How Title IX Affects Disbursement of $2.8 Billion and Rev-Share Money Under the House Settlement

Despite Title IX protections, female athletes receive about eight cents of every dollar schools pay athletes. Of the $20+M schools can now pay athletes, almost all of it goes to men.

The altercation between Kathrine Switzer, a marathon official and her boyfriend during the race in 1967. Photograph: AP

That $20M ($21.3M for the 2026-27 academic year) is the revenue sharing money that the House settlement allocated for schools to pay their athletes.

There is also the issue of the $2.8 billion in backpay that is supposed to be distributed to athletes who played between 2016 and 2024. Nine female athletes sued to ensure the backpay distribution is done in compliance with Title IX. In other words, female athletes should receive money that is proportional to actual participation rates during those years, not which sports brought in the most money.

So the issue of Title IX controlling the $2.8 billion in backpay NIL money is already being litigated, but schools also have to consider Title IX when cutting rev-share checks (the $20+ million per year).

Breakdown of Title IX

Title IX is a federal civil rights law that requires that male and female student-athletes to receive equitable treatment and benefits in federally funded education programs, which includes athletics.

That sounds vague. “Equitable treatment and benefits” needs to be more clearly defined.

What the law actually requires is equality in three areas:

1) Effective accommodation of student interests and abilities (known as participation);

2) Athletic financial assistance (scholarships and possibly pay); and

3) What’s commonly known as the “Laundry List:” 11 categories of benefits, including:

• equipment and supplies,

• scheduling of games and practice times,

• travel and daily per diem allowances,

• access to tutoring,

• coaching,

• locker rooms,

• practice and competitive facilities,

• medical and training facilities and services,

• publicity,

• recruitment of student athletes, and

• support services.

With respect to sports, compliance with Title IX is evaluated globally at a university. That means judges will look at the totality of all of the school’s athletic programs, rather than individual sports. Doing so allows for differences in the type and number of opportunities offered to each sex, provided the opportunities meet the interests and needs of underrepresented groups.

Title IX also prohibits economic justifications for discrimination, meaning schools cannot prioritize revenue-generating sports like football at the expense of equitable opportunities for women.

But what, exactly, does it mean to prioritize one sport over another? Is that just giving them both equal practice time, or does it mean equal—not equitable—pay?

Cases Involving Title IX

Title IX wasn’t written in contemplation of athletes being paid by the schools. It was more straightforward: have the same number and quality of opportunities, scholarships, and logistics. Essentially, it was ending the gender Jim Crow that existed on campuses. Despite the law’s reasonable demands, universities still struggle to abide by the law.

Take Haffer v. Temple University. In 1987, Temple argued that its unequal funding of men's and women's athletics was justified because football and men's basketball paid the bills. That argument fell on deaf ears. Financial concerns alone, the court held, cannot justify discrimination based on sex.

Nine years later, Brown University tried a version of the same argument in Cohen v. Brown. The school cut women's teams as a cost-saving measure. The First Circuit shut that down too: budget pressure doesn't excuse a school from its Title IX obligations, and it certainly doesn't let a university solve its money problems at the cost of its underrepresented athletes.

So this isn't new Title IX territory. Courts have heard "the money sport should get the money" before. That argument just has never won.

Which brings us back to the House settlement.

Under the settlement, schools distributing revenue-share dollars are, in practice, doing exactly what Temple and Brown tried to do—funneling the overwhelming majority of a compensation pool toward football and men's basketball because those sports generate the revenue.

Most schools are allocating 75 to 90 percent of their $21.3 million pool to football and men's basketball combined. Women's sports are left splitting what's left over.

During the House settlement, Judge Claudia Wilken had the chance to rule on whether that violates Title IX. She punted on the issue.

When female athletes objected to the settlement's back-pay formula—which sends over 90 percent of $2.8 billion in damages to men—Wilken approved the deal anyway. Her reasoning: Title IX governs how schools run their athletic programs, not how a court divides a legal settlement. If schools are violating Title IX with how they hand out the money, she said, that's a separate lawsuit for another day.

That day has arrived. Eight female athletes appealed to the Ninth Circuit, and three consolidated Title IX challenges are now pending.

What Does Athletic Financial Assistance Mean?

The question in front of the court isn't whether "revenue generation" is a legally acceptable reason to pay men more—Haffer and Cohen already answered that. The question is narrower and more consequential: does this new pot of settlement money even count as the kind of "athletic financial assistance" Title IX was built to regulate?

To be clear, the Ninth Circuit is only ruling on one pot of money: the $2.8 billion in back damages owed to former athletes. The issue of whether an unequal distribution of the $21.3 million pot of money schools pay current athletes every year going forward was avoided by Judge Wilken. But the current distribution model of both pots rely on the same reasoning: football and men's basketball make the most money, so they get the most money. If the Ninth Circuit disapproves of that reasoning for the distribution of the $2.8 pot, schools will lose the justification they're relying on for distribution of the other rev-share pot.

If that happens, things get very tricky very fast for a lot of athletic departments.

Title IX's financial assistance prong doesn't require equal dollars. It requires proportional dollars—the total share going to women should roughly match women's share of the athlete population. It’s not a 50/50 thing; it’s tied to whatever a school's actual roster breakdown is. At most Power 4 schools, that's somewhere around 45 percent women. Right now, women are getting eight cents on the dollar—nowhere near the 45 percent Title IX seems to demand.

Universities’ rev-share compensation ecosystem was built on the assumption that revenue sport equals revenue share. Forty years of Title IX case law says that assumption won’t survive in a courtroom. Undoubtedly, athletes are keeping a close eye on the case pending in the Ninth Circuit to see how to move going forward. If the court sides with the female athletes, schools currently paying out 90 percent of their pool to two sports will either adjust their rev-share allocation or find themselves on the wrong side of a “v.”

NOTE:

While this article was written about the relationship between college athletics and Title IX, it should be noted that there are hundreds of outstanding Title IX reports regarding sexual harassment and sex-based discrimination occurring on campuses. Even though the federal government has the power to pull federal funding from a school based on Title IX violations, that option has never been exercised. Instead, cases are typically resolved with a resolution agreement (a promise to behave better). But over 90% of Title IX reports are resolved through informal agreements. This includes offering supportive measures (such as housing changes, academic adjustments, or no-contact orders), rather than fines or other penalties that would actually spur schools to curb the violations in the first place.

Cedric breaks down college sports law issues like this one as they happen. Subscribe to his Substack: The Fine Print Docket to get the weekly newsletter.

Cedric Hopkins is an attorney and former Division I basketball player at the University of New Mexico. He's the author of The Fine Print, a book on the law and business of NIL and revenue sharing in college sports, and the founder of Hopkins Sports Law, where he delivers on-campus NIL, revenue-share, and agent-contract workshops, and helps athletes understand this complex new world of college sports. He's an educator, not an agent. Learn more at hopkinssportslaw.com.