Why will the NCAA continue to punt on Name, Image and Likeness?
By: Spencer Bauer
The implementation of Name, Image and Likeness legislation has forever changed the landscape of collegiate athletics. Student athletes are now able to enter into endorsement deals and receive compensation based on their likeness. However, this exciting era in collegiate athletics is met with a great deal of uncertainty since there is no national legislation in place and each individual state is required to implement their own state laws. Although there were rumors of a possible NIL bill appearing on the Congressional floor, more states have continued to pass their own legislation without a legislative response from the NCAA or Congress. Why is the NCAA willing to allow student athletes to be paid but unwilling to enact a national rule when they have the power to do so? Is the NCAA worried that their long established amatuer model of collegiate sports will erode with a NIL supportive national rule? Or could the lack of action be based on fears of potential financial consequences? The underlying reason behind the NCAA’s hesitancy to enact a national rule is likely that the NCAA is afraid that a national NIL rule may be challenged as an antitrust violation.
Following the NCAA v. Alston decision, the Supreme Court ruled against the NCAA’s limits on athletes’ compensation for educational benefits, which now allows student athletes to receive graduate scholarships, paid internships, as well as receive compensation based on their likeness. In Justice Kavanaugh’s concurring opinion, he was extremely critical of the NCAA's amatuer sports model and calls into question whether the NCAA is in violation of antitrust laws. In his opinion, Kavanaugh states, “Price-fixing labor is price-fixing labor. And price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work. The current NCAA model is suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year.”
Although the Court did not hold nor address whether the compensation rules were an outright antitrust violation, it is clear that the overall model of the NCAA is under scrutiny and could lead to another Supreme Court case. If limitations on the distribution of educational benefits could lead to possible antitrust violations, imposing a national rule that limits the amount of compensation student athletes can receive and how they can receive that compensation is likely to have the same result. The NCAA is unlikely to enact a national NIL rule since it will more than likely be challenged in court as an antitrust violation. The NCAA cannot afford to jeopardize their antitrust immunity status. Without this protection, the NCAA may have to begin to pay their participating student athletes and their immense profit margins from the amatuer model will plummet. The NCAA is better off essentially remaining silent on NIL, allowing each individual state to create and enforce their own legislation. Since the legislation will be handled on a state by state basis, the challenges to the legitimacy of these legislations or the possibility that they create antitrust violations will be handled at the state level and will not involve the NCAA as a defendant. The NCAA will continue to “punt” the ball to the states since it keeps them out of court and keeps their business model intact. But is this fair to the student athletes? Is it fair to the states? It is entirely too early to tell how this will affect the economy as well as the potential earnings of the student athletes. Student athletes may benefit the most since universities and states will now participate in an “arms race” to offer more and more benefits to student athletes in hopes of landing star recruits. Only time will tell whether the NCAA’s decision not to implement a national NIL rule was more beneficial for the student athletes or for the NCAA.