Black Swan Coming? How a SCOTUS Decision in Crowther Could Impact Title IX Considerations in Post-House College Athletics

Employment and higher education lawyers undoubtedly took note of the U.S. Supreme Court’s recent decision to review Crowther v. Board of Regents. At issue is whether employees of federally funded educational institutions have an implied private right of action to bring employment-related claims of sex discrimination under Title IX of the Education Amendments of 1972 (Title IX). The Court’s decision (likely coming about a year from now) could have knock-on effects beyond the traditional employment context and conceivably could have implications for how Title IX operates within the dynamic landscape of college athletics, specifically around athlete compensation under last year’s landmark settlement in House v. NCAA.

Crowther: Title IX v. Title VII

The Supreme Court took Crowther to resolve an 8-3 split in the federal circuit courts of appeal. The First, Second, Third, Fourth, Sixth, Eighth, Ninth, and Tenth Circuits have held that employees of Title IX-covered educational institutions may bring claims of employment-related sex discrimination under Title IX. The Fifth, Seventh, and Eleventh Circuits have held to the contrary, concluding that Title VII of the Civil Rights Act of 1964 (Title VII) provides the exclusive federal remedy for employment-related sex discrimination claims. In Crowther, the Eleventh Circuit based its ruling on two principal arguments: (i) that Title IX — created under the U.S. Constitution’s Spending Clause — does not reflect the legislative intent needed to create an implied private right of action for employees; and (ii) that Congress designed Title VII — with its administrative exhaustion requirements, caps on damages, and shorter statute of limitations period — to be the comprehensive remedial path for workplace sex discrimination claims, which would be undermined if employees also could bring parallel Title IX claims.  

The House Settlement and Title IX

While the Title IX/Title VII split was taking shape in the federal circuit courts of appeal, college athletics was undergoing seismic shifts. Following the settlement in House a year ago, Division I schools are now authorized to share revenue directly with their student-athletes, generally via agreements pursuant to which schools nominally pay for use of a student-athlete’s name, image, and likeness (NIL). For the 2026-27 academic year, schools may distribute up to $21.3 million to student-athletes — a cap that is likely to increase with each new academic year. 

The House settlement also included a retrospective component, specifically, a settlement fund of more than $2.5 billion to be paid out to former student-athletes who did not have the opportunity to commercialize their NIL rights under prior NCAA rules. Under the settlement, these funds are allocated roughly 90% to football and men’s basketball, 5% to women’s basketball, and 5% to all remaining sports. This allocation scheme prompted immediate Title IX challenges, with eight female student-athletes appealing the district court’s approval of the settlement, contending that the allocation disproportionately favors male athletes in violation of Title IX’s prohibition on sex discrimination. Payments from the settlement fund have been stayed pending resolution of this appeal before the Ninth Circuit.

The House settlement also left unresolved whether Title IX applies to a school’s ongoing and prospective revenue sharing payments to student-athletes. In January 2025, while approval of the settlement was pending before the district court, the Biden administration issued guidance stating that any school-provided NIL compensation would qualify as “athletic financial assistance” and thus be subject to Title IX’s sex-based proportionality requirements. Weeks later, that guidance was rescinded by the newly-installed Trump administration. As a consequence, for the past year, schools have been distributing revenue-sharing payments to student-athletes without any certainty as to whether allocating the majority of revenue-sharing payments to men’s football and basketball could implicate Title IX. Courts likely will be addressing that uncertainty in the future. 

Potential Convergence of Crowther and College Athletics

Crowther and the House settlement appear to occupy somewhat different legal lanes. Crowther concerns whether school employees have an implied right of action under Title IX; the House settlement, in part, potentially concerns Title IX sex-based equity considerations in the payment of NIL and revenue-sharing compensation by schools to their student-athletes. Yet, the two cases potentially converge around several key points.

The Employee Question. It is currently settled that college athletes, as students, have an implied private right of action under Title IX. But what if their participation in sports is deemed “work,” more specifically, employment under various federal or state laws? It is here where Crowther and House potentially intersect. While federal courts previously concluded that college athletes are not employees of their schools under federal wage-hour law (see federal circuit court decisions in Berger and Dawson), the employee question continues to be debated (rightfully or wrongfully) in various forums, including courts, legislatures, and governmental agencies. President Trump’s executive order — entitled “Saving College Sports” — directed the Secretary of Labor and the National Labor Relations Board to clarify the employment status of college athletes. The Protect College Sports Act, which is the latest proposed federal legislation designed to bring order to college athletics in the NIL era, expressly declines to address the employment status of student-athletes.

If athletes were ever to be classified as employees of their schools, whether under labor, wage-hour, tax, or other law, Crowther could create an unanticipated hole in Title IX for student-athletes (assuming Title IX covers revenue-sharing or settlement fund payments under House, which, as noted, remains unsettled). A Supreme Court ruling that Title IX provides no private right of action for employees of educational institutions could mean that college athletes, if deemed employees, also might have no private right of action under Title IX to challenge alleged inequitable revenue-sharing distributions as unlawful sex discrimination. Instead, any such claims might only be channeled through Title VII, which was constructed to regulate traditional employment settings and may not so neatly address decisions about athletic program funding, roster management, or sport-specific compensation schemes.

As a threshold matter, in comparison to Title IX, Title VII’s damage caps, EEOC exhaustion requirements, and shorter statute of limitations would circumscribe the remedies available to any student-athletes seeking to challenge sex-based disparities in NIL and revenue-sharing allocations. Beyond procedural obstacles, Title VII conceivably would impose significant substantive obstacles to student-athletes attempting to prove unlawful, sex-based compensation disparities. They would be required to show that they perform substantially “equal work” to a comparator of the opposite sex who is more highly compensated. In this context, for example, a female gymnast challenging a school’s decision to allocate 70% of its revenue-sharing funds to football players might be hard-pressed to identify a male comparator performing equal work. Title VII also allows employers to justify compensation disparities based on legitimate business factors. Here, a school might readily establish that football and men’s basketball generate nearly all of the revenue shared under House and, consequently, such market-based compensation disparities in favor of those male athletes are legitimate and non-discriminatory.

Ultimately, after Crowther, in any future scenario where college athletes might be considered employees, they could become lost in a doctrinal wilderness: employees who lack a Title IX implied right of action, but who may have grievances unlikely to fit well into — or to be resolved favorably for them under — Title VII.

Notice and the Spending Clause. Crowther may provide additional arguments to schools contesting House-related Title IX claims. Congress enacted Title IX under the Spending Clause, and, accordingly, the statute’s express remedy is the withdrawal of federal funds — not private lawsuits. In Crowther, the Eleventh Circuit relied heavily on Title IX’s Spending Clause foundation. It emphasized that recipients of federal funds must have clear notice of any conditions attached to that funding and concluded that it was not likely that institutions would have understood that, by accepting federal funds, they also were accepting potential liability for employment-related sex discrimination under Title IX, when such potential liability was already provided and regulated under Title VII.

With this reasoning in mind, if the Supreme Court endorses the notice-based concerns expressed in Crowther, schools resisting application of Title IX to NIL and revenue-sharing payments might argue that they had no clear notice that, by accepting federal funds, they were accepting potential Title IX liability for any disparate allocation of such payments based on sex — a defense that may by buttressed by the rescission of the Biden administration’s Title IX/NIL guidance, the absence of regulation specifically on point, and the general novelty of the House-based compensation scheme.

Narrowing Implied Rights of Action. If the Supreme Court affirms Crowther, the Court also could signal its interest in restricting judicially implied rights of action under Spending Clause statutes. It is hardly inconceivable that this Court could hold that Congress, not courts, should create any private right of action under Title IX. If the Court were to use Crowther to limit or curtail implied rights of action generally, it could consequently embolden schools to unsettle the currently settled right of student-athletes (irrespective of employee status) to pursue private actions under Title IX. 

Statutory Preclusion. In reviewing Crowther, the Supreme Court also could be persuaded by the argument that Title VII’s comprehensive remedial framework precludes parallel Title IX claims for the same conduct. Such reasoning could be extended to the context of NIL and revenue-sharing payments in college athletics. If Congress were to enact the Protect College Sports Act or other similar legislation creating a regulatory framework for college athlete compensation, courts might conclude that such a statute, like Title VII in the employment context, would serve as the exclusive remedy (at the expense of Title IX) to challenge a school’s compensation practices or scheme as discriminatory.

What’s Next

For stakeholders in college athletics, the potential impact of Crowther on the post-House Title IX landscape warrants monitoring, with a few practical considerations to bear in mind.

On timing, decisions both in Crowther and on the Title IX appeal in House could arrive in close proximity by summer 2027 and, together, could jointly reshape the Title IX enforcement landscape for college athletics. In the meantime, schools presumably understand that the current regulatory vacuum may not insulate their revenue-sharing models from scrutiny or exposure under Title IX. However, if the Supreme Court affirms the Eleventh Circuit in Crowther, schools may find their defenses bolstered, while those who vociferously contend that student-athletes are employees might be chastened to discover that their dreams of employee status may unlock a nightmare world without Title IX protections. 

Crowther is nominally a case about whether a university professor and a basketball coach can sue their respective employer-schools under Title IX. Yet, in the larger context of college athletics, the case sits at the intersection of two consequential questions: who can enforce Title IX, and what does Title IX require in the NIL era where schools can directly compensate their student-athletes? The Supreme Court’s answer to the first question may substantially shape how courts, legislatures, and stakeholders in college athletics navigate the second.