The Billion Dollar Industry That Has Never Paid Its Money-Makers: The NCAA’s Attempt at Compensation through Names, Images and Likeness

Touro Law Review Touro Law Review

Volume 37 Number 3 Article 15

2021

The Billion Dollar Industry That Has Never Paid Its Money-Makers: The Billion Dollar Industry That Has Never Paid Its Money-Makers:

The NCAA’s Attempt at Compensation through Names, Images The NCAA’s Attempt at Compensation through Names, Images

and Likeness and Likeness

Christopher Palmieri

Touro Law Center

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NCAA’s Attempt at Compensation through Names, Images and Likeness,"

Touro Law Review

: Vol. 37: No.

3, Article 15.

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1605

THE BILLION DOLLAR INDUSTRY THAT HAS NEVER PAID ITS

MONEY-MAKERS: THE NCAA’S ATTEMPT AT COMPENSATION

THROUGH NAMES, IMAGES AND LIKENESS

Christopher Palmieri

ABSTRACT

The National Collegiate Athletic Association (“NCAA”) has

regulated collegiate sports for over one hundred years. The NCAA

has long relied upon the principle of amateurism to prohibit college

athletes from profiting from their name, image and likeness (“NILs”).

However, recently this principle has drawn a lot of attention and has

all but crumbled. States across the nation have passed legislation that

will soon come into effect to bypass the NCAA bylaws and allow

student athletes to profit from their NILs, even the United States

Supreme Court has called the NCAA’s business model into question.

This has left the NCAA with no choice but to pivot and allow athletes

to profit from their NILs for the first time. This Note will explore the

NCAA’s history of exploiting student-athletes for profit, and how

their attitude towards the concept of NILs has changed overtime. This

Note begins by looking at the NCAA’s business model and how they

have turned themselves into a billion-dollar business that does not

pay their money-makers, the athletes. Prior to addressing the various

state legislations and federal proposals, this Note will also recount

prior Supreme Court cases. Ultimately, this Note will propose

standardized federal legislation to govern NIL laws.

Touro College Jacob D. Fuchsberg Law Center, J.D. Candidate Class of 2022;

Pennsylvania State University, B.A. in Criminology with a minor in History, 2019.

I would like to thank my Notes Editors, Katherine Carroll and Hayley Valla, for all

of their help during this process, as well as my faculty advisor Dean Citron for

guiding me through the publication process. Lastly, a huge thank you to my

parents, brother and sister for listening to me talk nonstop about this for two years

and for all of their support.

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I. INTRODUCTION

California recently became the first state in the nation to allow

compensation to the workhorses of a billion-dollar industry: college

athletics. The state recently passed a bill that will allow college

athletes to profit from their Names, Image and Likeness (NILs).

This change has caused the National Collegiate Athletic Association

(NCAA) to reconsider its stance on NILs. California’s statute allows

athletes to be compensated for their popularity and has inspired

Congress and other states to contemplate and propose similar

legislation.

The NCAA can no longer ignore the fact that the multi-

billion-dollar industry it created, and continues to regulate, needs to

compensate its money-makers, the athletes.

While historically the players have remained uncompensated,

athletic programs at universities and colleges have been raking in

money hand over fist through apparel deals, ticket sales, and various

non-monetary benefits. All the while, every Division 1

football and

basketball program has exclusive deals with either Adidas, Nike or

Under Armour.

These apparel deals are incredibly lucrative

marketing opportunities that allow the respective companies to reach

a massive national audience.

Jack Kelly, Newly Passed California Fair Pay to Play Act Will Allow Student

Athletes To Receive Compensation, FORBES (Oct. 1, 2019, 12:36 PM),

https://www.forbes.com/sites/jackkelly/2019/10/01/in-a-revolutionary-change-

newly-passed-california-fair-pay-to-play-act-will-allow-student-athletes-to-receive-

compensation/?sh=2d70c02457d0.

Nicole Berkowitz et al., More States Draft Legislation To Address Student Athlete

Compensation As The NCAA Passes The Ball To Congress, LEXOLOGY (Feb. 5,

2020), https://www.lexology.com/library/detail.aspx?g=5701fc57-8d88-46bc-9569-

43f5b3ca6a5e.

See The Difference in the College Division Levels, NEXT COLL. STUDENT

ATHLETE, https://www.ncsasports.org/recruiting/how-to-get-recruited/college-

divisions (last visited Mar. 13, 2021) (describing what Division I sports have to

offer: “DI offers a higher level of competition and is home to some of the largest

and most prestigious schools in the country.” Id. Further when describing what

Division I sports are like for the athletes “You will be tired. Internships, spring

break getaways, even part-time jobs are pretty much out of the question. The DI

athlete is truly dedicated to their sport for the next four years.” Id.).

SI Wire, How Adidas, Nike and Under Armour Have Divvied Up Major College

Basketball, SPORTS ILLUSTRATED (Oct. 2, 2017),

https://www.si.com/college/2017/10/02/adidas-nike-under-armour-contracts-

schools-conferences.

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Since its inception, the NCAA has proclaimed that its true

interests include educating student-athletes and attempting to separate

collegiate and professional sports. However, this attempted

separation is nothing more than a half-hearted attempt to keep the

commercial nature of college sports behind closed doors. Apparel

deals, ticket sales, and school reputations have made it so that some

college games have over one billion dollars at play when student-

athletes gear up.

Despite this, the NCAA still prevented all college

athletes from making a single cent from their own popularity without

facing serious repercussions.

Today, tensions surrounding this topic

are high.

A current class action lawsuit, in the United States District

Court for the Northern District of California, alleges that the NCAA

is violating antitrust regulations.

The plaintiffs argue that it is unjust

for the universities, apparel companies, and many others to profit

from the hard work of these athletes without allowing them to earn

money for themselves.

Furthermore, states across the nation have

pushed the issue by adopting various legislation that will allow these

athletes to profit on their NILs.

All of this pressure has resulted in

See Kate Gibson, Nike’s high-profile shoe fail costs $1.1 billion in stock value,

CBS NEWS (Feb. 21, 2019, 4:23 PM), https://www.cbsnews.com/news/nike-stock-

drop-zion-williamson-shoe-incident-and-injury-costs-1-1-billion-in-stock-value.

(Of importance, Nike lost over one billion dollars in stock value after a star player

was injured wearing their sneakers).

See N.C.A.A. Const. art. XII, § 12.5.2.1 (effective Aug. 1, 2020); N.C.A.A.

Const. art. XII, § 12.5.2.2 (effective Aug. 1, 2020).

See generally Steve Berkowitz, New name, image, likeness lawsuit against NCAA

could put hundreds of millions of dollars at stake, USA TODAY (Jun. 15, 2020,

11:08 A.M.), https://www.usatoday.com/story/sports/college/2020/06/15/ncaa-

lawsuit-over-athletes-images-likeness-puts-big-money-stake/3189283001. The

article speaks about a new filing against the Power Five and NCAA over NIL

control and compensation, it also speaks about the increasing tensions on this issue

due to a recent judgement rendered by the Ninth Circuit Court of Appeals which

“unanimously upheld a district court ruling that the NCAA had violated antitrust

law with its limits on various benefits athletes can receive from their schools.” Id.

House et al. v. National Collegiate Athletic Association et al., 4:20-cv-0319, June

15, 2020.

Id.

Dave Eminian, How will the NCAA’s new NIL rules affect the Missouri Valley

Conference. What we know, JOURNAL STAR (July 4, 2021, 5:20 AM),

https://www.pjstar.com/story/sports/college/basketball/bradley-

hoops/2021/07/04/ncaa-nil-rules-how-they-affect-missouri-valley-

conference/7845665002 (discussing all the states that have adopted NIL

legislation).

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the momentous decision by the NCAA to adopt an interim NIL

policy.

This policy allows for student athletes to monetarily

capitalize from his or her NILs without violating any NCAA bylaw.

This Note will argue that there will need to be federal action to

override the NCAA’s interim NIL policy without violating any

NCAA bylaw. Federal legislation is the only way to protect the

sanctity of college athletics, while also preventing the NCAA from

continuously being unjustly enriched.

Section II of this Note will focus on the athletes that the

NCAA regulates and delve into the commercial nature of college

sports. After setting the background, Section III will discuss the

attempts to change NILs through the courts and the proposed

solutions, in addition to the NCAA’s evolving stance on NILs.

Section IV will examine the state statutes that have been proposed

across the country and the impact they can have on college sports.

Section V will address and juxtapose the NCAA’s original proposal

and the interim policy it recently adopted. Finally, section VI will

investigate the existing congressional proposals and offer a solution

to address the uniform standard for regulating NILs.

II. THE HISTORY AND BACKGROUND OF THE NCAA AND

COLLEGE ATHLETES

A. The Athletes

The NCAA regulates over 480,000 athletes at the collegiate

level.

Of those athletes, 18,816 play Division I men’s basketball

and 73,712 play Division I football.

This is an important distinction

because it is reported that across all markets, the athletes in those

sports bring in a total of $14 billion in annual revenue.

Out of all of

Michelle Brutlag Hosick, NCAA adopts interim name, image and likeness policy,

NCAA (June 30, 2021, 4:20 PM), https://www.ncaa.org/about/resources/media-

center/news/ncaa-adopts-interim-name-image-and-likeness-policy.

Id.

Estimated Probability of Competing In College Athletics, NCAA,

http://www.ncaa.org/about/resources/research/estimated-probability-competing-

college-athletics (Apr. 8, 2020).

Id.

Tom Huddleston Jr., College Football Stars Could Be Earning As Much As $2.4

Million Per Year, Based On NCAA Revenues: Study, CNBC (Sept. 2, 2020, 3:01

PM), https://www.cnbc.com/2020/09/02/how-much-college-athletes-could-be-

earning-study.html.

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those players, only 1.2% of those men’s basketball players, and 1.6%

of those football players make the step to the professional level.

Thus, for the overwhelming majority of college athletes, the biggest

stage they will play on is at the intercollegiate level. Consequently,

the typical student-athletes’ popularity peaks during their years in

college, and so does their ability to monetarily capitalize on it.

However, prior to adoption of the interim NIL policy,

any attempt

to do so would be a direct violation of NCAA bylaws 12.5.2.1

and

12.5.2.2.

Section 12.5.2.1 of the NCAA bylaws prohibited an athlete

from being eligible to play in college sports if, at any time, the athlete

was compensated for the use of his NILs in advertising, or for

promoting the sale of any commercial product.

An athlete would

also be ineligible to participate in athletics if the NCAA learned that

the athlete received any money from endorsing products through

individual use.

Whereas section 12.5.2.1 was a limitation on the

athlete’s ability to monetize his NILs,

section 12.5.2.2 prohibited

another’s use of an athlete’s NILs, but only punished the athlete if it

was violated.

More specifically, if an athlete’s “name or picture

appears on commercial items or is used to promote a commercial

product sold by an individual or agency without the student-athlete’s

knowledge or permission” that athlete must proactively take steps to

stop it.

Failure to do so could have resulted in players losing their

eligibility to play in collegiate athletics.

This meant that even if the

athletes were not aware their NILs were being used to generate

revenue, the NCAA was still at liberty to revoke their amateur status

and consequently their ability to play collegiate sports.

These

limitations on college athletes’ ability to monetize their NILs was a

Estimated Probability of Competing In College Athletics, supra note 12.

Hosick, supra note 11.

N.C.A.A. Const. art. XII, § 12.5.2.1 (effective Aug. 1, 2020).

N.C.A.A. Const. art. XII, § 12.5.2.2 (effective Aug. 1, 2020).

N.C.A.A. Const. art. XII, § 12.5.2.1 (effective Aug. 1, 2020).

Id.

N.C.A.A. Const. art. XII, § 12.5.2.2 (effective Aug. 1, 2020).

Id. (emphasis added).

Id.

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limitation exclusively imposed upon college athletes.

All other

college students, from college musicians to student journalists to

students not involved in extracurriculars students, had the ability to

profit from their NILs.

B. What Are NILs and How Are They Used?

The NCAA defines the term “Names, Image and Likeness” as

“the three elements that make up the legal concept known as ‘right of

publicity.’”

This involves situations where “permission is required

of a person to use their name, image or likeness. For example, no

permission is required for a newspaper to publish a photo of an

athlete playing in a game because the legal copyright would belong to

the photographer, not the person pictured.”

More generally, the

term and concept of “names, image and likeness” encapsulate an

athlete’s ability to “sell [his or her]NILs to entities for a host of

activities other than in-game broadcasts: including endorsements,

advertisements, items of clothing, appearing at clinics, appearing in

video games, or commercializing an athlete’s social media site.”

Although athletes have been prohibited from using their own

NILs to make a profit, that did not stop universities and the NCAA

from doing just that.

They do so in a variety of ways. Similar to

many modern companies today, conferences, schools, and the NCAA

itself use social media as a promotional tool.

They also use the

athletes to participate in social media blitzes, a marketing strategy

Peter Colin, What’s in a Name? The Battle Over Name, Image & Likeness Rights

for NCAA Student-Athletes Continues, THOMSON REUTERS LEGAL CURRENT (May

21, 2020), http://www.legalcurrent.com/whats-in-a-name-the-battle-over-name-

image-likeness-rights-for-ncaa-student-athletes-continues.

Id.

Rachel Stark-Mason, What Name, Image and Likeness Means for College Sports.

and how the NCAA is Turning to Student-Athletes to Navigate a Path Forward,

NCAA, http://www.ncaa.org/champion/name-image-likeness (The NCAAA took

down the page after adopting their interim NIL policy) (last visited Sept. 18, 2020).

Id.

Jayma Meyer & Andrew Zumbalist, A Win Win: College Athletes get paid for

their Names, Image and Likeness and Colleges Maintain the Primacy of

Academics, 11 HARV. J. SPORTS & ENT L. 247, 286 (Spring 2020) (discussing what

NILs encompass).

See House et al. v. Nat'l Collegiate Athletic Ass'n et al., 4:20-cv-0319, June 15,

2020.

Id.

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designed to promote a product or brand, that garners commercial

benefits for the NCAA and its members.

Moreover, college

coaches may also reap the financial rewards of their teams’

popularity through the online economy of social media.

However,

the commercial benefits do not stop with social media opportunities

and e-commerce.

In fact, the class action complaint filing of House

et al. v. NCAA explains how elite college athletes are exploited for

the profitable gain of others.

While football and basketball bring in

the majority of revenue for the NCAA, the inability to profit from

NILs had a harsher impact on athletes who participated in small

market sports, such as gymnastics.

Katelyn Ohashi was a gymnast for the UCLA Bruins.

During her senior year, in 2019, Ms. Ohashi’s top-scoring floor

routine “went viral[,] making her one of the most famous college

gymnasts ever. But NCAA rules prevented Ohashi from making any

money from the performance.”

Ms. Ohashi was featured in an op-

ed video, published by the New York Times, arguing for college

athletes to be able to monetize their achievements.

She explained

Id.

The cyber economy encapsulates different aspects of using the internet to create

revenue. Such as when:

The NCAA, conferences, and schools (…) promote themselves

and their athletic programs via social media such as Instagram

and Twitter, and have their athletes participate in social media

blitzes for the commercial benefit of the NCAA and its members.

Coaches and others associated with college athletic programs also

reap the financial rewards of payments from social media

companies and other lucrative aspects of the online economy.

Yet, the NCAA’s draconian NIL restrictions prevent student-

athletes from commercially benefitting from their postings on

social media, despite the fact that other college students are able

to commercially benefit from social media opportunities and

many do.

Id.

See generally House et al., 4:20-cv-0319, June 15, 2020 (referencing the many

ways that social media is used to generate money for college athletic programs).

Id.

Id. at 4.

Katelyn Ohashi, Everyone Made Money Off My N.C.A.A. Career, Except Me,

N.Y TIMES (Oct. 9, 2019), https://www.nytimes.com/2019/10/09/opinion/katelyn-

ohashi-fair-play-act.html.

House et al., 4:20-cv-0319, June 15, 2020 at 4.

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how both UCLA, the school she attended, and the NCAA were able

to profit from the 100 million views on her routine, yet she was not

able to earn a single dollar from this social media popularity.

Ms.

Ohashi’s NIL value post-graduation, simply due to the sport that she

plays, will quickly diminish as there is not any viable professional

sports option in gymnastics.

Those who play similar sports are not

left with lucrative options post-college, and even in sports that do

have a professional level, the chance of reaching it is slim at best.

This is just one story of many other athletes whose NILs have been

exploited for the profit of others without any compensation to the

athletes themselves.

C. The Line Between College and Professional Sports

Under the section titled “Commitment to the Division I

Collegiate Model” of the NCAA Division I manual is a subsection

titled “The Commitment to Amateurism.”

This subsection outlines

the NCAA’s attempt to separate collegiate and professional sports.

It provides that all Division I members of the NCAA must run their

athletics programs in accordance with the NCAA bylaws.

It further

adds that students “choose to participate in intercollegiate athletics as

a part of their educational experience thus maintaining a line of

demarcation between student athletes who participate in Collegiate

Model and athletes competing in the professional model.”

The NCAA bolsters the division between professional and

collegiate athletics by requiring all prospective student-athletes in

Division I and II schools to register with the NCAA as amateur

athletes prior to competing.

Once registered as amateur athletes,

the athletes become subject to specific stipulations in order to retain

Ohashi, supra note 39.

House et al., 4:20-cv-0319, June 15, 2020 at 4.

Estimated Probability Of Competing In Professional Athletics, NCAA,

https://www.ncaa.org/about/resources/research/estimated-probability-competing-

professional-athletics, (Apr. 8, 2020).

N.C.A.A. Const., Commitment to the Division I Collegiate Model, XIII

(effective Aug. 1, 2020).

Id.

Amateurism, NCAA, http://www.ncaa.org/student-athletes/future/amateurism

(last visited Sept. 26, 2020).

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their amateur status.

If athletes are found to have violated any of

the enumerated stipulations, their amateur status become at risk, and

thus so does their eligibility to participate in college sports at the

Division I and II level.

Although the athletes must receive a certificate of amateurism

from the NCAA in order to be eligible to play and are subject to

NCAA bylaws, they are not unionized and therefore cannot

collectively bargain like athletes in leagues such as the NFL and

NBA.

In 2015, the Northwestern football team attempted to

challenge this and become a recognized union with the National

Labor Relations Board.

This attempt was shut down, failing to

address the issue of “whether the players, who spend long hours on

football and help generate millions of dollars for Northwestern, are

university employees.”

The National Labor Relations Board

dismissed the case due to the “potentially wide-ranging impacts on

college sports [that] would not have promoted ‘stability in labor

relations.’”

After the decision, Northwestern University

spokesperson, Alan Cubbage released a statement that the University

was “pleased that the N.L.R.B. has agreed with the university’s

position.”

The chief legal officer of the NCAA, Donald Remy,

released a similar statement saying “[t]his union-backed attempt to

turn student-athletes into employees undermines the purpose of

college: an education. Student-athletes are not employees.”

Id.

Ben Strauss, N.L.R.B. Rejects Northwestern Football Players' Union Bid, N.Y.

TIMES (Aug. 17, 2015),

https://www.nytimes.com/2015/08/18/sports/ncaafootball/nlrb-says-northwestern-

football-players-cannot-unionize.html.

Id.

Id. (Northwestern University was opposed to the idea of a unionized team, and

the implications of such a decision.).

Donald Remy, NCAA Responds to Union Proposal, NCAA,

http://www.ncaa.org/about/resources/media-center/press-releases/ncaa-responds-

union-proposal (last visited Mar. 12, 2020).

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D. The Commercial Nature of College Athletics

NCAA President Mark Emmert says that college sports are

about education of students and competing.

This is the same

NCAA that reported a revenue of $1,118,495,545.00 in August of

2019.

In August 2019, television deals brought in a whopping

$867,527,070.00, accounting for the majority of the NCAA’s

revenue.

Despite how astounding those numbers may seem, it is

just a drop in the bucket of the money college athletics produce. The

true money at play in a single college game was perfectly highlighted

on February 20, 2019.

The highly anticipated and biggest rivalry game in college

basketball just tipped off.

The number one team in the nation

during the 2019 season, the Duke Blue Devils, played against the

eighth ranked team, the University of North Carolina (UNC) Tar

Heels.

Duke, outfitted in their Nike sponsored gear, took the ball

out after UNC scored on their opening possession.

The ball was

brought up the court and passed over to the future number one overall

pick in the NBA draft, Zion Williamson. As everyone watching had

their eyes glued to their screens hoping to see one of his patented

high-flying dunks, Zion drove to the rim at full speed. Zion made a

hard cut, causing his Nike sneaker to rupture underneath him. He

subsequently slipped and suffered a knee injury.

The following

day, Nike stock dropped over one billion dollars.

This situation

exemplifies the fact that these young athletes can have nearly a

billion dollars riding on their performance and health in every

matchup. Furthermore, if Zion had been more seriously injured and

Mark Emmert, Office of the President, NCAA, http://www.ncaa.org/about/who-

we-are/office-president (last visited Sept. 18, 2020).

National Collegiate Athletic Association Consolidated Financial Statements,

August 31, 2019 and 2018, NCAA,

https://ncaaorg.s3.amazonaws.com/ncaa/finance/2018-

19NCAAFin_NCAAFinancials.pdf.

Id.

Kate Gibson, Nike’s High-Profile Shoe Fail Costs $1.1 Billion In Stock Value,

CBS NEWS (Feb. 21, 2019, 4:23 PM), https://www.cbsnews.com/news/nike-stock-

drop-zion-williamson-shoe-incident-and-injury-costs-1-1-billion-in-stock-value/.

Id.

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“slipped past the number sixteen overall pick in the 2019 National

Basketball Association (“NBA”) draft,” he would have “been entitled

to collect on an $8 million loss-of-value insurance policy--that Duke

University paid $50 thousand in premiums for.”

Star-players like Zion have turned the NCAA into a money-

making machine, which in turn has led to lucrative salaries for the

athletic directors and coaches of Division I schools. The average

salary for an athletic director at a Division I school has surpassed five

hundred thousand dollars a year.

This is a number that barely

scratches the surface of coach salaries. As reported in 2019, “there

were 176 college football and men’s basketball coaches who received

salaries exceeding $1 million, 71 whose salaries exceeded $3 million,

and 38 whose salaries exceeded $4 million.”

Among the highest

paid is Dabo Swinney, the head coach of the Clemson University

football team, with a reported salary of $9.3 million dollars and $1.1

million dollars in bonuses.

If Clemson decides they want to move

on from Swinney before his contract is up, they will have to pay him

$50 million dollars pursuant to his buyout clause.

Swinney is not

the “exception to the rule” either, and “the head football or basketball

coach on a college team within the state makes more in guaranteed

compensation than the state’s governor.”

Additionally, it is not just

lucrative salaries that these coaches receive. Generally speaking,

members of the coaching staff get a variety of off the field benefits

from “free use of cars, housing subsidies, country-club memberships,

private jet services, exceptionally generous severance packages and

more.”

Moreover, they gain the opportunity to subsidize their

salaries by way of apparel and sneaker endorsements to book

Meyer & Zumbalist, supra note 30, at 257, citing Mike Chiari, Report: Zion

Williamson's $8M Insurance Policy Revealed After Injury vs. UNC, BLEACHER

REP. (Feb. 12, 2019), https://bleacherreport.com/articles/2821748-report-zion-

williamsons-8m-insurance-policy-revealed-after-injury-vs-unc.

House et al., 4:20-cv-0319, June 8, 2020. at 1.

Meyer & Zumbalist, supra note 30, at 261.

2019 NCAAF Coaches Salaries, USA TODAY,

https://sports.usatoday.com/ncaa/salaries/ (last visited Sept. 18, 2020).

Id.

Meyer & Zumbalist, supra note 30, at 262, citing, Reuben Fischer-

Baum, Infographic: Is Your State's Highest-Paid Employee a Coach? (Probably),

DEADSPIN (May 9, 2013, 3:23 PM), http://deadspin.com/infographic-is-your-states-

highest-paid-employee-a-co-489635228.

Id. at 261.

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contracts.

All the while, the athletes themselves have historically

been prohibited from reaping the benefits of their own athletic

abilities.

Although the NCAA likes to claim that the athletes are

amateurs and the main goal of the NCAA is to educate the student-

athletes,

the NCAA has still turned college sports into a billion-

dollar industry.

The NCAA brings in nearly one billion dollars

through television deals alone.

The apparel companies get to

display their products before the eyes of millions of weekly viewers,

which, as previously shown, leads there to be billions of dollars at

play each time superstar athletes suit up.

The universities

strategically use the popular athletes in their athletic programs to

promote their merchandise, ticket sales and social media influence.

In turn, the athletic directors are rewarded with lucrative salaries,

salaries that still pale in comparison to the salaries of the coaches,

who also gain off the field benefits.

All of this demonstrates that

the NCAA’s loud proclamations of education are nothing but a

smoke screen to hide the multi-billion-dollar business that it has

created on the backs of uncompensated athletes.

Id. at 261-62.

Remy, supra note 56.

Steve Cameron, The NCAA Brings In $1 Billion A Year – Here’s Why It Refuses

To Pay Its College Athletes, INSIDER (Mar. 26, 2019, 10:14 AM),

https://www.businessinsider.com/ncaa-college-athletes-march-madness-basketball-

football-sports-not-paid-2019-3.

NCAA Consolidated Financial Statements, August 31, 2019 and 2018, NCAA,

https://ncaaorg.s3.amazonaws.com/ncaa/finance/2018-

19NCAAFin_NCAAFinancials.pdf.

Kate Gibson, Nike’s High-Profile Shoe Fail Costs $1.1 Billion In Stock Value,

CBS NEWS (Feb. 21, 2019, 4:23 PM), https://www.cbsnews.com/news/nike-stock-

drop-zion-williamson-shoe-incident-and-injury-costs-1-1-billion-in-stock-value.

House et al. v. Nat'l Collegiate Athletic Ass'n et al., 4:20-cv-0319, June 8, 2020.

Id. at 1.

Meyer & Zumbalist, supra note 30, at 261.

Id. at 262.

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III. THE NCAA AND COURTS EVOLVING APPROACH TO NILS

A. Brief History

One of the earliest reforms of intercollegiate sports was the

adoption of the amateurism rule in 1921.

This adoption was an

attempt to curb the problem of schools paying athletes to attend their

universities.

However, the schools found creative ways around the

NCAA’s attempts.

In 1948, the NCAA adopted the “Sanity Code”

which did not allow universities to give out scholarships, or financial

aid in any way that was not available to an ordinary student.

The

NCAA also created “a Compliance Committee that could terminate

an institution’s NCAA membership.”

In 1956, the NCAA changed

its rules to allow schools to give scholarships on athletic ability, yet

were still limited to “full grant-in-aid,”

and anything over it would

leave athletes at risk of losing their amateur status.

It was not until

2014 that schools were able to offer scholarships for the full cost of

attendance due to athletic ability.

Nevertheless, NCAA bylaws still

restricted an athlete “with few exceptions – from receiving any ‘pay’”

based on his athletic ability, whether from boosters, companies

seeking endorsements, or would-be licensors of the athlete’s name,

image, and likeness.”

As these rules have evolved, there has been

litigation challenging them. The most successful way litigants have

attacked the NCAA bylaws has been through the Sherman Antitrust

Act.

O’Bannon v. Nat'l Collegiate Athletic Ass'n, 802 F.3d 1049, 1054 (9th Cir.

2015).

Id.

The NCAA in its Second Century: Defender of Amateurism or Antitrust

Recidivist? 86 OR. L. REV. 329, 333 (2007).

Grant in aid covers only cost of tuition, room and board and required textbooks.

O’Bannon, 802 F.3d at 1054 (9th Cir. 2015).

Id.

Meyer & Zumbalist, supra note 30, at 269.

683 F.3d 328, 340 (7th Cir. 2012).

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B. The Sherman Antitrust Act and the NCAA Bylaws

The Sherman Antitrust Act was enacted to regulate

commerce,

prohibiting “[e]very 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.”

Although the

Sherman Antitrust Act was not originally intended to regulate

organizations such as the NCAA, it has “been the most fertile ground

for chipping away at the NCAA’s amateurism rules.”

In Agnew v.

National Collegiate Athletic Association, the Seventh Circuit held

that “no knowledgeable observer could earnestly assert that big-time

college football programs . . . do not anticipate economic gain from a

successful recruiting program.”

The court further added that even

though universities that are members of the NCAA are nonprofit in

status, “the transactions those schools make with premier athletes--

full scholarships in exchange for athletic services--are not

noncommercial, since schools can make millions of dollars as a result

of these transactions.”

Thus, both the NCAA and the member

universities are subject to the Sherman Antitrust Act.

C. O’Bannon Litigation

In 2009, former UCLA Bruin basketball player Ed O’Bannon

brought suit against the Collegian Licensing Company (CLC) after

recognizing himself as a character in a video game created by EA

Sports.

O’Bannon challenged the NCAA’s amateurism rules on the

ground that they violated the Sherman Antitrust Act by not permitting

him or other athletes to gain compensation on their NILs.

100

In 2013,

class certification was granted for all former and current Division I

athletes in football and basketball, whose NILs were used in video

games licensed by the CLC.

101

The athletes sought payment in

specific areas, all of which were prohibited by the NCAA bylaws at

See generally 15 U.S.C. § 1.

Id.

Meyer & Zumbalist, supra note 30, at 269.

683 F.3d 328, 340 (7th Cir. 2012).

Id.

O’Bannon, 802 F.3d at 1056 (9th Cir. 2015).

100

Id.

101

Id. at 1055-1056.

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the time: sports video games, game rebroadcasts, advertisements, and

other archival footage.

102

The United States District Court for the Northern District of

California recognized that few athletes chose to play in foreign

markets or minor league professional sports, “and athletes are not

allowed to join either the NFL or the NBA directly from high

school.”

103

The conclusion drawn by the district court led it to hold

that “there are no professional [or college] football or basketball

leagues capable of supplying a substitute for the bundle of goods and

services that the Football Bowl Subdivision (the “FBS”) and Division

I basketball schools provide.”

104

Consequently, the court held that

the NCAA bylaws were subject to the Sherman Antitrust Act even

though they are not directly commercial in nature.

105

Ultimately, the

lower court held that the bylaws were in violation of the Sherman

Antitrust Act.

106

On appeal, the Ninth Circuit Court of Appeals found that the

schools were actively engaging in price-fixing agreements by

obtaining the athletes’ licensing through the CLC without having to

pay the athletes themselves.

107

The court, however, agreed with the

NCAA that amateurism and its integration into NCAA regulations

did have pro-competitive aspects, such as giving athletes a robust

choice of schools, as well as maintaining the popularity of

intercollegiate sports.

108

Lastly, when addressing the “less restrictive

alternative” proposed, which would allow the schools to place

deferred compensation of up to $5 thousand per year into a trust

based on licensing revenue that the athlete brought in,

109

Judge Bybee

wrote:

The difference between offering student-athletes

education-related compensation and offering them

cash sums untethered to educational expenses is not

minor; it is a quantum leap. Once that line is crossed,

102

O’Bannon v. Nat'l Collegiate Athletic Ass'n, 7 F. Supp. 3d 955, 963 (N.D. Cal.

2014).

103

Id. at 966.

104

Id. at 968.

105

Id. at 1061.

106

Id.

107

O’Bannon, 802 F.3d at 1057 (9th Cir. 2015).

108

Id. at 1072.

109

Id. at 1053.

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we see no basis for returning to a rule of amateurism

and no defined stopping point . . . At that point the

NCAA will have surrendered its amateurism

principles and transitioned from its ‘particular brand

of football’ to minor league status.

110

Judge Bybee’s opinion was not fully shared by the majority.

111

Judge

Thomas wrote separately on the decision to voice his displeasure.

112

Judge Thomas argued that the NCAA’s own expert witness’s

testimony proved that putting the money in trusts would have a very

limited impact on consumer demand for college athletics.

113

Furthermore, he asserted that any negative impact “could be partially

mitigated by placing the compensation in trust funds to be paid out

after graduation.”

114

Ultimately, the court was split, with the majority finding that

the deferred compensation option violated the amateurism principles

due to the lack of a tie to academics.

115

This decision left neither

party going home happy, which became clear when both sides

petitioned the Supreme Court for a writ of certiorari, which was

ultimately denied.

116

As a result, the NCAA's regulations were left

vulnerable to more challenges.

117

1. Reaction of The NCAA And Major

Conferences Post O’Bannon Decision

The NCAA’s dissatisfaction with the ultimate ruling can be

clearly shown through its petition to the Supreme Court,

118

stating

that “[t]he NCAA should not have to undergo a full trial (and years of

litigation) or face treble damages whenever a plaintiff or counsel hits

110

Id. at 1078-79 (quoting Nat'l Collegiate Athletic Ass'n v. Bd. of Regents of

Univ. of Okla., 468 U.S. 85, 101-02 (1984)).

111

Id. at 1080 (Thomas, C.J., concurring in part and dissenting in part).

112

Id.

113

Id.

114

Id.

115

Id. at 1078.

116

O'Bannon v. Nat'l Collegiate Athletic Ass'n, 137 S. Ct. 277 (2016).

117

Meyer & Zumbalist, supra note 30, at 274.

118

Nat'l Collegiate Athletic Ass'n v. O'Bannon, 137 S. Ct. 277 (2016) (No. 15-

1388).

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on a supposedly better way to administer college athletics.”

119

addition to its petition to the Supreme Court, NCAA President Mark

Emmert released an initial statement where he said that while the

NCAA “agree[d] with the court that the injunction ‘allowing students

to be paid cash compensation of up to $5,000 per year was erroneous

. . .’[the NCAA] disagree[s] that it should be mandated by the courts”

because the NCAA allows schools to “provide up to full cost of

attendance” for student athletes.

120

The top thirty-one conferences released a joint statement as

well.

121

They collectively stated that they were pleased with the

court’s decision only to the extent that it reversed the district court’s

ruling with regard to the $5 thousand deferred payment option.

122

The conferences underlined their “company motto” by stating “[i]t’s

important to remember that we’re talking about students, not

employees. Our goal is for our students to learn teamwork and

leadership through sports, and then graduate and be successful.”

123

2. Summary of the Major O’Bannon

Implications

In addition to O’Bannon’s disappointment, the NCAA and the

major conferences were not pleased with the outcome of the case.

This case demonstrated that that the NCAA was vulnerable to

litigation, especially through the Sherman Antitrust Act.

124

It is

important to note the tone in the responses to O’Bannon from the

NCAA and the conferences,

125

as it quickly evolved over time. At

this juncture, the NCAA understood that this decision left it

119

Id. at 26-27.

120

Mark Emmert, Initial NCAA Statement Regarding O’Bannon Decision, NCAA

(Sept. 30, 2015, 10:51 AM), http://www.ncaa.org/about/resources/media-

center/news/initial-ncaa-statement-regarding-o-bannon-decision.

121

The Coalition to Protect and Improve the Student-Athlete Experience Responds

to 9th Circuit Court of Appeals Decision in O’Bannon Case, NCAA (Sept. 30,

2015), http://www.ncaa.org/about/resources/media-center/other-statements-about-

9th-circuit-court-appeals-decision-o-bannon-case.

122

Id.

123

Id.

124

See O’Bannon, 802 F.3d at 1061 (9th Cir. 2015).

125

Id.; see also Emmert, supra note 119; see also The Coalition to Protect and

Improve the Student-Athlete Experience responds to 9th Circuit Court of Appeals

decision in O’Bannon Case, supra note 120.

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vulnerable to future litigation,

126

which made it uneasy.

Consequently, the NCAA and the conferences stood together starkly

against compensating athletes in any manner.

127

Despite the NCAA’s

clear view on the subject, future challenges arose.

D. Grant-In-Aid Litigation

The fear of the NCAA becoming susceptible to further

litigation quickly became reality when two class action suits raised

challenges to the NCAA’s amateurism rules: Jenkins v. National

Collegiate Athletic Association,

128

and Alston v. National Collegiate

Athletic Association.

129

Collectively, these claims became known as

In re National Collegiate Athletic Association Athletic Grant-in-Aid

Cap Antitrust Litigation

130

(“Grant-in-Aid”), and the case made its

way to the Ninth Circuit Court of Appeals. Grant-in-Aid had three

parties certified for the class: (1) students who played in the Football

Bowl Subdivision (“FBS”); (2) male Division I basketball players;

and (3) female Division I basketball players.

131

While both O’Bannon and Grant-in-Aid targeted the NCAA’s

amateurism rules, O’Bannon focused specifically on NILs,

132

whereas Grant-in-Aid widened the scope.

133

The plaintiffs in this

action argued – perhaps not successfully that schools are “buyers of

athletic services.”

134

As the buyers, the schools “exercise [a]

monopoly power to artificially cap compensation at a level that is not

commensurate with student-athletes’ value.”

135

Consequently, but

for the restraints in the NCAA bylaws, specifically bylaw 15.01.2,

which prohibits any student-athlete from receiving financial aid other

126

See Meyer & Zumbalist, supra note 30, at 274.

127

See Emmert, supra note 119; see also The Coalition to Protect and Improve the

Student-Athlete Experience responds to 9th Circuit Court of Appeals decision in

O’Bannon Case, supra note 120.

128

In re Nat'l Collegiate Athletic Ass'n Athletic Grant-in-Aid Cap Antitrust Litig.,

375 F. Supp. 3d 1058 (N.D. Cal. 2019).

129

In re Nat'l Collegiate Athletic Ass'n Athletic Grant-in-Aid Cap Antitrust Litig.,

311 F.R.D. 532 (N.D. Cal. 2015).

130

958 F.3d 1239 (9th Cir., 2020).

131

Id. at 1243.

132

O’Bannon, 802 F.3d at 1056 (9th Cir. 2015).

133

See generally Grant-in-Aid, 958 F.3d at 1248.

134

Id.

135

Id., citing In re Nat'l Collegiate Athletic Ass'n Grant-in-Aid Cap Antitrust

Litigation, 375 F. Supp. 3d 1058, 1068 (2019).

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than what they are eligible for through intercollegiate athletics and

penalizes violations by stripping the athlete of their amateur

status,

136

the plaintiffs argued that schools would offer recruits

coming out of high school a higher compensation package that

correlates more closely to their talents and values.

137

Therefore, they

argued, these restraints violated section 1 of the Sherman Antitrust

Act.

138

The District Court for the Northern District of California held

that the NCAA’s limitations on benefits that student athletes could

receive were unreasonable restraints on trade, and the court went on

to enjoin those limits.

139

However, the court did not go as far as the

plaintiffs wanted and held that the NCAA limits on compensation did

not violate the Sherman Antitrust Act.

140

The NCAA appealed this

decision to the Ninth Circuit Court of Appeals.

141

1. Before the Appeal

In the time after the ruling from the Northern District Court of

California and before the appeal to the Ninth Circuit there was a

ground-breaking development. California enacted the Fair Pay to

Play Act.

142

Generally, the Fair Pay to Play Act provides that any

California school that is a member of the NCAA is not allowed to

limit an athlete’s ability to receive compensation from his NILs.

143

the wake of this legislation, NCAA President Mark Emmert stated

that the NCAA would not take “any action that is contrary to the

position advocated by the NCAA or accepted by the Ninth Circuit

with respect to the type of NIL payments that were at issue in the

O’Bannon case[.]”

144

136

N.C.A.A. Const. art. XV, § 15.01.2 (effective Aug. 1, 2020).

137

Grant-in-Aid, 958 F.3d at 1248.

138

See id.

139

Nat'l Collegiate Athletic Ass'n Grant-in-Aid Cap Antitrust Litigation, 375 F.

Supp.3d at 1109.

140

Id.

141

Grant-in-Aid, 958 F.3d at 1241.

142

Infra note 160.

143

See Compensation from use of student’s name, image, or likeness; participation

and scholarship eligibility; professional representation, Cal. Educ. Code § 67456

(West 2020, operative Jan. 1, 2023).

144

See Hearing Before U.S. S. Commerce Subcomm. on Manufacturing, Trade and

Consumer Protection, (Feb. 11, 2020) (statement of Mark Emmert, President,

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2. On Appeal

The Ninth Circuit Court of Appeals held that the lower court

properly applied the “Rule of Reason.”

145

The Rule of Reason has

three steps. As applicable to this litigation those steps were: (1) the

athletes would have to show that the alleged restraint has a significant

anticompetitive impact within the identified relevant market; (2) if

this is met, the NCAA would have to combat the anticompetitive

impact by showing evidence that the restraints in fact have a

procompetitive impact; and (3) finally, if the NCAA meets its burden,

the athletes will then have to produce another proposal to the

restraints that is substantially less restrictive.

146

To meet this third

step, the athlete must prove that the alternative is practically as

effective, while still serving the same procompetitive purpose of the

NCAA.

147

Ultimately, the Ninth Circuit affirmed the ruling of the lower

court on all points.

148

The court held that the district court properly

found that the restriction had anticompetitive behavior due to “elite

student-athletes lack[ing] any viable alternatives to [Division I],

[forcing them] to accept[.]”

149

The court further added that it is still

anticompetitive with “whatever compensation is offered to them by

[Division I] schools, regardless of whether any such compensation is

an accurate reflection of the competitive value of their athletic

services.”

150

The NCAA met its burden on step two of the Rule of

Reason by justifying that the restrictions preserve the demand in that

it prevents salaries to the equivalent of professional athletes.

However, the Court extended the holding as it pertains to the

education-related benefits.

151

On the third step of analysis, the

athletes’ proposed that there should be uncapped education-related

benefits, which the Ninth Circuit also upheld.

152

The court found that

such a rule change was practically as effective as the current

NCAA), https://www.commerce.senate.gov/services/files/A3E515B6-A2A3-4453-

BB32-DE37F4D72FB5.

145

Grant-in-Aid, 958 F.3d at 1241.

146

Id. at 1257.

147

Id. at 1260.

148

Id at 1241.

149

Id. at 1257.

150

Id.

151

Id. at 1260.

152

Id.

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standards in place, and that it would not deter the fans.

153

Ultimately,

the Ninth Circuit held that the education-related restraints were in

violation of the Sherman Antitrust Act and were enjoined, however

the court refused to extend the restraints to include non-education

related compensation.

154

Thus, the athletes won the battle, but not the

war, albeit a massive battle.

3. NCAA Response to the Ruling

Almost immediately following the Ninth Circuit decision, the

NCAA petitioned the Supreme Court to review the determination.

155

The NCAA’s chief legal officer, Donald M. Remy, published a press

release in which he challenged the Ninth Circuit ruling, stating that it

inconsistently applied the antitrust rules comparatively to other

federal courts as well as the Supreme Court.

156

Mr. Remy was highly

concerned with the potential fallout following this decision, and went

on to say that he believed this ruling “blurs the lines between college

and professional sports.”

157

Further, he added that the decision

“appoints a single court to micromanage collegiate sports, and

encourages never-ending litigation following every rule change.”

158

As expected, the same fears the NCAA had post-O’Bannon had only

been expounded by another adverse ruling. Ultimately, Alston made

it all the way to the Supreme Court.

159

4. Supreme Court Ruling

In a landmark unanimous decision, delivered on June 21,

2021, the Supreme Court affirmed the Ninth Circuit’s decision by

holding that the NCAA rules that limit education-related benefits are

153

Id.

154

Id. at 1241.

155

Donald M. Remy, NCAA Statement Regarding Supreme Court Petition For

Alston Case, NCAA (Oct. 15, 2020, 10:32 AM),

http://www.ncaa.org/about/resources/media-center/news/ncaa-statement-regarding-

supreme-court-petition-alston-case.

156

Id.

157

Id.

158

Id.

159

Nat'l Collegiate Athletic Ass'n v. Alston, 141. S.Ct. 1231 (Dec. 16, 2020)

(granting the writ of certiorari.).

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inconsistent with antitrust principles.

160

While this case did not

involve the NIL policy of the NCAA, it practically rubs elbows with

it. Justice Gorsuch wrote, “[p]ut simply, this suit involved admitted

horizontal price fixing in a market where the [NCAA] exercise

monopoly control.”

161

The NCAA tried to argue that the Ninth

Circuit holding would be exploited by universities, resulting in

college athletes receiving unnecessarily valuable items.

162

However,

the Court specified 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.’”

163

While

the Court was careful to make a distinction between what was at issue

in this case and the NIL policy of the NCAA, Justice Kavanaugh did

not hold back in his concurrence. Justice Kavanaugh put it bluntly

when he stated “[t]he NCAA’s business model would be flatly illegal

in almost any other industry in America.”

164

Justice Kavanaugh

added an extra jab when he stated that the NCAA’s argument for

justifying not paying student athletes was “circular” and “highly

questionable.”

165

Justice Kavanaugh further added “if that asserted

justification is unavailing, it is not clear how the NCAA can legally

defend its remaining compensation rules.”

166

Justice Kavanaugh

further clarified his stance when he stated that 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

revenue for colleges every year.”

167

As such, the NCAA was put on

notice by the Supreme Court whose justices essentially provided the

NCAA with an ultimatum: either make a change or we will.

5. Summary of Grant-in-Aid

The Supreme Court affirmed the Ninth Circuit’s holding that

the lower court had properly applied the Rule of Reason and affirmed

160

Nat'l Collegiate Athletic Ass'n v. Alston, 594 U.S. ___ (2021),

supremecourt.gov/opinions/20pdf/20-512_gfbh.pdf.

161

Id.

162

Id.

163

Id.

164

Id. (Kavanaugh concurrence).

165

Id. (noting that the NCAA argues “that its compensation rules are

procompetitive because those rules help define the product of college sports.”).

166

Id.

167

Id.

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the district court judgment enjoining the NCAA rules regulating

education related compensation.

168

This is one of the biggest wounds

in the NCAA’s regulations regarding the amateur status of college

athletes. This class action and its outcome was exactly what the

NCAA and the thirty-one conferences were worried about in the

wake of the O’Bannon decision.

169

Their fears became reality in the

following two forms: (a) the Court took the NCAA’s regulations into

their hands, which is something that the NCAA believes the Court

lacks the proper expertise and qualifications to do; and (b) various

states have struck down NCAA regulations on NILS through

legislation.

170

IV. STATES TAKING THE REGULATIONS INTO THEIR OWN

HANDS

A. The Fair Pay to Play Act

Shockwaves echoed throughout the sports world when the

California State legislature unanimously passed,

171

and Governor

Gavin Newsom signed the Fair Pay to Play Act (S.B. 206) into

law.

172

Nancy Skinner, a California state senator and author of the

bill, said of the bill’s intent: “[s]tudent athletes need to financially

strike while the iron is hot and draw compensation for their

performance in collegiate athletics. It is only fair because it is the

athletes who are the draw in these hugely profitable activities.”

173

168

Grant-in-Aid, 958 F.3d at 1241.

169

O'Bannon v. Nat'l Collegiate Athletic Ass'n, 137 S. Ct. 277 (2016); see also

Emmert, supra note 119, see also The Coalition to Protect and Improve the

Student-Athlete Experience responds to 9th Circuit Court of Appeals decision in

O’Bannon Case, supra note 120.

170

Infra note 172.

171

California Legislature, SB-206 Collegiate Athletics, Student Athlete

Compensation And Representation, CAL. LEGIS. INFO. (2019-2020),

https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=201920200S

B206.

172

CAL. EDUC. CODE § 67456 (West 2019).

173

See Alicia Jessop, Fool Me Once, Shame On You; Fool Me Twice, Shame On

Me: Why Congress Must Grant NCAA Athletes Group Licensing And Organization

Rights in Name, Image and Likeness Legislation, HARV. J. SPORTS & ENT L. (Aug.

31, 2020), https://harvardjsel.com/2020/08/fool-me-once-shame-on-you-fool-me-

twice-shame-on-me-why-congress-must-grant-ncaa-athletes-group-licensing-and-

organization-rights-in-name-image-and-likeness-legislation (citing Collegiate

Athletics: Fair Pay to Play Act: Hearing on SB 206 Before the Cal. S. Assembly

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The act, just a mere two-pages long, is set to go toe-to-toe with the

institutional goliath that is the NCAA when it goes into effect in

2023.

174

Although it will be preempted by the NCAA’s interim NIL

policy, the California state legislature effectively put a time limit on

the old NCAA business model by being the first state to push the

envelope.

1. What the Act Provides

The Fair Pay to Play Act “requires intercollegiate athletic

programs at 4-year private universities or campuses of the University

of California or the California State University that receive, as an

average, $10 million or more in annual revenue derived from media

rights for intercollegiate athletics to comply with prescribed

requirements relating to student athlete rights.”

175

Significantly, S.B.

206 provides that any school that meets these requirements are not

allowed to uphold any standard, requirement, rule or any other

limitation that in turn prevents, in any way, student athletes’ ability to

earn compensation from their NILs.

176

Additionally under the law,

the ability to earn compensation from their NILs has no effect on the

respective student athlete’s scholarship eligibility.

177

It is important to note that the Act does not apply to

prospective athletes, and if student athletes hire a sports agent, they

still must be licensed by and follow the federal Sports Agent

Responsibility and Trust Act.

178

Moreover, the title of the Act may

be slightly misleading. The Fair Pay to Play Act “does not create an

employer-employee relationship: neither of those words even appear

in the bill.”

179

Furthermore, “California student-athletes will not be

paid to play, nor is there any text pondering what pay would be

‘fair.’”

180

Committee on Arts, Entertainment, Sports, Tourism, and Internet Media (2020)

(comments of Nancy Skinner, California state senator and bill author)).

174

CAL. EDUC. CODE § 67456 (West 2019).

175

Id.

176

Id.

177

Id.

178

CAL. EDUC. CODE § 67456 (West 2019).

179

Alexander Lowitt, Full Court Press: Legal Vulnerabilities Of California's Fair

Pay To Play Act, 11 WAKE FOREST J. L. P.S.S. 20, 27-28 (2020).

180

Id. at 28.

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B. The Others Following Suit

Although California was the first to pass such a bill, it has not

been the last. Many states have followed suit, passing their own

respective versions of the Fair Pay to Play Act.

181

The following

states have either adopted, or considered a similar bill: Florida,

Georgia, Illinois, Michigan, Missouri, New Jersey, Oklahoma, South

Carolina, and Tennessee.

182

The various bills are all vastly similar.

Among the similarities are the inability to limit or prevent a student

athlete from being compensated from their NILs, athletes being

entitled to representation either by a lawyer or sports agent.

Additionally, student athletes have to disclose any NIL contracts with

the institution they attend, to ensure that these agreements do not

conflict with any other deals the institution is a party to.

183

Although there are similarities between these bills, there are

also variations among them. A notable difference is “whether they

prohibit or are silent as to providing compensation for prospective

student athletes.”

184

This variation is of specific importance in

relation to recruiting athletes. Schools that are located within states

that allow compensation for prospective student athletes will be at an

inherent advantage in comparison to those schools in states where it

is prohibited. In an almost avalanche-like fashion, this will have an

impact on the competitive nature of all college sports across the

nation. The consequences of a potential nationwide standard, or lack

thereof will be further discussed in Section VI.

185

The bills also

differ in terms of dates where each state’s respective bill goes into

effect.

186

The earliest change to go into effect is Florida’s bill, S.B.

646 which is set to be effective on July 1, 2021.

187

Now that the

NCAA has adopted a preliminary interim policy, the clock is ticking

for potential standardized federal legislation.

181

Nicole Berkowitz et. al, More States Draft Legislation To Address Student

Athlete Compensation As The NCAA Passes The Ball To Congress, LEXOLOGY

(Feb. 5, 2020), https://www.lexology.com/library/detail.aspx?g=5701fc57-8d88-

46bc-9569-43f5b3ca6a5e.

182

Id.

183

Id.

184

Id.

185

See infra Section VI.

186

Berkowitz et al., supra note 180.

187

FLA. STAT. § 1006.74 (2020).

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C. Why This Creates More Issues

States across the nation have presented their own solutions for

how the NCAA bylaws should change. However, as mentioned

above, allowing these statutes to come into effect without a form of

national standardization will have a significant impact on the

competitive nature of college sports, particularly in the area of

recruiting. Recruiting is one of the most essential parts of building a

highly competitive and profitable sports program. For example,

imagine a highly talented athlete is choosing between two schools:

one where a version of the “Fair Pay-for-Play Act” has been enacted

(school one) and one with a law that is more restrictive (school two).

No matter what school two has to offer, the athletes at school two are

at an inherent disadvantage because school one will be able to tell the

athletes that while they receive an education and compete in the

highest level of amateur athletics, they will also be able to earn

money from their popularity in more ways than school two can offer.

This is clearly a strong incentive for students to attend schools

located in states with laws like the “Fair Pay-for-Play Act.” This is a

situation that the NCAA wants to avoid at all costs, as it directly

impacts the completive nature of college sports and further adds to

the need for standardized legislation.

V. THE NCAA RESPONSE

A. The Initial Response Pre-Alston

After the Pay-for-Play Act was signed into law, the NCAA

sent a letter to Governor Newsom stating that the bill was both

“harmful” and “unconstitutional.”

188

Yet, in a seemingly inconsistent

act with that statement a month after the bill was signed, the NCAA

stated in a press release that its Board of Governors unanimously

agreed to look into opportunities for student athletes to obtain

compensation derived from NILs, so long as it was consistent with

the core principles of the NCAA.

189

The NCAA convened a meeting

188

Letter from NCAA Bd. of Governors to Gavin Newsom, Governor, State of Cal.

(Sept. 11, 2019), http://www.ncaa.org/about/resoresou/media-center/news/ncaa-

repsonds-california-senate-bill-206.

189

Board of Governors Starts Process to Enhance Name, Image and Likeness

Opportunities, NCAA (Oct. 29, 2019), http://www.ncaa.org/about/resources/media-

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of a “D-I Name, Image and Likeness Legislative Solutions Group,”

which authored a 22-page document outlining all the changes to the

bylaws specific to NILs.

190

Among the changes outlined in the

document was allowing athletes to be compensated for hosting

private lessons, operating their own camps and clinics, starring in

commercials, hosting autographing sessions, as well as obtaining

money for emergencies through sources such as GoFundMe and

other crowdfunding methods.

191

In the original proposal, there were still limits. One of the

most significant limitations applying to almost all of the changes is

the inability to use school marks or revealing what school that

student-athlete attends.

192

Moreover, schools themselves are given

the ability to prohibit an athlete’s involvement in NIL “activities that

conflict with existing institutional sponsorship arrangements or other

school ‘values.’”

193

This prohibition is similarly seen across state

statutes.

194

The NCAA proposal also places significant limitations on

athletes entering into deals with a sports agent, only allowing these

relationships under three circumstances:

195

“NIL ventures, assist[ing]

in contract negotiations and help[ing] market an athlete’s NIL

ventures.”

196

This is a much stricter limitation than those of the state

proposals.

197

The proposed changes were supposed to be voted on and

formally approved in January 2021;

198

however, the NCAA halted its

proposal.

199

The vote to change the bylaws was tabled two days prior

center/news/board-governors-starts-process-enhance-name-image-and-likeness-

opportunities.

190

Pat Forde & Ross Dellenger, NCAA’s Name, Image, Likeness Legislation

Proposal Revealed in Documents, SPORTS ILLUSTRATED (Oct. 12, 2020),

https://www.si.com/college/2020/10/13/ncaa-proposal-athlete-compensation-name-

image-likeness.

191

Id.

192

Id.

193

Id.

194

Berkowitz et al., supra note 180.

195

Forde & Dellenger, supra note 189.

196

Id.

197

Id.; compare FLA. STAT. § 1006.74; see also CAL. EDUC. CODE § 67456 (West

2019).

198

Forde & Dellenger, supra note 189.

199

Dennis Dodd & Matt Norlander, NCAA Expected To Table Planned Vote On

Name, Image, Likeness Rights Amid Supreme Court Case, Senate Changes, CBS

SPORTS (Jan. 9, 2021, 4:53 PM), https://www.cbssports.com/college-

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to when it was scheduled to take place.

200

The NCAA cited a

pending Supreme Court case,

201

other legal challenges, and changes

in the White House and the Senate as the reasons for the indefinite

delay.

202

NCAA President Mark Emmert doubled down in a letter to

the assistant attorney general, where he stated that “‘[the NCAA’s]

current amateurism and other rules are indeed fully compliant’ with

federal antitrust rules.”

203

He further added that the NCAA

welcomes the invitation extended by the Justice Department to

consult with and understand their views on the subject.

204

B. Post Alston Policy

In the wake of the game-changing Supreme Court decision in

Alston,

205

the NCAA position on NILs changed drastically. After

having previously tabled its vote on the NIL policy, within a matter

of days after the Alston decision came down, the NCAA adopted an

interim NIL policy.

206

While Alston did not address whether the anti-

NIL policy of the NCAA violated antitrust laws, the writing on the

wall was clear, especially in Kavanaugh’s concurrence, that the

football/news/ncaa-expected-to-table-planned-vote-on-name-image-likeness-rights-

amid-supreme-court-case-senate-changes.

200

Id.

201

The NCAA was waiting for a decision in Nat'l Collegiate Athletic Ass'n v.

Alston. The NCAA challenged the decision from the Ninth Circuit Court of

Appeals which held that the NCAA compensation rules violated federal antitrust

laws. Nat'l Collegiate Athletic Ass'n v. Shawne Alston, et al., 141 S.Ct. 2141, 2144

(2021). The Ninth Circuit applied the Rule-of-Reason analysis; however, the

NCAA argued that the court was too fact intensive in its approach. Id. The NCAA

further argued that the Ninth Circuit holding would effectively allow a single court

the powers of nationwide supervision over the entirety of intercollegiate athletics,

stating that “antitrust laws do not deputize district judges as one-man regulatory

agencies. Id at 5 (citing American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d

1230, 1249 (3rd Cir. 1975)). Adding that antitrust suits are not the manner to

“second guess business judgments” (emphasis added). Id. (citing Chicago

Professional Sports Ltd. Partnership v. NBA, 95 F.3d 593, 597 (7th Cir. 1996)).

202

Id.

203

Alan Blinder, N.C.A.A. President Seeks Delay on Vote to Let Students Profit

From Fame, N.Y. TIMES (Jan. 11, 2021),

https://www.nytimes.com/2021/01/09/sports/ncaabasketball/ncaa-delays-vote-

athlete-endorsements.html.

204

Id.

205

Nat'l Collegiate Athletic Ass'n v. Alston, 594 U.S., at 36 (2021),

supremecourt.gov/opinions/20pdf/20-512_gfbh.pdf.

206

Hosick, supra note 11.

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NCAA business model would not stand for much longer.

207

The

NCAA’s interim policy is a mere outline of what will be needed to

address this issue. Yet, this policy is a historic step for the rights of

college athletes, and a reversal of the previous stance of the

NCAA.

208

1. What the Interim Policy Provides

The policy as shown on the NCAA website spans a total of four

bullet points.

209

It provides that

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. 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. Individuals can use a

professional services provider for NIL activities.

Student-athletes should report NIL activities

consistent with state law or school and conference

requirements to their school.

210

The flood gates are now open. With states taking a different stance

on how they choose to address NILs, the current policy impacts

respective schools and consequently the athletes at those schools

differently.

211

Understanding this issue, NCAA President Mark

Emmert stated that due to “the variety of state laws adopted across

the country, we will continue to work with Congress to develop a

solution that will provide clarity on a national level.”

212

The need for

a standardized solution is more prominent now than ever.

207

See supra notes 159-66.

208

See Binder, supra note 202.

209

Hosick, supra note 11.

210

Hosick, supra note 11.

211

See supra notes 183-86.

212

Hosick, supra note 11.

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2. What The Results Have Been

Universities across the nation are preparing for the change

and hoping to put the athletes who attend their school in the best

situations possible, for now and the future. This is the biggest stage

that nearly all of these athletes will ever play on;

213

therefore, their

four years as college athletes give them the largest opportunity to

capitalize on their popularity. Among the first of surely many other

universities, the University of Nebraska and the University of

Colorado (“CU”), have announced programs “designed to help

student-athletes build their personal brand if the NCAA’s NIL

restraints are lifted.”

214

The athletic director at CU “expressed his

support for the new program, noting that, ‘building a personal brand,

and developing the skills to be a successful entrepreneur will help our

student-athletes capitalize and build on their time at CU and

beyond.’”

215

Additionally, college athletes from all sports, all over the

nation have been capitalizing on the new policy change and have

wasted no time to do so. Antwan Owens, a Jackson State football

player, had a “midnight signing” with the company 3 Kings

Grooming, making him the first athlete to sign an NIL deal.

216

date, the athlete making the most out of this new policy seems to be

Bryce Young, the man set to be the starting quarterback for the

Alabama Crimson Tide this upcoming season.

217

Although he barely

saw the field his first season with the Crimson Tide, Alabama head

coach Nick Saban told the media that Young’s deals have totaled

almost one million dollars.

218

These deals have not only reached

football players; Olivia Dunne, an 18 year old gymnast for LSU may

213

Estimated Probability of Competing in Professional Athletics, supra note 12.

214

House et al., 4:20-cv-0319, June 15, 2020 at 6.

215

Id. (quoting David Plati, CU Announces “Buffs With A Brand” Program,

CUBUFFS (June 1, 2020), https://cubuffs.com/news/2020/6/1/general-cu-

announces-buffs-with-a-brand-program.aspx.

216

Elizabeth Karpen, Players Getting Paid: Here’s Who Signed NIL Deals on

Policy’s First Day (July 1, 2021, 4:29 PM), N.Y. POST,

https://nypost.com/2021/07/01/here-are-players-who-signed-nil-deals-on-policys-

first-day.

217

Des Bieler, Nick Saban Reveals Alabama QB Bryce Young is Already Making

‘Ungodly’ Profits off NIL Rights (July 20, 2021, 7:52 PM), WASH. POST,

https://www.washingtonpost.com/sports/2021/07/20/nick-saban-bryce-young-

ungodly-nil-profits.

218

Id.

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be the poster child for NIL deals.

219

She is currently the only

collegiate athlete to have over 1 million followers on both social

media platforms TikTok and Instagram, with 4 million and 1.1

million followers on both respectively.

220

Olivia recently met with

the “international talent agency giant Creative Artist Agency at 2000

Avenue of the Stars in Los Angeles, which has represented Madonna

and Cher.”

221

Entertainment lawyers in the Baton Rouge area, where

LSU is located, speculate that a deal with CAA or a similar company

could bring her anything between four to five million dollars.

222

While some athletes have gone as far as starting their own companies

to help their fellow athletes book events,

223

others have not found

their schools as open to NIL opportunities.

224

Of note, Brigham

Young University has informed their athletes that any and all deals

they enter must conform to the schools’ honor code.

225

It is

important to note that at the time of writing, the NCAA’s interim NIL

policy has only been in place for twenty-three days.

VI. WILL THERE BE FEDERAL RESOLVE?

To date there have been four congressional proposals made

regarding college athletes’ rights to NIL compensation.

226

Each of

219

Glenn Guibeau, Olivia Dunne, LSU Gymnast and Social Media Queen, Could

be NIL Multi-Millionaire (July 8, 2021, 1:57 PM), USA TODAY,

https://www.usatoday.com/story/sports/college/2021/07/08/lsu-gymnast-olivia-

dunne-tik-tok-social-media-nil-gold/7903126002.

220

Id.

221

Id.

222

Id.

223

Tommy Beer, These NCAA Athletes Have Already Inked Endorsement Deals

(July 1, 2021, 4:56 PM), FORBES,

https://www.forbes.com/sites/tommybeer/2021/07/01/these-ncaa-athletes-have-

already-inked-endorsement-deals/?sh=150cbdb44676 (stating that University of

Miami quarterback D’Eriq King “partnered with Florida State quarterback

McKenzie Milton to co-found Dreamfield, a company that will assist student-

athletes in booking live events, such as autograph signings and speaking

engagements.”).

224

Id.

225

Id.

226

Senators Booker (D-NJ) and Blumenthal (D-Conn) proposed the “College

Athlete Bill of Rights”, Senator Wicker (R-Miss) introduced the Collegiate Athlete

and Compensation Rights Act introduced, Senator Rubio (R-Fla) introduced

the Fairness in Collegiate Athletics Act presented by, and Representatives

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the four proposals differ, and some of them are very far apart.

Nevertheless, with the variation seen among state legislation, as well

as the different stances taken by some universities, one thing is clear:

there is a need for standardized legislation.

A. The College Athlete Economic Freedom Act

The most recent proposal from Connecticut Senator Chris

Murphy and Massachusetts Congresswoman Lori Trahan is a bill

dubbed the “College Athlete Economic Freedom Act.”

227

They

propose that there should be “unrestricted access to earning NIL

income in individual and group NIL agreements.”

228

The proposed

Act provides that no college or university can collude with a third

party to limit an athlete’s ability to contract and be compensated for

his or her NILs.

229

Moreover, the Act would not allow the NCAA to

prohibit an athlete from retaining representation, whether that be an

attorney, a financial advisor, or an agent,

230

a provision that various

state bills and laws do not include.

231

This proposal also circumvents

the unionization issues previously discussed, by legislating that the

athletes would be granted the right to “organize through collective

representation, like a trade association or 501(c) nonprofit.”

232

This

right would effectively allow the athletes to make group NIL

agreements, such as video game agreements.

233

Furthermore, the bill

states that any violation of section 3 of the act shall be treated as a

Gonzalez (R-Ohio) and Cleaver (D-Mo) introduced the bi-partisan Student Athlete

Level Playing Field Act, see id.

227

Id.

228

Andrew Zimbalist, The College Athlete Economic Freedom Act Proposed In

Congress Is A Step Forward On NIL Rights, FORBES (Feb. 7, 2021, 1:20 PM),

https://www.forbes.com/sites/andrewzimbalist/2021/02/07/the-college-athlete-

economic-freedom-act-proposed-by-senator-chris-murphy-d-ct-and-

congresswoman-lori-trahan-d-ma-is-a-step-forward/?sh=77e0688f2bbd.

229

College Athlete Economic Freedom Act, S. 1, 117

Cong. § 3(a)(2) (2021).

230

See id. at § (3)(b)(1)(a); id at § (3)(b)(1)(b); id at § (3)(b)(2).

231

Berkowitz, et al., supra note 180.

232

Id.

233

Gregg E. Clifton, Senator Murphy Introduces Additional Federal Name, Image

and Likeness Legislation, NAT. L. REV. (Feb. 6, 2021),

https://www.natlawreview.com/article/senator-murphy-introduces-additional-

federal-name-image-and-likeness-legislation.

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violation of 15 U.S.C. 57a(a)(1)(B).

234

Lastly, any aggrieved private

party may bring suit in the proper federal jurisdiction and any

“violation of [the] Act shall be deemed to be a per se violation of the

Sherman Act.”

235

Despite the many rights that this proposal would

afford college athletes, this is still not the most drastic proposal.

B. The College Athlete Bill of Rights

New Jersey Senator Cory Booker’s proposal is titled the

“College Athlete Bill of Rights,” and out of all proposals it is the

most expansive with respect to the rights awarded to the athletes.

236

Senator Booker, a former college athlete who played tight-end for

Stanford football, took this issue to heart and offers first-hand

experience with regard to the issues that these athletes face.

237

Regarding NIL rights, the proposal only allows colleges and

institutions to restrict an athlete’s ability to market his or her NILs “if

234

College Athlete Economic Freedom Act, S. 1, 117

Cong. § 5(a)(1) (2021). 15

U.S.C. 57a(a)(1)(B) is a “violation of a rule defining an unfair or deceptive act or

practices deprescribed under section 18(a)(1)(B) of the Federal Trade Commission

Act.” Id. Federal Trade Commission Act18(a)(1)(B) is codified as 15 U.S.C.

57(a)(1)(B). Id.; see also 15 U.S.C. 57a(a)(1)(B) (2011) which provides that the

Federal Trade Commission may prescribe:

rules which define with specificity acts or practices which are

unfair or deceptive acts or practices in or affecting commerce

(within the meaning of section 45(a)(1) of this title), except that

the Commission shall not develop or promulgate any trade rule or

regulation with regard to the regulation of the development and

utilization of the standards and certification activities pursuant to

this section. Rules under this subparagraph may include

requirements prescribed for the purpose of preventing such acts

or practices.

Id.

235

College Athlete Economic Freedom Act, S. 1, 117

Cong. § 5(c) (2021).

236

Doriyon C. Glass & Gregg E. Clifton, The Proposed “College Athletes Bill of

Rights” Joins Growing Number of Federal Bills on Student-Athlete Rights,

JACKSONLEWIS (Dec. 20, 2020),

https://www.collegeandprosportslaw.com/uncategorized/the-proposed-college-

athletes-bill-of-rights-joins-growing-number-of-federal-bills-on-student-athlete-

rights.

237

Ross Dellenger, Inside the Landmark College Athletes Bill of Rights Being

Introduced in Congress, SPORTS ILLUSTRATED (Dec. 17, 2020),

https://www.si.com/college/2020/12/17/athlete-bill-of-rights-congress-ncaa-

football.

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the State also prohibits institutions of higher education located in the

State from entering into agreements with such entities.”

238

The

athletes would also be prohibited from entering endorsement

contracts with a list of entities provided by the institution they play

for.

239

While the act provides fewer freedoms in terms of NILs than

the College Athlete Economic Freedom Act, this provision would

require “schools to share 50% of their profit with athletes from

revenue-generating sports, after accounting for cost of

scholarships.”

240

It also looks to bring in the Department of Health

and Human Services (HHS) and the Center for Disease Control and

Prevention (CDC) to work with the Sports Science Institution as well

as the NCAA to address “everything from how to handle concussion

and traumatic brain injuries to sexual assault and interpersonal

violence to athletics health care administration,”

241

all of which are

prominent issues in sports and college generally. Along the lines of

player safety and health, Senator Booker proposed that Congress

should create a medical trust fund paid into by the higher education

institutions to cover any and all “out-of-pocket expenses relating to

any sports-related injury” extending for the five years after a player’s

college athletic career has ended.

242

Even though this proposal is

more limited with respect to NILs, it is the most expansive in every

other area.

C. Student Athlete Level Playing Field Act

Ohio Congressman Anthony Gonzalez’s plan is born from his

experience as a former Ohio State wide receiver and NFL player.

This plan deviates from the other proposals by calling for the creation

of what is called the “Covered Athletic Organization Commission”

(“Commission”).

243

The Commission’s job, among other things,

would be to make recommendations to Congress about NIL rules.

244

The proposal also allows schools to prohibit an athlete from entering

238

College Athletes Bill of Rights, S. 2, 116

Cong. § 3(a)(3)(A) (2020).

239

Id. at § 3(a)(3)(B).

240

Id.

241

Senators Booker and Blumenthal Introduce College Athletes Bill of Rights (Dec.

17, 2020), https://www.booker.senate.gov/news/press/senators-booker-and-

blumenthal-introduce-college-athletes-bill-of-rights.

242

College Athletes Bill of Rights, S. 2, 116

Cong. § 6(a)(1)(A-C) (2020).

243

Student Athlete Level Playing Field Act, S. 2, 116

Cong. § 3(a) (2020).

244

Id. at § 3(a)(1).

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into endorsement contracts with: “[any] tobacco company or brand,

including any vaping device or e-cigarette or related products, any

alcohol company or brand, any seller or dispensary of a controlled

substance including marijuana, any adult entertainment business, any

casino or entity that sponsor or promote gambling activities.”

245

The

committee would also have the power to add any type of company or

brand that it sees fit to the prohibited list.

246

Lastly, this proposal

seeks to regulate the recruiting process by prohibiting any booster

247

“to directly or indirectly provide or offer to provide any funds or

thing of value as an inducement for a student athlete to enroll or

remain at a specific institution or group of institutions.”

248

VII. FINDING THE MIDDLE GROUND

The state acts and bills discussed above are not nearly as

comprehensive as is needed to address this issue. These statutes are a

start, but do not go far enough. Similar to the state laws and

proposals, the NCAA’s interim bylaw changes simply are not

detailed enough to cover all areas of this complicated issue. Any

such changes that fall short of fully allowing athletes from being

compensated for their NILs will lead to more litigation. The NCAA

has correctly identified that it should not be up to a single court to

overhaul the entirety of a nationwide regulating body. No decision

would be able to anticipate all of the issues that would later arise

from it, due to the fact-intensive nature of governing student-athletes

from across the nation.

Thus, the best solution is a standardized federal act. This act

would theoretically take away any of the recruiting issues that can

arise from the lack of uniformity of state acts and remove the power

245

Id. at § 2(a)(2)(A-E).

246

Id. at § 3(a)(4).

247

The proposal defines a booster as:

[I]ndividual (other than an individual who is related to a student

athlete) or an organization, including a sponsor of an institution’s

athletic program, that provides substantial financial assistance or

services to the athletic program of an institution of higher

education or that promotes a team or athletic program of an

institution of higher education for such individual’s or

organization’s own substantial financial interest.

Id. at § 5(a)(4).

248

Id. at § 3A.

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1640 TOURO LAW REVIEW Vol. 37

from the NCAA’s hands which have a clear bias in the outcome.

However, none of the proposed pieces of federal legislation, as they

currently stand, should be the final answer. Rather, a hybrid

approach that combines sections from the various federal proposal

would be a better outcome.

The College Athletes Bill of Rights effectively provides

college athletes with the ability to capitalize on their NILs, while also

allowing the schools to limit their options.

249

This seemingly results

in the best of both worlds. As such, taking from the Student Athlete

Level Playing Field Act, industries such as alcohol, marijuana,

gambling and the like should be prohibited outright.

250

However, the

Act should not go as far as allowing athletes to profit share with the

schools, as this borders on an employee employer relationship.

Moreover, the athletes should be able to organize together to enable

them to enter to enter into group NIL deals and make a profit

collectively in different fields, for example, the lucrative field of

video games.

251

Lastly, as provided in the Student Athlete Level

Playing Field Act, boosters should be prohibited and there should be

regulation around incentivizing or attempting to incentivize a recruit

in attending a school.

252

This combined proposal would address the

needs of a college athlete now. It would give them the rights that

they deserve, and the ability to make money that they earn. All the

while, colleges, universities, and the NCAA will be able to retain

some control over the companies that these athletes are eligible to

profit from, thereby limiting any conflicts of interest and respecting

the prestige and name of the NCAA and schools alike.

VIII. CONCLUSION

In 2015, Lebron James, the face of the NBA, signed a lifetime

contract with Nike that “is likely to pay him over $1 billion by the

time he is 64.”

253

These same big name apparel companies are

249

College Athletes Bill of Rights, S. 2, 116

Cong. § 3(a)(3)(A) (2020); see also

id. at § 3(a)(3)(B).

250

Student Athlete Level Playing Field Act, S. 2, 116

Cong. § 2(a)(2)(A-E)

(2020).

251

Berkowitz, et al., supra note 180.

252

Student Athlete Level Playing Field Act, S. 2, 116

Cong. § 3A (2020).

253

Michael Cannivet, Lebron James' Mega-Deal Shows Why Globalization is Here

to Stay, FORBES (July 17, 2018, 6:41 PM),

Touro Law Review, Vol. 37, No. 3 [2021], Art. 15

https://digitalcommons.tourolaw.edu/lawreview/vol37/iss3/15

2021 COMPENSATION THROUGH NIL 1641

paying large sums to universities to ensure that the athletes who

attend their schools are wearing their gear on game day.

254

Although

college athletes do not have the same “stardom” as a player with the

caliber of Lebron James, there is still a nearly equal amount of money

at play when they lace up.

255

There have been attempts to make changes through the use of

the courts, and while they have shown that the NCAA bylaws are

permeable,

256

the outcomes have not been substantial enough.

Regardless, it should not be left up to one court to determine how a

national agency regulates its members..

257

States have started to

propose and pass legislation to strike down these archaic NCAA

bylaws in favor of allowing athletes to have the right to profit from

their NILs.

258

The state actions, compounded with the Supreme

Court ruling in Alston,

259

have forced the hand of the NCAA to adopt

an interim NIL policy.

260

While this is an unprecedented step from

the NCAA, it is imperative that there is federal resolution of this

issue, something that the NCAA is directly calling for.

261

The best

action would be to combine the provisions from three of the leading

proposals. This would give athletes the ability to profit from their

NILs and other lucrative fields such as the video game industry,

while also protecting universities and the NCAA from being

associated with brands or companies that could lead to conflicts of

interest with their current contracts, or those they feel do not best

represent them.

https://www.forbes.com/sites/michaelcannivet/2018/07/07/lebron-james-mega-

deal-shows-why-globalization-is-here-to-stay/?sh=61757e885c1e.

254

Wire, supra note 4.

255

Gibson, supra note 60.

256

Meyer & Zumbalist, supra note 30, at 274.

257

Nat'l Collegiate Athletic Ass'n v. Shawne Alston, et al., 2020 WL 7366281, 5

(2020) (citing American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230,

1249 (3d Cir. 1975)).

258

Berkowitz et al., supra note 180.

259

Nat'l Collegiate Athletic Ass'n v. Alston, 594 U.S., at 36 (2021),

supremecourt.gov/opinions/20pdf/20-512_gfbh.pdf.

260

Hosick, supra note 12.

261

Id. (quoting NCAA President Mark Emmert “… we will continue to work with

Congress to develop a solution that will provide clarity on a national level. The

current environment – both legal and legislative – prevents us from providing a

more permanent solution and the level of detail student-athletes deserve.”).

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