evaluates this based on three factors:
The benefits, opportunities, and treatment given to male and female athletic teams;
The athletic financial assistance, including athletic scholarships, awarded to student-athletes; and
A school’s accommodation of the athletic interests and abilities of its students.
2. Definition and Background on NIL Agreements: NIL agreements allow student-athletes to profit from endorsements, sponsorships, and similar activities. The guidance describes how these agreements intersect with Title IX compliance responsibilities.
3. School-Provided NIL Compensation: Compensation provided by schools for NIL use is classified as athletic financial assistance under Title IX and must be distributed proportionately between male and female athletes.
4. Publicity and Support Services: Schools must provide equal opportunities for male and female athletes in NIL-related areas such as publicity, social media promotion, and training on brand-building, financial literacy, and negotiating NIL agreements.
5. NIL Agreements Between Student-Athletes and Third Parties: While compensation from third parties, including collectives and sponsors, is not directly regulated under Title IX, schools remain responsible for addressing disparities created by such agreements if they result in inequities within the athletic program.
This guidance, which imposes significant new obligations on schools, should have undergone formal rulemaking as required by the Administrative Procedure Act (APA). By classifying NIL payments as "athletic financial assistance" rather than compensation for revenues generated by popular individual athletes and teams, the Department of Education created a requirement of proportional distribution that exceeds the statutory authority of Title IX. This guidance pressures schools to comply with what amounts to a novel rule, crossing the APA’s threshold for legislative rulemaking. By bypassing notice-and-comment procedures, the Department avoided transparency, public input, and accountability, undermining the rule of law.
