LET'S MAKE A WAGER: NCAA'S PROCOMPETITIVE JUSTIFICATION WILL NOT SURVIVE THE AFTERMATH OF ALSTON AND CONGRESSIONAL LEGISLATION.

• Author: Agnatovech, Stephen R.

1. Introduction

   At a glance, the outside world might associate college athletes with fame, wealth, and the promise to become a professional athlete; in reality, these achievements are only obtainable by a select few. (1) The real winners involved in college sports are the National collegiate Athletic Association ("NCAA"), school administrators, and coaches who receive copious amounts of profits, benefitting from the athletic ability of the players. (2) Because most college athletes will not make it to professional leagues, they should be given a chance to be compensated for the time and work they put in on a daily basis in order to provide for themselves and their families. (3) A central legal issue in collegiate sports is the movement towards athlete compensation. (4)

   The original Olympians in 600 B.C. were rewarded over 500 drachmae for winning an athletic competition which they could theoretically live off of for the rest of their lives. (5) Despite some athletes being known as amateurs to their sport, Olympic athletes were rewarded for their athletic abilities and could profit off their name, image, and likeness. (6) For years, the NCAA has prohibited compensation for college athletes beyond the payment of their education based on the concept of amateurism. (7) However, in September of 2019, a spokesman for the National College Players Association ("NCPA"), reached out to the US Department of Justice outlining the various NCAA antitrust violations. (8) Due to outside pressure and states taking their own initiative to construct laws to compensate athletes, the NCAA has begun to change its policies to allow student-athletes to receive compensation from third-party endorsements, a step in the right direction for college athletics. (9)

   Compensation for a college athlete's name, image, and likeness ("NIL") should be the less restrictive alternative to defer the NCAA's procompetitive justification of limiting student-athletes compensation to keep a distinction between college and professional sports. (10) The use of strict guidelines and limitations by the NCAA against college athletes to regulate NIL rights infringes upon the antitrust anticompetitive rule of reason, and therefore, entitles student-athletes to compensation by the NCAA. (11) Part II of this note provides an overview of how the NCAA came to power and outlines the history of antitrust law in the United States concerning the allowance of NIL compensation and how Electronic Arts Sports Inc. ("EA Sports") fits into the depiction of a valid right of publicity claim. (12) Part III examines how courts have been reluctant to uphold the NCAA's amateurism model despite the adoption of NIL compensation and discusses the efforts taken by state legislatures to form their own athlete compensation rules before Congress establishes a universal rule. (13) Part IV identifies current efforts being made by the NCAA and Congress in the development of NIL compensation and how amidst the Supreme Court's decision of Alston v. NCAA ("Alston"), (14) EA Sports has announced its return of the NCAA college football videogame. (15)

2. History

   1. Timeline of the NCAA

      In the early twentieth century, public acknowledgment sparked the debate around the dangerousness of college football and called for its abolishment. (16) Subsequently, the NCAA was created out of necessity in 1905 to help combat cheating scandals, lack of rule enforcement, and serious injuries which resulted from intercollegiate sports. (17) Initially, the NCAA was solely a discussion group and rule-making body, but in 1921 it conducted its first national championship event, the National College Track and Field Championship, which extended its jurisdiction over other intercollegiate sports and their college associations. (18)

      Between 1921 and the end of World War II, exploitative practices in the recruitment of student-athletes were at an all-time high. (19) An example is James Hogan, the captain of the Yale football team who in 1904 received free tuition, his own suite, a ten-day paid vacation in Cuba, and had a significant monopoly on the sale of American Tobacco Company products at Yale. (20) To address these instances of unfair athlete compensation, the NCAA developed a standard code of conduct for student-athletes and universities known as the Sanity Code in 1948. (21) From the codes principles amateurism was born, and so was the NCAA's goal of controlling financial aid, recruitment, and academic standards for college athletes. (22) A fair amount of criticism was raised around the new code which led to the 1951 convention to repeal the Sanity Code. (23)

      After World War II, college attendance significantly increased, leading to more televised events that put pressure on the NCAA to broadcast any events possible. (24) The Sanity Code was thus replaced in 1951 with the Committee of Infractions ("COI"), and was given much broader authority to hold student-athletes accountable rather than just holding institutions accountable. (25) In 1973, the NCAA had grown exponentially, which prompted the development of the Enforcement Staff which was created to deal with investigations while the COI conducted hearings. (26) In August 1973, a special convention was held creating the assemblage of the three division alignment: Division I, II, and III, that still serve as the NCAA's organizational framework today. (27) The three division federation sparked the conflict between the NCAA and institutions fighting over football television rights. (28) The NCAA felt that if it did not take over television contracts, Division I conferences would because of their increase of power and influence, thus resulting in the NCAA losing control of the networks. (29) The likely consequence of losing NCAA control would put the major networks in charge and the college institutions in financial peril. (30) Moreover, the NCAA feared that if the College Football Association ("CFA") were to gain television dominance it would break the NCAA's control resulting in substantial rewards for its members. (31) In anticipation of these concerns, the NCAA called a Special Convention in 1981 in order to curtail the CFA's attempted ascendancy over television football. (32) In 1982, the NCAA continued to control all forms of telecasting and cablecasting and would hold the CFA accountable if they tried to solicit contract deals with the networks. (33) The competing interests between the NCAA and the CFA in the race to obtain network contracts was the primary issue sparking litigation between the two associations. (34) These actions hurt the CFA's ability to rally its members in support of a proposed agreement with broadcasting companies, resulting in the NCAA having sole leverage over future contracts with major broadcasting companies. (35)

      1. Amateurism in College Athletics

      In 1916, a definition of amateurism was set forth in NCAA by laws. (36) The principles of amateur status set forth by the NCAA stated more generally the prohibition of inducements to players to enter colleges and receive compensation due to their athletic abilities either directly or indirectly. (37) In other words, an amateur is someone who does not have a written or verbal agreement with an agent, has not profited above her actual and necessary expenses, or gained a competitive advantage in her sport. (38) When President Roosevelt called the White House meeting that led to the creation of the NCAA, he expressly acknowledged the concept of amateurism and how it should be a fundamental preservation for student-athletes in order to achieve fair competition. (39) The concept of amateurism developed over the years in order to prevent athletes from accepting inducements due to either their athletic ability or recognition as a student having influence on their university campus. (40) It was not until the 1950's with the creation of the Committee of Infractions that the concept of amateurism started to be strictly enforced as a primary importance in the make-up of a student-athlete, focusing on education as an integral element that separated students from being considered professionals. (41)

      The model of amateurism was firmly grounded in the education of students who participated in athletics and was the target of how the NCAA would conduct intercollegiate athletics. (42) The NCAA's rationale was to ensure heightened emphasis on educational objectives and the opportunity for academic success, specifically the graduation of student-athletes. (43) This justification of amateurism resulted in a cap on athletic scholarships which made it difficult for student-athletes to focus on their education because they needed to work a job in order to provide basic needs for themselves. (44) The NCAA made the decision to change its treatment of amateurism to provide college athletes with more benefits in response to concerns of athlete exploitation and an increasing amount of litigation brought under antitrust law. (45) With alterations such as the awarding of multiyear scholarships, expanded food service for athletes, four-year scholarships, and cost of attendance ("COA") stipends, college's sought to provide additional benefits to student-athletes as long as they were tied to educational-related expenses, disallowing cash-based compensation. (46) In Alston v. NCAA, the U.S. Court of Appeals for the Ninth Circuit ruled that student-athletes could receive compensation beyond COA. (47) Subsequently, the NCAA appealed the decision, and in June of 2021, The Supreme Court determined that student-athletes could receive compensation beyond COA, as long as the compensation was tied to education-related expenses. (48)

   2. Overview of Antitrust Law

      Congress passed the first antitrust law, the Sherman Act, in 1890 which was defined as a "comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade." (49) Starting in the late 1880s, the federal government...