By Ellen J. Staurowsky, Ed.D., Senior Writer and Professor, Sports Media, Ithaca College, staurows@ithaca.edu
Within days of the House Settlement receiving final approval from U.S. District Court Judge Claudia Wilken on June 6, 2025, two groups of current and former women athletes filed notices of appeal (Christovich, 2025; Southerland, 2025). Based on their previously filed objections to the Settlement and public comments, these women athletes argue that the terms of the Settlement violate Title IX of the Education Amendments of 1972.
The first group to appeal, which included eight women athletes who competed in the sports of soccer, track, and volleyball, are represented by Hutchinson Black and Cook attorneys, John Clune and Ashlyn Hare. In a March 17, 2025, objection filed with the Court, they alleged there was a $1.14 billion error in the planned distribution of the Settlement payout because of the Parties’ failure to consider Title IX in the calculation of damages and use of a market analysis by expert Dr. Dan Rascher. They argue that under Title IX, “…these monies could not have been paid out by market distribution” and that “Applying Title IX, Dr. Rascher would have needed to calculate damages proportional to the men and women participating in college sports” (Zimbalist, 2025). Such a shift would result in a recalibration of the calculation used to distribute the damages payments for Broadcast Name, Image, and Likeness and Athletic Services Compensation that amounts to 90% or roughly $2.415 billion going to football and men’s basketball players with 5% going to women basketball players and the remaining 5% going to athletes in other sports. The Title IX objectors argued that under Title IX women athletes should receive 47% of that payout ($1.14 billion).
Elaborating further on their position in an interview with Front Office Sports reporter Amanda Christovich (2025) about what appears to be an unfair distribution of monetary damages going to men athletes, Attorney Hare commented, “If Nike wants to do that, that is their choice. If the school, or a conference acting on the school’s behalf tries to do that, they are violating the law. They can either pay the athletes proportionately, or they can return all of their federal funds. But they can’t do both.”[1]
In considering the issues raised by women athletes who have come to be known as “Title IX objectors”, the Court in the opinion accompanying the final settlement order was unpersuaded by the women athletes’ arguments regarding back damages as well as injunctive relief that provides for revenue-sharing. In addition to objectors citing no authority to support claims that Title IX applies to damages awards, the Court found that there was nothing in the Settlement Agreement that prevents schools from complying with Title IX when distributing benefits and compensation through revenue sharing moving forward to the extent that Title IX governs those payments.
In responding to the first group of Title IX objectors and appellants, House Plaintiffs’ attorney Steve Berman noted that payments for back damages to athlete beneficiaries would be paused for several months to a year or more. He further stated, “This is an antitrust case about competition, it is not a Title IX case, and now hundreds of thousands of athletes will have to wait to recover for past wrongs that were addressed in this lawsuit in order for these attorneys to take on this unrelated issue. If these lawyers believe that a Title IX case will succeed, they should bring it and not hijack payments to college athletes that could be lifechanging” (Klann, 2025).
An issue has also been raised relative to what entity is dispersing the funds. Title IX Objectors/Appellants have challenged the position of the NCAA and conferences that there was no need to consider Title IX because it did not apply to them. Objectors/Appellants point out that ultimately payments will be dispersed through schools rather than conferences. As a result, the payments are subject to Title IX scrutiny (Letter to Judge Claudia Wilken, Clune & Hare, 2025). That said, the Court could not “…conclude that Title IX violations will occur when the Gross Settlement Fund is distributed by the claims administrator pursuant to the damages allocations that Plaintiffs have proposed” (p. 63).
As the parties separate and go to their respective corners, and we await the opening briefs in September of 2025, the Settlement may raise definitional issues that have Title IX and labor law implications. Those arguing that Title IX applies to these payments presumably operate from the premise that the athletic programs these athletes work in are educational activities. By extension, whatever monetary damages have accrued as a result of the NCAA’s restrictive practices are akin to compensation like athletic scholarships, for example. But what if neither of those things are true?
At the time the Title IX regulations were promulgated between 1975 and 1979, the college sport landscape of today was not contemplated. The NCAA, which was an all-men’s organization at the time, and the newly formed the Association for Intercollegiate Athletics for Women (AIAW) were at odds with each other philosophically about any form of compensation for athletic talent. The NCAA permitted athletic scholarships. In the early years of the AIAW, the organization opposed them but reluctantly relented. That philosophical perspective was reflective of differing points of view regarding college sport as a commercial versus educational activity (Sack & Staurowsky, 1998; Staurowsky, 2023).
As the myth of the NCAA’s version of amateurism has slowly been unmasked in O’Bannon v. NCAA (2015); NCAA v. Alston (2021); and now In re: College Athlete NIL Litigation (2025), old comparisons no longer hold although some continue to hold on to them. Both defenders of college sport amateurism and Title IX advocates in their support for gender equality have conceptualized college athletic programs as extracurricular activities (Bonnette, 2021; Brief of American Council on Education et al., 2021). Following a hearing in April of 2025 conducted by the U.S. House Committee on Education and the Workforce Subcommittee on Health, Employment, Labor, and Pensions entitled “Game Changer: The NLRB, Student-Athletes, and the Future of College Sports, the committee published as its “bottom line” that “College athletics historically have been treated as an extracurricular activity and part of a student’s educational experience, not a job”.
What O’Bannon, Alston, and House reveal is that in the 21st century, the NCAA and Power 5 athletic conferences sponsor global sport entertainment properties, most particularly in football, men’s basketball, and to a lesser extent women’s basketball, that have widespread market appeal. Athletes competing on those teams provide the core athletic product universities build their brands on and through which they engage in the commercial marketplace. Media entities like ESPN, Fox, and others used the performances of college athletes to help create a national and international appetite for 24-7 sports coverage. Global Fortune 500 companies like Nike amassed fortunes off of the uncompensated labor of college athletes. And gambling entities have reveled in the Madness of March, the College Football Playoff, and other college sport entities whether pre-or post-Professional and Amateur Sport Protection Act (PASPA). The stakes for college athletes rose considerably after the NCAA expanded an existing partnership with Genius, designating it as the exclusive provider of athlete performance data to licensed sport books through 2032 (Genuis Sports, 2025). The tired parallel of comparing college sport programs to the debate team or school paper groans under the weight of the $2.8 billion back damages payments and schools having the option of sharing as much as $20.5 million per year with athletes under the House Settlement. As does the denial that the payouts for use of college athletes’ names, images, and likenesses and their athletic services do not offer further proof that college athletes in the Power Five are, in fact, employees.
In a filing opposing the final approval of the Settlement submitted on March 17, 2025, the Menke-Weidenback Objectors argued that the provisions of the Settlement violated Title IX because Title IX regulations “…require substantially proportional distribution of athletic financial assistance between male and female athletic programs” (p. 5). Acknowledging that “financial assistance” is a term that is undefined, an issue pointed out by the Court, the Menke-Weidenback Objectors cited the 1979 Title IX Policy Interpretation as offering clarity because “…it has long confirmed that it [financial assistance] may be ‘provided in forms other than grants’, including ‘work-related aid and loan’” (Menke-Weidenback Objectors, 2025, p. 5). Flowing from that, they then conclude that “NIL and athletic services compensation paid directly to student-athletes by schools is no different” (p. 5).
There may, however, be some missing context that would change that conclusion. While there is no definition of “financial assistance” in the Title IX regulations, there is a robust discussion of financial assistance to students in the 1977-1978 Student Financial Aid Handbook, issued by the Department of Health, Education, and Welfare / Office of Education Bureau of Student Financial Assistance. The Department of Health, Education, and Welfare also oversaw Title IX at that time. Financial assistance as defined here includes Basic Educational Opportunity Grants, Supplemental Educational Opportunity Grants, National Direct Student Loans, College Work-Study, and Guaranteed Student Loans. That is the ecosystem where athletic scholarships reside and they are recognized in the handbook (U.S. Department of Health, Education, and Welfare, 1978, p. 5-17). When the section from the 1979 Title IX Policy Interpretation is considered in light of that, it is clear that payments deriving from commercial endorsements and broadcast revenue are not like athletic scholarships.
There is also the matter of whether other civil rights laws might need to be considered as well. Is there a Title VI analysis to be done given that the two sports that have served as the primary economic engine for the college sport industry for decades is the labor from football and men’s basketball, the sports that have the highest representation of Black and Brown men? Revenue from their earnings has substantively funded everything else including coaches’ salaries, facilities, and other sports, including the very institutional parties who fight their efforts for equal treatment. As Garthwaite et al. (2020) reported, through its business practices and regulations, the college sport system directs money away from athletes “who are more likely to be black and to come from poor neighborhoods” and to athletes “who are white and who come from higher income neighborhoods”.
As these appeals move forward, they offer us much to think about.
References
Bonette, V. (2021). Title IX athletics handbook. https://titleixspecialists.com/wp-content/uploads/2021/05/Title-IX-Athletics-Handbook-Intercollegiate.pdf
Christovich, A. (2025, June 11). Group of Women Athletes Files Appeal of House v. NCAA Settlement Approval. Front Office Sports. https://frontofficesports.com/group-of-women-athletes-files-appeal-of-house-v-ncaa-settlement-approval/
Garthwaite, C., Keener, J., Notowidigdo, M., & Ozminkowski, N. (2020). Who Profits from Amateurism? Rent-Sharing in Modern College Sports. NBER Working Paper No. w27734. https://ssrn.com/abstract=3683610
Genius Sports. (2025, April 25). NCAA and Genius Sports expand partnership through 2032https://www.geniussports.com/newsroom/ncaa-and-genius-sports-expand-partnership-through-2032/
In re: College Athlete Litigation. Notice of appeal from a judgement or order of a United States District Court. United States District Court Northern District of California Oakland. Case No. 4:20:-cv-03919-CW. (2025, June 16). https://swimswam.com/wp-content/uploads/2025/06/gov.uscourts.cand_.360907.984.0.pdf
In re: College Athlete Litigation. Opinion regarding order granting motion for final approval of settlement agreement. United States District Court Northern District of California Oakland. Case No. 4:20:-cv-03919-CW. (2025, June 6).
In re: College Athlete Litigation. Menke-Weienbach Objectors’ opposition to motions for final approval and reply to response to objections. United States District Court Northern District of California Oakland. Case No. 4:20:-cv-03919-CW. (2025, March 17).
In re: College Athlete Litigation. Title IX objectors’ response in opposition to motion for final settlement approval. United States District Court Northern District of California Oakland. Case No. 4:20:-cv-03919-CW. (2025, March 17).
In re: College Athlete Litigation. Declaration of Andrew Zimbalist regarding the settlement in House et al. v. NCAA et al. United States District Court Northern District of California Oakland. Case No. 4:20:-cv-03919-CW. (2025, January 31).
Jeyarajah, S., & Marcello, B. (2025, June 11). House v. NCAA settlement payments on hold amid legal challenge from female athletes on Title IX grounds. CBSSports.com. https://www.cbssports.com/college-football/news/house-v-ncaa-settlement-payments-on-hold-amid-legal-challenge-from-female-athletes-on-title-ix-grounds/
Klann, A. (2025, June 11). Hagens Berman Responds to Appeals to NCAA College Athlete Name, Image and Likeness Settlement. Press release. https://www.businesswire.com/news/home/20250611921291/en/Hagens-Berman-Responds-to-Appeals-to-NCAA-College-Athlete-Name-Image-and-Likeness-Settlement
Letter to the Honorable Claudia A. Wilken. In Re: College Athlete NIL Litigation; Civil Action No.: 4:20-CV-03919-CW. John Clune and Ashlyn Hare. (2025, April 15).
NCAA et al. v. Shawne Alston. Brief of American Council on Education and ten other higher education associations as amici curiae in support of petitioners. Supreme Court of the United States. Nos. 20-512, 20-520. https://www.supremecourt.gov/DocketPDF/20/20-512/168403/20210208134704692_20-512-20-520tsacAmericanCouncilOnEducation.pdf
Staurowsky, E. J. (May 2023). Title IX, college athlete employment, and the politics of destruction. In Southall, R., Nagle, M., Staurowsky, E. J., Karcher, R., & Maxcy, J. The NCAA and the exploitation of college profit-athletes: An amateurism that never was. University of South Carolina Press.
Sutherland, J. (2025, June 17). Second Group of Female Athletes File Objection To House Settlement On Title IX Grounds. Swimswam.com. https://swimswam.com/second-group-of-female-athlete-file-objection-to-house-settlement-on-title-ix-grounds/
U.S. Department of Health, Education, and Welfare. (1978). Student financial aid: 1977-1978 handbook. Washington, DC: U.S. Department of Health, Education, and Welfare. https://www.google.com/books/edition/Student_financial_aid_1977_78_handbook/inf5GIbU1bYC?hl=en&gbpv=1
U.S. House Committee on Education and the Workforce Subcommittee on Health, Employment, Education, and Pensions. Hearing entitled “Game changers: The NLRB, student-athletes, and the future of college sports.” E & W Blog. https://edworkforce.house.gov/news/documentsingle.aspx?DocumentID=412350
[1] This same quote is attributed to John Clune in an article published on CBSSports.com (Jeyarajah & Marcello, 2025).
