A Brave New World: The NCAA's New NIL Policy and the Need for Federal Legislation

AuthorJosh Escovedo and Michelle Yegiyants
Published in Landslide, Volume 14, Number 4, 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the
American Bar Association.
Court, in a unanimous opinion authored
by Justice Gorsuch, released its decision in
NCAA v. Alston.
The Court afrmed the
lower court’s injunction of NCAA rules
that restricted education-related benets
to student-athletes.7
Current and former student-athletes
who played in men’s Division I Football
Bowl Subdivision football and men’s and
women’s Division I basketball filed an
antitrust class action against the NCAA
and 11 Division I conferences, alleging
that the NCAA implemented anticom-
petitive bylaws unreasonably limiting the
compensation and benets that student-
athletes might receive in exchange for
their athletic participation.
The district
court struck down NCAA rules limiting
education-related compensation, such as
post-eligibility undergraduate or gradu-
ate scholarships or tutoring, study-abroad
expenses, and paid post-eligibility intern-
ships.9 Nothing in the district court order,
however, precluded the NCAA from
continuing to x compensation and bene-
ts unrelated to education.10 The court of
appeals afrmed in full, and the NCAA
appealed, asking for deference to its concept
of amateurism and seeking immunity from
the normal application of antitrust laws.11
In his majority opinion, Justice Gorsuch
began with a historical overview of colle-
giate athletics dating back to the 19th
century and the eventual founding of the
NCAA, a now multibillion-dollar enter-
Noting that the NCAA enjoys
monopsony power in the market for
he landscape has changed. After
decades of the NCAA reaping the
benefit of college players, their
labor, and their name, image, and likeness
(collectively, NIL), the NCAA has changed
its policy and allowed players to market
their NIL without sacricing their amateur
status. However, the NCAA only made this
change after a scathing U.S. Supreme Court
ruling in a related matter, where the Court
afrmed a decision from a U.S. district
court enjoining the NCAA from limiting
universities from providing student-athletes
with certain education-related benets.1 In
Justice Kavanaugh’s concurring opinion, he
warned the NCAA that it should strongly
reconsider its NIL-related policies before
such matters are taken before the Court.2
The Court issued its decision on June 21,
2021. The NCAA responded by changing
its policy effective July 1, 2021.3
By making its decision at the last minute,
the NCAA left the universities with little
time to formulate their own NIL policies
and protocols. The only exception to this
situation was for those universities in the
11 states that had already planned to legal-
ize collegiate athletes appropriating their
NIL for economic gain on July 1, 2021.
Of course, many universities have now
caught up and created their own policies,
but the lack of legislation in each of the 50
states has created a lack of uniformity even
between universities in the same states.
Even worse, the lack of federal legisla-
tion has created an absence of uniformity
between universities in different states.
Federal legislation may be necessary to
create a uniform playing eld.
What that federal legislation should
look like, however, is up for debate.
Congress placing limitations on student-
athletes and their ability to earn from their
NIL may have a disproportionate impact
on people of color, who make up over
60% of the NCAA football and basketball
rosters,4 which tend to be the most popu-
lar and highest-earning collegiate sports in
the nation.5 While federal legislation may
be necessary, as discussed below, it is the
authors’ opinion that any such legislation
should be relatively limited, and should
protect athletes’ rights to market their
NIL from future NCAA policy changes
and state legislation.
The Supreme Court Arms
the Decision Striking Down the
NCAA’s Anticompetitive Behavior
On June 21, 2021, the U.S. Supreme
By Josh Escovedo and Michelle Yegiyants
A Brave New World: The NCAA’s
New NIL Policy and the Need for
Federal Legislation
Josh Escovedo is a shareholder at
Weintraub Tobin in Sacramento, California,
where he specializes in intellectual
property and real property litigation. He
is also an NFLPA- and CFLPA-certif‌ied
contract advisor with Wraith Sports
Group. He can be reached at jescovedo@
weintraub.com. Michelle Yegiyants is
an associate at Weintraub Tobin in Los
Angeles, California, where she focuses her
practice on entertainment transactional
law. She can be reached at myegiyants@
“Meeting of the Minds” is a recurring feature of Landslide® magazine. It includes articles authored
by young lawyers in conjunction with experienced attorneys, who participate as mentors in the
planning and writing process. Landslide is proud to provide the opportunity for young lawyers and
law students to learn from attorneys in IP practice areas and to get published in our prominent
legal magazine. The end product is a collaboration for which both authors share attribution.

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