The Department of Education removes directions on Title IX and athlete compensation

Title IX does not apply to name, image, and likeness (NIL) deals, as confirmed by the U.S. Department of Education in a statement released on Wednesday. This announcement overturns the guidance issued by the Biden administration, which had mandated schools to fairly allocate direct payments to male and female athletes.

The acting assistant secretary for civil rights, Craig Trainor, explained that the Biden Administration’s assertion that NIL agreements should be distributed equally between male and female athletes under Title IX lacks a credible legal basis. The administration had argued that such agreements are similar to financial aid and thus subject to proportional distribution. Trainor highlighted the need for clear legal authority to support such a sweeping interpretation that Title IX necessitates gender equity considerations when allocating student-athlete revenues.

This decision follows President Trump’s recent declaration of support for women and girls in sports, made during an event where he was surrounded by female athletes. Subsequently, he signed an executive order prohibiting transgender women from participating in women’s and girls’ sports teams, citing adherence to Title IX regulations as the rationale behind the action.

RELATED: Trump signs executive order banning transgender athletes from women’s sports

The Trump administration’s statement Wednesday overturns a memo the Office for Civil Rights — the division of the Department of Education that enforces Title IX law — issued in December about how gender equity laws will apply to a new era of college sports that is on track to begin this summer.

The NCAA and its power conferences have agreed to allow each school to share up to $20.5 million in direct payments to its athletes via NIL deals as one of the terms of a pending antitrust settlement.

Many major college athletic departments plan to distribute the majority of that money to athletes in sports that generate the most revenue — mostly football and men’s basketball players — leaving a small portion, often less than 5%, to women’s sports.

The Biden memo said that future payments should be considered “athletic financial assistance” and therefore must be shared proportionally between men and women athletes. It also said the department does not consider money provided by a third party in an NIL deal as athletic financial assistance. But if money from private sources ends up creating a disparity in an athletic program, it is possible that NIL agreements could “trigger a school’s Title IX obligations.”

In the department’s statement Wednesday, Trainor referred to the Biden memo as “NIL guidance” and did not mention the direct payments.

ESPN reached out to the education department via email with additional questions on the decision and did not receive a response.

“I think it’s appalling for an administration that performatively and repeatedly claims to be intent on protecting women and girls’ equal access to sports then disavows a legal interpretation that protects women and girls’ ability to benefit financially from their athletic talents,” Catherine Lhamon, the former assistant secretary of the Office for Civil Rights, said.

Andrew Zimbalist, Smith College economics professor emeritus and former president and member of the government relations team with The Drake Group, which advocates for college sports reform, called the department’s decision “reprehensible.”

“It’s incomplete and misleading and it doesn’t align with Trump’s … support [last week] of Title IX, which is where he says he cares about women’s sports and doesn’t want women playing against biological men,” he said. “It’s not surprising. There will be an attack on Title IX coming up the next four years.”

Beth Parlato, senior legal advisor with the Independent Women’s Forum, which supported the transgender athlete ban, said the organization supports the NIL decision, writing in a text, “There is no legal basis under Title IX to treat NIL payments the same as athletic scholarships. [We] will continue to oppose the left’s attempts to expand and distort the original intent of Title IX.”

Title IX is a federal law enacted in 1972 that prohibits sex-based discrimination in education programs. The law requires that schools provide opportunities to play a varsity sport that are proportional to the student body’s overall gender makeup.

One of its longstanding measures of compliance is whether schools provide financial assistance — such as scholarships — in proportion to the number of students of each sex who play sports on campus. If 50% of a school’s athletes are women, then 50% of the school’s financial aid for athletes must be allotted to women.

In his statement, Trainor noted that Title IX, enacted over 50 years ago, “says nothing about how revenue-generating athletics programs should allocate compensation among student athletes.”

Arthur Bryant, an attorney who often represents female athletes in Title IX disputes including a group of Oregon volleyball players who sued the school for allegedly violating multiple Title IX requirements, said legislative action dating back to the early 1970s clearly established the law’s reach over revenue-generating sports.

“When Title IX was first proposed, and repeatedly after that, opponents of it, or strong supporters of men’s sport including the NCAA, tried to get revenue-producing sports exempt from it,” he said. “Congress repeatedly rejected those efforts because it wanted Title IX to be what it is: a federal statute prohibiting sex discrimination in all aspects of educational institutions, including their athletic programs. Schools could not discriminate against women to make money, to avoid losing money or because some donors liked men and men’s sports more than women and women’s sports.”

Noah Henderson, a clinical instructor in sport management at Loyola University Chicago who has previously advocated for universities to provide equal access to NIL opportunities but not proportional distribution of NIL funds, said Wednesday that he supported the department’s ruling, noting that NIL dollars are separate “market driven” funds unlike university-provided financial aid.

Regardless of the education department’s decision, he said the issue likely will face legal challenges from female athletes who feel the system “violates Title IX and unduly burdens them.”

That sentiment was echoed by Rep. Lori Trahan, D-Mass., a former Division I volleyball player. “College sports may change, but schools’ legal obligations under Title IX doesn’t,” she said in a statement. “If Donald Trump and Republicans in Congress won’t defend women’s sports, the courts will have to.”