Name, Image, and Likeness and the Future of Collegiate Compensation
By : J.D. Hartung
NCAA v. Alston
On June 21, 2021, the United States Supreme Court issued the long-awaited opinion for NCAA v. Alston. After months of anticipation, the Supreme Court issued a unanimous decision that affirmed the Court of Appeals and U.S. District Court’s rulings that held the NCAA rules limiting the amount of education-related benefits an athlete may receive violates the Sherman Antitrust Act.
Throughout history, the NCAA argued the procompetitive effects of amateurism in college athletics outweighed any anticompetitive effects that resulted in capping compensation to college athletes. In it’s ruling, the Supreme Court found: “In any other business or industry, the price fixing or price capping employed by the NCAA would unequivocally be deemed an antitrust violation.”
Prior to the ruling in Alston, there was a long-standing notion that the “amateurism” aspect of college athletics insulated the NCAA from Sherman Antitrust violations. The Supreme Court in Alston finally discarded the view that amateurism provides the NCAA with a blanket defense to anticompetitive actions. The Court determined that there are no special characteristics of the NCAA that exempt it from the Sherman Antitrust laws. In his concurring opinion, Justice Brett Kavanaugh wrote: “The NCAA is not above the law.”
Although the Supreme Court did not squarely address the recent developments of athlete’s rights to capitalize on their own name, image, and likeness (NIL), the Alston decision will provide college athletes with substantially more bargaining power when it deals with paying collegiate athletes. Additionally, the Court’s ruling against the NCAA will likely force the NCAA to be less restrictive in its regulations regarding athlete compensation.
As of July 1, 2021, the NCAA instituted new rules and regulations which will allow student-athletes to receive compensation for their name, image, and likeness (NIL). Historically, the NCAA has generally refused to compensate athletes for their athletic services, while the NCAA and member schools have generated massive profits from sporting events and TV deals. Under the new NIL rules, college athletes will be allowed to earn money from endorsement deals, social media advertising, making personal appearances, signing autographs, and other types of arrangements.
The NCAA enacted these new rules and regulations in response to the growing number of State Legislatures that were enacting their own NIL laws for college athletes. As of today, Alabama, Florida, Georgia, Mississippi, New Mexico, Oklahoma, Nebraska, Texas, Kentucky, Ohio, Oregon, Illinois, Colorado, South Carolina, and Arizona all have NIL laws in effect. Missouri and Connecticut will have NIL laws that will go into effect before year’s end, while Arkansas, Tennessee, Nevada, and Michigan have NIL laws that will go into effect in 2022. Each state’s NIL laws are different, but a majority of the laws contain many similar provisions.
The new NIL rules allow student athletes to benefit from all of the hard work and sacrifices they have made to become a college athlete. Numerous college athletes around the country have already inked lucrative endorsement deals. Depending on your state’s NIL laws, college athletes may utilize agents or legal representatives to assist in procuring NIL deals. The NIL opportunities are just beginning. If you want to know more about NIL or would like an attorney to assist with NIL opportunities – the attorneys at Hartung Schroeder are available to help.
ABOUT J.D. HARTUNG
J.D. is a co-founder and partner at the law firm of Hartung and Schroeder. He started the firm with friend and colleague, Brad Schroeder, after working in both boutique and large, multi-state firms. He saw first-hand that a small firm brings definite advantages to clients. Experienced in general litigation, he serves a wide range of clients including those seeking legal counsel for business, family law issues and personal injury. You can read more about him or get in touch here.