By Dominique Price
As the NCAA and Power 5 conferences finalize their landmark $2.77 billion settlement with current and former student-athletes in House v. NCAA, a handful of athletes are still waiting for their shot at justice and equity in a business that has a long history of collecting billions of dollars from the labor of its student-athletes while placing strict limitations on their individual earning ability.
In August 2023, Matthew and Ryan Bewley, twin basketball prospects enrolled at Chicago State University, were deemed permanently ineligible to compete in intercollegiate athletics, because they competed at an elite basketball prep school that offered compensation to its players. Overtime Elite (“OTE”), in Atlanta, GA, was established in the wake of the passage of state name, image, and likeness (“NIL”) laws and the enactment of the NCAA’s NIL Interim Policy in 2021. With the help of high-profile investors such as Jeff Bezos, OTE became a destination for top-ranked high school basketball recruits looking to capitalize on their NIL rights. The problem with this arrangement, according to the NCAA, is that Matt and Ryan’s contracts with OTE constituted impermissible “pay for play.”
The irony of this decision is that the NCAA had previously approved other former OTE players, such as Rob Dillingham, to compete in collegiate athletics. The difference in his case was that through what some might describe as contractual sleight of hand, Dillingham was paid to appear on a reality television show that just so happened to feature him playing basketball, but he was not paid directly for playing basketball. The structure and the amount of the payments to the players were allegedly the same. The players’ filming schedules, practice schedules, and playing schedules were identical. The players’ promotional and marketing responsibilities were identical. However, the NCAA determined that one group of players were permanently banned from college athletics, and the other group was free and clear to compete, based on the language in their respective contracts.
But why is this? This distinction seems arbitrary, and the harm these players face by being completely excluded from the collegiate athletic experience is boundless. As a former student-athlete, I can personally attest to the invaluable experience I gained during my time at Northwestern University both on and off the field. According to the NCAA, the distinction between these two groups of prospective student-athletes is necessary to maintain the delineation between professional and amateur sports. Letting in the Bewleys, who the NCAA has labeled as professional athletes, would destroy this delineation, when the accumulation of billions of dollars in marketing, television, and sports betting money apparently has not. This argument has been used in the face of every attempt to expand the rights of individual universities and student athletes going back to NCAA v. Board of Regents of Oklahoma, where the NCAA argued that the limits they imposed on the amount of televised college football games were necessary to distinguish its product from professional sports. The NCAA has argued for decades, with minimal if any supporting evidence, that fans of college sports prefer that the athletes are unpaid. The NCAA uses this alleged preference to assert that its business model requires limitations on student athlete compensation, much to the chagrin of many antitrust lawyers. This same argument was used for years to prevent student athletes from profiting from their own name, image, and likeness, often resulting in absurd and unjust outcomes. Jeremy Bloom’s inability to receive sponsorships for his Olympic skiing efforts while playing college football, the attempt to force Donald De La Haye (“Deestroying”) to demonetize his Youtube page, and punishing Ohio State players for selling their stuff are just a few examples that come to mind.
With pressure from state legislators, great progress has been made in granting rights to student-athletes that every other citizen in this country is granted at birth, the right to control and ability to profit from their own name, image, and likeness. However, the NCAA’s treatment of the Bewleys represents the NCAA’s frantic effort to uphold the house of cards that is amateurism as we know it. This house of cards rests on the distinction between “pay for play” which is prohibited and NIL which is now embraced. However, this distinction is not a firmly established concept in any legal sense and was only established in the wake of the NCAA’s Interim NIL Policy.
In a colloquial sense, people have come to associate NIL with the third-party endorsement of products and services. Caleb Williams appearing in a Wendy’s commercial is a perfect example. However, the biggest driver of NIL revenue is television broadcasting and streaming deals. The revenue generated by professional leagues from the sale of athletes’ name, image, likeness to media companies makes up the largest slice of the salary cap in every sport. At the collegiate level, preventing student athletes from sharing in the media revenue that conferences and schools receive has been a line in the sand for the NCAA and its member institutions. Players are permitted to sell as many t-shirts or hamburgers as they please, but athletes receiving a share of media or other revenue in the form of a salary has been considered a bridge too far from the NCAA’s perspective, that is, until the House settlement is finalized.
Based on the draft settlement agreement, filed in federal court in the Northern District of California, NCAA institutions are permitted to pay student athletes directly for the use of their NIL up to 22% of their revenue derived from media, tickets, and sponsorships. This sounds very similar to a professional salary cap, with one distinction, we all have to pretend that these payments are for the use of the student athletes’ name, image, and likeness and not for playing and that the distinction is meaningful. But what does that even mean? To borrow one of the NCAA’s past arguments, this is just de facto pay for play, similar to the sleight of hand that allowed the Bewley’s teammates to obtain amateur certification. All you have to do is throw in contract language that says “(wink, wink) this payment is for NIL and not for play” and that is sufficient to preserve amateurism. Imagine an actor being paid for these use of their name, image, and likeness, but not for acting.
At this point in this decades long saga, what exactly is pay for play and why does it even matter anymore? It is not defined anywhere in the NCAA Bylaws. “Pay for play” like amateurism is a constantly moving goal post that is left to be defined at the whim of the NCAA and its member institutions based on what they can justify at the time. There was a time when athletic scholarships were frowned upon as pay for play in violation amateurism principles which sought to reserve college athletics for an elite class of individuals who did not need assistance paying for school. Thankfully, we have made some progress, moving beyond the classist origins of amateurism, yet some ripple effects remain. The continued prohibition of “pay for play” is the last bastion of amateurism’s classist past, yet it only remains by a thread. The fact that the only thing needed to circumvent this prohibition is to slap an NIL label on what would traditionally be considered pay for play, makes the prohibition of pay for play nearly a meaningless absurdity, except for when it has dramatic effects on the lives of prospective student athletes, like the Bewleys.
One of my favorite quotes from Justice Kavanaugh’s dissent in the landmark Supreme Court decision from Alston v. NCAA was “[t]he NCAA couches its arguments for not paying student athletes in innocuous labels. But the labels cannot disguise the reality…” Here the NCAA cannot take situations that are fundamentally the same, slap different labels on them, and use those labels as justification for doling out life altering punishments to prospective student-athletes simply for trying to make a living. A violinist who plays a few gigs with a string quartet while in high school is not prevented from receiving a scholarship and playing for their university orchestra, nor should the Bewleys be stripped of the opportunity to play the sport they love at the college level.
Dominique Price is an experienced attorney and former student-athlete, who draws from his own on field experience to advise professional athletes, student-athletes, and universities on issues related to marketing, licensing, endorsements, and name, image, and likeness. Dominique worked for several years as an NFLPA certified contract advisor with one of the top sports agencies in the country. Dominique currently works as Counsel with Scharf Banks Marmor LLC, and teaches sports law at Spalding University and the University of Illinois Chicago Law School.
