Twenty-seven days after the U.S. Department of Education (DOE) of the outgoing Biden administration issued long-awaited Title IX guidance relating to name, image, and likeness (NIL) payments by schools and third-party collectives and/or boosters, the DOE Office for Civil Rights (OCR) under the Trump administration officially rescinded the nine-page guidance document. We addressed and discussed the DOE’s guidance and its implications in a recent episode of Highway to NIL.

On January 17, just before the changeover from the Biden to Trump administration, the outgoing DOE OCR issued a guidance document clarifying how that office would evaluate equal opportunity in a school’s athletic program under Title IX when student-athletes began receiving NIL-related compensation following the anticipated House v. NCAA settlement approval.[1] Albeit in the final days of the Biden administration, this guidance marked the first time a governmental authority officially addressed how it intended to interpret Title IX in the context of NIL and student-athlete compensation. This guidance was particularly important given the NCAA and power conferences’ agreement (subject to final court-approval in House) to allow each school to begin making direct NIL payments to its student-athletes.

In the January guidance, the OCR offered two guiding principles concerning Title IX and NIL payments. First, that any compensation a school provided to a student-athlete for their NIL would be considered athletic assistance under Title IX and, thus, subject to Title IX’s proportionality requirements. And second, that even NIL compensation from private sources (i.e., third parties like collectives) may still trigger a school’s Title IX obligations.[2] In this sense, OCR compared a collective’s NIL payments to funding from private sources (e.g., booster clubs), which require Title IX compliance, and suggested that “NIL agreements between student-athletes and third parties will create similar disparities.”

But all of that guidance appears to be for naught. On February 12, the OCR for the Trump administration took the significant step of officially rescinding the Title IX guidance document. This rescission comes but one week after President Trump signed an executive order banning transgender women from competing on women’s and girls’ teams, and cited compliance with Title IX in doing so. In the press release announcing the rescission, the acting assistant secretary for civil rights explained the OCR’s reasoning in doing so:

The NIL guidance . . . is overly burdensome, profoundly unfair, and it goes well beyond what agency guidance is intended to achieve. 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. Enacted over 50 years ago, 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.

The timing of OCR’s rescission of its Title IX guidance is also notable in that it comes only a few days after the court’s deadline for interested parties to file objections to the House proposed settlement, and almost two months before the final settlement approval hearing scheduled for April 7. The current terms of the House settlement do not include Title IX guidance, ostensibly leaving questions about its application to the school themselves and, more likely, to federal courts around the U.S. who will almost certainly preside over what appears to be waves of almost inevitable litigation on the topic.

Notwithstanding the rescission of the guidance document, schools remain subject to Title IX’s requirements. Notably, the current OCR has not issued a replacement guidance document, so at present it remains unclear how this DOE plans to interpret Title IX application to NIL payments (either by collectives or by schools, if the House settlement is approved). But given the rescission, it seems very likely that this DOE does not view Title IX compliance the same way the outgoing Biden DOE did, and therefore may not enforce Title IX in the NIL context unless and until federal courts weigh in.

Troutman Pepper Locke will continue to monitor these developments. If you have further questions or seek advice, please reach out to the authors or any members of our NIL practice.

[1] In Re: College Athlete NIL Litigation, Case No. 4:20-cv-03919-CW (N.D. Cal 2024) (“the House Litigation”).

[2] United States Department of Education Office for Civil Rights, Fact Sheet: Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) Activities, January 2025.