There are convincing explanations that Title IX should apply to payments made in response to the NCAA’s pending settlement in order to overcome the House, Carter, and Hubbard competitive disputes.
But just because the Department of Education says Title IX applies, according to a point strip issued Thursday, doesn’t make it so. The DoE’s Office of Civil Rights published the letter in the waning days of a political leadership, and it is not a law, rules, view, ruling or another document that shapes the law.
Companies may, and do, promulgate laws, which have the force of law. Regulations are carried out through a complex rule-making process, which gives stakeholders and the general public the opportunity to comment on how an organization has interpreted a federal legislation. The Administrative Procedure Act’s requirements are described in detail, and they include public notice via release in the Federal Register, a time for comments and reviews, and the release of a final concept that can be challenged in court by competitors. In brief, there’s a long, public-facing approach with regulations and rules.

A fact sheet, in comparison, is an organization advice that offers recommendations and tips, it doesn’t represent the many channels of insight described above. Their report “does not have the force and effect of law,” as the NIL point sheet’s writers eloquently concede. Additionally, it is” never meant to be bound” beyond what is required by real rules.
From a legitimate vantagepoint, these limitations didn’t been overstated in value. To the extent the government, sports or universities rely on the NIL fact sheet in Title IX and related dispute, a judge need not adopt its conclusions or recommendations.
In other instances where firm fact linens are introduced as resources of power, federal courts have pointed out their restricted authoritativeness.
For instance, in a 2017 situation involving an organization point sheet, a federal prosecutor said,” these would be odd caveats to add to documents intended to be analytical guidance”. In a case from 2020, another federal judge plainly wrote the court “declines to give respect to the unpersuasive]Department of Education ] advice files… because they lack completeness, valid argument, and consistency”. Analogously, the NCAA’s use of a Department of Labor” Field Operations Handbook”, which is another kind of agency document not created through rulemaking, has been downplayed by a federal judge in Johnson v. NCAA as being owed only minimal deference.

Additionally, there have recently changed regulations governing the judicial deference of organizations, which may have an impact on how little the NIL fact sheet’s significance is diminished.
The Chevron doctrine, which for 40 years required courts to defer to agency interpretation when a statute is ambiguous and when the accompanying agency interpretation is reasonable or permissible, was overturned last year by the U.S. Supreme Court. Per the Court’s ruling in Loper Bright Enterprises v. Raimondo, judges may no longer defer to an agency interpretation because the statute is ambiguous. According to Chief Justice John Roberts, “agencies have no special competence in resolving statutory ambiguities.” Instead, he wrote,” courts do”.
There’s also the possibility President-elect Donald Trump’s administration, which will take over from President Joe Biden’s administration next Monday, will swiftly rescind the NIL fact sheet. Although Trump has chosen Linda McMahon to be the next DoE Secretary, her opinions may differ from those of current secretary Miguel Cardona. Trump’s DoE might also be able to replace the fact sheet with a viewpoint that is completely different. However, the same fundamental restriction would apply: a fact sheet for the Trump administration is not the law, just like a fact sheet for the Biden administration.
Its arguments may have legal application given the NIL fact sheet’s substance.
The House settlement contemplates colleges paying athletes for media rights, ticket sales, sponsorships and NIL. According to the NIL fact sheet, Title IX allows colleges to provide athletes with financial aid when they pay for their NIL. The fact sheet says “financial assistance” ought to be interpreted as “any financial assistance and other aid provided by the school to a student-athlete that is connected to a student’s athletic participation”.
This implies that NIL assistance “must be made proportionately available to male and female athletes,” as the fact sheet states. If Title IX is actually applied, those distributions would need to be significantly altered because the settlement is anticipated to cover male athletes ( mostly football players ), who are expected to make up between 75 % and 95 % of those distributions. Otherwise, they’d attract Title IX litigation.

On one hand, the use of an athlete’s NIL is” connected” to a college student participating in a sport. The athlete’s NIL is a function of being an athlete for the university. If the athlete were a non-athlete student, the school wouldn’t pay them for their NIL. The fact sheet’s analysis seems logical in that regard.
NIL payments, on the other hand, are supposed to reflect the athlete’s right to publicity, a concept under intellectual property law that forbids the use of someone else’s identity without their permission. From that lens, NIL is centered on the unique characteristics of a person—such as their name, image, likeness, voice, personality and other individualized features. NIL values range widely by athlete, too. Because of the fact sheet’s complexity, how it depicts NIL is different from how an athlete is compensated through a tuition reimbursement, housing, support services, or another metric that is based on NCAA regulations or university policies, complicates how that view is presented.
There are also competing arguments over Title XI’s ability to reimburse athletes for television-related revenue, which the House litigation has dubbed “broadcast NIL” or” BNIL” ( broadcast NIL ). They are ( clearly ) related to an athlete who is a sport, according to the fact sheet, and are therefore subject to Title IX. If not for being a player, the athlete wouldn’t be on a televised broadcast of a college game.
However, the idea of massive TV deals for college sports was hardly ever on anyone’s mind when Title IX became law in 1972. It might be portrayed as overreaching to include broadcasting rights in Title IX. Also, to the extent NIL is about private media companies ‘ broadcasts of individual athletes and their unique qualities, there’s further room for debate.
The parties to the agreement might consider changing the terms of the agreement so that instead of the college, which is subject to Title IX, the paying player would be the conference or the NCAA, neither of which courts have held that is governed by Title IX. However, significant adjustments would be required for that kind of tectonic change. U. S. District Judge Claudia Wilken would need to approve them–and quickly, too, if the settlement is going to go into effect this year as planned.

Additionally, it’s possible that Trump and Congress could change Title IX to make it clear that NIL and related intellectual property are exempt from it. That is possible, but given the struggles both parties have faced in trying to advance NCAA-related federal legislation, it doesn’t seem likely. To avoid compliance uncertainties or unfavorable effects, Title IX would need to be amended further carefully.
NIL collectives might also play a significant role in a world where Title IX governs the House settlement. While a college might pay football players a lot more in terms of NIL, college-aligned NIL collectives, which are at least technically distinct from a school, could pay them much more. That type of end-around practice, however, could beget Title IX litigation, especially if it appears the school is given direction behind-the-scenes.
One thing is for sure: the DoE’s NIL fact sheet will lead to a lot more questions than answers.