Two Title IX Developments, Two Diverging Enforcement Paths
OPENING STATEMENTS
Amid the daily NIL and eligibility noise in college athletics, two significant Title IX developments in recent days seem to offer diverging signals of where enforcement is headed. One decision implies that it may be more difficult to force schools to add women’s teams (and perhaps easier to remove). Another shows that schools may begin to face a reckoning when it comes to women’s scholarship-equity claims.
To ground all of this, it’s important to remember that Title IX’s athletics regulation requires schools to provide “equal athletic opportunity.” The 1979 Policy Interpretation evaluates participation opportunities using three alternative paths: 1) substantial proportionality; 2) history and continuing practice of program expansion; or 3) full and effective accommodation of interests and abilities.
The two developments
In Niblock v. University of Kentucky, the Sixth Circuit affirmed judgment for Kentucky where former student-athletes argued the school should have sponsored additional women’s varsity teams, including lacrosse, field hockey, and equestrian. The panel decided the case under prong three of the Department of Education’s 1979 Policy Interpretation, which focuses on whether a school “fully and effectively” accommodates women’s interests and abilities. It treated interest surveys as only one piece of the puzzle, not the proof itself.
So the takeaway is that plaintiffs can’t win simply by showing underrepresentation through implied interest. Rather, they must be able to show enough real athletes with the interest and ability to compete at the relevant varsity level to field a viable team. That matters because it narrows the most common remedy path in participation cases - adding teams - without formally striking the three-part test.
San Diego State, meanwhile, obtained preliminary approval of a class settlement in a Title IX suit alleging gender bias tied to athletic financial aid. In the lawsuit brought by 15 former rowers and track and field athletes, the proposed settlement totals roughly $1.6 million, including $300,000 to be split among a class of female varsity athletes and $1.3 million to cover their attorneys’ fees.
Even more important than the dollar figure is what the structure signals: a damages component paired with forward-looking compliance work, including a gender equity review conducted by a neutral third party and a plan/reporting timeline aimed at bringing SDSU into compliance by spring 2027.
Even if the settlement doesn’t set precedent because there’s no merits ruling, it’s significant. In a space where Title IX athletics cases have traditionally produced injunctive relief (i.e., fix the program) rather than compensation (i.e., repay the harm), this represents a notable shift in leverage.
Despite the apparent divergence in these rulings, they aren’t necessarily contradictory. Rather, they sit in different enforcement lanes: participation and dollars.
The Kentucky decision is a reminder that schools can remain out of alignment on participation numbers and still beat a team-addition claim if plaintiffs can’t produce the kind of evidence courts increasingly want: verifiable, contactable, competition-capable athletes in sufficient numbers for the sport at issue. In plain terms, the burden is drifting from “prove unmet interest exists” toward “prove unmet interest exists and you can staff this team tomorrow.”
That shift is especially consequential right now because participation decisions are being made inside a new business model. Roster caps, revenue sharing, private equity, and efficiency planning are all part of fundamental changes incentivizing administrators to treat non-revenue participation as a controllable cost. If the legal standard for adding teams gets even incrementally tougher, the litigation risk on participation may drop right as schools face heightened financial pressure to compress rosters.
SDSU points the other way. Where the claim is about athletic financial aid and benefits, plaintiffs can often build the case with the school’s own reporting, internal policies, and allocation math. That makes these cases cleaner in a courtroom and scarier in settlement talks, because discovery tends to produce spreadsheets, emails, and budget narratives that are hard to explain away.
And once damages, even small per-athlete payments, become part of the negotiating baseline, the incentive structure changes. A participation lawsuit asks a court to order structural expansion; a scholarship-equity case asks a court (or settlement) to rebalance dollars and benefits that already exist, which can be easier for schools to solve without adding sports, facilities, coaches, and long-term operating costs.
What’s next
Advocacy organizations on the front lines of federal policy and oversight, including The Drake Group, have been documenting how existing structures already shortchange women by more than a billion dollars a year in athletics scholarships alone, even before this next wave of revenue‑sharing and roster triage fully hits.
And with these two cases in mind, following are the developments I think athletes, schools and advocates should be watching.
Expect plaintiffs to plead more cases like SDSU. In cases tied to financial aid and benefits, the proof is quantifiable and the remedy can include both compliance measures and money.
Expect schools to cite Niblock to attack survey-driven participation claims and demand more roster-ready evidence before any court orders team expansion.
Expect these lanes to collide in the revenue-share era, because every allocation decision (aid, benefits, travel, food, facilities, staffing, and whatever schools call “pay”) becomes a Title IX exhibit if women are treated like the budget-balancing line item.
EXHIBIT A
This week brought another reminder that the financial math of big-time college sports is tightening fast. Rutgers Athletics disclosed a record $78 million deficit for FY2024-25, the latest in a string of annual losses that now total $516.9 million since joining the Big Ten in 2014. Meanwhile, UMass reported that $60.2 million of its FY25 athletics budget came from student fees ($11 million) and institutional support (direct $37.3 million, indirect $11.9 million) with student fees and campus support covering 84% of the overall budget. In a normal market, operations dependent on subsidies would be restructuring candidates. Both of these come on the heels of the University of Colorado projecting a $27 million deficit for the fiscal year ending June 2026. There’s a coming reckoning for many schools that won’t stop at football and men’s basketball.
EXHIBIT B
Eligibility strategies continue to evolve. After a federal judge in Ohio rejected his bid for an eligibility injunction in November, Puff Johnson dismissed that case and refiled in state court. An Ohio trial judge has now issued a temporary restraining order restoring his eligibility at Ohio State ahead of a hearing scheduled for today, underscoring what might seem to be a new two-track playbook in which student-athletes test federal courts first, then pivot to state forums that may be more willing to interrupt NCAA rules in real time.
ON THE DOCKET
Clemson coach Dabo Swinney’s blow-by-blow account of Ole Miss’s alleged pursuit of Luke Ferrelli is the most detailed public description of the routine tampering that seems rampant. The NCAA says it’s looking into the matter, and Swinney is pushing for a fast, phone-based fact check rather than a slow, symbolic process. For all of the discussions of antitrust and congressional action, programs can’t solve this only by pointing outward; they’ll have to look at their own staff behavior, third-party relationships, and what “recruiting” has quietly become.
FOOTNOTES
$1.75 million.
NCAA spending on federal lobbying in 2025, a twofold increase from the previous year, according to Front Office Sports.
