On Jan. 16, 2025, the Department of Education's Office for Civil Rights (OCR) issued guidance regarding how it will analyze name, image and likeness (NIL) activity under Title IX of the Education Amendments of 1972. The guidance is broken down into five categories: (1) Title IX's requirements to provide equal athletic opportunity based on sex; (2) background on NIL agreements; (3) clarification that Title IX's requirements covers any benefits, opportunities and treatment that a school provides related to NIL activities; (4) an explanation that compensation from a school for use of a student-athlete's NIL qualifies as athletic financial assistance; and (5) NIL agreements between student-athletes and third parties (including collectives).
Under Title IX, a school receiving federal financial assistance must provide equal athletic opportunity, regardless of sex. The OCR assesses equal opportunity in three main areas: (1) benefits, opportunities and treatment given to male and female athletic teams; (2) athletic financial assistance, including athletic scholarships, that a school awards to student-athletes; and (3) a school's accommodation of the athletic interests and abilities of its students.
The guidance makes clear that OCR will analyze NIL activities under the same lens that it does other activities within a school's athletic department. This means schools remain responsible for ensuring that they offer equal athletic opportunities in the NIL context regardless of sex, and that failure to do so may result in a Title IX violation. This includes opportunities related to publicity (providing equal coverage for women's teams and student-athletes on its website, in social media postings, and in publicity materials to attract and secure NIL opportunities) and support services (training sessions to student-athletes on brand-building and financing and assistance in obtaining and negotiating NIL agreements).
Most notable is OCR's guidance related to NIL agreements between schools and their student-athletes. OCR will deem compensation provided by a school for the use of a student-athlete's NIL a form of athletic financial assistance. As a result, OCR will analyze such NIL compensation under Title IX, and when a school provides such assistance, it must be made proportionately available to male and female athletes.
The guidance also notes that NIL compensation provided to student-athletes by third parties, including collectives, does not constitute athletic financial assistance and thus does not need to comply with the proportionality requirements of Title IX. The guidance, however, reminds schools that the fact that funds are provided by a private source does not relieve them of the responsibility to treat all their student-athletes in a nondiscriminatory manner and that it is possible for NIL agreements between student-athletes and third parties to create disparities that trigger a school's Title IX obligations.
The timing of OCR's guidance comes just two weeks before settlement objections are due in House v. NCAA in the U.S. District Court for the Northern District of California. The House settlement permits schools, starting July 1, 2025, to distribute at least $20.5 million to student-athletes annually. As schools deliberate on how to distribute that money to their student-athletes, OCR's guidance adds a wrinkle that schools must consider. And it is unclear how the Department of Education under the Trump administration will treat the guidance, which could be rescinded or changed.
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