The final days of Joe Biden’s presidency came with a potential bombshell for college sports.
Biden’s Department of Education’s Office of Civil Rights released a nine-page fact sheet on Thursday saying Title IX, the gender equity statute that governs college sports, applies to NIL (name, image and likeness). The memo says that revenue-sharing payments would be considered “athletic financial assistance,” and must therefore comply with the Title IX statute, requiring schools to provide “proportionate” payments to men and women college athletes.
The decision has major implications for the House v. NCAA settlement that would allow schools to share revenues with players, which is expected to be finalized in April and begin in July. In the settlement’s first year—2025—schools will be capped at giving athletes $20 million, most of which is currently projected to go to football players.
With the fact sheet coming days before Donald Trump is set to retake office as president, is there anything the incoming administration can change about the decision?
Sen. Ted Cruz (R., Texas) released a statement, reviewed by Front Office Sports, condemning the ruling and its impact on college sports.
“This is a great idea if Biden’s intent is to kill both men’s and women’s college sports,” Cruz said. “Mandating so-called equal pay when not all sports generate equal revenue will force some colleges out of athletics altogether. Everyone wants to be paid like Michael Jordan, but that’s not the way the world works. I predict this scheme will die on Jan. 20.”
Arthur Bryant, an attorney who specializes in Title IX cases, disagrees with Cruz, and told FOS he doesn’t think the new administration can change the ruling as it pertains to the House settlement.
“I just think Sen. Cruz is wrong,” said Bryant, who works for Clarkson Law Firm, which specializes in public interest law. “Biden’s administration is not mandating equal pay. This is not equal pay. This is about sex discrimination by nonprofit educational institutions receiving federal funds. Title IX says the schools can’t discriminate to make money. The law is clear that colleges can’t discriminate against women to make money or avoid losing money. If sports leagues want to operate in paying men more money than women, they need to do so as pro or semi-pro sports leagues. Not as college athletics. College athletics is covered by Title IX and men’s football and basketball are not exempt from that. The Senate established that 53 years ago.”
Linda McMahon, Trump’s pick for secretary of education, could have a differing view than the department did this week, but the fact sheet is considered law until the next administration weighs in.
Bryant is currently representing more than two dozen female athletes from the University of Oregon in a lawsuit against the school over disproportionate NIL deals between male and female athletes. “It strengthens our lawsuit against the University of Oregon and shows the proposed House v. NCAA settlement can’t be approved.”
Bryant doesn’t think Trump’s incoming administration could drastically alter Thursday’s announcement because the court’s interpretation of the ruling would still be a factor. Trump’s transition team did not immediately respond to a request for comment.
“I think it’s unlikely that the Trump Administration would even try to correct it because I think it’s right [with the law],” Bryant said. “The Office of Civil Rights clearly said what the law is, what it has been in the past, and how it applies to these facts. That’s not going to change regardless and the courts are going to consider this.”
Trump’s previous administration made changes to Title IX, but he was out of office before the U.S. Supreme Court ruled in 2021 that college athletes could monetize their name, image, and likeness. Trump previously changed Title IX laws, giving people accused of sexual harassment more rights than they previously had under President Obama and less to the accuser, before Biden reversed course in 2024.
Trump is expected to undo some Title IX protections for LGBTQ+ students and staff at colleges.
On Friday, four female members of the House of Representatives, all Democrats, responded to Cruz and the Department of Education’s fact sheet.
“As the landscape of college sports evolves, one principle remains unchanged: Schools have a clear obligation under Title IX to provide equal opportunities for men and women alike,” said Rep. Lori Trahan, Congress’s only former Division I female athlete. “The Department of Education’s guidance reinforces that commitment and ensures that fairness and equal opportunity remain at the heart of college athletics.”
