By Jordon B. Smith
College athletics continues to present complex legal challenges following the House v. NCAA (2021) settlement. While the settlement marked a significant step toward allowing revenue sharing and expanded compensation for student-athletes, the absence of a unified federal framework for Name, Image, and Likeness (NIL) regulation has created legal chaos and a new territory of unmonitored landscape. This uncertainty is evident in the intersection of NIL and Title IX, in which institutions attempt to navigate compensation structures without clear guidance, increasing the risk of litigation, with little precedent. Title IX was not built for today’s NIL environment, creating confusion with no answers.
Background
Recent developments have only intensified this uncertainty. The U.S. Department of Education’s decision to revoke prior Title IX guidance related to athlete compensation has left institutions without a clear compliance roadmap. This shift is significant because prior issues in the Office for Civil Rights (OCR) served as the basis that institutions relied upon to assess whether institutional involvement in NIL benefits could trigger Title IX. Due to no precedent or previous legal meaning or understanding, institutions are now sitting in a gray area where NIL compensation may still intersect with institutional resources, testing the stability of Title IX at college institutions. With no federal direction, it increases the risk of inconsistent institutional decision-making, where programs have already adopted different compliance strategies based on their legal interpretations of state laws. Previously, schools could look for federal interpretation for direction on how NIL-related benefits might be evaluated under Title IX. Without that guidance, institutions are now left to independently interpret how equitable treatment applies to athlete compensation, creating fluctuation in compliance adaptation and following. Simultaneously, federal efforts to address athlete compensation remain fragmented. A recent executive order aimed at reshaping college sports compensation models highlights the federal government’s awareness of the issue but stops short of establishing comprehensive, enforceable NIL standards. Many issues arise with the executive order due to not establishing clear rules. The order directs federal agencies to study athlete compensation, evaluate potential antitrust and labor implications, and explore policy recommendations. However, it underscores issues such as competitive balance, athlete employment classification, and the role of institutional involvement in compensation. Consequently, the order serves more like a policy suggestion rather than a solution, reinforcing the current reality that institutions must operate with limited federal regulation. As a result, the current system continues to rely heavily on state laws, institutional policies, and conference rules, which may differ.
Potential Implications
One of the most pressing legal concerns is that Title IX was not designed to regulate modern NIL activity. Title IX focuses on equitable access and benefits within educational programs, but NIL compensation often operates through third-party collectives and external endorsements. This creates a gray area: while schools may not directly control NIL payments, their involvement in facilitating opportunities could still expose them to claims of gender inequity.
As highlighted in recent legal analyses, the expansion of athlete compensation models raises critical questions about whether schools could be held liable for disparities in NIL opportunities between male and female athletes. Such scholars argue that although NIL compensation may be third-party activity, institutional involvement whether through facilitation, promotion, or access to resources could trigger Title IX complications (Osborne, 2025; Rukstalis, 2022). For example, if football players receive significantly more NIL related support or institutional resources compared to women’s sports, plaintiffs may argue that such disparities violate Title IX’s requirement for equitable treatment. More legal analysis also note that courts may look beyond the source of compensation and instead evaluate all institutional involvement, including whether schools create, support, or indirectly benefit from NIL that favor male athletes (Ramsey, 2022; Zelony, 2024). Even if payments originate from third parties, the perception of institutional influence or endorsement could be enough to give rise to legal challenges.
Future NIL related lawsuits may hinge on whether schools can be seen as facilitating inequitable systems. While courts may require clear evidence of discriminatory intent, the lack of regulatory clarity increases the likelihood of litigation testing these boundaries.
Inconsistent Policies
Another major concern is the inconsistency of NIL policies across states and institutions. Without federal regulation, schools operate under a patchwork of state laws, some of which are more permissive than others. This creates competitive imbalances and legal vulnerabilities, as institutions in stricter states may be disadvantaged while facing different compliance expectations. At the same time, Antitrust Law constrains the NCAA and schools from attempting to “cap” NIL awards/compensation, placing these entities in a quite difficult situation.
The lack of uniformity also increases the likelihood of lawsuits, as athletes and advocacy groups challenge perceived inequities or unclear policies. As NIL evolves, disputes may arise not only over compensation amounts but also over access to opportunities, institutional support, and the role of collectives. This unbalanced system makes it difficult for schools to ensure compliance while remaining competitive.
With no federal NIL regulation following the House settlement, college athletics has become a legally unstable environment. With Title IX not equipped to address modern compensation structures NIL pushes, institutions face significant uncertainty in balancing compliance, equity, and competitiveness. As legal challenges continue to emerge, the need for unified federal legislatures to be passed becomes essential. Without it, schools will remain vulnerable to litigation, inconsistent policies, and ongoing disputes over the future of athlete compensation.
References
Buffalano, N. A., Gross, D. S., Kaufman, N. J., & Kliment, A. M. (2025). From settlement to scrutiny: Employment, NIL, and Title IX in college sports. https://www.morganlewis.com/pubs/2025/08/from-settlement-to-scrutiny-employment-nil-and-title-ix-in-college-sports
Grant House v. National Collegiate Athletic Association, Case Nos. 4:20-cv-03919 CW, 4:20-cv-04527 CW (N.D. Cal. 2021).
Kliment, A. M., Bouchard, S. E., & Baxter, S. (2025). New executive order aims to reshape athlete pay, fair access & college sports revenue models. https://www.morganlewis.com/pubs/2025/07/new-executive-order-aims-to-reshape-athlete-pay-fair-access-and-college-sports-revenue-models
Lavigne, P. (2025). Dept. of Education revokes guidance on Title IX and athlete pay – ESPN. https://www.espn.com/college-sports/story/_/id/43809645/dept-education-revokes-guidance-title-ix-at%E2%80%A6
Osborne, B. (2025). Title IX and financial assistance in the NIL era. North Carolina Civil Rights Law Review 5(1), 31-66.
Ramsey, K. (2022). NIL Collectives-Title IX’s Latest Challenge. Cardozo Arts & Entertainment Law Journal, 41(3), 799-821.
Rukstalis, L. (2022). Changing the game: The emergence of NIL contracts in collegiate athletics and the continued efficacy of Title IX. Washington & Lee Journal of Civil Rights & Social Justice, 29(4), 275-340.
Zelony, S. (2024). NIL speeds ahead while Title IX trails behind: Finding room for Title IX in the evolving NIL landscape. Vanderbilt Journal of Entertainment & Technology Law, 27(4), 899-934.
Jordon B. Smith is currently a PhD student in Sport Management at Troy University. She has over five years of professional experience at the Division I level, specializing in academic advising and student-athlete support services. Smith earned a bachelor’s degree in Sport Administration along with two master’s degrees in sport-related disciplines. Her research focuses on the evolving legal landscape of intercollegiate athletics, particularly the intersection of NIL policy, Title IX, and athlete development.
