Erin Buzuvis*
Introduction
The June 2025 approval of the House v. National Collegiate Athletic Association[1] settlement represents the most transformative moment in the history of the NCAA, effectively ending the century-old model of amateurism in favor of a professionalized collegiate sports framework.[2] By establishing a multibillion-dollar damages fund and a first-of-its-kind revenue-sharing model, the settlement attempts to rectify past antitrust violations while providing a roadmap for future athlete compensation.[3] However, the settlement’s reliance on and endorsement of market-value metrics[4] ensure that college athletes’ compensation disproportionately favors men.
This system could be challenged under Title IX in two ways. First, the settlement’s failure to apply Title IX standards to the distribution of damages to class members makes for a compelling appeal to the Ninth Circuit. Second, the settlement’s permission for colleges to share revenue with athletes based on market value instead of gender equity will lead to Title IX challenges, as will their potential use of revenue sharing to justify underfunding women’s sports.
- Settlement Background
In the 2021 landmark case, the Supreme Court held in NCAA v. Alston[5] that the NCAA violated antitrust law by restricting the “education-related benefits” that member institutions could provide to athletes. At the time, the NCAA capped the value of athletic scholarships at the full cost of attendance, restricting universities from offering incentives like post-eligibility scholarships, internship stipends, and other awards related to students’ education.[6] Although Alston focused on education-related payments, the decision prompted several class-action lawsuits in which athletes argued that Alston prohibited NCAA restrictions on direct compensation as well.
In 2025, the NCAA settled litigation with current and former athletes who challenged NCAA policies affecting athlete compensation as anticompetitive restraints on trade.[7] The litigation targeted various rules at the heart of the NCAA’s former amateurism policy, such as those prohibiting athletes from monetizing their Name, Image, and Likeness (“NIL”); prohibiting athletes from sharing in their universities’ broadcast revenues; and limiting the nature and amount of university scholarship and related grant-in-aid payments.[8] Given the NCAA’s recent loss in Alston, the large number of plaintiffs in the case,[9] and the high value of their claims for both past and future damages,[10] any settlement acceptable to both sides almost guaranteed a massive remedy and transformative changes in the NCAA’s policies about athlete compensation.[11] The ultimate June 2025 settlement did exactly that.[12]
II. Composition of the Settlement
The settlement has three relevant components: the establishment of a damages fund, a revenue-sharing system between universities and athletes, and the College Sports Commission.
- Damages Fund
First, the settlement establishes a $2.6 billion damages fund to be paid over ten years by the NCAA and—to a lesser extent—various Division I conferences and members of the settlement class.[13] The 184,000 athletes at Power 5 conference schools who were eligible to compete between 2016 and 2024 will each reap a share of these damages.[14]
The damages fund allocates $600 million to compensate athletes who were denied direct compensation for their athletic services. Specifically, the distribution formula for this part of the fund allocates 75% to football players, 15% to men’s basketball players, and 5% to women’s basketball players.[15] These athletes are the most likely to have received compensation for their athletic services in the absence of NCAA restrictions.[16] Individual awards for these players are adjusted according to metrics like seniority, recruiting ratings, and performance.[17] However, the average award for football and men’s basketball players is expected to be $40,000, compared to $14,000 for the average women’s basketball player.[18] Athletes competing in other sports have access to the outstanding 5% of the $600 million, which will be allocated based on specific, rather than formulaic, claims.[19]
The remaining $2 million of the damages fund will compensate athletes who could not monetize their NIL due to NCAA policies.[20] Of this amount, $1.815 billion will be allocated to those who lost opportunities in broadcast-related NIL compensation; $71.5 million for video-game-related NIL compensation; and $89.5 million for other third-party NIL compensation.[21] These damages also heavily favor football and men’s basketball players. For example, only football and men’s basketball players are eligible for video game NIL compensation,[22] and they will earn a significantly higher share of broadcast and other third-party NIL damages.[23] In the broadcast NIL category, football and men’s basketball players will receive an average award of $90,000, but some will earn as much as $280,000.[24] In contrast, women’s basketball players will receive an average payment of $23,000, with some earning up to $52,000.[25]
b. Revenue-sharing system
Second, for ten years starting in the 2025–26 academic year, the settlement permits Division I institutions to share up to 22% of their revenue from media rights, ticket sales, and sponsorships with athletes—an estimated $20 million per school in 2025–26.[26] Importantly, only direct payments from institutions to their athletes count toward the 22% cap.[27] Payments athletes may receive from third parties, such as NIL collectives, are not capped.[28] Institutions may pay athletes directly based on individually bargained terms and conditions because the settlement permits them to share revenue by any formula they wish.[29] Revenue distribution plans that have been publicly shared predictably favor distribution to athletes in the sports that generate the most revenue: football and men’s basketball.[30]
c. College Sports Commission
The settlement also created a new independent entity—the College Sports Commission—to enforce the settlement and oversee third-party NIL deals.[31] The rules differentiate between NIL payments offered by entities associated with universities—like booster collectives (athletic departments, donors, and boosters that pool money to offer NIL deals to athletes and prospective recruits) and individual donors—and those that are not, such as apparel, sports drink, and other companies offering brand endorsement deals.[32] Most notably, university-associated entities are permitted to pay athletes for the rights to use their NIL so long as there is a “valid business purpose,” like promoting a business at fair market rates[33]—a restriction to which unassociated entities are not subject.[34] The Commission assesses fair market value by using data reported by athletes and schools themselves, which are required to report NIL transactions worth $600 or more.[35]
III. Application of Title IX to Settlement
Judge Claudia Wilken, the federal district judge presiding over the cases consolidated in House, dismissed objections to the settlement based on gender equity.[36] But three now-consolidated appeals on behalf of various groups of women athletes are challenging Wilken’s settlement approval under Ti.[37] The appeals primarily target the settlement’s damages provisions,[38] but also discuss the revenue-sharing system.[39] Notably, women settlement class members are required to release Title IX claims to recover any damages.[40]
- Damages Provisions
This article argues, consistent with the appellants, that the settlement agreement’s damages provisions violate Title IX insofar as they tie class members’ compensation to their market value.
Title IX prohibits sex discrimination by educational institutions receiving federal funds.[41] Long-standing regulations and administrative guidance implementing the statute permit schools to offer separate athletic programs to men and women, so long as the treatment of both programs is equitable overall.[42] The regulations detail requirements for equitable treatment in three major areas: the quantity of athletic opportunities available to each sex; the resources and benefits available to athletes of each sex (so-called “equal treatment” factors); and the distribution of financial aid.[43] The regulations do not expressly mention direct payments for athletic services or NIL, understandably so, given the recent legal approval of these payments. Yet, whether viewed as an aspect of the equal treatment factors or an extension of financial aid provision, Title IX, properly applied to athletic compensation, requires that direct payments from universities to athletes are gender equitable.[44]
i. Title IX’s Equal Treatment Requirement
Title IX regulations permit educational institutions that receive federal funds to have separate athletic opportunities for each sex so long as they provide “equal athletic opportunity for members of both sexes.”[45] Equal opportunity is further clarified in the regulations to have both a quantitative and a qualitative component. In terms of quantity, participation opportunities must be equitably allocated. A 1979 Policy Interpretation (the “Policy Interpretation”) authored by the Office for Civil Rights, the office within the Department of Education that enforces Title IX, provides a three-part test for determining whether the athletic opportunities afforded by an institution are gender-equitable.[46] An institution may demonstrate compliance by showing that athletic opportunities are distributed proportionately to the gender breakdown of the student body.[47] Otherwise, to comply, the university’s athletic opportunities must reflect continuous expansion of opportunities or “full and effective accommodation” of the interests and abilities of the underrepresented sex.[48]
The other aspect of the regulatory requirement for equal athletic opportunity pertains to the quality of the athletic opportunities offered to each sex, referred to here as the “equal treatment” requirement. Title IX regulations enumerate a laundry list of benefits—such as coaching, facilities, and equipment—provided to students by virtue of their athletic participation that are considered aspects of the equal treatment mandate.[49] One of the expressly enumerated benefits that directly relates to the settlement is publicity.[50] A university’s payment to athletes for the rights to use their NIL to promote the team or school are obvious examples of publicity, meaning that gender discrepancies in this practice should violate Title IX. Another recognized benefit is recruitment.[51] Direct compensation to students for their athletic services is a recruitment-related payment. Universities solely pay students to play sports to attract and retain them.[52] Just as gender disparity in any other part of recruitment violates equal treatment, so too should gender disparity in the payment universities offer prospective athletes to recruit them.
Title IX’s statutory history supports this analysis: Congress expressly rejected efforts to exempt revenue-producing intercollegiate sports from Title IX.[53] This reasoning is also consistent with the equality framework that Title IX regulations adopt for athletics, which is an outlier among civil rights laws. In the employment context, for example, nondiscrimination means ensuring that an employee’s protected characteristics, like race or gender, legally cannot be considered in employment decisions.[54] But Title IX’s application to athletics does not rely on formal equality,[55] as evidenced by its approval of separate men’s and women’s sports.[56] Regulators instead adopted a substantive equality model.[57] As a result, Title IX’s application to athletics is distinguishable from civil rights laws that govern employment discrimination, which permit consideration of factors like market rate.[58]
Collectively, it is well-settled that, under Title IX, schools cannot favor men’s sports even if they have greater capacity to generate revenue[59] or attract more generous donors.[60] It makes sense that the law has not evolved to let universities escape Title IX by using athletes’ market value as a defense to sex discrimination because they share responsibility for the disparity in market value of women’s sports via their failures to equitably invest in and promote women’s sports.[61]
ii. Title IX’s Proportionate Financial Aid Requirement
In addition to the regulations mandating equal treatment between men’s and women’s athletic programs, a separate regulation governing financial aid requires schools to award any direct athlete compensation in a gender-equitable manner.[62] Specifically, the total aid awarded to athletes of each sex must be proportionate to the total number of students-athletes of each sex.[63] While athletic scholarships are easily recognized as athletic financial aid covered by this aspect of Title IX,[64] regulatory interpretations have made clear that “non-grant assistance,” such as work-related aid, must be proportionately awarded to both sexes as well.[65] Thus, even though compensation for athletic services or NIL is different in nature from traditional athletic scholarships, such compensation is clearly covered by this regulation.[66]
iii. Application of Title IX’s Equitable and Proportionate Treatment and Aid Requirements to Settlement Damages
Given these regulations, Title IX requires universities to directly pay students for NIL and athletic services in a gender-equitable manner. The settlement damages aim to restore class members to the financial situation they would have been in without antitrust law violations.[67] If universities had always been allowed to pay athletes, Title IX would have required that they do so equitably.[68] Therefore, it stands to reason that the damages should be allocated as such.
Yet, the settlement damages formula awards damages based on athletes’ market value.[69] As a result, women athletes will receive less than 10% of the damages fund despite constituting almost half the plaintiff class.[70] This practice violates Title IX’s demand for equal and proportionate treatment and financial aid in college sports among the sexes. In response to appeals of the settlement, the Ninth Circuit should confirm Title IX’s application to direct compensation to athletes from universities and the settlement’s damages structure itself.
The district court and the House defendants take a dismissive stance on the role that Title IX should play in a case that was not pursued to remedy civil rights violations.[71] The court rejected the testimony of a Title IX expert, did not request a briefing on Title IX issues, and only cursorily mentioned Title IX in the order approving the settlement.[72] But a lawsuit’s antitrust focus does not immunize its remedy from Title IX. In fact, Justice Brett Kavanaugh’s concurrence in Alston recognized that Title IX is a consideration in addressing the legality of the NCAA’s compensation rules.[73]
Specifically, in her order approving the settlement agreement, Wilkins rejected Title IX objections to the settlement’s allocation of damages, noting that the objectors cited “no authority” for the proposition that Title IX applies to the distribution of damages by a claims administrator.[74] Indeed, Title IX only applies to educational institutions that receive federal funds.[75] But this textual focus misses the point. The distribution formula should abide by Title IX because of its purpose: Paying athletes what they would have received from universities in the past, absent antitrust violations. Universities are educational institutions that receive federal funds, so Title IX should apply.[76]
Opponents to Title IX’s application to the settlement argue that the athletic conference defendants are funding the damages, rather than universities.[77] Conferences are not directly regulated by Title IX.[78] However, the law is clear that entities acting on the delegated authority of institutions subject to Title IX are also bound by Title IX.[79] The delegated authority principal works in one of two ways to confirm Title IX’s application to the settlement’s damages provisions, depending on the reasoning behind the conferences funding the damages pool. One explanation is that maybe it would have been the case that conferences would have made payments to athletes instead of the universities in the hypothetical, pre-Alston world of no antitrust violations.[80] But if this were the case, surely those conferences would have been paying athletes with the delegated authority of the universities themselves. After all, in the recruiting context, universities are in a competitive position relative to the other members of the conference. It would have made little sense for decisions of athlete compensation to be left solely to the conferences. Alternatively, in the hypothetical absence of antitrust violations, institutions could have paid athletes NIL and direct compensation by funneling this money through conferences.[81] In both scenarios, conferences would have acted on behalf of delegated authority from universities, subjecting them to Title IX. Similarly, then, the use of such intermediaries in the settlement structure does not put the settlement damages outside Title IX’s scope.[82]
b. Revenue-Sharing Provisions
The district court’s order approving the settlement also—albeit minimally—addressed Title IX objections to the revenue-sharing provisions: specifically, the absence of any requirement that revenue sharing comply with Title IX.[83] The court reasoned that nothing in the settlement requires schools to violate Title IX because they are “free to allocate benefits and compensation in a manner that complies with Title IX.”[84] Additionally, it confirmed the right of class members to challenge the distribution of those benefits and compensation under Title IX.[85] Hence, the Title IX concerns raised by the revenue-sharing provisions of the settlement will likely require future litigation to ensure that women receive a proportionate share of the revenue pool.[86]
- Revenue Sharing Permitted by the Settlement Must Comply with Title IX
The settlement’s revenue-sharing provisions permit member institutions to employ the same market-based formula for the distribution of NIL payments and compensation for athletic services.[87] Therefore, it is not surprising that most of the funds allocated under the settlement’s revenue-sharing provision have been granted to men.[88] As plaintiffs emerge to challenge the gender inequity in emerging revenue-sharing agreements, courts should confirm that Title IX applies to all direct payments—including via revenue-sharing systems—made by universities to their athletes, either as equal treatment or financial aid.[89] Under either approach, revenue should be shared proportionately to the percentage of athletes of each gender, rather than bestowing more money on athletes in the most popular and revenue-generating men’s sports.[90]
On the other hand, the settlement does not cap or oversee NIL payments offered by entities not affiliated with universities[91] because these third parties fall outside Title IX’s scope.[92] However, if third parties are affiliated with universities, their NIL deals are subject to Title IX under the delegated authority concept.[93] If the College Sports Commission’s oversight of these deals and universities is contested, the classification of third-party NIL deals could be litigated under Title IX, since any money that universities avoided counting under its revenue-sharing cap should have been subject to a gender-equitable distribution.[94]
ii. Downsizing Teams: A Downstream Effect of Revenue-Sharing Subject to Title IX
Title IX litigation will challenge and correct any unlawful downsizing of women’s sports programs in efforts to maximize the payout available for revenue-generating athletes. The extent to which the House settlement has caused a trend of diminishing athletic opportunities in the post-amateurism era is unclear, but it was a factor in at least one known case so far.[95]
Stephen F. Austin State University (“SFA”) announced in May 2025 that it would eliminate three women’s teams and one men’s team in part due to the anticipated financial impact of NIL-related revenue-sharing.[96] Women athletes challenged the elimination of women’s teams because the university failed to provide proportionate opportunities to women under Title IX.[97] The U.S. District Court for the Eastern District of Texas agreed.[98] At SFA, women constitute 63% of the student body but only received 45.6% of athletic opportunities before these changes, failing to meet the Policy Interpretation’s primary requirement of proportionate athletic opportunities among the sexes.[99] Additionally, cutting women’s teams precludes a showing of continuous program expansion for the underrepresented sex; it also indicates that a given university is not fully accommodating interested and able women athletes’ interests and abilities.[100] Based on this analysis, the court found for the plaintiffs and granted their request for an emergency injunction to sustain the teams.[101] On appeal, the Fifth Circuit vacated the injunction due to vagueness.[102] However, it did not disturb the district court’s analysis of the merits of the case.[103]
Like SFA, most colleges and universities do not satisfy the proportionality requirement.[104] The only way these schools can eliminate a women’s team in compliance with Title IX is to simultaneously cut at least as many men’s opportunities so that the remaining programs are proportional to the student body.[105] This high bar means that most universities that cut women’s teams to fund NIL and direct athlete compensation in the wake of the House settlement will face an uphill Title IX battle.[106] Athletes should use Title IX as a way to protect their athletic opportunities post-Alston and the House settlement.
Conclusion
The House settlement has successfully dismantled the amateurism model in college sports and replaced it with a system that remains legally unsettled. By prioritizing market-based formulas that award 90% of damages to men, the settlement has provoked appeals to address its damages provisions and promises future challenges to address foreseeable Title IX violations. College athletics departments must reckon with the primacy of civil rights principles over market value in both damages and revenue-sharing payouts. Particularly for revenue-sharing to be sustainable, institutions must ensure that the professionalization of college sports does not come at the expense of gender equity.
*Associate Dean for Academic Affairs and Professor of Law, Western New England School of Law; J.D., Cornell Law School
[1] In re Coll. Athlete NIL Litig., No. 4:20-cv-03919-CW (N.D. Cal.) (consolidating House v. NCAA, Cases No. 4:20-cv-03919 and 4:20-cv-04527 (N.D. Cal.); Hubbard v. NCAA, Case No. 4:23-cv-01593 (N.D. Cal.); and Carter v. NCAA, Case No. 4:23-cv-06325 (N.D. Cal.)).
[2] As explained infra, House v. NCAA and its companion cases were filed in the wake of Alston v. NCAA, 594 U.S. 69, 107 (2021), which held that the NCAA’s rules restricting member institutions to only granting educational benefits to athletes violated antitrust law.
[3] Fourth Amended Stipulation and Settlement Agreement at 17, In re College Athlete NIL Litig., No. 4:20-cv-03919-CW (N.D. Cal. filed May 7, 2025), ECF No. 958-1 [hereinafter House Settlement Agreement] (affirming settlement’s application to both past damages and injunctive relief).
[4] In re Coll. Athlete NIL Litig., 803 F. Supp. 3d 959, 992 (N.D. Cal. 2025), appeal dismissed, No. 25-4185, 2025 WL 2831020 (9th Cir. July 29, 2025), objections overruled, No. 20-CV-03919 CW, 2025 WL 3501920 (N.D. Cal. Nov. 13, 2025) (describing distribution formulas for damages fund based on what market would have awarded to athletes if they could have monetized their athletic services and NIL during period covered by settlement agreement).
[5] 594 U.S. 69 (2021).
[6] Id. at 107.
[7] Coll. Athlete NIL Litig., 803 F. Supp. 3d at 969.
[8] See In re Coll. Athlete NIL Litig., Consolidated Amended Complaint ¶¶ 5, 22, 101–02, No. 4:20-cv-03919-CW (N.D. Cal. July 26, 2021); House v. Nat’l Coll. Athletic Ass’n, 545 F. Supp. 3d 804, 809–10 (N.D. Cal. 2021).
[9] In the cases consolidated in House, 390,000 current and former athletes were plaintiffs. See Becky Sullivan, With $2.7 Billion Settlement Approved, College Sports’ Big Money Era Is Officially Here, NPR (June 6, 2025, at 23:29 ET), https://www.npr.org/2025/06/06/nx-s1-5426123/ncaa-settlement-deal-athlete-compensation-judge [https://perma.cc/J34S-8KJB].
[10] John Wright, A New Era: Understanding the Historic NCAA v. House Settlement, Ave Maria Sch. of L. (Jan. 28, 2025), https://www.avemarialaw.edu/house-settlement/#edn14 [https://perma.cc/C7A4-WGNU] (“Had House gone to trial, the NCAA could have been liable for up to $20 billion in damages because U.S. antitrust laws grant plaintiffs ‘treble damages,’ which triples the amount awarded to plaintiffs.”).
[11] In re Coll. Athlete NIL Litig., 803 F. Supp. 3d 959, 970 (N.D. Cal. 2025) (noting that approval of settlement agreement “would permit levels and types of student-athlete compensation that have never been permitted in the history of college sports, while also very generously compensating Division I student-athletes who suffered past harms.”).
[12] Id.
[13] Id. at 969; Christopher P. Conniff et al., House v. NCAA Settlement Approved: Era of Direct Payments to College Athletes Begins, Ropes & Gray LLP (June 20, 2025), https://www.ropesgray.com/en/insights/alerts/2025/06/house-v-ncaa-settlement-approved-era-of-direct-payments-to-college-athletes-begins [ ].
[14] Coll. Athlete NIL Litig., 803 F. Supp. 3d at 969; Conniff et al., supra note 13.
[15] Coll. Athlete NIL Litig., 803 F. Supp. 3d at 974.
[16] Id.
[17] Id.
[18] Everything You Need to Know About the House v. NCAA Settlement, Athletes.org, https://www.athletes.org/house-v-ncaa/#stay-informed [https://perma.cc/S2A7-N2DE] [hereinafter Back Damages Payments].
[19] In re Coll. Athlete NIL Litig., 803 F. Supp. 3d 959, 974 (N.D. Cal. 2025).
[20] Id. at 969; Back Damages Payments, supra note 18.
[21] Coll. Athlete NIL Litig., 803 F. Supp. 3d at 974; Back Damages Payments, supra note 18.
[22] Hagens Berman, NCAA Student-Athlete Name, Image and Likeness Settlement Payout Estimates, https://www.hbsslaw.com/ncaa-student-athlete-name-image-and-likeness/settlement-payout-estimates (last visited June 24, 2026).
[23] Id.
[24] Back Damages Payments, supra note 18.
[25] Id.
[26] Coll. Athlete NIL Litig., 803 F. Supp. 3d at 975.
[27] Revenue Sharing, Coll. Sports Comm’n, https://www.collegesportscommission.org/revenue-sharing/ [https://perma.cc/8AZP-ACLA].
[28] Id.
[29] House Settlement Agreement, supra note 3, at 65–66.
[30] Don Williams, Kirby Hocutt Details Texas Tech Athletics Plan for Revenue Sharing, Scholarships, Lubbock Avalanche-J. (Dec. 16, 2024, at 05:13 ET), https://www.lubbockonline.com/story/sports/college/red-raiders/2024/12/16/texas-tech-football-kirby-hocutt-details-plan-for-revenue-sharing-era/76962416007/ [https://perma.cc/E7DV-XFU5]; Jon Sauber, Penn State Releases NIL, Revenue Sharing Spending, Centre Daily Times (Feb. 11, 2026, at 15:19 ET),
https://www.centredaily.com/sports/college/penn-state-university/psu-football/article314664010.html [https://perma.cc/U8DS-WP8H].
[31] House Settlement Agreement, supra note 3, at 60; Glossary, Coll. Sports Comm’n https://www.collegesportscommission.org/glossary [https://perma.cc/6QKG-XELE] [hereinafter Glossary] (referring to “Designated Reporting Entity” later named College Sports Commission).
[32] Conniff et al., supra note 13.
[33] In re Coll. Athlete NIL Litig., 803 F. Supp. 3d 959, 976 (N.D. Cal. 2025); House Settlement Agreement, supra note 3, at 73.
[34] Conniff et al., supra note 13.
[35] Glossary, supra note 31.
[36] Coll. Athlete NIL Litig., 803 F. Supp. 3d at 959.
[37] Brief for Objector-Appellants at 3, House v. NCAA, No. 25-4218 (9th Cir. 2025) (opening appellate brief of Menke objectors), https://drive.google.com/file/d/149JBu_AcvAtlWZlUFYeUmmGSR18EOgXN/view [https://perma.cc/5J37-EL8T ] [hereinafter Menke Appeal]; Brief of Objector-Appellants at 1–3, House v. NCAA, No. 25-3835 (9th Cir. 2025) (opening appellate brief of North objectors), https://drive.google.com/file/d/1V1PrR7aNtqx0Ej2ouLAHJHiueANu1xFU/view [https://perma.cc/W6ED-KHG2] [hereinafter North Appeal]; Brief for Objector-Appellants at 3, House v. NCAA, No. 25-3722 (9th Cir. 2025) (opening brief of Breeding objectors), https://drive.google.com/file/d/1jyfPNLEs1ENq-avQVQTL2ISOj2W-AnVI/view [http://perma.cc/8FC9-3U2B] [hereinafter Breeding Appeal].
[38] Lindsay Schnell & Ralph D. Russo, Appeal Alleging House v. NCAA Settlement “Ignored” Title IX Will Pause Back Pay Claims, N.Y. Times (June 11, 2025), https://www.nytimes.com/athletic/6419483/2025/06/11/house-ncaa-settlement-appeal-title-ix/ [https://perma.cc/C3LM-9WMR].
[39] North Appeal, supra note 37, at 43.
[40] Menke Appeal, supra note 37, at 13.
[41] 20 U.S.C. § 1681 (2022).
[42] 34 C.F.R. §§ 106.41(b)–(c) (2026).
[43] 34 C.F.R. §§ 106.37, 106.41 (2026).
[44] See, e.g., Erin Buzuvis, Title IX and Athlete Compensation in the Postamateurism Era, 93 Fordham L. Rev. 1579, 1594–95 (2025).
[45] 34 C.F.R. §§ 106.41(c) (2026).
[46] Title IX of the Education Amendments of 1972; A Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979) [hereinafter 1979 Policy Interpretation].
[47] Id.
[48] Id.
[49] 34 C.F.R. §§ 106.41(c)(2)–(10) (2026).
[50] 34 C.F.R. §§ 106.41(c)(10) (2026).
[51] Recruitment is not enumerated on the laundry list. But the list is explicitly non-exhaustive and is introduced by the phrase “among other factors.” 34 C.F.R. §§ 106.41(c) (2026). OCR has consistently regarded recruitment as an “other factor” and has included it in its analysis of whether men’s and women’s athletics programs are receiving equal treatment. Valerie M. Bonnette & Lamar Daniel, Off. for C.R. Title IX Investigators Manual 97 (1990), https://eric.ed.gov/?id=ED400763 [http://perma.cc/SLD4-BEZ3].
[52] Tan Boston, The NIL Glass Ceiling, 57 U. Rich. L. Rev. 1107, 1135–36 (2023); Letter from Andrew Zimbalist, President, The Drake Grp., to Susan E. Rice, Dir., Domestic Pol’y Council et al. (Jan. 10, 2023), https://www.thedrakegroup.org/wp-content/uploads/2023/01/FINAL-Drake-Letter-to-OCR-1-10-23-1.pdf [https://perma.cc/4PUR-RXCT] (documenting university involvement in booster collectives and gender disparities in their NIL payments to athletes).
[53] See Buzuvis, supra note 44, at 1581-82.; 120 Cong. Rec. 15322–23 (1974).
[54] 42 U.S.C. 2000e-2(a) (1991).
[55] Buzuvis, supra note 44, at 1565.
[56] Id. at 1582–83.
[57] Id.
[58] Id. at 1565.
[59] Ollier v. Sweetwater Union High Sch. Dist., 858 F. Supp. 2d 1093, 1112 (S.D. Cal. 2012) (“Title IX requires that revenues from all sources be used to provide equitable treatment and benefits to both girls and boys. A source of revenue may not justify the unequal treatment of female athletes.”); 1979 Policy Interpretation, supra note 46, at 71,419 (“[A]n institution of higher education must comply with the prohibition against sex discrimination imposed by that title and its implementing regulations in the administration of any revenue producing intercollegiate athletic activity.”) (quoting Opinion of General Counsel, Department of Health, Education, and Welfare, 43 Fed. Reg. 58,075 (Dec. 13, 1978)).
[60] Daniels v. Sch. Bd. of Brevard Cnty., Fla., 985 F. Supp. 1458, 1462 (M.D. Fla. 1997) (rejecting school board’s argument that it “cannot be held responsible if the fund-raising activities of one booster club are more successful than those of another” because it is school board’s “responsibility to ensure equal athletic opportunities, in accordance with Title IX”); Letter from John E. Palomino, Reg’l C.R. Dir. to Karen Gilyard, Esq., Atkinson, Andelson, Loya, Ruud & Romo (Feb. 7, 1995), https://perma.cc/2NJP-NPSA (reasoning that “private funds . . . , although neutral in principle, are likely to be subject to the same historical patterns that Title IX was enacted to address,” and for this reason, the equal treatment mandate “could be routinely undermined” if third-party sexism provided a defense); see also Bonnette & Daniel, supra note 51, at 5; Charlotte Franklin, Title IX Administers a Booster Shot: The Effect of Private Donations on Title IX, 16 Nw. J.L & Soc. Pol’y 145, 159–60 (2021); Erin Buzuvis & Newhall, Equality Beyond the Three-Part Test: Exploring and Explaining the Invisibility of Title IX’s Equal Treatment Requirement, 22 Marq. Sports L. Rev. 427, 442 (2012); Patricia Cervenka, Free Shoes for Primary and Secondary Schools: Playing by the Rules of Title IX, 17 Marq. Sports L. Rev 285, 292 (2007).
[61] Deborah Brake, The Struggle for Sex Equality in Sport and the Theory Behind Title IX, 34 U. Mich. J.L. Reform 13, 125–26 (2001) (noting that sports that produce revenue “do so because educational institutions have chosen to invest substantial resources in them to make them popular”).
[62] 34 C.F.R. § 106.37(c) (2026).
[63] Id.
[64] 1979 Policy Interpretation, supra note 46, at 71, 415.
[65] Id.
[66] Buzuvis, supra note 44, at 1564.
[67] In re Coll. Athlete NIL Litig., 803 F. Supp. 3d 959, 992 (N.D. Cal. 2025) (describing distribution formulas for the damages fund based on what market would have awarded to athletes if they had been allowed to monetize their athletic services and NIL during the period of time covered by settlement agreement).
[68] See supra Part II.A.
[69] Coll. Athlete NIL Litig., 803 F. Supp. 3d at 992.
[70] Menke Appeal, supra note 37, at 19.
[71] Michael McCann, NCAA Defends House Settlement from Title IX, Opt-Out Appeal, Sportico (Jan. 5, 2026, at 11:00 ET), https://www.sportico.com/law/analysis/2026/ncaa-house-settlement-appeal-1234880134/ [https://perma.cc/Z652-LE2T].
[72] North Appeal, supra note 37, at 28.
[73] Nat’l Coll. Athletic Ass’n v. Alston, 594 U.S. 69, 111 (2021) (Kavanaugh, J., concurring).
[74] In re Coll. Athlete NIL Litig., 803 F. Supp. 3d 959, 1010 (N.D. Cal. 2025).
[75] 20 U.S.C. § 1681 (1986).
[76] Breeding Appeal, supra note 37, at 32 (“[T]he district court’s analysis incorrectly assumed that the objections argued that Title IX governed the actual payout of the settlement damages, rather than inform the underlying calculation of damages in the but-for world.”).
[77] North Appeal, supra note 37, at 29–30.
[78] Id.
[79] Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1294 (11th Cir. 2007) (“We are persuaded . . . by the analysis of the Western District of Michigan, noting that if we allowed funding recipients to cede control over their programs to indirect funding recipients but did not hold indirect funding recipients liable for Title IX violations, we would allow funding recipients to receive federal funds but avoid Title IX liability.”); Barrs v. Se. Conf., 734 F. Supp. 2d 1229, 1234 (N.D. Ala. 2010) (holding that plaintiffs plausibly stated Title IX claim against Southeastern Conference where it allegedly ceded control over portions of schools’ athletic programs); see A.B. by C.B. v. Haw. State Dep’t of Educ., 386 F. Supp. 3d 1352, 1357–58 (D. Haw. 2019) (collecting cases recognizing controlling authority rule); see, e.g., Bowers v. Nat’l Coll. Athletic Ass’n, 475 F.3d 524, 545 (3d Cir. 2007); Horner v. Ky. High Sch. Athletic Ass’n, 206 F.3d 685, 692–93 (6th Cir. 2000).
[80] There is no evidence or reason to believe that conferences would have made these payments; this possibility is explored for argument’s sake.
[81] See supra Part III.b.
[82] North Appeal, supra note 37, at 30–31.
[83] In re Coll. Athlete NIL Litig., 803 F. Supp. 3d 959, 1010 (N.D. Cal. 2025).
[84] Id.
[85] Id.
[86] Daniel Libit & Michael McCann, Colleges Prep for the Athlete Title IX Lawsuits of the Revenue-Share Era, Sportico (June 9, 2025, at 00:01 ET), https://www.sportico.com/leagues/college-sports/2025/colleges-budget-title-ix-lawsuits-revenue-sharing-1234855457/ [https://perma.cc/G2UF-527Z].
[87] See supra note 29 (noting that member institutions may share revenue with athletes using whatever criteria they want as long as they do not exceed the cap).
[88] Jonathan Tunney, Revenue Sharing Is Finally Here, and It’s Already Making an Impact Across Collegiate Athletics, Sport Bus. Ass’n (Sep. 23, 2025), https://www.sbamichigan.com/post/revenue-sharing-is-finally-here-and-it-s-already-making-an-impact-across-collegiate-athletics [https://perma.cc/VE82-529F].
[89] See supra Part III.a.
[90] Id.
[91] In re Coll. Athlete NIL Litig., 803 F. Supp. 3d 959, 975–76 (N.D. Cal. 2025).
[92] Buzuvis, supra note 44, at 1561.
[93] Letter from Andrew Zimbalist to Susan E. Rice et al., supra note 52.
[94] Conniff et al., supra note 13.
[95] Michael McCann, Don’t Be So Quick to Blame the House Case for College Sports Cuts, Sportico (Jun. 23, 2025, at 05:55 ET), https://www.sportico.com/law/analysis/2025/ncaa-house-case-college-sports-cuts-1234857397/ [https://perma.cc/5RPK-JLPA]; Jack Robbins, Every College Sports Program Cut, Closed, Merged, or Acquired (July 2025 Updated List), 2aDays (July 14, 2025), https://www.2adays.com/blog/every-college-sports-program-cut-closed-or-merged-july-2025-updated-list/; Atlas Metin, The Hidden Cost of House v. NCAA: Is America’s Olympic Engine at Risk?, Swimming World Mag., (Jan. 1, 2026, at 07:41 ET), https://www.swimmingworldmagazine.com/news/the-hidden-cost-of-house-vs-ncaa-is-americas-olympic-engine-at-risk/ [https://perma.cc/YX94-HDSP].
[96] Daniel Libit, Stephen F. Austin’s Axed Sports Spark Title IX Suit, Sportico (July 1, 2025, at 16:44 ET), https://www.sportico.com/leagues/college-sports/2025/stephen-f-austin-title-ix-lawsuit-sports-cuts-1234858818/ [https://perma.cc/DD3C-2Z9M].
[97] Myers v. Stephen F. Austin State Univ., 794 F. Supp. 3d 402, 411 (E.D. Tex. 2025) [hereinafter SFA].
[98] Id. at 415–20.
[99] Id. at 416–17. The university disputed these figures because cheer and dance had been excluded. Id. at 416. The court did not resolve this dispute because including those sports in the proportionality calculation would have diminished, but not eradicated, the disparity. Id. at 417.
[100] Id.
[101] Id. at 420.
[102] Myers v. Stephen F. Austin State Univ., No. 25-40487, 2025 WL 3488841, at *1 (5th Cir. 2025, Dec. 4, 2025).
[103] Id. at *2.
[104] Rachel Axon & Lindsay Schnell, 50 Years After Title IX Passed, Most Top Colleges Deprive Female Athletes of Equal Opportunities, USA Today (Dec. 15, 2022, at 05:49 ET), https://www.usatoday.com/in-depth/news/investigations/2022/06/03/title-ix-failures-50-years-colleges-women-lack-representation/9664260002/ [https://perma.cc/8MP7-KWEF].
[105] See supra Part III.a.1 (explaining three-part Title IX test for participation opportunities).
[106] Id.; see also Libit, supra note 96 (describing trend of schools losing Title IX litigation challenging elimination of women’s collegiate teams).