The NCAA is in the midst of an era that will define the future of collegiate athletics and determine how young people participate in sports for the foreseeable future. This Essay ultimately concludes that both the NCAA and its athletes would benefit from a system that allows for the exploitation of athletes' name, image, or likeness (NIL) rights while preserving the core educational and nonprofessional nature of college sports as a product. Currently the NCAA requires its athletes to maintain a very broadly defined amateur status to remain eligible for competition. The current amateurism definition states that athletes must forego all compensation outside of education-related expenses and retain status as a full-time student in good academic standing. This ban on compensation has been challenged in court under antitrust analysis and has been allowed by the Supreme Court as a procompetitive advantage necessary to maintain the unique characteristics of the NCAA’s product, college athletics. So far, the prohibition has been upheld to cover compensation both received directly for athletic performance and received for activities performed away from collegiate competition. This Essay will not address the possibility of directly compensating student-athletes for their abilities, but whether they should be allowed to receive payment related to any of their NIL rights. Though the courts have extended approval for bans to all compensation received by an athlete for their NIL rights, they have only properly analyzed game-related NIL rights, such as those contained in video game likenesses or game footage. Analysis will show that while the NCAA has a justifiable and viable business interest in disallowing any compensation to athletes related to athletic or even educational performance, its restriction on non-game-related NIL rights does not deserve the same deference.
The business model surrounding college athletics requires maintaining the integrity of its academic ideals and a bar on pay-for-play. Allowing athletes to earn compensation related to their non-game-related NIL rights does not interfere with these goals because the athletes’ schools would not begin providing additional benefits and any payment by a third party would not be directly for an athlete’s performance. This, along with a multitude of other reasons, shows that a blanket prohibition on compensation is not necessary to maintain the integrity of the NCAA’s product. Thus, the NCAA’s definition of “amateurism” should be narrowed to allow for the creation of a market for non-game-related NIL rights. It then follows that the NCAA should adopt new regulations to govern this market. By doing so, the NCAA can avoid putting itself at the mercy of the courts in future antitrust litigation and actually strengthen its position protecting its athletes’ amateur status and promoting its overall educational mission.
This Essay will discuss the current legal landscape regarding the NCAA and its restrictions on NIL rights in Part I. It will then discuss the potential challenges facing the supposed legitimate business interest in protecting athletes’ amateur status, and how the NCAA should react, in Part II. Finally, Part III will describe a potential framework for regulating a new market for non-game-related NIL rights and how this mechanism can address certain challenges that may arise.
Lane Violation: Why the NCAA's Amateurism Rules Have Overstepped Antitrust Protection & How to Correct,
Notre Dame L. Rev. Reflection
Available at: https://scholarship.law.nd.edu/ndlr_online/vol95/iss1/6