The Collegiate Sports Revolution: The Expected and Unexpected Effects of the Supreme Court's Latest Ruling on Paying College Athletes

Journal of International Business and Law Journal of International Business and Law

Volume 22 Issue 1 Article 7

12-1-2023

The Collegiate Sports Revolution: The Expected and Unexpected The Collegiate Sports Revolution: The Expected and Unexpected

Effects of the Supreme Court's Latest Ruling on Paying College Effects of the Supreme Court's Latest Ruling on Paying College

Athletes Athletes

Liam Sugrue

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177

THE COLLEGIATE SPORTS REVOLUTION: THE EXPECTED

AND UNEXPECTED EFFECTS OF THE SUPREME COURT’S

LATEST RULING ON PAYING COLLEGE ATHLETES.

By Liam Sugrue

I. INTRODUCTION

Collegiate sports are far more than just games being played by teenagers and young

adults; they are a staple of American entertainment.

College sports represent an essential and

important aspect of American society; having indispensable impacts on a plethora of public

arenas, including economics and the mass media.

“College athletics programs represent a

multi-billion dollar industry and are integrally linked to school branding and reputation.”

These programs bring many benefits to colleges and universities having far-reaching

implications on their admissions, rankings, students, faculty and communities.

It is fair to say

that the scope of college athletics has permeated every portion of American higher education,

affecting students enrollment decisions,

town and state infrastructure,

and many other socio-

economic areas.

See generally Linda Emma, The Importance of College Athletic Programs to Universities, SEATTLE PI

https://education.seattlepi.com/importance-college-athletic-programs-universities-1749.html (last visited Jan. 1,

2022); see generally Kenneth J. Marci, Not Just a Game: Sport and Society in the United States, 4.08 INQUIRERS

J./STUDENT PULSE 1, (2012) http://www.inquiriesjournal.com/articles/1664/not-just-a-game-sport-and-society-

in-the-united-states.

Marci, supra note 1.

Emma, supra note 1.

See generally id. (“Athletics programs drive enrollment and heighten college profiles, often resulting in

financial windfalls for the institutions that happen far away from fields and arenas”).

Id.; Emma, supra note 1. As stated by Linda Emma,

While student-athletes may choose a college because of its athletic program, the reputation

a school earns from sports can also draw non-athletes. In their American Freshman

National Norms 2012 survey, researchers at UCLA found that economic considerations --

affordability of college and job prospects post-college -- are of utmost importance in

choosing a college… Schools with large athletic programs are also meccas of social

activity. Most students not only want a college education -- they want the college

experience.

See id.

Team spirit and its derivative fan loyalty can infect a campus and a community. Colleges

like Notre Dame, Ohio State, Oklahoma State, and the University of Florida don’t merely

have sports teams -- they have sports cultures which represent long-lived brands that engulf

surrounding towns and permeate their states. Branding by itself translates to money, but it

also lures further donations from alumni and fans. Revenue from ads, sponsorships and

branded novelty items netted the Florida Gators more than $10 million and the Oklahoma

State athletic department received $55 million in donations in 2008.

See generally id.; Emma, supra note 1; see generally Marci, supra note 1.

Direct participants in athletic programs develop good habits of fitness, competitiveness,

drive and discipline. What they learn about teamwork, individual responsibility,

determination and goal-oriented tasks follow them into their future as they become able

employees and successful businesspeople. And the friendships they form with teammates

can follow far off the field. Even students merely shouting from the sidelines can be united

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This Note seeks to examine the current state of collegiate sports in a post NCAA v.

Alston (“Alston”) landscape.

Part I will look at the problems arising from name, image and

likeness (“NIL”) disparities between states and how they affect both domestic and international

student-athletes as well as the overall collegiate sports business.

Part II will discuss the

background and history of the National Collegiate Athletic Association (“NCAA”), student-

compensation issues, and the hypocrisy of the organization.

Part III will discuss the legal

issues surrounding the new NIL rules.

Part IV is a proposal and advocacy for a solution to

these legal issues. Part V will conclude this Note.

II. BACKGROUND/ HISTORY

To fully comprehend the scope of, and therefore examine, the current landscape of

collegiate sports, one must understand the history of the NCAA and the issues they have faced

throughout their years as the governing body.

Section A will discuss the historical injustices

that student-athletes have faced when dealing with the NCAA.

Section B will address the

latest Supreme Court case, NCAA v. Alston, which directly led to student-athletes gaining the

ability to make money on their NIL.

Section C will discuss various past issues that the NCAA

faced, specifically in regards to the compensation of student-athletes.

Section D will discuss

the hypocrisy of the NCAA and demonstrate how twisted, inconsistent and even paradoxical

the governing body is.

In combination with the above introductory sections and this

background and historical information section, this Note hopes to achieve a well-rounded image

of the NCAA and their operations while proposing a novel solution to current NIL issues.

in a common bond and develop lifelong commitments to their fellow students and their

school. And all that camaraderie pays off in the long-term to the university when alumni

gather and donate to their alma mater.

Nat’l Collegiate Athletic Ass’n v. Alston ET AL., 594 U. S. 1 (2021).

See e.g., id.; see also Jada Allender, The NIL Era Has Arrived: What the Coming of July 1 Means for the NCAA,

HARV. J. OF SPORTS AND ENT. L. (Jul. 1, 2021), https://harvardjsel.com/2021/07/the-nil-era-has-arrived-what-

the-coming-of-july-1-means-for-the-ncaa/; see also Braly Keller, NIL INCOMING: COMPARING STATE LAWS

AND PROPOSED LEGISLATION, OPENDORSE, https://opendorse.com/blog/comparing-state-nil-laws-

proposed-legislation/ (last update Jul. 16, 2021); see also Martin D. Edel Et Al, The Latest on NIL: Updates to

State and Federal Laws, THE NAT’L L. REV. (Apr. 15, 2021).

See e.g., Maureen A. Weston, NCAA Sanctions: Assigning Blame Where it Belongs, 52 B.C.L. REV. 551, at

555 (2011), http://lawdigitalcommons.bc.edu/bclr/vol52/iss2/7; see Pete Thamel, Auburn’s Newton May Leave

a Legacy in Scrutiny, N.Y. TIMES (Jan. 10, 2011), http://www.nytimes.com/2011/01/10/sports/ncaafootball/

10auburn.html?_r=1&scp=5&sq=cam%20newton &st=cse.

See Nat’l Collegiate Athletic Ass’n, 594 U. S. at 1; see also Keller, supra note 9; see also Edel, supra note 9.

See Weston, supra note 10; see also Thamel supra note 10.

JB Shreve, The Injustice in College Sports (Mar. 21, 2019), https://theendofhistory.net/pay-college-athletes/

(“The NCAA is a multi–billion-dollar industry built atop a labor and celebrity force (college athletes) who are

largely required to work for free.”).

Nat’l Collegiate Athletic Ass’n, 594 U. S. at 1.

See Weston, supra note 10; see also Thamel supra note 10.

See e.g., NAT’L COLLEGIATE ATHLETIC ASS’N, DIVISION I MANUAL (2022), https://web3.ncaa.org/lsdbi/

reports/getReport/90008.

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A. A History of Injustice

The NCAA “purports as one of its major principles: ‘Student-athletes shall be

amateurs...and their participation should be motivated primarily by education and by the

physical, mental and social benefits to be derived...[S]tudent-athletes should be protected from

exploitation by professional and commercial enterprises.’”

However, despite the NCAA’s aim

to protect student-athletes from exploitation, their actions demonstrate a masterclass in

hypocrisy.

In 2019, the NCAA athletics programs had an annual revenue of approximately

$11 billion.

Their revenue production surpassed the estimated totals of two major professional

leagues; namely the National Hockey League (“NHL”) and the National Basketball Association

(“NBA”).

Yet, unlike student-athletes, professional leagues athletes are granted contracts and

endorsements as compensation.

In 2018, the University of Alabama alone generated more

revenue through their athletics program than twenty five NBA teams.

The student-athletes

who laboriously generated this revenue for the university received no compensation.

Labor

without compensation has historically gone by another name: slavery.

[W]ith a system like the only system that I have ever seen, where the laborers

are the only people that are not being compensated for the work that they

do, while those in charge receive mighty compensation. The only two

systems that I’ve known that to be in place, is slavery, and the prison system.

And now I see the NCAA as overseers of a system that is identical for that.

Nathan Curtis, Amateur Slaves: An Ethical and Legal Analysis of the Treatment of College Athletes, 21 BYU

PRELAW REV. 23, 24 (2007) (citing 2006-2007 NCAA Division I Manual 5 (2006), available at http://www.

ncaa.org/library/membership/division_i_manual/2006-07_d l_manual.pdf).

See Shreve, supra note 13 (“The NCAA is a multi–billion-dollar industry built atop a labor and celebrity force

(college athletes) who are largely required to work for free.”).

Id.

Id. (stating that both the NBA and NHL had lower revenue production).

Id.

Id. (stating the University of Alabama earned $143 million in athletic revenue which is “…more than 25 out

of 30 NBA teams”).

2021-2022 NCAA Division I Manual, supra note 16 (“A student-athlete may receive athletically related

financial aid administered by the institution without violating the principle of amateurism, provided the amount

does not exceed the cost of education… [H]owever, such aid as defined by the Association shall not exceed the

cost of attendance… Any other financial assistance…[S]hall be prohibited”).

What is modern slavery?, ANTI-SLAVERY INT’L, https://www.antislavery.org/slavery-today/modern-slavery/

(“Modern slavery is the severe exploitation of other people for personal or commercial gain.”) (last visited Dec.

3, 2022).

Kevin B. Blackstone, It’s not wrong to say college sports is like slavery. It’s wrong that no one’s trying to fix

that, THE WASH. POST (May 8, 2018, 5:20 PM), https://www.washingtonpost.com/sports/colleges/its-not-wrong-

to-say-college-sports-is-like-slavery-its-wrong-that-no-ones-trying-to-fix-that/2018/05/08/564b789c-52df-

11e8-9c91-7dab596e8252_story.html (quoting Kylia Carter, mother of NBA player Wendell Carter Jr.).

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Of course, student-athletes are not literal slaves since they are free individuals and

receive compensation from their universities through scholarships and education.

However,

the comparison between student-athletes and slaves has been common in the past and even

addressed, albeit satirically, in media and television shows such as South Park.

While student-athletes earn nothing for their labor, their coaches profit greatly.

Data

from 2013 showed that the highest paid public official in each of the fifty states in the U.S.

were primarily coaches; only eleven states had highest paid public officials who were non-

coaches.

In 2020, not a single public official on this list is unrelated to a school or university,

and there are now only ten states whose highest paid public officials are non-coaches.

Justice Kavanaugh said in his Alston concurrence,

The bottom line is that the NCAA and its member colleges are suppressing

the pay of student-athletes who collectively generate billions of dollars in

revenues for colleges every year. Those enormous sums of money flow to

seemingly everyone except the student-athletes. College presidents, athletic

directors, coaches conference commissioners, and NCAA executives take in

six- and seven-figure salaries. Colleges build lavish facilities. But the

student-athletes who generate the revenues, many of whom are African

American and from lower-income backgrounds, wind up with little or

nothing.

The term “student-athlete” itself is a progeny of the NCAA’s exploitive past and

practices.

It is a legal term that the NCAA created in the 1950s in order to combat worker’s

compensation claims for injured collegiate athletes.

The term student-athlete was deliberately ambiguous. College players were

not students at play (which might understate their athletic obligations), nor

were they just athletes in college (which might imply they were

professionals). That they were high-performance athletes meant they could

See id.; but see Nathan Curtis, supra note 17 (“Although the NCAA and most major universities claim that

college athletics have a principally educational purpose, a closer look at the system reveals just the opposite to

be true-it is a multi-billion dollar industry dependent on the labor of ill-compensated slaves”).

South Park: Crack Baby Athletic Association (Comedy Central, et al. broadcast May 25, 2011),

https://southpark.cc.com/video-clips/444m6e/south-park-stu-dent-ath-o-leets (last visited Sept. 8, 2021).

See Reuben Fischer-Baum, Infographic: Is Your State’s Highest-Paid Employee A Coach? (Probably),

DEADSPIN (May 9, 2013, 3:23 PM), https://deadspin.com/infographic-is-your-states-highest-paid-employee-a-

co-489635228.

Id. (“Based on data drawn from media reports and state salary databases, the ranks of the highest-paid active

public employees include 27 football coaches, 13 basketball coaches, and 11 dorks who aren’t even in charge of

a team.”)

See Bright, Highest Paid State Employees In The USA, KIIKYWEALTH (Sept. 1, 2021), https://kiiky.com

/wealth/highest-paid-state-employees-in-the-usa/.

Nat’l Collegiate Athletic Ass’n v. Alston et al., 141 S.Ct 2141, 2168 (2021) (Kavanaugh, J., concurring); see

id. at 2168 (Kavanaugh, J., concurring) (referring to the brief of Amici Curiae by African American Antitrust

Lawyers in Support of Respondents).

See Jon Solomon, The History Behind the Debate Over Paying NCAA Athletes, SPORTS (April 23, 2018),

https://www.aspeninstitute.org/blog-posts/history-behind-debate-paying-ncaa-athletes/.

See id.

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be forgiven for not meeting the academic standards of their peers; that they

were students meant they did not have to be compensated, ever, for anything

more than the cost of their studies.

The first “student-athlete” was Ray Dennison, who died from a head injury he

received while playing college football for Fort Lewis A&M in Colorado.

When Dennison’s

estate filed for workmen’s compensation death benefits, the NCAA created the designation of

“student-athlete” and argued he was not eligible for benefits due to the fact the college was “not

in the football business;” the Colorado Supreme Court affirmed this argument.

With the

exploited class now defined, the next step is to correct the many mistakes of the past.

B. Supreme Court Steps in

The Supreme Court recently ruled in Alston that student-athletes may now be

compensated for their NIL.

This decision arises from a suit brought against the NCAA by

current and former student-athletes alleging an antitrust violation.

Their argument rested

primarily upon Section One of the Sherman Antitrust Act,

which prohibits “contract[s],

combination[s], or conspirac[ies] in restraint of trade or commerce.”

In the syllabus, the Court

stated:

Colleges and universities across the country have leveraged sports to bring

in revenue, attract attention, boost enrollment, and raise money from alumni.

That profitable enterprise relies on “amateur” student-athletes who compete

under horizontal restraints that restrict how the schools may compensate

them for their play. The National Collegiate Athletic Association (NCAA)

issues and enforces these rules, which restrict compensation for student-

Taylor Branch, The Shame of College Sports, THE ATLANTIC (Oct. 2011), https://www.theatlantic.com/

magazine/archive/2011/10/the-shame-of-college-sports/308643/.

See id.

See id.; see also Solomon, supra note 32.

Nat’l Collegiate Athletic Ass’n v. Alston et al., 141 S.Ct 2141, 2166 (2021).

Nat’l Collegiate Athletic Ass’n v. Alston ET AL., 594 U. S. 1 (2021), at 1.

15 U.S.C. §§ 1-38; Legal Information Institute, Sherman Antitrust Act, (last visited Jan, 23 2022),

https://www.law.cornell.edu/wex/sherman_antitrust_act (“[T]he Sherman Antitrust Act of 1890 is a federal

statute which prohibits activities that restrict interstate commerce and competition in the marketplace… The

Sherman Act was amended by the Clayton Act in 1914.”)

Id.; Nat’l Collegiate Athletic Ass’n, 594 U. S. 1 (2021), at 1; The Sherman Antitrust Act of 1890 §1, 15 U. S.

C. §1, states:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of

trade or commerce among the several States, or with foreign nations, is declared to be

illegal. Every person who shall make any contract or engage in any combination or

conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on

conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation,

or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both

said punishments, in the discretion of the court.

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athletes in various ways. These rules depress compensation for at least some

student-athletes below what a competitive market would yield.

The district court applied the “rule of reason” analysis,

and thus ruled that the NCAA

and their predatory anti-competitive practice of depressing student-athlete compensation was

indeed a violation of the Sherman Antitrust Act.

The Supreme Court affirmed the district

court’s decision.

In his concurrence, Justice Kavanaugh made it a point to state that the

“NCAA’s business model would be flatly illegal in almost any other industry in America…

[and] price-fixing labor is ordinarily a textbook anti-trust problem because it extinguishes the

free market in which individuals can otherwise obtain fair compensation for their work.”

The

ruling itself did not directly address the NIL issue.

However, the Supreme Court’s affirmation

of the district court’s injunction upon the NCAA directly led to the adoption of an interim NIL

policy.

The policy specifically suspended NCAA NIL rules for all “incoming and current

student-athletes.”

The policy provided four guidelines: (1) individuals can engage in NIL

activities that are consistent with the law of the state where the school is located, colleges and

universities may be a resource for state law questions; (2) college athletes who attend a school

in a state without an NIL law can engage in this type of activity without violating NCAA rules

related to name, image and likeness; (3) individuals can use a professional services provider for

NIL activities; and (4) student-athletes should report NIL activities consistent with state law or

school and conference requirements to their school.

It is important to note that the new policy

guidelines do not affect the old fair recruitment policies that the NCAA requires.

This supports

the fact that college sports have not been, and never will be, pay-for-play as sports are on the

professional level.

Nat’l Collegiate Athletic Ass’n, 594 U. S. 1 (2021).

Id.; Thomas Reuters, https://uk.practicallaw.thomsonreuters.com/4-383-7924?transitionType=Default&

contextData=(sc.Default)&firstPage=true (last visited Sept. 10, 2021). The rule of reason is:

A type of antitrust analysis used to determine the legality of agreements (written or oral)

that may restrict competition. Under the rule of reason, courts examine both the positive

and negative effects of an agreement before determining whether it violates antitrust laws.

Courts consider several factors in making their determinations, such as the business

purpose of the agreement, market power of the parties involved, competition within the

relevant market, and other market circumstances.

See Nat’l Collegiate Athletic Ass’n, 594 U. S. 1 (2021).

Nat’l Collegiate Athletic Ass’n, 594 U. S. 1 (2021).

Id. (Kavanaugh, J., concurring).

See id.; see also TaRonda Randall, NCAA v. Alston Case: Supreme Court Strikes Down NCAA Rules

Restricting Benefits to Student-Athletes, Bond Schoeneck &King Attorneys Higher Education Law Report (Jun.

30, 2021) https://www.bsk.com/higher-education-law-report/ncaa-v-alston-case.

See generally Randall, supra note 46.

Michelle Brutlag Hosick, NCAA adopts interim name, image and likeness policy, NCAA (Jun. 30, 2021)

https://www.ncaa.org/about/resources/media-center/news/ncaa-adopts-interim-name-image-and-likeness-

policy.

Id.

See id.

Id.; see Hosick, supra note 48 (“The new policy preserves the fact college sports are not pay-for-play,” said

Division II Presidents Council chair Sandra Jordan, chancellor at the University of South Carolina Aiken. “It also

reinforces key principles of fairness and integrity across the NCAA and maintains rules prohibiting improper

recruiting inducements. It’s important any new rules maintain these principles.”).

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“On its face, Alston did not drastically change the landscape of college athletics.

However, court decisions, such as Alston, and legislative action by states are proving to be an

impetus for the continued evolution of NCAA rules.”

State legislative actions stemming from

this decision will be the major creators of dichotomy within the sphere of college sports, and

as they develop, will shape the face of college sports into an entirely new beast.

C. Past Issues with Student-athlete Compensation

Reggie Bush, arguably one of the players most synonymous with college football,

won the Heisman Trophy in 2005.

The Heisman Trophy is one of the most prestigious awards

in all of football and the highest individual honor in college football.

However, after multiple

reports that the Heisman Trust would strip him of the award, Bush voluntarily forfeited his

Heisman title in 2010.

The key issue leading up to his relinquishment was he violated

provisions contained within the NCAA bylaws.

It was found that Bush and his parents

accepted “thousands of dollars in cash payments, airline tickets for his parents to attend away

football games, a free limousine service, expensive clothing, a vehicle, free lodging in Las

Vegas, and a rent-free home and cash for his parents.”

These gifts came from two sports

marketing agents hoping to sign Bush after his graduation from the University of Southern

Id.

See generally Dan Murphy, Everything you need to know about the NCAA’s NIL debate, ESPN (last updated

Sept. 1, 2021), https://www.espn.com/college-sports/story/_/id/31086019/everything-need-know-ncaa-nil-

debate. (“The current regulations -- shaped in part by antitrust concerns in the wake of a recent Supreme Court

decision -- are far less restrictive. The NCAA rules only prohibit a school or its employees from paying an athlete

directly for his or her NIL rights. Some states have laws in place that say athletic departments and their employees

may not “cause compensation to be directed” to athletes, but the specifics of what is and is not allowed remain

murky.”)

The Heisman Memorial Trophy annually recognizes the outstanding college football player whose

performance best exhibits the pursuit of excellence with integrity. The winners of the trophy epitomize great

ability combined with diligence, perseverance, and hard work. The Heisman Trophy Trust’s mission is to ensure

the continuation and integrity of this award. Heisman Trust, Our Mission, https://www.heisman.com/heisman-

trust/ (last visited Sept. 10, 2021). Essentially the award is given to the best player in college football every year.

Considered one of the best individual seasons by a college football player ever, Reggie Bush won the Heisman

Trophy in 2005. See Michael McClymont, Best individual seasons of the last 20 years: No. 6 - Reggie Bush in

2005, THE SCORE, https://www.thescore.com/ncaaf/news/1559273 (last visited Sept. 10, 2021); see also James

Fragoza, Why was Reggie Bush’s Heisman Trophy Revoked?, PRO FOOTBALL NETWORK (Jul. 2, 2021),

https://www.profootballnetwork.com/why-was-reggie-bush-heisman-trophy-revoked/ (“He truly was one of the

most electric athletes in college football history.”).

See Fragoza, supra note 55.

See e.g., 2021-2022 NCAA Division I Manual, supra note 16 at 36. 16.02.03. Defining an Extra Benefit as:

An extra benefit is any special arrangement by an institutional employee or representative

of the institution’s athletics interests to provide a student-athlete or the student-athlete

family member or friend a benefit not expressly authorized by NCAA legislation. Receipt

of a benefit by student-athletes or their family members or friends is not a violation of

NCAA legislation if it is demonstrated that the same benefit is generally available to the

institution’s students or their family members or friends or to a particular segment of the

student body (e.g., international students, minority students) determined on a basis

unrelated to athletics ability.

Weston, supra note 10, at 555; see also id. at 555 n. 18.

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California.

By accepting these gifts, Bush violated the NCAA bylaws; this is not the first

instance, as there have been countless violations similar to Bush’s.

Conversely, under the new

NIL rules, Bush’s actions would not have been considered a violation and it is estimated that

he would have made between four and six million dollars annually.

When discussing and considering student-athlete compensation, it is an inevitable

reality that unethical recruitment will be involved to some extent.

One of the primary concerns

of the NCAA in Alston was the prohibition of their extra benefit policies, especially regarding

recruitment.

The Court eased the NCAA’s concerns, with Justice Kavanaugh stating in his

concurrence that, “[u]nder the current decree, the NCAA is free to forbid in-kind benefits

unrelated to a student’s actual education; nothing stops it from enforcing a ‘no Lamborghini’

rule.”

One of the most notorious cases of unethical recruitment and student-athlete

compensation involves the University of Louisville (“Louisville”).

As a result of their NCAA

violations, Louisville lost its 2013 Division I men’s basketball national championship title.

was revealed through investigations, “that a former Louisville director of basketball operations

acted unethically when he committed serious violations by arranging striptease dances and sex

See Tori Powell, Reggie Bush wants his Heisman trophy and college stats restored after new NCAA policy:

“I never cheated this game”, CBS (Jul. 1, 2021), https://www.cbsnews.com/news/reggie-bush-wants-heisman-

trophy-after-ncaa-rules/; see also Paul Peszko, USC and the Reggie Bush Infractions: The Cliffs Notes Version,

Bleacher Report (May 31, 2011), https://bleacherreport.com/articles/718845-usc-and-the-reggie-bush-

infractions-the-cliffs-notes-version.

See e.g., Weston, supra note 10. Similarly, the father of Auburn quarterback and Heisman Trophy winner Cam

Newton engaged in a “pay for play” scheme where he marketed his talented son to prospective college football

programs, seeking a substantial amount of money in exchange for his son’s commitment to play. See Thamel,

supra note 10.

See McClymont, supra note 55; see also Joe Pompliano (@JoePompliano), TWITTER (Jul. 1, 2021, 11:41 am)

https://twitter.com/JoePompliano/status/1410624733855502343?s=20 (“Estimates suggest Reggie Bush would

make between $4 million to $6 million annually with the new NIL rules. Yet the NCAA took away his Heisman

Trophy because he accepted $300k under the table while USC made millions of dollars off his success.”).

Specifically, Article 13.2 issues, Offers and Inducements. 13.2.1 General Regulation:

An institution’s staff member or any representative of its athletics interests shall not be

involved, directly or indirectly, in making arrangements for or giving or offering to give

any financial aid or other benefits to a prospective student-athlete or the prospective

student-athlete’s family members or friends, other than expressly permitted by NCAA

regulations. Receipt of a benefit by a prospective student-athlete or the prospective

student-athlete’s family members or friends is not a violation of NCAA legislation if it is

determined that the same benefit is generally available to the institution’s prospective

students or their family members or friends or to a particular segment of the student body

(e.g., international students, minority students) determined on a basis unrelated to athletics

ability.

2021-2022 NCAA Division I Manual, supra note 16, at 36.

See Nat’l Collegiate Athletic Ass’n v. Alston ET AL., 594 U. S. 1 (2021) (“But the NCAA fears schools might

exploit this authority to give student-athletes “‘luxury cars’” “to get to class” and “other unnecessary or

inordinately valuable items” only “nominally” related to education.”).

Id.; see also Nat’l Collegiate Athletic Ass’n, supra note 16 (defining Extra Benefits).

Jeff Greer, University of Louisville has Lost its 2013 National Championship Banner, COURIER J., https://www.

courier-journal.com/story/sports/college/louisville/2018/02/20/louisville-basketball-ncaa-infractions-appeal-

ruling/1032556001/ (last updated Feb. 20, 2018, 10:54 PM) (“It is the first time in modern Division I men’s

basketball history that a championship was vacated.”).

See id.

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acts for prospects, student-athletes and others, and did not cooperate with the investigation.”

Under the new NIL rule, this would still be a violation of the NCAA’s policies and bylaws.

However, it is highly likely that the recruitment will heavily involve incentives demonstrating

universities abilities to help student-athletes find alternative forms of compensation.

previously discussed, this perpetuates the primary domestic issue addressed in Part III.

In the period before the NIL rule change, pre-collegiate compensation was another

issue that prevented student-athletes from having NCAA eligibility.

Cases such as LaMelo

Ball (“LaMelo”) who received compensation for a signature shoe, were not particularly

common. However, they provide an interesting look into issues that the old NCAA anti-

compensation rules caused.

While the compensation LaMelo received for his signature shoe

under his own brand presented a likely NCAA eligibility issue,

his decision to participate in

the professional Lithuanian Basketball League cemented his status as ineligible.

The NIL rule

change directly affects the “self-employment” provision within the NCAA bylaws.

Under the

new NIL rules, it logically stands that international “professional” players who are not

compensated by the teams as an employee, but rather only compensated through endorsements,

may be granted NCAA eligibility.

See NCAA, Louisville men’s basketball must vacate wins and pay fine, (Feb. 20, 2018, 12:00 PM), https://

www.ncaa.org/about/resources/media-center/news/louisville-mens-basketball-must-vacate-wins-and-pay-fine.

See generally Nat’l Collegiate Athletic Ass’n, 141 U. S. at 1; see also Nat’l Collegiate Athletic Ass’n, supra

note 16.

Christopher P. Conniff et al., NCAA NIL Update: With a Semester of Opportunities in the Books, Trends

Emerge and Confusion Reigns, ROPES & GRAY (Mar. 1, 2022), https://www.ropesgray.com/en/newsroom

/alerts/2022/March/NCAA-NIL-Update-With-a-Semester-of-NIL-pportunities-in-the-Books-Trends-Emerge-

and-Confusion-Reigns.

LaMelo Ball was not expected to be eligible to play college basketball due to him having a signature show

with his families Big Baller Brand. Because of the questionable eligibility, that was more than likely not going

to be given, LaMelo went professional overseas with a Lithuanian team.Tyler Conway, LaMelo Ball Reportedly

Not Expected to Be Cleared by NCAA Due to Signature Shoe, BLEACHER REPORT (Dec. 5, 2017),

https://bleacherreport.com/articles/2747813-lamelo-ball-reportedly-not-expected-to-be-cleared-by-ncaa-due-to-

signature-shoe; see also Des Bieler, LiAngelo and LaMelo Ball sign with Lithuanian professional team, The

Washington Post (Dec. 11, 2017), https://www.washingtonpost.com/news/early-lead/wp/2017/12/11/liangelo-

and-lamelo-ball-reportedly-sign-with-lithuanian-professional-team/.

See generally Conway, supra note 70; see also Bieler, supra note 70.

See Nat’l Collegiate Athletic Ass’n, supra note 16. Section 12.4.4 discusses Self-Employment: A student-

athlete may establish a business, provided the student-athlete’s name, photograph, appearance or athletics

reputation as not used to promote the business. Due to this provision, LaMelo would not have been granted

NCAA eligibility.

See Nat’l Collegiate Athletic Ass’n, supra note 16, at 12.2.3.2.

See Hosick, supra note 48. NIL is directly in opposition of the self-employment provision within Section

12.4.4 of the NCAA manual; see also Nat’l Collegiate Athletic Ass’n, supra note 16.

See generally Nat’l Collegiate Athletic Ass’n, 141 S.Ct. at 2164; Hosick, supra note 48; 2021-2022 NCAA

Division I Manual, supra note 16:

In sports other than men’s ice hockey and skiing, before initial full-time collegiate

enrollment, an individual may compete on a professional team (per Bylaw 12.02.12),

provided the individual does not receive more than actual and necessary expenses to

participate on the team. This exception and its interpretation could be expanded following

the NIL ruling.

12.2.3.2.1 Exception -- Competition Before Initial Full-Time Collegiate Enrollment – Sports Other Than Men’s

Ice Hockey and Skiing.

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D. NCAA Exceptions and Hypocrisy

The NCAA has historically been hypocritical and paradoxical in their adoption of

rules, with a number of exceptions and very little uniformity across different sports.

One

example is a rule governing student-athletes who participate in the Olympic games, which was

adopted by the NCAA in 1997.

This exception, however, did not allow Olympians to receive

compensation in the form of endorsements or advertising money.

In 2016, Joseph Schooling

won Singapore’s first Olympic gold medal and received a bonus of nearly one million dollars.

This comes from, inter alia, an “exception in 2015 to also allow international athletes to receive

bonuses.”

The inconsistency within the NCAA is perhaps, ironically, one of the most

consistent things about the organization.

The Kyle Parker paradox is another strange exception made by the NCAA.

“Under

the NCAA’s convoluted rules, college athletes on scholarship are ‘amateurs’ only when playing

the sports for which they were recruited. That means a college football player can still be an

“‘amateur’, while being compensated for playing another sport as a pro.”

In Kyle Parker’s

case, he retained NCAA eligibility for football while being compensated as a professional

baseball player in the Colorado Rockies organization.

The inconsistency within the NCAA is

See generally 2021-2022 NCAA Division I Manual, supra note 16. There are different rules for sports like Ice

Hockey and Baseball when dealing with agents and participating in professional sport environments that would

remove NCAA eligibility from athletes in other sports like Football or Basketball.

See 2021-2022 NCAA Division I Manual, supra note 16:

An individual may receive actual and necessary expenses from the U.S. Olympic and

Paralympic Committee, national governing body or the nonprofessional organizations

sponsoring the event to participate in Olympic or Paralympic tours or exhibitions involving

Olympic or Paralympic team members and/or members of the national team, provided that

if the individual is a student-athlete, no class time is missed, and the exhibition does not

conflict with dates of institutional competition.

12.1.2.4.14- 12.1.2.4.14 Expenses for Participation in Olympic or Paralympic Exhibitions.

See generally id.

Id.; see Solomon, supra note 32. Solomon stated,

This payment was perfectly permissible under NCAA rules, which since 2001 have

allowed US Olympians to compete in college while pocketing tens of thousands of dollars

(and sometimes six figures) from the United States Olympic Committee for winning gold,

silver, or bronze.” The NCAA added an exception in 2015 to also allow international

athletes to receive bonuses.

Id.; see Solomon, supra note 32:

This payment was perfectly permissible under NCAA rules, which since 2001 have

allowed US Olympians to compete in college while pocketing tens of thousands of dollars

(and sometimes six figures) from the United States Olympic Committee for winning gold,

silver, or bronze.” The NCAA added an exception in 2015 to also allow international

athletes to receive bonuses.

NCAA Sports Contracts and Amateurism, U.S. LEGAL, (last visited Sept. 9, 2022) https://sportslaw.uslegal.

com/sports-agents-and-contracts/ncaa-sports-contracts-and-amateurism/.

See Robert Litan, The NCAA’s “Amateurism” Rules: What’s in a Name?, MILKEN INSTITUTE REVIEW (Oct.

28, 2019), https://www.milkenreview.org/articles/the-ncaas-amateurism-rules. Kyle Parker accepted a $1.4

million signing bonus in 2010 to play professional baseball for the Colorado Rockies, he was still allowed to play

collegiate football as an amateur.

Litan, supra note 82.

Id.

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a major problem, creating confusion both socially and legally.

The NIL ruling only stands to

further complicate the NCAA’s “swiss cheese” definition of amateurism.

With all this said, a possible glaring issue becomes apparent: the NCAA generates

billions in revenue,

yet operates under the guise of a nonprofit organization.

Prior to Alston,

the NCAA, “[was] designed around the notion that providing access to an education [was]

sufficient compensation to players for their participation in a multibillion-dollar industry.”

However, this sentiment still remains and the NCAA will continue to operate as a nonprofit,

following their mission of “equipping student-athletes to succeed on the playing field, in the

classroom and throughout life.”

Other than a non-profit generating billions of dollars in profit,

the proposition that

education plays an important role in their mission is hypocritical.

While academics may be

promoted on paper, education is ancillary for the NCAA.

In 2017, the NCAA ruled that the

University of North Carolina (“UNC”) did not commit an academic violation after the school

fabricated academic records for athletes to maintain NCAA eligibility.

“An independent

report commissioned by North Carolina found that of the 3,100 students that took fake classes

over 18 years, 47.4 percent were athletes.”

It is naïve to think that this kind of fake class setup

only exists at UNC.

Professor Jasmine Harris of the University of Texas of San Antonio

stated, “data from my ongoing research on the academic experiences of black Division I

football and men’s basketball players shows that they spend three times as many hours per

week on athletics as they do on academics.”

See generally id.

See id.

See Revenue of the NCAA by segment from 2012 to 2020, STATISTA (last visited Oct. 18, 2021), https://

www.statista.com/statistics/219605/ncaa-revenue-breakdown/.

See Finances, NCAA (last visited Oct. 18, 2021), https://www.ncaa.org/finances; see also Dorgan Murphy, Is

the NCAA really a Non-profit or a SCAM? (Sept. 19, 2018), https://medium.com/@dorganmuffy/is-the-ncaa-

really-a-non-profit-or-a-scam-cd78c617a37d.

Solomon, supra note 32.

Finances, supra note 88.

See STATISTA, supra note 87.

See Mission and Priorities, NCAA (last visited Oct. 18, 2021), https://www.ncaa.org/mission-and-priorities

See id.; see also Solomon, supra note 32; see also Brian Murphy, ‘Shame on us’: Colleges fail unprepared

athletes, UNC whistleblower tells Capitol Hill panel, NEWS OBSERVER (Jul. 26, 2019), https://www.

newsobserver.com/sports/article233111249.html; see also Jasmine Harris, It’s naive to think college athletes

have time for school, THE CONVERSATION (Oct. 9, 2018), https://theconversation.com/its-naive-to-think-college-

athletes-have-time-for-school-100942; see also Angel Diaz, School Is for Fools: Why the NCAA Is a Joke,

COMPLEX (Mar. 16, 2018), https://www.complex.com/sports/2018/03/school-is-for-fools-why-ncaa-is-joke

(“These kids aren’t recruited to get an education, they’re at their particular school to make a Final Four

appearance, to make a bowl game, to win a national championship, to help the coach get a bigger contract

somewhere else, to help a conference get a TV deal.”).

See Jeremy Bauer-Wolf, NCAA: No Academic Violations at UNC, Inside Higher Ed (Oct. 16, 2017), https://

www.insidehighered.com/news/2017/10/16/breaking-ncaa-finds-no-academic-fraud-unc; see also Solomon,

supra note 32.

Solomon, supra note 32.

See generally Harris, supra note 93.

Harris, supra note 95. Professor Harris is an Assistant professor at The University of Texas of San Antonino

and has a Ph. D. in Sociology.

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While some claim “education and athletics are inherently at odds,”

the issue may

actually stem from the impotence of the NCAA enforcement model.

“The NCAA enforcement

model ‘creates no legal duty to prevent NCAA members from violating NCAA rules.’”

100

Far

from deterring future violations, this model may incentivize cheating, or at the very least,

perpetuate a tightrope “gamesmanship” amongst universities where schools encroach the

boundaries of the NCAA rules until faced with real consequences.

101

III. LEGAL ISSUE

Section A will address the primary domestic issue while Section B will address the

unique problems that international student-athletes face.

A. The Domestic Issue

The groundbreaking Alston ruling has already changed collegiate sports. However,

the differences between each states’ legislation in determining how universities may

compensate student-athletes could have greater implications than originally anticipated.

102

Schools in certain states will flourish under the new ruling, while others will crumble, due to

the stringent state legislation that will impede the future of their local colleges and

universities.

103

It has already been shown that some states, such as Ohio,

104

will have almost no

limitation on the compensation and what the schools within its territory may do to help their

student-athletes enter NIL deals.

105

Other states, such as Florida,

106

are taking a far more

conservative route when dealing with school involvement and the compensation of their

student-athletes.

107

Many of the bills are still being drafted and a massive shift in the collegiate

sports world is sure to occur due to the different state’s decisions.

108

In the most apocalyptic

scenario, entire conferences such as the Big 12, may be destroyed.

109

Also at risk, is the Big

Id.

See generally Solomon, supra note 32.

100

Id.; see also Enforcement Process: Penalties, NCAA (last visited Oct. 18, 2021), https://www.ncaa.org/

enforcement/enforcement-process-penalties.

101

See generally Solomon, supra note 32.

102

See Alston, 594 U.S. 1 (2021); see also Allender, supra note 9; see also Keller, supra note 9; see also Edel,

supra note 9.

103

See generally id.

104

See Chris Hummer, Ohio’s proposed NIL bill could give its schools a ‘huge’ advantage, 247 SPORTS (Jun.

24, 2021), https://247sports.com/Article/Ohio-name-image-and-likeness-bill-huge-advantage-NIL-Ohio-State-

Cincinnati-166937179/; see also Ohio State, STUDENT-ATHLETE NAME, IMAGE, LIKENESS

GUIDELINES (last visited Sept. 11, 2021), https://ohiostatebuckeyes.com/wp-content/uploads/2021/07/Ohio-

State-Student-Athlete-NIL-Guidelines-FINAL.pdf.

105

See Hummer, supra note 106; see also Ohio State, supra note 104.

106

See Hummer, supra note 106. (“Texas, New Mexico, Alabama and Florida all specifically have portions of

their laws dictating that universities or people associated with the school… cannot cause compensation to

occur.”).

107

See id.

108

See generally id.; see generally Keller, supra note 9.

109

See generally Ross Dellenfer, ‘It’s Going to Be a Clusterf---:’ The New Era of College Sports Is Here. Is

Anyone Ready?, SPORTS ILLUSTRATED (Jul. 1, 2021), https://www.si.com/college/2021/07/01/ncaa-athletes-

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East after Syracuse University “betrayed” them.

110

The post-legislative possibilities are

limitless.

The disparity in legislation will also have massive economic effects, as some schools

will now have more draw to get higher level recruits.

111

The shift in the balance of revenue

within certain conferences and schools will be significant.

112

For smaller market and lower

division schools, such as Grand Valley State,

113

getting the support of their state legislation is

a recruitment necessity to draw those student-athletes looking to make the most NIL profit.

114

Furthering the marginalization of smaller schools,

115

those in states with favorable NIL

legislation can take advantage of said legislation and offer student-athletes the option of

marketing profits instead of scholarships.

116

More options for schools creates an opportunity to

give less marketable student-athletes the incentive to play on a scholarship that otherwise may

not be available, putting the college at a distinct recruiting advantage.

117

Smaller schools,

especially those in states with unfavorable NIL legislation, will have a greater disadvantage

than they already experience.

118

“Division II and III athletic departments want to help [their

student-athletes profit], but the lack of resources makes it more difficult to do so.”

119

profit-nil-daily-cover; see generally Paul Newberry, Another conference realignment earthquake leaves college

football teetering, THE DENVER POST (Aug. 27, 2021), https://www.denverpost.com/2021/08/27/conference-

realignment-college-football-2021/.

110

See generally Dana O’Neil, A Truly Sad Weekend for the Big East, ESPN (Sept. 18, 2011), https://www.

espn.com/mens-college-basketball/story/_/id/6988839/greed-hypocrisy-spell-end-big-east-know-college-

basketball; see generally David Dietz, How Syracuse and Pittsburgh Unethically Began Destruction of Big East

Basketball, BLEACHER REPORT (last visited Sept. 11, 2021), https://bleacherreport.com/articles/856065-why-

syracuse-and-pittsburgh-destroyed-college-basketball-and-the-big-east.

111

See Bailey Lipschultz, NCAA Supreme Court ruling threatens to further divide the haves and have-nots of

college sports, FORTUNE.COM (Jun. 23, 2021), https://fortune.com/2021/06/23/ncaa-supreme-court-ruling-

division-i-student-athletes-college-sports/ (“This creates a big, big wedge for schools to take advantage of in

terms of recruiting,”).

112

See id. (“That means programs with money and fame—like the football team at the University of Alabama

or men’s basketball at Gonzaga University—are in a position to gain from the ruling”); see also id. (“Schools

that aren’t cash rich or don’t compete in conferences like the Southeastern Conference, the Big Ten or the Pac-

12, will probably be forced to reevaluate where athletics fit in”).

113

See Amanda Chrisovich, NCAA’s Last-Minute NIL Waiver, FRONT OFFICE SPORTS (Jun. 30, 2021),

https://frontofficesports.com/newsletter/fos-college-small-schools-nil-reality/ (A Division II college who stands

to face the undue burden of drafting and complying with state mandated NIL laws).

114

See Lipschultz, supra note 111 (“Not just across states, but for different programs and conferences that are in

a better position to offer athletes a marketing platform”).

115

See id. (“The U.S. Supreme Court decision that upended college sports economics this week threatens to

marginalize small schools that already struggle to stand out on the playing field”).

116

See id. (“‘Nowhere else in America can businesses get away with agreeing not to pay their workers a fair

market rate on the theory that their product is defined by not paying their workers a fair market rate,’ Kavanaugh

wrote in a separate opinion”).

117

See id.

118

See Chrisovich, supra note 113 (“Small schools are already at a disadvantage”).

119

Id.

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Small schools are at a distinct disadvantage under the new ruling.

120

They do not have

the faculty and personnel to keep up with the larger schools as it stood under the old system,

and with the introduction of the new NIL rule, the burden being thrust upon them by the NCAA

will harm them further.

121

“Wealthy D-I schools from Nebraska to Tennessee have spent the

past year building sprawling NIL programs, hiring consultants for NIL education, content

creation, compliance, and more. But many D-II and D-III schools can’t afford to enlist a

network of NIL companies on their payroll…”.

122

Not only do these smaller schools not have

the money, but because of their lack of manpower, they do not have access to the same

information regarding the state legislation compared to prominent and wealthier schools.

123

With state legislation still not concrete, the issues will persist until, and likely still after, the

dust settles and the NIL state-by-state laws are complete.

124

Smaller schools becoming more

competitive is better for the collegiate product

125

and aligns directly with the antitrust ruling in

Alston.

126

This positive competition is also seen with the new MLB proposition for competitive

taxes amongst the teams deemed uncompetitive.

127

By not intervening, schools put student-athletes in danger of being taken advantage

of by corporations and marketing schemes.

128

Like the child baker in Lochner v. New York,

129

the small student is free to deal with the big baker and corporation as a right.

130

However, West

Coast Hotel v. Parrish overturned this freedom to contract from Lochner

131

due to the implicit

inequality of power between the big corporation and the little baker.

132

There too, exists a

colossal difference in power between a young student-athlete and a multi-billion-dollar

corporation.

133

The power dynamic is almost disgusting. In its current iteration, there is nothing

120

See Lipschultz, supra note 111; see also id. (“Schools that aren’t cash rich or don’t compete in conferences

like the Southeastern Conference, the Big Ten or the Pac-12, will probably be forced to reevaluate where athletics

fit in”).

121

See id. One person in an athletic department may do the job of an entire team at a Power 5 school. So, they

have fewer personnel to begin with, like social media creators or compliance officers.

122

Amanda Chritovich, Small School Problems, FRONT OFFICE SPORTS (Jun. 30, 2021), https://frontofficesports

.com/newsletter/fos-college-small-schools-nil-reality/.

123

Lipschultz, supra note 111.

124

See generally id.

125

Contra, Kurt Badenhausen, Does Competitive Balance Drive Interest In Sports?, FORBES (Aug. 25, 2015),

https://www.forbes.com/sites/kurtbadenhausen/2015/08/25/does-competitive-balance-drive-interest-in-

sports/?sh=404a9a164f25.

126

See generally Alston, 594 U. S. 1 (2021) (noting that the Sherman Antitrust Act’s primary purpose is to

promote competition); see also Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877 (2007).

127

See generally Max Rieper, MLB owners reportedly propose a salary floor, but there’s a big catch, SBNATION

(Aug. 19, 2021), https://www.royalsreview.com/2021/8/19/22631822/mlb-owners-reportedly-propose-a-salary-

floor-but-theres-a-big-catch.

128

See Andrew Kahn, More money, more problems: As college athletes cash in on NIL, pitfalls arise, MICHIGAN

LIVE (Jul. 16, 2021), https://www.mlive.com/wolverines/2021/07/more-money-more-problems-as-college-

athletes-cash-in-on-nil-pitfalls-arise.html (noting that the NIL deals seen so far are not athlete-friendly).

129

Lochner v. New York, 198 U.S. 45, 57 (1905).

130

See id. at 61.

131

W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 392 (1937).

132

See generally Cass Sunstein, Lochner’s Legacy, 87 COLUM. L. REV., 873 (1987).

133

See generally id.; see also Kahn, supra note 128.

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in place under the new NCAA NIL rules or state legislation to protect student-athletes from

unfavorable deals and predatory contracts.

134

B. The International Issue

With the newly found compensation option, one might imagine that there may be a

larger number of foreign and international students coming to American colleges because they

can further develop their athletics.

135

These international students receive compensation while

getting the greatest exposure to scouts for professional leagues.

136

Following the Alston ruling

and NIL rule changes,

137

there could have been a possibility for a massive influx of international

college athletes.

138

The opportunity for international players was limited under the old NCAA

compensation rule,

139

with the new NIL rule, almost nothing has changed.

140

International student-athletes are being left out of the new NIL benefits due to

immigration and visa restrictions.

141

NCAA international student-athletes are on F-1 visas,

preventing them from earning a substantial income while studying in the U.S.

142

Immigration

attorney, Robert Sieger, said “I can see it opening a Pandora’s box on how the foreign student-

athlete will be able to come over here.”

143

With international student-athletes being further

restricted by the NCAA, the ongoing positive trend of international student-athlete participation

134

See generally Nat’l Collegiate Athletic Ass’n, 2021-2022 NCAA Division I Manual, supra note 16.

135

See generally Anayat Durani, 3 Tips for International Student-Athletes, U.S. NEWS & WORLD REPORT (Feb.

26, 2021), https://www.usnews.com/education/best-colleges/articles/tips-for-international-student-athletes

(“Apart from going pro, college is the highest level you can play at while continuing your education, which was

also very important to me”); See also Maddie Leydin, Jack Anderson – Hearing from International Student

Athletes, INT’L STUDENT ATHLETE HUB (Oct. 22, 2020), https://www.internationalstudentathletehub.com/jack-

anderson-hearing-from-international-student-athletes/; Maddie Leydin, Sandra Nordaas – Hearing from

International Student Athletes, INT’L STUDENT ATHLETE HUB (Nov. 5, 2020), https://www.

internationalstudentathletehub.com/sandra-nordaas-hearing-from-international-student-athletes/; Maddie

Leydin, Courtney McGregor – Hearing from International Student Athletes, INT’L STUDENT ATHLETE HUB (Nov.

19, 2020), https://www.internationalstudentathletehub.com/courtney-mcgregor-hearing-from-international-

student-athletes/ (international student athletes discussing their great opportunity to participate in and compete in

college athletics in the United States).

136

Contra David M. Hale & Dan Murphy, International student-athletes face an NIL conundrum, and no one

seems to have an answer, ESPN (Jun. 9, 2021), https://www.espn.com/college-sports/story/_/id/31575978

/international-student-athletes-face-nil-conundrum-seems-answer.

137

See generally Alston, 141 U.S. 1.

138

See contra Hale, supra note 136. International student-athletes make up around 12% of Division I NCAA

athletes, but “[A]ccording to the NCAA’s latest report, [international student-athletes] remain in a legal no man’s

land, thanks to a caveat within the visa program that prevents anyone on an F (or student) visa from earning a

substantial income while studying in the U.S.”

139

See generally 2021-2022 NCAA Division I Manual, supra note 16.

140

See Jacob Unruh, ‘It’s kind of pointless’: Oklahoma State, OU international athletes left in dark with NIL,

The Oklahoman (Aug. 14, 2021), https://www.oklahoman.com/story/sports/2021/08/14/oklahoma-state-ou-

international-athletes-cant-profit-nil/8044737002/ (“OSU confirmed to The Oklahoman that Hubbard —

arguably the most marketable football player the past two seasons — attended the university on a F-1 visa and

would not have been eligible for NIL profits.”).

141

See Hale, supra note 136; see also id.

142

See Hale, supra note 136.

143

See id.

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may turn sour.

144

International athletes are some of the most marketable and exciting athletes

in sports.

145

However, these valuable individuals are now unable to achieve compensation

whereas their domestic counterparts are.

146

Munya Maraire, CEO of World Wide Scholarships, stated that “[t]he laws were

designed to ensure that people applying to study in the United States via a student visa were

not intending to earn a substantial income as a professional at the same time…” however,

“…international students will now be unable to benefit from the recognition that the students

are actually the product that people pay to see.”

147

International-students are no better off than

they were before Alston.

148

Marraire further stated, “a full scholarship does not cover anything

outside of university-related expenses for the most part”, after recalling how he had to save

food money in order to have spending money on campus.

149

The problem is not with the NCAA

or the NIL ruling, it’s with the government and immigration.

150

Fighting against the NCAA is

one thing, fighting against the U.S. government is an entirely separate beast.

151

The issue with

international student-athletes and the mechanics of their student visas is of utmost

importance.

152

As the world becomes more interconnected,

153

the archaic visa rules must be adjusted

to reflect current societal values.

154

An F-1 visa’s primary purpose is to ensure the U.S.

economy is stimulated and the profits can be used within the country.

155

The controversy around

the F-1 Visa and international student-athletes fails to recognize the value of the opportunity to

144

See generally 2021-2022 NCAA Division I Manual, supra note 16; see also Hale, supra note 138; see NCAA

Research, Trends in the Participation of International Student-Athletes in NCAA Divisions I and II (Oct. 2019),

https://ncaaorg.s3.amazonaws.com/research/demographics/2019RES_ISATrendsDivSprt.pdf (showing an

increase of around 3% in international student-athlete participation in Division I and II).

145

See SPORTSPRO, SportsPro 5 Most Marketable Athletes, (last visited Oct. 1, 2021), https://50mm.

sportspromedia.com/athletes/ (showing that six of the 10 most marketable athletes in the world are not American).

146

See Unruh, supra note 140.

147

NFL Draft Bible, International student athletes get a raw deal out of NIL deal: What does the NIL deal mean

for international athletes?, SPORTS ILLUSTRATED (Jun. 28, 2021), https://www.si.com/nfl/draft/news/

international-student-athletes-get-a-raw-deal-out-of-nil-deal.

148

See generally Hale, supra note 136.

149

See NFL Draft Bible, supra note 147.

150

See Hale, supra note 136.

151

See Kevin Reynolds, As college athletes benefit from NIL, international counterparts are left out, THE SAN

DIEGO TRIBUNE (Jul. 5, 2021) https://www.sandiegouniontribune.com/sports/college/story/2021-07-05/ncaa-nil-

laws-international-athletes-compensation-money (“‘I am going to fight the NCAA. I’m fine with that. I’m not

going to sit back and watch,” Rocak said. ‘But I’m not going to fight the government. That’s too much. That’s

your life.’”).

152

See Anayat Durrani, 3 Things International Student-Athletes Should Know, U.S. NEWS & WORLD REP. (Feb.

15, 2022), https://www.usnews.com/education/best-global-universities/articles/things-international-student-

athletes-should-know.

153

See generally Gabriel Pietrafesa, How connected is the world? Analysis through air connections between

countries, TOWARDS DATA SCIENCE (Oct. 16, 2020), https://towardsdatascience.com/how-connected-is-the-

world-45f272e21d3e (demonstrating how connected the world is through air travel).

154

See Steve S. Rao, Here’s how the archaic H-1B visa program hurts NC’s economy, NEWS OBSERVER (last

visited Feb. 5, 2022), https://account.newsobserver.com/paywall/subscriber-only?resume=256645292&intcid

=ab_archive (“Everyone knows the U.S. immigration system is badly broken …but many don’t realize how

badly”).

155

See generally NFL Draft Bible, supra note 147.

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bring foreign currency into the domestic marketplace.

156

There exists an achievable symbiotic

opportunity for foreign corporations to advertise through domestic student-athletes, while

domestic corporations advertise to foreign markets through international student-athletes.

157

Instead, it is only foreign corporations who are profiting from domestic student-athlete

sponsorship deals.

158

By shutting out international student-athletes from NIL deals, the U.S. is

missing out on a source of potential major profit.

159

The opportunity that international student-

athletes present far outweighs the government created visa issues, which are designed to ensure

that international students are coming over to receive an education instead of obtaining jobs.

160

The issue is not the international student-athletes’ alone, but rather the federal government and

the limitations student F-1 visas present.

161

IV. PROPOSED SOLUTION

Section A will propose a primary solution to these issues. Section B will advocate a

solution for the visa issue surrounding international student-athletes.

A. The Creation of a Supervisory Board

The NCAA needs to have a way to support schools and student-athletes.

162

As it

currently stands, the NCAA and their NIL policy is wreaking havoc on collegiate sports.

163

stated previously in Part III,

164

by stepping back and allowing state legislation to control the

156

See also Hale, supra note 138; see also SportsPro, supra note 145.

157

See Rod B. McNaughton & Jim Bell, Channel Switching between Domestic and Foreign Markets, J. INTL.

MRKT., Vol. 9, No. 1, 24 (2001), https://www.jstor.org/stable/25048840?seq=1#metadata_info_tab_contents.

158

See generally NFL Draft Bible, supra note 149 (“The firms are teaching athletes how to build their brands

and teaching schools how to track endorsement

deals and stay compliant with new laws, but they are not providing legal guidance on immigration issues.”); see

also Hale, supra note 138; see also SportsPro, supra note 145.

159

See generally NFL Draft Bible, supra note 147 (“[Immigration Attorney] said that, while the total value of

NIL deals might be limited for most foreign student-athletes, the visibility of the income is more likely to attract

potential problems with student visas than the particular

amount the athletes are earning.”); see also Hale, supra note 136; see also SportsPro, supra note 145.

160

See generally NFL Draft Bible, supra note 147 (“While F1 visas allow for international students to work on

campus, as well as other limited forms of income

with prior approval from immigration officials, any revenue from NIL would not appear to fit under those

narrow guidelines.”); see also Hale, supra note 136; see also SportsPro, supra note 145.

161

See Raymond G. Lahoud, International Student Athletes Shut Out of NIL Deals, THE NAT’L L. REV. (Nov.

23, 2021), https://www.natlawreview.com/article/international-student-athletes-shut-out-nil-deals.

162

See Kahn, supra note 128. Among the NIL deals seen so far, “[t]he fine print on all those deals wasn’t exactly

athlete-friendly…”. See generally 2021-2022 NCAA Division I Manual, supra note 16.

163

See Nat’l Collegiate Athletic Ass’, v. Alston ET AL., 141 S. Ct. 2141, 2151 (2021); see also Allender, supra

note 9; see also Keller, supra note 9; see also Edel, supra note 9.

164

Supra Part III, Legal Issue.

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NIL policies of universities,

165

and providing no support to schools during this transitional

period, the NCAA is amplifying the inequality within the sphere of college athletics.

166

The primary solution this Note proposes is the formation of a supervisory board within

the NCAA itself that has advisory authority as well as legislative and policing power.

167

The

supervisory board would eventually be able to step in and help students and schools set up NIL

deals and departments.

168

The NCAA currently has committees that oversee many different

areas of the association,

169

such as the Division I Competition Oversight Committee

(“DICOC”).

170

The DICOC demonstrates that a groundwork already exists for the creation of

empowered bodies within the NCAA governance structure.

171

One entity which specifically

provides the closest existing parallel to my proposed supervisory board, is the Student-Athlete

165

See generally Nat’ Collegiate Athletic Ass’n, 141 S. Ct. at 2166; see also Allender, supra note 9; see also

Keller, supra note 9; see also Edel, supra note 9; see also Hummer, supra note 104; see also Ohio State, supra

note 104.

166

See generally Nat’ Collegiate Athletic Ass’n, 141 S. Ct. at 2166; see also Allender, supra note 9; see also

Keller, supra note 9; see also Edel, supra note 9; see also Sunstein, supra note 132; see also Kahn, supra note

128.

167

See Technical Advisory Group to focus on growth and advancement of women’s football, FIFA (Oct. 18,

2021), https://www.fifa.com/football-development/the-future-of-football/media-releases/technical-advisory-

group-to-focus-on-growth-of-womens-football (explaining how the FIFA technical advisory group will initially

gather information and then take steps as an advisory board to be impactful in the growth and advancement of

women’s soccer).

FIFA Forward is built to provide 360-degree, tailor-made support for football development

in each of our member associations and the six confederations and is based on three

principles: more investment, more impact, more oversight. The aim is to improve the way

we develop and support football across the globe so that football can reach its potential in

every single country, and everyone who wants to take part can do so without barriers.

FIFA Forward Programme, FIFA (last visited Oct. 20, 2021), https://www.fifa.com/football-development/fifa-

forward.

168

This could be done in a similar manner to the FIFA Forward Programme. See FIFA Forward Programme,

FIFA (last visited Oct. 20, 2021), https://www.fifa.com/football-development/fifa-forward.

169

See e.g., Division I Oversight Committee, NCAA (last visited Jan. 23, 2022), https://www.ncaa.org/

sports/2015/3/16/division-i-competition-oversight-committee.aspx.

170

Id. The Division I oversight committee is a governance committee within the NCAA.

The Competition Oversight Committee will have oversight responsibility of regular season

and championships administration in sports other than football and men’s and women’s

basketball, including supervision of qualification and/or selection procedures for Division

I and National Collegiate Championships. The committee will prioritize enhancement of

the student-athlete educational experience (academically and athletically) and, in doing so,

promote student-athletes’ personal growth and leadership development… The

Competition Oversight Committee will review recommendations from sports committees

and process other issues related to the administration of those championships. The sports

committees (other than football and men’s and women’s basketball) will report directly to

the Competition Oversight Committee. The committee will assume many of the

responsibilities of the former NCAA Division I Championships/Sports Management

Cabinet. The NCAA Olympic Sports Liaison Committee, an Association-wide committee,

will report Division I issues directly to the Competition Oversight Committee.

171

See generally Division I Oversight Committee, supra note 169. See also NCAA Division III: A Guide to

Developing an Effective Student-Athlete Advisor Committee (SAAC) Constitution, NCAA, at 8, 19, 23, https://

ncaaorg.s3.amazonaws.com/committees/d3/saac/D3SAAC_GuideDevelopingEffectiveSAACConstitution.pdf

(last visited Jan. 23, 2022).

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195

Advisory Committee (“SAAC”).

172

“The mission of the NCAA Division I Student - Athlete

Advisory Committee is to enhance the total student-athlete experience by protecting student-

athlete well-being, fostering a positive student-athlete image and inclusive student-athlete

environment, and promoting student-athlete engagement at the national, conference, and local

levels.”

173

Similar to a professional players union,

174

SAACs allow student-athletes to have a

voice and some voting power.

175

However, these SAACs are lackluster when it comes to their

professional counterparts such as the almighty Major League Baseball Players Association

(“MLBPA”).

176

While SAACs are student-athlete run player unions, like the MLBPA, they are

a separate entity that encompasses enough power to halt their entire sport’s season.

177

The

proposed supervisory board would be an existence somewhere between an SAAC and a players

association. While the MLBPA has power that rivals the MLB, to accomplish its goals during

collective bargaining.

178

This NCAA board will never have the power to rival State legislation.

Unlike both the SAACs and the MLBPA, the current issues would be best suited if the athletes

were not involved.

179

If the athletes were involved, it would be counterproductive as the athletes

are the group of individuals that the supervisory board is attempting to protect.

180

Legislation allowing the NCAA to assist student-athletes within states that currently

bar university or school interference with student-athlete compensation would be effective and

172

See NCAA Division III: A Guide to Developing an Effective Student-Athlete Advisor Committee (SAAC)

Constitution, supra note 171, at 14.

173

NCAA, at 2, https://s3.amazonaws.com/ncaaorg/committees/d1/saac/D1SAAC_AboutInfoGraphic.pdf.

174

See generally Alden Gonzalez, MLB commissioner Rob Manfred, union chief Tony Clark hail new CBA as

lockout ends, ESPN (Mar. 10, 2022), https://www.espn.com/mlb/story/_/id/33470321/sources-mlb-union-reach-

tentative-agreement-new-cba-salvage-162-game-season (discussing how professional athlete unions such as the

Major League Baseball Players Association, have a great degree of voting authority and influence to the extent

that they can even prevent the commencement of baseball seasons).

175

See Division I Oversight Committee, supra note 169. See also NCAA Division III: A Guide to Developing an

Effective Student-Athlete Advisor Committee (SAAC) Constitution, supra note 171, at 14, 16.

176

See about, MAJOR LEAGUE BASEBALL PLAYERS, https://www.mlbplayers.com/about (“The MLBPA is the

union that represents players on the 40-man rosters of the 30 Major League baseball teams and oversees MLB

Players, Inc., which exclusively represents the group commercial and licensing activities involving active

players”). See also NCAA Division III: A Guide to Developing an Effective Student-Athlete Advisor Committee

(SAAC) Constitution, NCAA, supra note 171, at 3.

177

Currently, as of January 2022, the MLB and MLBPA have become embroiled in a complete work stoppage

as they work on the Collective Bargaining Agreement between themselves. See Dayn Perry, MLB lockout:

Everything to know about baseball’s first work stoppage since 1994-95, CBS SPORTS (Dec. 12, 2021),

https://www.cbssports.com/mlb/news/mlb-lockout-everything-to-know-about-baseballs-first-work-stoppage-

since-1994-95/; see also FAQ, MAJOR LEAGUE BASEBALL PLAYERS, https://www.mlbplayers.com/faq (last

visited Jan. 23, 2022).

The MLBPA is the collective bargaining representative for all current Major League

Baseball players. The Association also assists players with grievances and salary

arbitration. The Association works closely with MLB in ensuring that the playing

conditions for all games involving Major League players, whether the games are played in

MLB stadiums or elsewhere, including internationally, meet proper safety guidelines. The

Association also serves as the group licensing agent on behalf of the players.

178

See Perry, supra note 177.

179

See generally MLBPA, supra note 176.

180

Contra id.

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helpful.

181

However, successful pieces of federal or state legislation allowing the NCAA to

intervene and support students are unlikely.

182

While there has been some legislative movement,

such as the proposed College Athlete Right to Organize Act,

183

it “is unlikely to pass in the

current Congress, which has shown little appetite for such legislation. A companion bill

introduced by three House Democrats also has not found any Republican co-sponsors.”

184

Further, this unionization of student-athletes would put more stress and responsibility onto

student-athletes who already face the dual pressure of succeeding in scholastics and athletics.

185

Therefore, the NCAA needs to implement a rule change into their own constitution to

allow intervening authority to this supervisory board.

186

Along with the rule change, the NCAA

would need to require schools to recognize their intervention power. To accomplish this, the

NCAA could require schools to recognize the power in order to participate in NCAA athletics;

following in a similar manner to civil war reconstruction and how confederate states could not

181

See Keller, supra note 9; Edel, supra note 9. Further, this aligns with the NCAA’s mission to keep college

athletes saf; see also Mission and Priorities, supra note 92 (“In 1906, the NCAA was founded to keep college

athletes safe. The Association is still working hard to protect them physically and mentally. Through its Sport

Science Institute, the NCAA provides recommendations and guidelines to ensure college athletes are getting the

best care possible”); see generally Molly Hensley-Clancy, Senate Democrats introduce bill to allow college

athletes to unionize, WASHINGTON POST (May 27, 2021), https://www.washingtonpost.com/sports/2021

/05/27/college-athletes-unions-legislation-bernie-sanders-chris-murphy/.

182

See generally With the NCAA’s Decision to Permit Amateur Name Image Likeness Compensation, Student-

Athletes and Legislators Score a Big Win; But Will It Be a Draw at the End of the Season?, SAUL EWING

ARNSTEIN & LEHR LLP (Nov. 20, 2019), https://www.saul.com/publications/alerts/ncaa’s-decision-permit-

amateur-name-image-likeness-compensation-student-athletes-and-legislators; see also generally Andrea P.

Brockway et al., What the NCAA’s Legislation Working Group’s Final Report and Recommendations on Name,

Image, and Likeness Mean For Student-Athletes, Colleges and Universities, JDSUPRA (May 19, 2020), https://

www.jdsupra.com/legalnews/what-the-ncaa-s-legislation-working-97758/. Contra Hensley-Clancy, supra note

183.

183

See Hensley-Clancy, supra note 181. According to the Washington Post,

A new bill from congressional Democrats would allow college athletes to unionize,

making it possible for students from across universities to band together to form unions

within athletic conferences…The bill from Sens. Bernie Sanders (I-Vt.) and Chris Murphy

(D-Conn.) would rewrite federal labor law to define all college athletes receiving

scholarships and other pay as employees of both public and private universities — which

would be a significant reimagining of the college sports landscape.

184

See id.

185

Id.; see Jason Perry, Dealing with Stress as a College Athlete, Athlete Network (last visited Jan. 23, 2022),

https://an.athletenetwork.com/blog/dealing-with-stress-as-a-college-athlete.

College athletes are known to encounter unique stress factors that the general student

population does not always face. Because of this, student-athletes can be at a higher risk

of anxiety and depression. Athletes stress over performance. They are often pressured to

push themselves to the limit knowing that bad performances can effect relationships with

coaches, as well as a decrease in scholarship. Athletes are also pressured academically. If

a student-athlete doesn’t maintain a specific GPA they will not be allowed to compete.

Student-athletes also have more pressure with their social lives. One bad post on social

media or one slip up with school authorities might find an athlete suspended from the team.

All of this is added on top of the regular pressures of being a student like studying for a

big exam, adjusting to living alone, and balancing time for a healthy social life. Athletes

have less time in their day to deal with the average problems of being a student. Time

management is extremely important, and it is not uncommon for an athlete to slip up and

make a simple mistake.

186

See generally With the NCAA’s Decision to Permit Amateur Name Image Likeness Compensation, Student-

Athletes and Legislators Score a Big Win; But Will It Be a Draw at the End of the Season?, supra note 182; see

also Brockway, supra note 182.

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participate in federal government and congressional activities until they agreed to change their

state constitutions.

187

While the new board should require a base amount that schools can step

in to help the students find sponsorships and compensation, this would require them to go

against certain State’s legislation.

188

Thus, such a route would be nearly impossible, as Justice

Kavanaugh stated in his Alston concurrence, “[the] NCAA is not above the law”,

189

nor are

they the law.

190

The proposed board will need funding to operate, as such, there are several possible

avenues to explore. An excellent option follows in the footsteps of players unions, such as the

MLBPA,

191

where student-athletes would pay a membership fee to be a part of the supervisory

board’s program.

192

However, student-athletes often do not have the capital to pay such

membership fees.

193

Therefore, instead, schools could supplement these fees by paying a

membership fee to the NCAA in place of the student-athletes. However, this may further

marginalize small schools that do not have the means to pay these fees and give large wealthier

schools another advantage.

194

Perhaps the best source is instead a small tax-like operation where the NCAA will

collect a small percentage of the NIL deals they broker.

195

This prevents the marginalization of

small schools and removes the advantage that large wealthy schools get under the previous

option.

196

The best option would be for the State to fund this supervisory board with the interest

of protecting their student-athletes in mind, but that is highly unlikely.

197

In addition, the

shifting of funds could prove to be more trouble than they would be worth.

198

Therefore, the

best solution to funding the supervisory board is the percentage of brokered deals option.

199

a class of individuals who have historically been taken advantage of,

200

there needs to be more

significant safety nets to ensure the new system put in place does not corrupt the intention of

aiding student-athletes.

201

Federal legislation requiring that the supervisory board make the

187

See, e.g., The End of Slavery and the Reconstruction Amendments, Bill of Rights Institute (last visited Oct.

25, 2021), https://billofrightsinstitute.org/essays/the-end-of-slavery-and-the-reconstruction-amendments.

188

See, e.g., Keller, supra note 9; see also Edel, supra note 9.

189

Nat’l Collegiate Athletic Ass’n v. Alston ET AL., 594 U.S. 1 (2021) (Kavanaugh, J., concurring).

190

See generally Nat’l Collegiate Athletic Ass’n, 594 U.S. 1 (2021).

191

See FAQ, MLBPA (“The players’ dues were $85 per day during the 2021 season”) supra note 177.

192

Id.

193

See generally NFL Draft Bible, supra note 147.

194

See Lipschultz, supra note 113; see also Chrisovich, supra note 113.

195

See Ney Grant, How Do Business Broker and M&A Commissions Work?, ALL BUSINESS (last visited Feb. 5,

2022), https://www.allbusiness.com/how-do-business-broker-and-ma-commissions-work-4968387-1.html

(explaining a business broker commission fee).

196

See generally Lipschultz, supra note 111; see also Chrisovich, supra note 113.

197

See generally Ryan Nicol, Bill restoring July 1 start date for college athlete NIL pay lands on Governor’s

desk, FLORIDA POLITICS (Jun. 24, 2021), https://floridapolitics.com/archives/437756-bill-college-athlete-pay-

governors-desk/; see also sources, supra note 182.

198

See Elizabeth McNichol & Iris Lav, State Budget Troubles Worsen, CBPP (Nov. 12, 2008), https://

www.cbpp.org/sites/default/files/archive/9-8-08sfp.htm (showing how difficult state budgets are to manage).

199

See id; see also Grant, supra note 195.

200

See Shreve, supra note 13.

201

See generally Curtis, supra note 17 (“One strong argument in favor of a new system rests on the premise that

if an athlete already received compensation above a traditional scholarship and had adequate medical coverage

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records of its business public could be an excellent option.

202

Forcing the NCAA to publicly

announce where the money is would uncover disparities and hold the board accountable.

203

The

public sphere would be able to freely critique and swiftly bring suit to identified issues in fund

management.

204

The release of this information to the public would need to redact all names of

student-athletes involved for privacy reasons.

205

While legislation is a robust method to ensure

anti-corruption,

206

it takes years to process and approve legislative bills, if they are ever

adopted.

207

Therefore, the most reasonable option is an internal SAAC of student-athlete

representatives who would oversee the board’s proper operation, holding them accountable.

208

While there may be a call for minimum compensation for student-athletes, such an

idea is implausible and directly goes against the mission of the NCAA.

209

While the rule change

allowing compensation creates opportunities for student-athletes to profit via NIL deals,

210

there is no change in that the NCAA represents an amateur sphere of athletic participation.

211

in case of severe injury, there would be less motivation to leave college early to play professional sports, thereby

better fulfilling the NCAA’s primary ideal of education.”).

202

See generally Candice Quinn et al., New York’s Disclosure Law and Other Laws and Regulatory Mandates

Regarding Women on Corporate Boards, SEYFARTH SHAW LLP (Jan. 21, 2021), https://www.seyfarth.com/news

-insights/new-yorks-disclosure-law-and-other-laws-and-regulatory-mandates-regarding-women-on-corporate-

boards.html. (showing the effectiveness of legislation regarding disclosure laws). Congress has proposed a law

that amends the Security Exchange Act of 1934 and requires companies to disclose the composition of their

board, nominees and executive officers. Under the Biden administration, Congress may bring similar legislation

to the forefront for consideration.

203

See Alexandra Habershon, Will financial disclosure by public officials mean less corruption?, (Mar. 27,

2012), https://blogs.worldbank.org/psd/will-full-financial-disclosure-by-public-officials-mean-less-corruption.

204

See generally id.

205

See generally David Klein, College Athlete Trademarks: Protecting Student Athletes’ Name, Image, And

Likeness Rights, KLEIN MOYNIHAN TURCO LLP (Oct. 15, 2021), https://kleinmoynihan.com/college-athlete-

trademarks-protecting-student-athletes-name-image-and-likeness-rights/. As of July 1, 2021, the National

Collegiate Athletic Association (NCAA) suspended its rules that prohibited college athletes from taking

advantage of their names, images, and likenesses for commercial profit. Registering an athlete’s trademark

provides legal protection for his/her brand and helps guard against counterfeiting and fraud.

206

See Habershon, supra note 203.

207

See generally Hensley-Clancy, supra note 181. A bill introduced to have college athletes be able to unionize

would face steep odds. In 2015, an attempt by football players at Northwestern to form a union was dismissed by

the National Labor Relations Board, which adjudicates labor disputes. The federal board chose, essentially, not

to rock the boat, acknowledging that allowing athletes to unionize would have broad impacts on the landscape of

college sports.

208

See generally NCAA Division III: A Guide to Developing an Effective Student-Athlete Advisor Committee

(SAAC), supra note 171. The NCAA has provided frameworks to help institutions create, update or discuss the

constitution and related procedures for their campus SAAC. The framework will provide a guiding hand for those

looking to maximize the benefit of a SAAC within their unique campus environment.; see also Player

Leadership, MLBPA (last visited Feb. 5, 2022), https://www.mlbplayers.com/player-leadership.

209

See generally Mission and Priorities, supra note 92 (“To get the most out of college, student-athletes have to

succeed on the court and in the classroom. The NCAA provides opportunities to learn, compete and grow on and

off the field. The ultimate goal of the college experience is graduation, and college athletes are graduating at rates

that are higher than ever.”).

210

See generally Kahn, supra note 128. Athletes have been previously taken advantage of for their skills and

deprived of any right to earn compensation for playing whatsoever.

211

See generally Mission and Priorities, supra note 91 (“The NCAA is a member-led organization focused on

cultivating an environment that emphasizes academics, fairness and well-being across college sports.”) Thus, a

main mission of the NCAA is to promote academics and not professional athletes.

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Minimum compensation legislation for student-athletes would make the NCAA a professional

league.

212

The NCAA is staunchly against pay-for-play models and should not be mistaken to

be anything but an organization for amateur athletes to compete.

213

As stated, without school intervention, the students are put in danger of being taken

advantage of by corporations.

214

Therefore, the supervisory board should supplement this base

support with their own intervention and legislative power. These actions would provide schools

with a task force that would help athletes at their request, and this is something they would not

be able to handle on their own.

215

This supplementation will also create more job opportunities

for sports lawyers and agents, as the supervisory board would require a significant amount of

skilled and knowledgeable professionals.

216

Further, jobs would be created by the departments

that the board helps set up in schools. This solution would protect programs and students;

overall, the interest of the NCAA and the states that get kickbacks from major universities and

their athletics would also be protected.

217

B. International Student-Athlete Solution

The international issue identified above requires its own solution.

218

However, there

is no reason why the international student-athletes should be separated from domestic student-

athletes under the protection of the proposed supervisory board. Of course, the international

students face the same problems that domestic students face,

219

with the addition of visa

issues.

220

Therefore, the supervisory board should support international students through

212

Id.; See Curtis, supra note 17. The NCAA “purports as one of its major principles: ‘Student-athletes shall be

amateurs...and their participation should be motivated primarily by education and by the physical, mental and

social benefits to be derived.”

213

See generally Hosick, supra note 48; see Curtis, supra note 17.; see also Mission and Priorities, supra note

92. The mission of the NCAA is mainly to promote academics alongside sports, not solely playing sports.;

“The new policy preserves the fact college sports are not pay-for-play,” said Division II

Presidents Council chair Sandra Jordan, chancellor at the University of South Carolina

Aiken. “It also reinforces key principles of fairness and integrity across the NCAA and

maintains rules prohibiting improper recruiting inducements. It’s important any new rules

maintain these principles.”

214

See Kahn, supra note 128. Among the NIL deals seen so far, “[t]he fine print on all those deals wasn’t exactly

athlete-friendly . . .”.

215

See Lipschultz, supra note 111.

216

See generally Attorneys Offer Thoughts of How College Athletic Departments Should Cope with NIL

Movement, SPORTS LITIGATION ALERT (Jul. 30, 2021), https://sportslitigationalert.com/attorneys-offer-thoughts-

of-how-college-athletic-departments-should-cope-with-nil-movement/. Outside counsel will play an important

role as athletic departments try to navigate (1) emerging state law, (2) NCAA compliance, (3) NIL policy and

school-related contractual matters, and (4) working with a large number of student athletes (who may agree to

thousands of NIL contracts). In this respect, many athletic departments may not have the bandwidth to address

these challenges. Consequently, many athletic departments may turn to outside counsel to help analyze new state

laws, review individual school NIL policies and compliance, and help facilitate contractual matters.

217

See Lipschultz, supra note 111.

218

See Hale, supra note 136.

219

See id.

220

Lahoud, supra note 161; see id.

For international students to study in the United States, they must apply for visas through

the U.S. Department of State. Generally, international student-athletes enter the United

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compiling information and lobbying for changes with visa status.

221

The separation of visas and

their purposes for students versus professionals is antiquated and should be changed.

222

Tay

Hawker, president of the management firm Hawker Sports & Entertainment, has stated:

ICE (Immigration and Customs Enforcement) actually has the ability to

change the rule whenever they feel. That doesn’t have to be voted through

congress or anything, which is huge, Fundamentally, the law was created to

stop international student-athletes from taking money out of the American

economy and sending it home, which as times have changed is just comical.

They need the money themselves for things like gas, food, clothes,

sometimes rent and electricity too.

223

The new NIL rule should create a foothold in lobbying for, at the very least, an exception for

student-athletes participating within the U.S., which the committee shall pursue.

In the primary solution section addressed above, the issue of a base compensation

model for student-athletes is presented.

224

It goes against the entire idea of amateurism and

presents a “pay for play” issue, which the NCAA is inherently against.

225

Such a proposal

translates even more so to international student-athletes who are also held back by visas.

226

potential alternative to the lack of available money for the international student-athlete, as well

as avoiding the visa issue, is for the proposed supervisory board to have an international NIL

program.

227

Specifically, this Note proposes that within the supervisory board, there should be

a council that directly markets the international student-athletes. To avoid the exact scenario

States with an F-1 visa. To maintain status under an F-1 visa, a student may engage in paid

work under one of four scenarios: 1) on-campus employment, 2) off-campus employment

for economic hardship, 3) in curricular practical training, or 4) in optional practical

training. Under current regulations, these earning options are intentionally limited.

Accordingly, the type of NIL sponsorship deals now available to NCAA athletes are not

available to F-1 visa holders. In fact, by earning income through an NIL deal, an F-1

student visa holder could face a litany of troubles, including deportation.

221

See Hale, supra note 136.

222

See generally id.

223

Brandis Heffner, International Student-Athletes are Missing out Big on NIL, COLLEGE GYM NEWS (Oct. 21,

2021), https://collegegymnews.com/2021/10/21/international-student-athletes-are-missing-out-big-on-nil/.

224

”The NCAA purports as one of its major principles: ‘Student-athletes shall be amateurs...and their

participation should be motivated primarily by education and by the physical, mental and social benefits to be

derived…” Curtis, supra note 17; see generally Mission and Priorities, supra note 92;

“‘The new policy preserves the fact college sports are not pay-for-play,’ said Division II

Presidents Council chair Sandra Jordan, chancellor at the University of South Carolina

Aiken. ‘It also reinforces key principles of fairness and integrity across the NCAA and

maintains rules prohibiting improper recruiting inducements. It’s important any new rules

maintain these principles.’”

Hosick, supra note 48.

225

See generally Mission and Priorities, supra note 92;

“‘The new policy preserves the fact college sports are not pay-for-play,’ said Division II Presidents Council chair

Sandra Jordan, chancellor at the University of South Carolina Aiken. ‘It also reinforces key principles of fairness

and integrity across the NCAA and maintains rules prohibiting improper recruiting inducements. It’s important

any new rules maintain these principles.’”

Hosick, supra note 48.

226

See Hale, supra note 136.

227

See id.; see also NFL Draft Bible, supra note 147.

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that Alston ruled against,

228

the profits from these supervisory NIL deals could be placed into a

trust for scholarship funds, which shall be directly granted to the international student-athlete

who, if domestic, would have been a part of the NIL deal themselves.

229

In this instance, the

board would act as a straw man,

230

circumventing the visa issue and supporting international

student-athletes.

231

This would need to be supervised carefully to ensure the board is not

embezzling funds or taking advantage of this suspect class.

232

As such, the same solution as

mentioned in the above section would work.

The primary State interest to support this would be economic and financial

incentives.

233

The domestic market would be stimulated by allowing international student-

athletes to have sponsorship deals.

234

The international student-athletes being sponsored by

domestic entities would increase those entities’ international presence and serve as a platform

for them to reach more countries than other marketing strategies might.

235

International athletes

are highly marketable,

236

and the international market is a metaphorical gold mine.

237

As an

incentive for passing legislation, the government can place a higher tax on international student-

athlete NIL deals in order to gain further capital while simultaneously providing the students

228

See Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 1 (2021).

229

See generally Hosick, supra note 48.

230

See Straw Man, LEGAL INFO. INST., https://www.law.cornell.edu/wex/straw_man (last visited Feb. 5, 2022)

(“Straw man … is a person to whom title to property or a business is transferred for the sole purpose of concealing

the true owner.”).

231

See generally NFL Draft Bible, supra note 147.

232

See generally Nat’l Collegiate Athletic Ass’n, 594 U. S. 1 (2021).

233

Id.; see generally Greg Depersio, What Are Ways Economic Growth Can Be Achieved?, INVESTOPEDIA (May

17, 2021), https://www.investopedia.com/ask/answers/032415/what-are-some-ways-economic-growth-can-be-

achieved.asp; see also Exec. Order No. 14,036 (2021), https://www.whitehouse.gov/briefing-room/presidential-

actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.

A fair, open, and competitive marketplace has long been a cornerstone of the American

economy, while excessive market concentration threatens basic economic liberties,

democratic accountability, and the welfare of workers, farmers, small businesses, startups,

and consumers. The American promise of a broad and sustained prosperity depends on an

open and competitive economy. For workers, a competitive marketplace creates more

high-quality jobs and the economic freedom to switch jobs or negotiate a higher wage. For

small businesses and farmers, it creates more choices among suppliers and major buyers,

leading to more take-home income, which they can reinvest in their enterprises. For

entrepreneurs, it provides space to experiment, innovate, and pursue the new ideas that

have for centuries powered the American economy and improved our quality of life. And

for consumers, it means more choices, better service, and lower prices. Robust competition

is critical to preserving America’s role as the world’s leading economy.

234

See generally Keiya Mori Et al., Does Athletes’ Performance Influence a Sponsor’s Stock-Market Value?

Assessing the Effects of Sponsored Athletes Who Represent Japan in International Tournaments, J. OF ADVERT.

RSCH. (Dec. 7, 2020), http://www.journalofadvertisingresearch.com/content/60/4/439.article-info. (discussing

the effect of athletic performance influencing the economy, including foreign athletes).

235

See generally id.; see also The Benefits of Sports Sponsorships in the Digital Age of Visual Data, VISUA (last

visited Jan. 23, 2022), https://visua.com/the-benefits-of-sports-sponsorships-in-the-digital-age-of-visual-data;

see also Anne Davis, The Pros & Cons of Sports Sponsorships, SPORTSREC (Feb. 15, 2011), https://www.

sportsrec.com/pros-cons-sports-sponsorships-7942542.html.

236

See SportsPro, supra note 145 (showing that six of the 10 most marketable athletes in the world are not

American). See also David Lange, Global Sports Market – Statistics and Facts, STATISTA (Oct. 1, 2021), https://

www.statista.com/topics/8468/global-sports-market/#dossierKeyfigures.

237

See generally SportsPro, supra note 236.

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with the opportunities they rightfully deserve, and their domestic counterparts already have

access to.

238

With the Covid-19 pandemic affecting borders and international travel,

239

and

international visas being an issue on their own,

240

progress on the international student-athlete

issue will likely be significantly slower than its domestic counterpart. The same supervisory

board, however, must be well equipped to handle these issues while the proposed supervisory

committee would pursue legislative changes through lobbying. The highest likelihood of

success regarding compensation for international student-athletes is not from legislative pushes,

but rather case law.

241

A case is needed to be brought before the Supreme Court regarding the

F-1 visa issue.

242

Until this case comes forth, however, the proposed supervisory board should

look out for international student-athletes by: (1) ensuring they have agent representation

similar to how criminal courts assign public defenders to represent indigent defendants who

cannot afford their own lawyers; (2) protecting these international student-athletes’ names,

images and likenesses by making sure they are not being used improperly;

243

and (3) providing

litigation help when necessary.

V. CONCLUSION

In 2021, the world of collegiate sports was changed forever with the Supreme Court’s

ruling in NCAA v. Alston.

244

Student-athletes may now be compensated for their names, images,

238

See Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021); see generally Jacob Berstein, What are

Tariffs, and How Do They Affect You?, INVESTOPEDIA (Nov. 4, 2021), https://www.investopedia.com/news/what

-are-tariffs-and-how-do-they-affect-you/ (defining tariffs and how they work and affect individuals).

239

See generally International Travel, CDC (last visited Jan. 23, 2021), https://www.cdc.gov/coronavirus/2019-

ncov/travelers/international-travel/index.html (showing travel limitations due to the pandemic).

240

Id.; see Lahoud, supra note 158.

To maintain status under an F-1 visa, a student may engage in paid work under one of four

scenarios: 1) on-campus employment, 2) off-campus employment for economic hardship,

3) in curricular practical training, or 4) in optional practical training. Under current

regulations, these earning options are intentionally limited. Accordingly, the type of NIL

sponsorship deals now available to NCAA athletes are not available to F-1 visa holders.

In fact, by earning income through an NIL deal, an F-1 student visa holder could face a

litany of troubles, including deportation.

241

See generally id.

242

See NFL Draft Bible, supra note 147.

243

See generally Josh Gerben & Daniel Bartlett, NIL Laws: How College Athletes Should Protect Their Name,

Image and Likeness, Gerben Law (last visited Jan. 23, 2022), https://www.gerbenlaw.com/blog/nil-laws-how-

college-athletes-should-protect-their-name-image-and-likeness/.

The number one way for college athletes to protect their names and brands is by filing

trademark applications. This process, characterized by selecting and clearing the marks,

filing the applications, and maintaining the trademarks once they have registered through

renewals, is instrumental for NCAA athletes to safeguard their public image and associated

branding.

244

See generally Nat’l Collegiate Athletic Ass’n, 141 S. Ct. 2141; see also Alejandra Gerlach, Opinion: NCAA

washing their hands of NIL will change the landscape of sports, TRINITONIAN (Sept. 23, 2021), https://

trinitonian.com/2021/09/23/opinion-ncaa-washing-their-hands-of-nil-will-change-the-landscape-of-college-

sports/.

The crux of the NIL issue is often framed as fairness. The argument for student-athletes

receiving compensation for their name, image and likeness (NIL) is that it is only fair that

the athletes get paid considering how much revenue they bring in for the institution.

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and likenesses, opening up a world of compensation for those who have long been wrongfully

denied such opportunities.

245

The new change in NCAA rules and the inconsistency in states’

legislative actions regarding this massive change has created a flurry of new legal issues.

246

supervisory board with the power to help and support these newly unprotected and uninformed

entities will be beneficial to the marketplace. It is of the utmost necessity to create a safety net

to protect student-athletes and their newly acquired market demand so that they are not taken

advantage of by profit seekers and big corporations.

247

Student-athletes are an at-risk class of

individuals which needs and deserves to be protected and supported by the NCAA, especially

when the State has failed them.

However, as straightforward as the idea of paying student-athletes for the use of their

name, image and likeness the issue is more complex than it first appears. The interim

policy that went into effect July 1 allowing student-athletes from all three divisions to

monetize their NIL is the catalyst for rules and decisions that will irrevocably change the

landscape of college athletics for the next decade.

245

See Nat’l Collegiate Athletic Ass’n, 141 S. Ct. 2141 (Kavanaugh, J., concurring) (citing Brief for African

American Antitrust Lawyers as Amici Curiae 13-17 in support of respondents).

The bottom line is that the NCAA and its member colleges are suppressing the pay of

student-athletes who collectively generate billions of dollars in revenues for colleges every

year. Those enormous sums of money flow to seemingly everyone except the student-

athletes. College presidents, athletic directors, coaches conference commissioners, and

NCAA executives take in six- and seven-figure salaries. Colleges build lavish facilities.

But the student-athletes who generate the revenues, many of whom are African American

and from lower-income backgrounds, wind up with little or nothing.

246

See generally Nat’l Collegiate Athletic Ass’n, 141 S. Ct. 2141; see also Allender, supra note 9; see also Keller,

supra note 9; see also Edel, supra note 9; see also Alex Kirshner, How College Athletes Are Making ‘Massive

Decisions’ in the NIL Era, Global Sports Matter, GLOBAL SPORT MATTERS (Dec. 7, 2021), https://

globalsportmatters.com/business/2021/12/07/college-athletes-massive-decisions-nil-era/.

When the National Collegiate Athletic Association decided to let athletes be paid for the

use of their names, images, and likenesses (NIL) this past summer, the main governing

body for college sports in America did so at what amounted to legislative gunpoint.

Lawmakers in roughly two dozen states – Democrats and Republicans – had passed laws

making it effectively illegal for the NCAA to restrict the NIL earnings of college athletes

through amateurism rules, something the association had done for its entire history.

247

See Kahn, supra note 128. Among the NIL deals seen so far, “[t]he fine print on all those deals wasn’t exactly

athlete-friendly…”.

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