FEDERAL LEGISLATION NEEDED TO SETTLE STUDENT-ATHLETE NAME, IMAGE, LIKENESS ISSUE.

• Author: Akers, Dylan

1. INTRODUCTION

   On September 30, 2019, California Governor Gavin Newsom signed the Fair Pay to Play Act ("the Act") into law, allowing California college athletes to profit off their own "names, images, and likenesses" ("NIL") beginning in 2023. (1) Following the bill's enactment, many states introduced similar legislation, fearing that prospective athletes may flock to California schools where they can be fairly compensated. (2) These proposed pieces of legislation fundamentally challenge the century-old system of collegiate athletics established by the National Collegiate Athletic Association ("NCAA"), which holds a monopoly and monopsony over the various markets that comprise the college athletics industry. (3) The NCAA currently justifies its stronghold by maintaining that student-athletes' amateur status prevents them from participating in the free market. (4)

   This Note will first address the issues underlying the movement for furthering collegiate-athlete rights, and the fallacy of the NCAA's notion of "amateurism" as its reason for denying those rights. (5) Next, this Note will discuss how the NCAA is in violation of the Sherman Act and antitrust law. (6) Additionally, it will explain how state legislation, though necessary to help build consensus and draw general attention to the issue, will not withstand a Commerce Clause challenge brought by the NCAA. (7) This Note will then explore the repercussions of multiple state bills, such as the Act, on college athletics. (8) Finally, this Note will argue that a federal NIL bill is the best avenue for providing college athletes the right to profit off their NIL and participate in the free market. (9)

2. FACTS

   In 2018, the Department of Education reported that college sports programs collected a total annual revenue of fourteen billion dollars--a number surpassing any other sports league except for the National Football League ("NFL"). (10) The Division I Men's Basketball Tournament alone, known colloquially as March Madness, attracts over 100 million viewers and generates one billion dollars in media revenue--more than the NFL's total revenue collected during the entirety of the league's post-season playoffs. (11) The college system mirrors professional sports leagues operation and revenue practices, but is distinct in that it is overseen by the NCAA, an organization created in 1906 to preserve the notion of "amateurism[.]" (12) Under the amateur system, student-athletes are barred from receiving compensation, and instead are offered monetary benefits through scholarships and grants. (13) The NCAA has purported that restricting fair compensation fosters a character essential to the commercial potential of the industry. (14) The NCAA's argument has spurned controversy and has been the subject of legal dispute over the last forty years. (15)

   It is undeniable that every key player in the college athletics ecosystem reaps significant profit from their involvement in the industry--except the actual players. (16) Grandiose and sport-specific facilities have become the industry standard, resulting in skyrocketing athletic-coaching and administration salaries. (17) Annual coaching salaries, and even some assistant coaching positions, regularly reach multimillion-dollar figures like their professional counterparts. (18) Pointedly, in thirty-nine out of fifty states, college football or men's basketball coaches are the highest paid public employees in the state. (19) Between 2004 and 2014--when adjusted for inflation--the cumulative per-year facilities spending of a forty-eight school sample-size increased by 89% from $408 million to $772 million. (20) These numbers demonstrate the value states see in the business of collegiate sports, which is evidently beyond that of a mere venue for amateur athletics. (21)

   Athletics apparel companies, such as Nike, Adidas, and Under Armor, account for 97% of all program sponsorships and regularly invest hundreds of millions of dollars in universities where student athletes act as uncompensated representatives of their brands. (22) The support of these companies went beyond fiscal investment; in fact, these same apparel companies were recently exposed for engaging in federal crimes, including bribery and wire fraud, and schemes directing high-school athletes to sign with the company's school of choice. (23) The relationship between Louisville Men's Basketball Head Coach, Rick Pitino, and Adidas is the paradigm example of the correlation between exorbitant coaching salaries and apparel company investment. (24) Pitino received 98% of the Adidas sponsorship deal with the University of Louisville and was later accused of improperly funneling money to Brian Bowen, an incoming freshman on the Louisville team. (25) The scheme implicated Pitino and high-ranking executives within Adidas and the sports agency ASM Sports, and was part of a continued pattern of activity inducing recruits to join various universities through illegal payments to players and their families. (26)

   Although student-athletes are compensated with full scholarships, most do not reap the value of a free college education due to the conditions of their athletic involvement on campus. (27) The most profitable programs--overwhelmingly football and men's basketball programs within the Power Five conferences--regularly graduate student athletes at rates much lower than their non-athletic peers. (28) Beginning their freshman year, university athletic departments often guide players into either "easy" majors or "paper" courses to increase players' graduation rates. (29) Moreover, the ordinary demands of participation in a Division 1 athletic program leave little room for the requisite amount of study and class time necessary for a traditionally high-profiting major. (30) Chris Murphy, U.S. senator from Connecticut, argued in his multi-part report "Madness, Inc." that "the refusal to compensate college athletes is a modern civil rights issue, as black teenagers are kept poor in order to enrich white adults." (31)

   Additionally, athletic departments such as the University of North Carolina, Chapel Hill ("UNC") employ fraudulent tactics to keep their students eligible for competition. (32) In the late 1980's, UNC granted two independent study courses to two UNC basketball players with mediocre academic records--courses that were normally only granted to students with outstanding academic records. (33) The courses, commonly referred to as "paper classes", required only a research paper at the end of the semester, on which the student athletes were guaranteed at least a "B" grade regardless of quality or paper length. (34) In the later years of the scheme, these "paper classes" expanded to include "lecture" courses, which never actually met despite appearing in the course catalog as meeting on a weekly basis. (35) The scheme quickly grew to hundreds of students in only ten years. (36) The scheme proved to be successful as it prevented 170 athletes from falling below the GPA-eligibility point and allowed eighty students to receive diplomas who otherwise would not have graduated. (37) After the scheme was uncovered, the university received a mere NCAA probation, while student-athletes bore the brunt of the punishment through NCAA competition bans. (38) The highly-profitable UNC men's basketball program and head coach Roy Williams, on the other hand, were not punished--despite being one of the school programs with the highest number of athletes participating in the scheme. (39)

   The NCAA has yet to take a hardline stance on what role the furtherance of education plays in their governance structure and overall mission. (40) In O'Bannon v. National Collegiate Athletic Association, the organization claimed that education was the core reason for preventing student athletes from profiting off their "Name, Image, and Likeness rights." (41) However, in response to a lawsuit over the UNC academics scandal, the NCAA asserted it has no legal duty to ensure that a quality education is effectively delivered to student athletes. (42) This admission speaks volumes to the association's disregard for student-athlete's best interests, while allowing others to profit off their participation in competitions. (43)

   Despite the many issues that have beguiled the current collegiate system, the federal government has taken a markedly hands-off approach in its regulation of such a massive interstate commercial industry, and has allowed wide discretion over the administration of collegiate sports. (44) While Title IX regulates some aspects of collegiate athletics, there is little federal guidance on labor standards for student-athletes. (45) Instead, the NCAA operates as a de facto cartel, and its rulebook includes several anticompetitive regulations in violation of the Sherman Act. (46) Despite a growing public consensus that the current model takes advantage of student-athletes, the NCAA has refused to consider alternative approaches that would create a more equitable framework for the collegiate-athletic industry. (47)

3. HISTORY

   The NCAA was founded in 1906, but its role and scope of operations in managing collegiate sports has evolved over the course of its history. (48) The NCAA functionally operates as a trade association, comprised of athletic and coaching officials and conference administrators, whose main interests are to enhance their own profits in relation to collegiate athletics. (49) In 1996, the NCAA abandoned it's previous democratic system of govemance for a committee model with sixteen members, eight of which are members from Division 1 football programs. (50) The overrepresentation of Division 1 football programs shaped the overarching policy, strategy, and decisionmaking of the association over the next twenty years. (51) A crucial component of this structure led to the creation of the term "student-athlete"--aimed at both insulating the programs from liability, and preventing...