DI-FBS is considered to be a head count sport, but DI-FCS football is considered to be an equivalency sport. If a sport is considered to be an equivalency sport, then that means the school could be picking up some or all of the remaining cost not covered by the athletic scholarship. DI Head Count Sports: Football (DI FBS only), Basketball (DI men’s and women’s), Tennis (DI women only), Gymnastics (DI women only) and Volleyball (DI women only) DI Equivalency Sports: All sports not listed above I believe this is relevant because both rulings apply to all DI athletes and not a specific sport. Likewise, it doesn't reduce the risk of the rulings being applied to the lower NCAA division levels or other associations because the others (except for NCAA DIII) offer equivalency scholarships. Equivalency Scholarships All NCAA DII sports All NAIA sports All Junior Colleges NCAA DIII does not offer scholarships but does offer other forms of financial aid It may not matter how much money is being generated at the DI level because the labor laws may prevent DI athletes as being the only group that can be defined as employees. Likewise, there may be a non-DI athlete who has entered into a NIL agreement. The issue may not be as black and white as you believe and why further clarification, either from the courts or Congress, may be required at some point. Right now the focus is on the DI athletes, but I believe that is only the tip of the iceberg.