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The U.S. Department of Education’s Office for Civil Rights released guidance Thursday that says colleges and universities must make financial assistance funds from name, image, and likeness (NIL)-related compensation “proportionately” available to female and male athletes.
The OCR enforces Title IX, which prohibits sex-based discrimination by schools and the programs that receive federal financial assistance. This means schools are required to provide equal opportunity to all student-athletes through access to benefits, opportunities, treatment, financial assistance and scholarship, and accommodations.
A school that awards athletic financial assistance — such as NIL-based funds — is required under Title IX to “provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics,” according to the nine-page memo.
The regulation does not require that male and female student-athletes are given the same number of awards or that awards are of the same value. Instead, the agency says it will assess “whether the total amount of athletic financial assistance made available by the school to men and women is substantially proportionate to the number of students of each sex participating in interscholastic or intercollegiate athletics at that school.”
A view of the NCAA logo on a basketball.
G Fiume/Getty Images
This includes taking into account how the school aids its student-athletes in getting NIL agreements through means like publicity or support services. However, the agency said it will take into account disparities brought by “nondiscriminatory” factors.
The agency states that it does not view NIL-related compensation provided by a third party as athletic financial assistance that would be under similar anti-discrimination requirements.
It is unclear how this will impact how schools navigate NIL compensation and sports representation. The vast majority of NIL profits favor football and men’s basketball, according to research from Opendorse, an NIL-focused research group.
An analysis by ESPN, which shares the parent company Disney with ABC News, found that most of the Power 5 athletic departments disproportionately posted men’s teams on social media more than women’s. This disparity stood strong despite women’s teams outnumbering men’s teams at almost all of the schools it analyzed.
The memo comes as the University of Oregon faces a lawsuit seeking class action certification and alleging Title IX violations over NILs, in which female student-athletes allege that the school failed to offer female student-athletes the same treatment or benefits that it gave to their male counterparts.
In the complaint, the athletes argued that male student-athletes received benefits such as: “state-of-the-art, personalized gear and equipment in seemingly endless quantities; preferential scheduling for training, practices, and games; chartered flights to away games; hotel stays before home games … round-the-clock access to trainers and medical professionals; nearly-unlimited publicity, including to advance their name, image, and likeness (NIL) opportunities and income; highly-paid coaches and assistant coaches with plush offices and special amenities, including their own hot tub; and myriad other forms of support that one can hardly imagine.”
The school denied the claim in a March 2024 response to the complaint, saying it wants all athletes “to flourish” and listed many steps it has taken to benefit female athletes, including noting that it has been “fundraising for an identified, centrally located, women’s beach volleyball facility located in the heart of the University of Oregon’s campus.”
The response read: “There is no evidence that the University of Oregon engaged in gender discrimination against any of its student-athletes, female or male, past or current. The specious comparison of women’s beach volleyball to football is not how a proper Title IX analysis works. This comparison disregards the clearly equitable treatment and benefits provided overall to male and female student-athletes across the University of Oregon’s athletic department.”
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