Biden Makes Last-Ditch Pass at Interfering in College Sports

Even if the Trump administration quickly undoes it, it’s a precedent for future administrations.

On President Joe Biden's way out the door, his Education Department has thrown a wrench into plans for universities to pay student-athletes directly. The payments will almost certainly still happen, but instead of schools using the vast majority of the payments on athletes in big-revenue programs (i.e. football), the Education Department says under Title IX the payments must be "proportionate" between male and female athletes.

The news probably gave some college football coaches and administrators a small heart attack—would they be able to keep the promises they made to a star recruit about how much money he'd make?—until they realized this is far from settled law.

The idea that Title IX applies here comes from a fact sheet published by the department's Office for Civil Rights. The incoming Trump administration's Education Department staff can just as easily publish their own fact sheet that says otherwise (as predicted by Sen. Ted Cruz (R–Texas)). Even if the Trump administration leaves the issue alone, the fact sheet is not a formal regulation and didn't go through any kind of rule-making procedure. It doesn't carry the force of law and probably wouldn't have much weight in court.

But the fact sheet still serves as a warning to college athletic departments: Next time there's a Democrat in the White House, be ready for this possibility.

The fact sheet says payments must be "substantially proportionate to the number of students of each sex participating in interscholastic or intercollegiate athletics at that school." Data vary, but the NCAA seems to have a slight majority of male athletes. If that ratio holds up across most schools, then it would upend plans to spend the vast majority of the money on football teams, which often generate the vast majority of athletic department revenue. Instead, almost half of the payments would have to go to women's sports. (Presumably, within the sexes, schools could still spend the vast majority on one sport, such as football or women's basketball.)

The controversial justification is that the payments are "athletic financial assistance," and thus subject to Title IX rules. "The basis for the Title IX guidance is that it classifies revenue sharing as financial assistance (similar to athletic scholarships) which appears to be highly questionable," Patrick O'Rourke, an accountant who compiled possible revenue-sharing estimates, wrote. But others think the application of Title IX to the payments is more clear. "Of course it applies to Title IX, it applies to higher education and has for all sorts of other things," says Mark Owens, an associate professor of economics at Penn State University. "I don't know why this is any different."

Either way, future presidential administrations could just as easily put out a fact sheet like this one, and even go further and put a less-ambiguous interpretation through the formal rule-making procedure.

Or, since the original 1972 law that included Title IX did not address how schools distribute revenue-sharing payments (since such payments did not exist), courts may not defer to the Education Department's interpretation of the law. The Supreme Court's recent overturning of Chevron doctrine may play a role here. "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," University of New Hampshire Law Professor Michael McCann wrote in a Sportico column. This "could play an instrumental role in diminishing the [name, image, and likeness] fact sheet's importance."

Starting next school year, universities will likely be allowed by the NCAA to start directly paying student-athletes under revenue-sharing agreements. The new payments will be allowed under a new legal settlement that's expected to be finalized in April. Schools will be allowed to spend up to $20.5 million in that school year, with the number set to grow every year. Some coaches have already told the media they expect to have somewhere between $12.5 million or up to $17 million to spend on their football rosters—which would clearly not be compliant with Title IX.

If enacted, the new rule would further burden athletic departments with another regulation to keep track of. "That's kind of another layer that, within these institutions, you have to make sure that everything is, you know, Title IX compliant," Owens says. Throw that on the pile along with a complex web of recruiting rules, NCAA student-athlete rules, and all state and federal laws that affect athletic departments, and it's hard to see how any college sports teams manage to get through a season without breaking anything.