As college sports move toward pay for play, Title IX looms as another hurdle for the NCAA

A court settlement that would require colleges – for the first time – to pay athletes billions for their play is not going to settle the debate over amateurism in NCAA sports.

Many schools have said that most of the up to $20.5 million they'll pay out to their athletes as part of the $2.8 billion House settlement would go to football and men's basketball players. But guidance from the U.S. Department of Education this week noted that the payments could run afoul of Title IX requirements that the genders are treated equally.

Here is a look at the latest legal hurdle for schools as they try to navigate between the crumbling model of amateur sports and the pro leagues that they don't want to be.

How did we get here?

For decades, the NCAA has insisted that ''student-athletes'' are participating in an extracurricular activity, like a member of the glee club or school newspaper. Rather than pay players, the governing body long said, colleges should use the money from revenue sports like football and basketball to fund the other teams that don't draw much of a crowd – including the Olympic sports that make up the bulk of women's programs.

But the reality of modern college sports – in which football factories are fed by billion-dollar TV contracts, and the transfer portal makes education an afterthought – now bears little resemblance to the 19th Century ideal of the athlete finding time to practice between classes.

Recent court decisions have chipped away at the amateur model, notably the 2021 Supreme Court ruling that NCAA limits on some benefits for Division I basketball and football players violate antitrust laws.

The NCAA has lobbied for legislation that would exempt it from antitrust scrutiny. Despite some bipartisan progress, Congress has yet to deliver.

''I don't know how the landscape is going to look,'' said UConn women's coach Geno Auriemma, whose program has won 11 NCAA titles. ''But it is not going to look like it looks right now.''

Why is this becoming an issue now?

Title IX of the Education Amendments of 1972 prohibited ''discrimination on the basis of sex'' in schools that receive federal funding. The law says schools at all levels must provide equal opportunities for men and women – including (but not limited to) athletics. Since Title IX became law, the number of women playing college sports has more than septupled.

This week, the Department of Education's Office of Civil Rights issued a ''fact sheet'' reminding schools that Title IX's promise of equal opportunity would apply to the House settlement, which allows schools to pay players. (The agreement has yet to receive final approval from U.S. District Judge Claudia Wilken.)

Though he just got hit with the news Thursday, NCAA President Charlie Baker doesn't think so.

He said the settlement mostly covers the distribution of $2.8 billion in damages to former players, while also clarifying the terminology around third-party payments and some other issues. But, he said, how and whether schools allocate the $20.5 million they're allowed to pay to players in the future could face prospective Title IX scrutiny.

''The settlement itself is pretty well-defined,'' Baker said. ''Because it's a campus-based thing, every school has to figure out what their policies and procedures are.''

But Erin Buzuvis, a law professor at Western New England University who studies Title IX, said that if the schools proceed with plans to distribute most of the damages to football and men's basketball players, they could be vulnerable to lawsuits from female athletes who aren't treated equitably.

What about third-party payments for name, image and likeness?

While NIL information is not public, under the current system quarterbacks at top-tier football schools and star basketball players have reportedly earned millions from individual boosters or groups that pool their funding in collectives. The schools are not supposed to be involved in arranging the funding, though they can advise the athletes and provide other support in the dealmaking process.

And if they do it for the men, they're supposed to do it for the women, too.

''NIL happened extremely fast,'' UConn women's star Paige Bueckers said. ''I went from zero to 100: You couldn't do anything, and then you could do almost everything. So it definitely happened fast, but having the right people around you is important.''

The House settlement would eliminate the middlemen in many NIL arrangements and allow the schools to pay athletes directly. But the government's guidance says that money would be considered the same as financial aid and thus be subject to Title IX scrutiny: If schools decide to give the bulk of the funds to men, it will cause problems.

So it's settled, then?

It's no coincidence that the guidance was issued this week, in the final days of the Joe Biden presidency.

''It certainly is the deadline to wind up any loose ends that might have been on the to-do list of the current administration,'' Buzuvis said. ''Title IX advocates have been pushing for a long time for more clarity. This was the last chance to get that done, so they did.''

But, she said, policies that were rushed out before the change in administration can also be reversed once President-elect Donald Trump takes office.

''If they're easy to create, they're easy to withdraw. It's possible the Trump administration would take it away,'' Buzuvis said. ''But that logic doesn't disappear even if the guidance is withdrawn.''

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