The End of Amateurism: The NCAA and the Sudden Implementation of Name, Image, and Likeness

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Volume 49 Issue 2 Article 3

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The End of Amateurism: The NCAA and the Sudden The End of Amateurism: The NCAA and the Sudden

Implementation of Name, Image, and Likeness Implementation of Name, Image, and Likeness

Alex Albers

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Student Comments

The End of Amateurism: The NCAA and the Sudden

Implementation of Name, Image, and Likeness

ALEX ALBERS

NTRODUCTION

The National Collegiate Athletic Association (“NCAA”), the

organization that exists to manage the collegiate programs which participate

in intercollegiate athletics, has a well-known role to “preserve sport traditions

and integrity” within its member institutions.

Based on this established

purpose, the NCAA requires amateur status for its student-athletes, meaning

that individuals are not to be paid in order to play by any members.

However, fans of college athletics will likely recall recent memories

involving substantial violations within their favorite NCAA sports because of

the lack of true amateurism.

NCAA College Basketball acts as one of the most-watched sports at the

collegiate level.

Its annual tournament, March Madness, generates hundreds

* Graduate of Ohio Northern University Pettit College of Law Class of 2022. Thank you to all of the

editors at the Ohio Northern University Law Review for all of their work and insightful feedback.

1. Playing Rules Purpose and Vision Statements, N

AT’L COLLEGIATE ATHLETIC ASSOC.,

https://www.ncaa.org/playing-rules/playing-rules-purpose-and-vision-statements (last visited Apr. 14,

2023).

2. Amateurism, N

AT’L COLLEGIATE ATHLETIC ASSOC., https://www.ncaa.org/student-athletes

/future/amateurism (last visited Apr. 14, 2023).

3. Alan Rubenstein, The 25 Biggest Scandals in NCAA History, B

LEACHER REPORT (Sept. 20,

2010), https://bleacherreport.com/articles/468221-the-25-biggest-scandals-in-ncaa-history (citing some of

the most notable NCAA program scandals, many of which include student-athlete payments).

4. Darren Geeter, March Madness Makes Enough Money to Nearly Fund the Entire NCAA –

Here’s How, CNBC, https://www.cnbc.com/2019/03/22/ncca-march-madness-tournament-basketball.

Albers: The End of Amateurism: The NCAA and the Sudden Implementation of

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394 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

of millions of dollars in revenue for the NCAA and attracts a huge number of

viewers.

With the great popularity that college basketball possesses,

prospective athletes create major competition among college programs to

secure the nation’s top talent.

Because of this incredibly stiff competition

for amateur athletes, strict compliance with NCAA policy has not always

been the focus of the institutions hoping to assemble a competitive basketball

team.

In 2017, a federal investigation revealed several bribery schemes at top

NCAA basketball programs.

In the initial release of the investigation, the

FBI stated that it had discovered a “pay-to-play culture flourishing in some

corners of the NCAA” where money was given to athletes’ families to

persuade the player where to play and, eventually, what brands the athlete

would wear.

The allegations included several different charges of

misconduct, including direct discussions of payments to prospective

athletes.

In one of these cases, former University of Arizona Men’s

Basketball Head Coach Sean Miller was heard on an FBI wiretap discussing

payments to Deandre Ayton, a five-star prospect who later committed to

Miller’s school.

This payment was not insignificant, discussions with

Ayton included payment of $100,000 to ensure his enrollment.

Further, the

apparel brand Adidas was also found to be involved in the under-the-table

payments, with findings that the brand’s employees were involved with

“funneling money from Adidas to the families of high-profile recruits to

html (last updated Mar. 22, 2019, 2:45 PM), (reporting that the March Madness draws millions of viewers

and generates more than 75% of the NCAA’s annual revenue).

5. Id. (reporting that March Madness “rakes in more than $800 million each year from its

television deal alone”).

6. See generally Recruiting Database, ESPN, http://www.espn.com/college-sports/basketball/

recruiting/playerrankings (last visited Apr. 14, 2023) (for example, the ESPN “Recruiting Database” lists

the offers received by the top basketball players eligible for NCAA competition in 2022).

7. Tom Winter & Tracy Conner, 4 NCAA Basketball Coaches, Adidas Executive Charged in Bribe

Scheme,

NBC NEWS (Sept. 26, 2017, 8:12 PM), https://www.nbcnews.com/news/us-news/college-

basketball-coaches-allegedly-took-bribes-agents-deliver-athletes-n804781.

8. Winter & Conner, supra note 7 (While assistant coaches from major colleges were implicated,

statements from the institutions reflected a stance that they were not aware of the conduct).

9. Kyle Boone, NCAA Notice of Allegations Against Arizona, Coach Sean Miller Include Nine

Charges of Misconduct, CBS

SPORTS (Oct. 25, 2020, 2:45 PM), https://www.cbssports.com/college-

basketball/news/ncaa-notice-of-allegations-against-arizona-coach-sean-miller-include-nine-charges-of-

misconduct-per-report/.

10. Id. (at the time of the University of Arizona investigation, Oklahoma State, NC State, LSU,

and Kansas were also dealing with ongoing cases).

11. Gary Parrish, Arizona’s Sean Miller Caught on FBI Wiretap Talking Paying Deandre Ayton,

CBS

SPORTS (Feb. 23, 2018, 10:47 PM), https://www.cbssports.com/college-basketball/news/arizonas-

sean-miller-caught-on-wiretap-discussing-paying-deandre-ayton-report-says/ (Ayton was a top draft

prospect only a year after committing to Arizona).

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2023] THE END OF AMATERURISM 395

ensure they signed with the sneaker company” when those recruits eventual

were professional players.

The status of these issues continues years later, with major programs such

as North Carolina State, Oklahoma State, Louisiana State, and Auburn still

awaiting the final results of the 2017 investigation years later.

The

Louisiana State case, which involves another wiretap revealing offers to

recruits, may be considered “the most heated of them all” as head basketball

coach Will Wade remained employed with the university until 2022.

Wade’s employment, which was ultimately terminated based on NCAA

allegations, had outlasted the tenure of Louisiana State’s football coach, who

was not terminated because of NCAA infractions, only performance.

The

NCAA’s possible sanctions against the University are still to come with an

expectation of a resolution growing years into the initial allegations.

Overall, it is clear that the NCAA is far from resolving the continued issues

with member-institution recruiting infractions.

The amateur nature of college sports has been in existence for well over

one hundred years.

Since then, college sports have exploded in popularity

and, now, top NCAA programs resemble professional sports teams more than

they resemble an “amateur” club.

However, one main difference has not

been affected over all these years, the inability to pay the athletes that attend

the many universities competing in NCAA athletics.

Even though the top

NCAA teams can make millions of dollars in revenue per year, the players

that help produce the money cannot benefit from their work.

All that exists

12. Mark Schlabach, Three Sentenced in Adidas Recruiting Scandal, ESPN (Mar. 5, 2019),

https://www.espn.com/mens-college-basketball/story/_/id/26141993/three-sentenced-adidas-recruiting-

scandal (Adidas employees were sentenced to prison based on the “pay-for-play scheme” for the recruits).

13. Pat Forde, Four NCAA Infractions Cases From 2017 Scandal Make Notable Progress, S

PORTS

ILLUSTRATED (Oct. 20, 2021), https://www.si.com/college/2021/10/20/ncaa-basketball-fbi-scandal-lsu-

oklahoma-state-updates.

14. Id. (Wade was suspended in 2019 for a refusal to meet with school officials; however, he is

still employed).

15. Id.; Ross Dellenger, The Swift Fall of Ed Orgeron at LSU: Inside a Stunning Post-Title

Collapse, S

PORTS ILLUSTRATED (Oct. 17, 2021), https://www.si.com/college/2021/10/17/ed-orgeron-

lsu-football-inside-program-collapse.

16. Forde, supra note 13 (the case has been at Independent Accountability Review Process, a

creation of the NCAA, since Sept. 23, 2020, with an unclear timeline a year later).

17. Sam Richmond, 1

College Football Game Ever was New Jersey v. Rutgers in 1869, NAT’L

COLLEGIATE ATHLETIC ASSOC. (Nov. 6, 2019), https://www.ncaa.com/news/football/article/2017-11-

06/college-football-history-heres-when-1st-game-was-played (stating that the first known college football

game occurred in 1869 between Rutgers and what is now known as Princeton).

18. See Alicia Jessop, The Economics of College Football, F

ORBES (Aug. 31, 2013, 10:32 PM),

https://www.forbes.com/sites/aliciajessop/2013/08/31/the-economics-of-college-football-a-look-at-the-

top-25-teams-revenues-and-expenses/?sh=376f1f7f6476 (discussing the millions of dollars in football

revenue that major NCAA teams generate).

19. See Amateurism, supra note 2 (discussing amateur requirements to participate in NCAA sports,

which includes a prohibition on paying a student-athlete).

20. Id.

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396 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

for these young men and women hoping to make a career in their sport,

besides a free or reduced cost of attending the university, is a chance to be a

professional athlete following their collegiate career.

This, of course, is not

guaranteed and results in many athletes never seeing financial compensation

for their talents.

While the value of a scholarship can be worth hundreds of

thousands of dollars over a collegiate athletic career and is important for any

student-athlete, the top performers at major NCAA institutions may still have

their values limited through the NCAA’s amateur requirement.

This

system, however, remained in place until 2021 when the first step was taken

to compensate athletes based on their collegiate performance.

The competing interests of a university’s desire to field a successful

athletic team paired with its inability to compensate the potential athletes

have not produced a clean record that one would expect out of this country’s

higher education institutions.

Rumors of scandal, NCAA investigations,

and stories by former college athletes have shed light on the reality that is

amateur athletics in the NCAA.

While the NCAA defends this position by

stating that athletes’ “participation should be motivated primarily by

education and by the physical, mental and social benefits to be derived” from

their sport, countless examples of this proposition being ineffective can be

named.

As one piece of evidence of this NCAA position being ignored,

college football fans may remember former Ohio State quarterback Cardale

Jones’s viral tweet that he came to the university to “play FOOTBALL” and

not to “play SCHOOL.”

Jones also added that “classes are POINTLESS.”

21. Scholarships, NAT’L COLLEGIATE ATHLETIC ASSOC., https://www.ncaa.org/student-athletes

/future/scholarships (reporting that 180,000 student-athletes receive an athletic scholarship).

22. Probability of Competing Beyond High School, N

AT’L COLLEGIATE ATHLETIC ASSOC.,

https://www.ncaa.org/about/resources/research/probability-competing-beyond-high-school (reporting

that, of the 495,000 athletes that compete at NCAA schools, “only a fraction will realize their goal of

becoming a professional or Olympic athlete”).

23. See Scholarships, supra note 21 (Of the 180,000 student-athletes, NCAA Division I and II

programs award more than $3.6 billion to their student-athletes through scholarships each year); See

Amateurism, supra note 2.

24. See infra note 48 and accompanying text.

25. Rubenstein, supra note 3.

26. Id. (while not all examples of NCAA scandal deal with direct player payment, instances of

academic misconduct question the extent of academics of student-athletes’ time at a post-secondary

institution).

27. Virginia A. Fitt, The NCAA’s Lost Cause and the Legal Ease of Redefining Amateurism, 59

UKE L.J. 555, 559 (2009) (stating that the NCAA believes student-athletes should be “protected from

exploitation by professional and commercial enterprises”).

28. Cardale Jones (@Cardale10), Twitter (Oct. 5, 2012, 8:43 AM).

29. Cardale Jones (@CJ1two), Twitter (May 7, 2017, 12:57 PM) (Jones subsequently mocked this

Tweet by adding “Sum 1 Once Said ‘We Ain’t Come Here To Play School’” on his Ohio State graduation

cap).

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2023] THE END OF AMATERURISM 397

Examples of NCAA rule violations date back long before the modern era

of college sports began.

As early as the 1940’s, reports of colleges violating

amateurism policies established that most schools were not following the

NCAA’s prohibition on student-athlete payments.

This led to the NCAA

allowing for athletically related financial aid to be provided to student-

athletes, and the amount of money a college can expend on a player regularly

increased in the years that followed.

Even recently, the NCAA has allowed

member institutions more power in how they recruit athletes, such with

longer scholarships and additional accommodations for living expenses.

However, all of this effort to control amateurism has not led to a reduction in

impermissible financial gain by college athletes from individuals not

associated with the university.

Disclosures made by professional athletes reveal that many are guilty of

receiving under-the-table payments while they are playing as “amateurs.”

A 1989 study reveals that nearly one-third of NFL players surveyed admitted

to accepting illegal payments during their time as collegiate athletes, a direct

violation of NCAA rules.

Further, the study showed that major conferences

had an even larger problem, reporting that 67% of football players in the

Southeastern Conference (“SEC”) accepted these illegal payments.

These

findings are no surprise, considering one of the largest NCAA violations was

only two years earlier, the Southern Methodist University (“SMU”) “death

penalty.”

In 1987, SMU football was found to have committed a

30. Jayma Meyer & Andrew Zimbalist, A Win Win: College Athletes Get Paid for Their Names,

Images, and Likenesses and Colleges Maintain the Primacy of Academics, 11 H

ARV. J. SPORTS & ENT. L.

247, 250-51 (2020).

31. Meyer & Zimbalist, supra note 30, at 251 (stating that college sports’ commercialization

accelerated after the end of World War II).

32. Id. at 252 (these increases included money for living expenses, books, and other usual costs

associated with attending a university).

33. Id. (referencing benefits first allowed from 2012-2014 for multi-year scholarship awards and

expanded food services provided to athletes).

34. See e.g. Bill N., Ohio State Football: Buckeye Compliance Fallacy and NCAA Enforcement

Role, B

LEACHER REPORTS (June 6, 2011), https://bleacherreport.com/articles/725496-ohio-state-

football-buckeye-compliance-fallacy-and-ncaa-enforcement-role (discussing compliance issues within

the Ohio State Football program); Paul Peszko, USC and the Reggie Bush Infractions: The Cliffs Notes

Version, B

LEACHER REPORT (May 31, 2011), https://bleacherreport.com/articles/718845-usc-and-the-

reggie-bush-infractions-the-cliffs-notes-version (discussing NCAA infractions by former USC Running

Back Reggie Bush).

35. Survey Shows Large Number of Players Were Paid in College, L.A.

TIMES (Nov. 17, 1989,

12:00 AM), https://www.latimes.com/archives/la-xpm-1989-11-17-sp-1667-story.html.

36. Id.

(also reporting that over half of these players did not see an issue with breaking NCAA

rules).

37. Id.

(a majority of payments were said to have come from alumni, but some coaches had also

been reported as the source of payment).

38. Dennis Dodd, 30 Years Later: The Legacy of SMU’s Death Penalty and Six Teams Nearly Hit

with One, CBS

SPORTS (Feb. 22, 2017, 12:26 PM), https://www.cbssports.com/college-football/news/30-

years-later-the-legacy-of-smus-death-penalty-and-six-teams-nearly-hit-with-one/.

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398 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

“widespread pay-for-play” scandal so egregious that the team was required

to shut down football operations for an entire season.

This incident did not

only involve university alumni, “boosters, regents, players and coaches” all

conspired to turn SMU into one of the most dominant football programs in

the country.

Following the incident, the SMU program fell off and has still

not fully recovered.

But, even after this extreme example of the possible

consequences of illegal player payments, fifty major infractions were

identified by the NCAA at Division I football programs in the three decades

that followed.

Further, following this incident, SMU may still not have even

learned its lesson.

In 2012, the university hired a basketball coach with a

history of NCAA penalties which continued within its own program.

The years since the SMU death penalty have shown that controversy will

remain a part of collegiate sports.

The recurrence of compliance issues

highlights the ineffectiveness of continued NCAA regulation. Even though

SMU showed how devastating NCAA sanctions can be, Josh Luchs, a former

sports agent, has stated that nearly half of the NFL athletes he represented

accepted some sort of benefits while enrolled in college and has described the

process of winning contracts through “illegal means.”

As another example,

Reggie Bush and Cam Newton, both Heisman Trophy winners, have been the

center of NCAA investigations into the receipt of prohibited payments with

an NCAA athlete.

39. Id.

40. Id.

41. Id.

(Because of the death penalty, SMU literally lost its place at the table as a major college

football program).

42. Id.

(BYU “remains the only national champion free from NCAA sanctions” since 1936,

showing that it is doubtful that the rest of college football has not “been scared straight”).

43. Dodd, supra note 38.

44. Id.

(Larry Brown, former SMU basketball coach, had a history of NCAA compliance issues at

Kansas, UCLA, and SMU following his arrival).

45. See e.g., Auburn Cleared of Wrongdoing in Newton Case by NCAA, N

AT’L FOOTBALL

LEAGUE

(Oct. 12, 2011, 4:16 PM), https://www.nfl.com/news/auburn-cleared-of-wrongdoing-in-newton-

case-by-ncaa-09000d5d82314119 [hereinafter Auburn Cleared] (stating father of Heisman Trophy-

winning Quarterback Cam Newton “shopped” his services to another school for up to $180,000); Michael

Powell, Violations by John Calipari’s Teams? Don’t Look at Him, N.Y.

TIMES (Mar. 25, 2015),

https://www.nytimes.com/2015/03/26/sports/ncaabasketball/coach-caliparis-wonderful-life-begin-the-dis

claimers.html (reporting that current Kentucky basketball coach John Calipari was the head coach at the

University of Massachusetts when star player Marcus Camby “had accepted large sums of cash and

services”).

46. The ‘Illegal Procedure’ of Paying College Athletes, N

AT’L PUB. RADIO (Mar. 28, 2012, 11:59

AM), https://www.npr.org/2012/03/28/148610494/the-illegal-procedure-of-paying-college-athletes

(Luchs began his payments to players in 1990, shortly after the SMU incident).

47. Top 5 ‘Pay to Play’ Scandals Rocking College Football, W

EEK (Jan. 8, 2015), https://theweek.

com/articles/488252/5-pay-play-scandals-rocking-college-football (Bush was forced to give the Heisman

Trophy back, the award for the top college football player every year, following a discovery that he

accepted “illegal gifts worth $300,000”).

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2023] THE END OF AMATERURISM 399

Following these repeated occurrences of NCAA institutions involvement

with impermissible payments to student-athletes, the reality of these

infractions came into view once again when the United States Supreme Court

discussed the market for players with “varying under-the-table schemes.”

In June 2021, the Court unanimously ruled that the NCAA could no longer

completely bar compensation for NCAA student-athletes.

In NCAA v.

Alston, the Supreme Court heard the case of a class of current and former

student-athletes who brought an antitrust lawsuit based on the NCAA’s

compensation restrictions.

These athletes attempted to show that the NCAA

and member schools violated the Sherman Act, which prohibits “contracts,

combinations, or conspiracies in restraint of trade or commerce,” by

“agreeing to restrict the compensation colleges and universities may offer the

student-athletes who play for their teams.”

The district court noted that the

NCAA enjoys near dominance in the area of Men’s and Women’s Division I

basketball and FBS Football, the sports in which the class of plaintiffs

participated.

Additionally, the restriction of compensation by the NCAA

has anticompetitive effects within the market.

This is because NCAA acts

to artificially cap the compensation that could have been offered to recruits.

The NCAA did not dispute any of these findings; instead, it argued that

immunity from the Act was warranted based on the uniqueness of the

NCAA’s product, and the competitive balance among teams competing at this

amateur level.

It offered several justifications why it should continue the

monopolistic enjoyment, all of which were unpersuasive to the Court.

Because of this, the NCAA’s policy of “no-pay for play” ended and student-

athletes would now have the opportunity to earn some sort of compensation

in the future.

48. Nat’l Collegiate Athletic Assoc. v. Alston, 141 S. Ct. 2141, 2149 (2021) (the Court discusses

past infractions and the continued allowance for greater payments to players from colleges through

scholarships and more).

49. Id. at 2166.

50. Id. at 2151 (along with the NCAA, the class sued eleven conferences in Division I NCAA

athletics).

51. Id. (the Sherman Act, which targets monopolization, aims to “enforce a policy of competition”

based on the “belief that market forces yield the best allocation of the Nation’s resources”).

52. Id. at 2151-52 (while other organizations exist which provide similar operations as the NCAA,

the NCAA controls a much more popular organization of college and university athletics).

53. Alston, 141 S. Ct. at 2152.

54. Id. (the district court noted that, while the member organizations are in fierce competition for

recruits, “[s]tudent-athletes would receive offers that would more closely match the value of their athletic

services” without the NCAA market restraints).

55. Id.

56. Id. at 2152-53 (the district court could not identify a useful definition of what the NCAA meant

by “amateurism,” and it also was not persuaded that amateurism drove consumer demand).

57. Id. at 2166.

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400 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

Following Alston, the NCAA adopted an interim policy allowing student-

athletes the opportunity to capitalize on their name, image, and likeness (NIL)

on June 30, 2021.

In the NCAA’s announcement, college athletes were

informed that their NIL activity needed to comply with the state where their

college was located.

If the state did not have a NIL law in effect, the NCAA

stated NIL activity would still be permissible.

Within the announcement,

the NCAA reaffirmed that college sports are not pay-for-play, and that the

policy will remain in effect until a new NCAA rule is adopted or if federal

legislation is passed.

While NIL acts as an encouraging first step in providing compensation

for NCAA athletes, this recent development needs to be viewed along with

the history of NCAA compliance issues. Colleges have repeatedly shown

that they are willing to violate NCAA policy to produce a team that is

competitive in college athletics.

Based on this, adding additional policies

with substantial compliance requirements will not reduce these issues and

may act to increase issues. Now, student-athletes are permitted to openly deal

with individuals and entities outside of their schools willing to provide

payment, so long as any deals are not in violation of any current law or NCAA

regulation.

This interaction, which has never been permitted, may act to

invite even more unreported and impermissible compensation.

With the implementation of NIL in the NCAA, college sports will not

suddenly be without the scandal that has been a part of the league throughout

its history. This, of course, was not the purpose of the implementation of

NIL; the NCAA was forced to allow for NIL payments following Alston.

With the path that the NCAA chose, they have not acted to encourage

compliance, but have only added more requirements.

Because of NIL rules,

state legislatures will now be responsible for passing favorable legislation for

their state’s colleges and universities to provide competitive advantages in

58. Michelle Brutlag Hosick, NCAA Adopts Interim Name, Image and Likeness Policy, NAT’L

COLLEGIATE ATHLETIC ASSOC. (June 20, 2021), https://www.ncaa.org/about/resources/media-center/

news/ncaa-adopts-interim-name-image-and-likeness-policy (the policy officially went into effect the

following Thursday, August 6, 2021).

59. Id. (while the NCAA stated NIL activity would need to comply with state law, the organization

deferred to individual colleges and universities to be student-athlete’s resources on state law questions).

60. Id. (without any state law, these student-athletes needed to only comply with the interim

policy).

61. Id. (both the Division I Board of Directors chair Denise Trauth and NCAA President Mark

Emmert mentioned that they plan to work for a nationwide solution at a federal level).

62. Rubenstein, supra note 3.

63. Hosick, supra note 58 (the NCAA now expressly allows the use of professional services

providers to produce NIL deals, a partnership that would have been a severe violation of NCAA policy at

the beginning of 2021).

64. Nat’l Collegiate Athletic Assoc. v. Alston, 141 S. Ct. 2141, 2166 (2021).

65. See Hosick, supra note 58.

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2023] THE END OF AMATERURISM 401

recruiting, a relationship that will likely be messy.

To avoid all of these

issues, the NCAA should begin to operate college athletics similar to

professional leagues across this country. While NCAA member institutions

are operating to provide higher education and not only assemble sports teams

like professional leagues, a certain balance can be struck to compensate their

student-athletes. The implementation of an athletic association, which

resembles more of a free market where student-athletes have more freedom

to accept payment for their services, can promote a system with limited

scandal. A free market is possible in collegiate athletics and the NCAA

should not be delaying its implementation.

An expectation of regular college athletic scandals does not need to

continue into the future. This comment discusses the possible issues that will

accompany the increasing number of NIL deals currently being made in

college athletics.

It will point out what could act to disrupt the purpose of

college athletics and why the NCAA should take action to avoid these

issues.

Overall, the NCAA can still retain relatively normal college athletic

operations, but it should not sit back and wait.

This comment will proceed in three parts. Part I discusses the current

developments since NIL was adopted by the NCAA.

Part II analyzes the

issues that will likely present themselves with the additional regulation in the

already corrupted environment that is college sports.

Part III discusses how

the NCAA would improve if its operation shifted to resemble a professional

sports league and no longer hold onto the amateur model that has lasted for

over a century.

NAME, IMAGE, AND LIKENESS IN THE NCAA

College sports have always been a source of millions of dollars’ worth of

revenue for many of the major college programs in this country.

Between

college basketball’s March Madness, college football’s bowl season, the

College Baseball World Series, along with the additional thousands of games

66. Liz Clarke, State-by-State Rating System Gives College Recruits Road Map to Evaluate NIL

Laws, W

ASH. POST (Oct. 21, 2021, 12:34 PM), https://www.washingtonpost.com/sports/2021/10/21/nam

e-image-likeness-laws-state-rankings/ (Ramogi Huma, executive director of the National College Players

Association, stated that “[s]tates really have to control their own destiny” in regards to how they feel it is

appropriate in addressing NIL without any federal direction).

67. See discussion infra Part II.

68. Id.

69. See discussion infra Part I.

70. See discussion infra Part II.

71. See discussion infra Part III.

72. Finances of Intercollegiate Athletics: Division I Dashboard, N

AT’L COLLEGIATE ATHLETIC

ASSOC. (Oct. 2022), https://www.ncaa.org/sports/2022/10/14/finances-of-intercollegiate-athletics-divi

sion-i-dashboard.aspx (the NCAA reports $15.8 billion in revenue among all NCAA athletics departments

in 2019) [hereinafter Finances of Intercollegiate Athletics].

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402 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

played in a year, television networks are filled with college athletes

performing at a high level.

However, as recently as a few months ago, none

of this money flowed into the athlete’s hand.

Instead, it was only the

schools that assembled these team’s rosters that were able to benefit from

them as a major financial resource.

Since NIL has been in place, this has

all changed.

Now, when watching college football on Saturday, a viewer

may see Clemson Quarterback DJ Uiagalelei featured in a Dr. Pepper

commercial.

College football fans may have also seen the five-star

quarterback Quinn Ewers forgo his senior season in high school to enroll in

Ohio State and sign a $1.4 million autograph deal with a sports marketing

firm.

Paige Bueckers, a guard on the UConn Women’s Basketball team,

became the first NCAA Athlete to be sponsored by Gatorade when she joined

many professional athletes under the brand.

These three examples only

showcase a few of the major deals struck in the early days of the NIL era that

would have brought suspension less than a year ago.

The regulations controlling athletes’ ability to profit from NIL have come

suddenly.

The first piece of legislation which allowed for this sort of

payment was California’s “Fair Pay to Play Act”, which occurred only a few

73. Jabari Young, With $1 Billion on the Line, March Madness is Ready for its Comeback, CNBC

(Mar. 16, 2021, 8:58 AM), https://www.cnbc.com/2021/03/16/with-1-billion-on-the-line-march-madness-

is-ready-for-its-comeback.html (reporting that March Madness can be worth as much as $1 billion);

Thomas Barrabi, NCAA Football Bowls: Why Schools Don’t Care about the Bonus Check, F

OX BUS.

(Dec. 20, 2019, 6:25 AM), https://www.foxbusiness.com/sports/ncaa-football-bowl-season-why-schools-

dont-care-about-the-bonus-check (reporting that college football conferences earn revenues of nearly $450

million); Economic Impact, C

OLL. WORLD SERIES OF OMAHA, https://cwsomaha.com/economic-impact/

(last visited Mar. 3, 2023) (reporting that the College Baseball World Series has an economic impact

nearing $100 million).

74. Nat’l Collegiate Athletic Assoc. v. Alston, 141 S. Ct. 2141, 2152 (2021).

75. Finances of Intercollegiate Athletics, supra note 72 (reporting that NCAA institutions

generated most of their profits from “ticket sales, broadcast rights, and NCAA and conference

distributions”).

76. See Hosick, supra note 58.

77. Ross Dellenger, An NIL First: Clemson Quarterback D.J. Uiagalelei to Star in Dr. Pepper

National Ad Campaign, S

PORTS ILLUSTRATED (Aug. 11, 2021), https://www.si.com/college/2021/08/11

/clemsons-dj-uiagalelei-to-profit-from-nil-in-dr-pepper-ad-campaign (reporting that the first deal between

a “household brand” and a college athlete was struck between Uiagalelei and Dr. Pepper just six weeks

into the “NIL Era”) [hereinafter Dellenger, Clemson Quarterback].

78. Shehan Jeyarajah, Ohio State Freshman QB Quinn Ewers Signs $1.4 million NIL Deal with

Autograph Vendor,

CBS (Aug. 31, 2021, 2:25 PM), https://www.cbssports.com/college-football/news/ohio

-state-freshman-qb-quinn-ewers-signs-1-4-million-nil-deal-with-autograph-vendor-per-reports/ (Ewers

“pointed to potential NIL opportunities as a critical reason why he left the high school ranks early”).

79. Jackie Powell, Paige Bueckers’ Major NIL Deal Only Leads to More Questions, B

LEACHER

REPORT (Nov. 30, 2021), https://bleacherreport.com/articles/2950930-paige-bueckers-major-nil-deal-on

ly-leads-to-more-questions (other athletes include WNBA stars like Elena Della Donne and Candace

Parker).

80. Sarah Traynor, California Says Checkmate: Exploring the Nation’s First Fair Pay to Play and

What It Means for the Future of the NCAA and Female Student-Athletes, 20 W

AKE FOREST J. BUS. &

INTELL. PROP. L. 203, 204 (2020).

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2023] THE END OF AMATERURISM 403

years ago.

In the bill, California provided that student-athletes could receive

compensation from third parties and prevented the NCAA from interfering

with scholarships based on these payments.

As a result of this, NCAA

President Mark Emmert criticized its passage as it could put an end to the

“current model of intercollegiate athletics” along with other similar state

regulations.

Additionally, the NCAA Board of Governors responded to

California’s bill in a letter stating that an unrestricted NIL scheme would give

schools “an unfair recruiting advantage” and that California student-athletes

would not be allowed to participate in NCAA competition if the bill went into

effect.

The Board went on to say that their opposition to the bill was based

on the best interest of all student-athletes nationwide and that they are to be

students first, not employees of a university.

While the NCAA’s position was that it was open to the idea of NIL

following California’s legislation, it was not until Alston that the NCAA

finally had to address the point.

Following the decision, states rapidly

passed legislation for their colleges to remain competitive in collegiate

sports.

As of now, over half of the states have some sort of NIL legislation

in place, with even more looking toward the potential for legislation.

At the

federal level, discussions have occurred based on the desire for a uniform,

nationwide standard.

Nevertheless, while several bills have been proposed

and dating back to the summer of 2020, no timeline is clear as “there are more

81. Id. (Governor Gavin Newsom signed Senate Bill 206 into law on September 30, 2019, along

with NBA star Lebron James, UCLA gymnast Katelyn Ohashi, and others).

82. Id. at 211.

83. Id. at 205, 212 (Governor Newsom stated that student-athletes are due compensation as they

are a “primary source of revenue stream for the NCAA”).

84. NCAA Responds to California Senate Bill 206, N

AT’L COLLEGIATE ATHLETIC ASS’N (Sept.

11, 2019), https://www.ncaa.org/about/resources/media-center/news/ncaa-responds-california-senate-

bill-206 (the letter highlighted the “critical distinction between college and professional athletics” and that

allowing NIL deals would “negatively impact more than 24,000 California student-athletes”) [hereinafter

NCAA Responds].

85. Id. (the NCAA Board of Governors did state that it currently had efforts “to develop a fair

name, image and likeness approach for all 50 states”).

86. Hosick, supra note 58 (while the interim policy addresses the NCAA’s efforts to implement

uniform NIL regulation, it had made similar statements following California’s Senate Bill 206 years

earlier).

87. Kristi Dosh, Tracker: Name, Image and Likeness Legislation by State, B

US. COLL. SPORTS

(Feb. 16, 2023), https://businessofcollegesports.com/tracker-name-image-and-likeness-legislation-by-

state/.

88. Id. (states with some kind of NIL laws currently in place are or introduced are: Alabama,

Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia,

Hawaii, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,

Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New

Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South

Carolina, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia).

89. Braly Keller, Comparing Introduced Federal NIL Bills, O

PENDORSE (Apr. 12, 2021),

https://opendorse.com/blog/comparing-introduced-federal-nil-bills/ (federal bills have all been relatively

similar, but no major step has yet taken place).

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404 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

pressing agenda items to address.”

Further, individual colleges have drafted

policies that provide guidelines to the university’s athletes informing them of

what is permissible with individual NIL deals.

Generally, these rules

provide that schools will allow an athlete’s ability to earn compensation

through NIL activity so long as the contract is not in conflict with their team’s

contracts.

Additionally, the school cannot itself pay the athlete, only third

parties can.

University policies will also usually require athletes enrolled

in a university to disclose their NIL activity to their university at some point

during the contracting period with a third party.

Some schools have taken

the position that they are not to be involved with procuring these deals,

however, students may employ professional representation in this process.

This use of representation is not for soliciting professional athletic contracts,

only for NIL deals.

The schools also do not take any financial control over

the student-athletes’ profits, the individual is responsible for their own tax

liabilities, financial planning, and other related issues following NIL

contracts.

90. Id. (while federal bills have a small chance of passing, the NCAA v. Alston case presents

“outside implications”); Maria Carrasco, Congress Weighs in on College Athletes Leveraging Their Brand,

NSIDE HIGHER ED (Sept. 30, 2021), https://www.insidehighered.com/news/2021/10/01/congress-holds-

hearing-creating-federal-nil-law (reporting that the House Subcommittee on Consumer Protection and

Commerce has been involved with players, coaches, and administrators in considering a federal NIL law).

91. See, e.g., Student-Athlete Name, Image, Likeness Guidelines, O

HIO STATE UNIV.,

https://ohiostatebuckeyes.com/wp-content/uploads/2021/07/Ohio-State-Student-Athlete-NIL-Guidelines-

FINAL.pdf (“The Department of Athletics is committed to supporting student-athletes and their pursuit of

name, image, likeness (NIL) activities in accordance with applicable NCAA and/or state or federal laws

while continuing to further the mission of the Department of Athletics. . .”); Name, Image, Likeness,

UNIV.

ALA. https://rolltide.com/sports/2021/6/28/name-image-likeness.aspx (stating that Alabama student-

athletes must follow Alabama laws as well as the “likely” federal laws and NCAA legislation that “will

ultimately provide a nationwide, uniform approach to NIL governance,” meaning all current restrictions

are subject to change); see also, Name, Image, and Likeness (NIL) Policy, B

ALL STATE UNIV.,

https://ballstatesports.com/documents/2021/7/1/BSU_NIL_Policy_Effective_July_1_2021_2.pdf

(deferring only to current NCAA NIL legislation as Indiana has not passed any NIL legislation).

92. See supra note 91.

93. Id.

94. See, e.g., Name, Image and Likeness at the University of Michigan, U

NIV. MICH.

https://mgoblue.com/sports/2021/7/1/name-image-and-likeness.aspx (stating that student-athletes must

disclose activities “as soon as practicable) [hereinafter Univ. Mich. NIL Rules]; University of Georgia

Name, Image, and Likeness Policy, U

NIV. GA. https://georgiadogs.com/sports/2021/8/2/nil-policy.aspx

[hereinafter Univ. Ga. NIL Rules]; (stating that NIL Activity must be disclosed in advance).

95. See Univ. Mich. NIL Rules, supra note 94; see Univ. Ga. NIL Rules, supra note 94 (Michigan

allows for “professional advisors” to assist athletes, such as tax advisors, marketing agents, etc., and

Georgia permits “professional representation” regarding only the legal and contractual issues with NIL).

96. Univ. Mich. NIL Rules, supra note 94.

97. Univ. Ga. NIL Rules, supra note 94 (Georgia states that NIL deals may impact need-based

financial aid and that students are responsible for contacting the UGA Office of Student Financial Aid).

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2023] THE END OF AMATERURISM 405

Finally, athletic departments at NCAA member institutions must still

follow the prohibitions created in the NCAA’s NIL interim policy.

Under

the interim policy, the NCAA prohibits payments without quid pro quo.

This means that if an athlete is to accept compensation, it must be for work

performed.

100

Additionally, one cannot accept NIL compensation based on a

requirement to attend a particular school.

101

Last, NIL deals are not to be

contingent upon athletic achievement or performance.

102

While the NCAA

admits that performance will certainly enhance the value of student-athletes

in NIL, superior performances cannot act as consideration for the

compensation.

103

Overall, a substantial amount of requirements and prohibitions are

present for student-athletes hoping to cash in on a NIL deal. While the NCAA

has its policy, it defers to the states and universities that athletes live in and

attend to fully comply with NIL requirements.

104

In addition, while the

NCAA cautions that additional requirements may exist, it specifically states

that it “cannot provide guidance on issues of state law” and encourages

student-athletes to consider these implications while a prospective student to

a university.

105

Beyond these matters, not every regulation contemplates the

age at which an individual can begin to enter into these deals, potentially

impacting high school eligibility.

106

Due to this, the NCAA again

recommends that student-athletes perform research on their own prior to

making NIL decisions.

107

98. See, e.g., Tennessee NIL Information, UNIV. TENN., https://utsports.com/sports/2021/6/30/ten

nessee-athletics-name-image-and-likeness-information-guidance.aspx#one (Tennessee’s NIL information

is accompanied by NCAA requirements currently in effect).

99. Name, Image and Likeness Policy Question and Answer, N

AT’L COLLEGIATE ATHLETIC

ASSOC. https://ncaaorg.s3.amazonaws.com/ncaa/NIL/NIL_QandA.pdf (last visited March 31, 2023).

100. Id. (this prohibition seemingly does not add a major requirement as the prohibition against pay-

for-play is still in existence, meaning that the student-athlete is required to provide something to the third

party).

101. Id. (the NCAA goes on to say that, for example, schools cannot “guarantee[] a particular NIL

opportunity upon enrollment”).

102. Id.

103. Id.

104. Name, Image and Likeness Policy Question and Answer, supra note 99 (for example, the

NCAA interim policy does not address reporting requirements, but states that member institutions may

impose various reporting requirements).

105. Id. (the policy states that a prospective student-athlete may “research state law compliance

requirements where they may wish to enroll” and that “NCAA schools may also have specific NIL policies

that should be considered”).

106. Id. (“Given that rules vary by state, prospective student-athletes should consult their state high

school athletics association regarding questions pertaining to high school eligibility.”).

107. Id.

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406 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

II.

MOVING FORWARD: WHAT ISSUES MAY COME?

With the massive number of rules put in place paired with the lack of

compliance over the history of NCAA sports, an era of scandal that is bigger

than ever could present itself. At this time, college athletes, who may possess

a substantial NIL value to local boosters or businesses, are given the

opportunity to enter giant deals with little NCAA guidance.

108

The NCAA

not only fails to provide services to these young athletes, but they promote

the usage of individual college compliance departments as well as

professional service providers.

109

If the past is any indication of what is to

come, NCAA member institutions will do their best to avoid NCAA rules and

engage in direct competition for the best athletes in the nation. This may lead

to several issues in the future.

A. University Competition for Athletes

NCAA member universities have developed a culture of stiff competition

to score commitments from the country’s most promising athletes.

110

Campus visits, admission to games, and repeated communication with

college coaches have become a part of life for high-ranked recruits coming

out of high school.

111

Additionally, as mentioned above, colleges have

repeatedly shown that they are willing to move past NCAA rules to gain an

advantage in recruiting players.

112

Therefore, implementation of loads of

regulations will not serve to promote any better recruiting tactics than before.

The NCAA has provided rules that govern how colleges can recruit

athletes.

113

The NCAA gives certain periods where athletes can be in contact

with coaches, the amounts that can be spent on recruits during visits, and it

defines the type of contact that coaches can make with athletes.

114

Within

these rules, coaches are able to discuss the potential for the young athlete’s

future with the school and explain why their college is best to fit the athlete’s

108. Id.

109. Name, Image and Likeness Policy Question and Answer, supra note 99 (the NCAA Interim

Policy’s Q&A section states that individuals can search the NCAA’s website for general information,

however, “prospective and current student-athletes with additional questions should consult with athletics

compliance department at the NCAA school they attend or plan to attend”).

110. See College Recruiting Process: How Do Colleges Recruit Athletes? N

EXT COLLEGE STUDENT

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

visited March 31, 2023).

111. Id. (discussing the lengthy process to be recruited by college coaches).

112. Rubenstein, supra note 3.

113. Recruiting – Eligibility Center, N

AT’L COLLEGIATE ATHLETIC ASSOC., https://www.ncaa.

org/student-athletes/future/recruiting (last visited Apr. 14, 2023).

114. Id. (the entire year is divided into certain times, collectively referred to as the “recruiting

calendar”).

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2023] THE END OF AMATERURISM 407

need.

115

Even though these are seemingly minor rules, colleges have still

regularly violated them in the pursuit of the nation’s top talent.

116

The NCAA has also provided a “violation structure” for universities that

violate their recruiting rules.

117

These violations range from Level I – Level

III, with Level I being the most severe.

118

Level I is referred to as a “Severe

Breach of Conduct” and includes violations that “[s]eriously undermine or

threaten the integrity of college sports”, provide a “substantial or extensive

recruiting, competitive or other advantage”, or involve a substantial

impermissible benefit.

119

Among those violations that undermine college

sports is payment to recruits and booster involvement in the recruiting process

with the university’s knowledge, along with other significant misconduct.

120

NCAA misconduct and activity that is considered Level I is not a rare

occurrence. Prohibited behavior is regularly reported from college athletic

programs and staff firings generally follow, whether or not the specifics of

the misconduct are made known.

121

Additionally, these infractions are not

only limited to the sports regularly seen on national television, they occur in

every sport.

122

Of course, while the regular occurrence of these infractions is

115. Id.

116. See, e.g., Megan Durham, Notre Dame Football Program Violated NCAA Recruiting Contract

Rules, N

AT’L COLLEGIATE ATHLETIC ASSOC. (Jan. 21, 2021), https://www.ncaa.org/about/resources/me

dia-center/news/notre-dame-football-program-violated-ncaa-recruiting-contact-rules (reporting that a

Notre Dame football assistant violated NCAA rules when the coach had impermissible contact with an

athlete by meeting too early in the athlete’s career, a “Level III” violation); Megan Durham, Dayton

Women’s Volleyball Program Committed Recruiting Violations, N

AT’L COLLEGIATE ATHLETIC ASSOC.

(Apr. 22, 2021), https://www.ncaa.org/about/resources/media-center/news/dayton-women-s-volleyball-

program-committed-recruiting-violations (reporting that University of Dayton women’s volleyball held

impermissible tryouts and other recruiting violations, a “Level II” violation).

117. Violation Structure and Levels, N

AT’L COLLEGIATE ATHLETIC ASSOC., https://ncaaorg.s3.

amazonaws.com/infractions/d1/glnc_grphcs/D1INF_InfractionsViolationLevels.pdf (last visited Apr. 14,

2023).

118. Id. (Level II and Level III are those violations that the NCAA does not consider severe, such

as violations that will not provide a “substantial or extensive recruiting, competitive or other advantage”).

119. Id.

120. Id. (academic misconduct or unethical conduct is also a Level I violation).

121. See, e.g., Adam Sparks, Tennessee Football’s Violations were Level I and Level II: Here’s

What That Means, T

ENNESSEAN (Jan. 18, 2021), https://www.tennessean.com/story/sports/college/vols

/2021/01/18/tennessee-vols-football-ncaa-violations-jeremy-pruitt-firing/4207318001/ (reporting that

Tennessee Head Football Coach Jeremy Pruitt was fired after undisclosed Level I violations following an

investigation); Nick Selbe, Arizona Receives Five Level 1 Violation Charges From NCAA, S

PORTS

ILLUSTRATED (Mar. 5, 2021), https://www.si.com/college/2021/03/06/arizona-basketball-sean-miller-

ncaa-violations-level-1-charges (providing details on the firing of University of Arizona Men’s Head

Basketball Coach Sean Miller following five Level I infractions, including “Unethical recruiting

conduct”); Joyce Lupiana, NCAA Rules Georgia Tech Women’s Basketball Program Committed

Violations,

CNN (Sept. 21, 2021), https://kesq.com/news/2021/09/21/ncaa-rules-georgia-tech-womens-

basketball-program-committed-violations/ (reporting that Level I and II violations were found in Georgia

Tech women’s basketball program, the fifth Level I or II infraction case at Georgia Tech since 2005).

122. Id. (reporting that Georgia Tech has had Level I or II violations in Men’s and Women’s

Basketball, Football, Men’s and Women’s Cross Country, Men’s and Women’s Indoor and Outdoor Track,

and Men’s and Women’s Swimming, all since 2005).

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408 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

not difficult to locate, they occur at universities that operate compliance

departments to conform to NCAA rules.

123

Therefore, while not all NCAA

member institutions are involved in restricted behavior, it seems that, at some

universities, either the NCAA and universities are unable to effectively

monitor their athletic programs or that, at some level, universities do not care

to.

With the lack of enforcement established, it seems likely that additional

regulation, paired with a greater ability to persuade athletes to your school

through the existence of NIL deals, will lead to even more issues for the

NCAA and member institutions. This, of course, is all happening at

institutions where the focus is on educating their students, not assembling the

best sports teams in the country. With NCAA regulations already having

major compliance issues, taking this small step towards compensating

players, with added regulation, can potentially lead to negative results.

College coaches have already taken notice of its existence and begun the

process of encouraging player payments.

124

Coaches at major college

programs have explicitly told outside individuals to pay their players.

125

Orgeron, former LSU head football coach, stated that “[w]e’re paying players

now” and that “if you guys want to start paying our players, you can go

ahead.”

126

Additionally, Nick Saban, current Alabama head coach, stated that

his then current quarterback, Bryce Young, has “approached ungodly

numbers” before Young had even started a football game.

127

This direct

encouragement of dealing with student-athletes, paired with the messy layers

of laws and regulations discussed above, does not seem to promote a system

of widespread compliance. The incorporation of NIL deals certainly will not

increase NCAA compliance and can only create more violations moving

forward.

123. See, e.g., Arizona Compliance, UNIV. ARIZ., https://arizonawildcats.com/sports/2014/8/5/209

604905.aspx (last visited Apr. 14, 2023) (“The University of Arizona’s Compliance Office is responsible

ensuring that the University’s athletics programs are in compliance with all NCAA, Pac-12, and University

rules regarding intercollegiate athletics.”); Compliance, U

NIV. TENN. https://utsports.com/sports/2020/

5/12/about.aspx (last visited Apr. 14, 2023) (“The University of Tennessee Athletics Compliance Office

is committed to upholding the principles and practices of institutional control in a manner consistent with

NCAA, SEC and University rules and regulations through a comprehensive education program and the

maintenance of a strong compliance culture.”).

124. See, e.g., Zach Ragan, LSU Football: Ed Orgeron Tell Fans to Pay His Players, F

ANSIDED

(July 20, 2021, 1:14 PM), https://deathvalleyvoice.com/2021/07/28/lsu-football-ed-orgeron-tigers-news-

reason/; Harrison Holland, Nick Saban on Bryce Young’s NIL Deals: “It’s Almost Seven Figures”, S

PORTS

ILLUSTRATED (Jul. 20, 2021, 11:14 PM), https://www.si.com/college/alabama/bamacentral/bama-central

-nick-saban-bryce-young-seven-figures-nil-deal-july-20-2021.

125. Ragan, supra note 124.

126. Id.

127. Holland, supra note 124 (Young’s NIL deals all came before starting a single game for

Alabama).

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2023] THE END OF AMATERURISM 409

Of course, it is reasonable to assume that NCAA member institutions will

never act to fully comply with NCAA policies. Regular violations occur on

campuses across this nation, but with the current NIL system in place, the

necessity to pay a player through under-the-table money may be lower as a

permissible avenue exists.

128

Now, when outside parties can provide

compensation, without needing to work through the colleges and universities,

the need to violate the NCAA policies should be substantially lower.

129

This

use of NIL does not require a school to treat any of their student-athletes

differently, since it is not their responsibility to attain these deals, resulting in

no additional compliance issues.

130

This belief, however, does not entirely

consider the timing of the impermissible payments the NCAA attempts to

prevent.

While the use of NIL brings top student-athletes closer to their market

value, the argument that it will alleviate all NCAA recruiting violations fails

to consider the timeline of prohibited payments to players. When NCAA

violations occur, they are the result of money being offered to prospective

athletes in order to induce the individual to attend a specific college or

university.

131

On the other hand, major NIL deals will occur regardless of

where a student-athlete attends; they are based on the individual’s personal

brand and expected performance.

132

Therefore, the NCAA’s permission for

NIL deals to happen following enrollment at a college or university does not

act to prevent under-the-table money from being offered when an athlete is

still deciding on an institution to play their sport at.

133

By the time a student-

athlete is permitted to enter NIL deals, that individual will have already had

to choose his or her university, and the recruiting process has finished.

134

Offers to prospective athletes of direct compensation are not made

128. Michael A. Corgan, Permitting Student-Athletes to Accept Endorsement Deals: A Solution to

the Financial Corruption of College Athletics Created by Unethical Sports Agents and the NCAA’s

Revenue-Generating Scheme, 19 V

ILL. SPORTS & ENT. L.J. 371, 374 (2012) (arguing that allowing

student-athletes to accept endorsements deals would act to diminish secret compensation to these

individuals).

129. Id. at 415. (“the NCAA would essentially eliminate the need for student-athletes to improperly

accept money” by allowing endorsement deals).

130. Id. at 383. (for example, schools must currently meet Title IX standards, which requires

“opportunities for athletics that are ‘substantially proportionate’ to the gender demographic figures”, but

the use of outside endorsement money does not impact what the schools provide).

131. Boone, supra note 9 (reporting that Arizona basketball coach Sean Miller promised payment

to a five-star prospect “prior to his commitment and signing with the Wildcats.”);

Auburn Cleared, supra

note 45 (Cam Newton’s services were being “shopped” before deciding on a school).

132. See supra notes 77-79 (DJ Uiagalelei, Quinn Ewers, and Paige Bueckers have entered into NIL

deals with national brands, nothing associated with regional markets).

133. Name, Image and Likeness Policy Question and Answer, supra note 99 (“NIL compensation

contingent upon enrollment at a particular school” is prohibited under the NCAA policy).

134. Id.

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unnecessary by the existence of NIL deals, the possibility of impermissible

payments to these players is still very likely.

B. State Involvement in College Athletics and Name, Image, and Likeness

With the enactment of name, image, and likeness rules in the NCAA,

many states have passed a version of state legislation or regulation to allow

for the student-athletes in their states to capitalize on their value.

135

As of

2021, over half of the states have passed some form of guidance that deals

with NIL.

136

With the continued movement of the NIL landscape, the total

number of states with legislation will likely continue to increase over the

coming months and years.

137

With this rapid development and need for state

action, many of the states which have passed NIL legislation have used

similar language and provisions to govern NIL.

138

These common provisions

provided for the athlete’s ability to earn NIL deals, a prohibition against direct

payments, a prohibition against contracts with a school’s brand competitors,

and usually reporting requirements for the student-athletes.

139

However,

several states have chosen unique ways to regulated NIL which may affect

the recruiting abilities of colleges within their states.

Of the provisions that many state legislatures included in their legislation,

most opted to include a reporting requirement for the student-athlete.

140

The

exact reasoning for these required disclosures is not always made clear,

however, many college athletes will have to meet their school’s

requirements.

141

The disclosure could just be to verify that the contract is not

in conflict with any school endorsement or to confirm that the individual

providing compensation is not violating any NCAA or state laws, but the

purpose has not been made available. Seemingly, this requirement will not

135. Dosh, supra note 87 (while many states have passed legislation, others have used executive

orders or provisions added to budget proposals).

136. Id.

137. See, e.g., Zach Osterman, 9 of 11 States in Big Ten Working on Laws to Pay Student-Athletes.

Here’s Why Indiana Isn’t, I

NDIANAPOLIS STAR (June 11, 2021, 5:03 AM), https://www.indystar.com/sto

ry/sports/college/indiana/2021/06/11/indiana-legislature-name-image-likeness-laws-notre-dame-purdue-i

u/7598879002/ (reporting “eagerness” from state legislatures in Indiana, a state without NIL legislation,

who have districts encompassing the major football programs in the state).

138. See Dosh, supra note 87.

139. See generally id.

140. See, e.g., C

AL. EDUC. CODE § 67456 (Deering 2019) (effective Jan. 1, 2020) (California’s

requirement for disclosure of a student-athlete’s contract to an official of the university); S.C.

CODE ANN.

§ 59-158-60 (2021) (South Carolina’s requirement of disclosures including “the intercollegiate athlete’s

name, image, or likeness, compensation arrangements, the name of the athlete agent, and a list of all parties

to the name, image, or likeness contract”).

141. See, e.g., Clemson Compliance Education for Businesses, C

LEMSON UNIV., https://clemson

tigers.com/nilinfo/-businesses (Clemson University in South Carolina requires student-athlete disclosure

of NIL activity seventy-two hours before the deal is entered into).

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provide much of a hurdle for prospects making their college decisions,

however, the application of reporting requirements is far from universal.

Not every state has required that student-athletes disclose the NIL deals

that they may receive.

142

New Mexico’s NIL law has no mention of any

reporting or disclosure requirements and overall provides little regulation for

a student-athlete participating in collegiate sports in the state.

143

While a

school without a requirement can still impose one, it is not required by law.

144

Even in states with certain disclosure requirements, an issue exists as to if

their requirements will even be met.

145

Blake Lawrence, the founder of

Opendorse, a company that matches players with NIL deals, has expressed

major concerns about the operation of NIL deals.

146

In an enterprise that he

believes can exceed $1.5 billion, Lawrence “estimates that only half the

national NIL transactions are being disclosed to schools, one of the only

requirements of athletes.”

147

Lawrence has also stated that the current status

of NIL across the states will create chaos, but that is exactly what the NCAA

wants.

148

He went on to say that “[i]t’s the only way for them to get a federal

bill faster.”

149

And Lawrence may be right; the NCAA might be in support

of nationwide legislation for NIL activity. With federal legislation, issues of

varying NIL requirements in each state would no longer be an issue.

However, as stated above, the NCAA has not acted that way in the past and

was critical of California’s move to begin NIL on its own in 2019.

150

The lack of reporting requirements poses serious issues with NCAA and

state compliance. If rules are put into place regarding the nature of contracts

142. See, e.g., 2021 N.M. S.B. 94, 2021 N.M. Laws 124 (enacted Apr. 7, 2021).

143. Id. (New Mexico’s statute is very favorable to student-athletes entering into NIL deals and

prevents post-secondary institutions from interfering with the student-athletes NIL activity broadly).

144. Name, Image, and Likeness, U

NIV. N.M., https://golobos.com/name-image-likeness/ (last

visited Mar. 6, 2023) (the University of New Mexico has required NIL activity to be disclosed; however,

this is not required by any state law).

145. See, e.g., A

LA. CODE § 8-26B-51 (2021), repealed by Ala. H.B. 76 (effective Feb. 3, 2022)

(Alabama’s former NIL law required a student-athlete to disclose an NIL contract to their college or

university “in a manner prescribed by the institution”).

146. Ross Dellenger, The First Thing to Understand About NIL is That Nobody Fully Understands

NIL, S

PORTS ILLUSTRATED (Aug. 26, 2021), https://www.si.com/college/2021/08/26/ncaa-recruiting-

name-image-likeness-daily-cover [hereinafter Dellenger, First Thing].

147. Id. (the current NIL environment has also worried the executive director of the American

Football Coaches Association, stating college athletics could return to a “scandal-ridden, rule breaking”

era of the 1970’s and 80’s).

148. Ross Dellenger, ‘It’s Going to Be a Clusterf---:’ The New Era of College Sports is Here, Is

Anyone Ready?, S

PORTS ILLUSTRATED (Jul. 1, 2021), https://www.si.com/college/2021/07/01/ncaa-

athletes-profit-nil-daily-cover [hereinafter Dellenger, New Era of College Sports].

149. Id. (Lawrence further states that “no one exactly knows who is supposed to enforce any of it—

and how” regarding NIL deals).

150. NCAA Responds, supra note 84 (in 2019, the NCAA Board of Governors stated “NCAA

member schools already are working on changing rules for all student-athletes to appropriately use their

name, image and likeness in accordance with our values”; however, no change was made until the Alston

decision).

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that can be signed, how can they be enforced if they are not being reported?

This problem, which has been in existence for only a year, is not going

unnoticed. Colin Allred, a former college football player at Baylor and

current U.S. Representative, stated that “lawmakers are hearing from their

state university administrators about the imbalance across the country.”

151

These concerns include lack of enforcement, among others.

152

Beyond the issue of student-athletes disclosing NIL deals, many other

areas of concern can be seen through the variety of approaches state

governments have taken. Illinois, for example, passed legislation with

provisions allowing a university to place time and place restrictions on NIL

deals in order to “protect the integrity of [the postsecondary education

institution’s] educational mission and intercollegiate athletics program.”

153

Alabama’s former legislation prohibited student-athletes from entering

endorsements with certain categories of companies, such as tobacco

companies, alcoholic beverage companies, casinos, and more.

154

Mississippi’s legislation permits a postsecondary educational institution to

prohibit a student-athlete from wearing clothing with certain names, logos, or

insignias of an entity during any institution-sponsored event, not just in

intercollegiate athletics competitions.

155

Texas does not allow NIL deals that

extend past a student-athlete’s participation in the university’s athletic

program.

156

Georgia imposes some of the most restrictive NIL provisions and

states that student-athletes may be required to contribute up to 75% of their

value into a fund that will benefit previous student-athletes at the same

university.

157

Further, if a Georgia university imposes this “pooling”

requirement, athletes are not eligible to draw from the account until 12

months after graduation or withdrawal from the institution.

158

Many other variations of NIL laws exist that could make an athlete’s

college decision incredibly difficult. The examples above are given specific

to certain states, but other states may have legislation with similar provisions.

151. Dellenger, First Thing, supra note 146 (Allred believes a national standard could pass, but the

recruiting impact and role of boosters is a big concern).

152. Id.

153. Student-Athlete Endorsement Rights Act., S.B 2338, 102nd Leg., Reg. Sess. (Ill. 2021)

(enacted July 1, 2021) (universities “may impose reasonable limitations on the dates and time that a

student-athlete may participate in endorsement, promotional, social media, or other activities related to the

license or use of the student-athlete’s name, image, likeness, or voice”).

154. A

LA. CODE § 8-26B-51 (2021), repealed by Ala. H.B. 76 (effective Feb. 3, 2022) (the full list

included any tobacco, alcohol, seller of a controlled substance, adult entertainment business, casino, and

anything else in the reasonable judgment of the university).

155. 2021 Miss. S.B. 2313, 2021 Miss. Laws 444 (enacted Apr. 16, 2021).

156. T

EX. EDUC. CODE ANN. § 51.9246 (West 2021).

157. G

A. CODE ANN. § 20-3-681 (West 2021) (student-athletes cannot opt-out of this “pooling

arrangement,” they are required to agree to contribute the percentage adopted by the university if the

university decides to).

158. Id.

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These examples are only included to give insight into the differences that a

prospective athlete may face in choosing a college. Further, while these

provisions address what a collegiate athlete can do, some legislatures have

decided to apply the rules to high school students while others have not.

159

Overall, if a prospective athlete is to make an informed decision

regarding the best place to receive an education, have an opportunity to

display their athletic ability, and earn as much as they can through NIL deals,

they have a substantial amount of research to do. Additionally, even after a

prospective athlete becomes a student-athlete at a university, 39% of all

undergraduates will transfer schools at least once.

160

While this figure

includes all university undergraduates and not only student-athletes, the

NCAA has reported an increase in Division I transfers each of the last three

years.

161

The decision to transfer may be just as difficult as deciding on an

initial college. The NCAA agrees, informing student-athletes that “[t]he

decision to transfer to another school is an important and often difficult one

in your college career” and encourages anyone considering a transfer to “do

your homework” before deciding.

162

There is no telling how NIL contracts may affect the ability to transfer.

The state’s current involvement in NIL will only act to increase the confusion

that goes into transferring. An individual who possesses NIL deals will need

to ensure these deals are compliant with state and university regulations at

their target institution.

163

Valid contract terms in one state may be

unenforceable in another state based on their NIL legislation.

164

Additionally,

NIL deals with local corporations will likely not want to continue to

compensate athletes that are no longer enrolled in their nearby schools,

159. See, e.g, TEX. EDUC. CODE ANN. § 51.9246 (West 2021) (Texas does not allow prospective

student-athletes to enter into NIL deals before enrollment at a university); but see, 2021 Md. SB 439, 2021

Md. Laws 138 (effective July 1, 2021) (Maryland’s legislation only prohibits “Public institution[s] of

higher education, an athletic association, a conference, or any other group or organization with authority

over intercollegiate athletics” from providing prospective student-athletes with NIL deals).

160. Research on Student-Athlete Transfers, N

AT’L COLLEGIATE ATHLETIC ASSOC.,

http://www.ncaa.org/sports/2019/8/5/research-on-student-athlete-transfers.aspx (last visited Mar. 6, 2023)

(the NCAA reports that student-athletes transfer less often than nonathletes; however, men’s basketball

and tennis may exceed nonathletes in transfer rates).

161. Transfer Composition of Division I Teams, N

AT’L COLLEGIATE ATHLETIC ASSOC. (July

2022), https://ncaaorg.s3.amazonaws.com/research/transfers/RES_TransCompD1TeamsSlides.pdf (this

uptick is in several of both men’s and women’s sports).

162. Want to Transfer?, N

AT’L COLLEGIATE ATHLETIC ASSOC, https://www.ncaa.org/student-

athletes/current/want-transfer (last visited Mar. 6, 2023).

163. See, e.g., S.C.

CODE ANN. § 59-158-60 (2021) (outlining the state of South Carolina’s NIL

regulations); but see, Clemson Compliance Education for Businesses, supra note 141 (detailing Clemson

University’s NIL obligations beyond the South Carolina state regulations).

164. See, e.g., 2019 Cal. S.B. 206, C

AL. EDUC. CODE § 67456 (Deering 2019) (effective Jan. 1,

2020) (California’s NIL law requires disclosure of a student-athlete’s contract to an official of the

university); but see, 2021 N.M. S.B. 94, 2021 N.M. Laws 124 (enacted Apr. 7, 2021) (New Mexico’s NIL

law has no mention of any reporting or disclosure requirements).

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meaning that student-athletes may breach NIL contracts by transferring from

the region.

165

Therefore, beyond the current difficulty in transferring,

student-athletes who are considering a transfer may not know the

implications that a transfer may bring, adding another layer to the difficult

decision that a transfer may bring.

At this time, it can easily be shown that a nationwide policy would clear

up much of the confusion that currently exists. This can be done by the

NCAA working with the federal government to establish common-sense

restrictions, and student-athletes will be able to fully enjoy the benefits of

NIL. The NCAA can ensure that it preserves its traditions while also allowing

student-athletes to be compensated based on their own personal value. This,

however, has not been the way that the NCAA has operated in the past. Two

years before the Alston decision, in the summer of 2019, the NCAA began

investigating the possible responses to proposed NIL legislation at the state

and federal levels.

166

By October 2019, the group investigating this

possibility recommended that NIL activity be permitted for student-

athletes.

167

Nevertheless, by the time that the Supreme Court made its

decision to allow NIL in 2021, the college sports environment saw a rush to

comply with the ruling, and the NCAA enacted its policy by deferring to

individual states on many issues.

168

So, even with early considerations given

to the possibility of implementing NIL, it is unclear when the NCAA would

have acted if it could have waited. If the best option currently is to create

national standards for NIL deals, it is not certain that the NCAA will be

proactive in implementing changes and the current state-by-state regulations

may be in place for some time.

169

Lastly, beyond the concerns of inconsistent requires for student-athletes

from state to state, it is worth noting that, while state involvement may

165. See, e.g., Charlie Potter, NIL Tracker: Compensation Deals Announced by Alabama Athletes,

AMAONLINE (Aug. 17, 2021), https://247sports.com/college/alabama/Article/Alabama-Name-Image-

Likeness-Tracker-Compensation-deals-announced-by-Crimson-Tide-athletes-167270860/ (reporting an

Alabama football player entered into a NIL deal with a local restaurant); Dan Hope, Five Ohio State

Football Players Get New Cars for 2021 Season in Partnership with Local Car Dealer, E

LEVEN

WARRIORS (Aug. 26, 2021, 3:50 PM), https://www.elevenwarriors.com/ohio-state-football

/2021/08/124329/five-ohio-state-football-players-get-new-cars-for-2021-season-in-partnership-with-

local-car-dealer (reporting that Ohio State players were given car leases through the year by a local car

dealership).

166. N

AT’L COLLEGIATE ATHLETIC ASSOC., NCAA BOARD OF GOVERNORS FEDERAL AND

STATE LEGISLATION WORKING GROUP FINAL REPORT AND RECOMMENDATIONS 1 (2020), https://ncaa

org.s3.amazonaws.com/committees/ncaa/wrkgrps/fslwg/Apr2020FSLWG_Report.pdf [hereinafter

NCAA,

GOVERNOR’S FINAL REPORT].

167. Id. (this recommendation was made if NIL deals were “consistent with NCAA values and

principles and with legal precedent”).

168. Hosick, supra note 58 (NCAA President Mark Emmert acknowledged the “variety of state laws

adopted across the country” when NIL was first adopted).

169. Id. (Emmert states that the NCAA will work with Congress, but that the lack of a current

permanent solution prevents the NCAA from providing details that its student-athletes deserve).

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encourage compliance, the current statutory schemes enacted lack

enforcement power.

170

Currently, the NCAA’s policy defers to individual

states to guide the universities within their state.

171

This provides an

additional challenge to student-athletes as violations are no longer only

against the NCAA itself, they are also in violation of state law, so long as

their states have passed NIL legislation.

172

While the addition of state laws

may act to promote compliance, serious questions exist as to how much

monitoring will be in place to track incoming NIL deals.

173

If a student-

athlete is found to have violated the state legislation, no state agency is

directed to enforce the law and no mention of a penalty exists.

174

Therefore,

even with violations of a state’s law, little is likely to come from it.

C. Incoming Litigation

The birth of name, image, and likeness was the result of the Supreme

Court of the United States’ decision in Alston.

175

As this is a major step

towards student-athletes being compensated based on the value they can

bring to their universities, it did not fully answer what these student-athletes

may be eligible to receive. In order to discuss this point, some additional

background is needed.

The NCAA’s involvement in litigation has occurred for many years and

multiple cases paved the way for Alston.

176

In 1984, the Supreme Court of

the United States decided NCAA v. Board of Regents of the University of

Oklahoma.

177

In this case, a dispute arose regarding the NCAA and its control

of member schools’ football games being aired on television.

178

The NCAA

170. See supra notes 154-60.

171. NCAA,

GOVERNOR’S FINAL REPORT, supra note 166, at 1-3, 25.

172. See id. at 20, 24-5 (no requirement is in place for colleges and universities to assist their student-

athletes, just that these institutions may provide guidance for state law); see also Matt Brown, Enforcing

NIL Regulations, F

RONT OFFICE SPORTS (July 14, 2021), https://frontofficesports.com/newsletter/

enforcing-nil-regulations/ (“With no federal NIL bill likely to pass in the immediate future, all the NCAA

central office could do is advise member schools to come up with their own NIL policies if they don’t

have a specific state law to adhere to.”).

173. Brown, supra note 172 (reporting that, in making NIL deals, “[s]tate law may establish some

limited guardrails for this marketplace . . . kind of.”); Dellenger, New Era of College Sports, supra note

148 (Lawrence further states that “no one exactly knows who is supposed to enforce any of it—and how”

in regards to NIL deals); see generally, e.g., Student-Athlete Endorsement Rights Act., S.B 2338, 102nd

Leg., Reg. Sess. (Ill. 2021) (enacted July 1, 2021) (the Illinois NIL statute makes no mention of

enforcement against student-athletes).

174. Student-Athlete Endorsement Rights Act., S.B 2338, 102nd Leg., Reg. Sess. (Ill. 2021)

(enacted July 1, 2021) (the statute explicitly gives postsecondary institutions immunity from any claim for

damages under the Illinois Act).

175. Nat’l Collegiate Athletic Assoc. v. Alston, 141 S. Ct. 2141, 2166 (2021).

176. See generally, Nat’l Collegiate Athletic Assoc. v. Board Bd. of Regents of Univ. of Okla., 468

U.S. 85 (1984); O’Bannon v. Nat’l Collegiate Athletic Assoc., 802 F.3d 1049 (9th Cir. 2015).

177. See generally NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85 (1984).

178. Bd. of Regents, 468 U.S. at 92-94.

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entered into television contracts with certain networks and allowed them to

televise member schools’ games, however, individual institutions were not

able to surpass the number of games that the NCAA permitted to be aired.

179

Following an attempt to have a greater voice in the airing of football games

by major football universities, the NCAA threatened disciplinary action

against schools that would try to avoid the set limitations.

180

Ultimately, the Supreme Court ruled for the universities opposing the

NCAA’s restrictions as a “restraint of trade” in violation of the Sherman

Act.

181

The Court made mention of the respect they placed on the NCAA

preserving a tradition of amateurism, however, the restriction on televised

games could not survive.

182

This violation was the key in the slow process to

establish what NCAA amateurism is today.

Following the decision in Board of Regents, a challenge to student-

athletes’ prohibition against being paid for their name, image, and likeness

was heard in O’Bannon v. NCAA.

183

The litigation began when Ed

O’Bannon, a former UCLA basketball player, was made aware that he was

depicted in a college basketball video game.

184

O’Bannon sued the NCAA

based on its amateurism rules as those depicted in the game could not be paid

even though they provided value to the game.

185

He believed that the

prevention of being compensated from the usage of student-athletes’ NILs

was in violation of the Sherman Act as an illegal restraint of trade.

186

In reviewing a challenge against not compensating student-athletes, the

Ninth Circuit stated that Board of Regents did not establish that amateurism

rules were valid, only that they should not be invalidated without further

analysis.

187

Therefore, NCAA rules “must be proved, not presumed.”

188

Ultimately, the court did not decide on the validity of the prohibition of NIL

179. Id.

180. Id. at 94-95.

181. Id. at 104-05, 120, 127 (White, J., dissenting) (unlike in a free market, where “each football-

playing institution would be an independent seller of the right to telecast its football games,” the NCAA

restrained member’s freedom to sell television rights).

182. Id. at 120 (the Court stated that the “NCAA plays a critical role in the maintenance of a revered

tradition of amateurism” and that it needs “ample latitude to play that role”).

183. O’Bannon v. Nat’l Collegiate Athletic Assoc., 802 F.3d 1049, 1052 (9th Cir. 2015).

184. Id. at 1055 (O’Bannon stated that he did not consent to his likeness being used in the video

game and was never compensated for its use).

185. Id.

186. Id.

187. Id. at 1063 (the Court states that through Board of Regents, not every NCAA rule is valid if it

is related to amateurism).

188. O’Bannon, 802 F.3d at 1064.

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but provided that NCAA must permit its schools to give student-athletes

compensation up to the cost of attendance.

189

While the Supreme Court did not review the decision in O’Bannon, a

similar challenge was heard only a few years later.

190

In Alston, the Supreme

Court of the United States made its decision regarding NIL for student-

athletes.

191

While across-the-board challenges were made to compensation

restrictions, these issues were not renewed for review at the Court.

192

stated above, the Supreme Court only found that the restriction of NIL

activity was in violation of the Sherman Act and the NIL era began in NCAA

athletics.

193

While much has come from the Alston decision, it is certainly not the end

of NCAA and litigation. The opinion builds on the line of cases that have

challenged the NCAA through antitrust law and one could reasonably see

how additional cases could be brought in the future by athletes for payment.

194

As evidence of this, Justice Kavanaugh drafted a concurring opinion that

addressed the remaining compensation rules that the Court did not address in

its opinion.

195

In doing so, he essentially invites challenges in the future.

196

Justice Kavanaugh began his concurrence by stating, “I add this

concurring opinion to underscore that the NCAA’s remaining compensation

rules also raise serious questions under the antitrust laws.”

197

He stated that

“the Court does not address the legality of the NCAA’s remaining

compensation rules,” that the Court established “how any such rules should

be analyzed going forward,” and “there are serious questions whether the

NCAA’s remaining compensation rules can pass muster” under antitrust

analysis.

198

Currently, student-athletes are controlled by the NCAA, may be

paid at below-market rates, and have no ability to negotiate.

199

While the

NCAA states these compensation rules are in place because of the nature of

189. Id. at 1074 (the Ninth Circuit noted that the brand of football in college differentiates itself

from others based on “an academic tradition” and can make it more popular, even if it is a lesser product

of the professional sport).

190. See generally Nat’l Collegiate Athletic Assoc. v. Alston, 141 S. Ct. 2141, 2141 (2021).

191. Id. at 2147.

192. Id. at 2154 (the Court stated that it was not contested that the NCAA does enjoy a monopoly

and that it is “capable of depressing wages below competitive levels”).

193. Id. at 2166 (the Court concluded by saying it is not their job to settle the national debate of

amateurism and its place in college athletics, they could only review the antitrust law applied by the district

court).

194. See generally, Nat’l Collegiate Athletic Assoc. v. Bd. of Regents of Univ. of Okla., 468 U.S.

85 (1984); see generally O’Bannon, 802 F.3d 104.

195. Alston, 141 S. Ct. at 2166 (Kavanaugh, J., concurring).

196. Id.

197. Id. at 2166-67.

198. Id. at 2167 (Justice Kavanaugh’s concurrence makes clear that the NCAA is not exempt from

antitrust laws simply because of the decades of amateurism).

199. Id. (the NCAA asserted that, while these points are accurate, “its compensation rules are

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

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college sports, Justice Kavanaugh found this justification unpersuasive.

200

stated that this “business model would be flatly illegal in almost any other

industry in America.”

201

Overall, Justice Kavanaugh did not believe the

tradition that is college athletics is unable to justify the student-athletes’

denial of a share of the billion-dollar industry they helped create.

202

There is

no reason why college sports should be treated any differently under antitrust

law.

203

After this opinion, it is evident that the NCAA is not in a particularly

favorable spot if its goal is to retain the prohibition against player

compensation that it currently employs.

204

In the Court’s ruling, it “cut

against a century-old ‘no-pay for play’ college sports regime, but it did so

with a scalpel rather than a meat cleaver.”

205

Not only have their restrictions

been taken away in court, albeit slowly, but Justice Kavanaugh’s concurrence

also provides that further litigation does have a chance to be successful.

206

Therefore, to stay out of courtrooms and oppose the organization’s former

players, an overhaul of collegiate sports is needed from the NCAA. Justice

Kavanaugh seemingly supports avoiding litigation, stating that legislation or

collective bargaining could be useful.

207

Of course, this is assuming that the

NCAA would like to avoid these seemingly inevitable challenges.

The Supreme Court’s decision in Alston was released on June 21, 2021.

208

The subsequent interim NIL policy to comply with the Supreme Court’s order

was released on June 30, 2021, and went into effect days later.

209

This quick

turnaround resulted in many states “rushing to enact NIL legislation” in order

to allow student-athletes to benefit from the new policy.

210

Additionally,

200. Alston, 141 S. Ct. at 2167.

201. Id. at 2167-68 (Justice Kavanaugh states that one cannot price-fix their labor simply because

the NCAA incorporates price-fixing into the definition of their product).

202. Id. at 2168 (Kavanaugh, J., concurring) (Justice Kavanaugh mentions that, while the student-

athletes help generate the revenue, the money flows to everyone except the athletes such as college

presidents, athletic directors, coaches, and more).

203. Id. (if a violation of the Sherman Act is later found, substantial issues exist based on how

compensation would be distributed between revenue and non-revenue sports).

204. Id. at 2157-58, 2165-66 (majority opinion); Alston, 141 S. Ct. at 2166 (Kavanaugh, J.,

concurring).

205. Gregory Marino, NCAA v. Alston: The Beginning of the End or the End of the Beginning?,

OLEY & LARDNER LLP (August 4, 2021), https://www.foley.com/en/insights/publications/2021/08/

ncaa-v-alston (the NCAA’s desire to preserve the century-old concept of amateurism may be an

“unwinnable war”).

206. Alston, 141 S. Ct. at 2166 (Kavanaugh, J., concurring).

207. Id. at 2168 (still, difficult questions remain about compliance with Title IX and if only some

sports would receive compensation).

208. See generally id. at 2141.

209. See supra note 58 and accompanying text.

210. Kyle Gutierrez & Ari Meltzer, The Dawn of the NIL Era: The NCAA’s Interim Policy and What

it Means for Brands, W

ILEY REIN LLP (June 29, 2021), https://www.wiley.law/alert-The-Dawn-of-the-

NIL-Era-The-NCAAs-Interim-Policy-and-What-it-Means-for-Brands.

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2023] THE END OF AMATERURISM 419

while states were forced to act quickly in adopting their own policy,

corporations were quick to begin to contact the newly eligible student-

athletes for deals, even if those deals could potentially have future adverse

effects.

211

This sequence, with so many changes by the day, is surely not how

an organization should intend to operate. If possible, organizations should

plan to avoid a situation like this. Based on Justice Kavanaugh’s concurrence,

along with the repeated challenges to NCAA amateurism in courts throughout

the years, the NCAA needs to be taking steps to plan for the implementation

of direct payment as soon as possible.

The NCAA can already see the change that has begun. Their current NIL

policy has flooded the news networks and brands have regularly begun to

feature college sports stars. At this time, they are only limiting the players’

ability to earn compensation with many restrictions still in place. Surely, the

NCAA must be considering the shift to paying players directly and the new

system will certainly take time to implement. The ability to pay players has

not existed in the history of NCAA sport and the change cannot happen

overnight. Unless the NCAA is prepared to enter another messy transition,

the implementation of direct player compensation should be planned for and

created with the student-athletes, not following a Court decision.

D. Name, Image, and Likeness Avoidance

Following the above analysis regarding the reasons why the NCAA must

begin considerations for allowing for direct compensation to student-athletes,

one issue remains: does the current NIL framework even make sense? This

is not to say that student-athletes do not deserve to be paid, the question asks:

why is the current regulatory system valuable? Certain factual situations have

presented themselves in the early days of the NIL era that seem only to add

confusion about the purpose of a system that may be unneeded. These

situations are discussed below.

The incorporation of NIL compensation through the NCAA interim

policy does not impact the prohibition against being paid to play a sport.

212

NCAA bylaws still require amateur status to compete in intercollegiate

competition, which means that an individual shall never use their skill to be

paid in the sport they wish to participate in.

213

While the NCAA feels this is

necessary to preserve the tradition of their sports, and that it needs latitude to

211. Id. (“Unlike NIL relationships with professional athletes, which are largely unregulated,

relationships with student athletes will be subject to myriad rules and regulations . . .”).

212. N

AT’L COLLEGIATE ATHLETIC ASSOC., 2022-23 NCAA DIVISION I MANUAL, art. 12.1.2

(2023).

213. Id. (if student-athletes violate this, an individual is no longer eligible for intercollegiate

competition).

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420 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

accomplish this, the allowance of certain NIL deals seems to undermine this

century-old amateur requirement.

214

In the middle of the summer of 2021 and only a couple of weeks

following the Alston decision, a Florida business owner attempted to

capitalize on the upcoming NIL deals.

215

Dan Lambert, owner of American

Top Team, a mixed martial arts gym chain, offered a $500 per month contract

to the ninety scholarship members of the University of Miami football

team.

216

As consideration for this agreement, the players who accepted this

offer would need to advertise the gyms on their social media pages.

217

Similarly, in another NIL story from BYU football, all 123 members of the

University’s football team will receive payments through a NIL deal that

includes full tuition for walk-on players.

218

Built Brands, a company that

produces various protein and energy products, entered into this multi-year

agreement with BYU soon after NIL was introduced.

219

Since Lambert’s and Built Brands’ actions do not violate any NCAA,

state, or respective University policy, nothing is preventing them from

entering these deals.

220

And certainly, it would be hard to find an argument

against providing walk-on athletes a deal with the value of their tuition, they

truly were not getting anything for their services before this NIL deal. The

question, therefore, is how is this significantly different from direct payments

to the players? Obviously, it is not from the university, and arguments as to

why a university should not be paying its players are simple to make.

However, when a blanket payment given to each member of the football team

is permissible, is this actually for an individual’s name, image, and likeness?

In challenging the current reality of payments to players, it is easy to

reason that the money is not coming directly from the college, meaning they

do not have to be involved in the deals. It is no secret that most NCAA

programs operate at a loss.

221

Most college athletic departments can attribute

214. Nat’l Collegiate Athletic Assoc. v. Alston, 141 S. Ct. 2141, 2157 (2021) (Bd. of Regents gave

the NCAA more latitude to preserve the importance of higher education with student-athletes; however,

not all restraints on compensation will survive after Alston).

215. Associated Press, Gym Owner Offers NIL Deal to all 90 Miami Football Players,

ATLANTA

JOURNAL-CONSTITUTION (July 7, 2021), https://www.ajc.com/sports/georgia-tech/gym-owner-offers-

nil-deal-to-all-90-miami-football-players/3PFEHBHLRZDXTKY3AXN6O3MQGY/.

216. Id.

217. Id. (Lamber stated that he wanted Miami to become “NIL U”).

218. Brett Pyne, BYU Football Touts Groundbreaking NIL Agreements with Built Brands,

RIGHAM YOUNG UNIV. (Aug. 12, 2021), https://byucougars.com/story/football/1297331/byu-football-

touts-groundbreaking-nil-agreements-built-brands (the deal involved BYU Athletics as a whole as well as

individual deals for members of the football team).

219. Id. (Built Brands has an ongoing relationship with the University and provides additional

funding to the football program, besides through NIL deals).

220. See id.

221. Jo Craven McGinty, March Madness is a Moneymaker. Most Schools Still Operate in Red,

ALL ST. J. (March 12, 2021, 5:30 AM), https://www.wsj.com/articles/march-madness-is-a-money

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a significant portion of their annual revenue to alumni contributions.

222

And,

when the NIL deals are struck with an entity, many arise from the connections

from those entities to a certain university.

223

Therefore, a system of offering

payments, in connection with individuals and organizations providing

funding, does not seem too different from some current NIL deals.

Regardless of who makes the payment to the student-athlete, the money may

be from the same source. Further, it is not useful to view college athletic

finances as a whole; the revenue of programs varies greatly.

224

While not all

NCAA institutions can pay their student-athletes, the top programs in this

country will surely be able to allocate resources to provide some payment to

student-athletes. Additionally, revenue figures are based on not paying their

student-athletes and current budgets and fundraising efforts do not reflect

what could change.

225

Therefore, while financial restraints may exist in some

NCAA programs, these issues are far from universal.

226

Within the same set of facts provided by BYU and Miami, another issue

is apparent. Under the interim policy, NIL compensation cannot be

contingent upon the selection of a specific school.

227

However, if a deal exists

for all of a specific university’s players, is a deal not contingent on the

selection of that program? While the specifics of the blanket deals are not

disclosed at length, it is likely that the deal is not being offered to a high

school student before enrollment at a university.

228

All that is in place is a

NIL deal if you are a member of the team. But, as Miami is offering NIL

deals to scholarship players, it seems that this could move further along until

NIL deals are essentially being given contingent upon the selection of a

certain college. For example, is it unreasonable to suspect that a booster

would be willing to offer a NIL deal to any high-rated recruit that selects the

maker-most-schools-still-operate-in-red-11615545002 (reporting that only 63 of 351 Division I Men’s

Basketball programs and 73 of 252 Division I Football programs operate with a net income).

222. Kristi Dosh, How Much do Big Ten Programs Rely on Alumni Contributions?, B

US. COLL.

SPORTS (Apr. 20, 2011), https://businessofcollegesports.com/football/how-much-do-big-ten-teams-rely-

on-alumni-contributions/ (reporting Big Ten football programs range from 9-30% of revenue contributed

by alumni).

223. See, e.g. David Kenyon, The Biggest and Most Notable NIL Deals in College Football so Far,

LEACHER REPORT (July 26, 2021), https://bleacherreport.com/articles/2946352-the-biggest-and-most-

notable-nil-deals-in-college-football-so-far (deals with LSU, Miami, Auburn, and Alabama players all

involve in-state corporations).

224. Finances of Intercollegiate Athletics, supra note 72 (reporting that the largest five conferences

had a median revenue of nearly $122 million in 2019, whereas the remaining division I programs earned

just under $40 million).

225. Id. (for example, as of 2019, more money was spent on coaches’ compensation than on student-

athlete financial aid).

226. Id.

227. Name, Image and Likeness Policy Question and Answer, supra note 99 (explaining that

institutions cannot promise NIL opportunities based upon future enrollment).

228. See id. (offering the NIL opportunity based upon enrollment into BYU or Miami would be a

violation).

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422 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

booster’s favorite college team? While the booster is not dealing with

specific athletes, this situation would seemingly work right around current

NCAA regulations.

Last, the NCAA requires a “quid pro quo” in making NIL deals.

229

This

brings about an interesting situation: will any consideration from the athlete

be sufficient? For Miami, what is the value of the 90th man’s Instagram post?

As for BYU, how much value can be placed on each member of the 123

members of the football team?

230

The deals have generated some buzz around

the sport, but was the offer truly based on the individual player’s NIL value,

or was a booster rewarding players for selecting their favorite college football

team? Of course, this value is up to the individual or company to decide. If

they feel that they receive value from any individual, the NCAA will allow

the partnership. Still, by requiring a quid pro quo without more, is the NCAA

going to allow substantial money to be given to an athlete so long as the

student-athlete provides anything of value? This requirement, with little

needed from an athlete, seems to allow for direct payment from a third party

with only a small formality.

Overall, this comment is not criticizing either of these deals. By

providing blanket deals to members of a specific team, the contributor can

reward all of the hard work of the players equally. The issue is that, with NIL

deals like this, the NCAA’s current policy does not act to preserve a tradition

of amateurism, which acts as their reasoning for the current policy.

231

The

two deals seem to serve as examples of how boosters work around the

prohibition against direct payments and college athletics are in the very early

stages of NIL deals. Without updates to the policy, it seems that the NCAA

is just denying players compensation and is not acting to prefer amateurism.

III.

HOW SHOULD COLLEGE SPORTS PROCEED?

Student-athletes competing in NCAA events have the potential to earn

their schools a substantial amount of profit.

232

While the number of

individual athletes who contribute to this may be in the minority, payment to

these players is still deserved.

233

Therefore, allowing direct compensation to

student-athletes is warranted.

229. Id. (the NCAA states that NIL deals should include what the student-athlete should deliver and

that compensation needs to be for work actually performed).

230. Pyne, supra note 218.

231. Nat’l Collegiate Athletic Assoc. v. Alston, 141 S. Ct. 2141, 2157 (2021) (quoting NCAA. v.

Bd. of Regents, 468 U.S. 85 (1984)) (“The NCAA plays a critical role in the maintenance of a revered

tradition of amateurism in college sports.”).

232. Id. at 2168 (Kavanaugh, J., concurring) (student-athletes assist in generating billions of dollars

for colleges and universities every year).

233. See generally Dellenger, Clemson Quarterback, supra note 77.

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2023] THE END OF AMATERURISM 423

Following more than a century of requiring amateurism to participate in

collegiate sports, the present state of the major collegiate teams shows how

far from amateurs the student-athletes truly are.

234

Major college teams

generate millions of dollars in revenue per year with no direct compensation

flowing to the players who help generate fan involvement.

235

Further, while

these athletes are without pay, their coaches are certainly not limited in their

pay, even though that pay is from an academic institution.

236

Therefore, a

system with reasonable payments to players is deserved and the current NIL

system only acts to create further issues.

Substantial planning and consideration are needed by both the NCAA and

member institutions. A uniform system to provide direct player payment will

be fundamental in sustaining the current competitive athletic system that is

seen at NCAA institutions. To complete this task, the NCAA has many

professional sports leagues that it can look to for guidance.

237

Each of these

leagues can be considered to develop a system of player payment to

compensate the star student-athletes who will return the investment to their

schools. This will not eliminate the need for reporting to the NCAA to ensure

compliance with a new system, but the need for under-the-table payments to

entice a prospective athlete to attend a specific institution will be limited.

Whereas many of the improper payments come in an attempt to land recruits,

permissible offers can now be used, and the need for improper payments is

much less.

238

Student-athletes will be able to receive compensation for

participation in collegiate athletics, to a certain extent, as well as still being

able to enter NIL deals.

Before deciding on any system, it is relevant to note that NCAA

institutions can never operate as a professional team.

239

The universities and

colleges that may consider paying their players still operate an institution of

higher education before their sports teams, even if it does not always appear

that way. These institutions should not ever be offering compensation that

234. Alston, 141 S. Ct. at 2152.

235. Finances of Intercollegiate Athletics, supra note 72.

236. Samuel Stebbins, College Coaches Dominate List of Highest-Paid Public Employees with

Seven-Digit Salaries, USA

TODAY (Sept. 23, 2020), https://www.usatoday.com/story/money/2020/09/23/

these-are-the-highest-paid-public-employees-in-every-state/114091534/ (public college coaches are the

highest-paid state employee in nearly 2/3 of the states); Jacob Camenker, Brian Kelly Contract Details:

LSU Makes Former Notre Dame Coach One of College Football’s Highest Paid, S

PORTING NEWS (Dec.

1, 2021), https://www.sportingnews.com/us/ncaa-football/news/brian-kelly-contract-details-lsu-notre-

dame/22ip4ln3y64919gqrlkop2cc7 (Brian Kelly, the current LSU head football coach, will make nearly

$100 million over 10 years).

237. Wood v. Nat’l Basketball Ass’n, 809 F.2d 954, 961-62 (2d Cir. 1987) (discussing the purpose

of a salary cap in the NBA as well as their permissibility within the Sherman Act).

238. Hosick, supra note 58.

239. See generally Kevin Patra, NFL Sets 2021 Salary Cap at $182.5 Million, N

AT’L FOOTBALL

LEAGUE (Mar. 10, 2021), https://www.nfl.com/news/nfl-2021-salary-cap-182-5-million (the NFL’s

salary cap is over $180 million in 2021).

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competes with professional sports teams, as doing so would not be financially

responsible. However, a certain amount would be possible to provide

student-athletes with compensation for their athletic efforts.

Like many professional sports leagues, it seems reasonable to provide a

contract to athletes under a certain capped payroll.

240

Similar to the NFL,

NHL, and NBA, a cap could act to limit the amount of money that a college

could offer to their prospective athletes.

241

With a cap, a number could exist

that is both financially viable to collegiate institutions as well as valuable to

the student-athletes that participate in NCAA sports. The purpose of a salary

cap is not only to avoid overspending by the wealthiest professional teams

but also to promote a more competitive sport.

242

With the desire to keep

college athletics competitive from the NCAA, examples exist of keeping

leagues competitive, even with money given to players on teams with varying

financial resources.

243

Even with a salary cap, it is true that payments to athletes cannot exist at

all levels of collegiate athletics; the money is simply not there.

244

As stated

above, many universities do not profit from their athletic programs, but to

consider every college and university together is improper.

245

The

universities that recruit and enroll the athletes that possess the most value for

their universities do have the ability to pay their student-athletes.

246

Major

college programs can generate substantial revenue and could increase

expenses for player payment.

247

There is no doubt there are a “few revenue-

producing sports subsidiz[ing] the less-popular programs,” and that these

players currently “have to be content with scholarships that are worth far, far

less than their economic value in a truly free market.”

248

This, of course, does

not provide for an environment that encourages competition to all the NCAA

programs in the country and the wealthiest universities will only get better.

240. Ramy Elitzur, NFL and NHL Salary Caps Have Worked Out Well for Players, CONVERSATION

(Aug. 26, 2021), https://theconversation.com/nfl-and-nhl-salary-caps-have-worked-out-well-for-players-

165739.

241. Id. (caps are used in order to “avoid runaway payroll spending by wealthier teams” and keep

the leagues more competitive).

242. Id. (caps allow for large and small market teams to still be relatively competitive, even though

one may possess substantially greater resources).

243. NCAA,

GOVERNOR’S FINAL REPORT, supra note 166, at 8 (while investigating NIL in 2019,

the NCAA stated that it wanted to ensure “fair and balanced competition”).

244. Finances of Intercollegiate Athletics, supra note 72 (Division I programs outside of the largest

five conferences saw expenses outpace their revenues by nearly $23 million).

245. Id.

246. Id.

247. Id.

248. David French, An Open Letter to Conservatives about the NCAA, N

AT’L REV. (Sept. 29, 2017),

https://www.nationalreview.com/2017/09/ncaa-college-sports-reform-student-athletes-free-market-

incentives/ (so long a university student is not an athlete, the university is free to pay that individual market

rate for their work).

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2023] THE END OF AMATERURISM 425

Additionally, this may not leave the option for universities to compensate all

teams equally. However, as discussed above, it may only be a matter of time

until legal challenges are made to the NCAA’s prohibition on direct player

payment.

249

Waiting until the NCAA is forced to allow for payments, like

with the implementation of NIL, is not the best option when such a change

may be looming. As much as this has the potential to hurt some individual

sports teams, looking for the best option now can minimize the danger of a

sudden change. Leaving the current system in place, even if it is the only way

to preserve as many sports teams as possible, is likely not the best option for

the future of the NCAA.

In creating a system where student-athletes can be paid, many options

have been proposed. Shawne Alston, the lead plaintiff in the Alston case,

proposed a system where conferences offer “compensation packages to

recruits,” leaving the decision to the current athletic conferences in

existence.

250

Other proposals state that the NCAA should completely allow

a free market for their student-athletes, meaning that a school would be free

to pay student-athletes at their market rate.

251

Before Alston, many

individuals believed that NIL would provide sufficient compensation for

student-athletes, and nothing more would be required.

252

However, the

implementation of a salary cap may be a much better alternative for the

addition of NCAA player payments. While a total, mostly free market may

be useful in many professional sports, the idea fails to consider the unique

nature that is involved with operating an academic institution as well as

athletic teams. A salary cap system could mirror professional sports, which

have been successful in using a cap, but they in no way need to match the

amount that professional sports teams offer. A fair amount can be offered to

prospective athletes, and college commitments can be made based on this

value to provide for a system with fewer issues that may be present. Salary

caps have been shown to have worked in professional sports, have survived

legal challenges, and have brought competitive leagues for fan enjoyment.

253

The implementation of direct payments to players, even if within a salary

cap, would bring athletes’ pay closer to the value they provide a college.

249. Nat’l Collegiate Athletic Assoc. v. Alston, 141 S. Ct. 2141, 2166 (2021) (Kavanaugh, J.,

concurring) (“the NCAA has long shielded its compensation rules from the ordinary antitrust scrutiny”).

250. John Doty, Rock the Cash-bah! How Alston Presents a New Challenge to the Amateurism

Justification and Ways the NCAA Can Modernize to Remain Afloat, 29

U. MIAMI BUS. L. REV. 70, 84

(2021).

251. Id. at 95 (this type of proposal aims to treat the student-athletes just like of the other students

are currently treated).

252. Meyer & Zimbalist, supra note 30, at 259 (“In our view, as long as playing college sport

remains an extracurricular activity rather than a standalone commercial activity, amateurism should play

a role.”).

253. Wood v. Nat’l Basketball Ass’n, 809 F.2d 954, 961 (2d Cir. 1987) (even though the use of a

salary cap acts to limit some players’ values, their usage is permissible).

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While high-value student-athletes may still be underpaid when compared to

what outside sources may be willing to pay, the majority of athletes could get

a reasonable value for their services.

254

Additionally, athletes who may not

command as great of a market value are still able to benefit from scholarships

that NCAA institutions are able to offer. By providing direct payment, it

would not be nearly as common to accept under-the-table money to commit

to a college, and a student-athlete is permitted to receive this money within

NCAA rules. The prospective athlete can receive offers to attend a certain

institution, subject to the maximum amount permitted by the NCAA. Of

course, based on the history of college sports corruption, it would be unwise

to believe this would solve every problem. But, by allowing a certain level

of player compensation, it is rational to think the occurrence of unreported

payments could be limited.

This system does not need to be the end of name, image, and likeness

deals. Following Alston, the prohibition of these deals is not even possible.

255

For many student-athletes, the value of free education along with the ability

to enter NIL deals may be sufficient. However, the current system requires a

total overhaul. The NCAA’s permission for these NIL deals is not the end of

their responsibility to fairly compensate players, nor does it act to further the

NCAA’s objectives, as shown above. Therefore, a universal policy for all

member institutions is necessary. The current patchwork system with

substantial deferrals to states and member institutions is not appropriate for

the national landscape that is present in college athletics.

The exact specifications of a NIL system can vary. If the NCAA desires

that these deals not be given out before enrollment at a university, that is fair.

However, these standards should not be changing based on which state an

athlete is located in. Additionally, the lack of reporting, as well as individuals

who are not required to report, is not appropriate in the current NIL scheme.

If the NCAA still desires to have control over how athletes earn

compensation, universal standards need to be imposed. If the NCAA is

correct in stating it is working with the federal government to implement a

nationwide system, they will likely see a much more organized and useful

NIL process.

256

But, the current state of the system has the potential for

serious issues.

With all of the money that is being added to college sports, it is reasonable

to believe that adverse effects will stream to NCAA institutions. As stated,

college athletic programs are not as profitable as people believe.

257

Even the

254. Id. at 959 (athletes may receive less under a salary cap they would have through individual

negotiations).

255. Nat’l Collegiate Athletic Assoc. v. Alston, 141 S. Ct. 2141, 2166 (2021).

256. See supra note 58.

257. See supra note 72.

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2023] THE END OF AMATERURISM 427

temporary budgetary shortfalls following the COVID-19 pandemic caused

several college athletic teams to fold from large NCAA programs.

258

If more

money is allocated to the major, profit-earning teams, those operating teams

at a net loss will need to find third party funding, require payment from

athletes to participate, or just terminate operations. Although this seems

harsh for many student-athletes in less popular sports, its occurrence seems

inevitable. As stated in Alston, Justice Kavanaugh seemed to encourage a

challenge against the no-pay-for-play model by student-athletes.

259

Just

because the profit earned from major teams at a university currently funds the

lesser-known teams, the system may not persuade the Court to continue to

allow compensation restrictions.

260

Therefore, if the NCAA wants to avoid

this litigation and the sudden implementation of a payment system, like what

was done with NIL, this issue needs to be addressed.

261

By confronting the

budgetary issues now, the NCAA and member institutions will be able to

construct a system that can limit unfortunate results.

ONCLUSION

Implementation of direct payments to athletes as well as a uniform system

will provide better college athletics. No longer will fans, student-athletes,

and universities need to be concerned about sudden changes coming down

from the NCAA. The amateur model that has existed for over a century no

longer has a place in major college athletics.

The integration of the current name, image, and likeness scheme can only

cause issues moving forward. Not only can scandal continue, if not be

increased through permissible booster contact with student-athletes, but

litigations beyond this small step are also likely. Additionally, prospective

athletes must now consider individual state and university policies in making

their commitments, which is on top of the already difficult decisions that high

school students must make. And, after all of the added difficulties, it is

arguable that the NIL policy is not even effective in upholding the NCAA’s

state values.

258. Tracker: College Sports Programs Curt During COVID-19 Pandemic, BUS. COLL. SPORTS

(June 22, 2021), https://businessofcollegesports.com/tracker-college-sports-programs-cut-during-covid-

19-pandemic/ (in total, 112 sports teams had been cut at the Division I level from 35 institutions).

259. Alston, 141 S. Ct. at 2166-67 (Kavanaugh, J., concurring) (Justice Kavanaugh stated that he

added the concurrence “to underscore that the NCAA’s remaining compensation rules also raise serious

questions under the antitrust laws.”).

260. Id. at 2169 (“Nowhere else in America can businesses get away with agreeing not to pay their

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

market rate.”).

261. Id. at 2168 (Justice Kavanaugh mentions that issues can be solved, without litigation, in a

similar way to how “professional football and basketball players have negotiated for a share of league

revenues.”).

Albers: The End of Amateurism: The NCAA and the Sudden Implementation of

Published by DigitalCommons@ONU, 2023

428 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 49

A remodel of the NCAA’s requirements for players will give fair

compensation in return for the value that they provide. College athletics have

become a staple in the fandom of many Americans, with little in return for

the individuals who provide this entertainment. With consideration for the

educational mission of academic institutions, a system can be created to

adequately compensate the hard work of many student-athletes.

Ohio Northern University Law Review, Vol. 49 [2023], Iss. 2, Art. 3

https://digitalcommons.onu.edu/onu_law_review/vol49/iss2/3