UPDATE: U.S. Department of Education’s Office for Civil Rights Issues Title IX Guidance With Regard to NIL

By: Alyssa J. Rodriguez and Gregg Clifton

As the type of benefits provided to student-athletes continues to evolve in light of the NIL landscape, the U.S. Department of Education’s Office for Civil Rights (OCR) released guidance on January 16, 2025, to ensure equal opportunity based on sex in school athletic programs under Title IX of the Education Amendments of 1972 (Title IX) in the context of Name, Image, and Likeness (NIL). See Fact Sheet: Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) Activities. The expansion of NIL opportunities for student-athletes has created a heightened level of responsibility for schools to ensure these additional resources are provided equitably to all student-athletes. 

As a way of background, the OCR enforces Title IX’s requirements for academic institutions receiving federal financial assistance. It implements regulations to ensure equal athletic opportunities based on sex, including in the areas of publicity, support services, and other benefits, opportunities, and treatment. Title IX applies to all public and private schools, school districts, colleges, and universities that receive federal funds.

As the NIL framework continues to develop, it’s critical for schools to uphold their commitment to gender equality in athletics. As such, the OCR lays out the following key points to assist schools and athletes in navigating NIL-related compensation and benefits and ways to commit to providing equal resources to all athletes to avoid disparities.

Publicity

A school may violate Title IX if the school fails to provide equivalent benefits, opportunities, and treatment in the components of the school’s athletic program that relate to NIL activities. For starters, schools are required to provide equal publicity for both men’s and women’s sports teams across any promotional channels such as social media, mobile advertising, websites, podcasts, pamphlets, banner ads, mail, and other marketing materials utilized by the school. Ensuring equal exposure to all student-athletes is essential as it could ultimately impact the student-athlete’s ability to attract NIL collaborations with brands or companies. More specifically, disparities in exposure could impact an athlete’s ability to earn money through endorsements, sponsorships, appearances, social media promotions, or other activities. The OCR will assess the quantity and quality of the school’s promotional efforts for all athletes on a case-by-case basis to ensure compliance.

Benefits

In addition to providing equivalent publicity schools must ensure that the benefits provided by the school to assist the athlete in NIL collaborations are offered equitably. For example, some schools are offering training sessions to educate their athletes on brand management, brand building, reporting, negotiating, and ways to ensure compliance with relevant regulations. If schools are offering such support services, then under Title IV the school needs to ensure that there is equal access to these support services to the men’s and women’s teams.

Financial Assistance

To further ensure a school is providing equal athletic opportunities pursuant to Title IX, the OCR will consider the amount of athletic financial assistance made available by the school beyond scholarships or grants. In essence, any compensation provided by a school for the use of a student-athlete's NIL constitutes athletic financial assistance under Title IX as it includes financial assistance and other aid provided by the school to a student-athlete that is connected to a student’s athletic participation. When schools supply athletic financial assistance in forms other than scholarships or grants, including compensation for the use of a NIL, this financial assistance must be proportionately available to all athletes regardless of sex.

These equitable obligations apply regardless of whether student-athletes ultimately secure NIL benefits through their school directly or with third parties. The OCR makes clear it does not view compensation provided by a third party to a student-athlete for use of their NIL as constituting athletic financial assistance awarded by the school. However, the OCR has long recognized that a school has Title IX obligations when funding from private sources, including private donations and funds raised by booster clubs, creates disparities based on sex in a school’s athletic program or a program component. As such, NIL agreements between student-athletes and third parties must be carefully reviewed as it may create similar disparities and therefore trigger a school’s Title IX obligations.

Schools remain responsible for ensuring that they are offering equal athletic opportunities in their athletic programs, including in the NIL context to protect student-athletes from discrimination based on sex. A school may violate Title IX if the school fails to provide equivalent benefits, opportunities, and treatment in the components of the school’s athletic program that relate to NIL activities. As such, schools must be mindful of their Title IX obligations regardless of whether student-athletes ultimately secure NIL benefits through their school or with third parties. Given the significant variation in NIL agreements, compliance with Title IX will be evaluated on an individual case-by-case basis. In the interim, schools must educate all members of their marketing and management teams, including coaches, assistants, and athletic administrators on their obligation to ensure equality as the actions of these staff members can and will bind their schools and Title IX violations could potentially result in significant consequences - including but not limited to the potential loss of federal funding or legal action from student-athletes.