By Qi Ren, Ryan Gordon, Chengting Wu, and Jialan Wu
Collegiate sports continue to stand out as a significant economic driver, generating billions in revenue each year, even amid the economic challenges posed by the COVID-19 pandemic. In the 2022-2023 season alone, the National Collegiate Athletics Association (“NCAA”) and its Football Bowl Subdivision (“FBS”) amassed over $11 billion in revenue (Today, 2024; Football Bowl Subdivision | College Athletics Database, n.d.). However, this success is not without its hurdles. Disputes often arise between the central figures of the games—student-athletes—and the NCAA, especially when athletes seek to improve the terms and conditions of their name, image, and likeness (“NIL”) deals. Let’s take a look back at the history of how collegiate athletes fought for their NIL rights against the NCAA, and why the NCAA sought to restrict these rights.
NIL Litigation in Collegiate Sports
In the simplest terms, NIL is a term that describes the way college athletes receive financial compensation for their personal brand through activities such as signings, endorsements and social media campaigns. Name, Image, and Likeness, collectively referred to as “NIL” rights, have transformed the landscape of collegiate sports, enabling athletes to earn compensation through endorsements, social media, and personal appearances. This evolution, marked by significant legal milestones such as O’Bannon v. NCAA (2015) and Alston v. NCAA (2021), has shifted the NCAA’s long-standing policy that restricted athletes from profiting off their personal brands (O’Bannon v. NCAA, 802 F.3d 1049). Since 2021, the NCAA has allowed athletes to monetize their personal brands through endorsements, social media engagement and personal appearances (Bond Schoeneck & King PLLC, 2021). As highlighted by On3.com in 2021, the legalization of NIL activities has provided athletes with new opportunities to profit off their personal brands amid ongoing legal and policy changes.
The legal battles that ensued opened the door for student-athletes to advocate for their rights, yet they also sparked a surge in legal disputes between student-athletes and the governing body. A series of legitimate actions vividly illustrate this ongoing challenge. First, Hagen Berman represented classes of college students who had won second class certification in NIL antitrust class-action lawsuit (November 4, 2023 Saturday). Originating from the case of House vs. NCAA (2021), the subject of argument extended to an even broader area, which are television broadcasts (referred to as “BNIL” in the following), video games and other media revenue sources. The case was brought to the U.S. District Judge Claudia Wilken of the U.S. District Court for the Northern District of California. In the case, Wilken certified the plaintiffs, a class of 184,000 college athletes represented by Steve Berman (attorney for the plaintiffs), and claimed that the defendants’ arguments about the student athletes having no market value for the BNIL did not defeat predominance. The court also evaluated the actual value of the student athletes’ BNIL and found the student athletes should receive at least ten percent of the revenues of the NCAA’s broadcasting deals. In Judge Wilken’s Sep. 22, 2023 order, the plaintiffs were granted class certification of the injunctive relief class, which could lead to “devastating consequences” for the NCAA and its relevant conferences. Based on the dollar amount generated from NCAA’s multiple media deals, more than $4 billion in compensation to college athletes would be required to pay (Elaine, 2024). The NCAA then appealed to undo the certification of classes by filing a petition to the Ninth Circuit along with its Power 5 conferences. However, the Ninth Circuit denied the petition providing no explanation for the decision in a one-page order. Does it mean the NCAA’s era of impeding the rights of college athletes is over?
The Ongoing Struggle in Collegiate Sports
To answer this question, it is essential to first have a comprehensive understanding of the nature of both parties involved. The student-athletes remain amateur athletes, and the NCAA continues to seek to preserve the amateurism of collegiate sports. The ongoing conflicts between them clearly indicate that the issue is challenging to resolve, even if a state legislator attempts to intervene and find a balance.
On January 18, 2024, Chase Griffin, who is the quarterback of the UCLA Bruins, rendered a written testimony to the U.S. House of Representatives Committee on Energy & Commerce, Subcommittee on Innovation, Data, and Commerce. There are two places in the testimony that were highly contagious in demonstrating the student-athletes’ dissatisfaction with the NIL regulations and their desire to fight for their NIL rights. One of his comments stated, “In every other aspect of American life, the expectation is that if you work hard, play by the rules, and create value, you deserve to share in that value. Why shouldn’t this core American principle be true for college athletes?” After all, allowing college athletes and colleges to work together to create mutually beneficial NIL relationships is what college athletes always expected. Griffin criticizes the FAIR College Sports Act for imposing regulatory obstacles on college athletes and small businesses involved in NIL deals, particularly impacting women’s sports athletes. He argues that college athletes should have the same economic rights as other students and brand endorsers in different industries. Furthermore, his testimony reads, “For most of us, NIL is not Lamborghini money, but it could mean a down payment on our first homes.” This is the best reflection of student-athletes’ incentive. Failure to address these concerns could leave college athletes, who already balance rigorous training with academic responsibilities, feeling neglected by the legal system.
A Shift Towards Professionalism
It was a long time coming, but college athletes finally got what they deserved: compensation for their name, image, and likeness. The aforementioned cases have been huge for student-athletes, but the NCAA still has influence on limiting NIL deals. In order to qualify as an amateur, student-athletes must have their NIL deals approved by the NCAA and this amateur status is required to maintain eligibility for competition. The NCAA will follow any state legislation regarding NIL, but for states without any laws, the NCAA steps in as the governing body (NIL Network, 2022). The solution for this is a federal law regulating NIL deals. This will give the NCAA a level playing field, as well as less restrictions and a simpler process for college athletes across the country. This has been tried thus far, but has gained little traction as both political parties continue to fail to find common ground.
College athletes are using this current momentum and pushing for revenue streams past NIL deals. Unionizing seems to be the next step, with Dartmouth men’s basketball leading the charge. Their intention was to put a stop to the exploitation of student-athletes, and their campaign has been very successful thus far (Hsu, 2024). Their attempt was approved by the National Labor Relations Board and as of March 2024, the team voted 13-2 to become a union. Given the success we’ve seen at Dartmouth, they may have paved the way for more teams to start unionizing. The term “student-athlete” could be a thing of the past, as the current landscape of college athletics is undergoing a facelift.
Considering less restrictive NIL deals as well as unions forming, the NCAA may have to start operating like a professional league. We may be nearing a point where college athletes begin to sign contracts and some sort of salary cap becomes introduced. It would be a tough pill for the NCAA to swallow, but it may be necessary to keep control of the money going out, as well as keeping its athletes happy. Operating like a professional league would likely put an end to this current movement of the advancement of student-athletes.
All authors are graduate students in George Washington University.
References
Albers, Alex (2023) “The End of Amateurism: The NCAA and the Sudden Implementation of Name, Image, and Likeness,” Ohio Northern University Law Review: Vol. 49: Iss. 2, Article 3. Available athttps://digitalcommons.onu.edu/onu_law_review/vol49/iss2/3
Bond Schoeneck & King PLLC. (June 30, 2021 Wednesday). NCAA v. Alston Case. NewstexBlogsJDSupra https://advance-lexis com.proxygw.wrlc.org/api/document?collection=news&id=urn:contentItem:631S-G1C1-JCMN-Y41Y-00000-00&context=1516831.
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Dodd, Dennis (2024, February 6). How a ruling that Dartmouth basketball players are school employees, can join union may change college sports. CBS Sports. https://www.cbssports.com/college-basketball/news/how-a-ruling-that-dartmouth-basketball-players-are-school-employees-can-join-union-may-change-college-sports/#:~:text=For%20the%20first%20time%2C%20NCAA,would%20consist%20of%20NCAA%20athletes.
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Griffin, Chase (2024, January 18) Written Testimony of Chase Griffin, Quarterback, UCLA Football http://docs.house.gov/meetings/IF/IF17/20240118/116756/HHRG-118-IF17-Wstate-GriffinC-20240118.pdf
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Hsu, Andrea (2024, March 5). Dartmouth men’s basketball team votes to unionize, shaking up college sports. NPR. https://www.npr.org/2024/03/05/1235877656/ncaa-dartmouth-mens-basketball-union-election-nlrb
Jeremy Duda. (August 9, 2023 Wednesday). ASU student-athletes ink over 200 NIL deals since 2021, with over 1,300 going to football players. Newstex Blogs Axios. https://advance-lexis-com.proxygw.wrlc.org/api/document?collection=news&id=urn:contentItem:68WY-1HW1-F03R-N0FT-00000-00&context=1516831.
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(November 4, 2023 Saturday). Hagens Berman: NCAA College Athletes Receive Second Class Certification Victory in Name, Image and Likeness Antitrust Class-Action Lawsuit; Attorneys for the class go 2-0 as federal judge certifies damages class, ruling monetary damages are fair game in the industry of multimillion- and multibillion-dollar media deals. Business Wire. https://advance-lexis-com.proxygw.wrlc.org/api/document?collection=news&id=urn:contentItem:69JG-STS1-JBG1-84T6-00000-00&context=1516831.
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Sports Business Journal (2024, March 12) U.S. Sen. to lead roundtable focused on NILhttps://www.sportsbusinessjournal.com/Articles/2024/03/12/nil-congressional-hearings?hl=nil+college+athletes&sc=0&publicationSource=search
S.238- College Athlete Economic Freedom Act 117th … (n.d.-b). https://www.congress.gov/bill/117th-congress/senate-bill/238?q={“search”:[“College+Athlete+Economic+Freedom+Act”]}&s=2&r=1
