Education Department Revokes Biden Guidance on College Athlete Pay

South Carolina women's basketball players work out before the NCAA Final Four in Minneapolis on April 2, 2022. Eric Gay/AP Photo

The U.S. Department of Education on Wednesday said it is rolling back a Biden-era guidance mandating colleges to proportionately compensate male and female athletes when it comes to money earned through name, image, and likeness (NIL) deals.

The guidance, issued in the final days of the Biden administration, outlined how Title IX—the federal law prohibiting sex-based discrimination in education—applies to student-athletes receiving NIL compensation.

Under Title IX, colleges must provide “substantially proportionate” financial aid, such as scholarships, to male and female athletes. For example, if 50 percent of a school’s athletes are women, then half of the school’s sports scholarship must go to women.

While NIL payments from private sources are not classified as financial aid, the Biden administration said if NIL earning ends up creating a disparity in an athletic program, the school would have to distribute the money in proportion to the numbers of men and women in that program.

“The fact that funds are provided by a private source does not relieve a school of its responsibility to treat all of its student-athletes in a nondiscriminatory manner,” it stated.

The guidance’s supporters, including members of the House Democratic Women’s Caucus, said it would ensure female athletes receive fair compensation. Its opponents, however, warned that it could result in fewer opportunities for both men and women, as some colleges might kill their sports programs altogether, given that sports don’t generate equal revenue.

Siding with the critics, The Trump administration said the guidance was based on a flawed interpretation of the federal law and was “profoundly unfair.”

“Without a credible legal justification, the Biden Administration claimed that NIL agreements between schools and student athletes are akin to financial aid and must, therefore, be proportionately distributed between male and female athletes under Title IX,” Craig Trainor, the Education Department’s acting assistant secretary for civil rights, said in a statement.

“Title IX says nothing about how revenue-generating athletics programs should allocate compensation among student athletes. The claim that Title IX forces schools and colleges to distribute student-athlete revenues proportionately based on gender equity considerations is sweeping and would require clear legal authority to support it. That does not exist.”

Meanwhile, the National Collegiate Athletic Association (NCAA) and major collegiate sports conferences have reached a landmark settlement to resolve an NIL-related anti-trust lawsuit. The agreement involves nearly $2.8 billion of back pay to former athletes who played from 2016 onward, in addition to establishing a revenue-sharing framework to share more than $20 million each year with athletes moving forward.

College athletes historically did not receive compensation beyond scholarships and payments for certain expenses. That changed in 2021, when a combination of NCAA rule changes and state laws allowed athletes to profit from the commercial use of their personal brands through endorsements, sponsorships, and school-specific collectives funded by fans and alumni.

According to a court document analyzing the terms of the settlement, schools from those conferences are planning to distribute the bulk of the payout to football and men’s basketball players—who generated the most revenue—leaving about 5 percent to women’s sports.

The federal judge overseeing the case is expected to rule on the settlement later this spring.