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Amateurism? Or Exploitation? The Controversial and Long-fought Battle Over Student NIL Rights in the NCAA may Be Coming to an End.

Written by: Avneet Purewal

Skilled dancers on scholarship can enter competitions and win prize money without losing either their eligibility to compete in college dance clubs or their scholarships.[1] Skilled musicians can teach or perform in concerts with monetary compensation without losing their eligibility to participate in college marching bands or lose band related scholarships.[2] Skilled athletes, whether on scholarship or not, are the only class of students who cannot benefit monetarily for their skills, due to the National Collegiate Athletic Association (“NCAA”) amateur rule.[3] Students who sign on to a sport in the NCAA give up their right to their own name, image, and likeness (“NIL”).[4]

The most popular example of the NCAA using athletes’ NIL rights without compensating the athletes is the popular NCAA sports video game series by Electronic Arts (“EA”) Sports, where the jersey number and likeness of the students was utilized to create a realistic gaming experience.[5] The case that set forth the discontinuation of the series was O’Bannon v. NCAA, where the court concluded that the NCAA’s rule barring compensation for NIL rights was subject to federal antitrust laws.[6] The court awarded the plaintiffs the full cost of attending college, rather than non-education related compensation, which would defeat their amateur status.[7]

Post-O’Bannon, many states began to introduce and enact statutes that allowed students to maintain their NCAA eligibility while monetizing their NIL rights, such as the California Fair Pay to Play Act. [8] The bill bars colleges from upholding any rules that prevent a student from earning compensation as a result of their name, image, or likeness.[9]

In 2019, the Ninth Circuit decided Alston v. NCAA, which challenged the NCAA’s eligibility rules regarding compensation of student-athletes.[10] Applying “detailed rule of reason” scrutiny, the court found that some of the NCAA rules were anti-competitive because they placed unreasonable restraints of trade on education-related benefits.[11] The court found that the rules that restricted non-cash education-related benefits did nothing to foster or preserve consumer demand and that conserving amateurism could be achieved using a substantially less restrictive manner.[12] This was different from O’Bannon since  O’Bannon specifically challenged the NCAA’s right to use student-athletes’ NIL rights without compensation, whereas Alston was more general, broadly deciding the limitations of education-related benefits for students whose likeness’ were improperly used.[13]

The Supreme Court of the United States (“SCOTUS”) has granted certiorari for Alston, and the impact of the decision will either force the NCAA to change its rules or reverse the O’Bannon decision.[14] While, if the NCAA wins this case, the SCOTUS decision will overturn O’Bannon, the decision will not overrule any state or federal statutes. This means that the students will continue to not make any money in the states that have not enacted statutes allowing students to monetize their NIL rights and keep their eligibility. However, the students in states that have already enacted such statutes or will enact such statutes, such as California, will be able to do so.

A day after SCOTUS granted certiorari for the Alston case, a new federal bill was proposed regarding students’ NIL rights.[15] The “College Athlete Bill of Rights” seeks to enact NIL rights for student-athletes.[16] If this federal bill passes, it will allow all student-athletes across the country to monetize their NIL rights without losing their eligibility for the NCAA, regardless of the pending SCOTUS decision.[17]

Every single person, including college students, has the right to their own name, image, and likeness, except student-athletes. Things are changing for the better for student-athletes, but only time will tell whether this right is given back nationally via the SCOTUS decision, through a federal bill, or through individual state statutes.

[1] See cf. Amateurism, NCAA, https://www.ncaa.org/student-athletes/future/amateurism [https://perma.cc/3NT4-73F4] (not specifically stating dancers, but by omission, stating student athletes may not enter competitions for monetary prizes).

[2]  Lee Green, Impact of California’s ‘Fair Pay to Play Act’ on High School Athletes, Nat’l Fed’n of State High Sch. Ass’n. (Nov. 19, 2019), https://www.nfhs.org/articles/impact-of-california-s-fair-pay-to-play-act-on-high-school-athletes/ [https://perma.cc/BK65-ERK2].

[3]Amateurism, NCAA, https://www.ncaa.org/student-athletes/future/amateurism [https://perma.cc/3NT4-73F4].

[4] O’Bannon v. NCAA, 802 F.3d 1049, 1055 (9th Cir. 2015).

[5] Id.

[6] Id. at 1079.

[7] Id.

[8] Cal. Educ. Code § 67456 (2020).

[9] Id.

[10] Alston v. NCAA, 958 F. 3d 1239, 1243 (9th Cir. 2020).

[11] Id. at 1248.

[12] Id. at 1239.

[13] Id. at 1247.

[14] NCAA v. Alston, SCOTUS Blog, https://www.scotusblog.com/case-files/cases/national-collegiate-athletic-association-v-alston/ [https://perma.cc/P3H3-ELHU].

[15] Proposed “College Athletes Bill of Rights” Joins Growing Number of Federal Bills on Student-Athlete Rights, Nat’l L. Rev. (Dec. 20, 2020), https://www.natlawreview.com/article/proposed-college-athletes-bill-rights-joins-growing-number-federal-bills-student [https://perma.cc/A6GB-2ZFU].

[16] Id.

[17] Id.

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