INTRODUCTION
For decades, the NCAA restricted what compensation and benefits intercollegiate student-athletes could receive based on the model of the amateur student-athlete. In the last five years, however, college athletics has experienced extraordinary challenges to historical norms, catalyzed by the Supreme Court’s unanimous decision in Alston v. NCAA. Following the Court’s holding that certain NCAA restrictions on educational benefits violated antitrust law, a host of changes occurred across intercollegiate athletics.
At the forefront of this new era are name, image, and likeness agreements, which were first offered to student-athletes by third parties, including collectives founded by boosters, alumni, and supporters that pooled donor money to create NIL opportunities. During the first few years of the post-Alston NIL era, third-party and collective NIL agreements, combined with liberalized transfer rules and the advent of the transfer portal, created an entirely new marketplace for athletic talent. Up to that point, the NCAA continued to prohibit NIL agreements or other compensation agreements directly between schools and student-athletes beyond the traditional scholarship model and limited education-related payments. That limitation did not last long.
On June 6, 2025, Judge Claudia Wilken granted final approval of the settlement of multiple antitrust cases brought against the NCAA and the major conferences, known as the House settlement. Under that settlement, Division I schools are now allowed to enter into NIL agreements directly with their student-athletes, subject to a schoolwide cap that began at $20.5 million for the 2025-26 year and increases thereafter based on athletic revenue growth. While the settlement created new economic opportunities for institutions and student-athletes, it also raised unresolved legal questions, including how Title IX applies.
This article addresses that question in two parts. First, it summarizes the law and regulations relevant to the application of Title IX to NIL agreements as well as interpretive guidance. Second, it argues that the Title IX regulations governing athletic scholarships do not apply to NIL agreements between schools and student-athletes.
I. TITLE IX AND ITS REGULATIONS
Title IX prohibits sex discrimination in federally funded educational institutions. Although the statute itself does not directly address intercollegiate athletics, the implementing regulations do. Two regulatory provisions are most relevant to NIL agreements between schools and student-athletes: 34 C.F.R. section 106.37(c) and 34 C.F.R. section 106.41(c).
A. 34 C.F.R. section 106.37(c)
Section 106.37 governs the provision of financial assistance to students and prohibits an institution from discriminating on the basis of sex in providing different amounts or types of such assistance, limiting eligibility, applying different criteria, or otherwise discriminating. The athletic subsection states that, to the extent a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in intercollegiate athletics.
The text therefore expressly applies to athletic scholarships or grants-in-aid. The key question is whether direct NIL agreements under the House settlement should be treated as athletic scholarships or grants-in-aid. If they are, then proportionality rules would apply. If not, section 106.37(c) does not govern them.
B. 34 C.F.R. section 106.41(c)
Section 106.41 addresses athletics more broadly and prohibits sex-based exclusion, denial of benefits, different treatment, or other discrimination in interscholastic, intercollegiate, club, or intramural athletics. It lists ten factors relevant to equal athletic opportunity, including equipment and supplies, scheduling, travel and per diem allowances, coaching and tutoring, compensation of coaches and tutors, facilities, medical services, housing and dining, and publicity.
The regulation also provides that unequal expenditures alone do not establish noncompliance, though failure to provide necessary funds may be considered in assessing equality of opportunity. For present purposes, the most relevant listed factors are publicity, recruitment-related resources, compensation of coaches, and support services.
II. COMMENTARY ON THE REGULATIONS
A. 1979 Policy Interpretation
The 1979 Policy Interpretation remains a central document for understanding how Title IX applies to intercollegiate athletics. It focuses on three areas: athletic financial assistance, other program benefits and opportunities, and meeting the interests and abilities of male and female students. For NIL purposes, the first two matter most.
On athletic financial assistance, the Policy Interpretation tracks the regulation and focuses on whether proportionately equal amounts of scholarship aid are provided between men’s and women’s programs, while allowing disparities explained by legitimate, nondiscriminatory factors. It gives examples such as in-state versus out-of-state cost differences and reasonable decisions regarding program development. Importantly, it does not define athletic scholarships and grants-in-aid in a way that naturally extends to NIL revenue-sharing agreements.
On other athletic benefits and opportunities, the Policy Interpretation explains that equal opportunity does not require identical expenditures. Differences may be justified by legitimate, nondiscriminatory, sport-specific factors. The discussion of coaches’ compensation is illustrative: Title IX does not require equal pay between coaches of different teams, and permissible differences may reflect the range and nature of duties, experience, number of participants, level of competition, and even market realities.
The discussion of publicity, recruitment, and support services is also significant. While publicity and recruitment can affect equal athletic opportunity, the Policy Interpretation was written in an era when direct NIL agreements between schools and athletes were not contemplated. It therefore offers no indication that a commercial NIL agreement itself should be treated as athletic financial assistance or as a listed benefit in the way scholarships, publicity budgets, or support services traditionally were.
B. Additional Guidance and the Biden Administration Fact Sheet
From 1979 until 2025, the Department of Education did not issue guidance directly addressing whether NIL agreements between schools and student-athletes were covered by Title IX. Most Title IX athletics guidance instead focused on participation opportunities or scholarship proportionality in the traditional scholarship setting.
That changed briefly in January 2025, when the Office for Civil Rights under the Biden administration released a fact sheet discussing NIL activities. The fact sheet concluded, first, that Title IX’s equivalent-benefits framework applies to publicity and support services that may affect an athlete’s ability to secure NIL opportunities. Second, it concluded that compensation provided by a school for the use of a student-athlete’s NIL constitutes athletic financial assistance subject to the proportionality requirement of section 106.37(c).
The fact sheet reasoned that athletic financial assistance includes any financial assistance and other aid provided by the school to a student-athlete that is connected to athletic participation, not merely scholarships or grants. In support, it cited the 1979 Policy Interpretation, a 2015 OCR letter regarding cost-of-attendance awards, and definitions used under the Equity in Athletics Disclosure Act. The article argues those sources do not support extending section 106.37(c) to NIL agreements, particularly because NIL agreements are not tied to the cost of attendance and because EADA reporting definitions do not establish Title IX compliance standards.
C. Trump Administration Rescission
In February 2025, OCR under the Trump administration rescinded the January 2025 fact sheet. In its press release, OCR stated that the earlier guidance lacked credible legal justification and emphasized that Title IX says nothing about how revenue-generating athletics programs should allocate compensation among student-athletes. That rescission underscores the present uncertainty and leaves the core legal question unresolved.
III. TITLE IX REGULATIONS GOVERNING ATHLETIC SCHOLARSHIPS AND BENEFITS SHOULD NOT APPLY TO NIL AGREEMENTS
After final approval of the House settlement, institutions can directly compensate student-athletes through NIL agreements, subject to the settlement cap. Objectors argued during settlement approval that the damages model and the injunctive relief structure violated Title IX, but the court noted that the settlement itself does not prohibit schools from complying with Title IX and does not require any release of future Title IX claims. As a result, schools may still face future litigation over how they distribute NIL funds.
The article contends that two likely arguments for Title IX application are unsound: first, that direct NIL agreements are athletic scholarships or grants-in-aid under section 106.37(c); and second, that NIL agreements are a covered benefit under section 106.41(c). Both arguments, according to the article, stretch the language of the regulations beyond their reasonable scope and ignore the commercial nature of NIL compensation.
A. NIL Agreements Are Not Financial Assistance of the Sort Covered by Section 106.37(c)
The general anti-discrimination provision in section 106.37 prohibits sex-based discrimination in financial assistance. But private Title IX claims generally require intentional sex discrimination, not mere disparate impact. Thus, if a school allocates NIL funds based on legitimate, nondiscriminatory reasons other than sex, such as a methodology tied to revenue generated by particular programs, that allocation may be defensible even if it produces unequal results across sports.
The article acknowledges that this issue may ultimately be tested in court, but argues that revenue-based methodologies at least align with the stated purpose and structure of the House settlement, which was designed to share athletic revenue with athletes whose NIL are used to generate it.
B. NIL Agreements Are Not Scholarships and Grants-in-Aid
The heart of the article is that NIL agreements are not scholarships and grants-in-aid. Athletic scholarships and grants-in-aid are traditionally understood as funds provided to cover or assist with the cost of education. NIL compensation is different in three key respects.
First, NIL agreements are compensatory and commercial in nature. The money is paid for the school’s use of the student-athlete’s NIL rights, not to cover tuition, room, board, books, or other educational expenses.
Second, NIL agreements are not capped by the student-athlete’s cost of attendance. Traditional financial aid is limited by educational cost constraints. NIL agreements are limited only by the schoolwide House cap, not by what it costs a particular athlete to attend school.
Third, the consideration differs. Athletic scholarships are provided in connection with athletics participation, ability, or achievement. NIL compensation, by contrast, is paid for a license to use the athlete’s name, image, and likeness and may not be used simply to compensate athletic participation or achievement. For that reason, NIL revenue sharing is a commercial transaction, not a scholarship.
The article further notes that this distinction is reflected in state NIL legislation and in proposed federal legislation, which commonly separate NIL compensation from grants, scholarships, and other forms of financial aid. That broader legal usage supports the conclusion that NIL revenue should not be folded into the Title IX scholarship regulation.
C. NIL Agreements Should Not Be Treated as a Covered Benefit Under Section 106.41(c)
The article also rejects the argument that NIL agreements should be treated as a benefit, treatment, or opportunity under section 106.41(c). The listed factors in that regulation concern conventional athletics opportunities and program support, such as equipment, scheduling, coaching, medical services, and publicity. NIL agreements, by contrast, are commercial transactions in which a school compensates an athlete for licensing NIL rights. They are not naturally analogous to the listed benefits.
Even if one tried to characterize NIL as a form of publicity or recruitment resource, the regulation still does not require identical spending. It looks to whether opportunities are equivalent and whether disparities are justified by legitimate, nondiscriminatory factors. The article argues that marketability, revenue generation, pressure, and responsibility have long justified compensation differences in analogous contexts such as coach pay. Similar market-based distinctions may justify differences in NIL agreements across programs and sports without making sex the basis for the distinction.
At the same time, the article recognizes that future litigation could test whether large NIL disparities affect publicity or recruitment opportunities for female athletes. The legally defensible approach, according to the article, is for schools to base NIL distribution methodologies on legitimate, nondiscriminatory factors tied to market and revenue realities rather than sex.
CONCLUSION
The article concludes that the Title IX regulations governing athletic scholarships and athletic benefits should not apply to NIL revenue sharing because NIL compensation is neither financial assistance in the scholarship sense nor a traditional athletics benefit as those terms are used in the regulations. Rather, NIL agreements are commercial transactions in which the school compensates the student-athlete for licensing the athlete’s NIL rights.
Because of the compensatory and commercial nature of NIL agreements, combined with the intent of the House settlement to share athletic revenue with the athletes who generate it, these agreements should fall outside the scope of the specific Title IX regulations governing athletic scholarships and traditional athletic benefits. In a post-Sandoval world, schools should ensure their NIL distribution methodologies are based on legitimate, nondiscriminatory reasons and continue monitoring legal developments, including appellate litigation related to the House settlement damages model and future Title IX chall
