With NCAA settlement looming, college leaders unsure how Title IX fits in — 'We don't know the rules'

MIRAMAR BEACH, Fla. — Shuffling down the steps of the Hilton Sandestin lobby, Auburn football coach Hugh Freeze shakes his head, not in disgust but confusion.

Fresh off of two days of meetings here on the Florida panhandle, Freeze was digesting the information distributed to coaches, including a 17-page packet on the NCAA’s landmark settlement agreement and impending new athlete compensation model.

What did he learn?

“That we have more questions than answers,” Freeze quipped.

The story of the 2024 SEC administrative meetings is actually quite clear: There are few answers, and there is little clarity.

But that doesn’t mean there is none at all.

In fact, SEC presidents and chancellors emerged from their meetings this week believing that, very soon, they will learn more answers about how Title IX impacts the distribution of revenue to athletes in a future compensation model — the single most pivotal issue in this entire situation.

They are looking, at least for now, to the billions in back damages that plaintiff attorneys will distribute to athletes.

“One of the questions will be: Do you allocate these funds going forward the way they’re going to allocate them going back the last six years?” asked Georgia president Jere Morehead, the chair of the NCAA Division I Board of Directors. “I will be interested in learning what the plaintiff’s counsel proposes on backward damages as the settlement advances.”

The settlement, a consolidation of three antitrust cases, is a two-part endeavor. The NCAA national office and schools agreed to pay $2.77 billion in back damages to athletes over a 10-year stretch. The second portion of the deal is the future revenue-sharing concept permitting schools to pay millions to athletes in a capped compensation system.

According to SEC presidents on Thursday, how the plaintiff attorneys divide the back damages has emerged as a key piece in how schools divide the forward revenue in light of Title IX, the federal law requiring educational institutions to provide equal opportunities and benefits to women and men athletes.

In the most simple terms: Should universities be required to abide by Title IX in future payments to athletes if the case’s own plaintiff attorneys don’t adhere to the federal law in past payments?

“They’re going to come out with their plan first,” Texas president Jay Hartzell said. “I think we’ll learn how they think about it. How does the public react? How do the politicians react?”

In past interviews, lead plaintiff attorneys Jeffrey Kessler and Steve Berman say they will use an “allocation formula” to distribute the back pay. While details of this formula are not completely clear, Berman told Yahoo Sports two weeks ago that lawyers will “follow” information in an economic report that expert witnesses created.

The report used in the case’s legal filing attributes about 90% of NIL backpay to Power Five football and men’s basketball players, specifically for use of their NIL in broadcasts and video games as well as third-party NIL payments.

If that report is accurate, more than $2 billion of the near $2.8 billion settlement is intended for male athletes.

“That will be interesting to see,” Hartzell said when told of the figure. “It will be a way for us to understand the public reaction.”

Said SEC commissioner Greg Sankey: “We are interested in the back payments. That is a learning opportunity.”

Those figures don’t account for attorney fees, which are expected to be well over $100 million, according to those with knowledge of the subject.

Told this, Morehead said, “That is outrageous. Simply outrageous.”

Some conference executives are operating under the notion that they will be required to split any revenue evenly between men athletes and women athletes to satisfy Title IX — barring a clarification from the court on the issue within the long-form settlement document currently being drafted. That would mean half of the $20-22 million in capped revenues that schools will be permitted to share with their athletes would be distributed to women athletes.

While Title IX requirements are clear, many in college athletics are questioning whether the federal law should apply to a revenue-sharing model that, in many cases, will distribute payments on the market value of an athlete’s name, image and likeness (NIL).

“We have Title IX experts in the room with us,” Mississippi State president Mark Keenum said. “We want to be compliant with Title IX of course. These are NIL payments as described in the settlement. How are those payments viewed with Title IX? There are a lot of opinions on that.”

One is from Arthur Bryant, one of the most heralded defenders of Title IX and an attorney who's filed and won multiple Title IX cases against NCAA schools. He believes schools must follow requirements around Title IX even if payments are classified as market-based NIL deals.

“Title IX is not based on the market. If the market discriminates, the schools cannot,” he said.

School administrators are hesitant to split millions of dollars, most of them generated by two sports (football and men’s basketball), with Olympic and women’s sports that lose as much as $40 million at a given school. Equally dividing the revenues could, in fact, trigger another legal challenge — claims from football players that they are not receiving enough of the revenue that they generate, said Brian Davis, an attorney in California who represents more than 100 football players in the NIL space.

Equal payments are almost certain to keep in existence booster-led collectives as a way for schools to offer football and men’s basketball players more in compensation amid hotly competitive recruiting battles. Already, collectives are working to evolve into “marketing agencies” that exist in a new compensation model.

However, university leaders believe that a new enforcement arm, with backing of the court and potentially operating outside of the NCAA, will have more authority to enforce rules on third-party payments that are not “true NIL.”

“I’m hoping we can all agree that no one can sign a deal that hasn’t been previously reviewed by an independent third party and determined to be legitimate,” Morehead said.

Who will be that agency? Will it have subpoena power? Can collectives exist at all? Will schools have to distribute revenue based on Title IX?

As Freeze put it as he hustled down the lobby steps, there are more questions than answers.

“I use a saying often. ‘Tell me the rules and I’ll live by them,’” said Kentucky president Eli Capilouto.

“Well,” he said, “we don’t know the rules.”