ICYMI: Sherrill Leads Effort to Demand Equal Pay for NCAA Athletes Under Title IX

WASHINGTON, DC — In case you missed it, Representatives Mikie Sherrill (NJ-11), Lori Trahan (MA-03), and Alma Adams (NC-12) led the House Democratic Women’s Caucus in urging the Department of Education and Secretary of Education Miguel Cardona to clarify how Title IX applies to pay for collegiate student-athletes. 

Sherrill’s inquiry comes as questions arise regarding the impact of Title IX on a settlement agreement that would require schools to backpay former athletes for lost revenue and set a clear path to begin sharing their media revenue with athletes through cash payments. The letter addressed the need for the Department of Education to provide guidance that ensures schools establish revenue sharing models that are equitable for women athletes.

“We are deeply concerned that, if approved, the back-payment thresholds established in the settlement could be misinterpreted as compliant with Title IX or used as a justification to apply Title IX to athlete compensation going forward,” the letter states. “Clearly, the originally proposed breakdown that would result in less than 10% of damages going to women athletes is not equal to the rate paid to athletes of the opposite sex, and it makes gender-based distinctions in rates of pay which is in violation of the Title IX Regulations.” 

“At a time when women’s sports are exploding in popularity, collegiate athletics should not take a step back by implementing a model that ignores the progress of women’s sports and eliminates the opportunity for women athletes to be compensated equally as required under Title IX,” the Members argued. “Quite simply, the acknowledgement that college athletes are deserving of compensation does not invalidate Title IX or allow it to take a backseat. In fact, it should be a lynchpin of the conversation.” 

Sherrill has been a leader in fighting for Title IX in athletics. She led the charge to award Billie Jean King with a Congressional Gold Medal. She also introduced the bipartisan Women in NCAA Sports (WINS) Act to address the dramatic inequities between men’s and women’s collegiate athletics. Additionally, Sherrill helped lead efforts to pass the Equal Pay for Team USA Act, ensuring that all athletes representing the United States in global amateur athletic competitions receive equal compensation and benefits in their sport, irrespective of gender. 

Read the full letter here and below:

As members of the Democratic Women’s Caucus, we are deeply invested in the success of women athletes at all levels and upholding Title IX of the Education Amendments of 1972 (Title IX). At this pivotal moment, we must take every possible step to advance women’s sports and ensure there is equality in our institutions. This includes settlements to ongoing court cases, future revenue-sharing agreements, and ensuring that Title IX applies to its full extent. 

The recently preliminarily approved settlement agreement in House v. NCAA, Hubbard v. NCAA, and Carter v. NCAA would, for the first time, require the back-payment of damages to former athletes who were denied an explicit share in media revenue as well as name, image, and likeness (NIL) rights because of the National Collegiate Athletic Association’s (NCAA) policies. The settlement also provides a clear path for schools to begin sharing their revenue with athletes by directly providing them with cash payments. Without proper guidance and careful consideration, we are deeply concerned this settlement could drive more inequality into women’s collegiate athletics. 

The settlement, if granted final approval, would allocate $2.76 billion in damages to former athletes. The settlement proposes to split most of the damages inequitably. Damages to compensate athletes for their broadcast NIL rights, lost NIL opportunities, and so-called “additional compensation” claims would be divided up with 90% of the total damages, about $ 2.37 billion, being awarded to exclusively Power Five men’s basketball and football athletes, leaving 10%, about $360 million, to be split between Power Five women’s’ basketball athletes and all other male and female Division I athletes. This lopsided distribution flies in the face and spirit of Title IX, which, if correctly applied either to the proposed settlement or to the distribution of this money absent the settlement, would result in equitable benefits to women athletes commensurate with their overall participation in collegiate athletics.

We are deeply concerned that, if approved, the back-payment thresholds established in the settlement could be misinterpreted as compliant with Title IX or used as a justification to not apply Title IX to athlete compensation going forward. Clearly, the originally proposed breakdown that would result in less than 10% of damages going to women athletes is not equal to the rate paid to athletes of the opposite sex, and it makes gender-based distinctions in rates of pay which is in violation of the Title IX Regulations. While the expert who performed the economic analyses underpinning the proposed breakdowns testified that he did not consider Title IX whatsoever, some schools may incorrectly assume that an approved settlement’s distribution for back damages is Title IX compliant. Such a skewed breakdown, if approved and enacted, would formalize discriminatory under-compensation for women which is deeply harmful. 

We understand that this payment structure is designed to reflect the revenue generated by respective sports. However, those revenues are also predicated on women’s sports being historically underfunded and underpromoted, as detailed by the NCAA-commissioned Kaplan Report. Particularly, we are concerned that the economic analysis performed to justify the settlement does not adequately weigh the last few years, during which women’s sports have grown exponentially in popularity, including record viewership of this year’s Women’s Basketball Final Four, record attendance at Memorial Stadium for a Nebraska Women’s Volleyball game last year, and the 2022 Women’s College World Series surpassing viewership of the men’s final.

We are also concerned about the prospect of leaving the decision over what constitutes Title IX compliance for the future revenue sharing to individual institutions and conferences, many of which have routinely and brazenly failed to live up the spirit of the law for years. We acknowledge that Assistant Secretary Catherine Lhamon stated over the summer that Title IX rules will apply to future revenue dollars that schools share with collegiate athletes, and that the Department of Education has commented publicly about concerns regarding gender disparities in these new opportunities for athletes. However, we are all too familiar that the law can say one thing, and the reality that women athletes face is another. 

For instance, Title IX requires that male and female athletes receive academic scholarship support proportionate to their participation. However, in a 2022 investigation, USA Today found that Football Bowl Subdivision (FBS) schools collectively shortchanged women $23.7 million in academic assistance from 2020-2021. The same investigation found that 127 FBS schools failed to give women enough roster spots on their athletic teams to be compliant with Title IX, effectively robbing women athletes of the opportunity to continue their athletic career at the school of their dreams. Based on their consistent disregard for Title IX’s requirements and their historical underinvestment in women athletes, colleges and conferences should not be trusted to define what is Title IX compliant when it comes to direct athlete compensation. 

Finally, we are aware of suggestions that schools could try to evade their Title IX obligations by funneling the funds through an outside entity or collective. We strongly object, as it would once again undermine their obligations under Title IX, and we request that the department issue guidelines that prohibit such subterfuge. 

At a time when women’s sports are exploding in popularity, collegiate athletics should not take a step back by implementing a model that ignores the progress of women’s sports and eliminates the opportunity for women athletes to be compensated equally as required under Title IX. Quite simply, the acknowledgement that college athletes are deserving of compensation does not invalidate Title IX or allow it to take a backseat. In fact, it should be a lynchpin of the conversation. 

As such, we ask that you respond to the following questions no later than December 5, 2024: 

1. To what extent would Title IX apply to direct athlete compensation from recipients of federal aid? 
2. What guidance or resources, in the form of rules, guidance, or other materials, has the Department of Education or its Office for Civil Rights created that may assist recipients and athletes in understanding Title IX’s application to such matters? 
3. Does the Department of Education agree that, if approved, the settlement’s back-pay thresholds should not be considered as compliant with Title IX for purposes of additional payments to current and future athletes? 
4. Can you provide clarification on what constitutes enough interaction between schools/athletes and collectives or outside organizations that would require Title IX to be applied and enforced? 

Thank you for your partnership as we work to ensure that women athletes receive the equal treatment and compensation they deserve and are long overdue. 

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