Karin Michel

Associate Editor

Loyola University Chicago School of Law, JD 2025

 

The Name, Image, and Likeness (NIL) landscape in the National Collegiate Athletic Association (NCAA) has been constantly changing since its enactment in June of 2021. Over the last month, the NCAA has lost a number of legal battles involving the rights of student athletes under the policies created by the NCAA. First, a National Labor Relations Board (NLRB) Regional Director ruled that members of the Dartmouth College men’s basketball team were employees, and therefore have the right to unionize. Most recently, a Tennessee court granted a preliminary injunction that prevents the NCAA from enforcing its NIL rules for compensation for recruits. This injunctions comes as a part of a federal lawsuit claiming that the rules violate antitrust laws. Each ruling has unique implications on the future of the NCAA and the lobbying the organization has been doing in Congress for federal regulation.

Legal implications of the latest rulings

The NLRB ruling comes from all 15 members of Dartmouth’s men’s basketball team collectively filing to join the Service Employees International Union (SEIU) in September 2023. The regional director of the NLRB found in early February that the student athletes are employees under the National Labor Relations Act. The Board found that Dartmouth retains a certain amount of control over the “work” performed by the student athletes at practices, games, and while traveling. The players also perform that work in exchange for compensation in the form of fringe benefits like gear, financial aid, and access to facilities and assistance. This case marks a change from a 2014 NLRB ruling against football players at Northwestern University, in which the Board found that only scholarship athletes could be considered employees, and that ultimately labor stability would not be promoted by exercising jurisdiction. Dartmouth is expected to appeal, but the door has nonetheless been opened for student athletes to unionize and collectively bargain. If this occurs, student athletes could argue for salaries, destroying the amateurism model upheld by the NCAA since its creation.

At the end of January, the attorneys general of Tennessee and Virginia filed suit against the NCAA for their NIL rules violating antitrust law. This suit came after the NCAA announced an investigation into recruiting violations related to NIL compensation at the University of Tennessee (UT). The NCAA was alleging these violations on the basis that a booster-funded NIL collective at UT was making deals with recruits in order to persuade them to go to their schools. The judge granted the preliminary injunction filed by the attorneys general because student athletes should be able to know their worth before committing to a school, and this is a restriction on trade that the Sherman Act is designed to prevent. The NCAA argues that the ability for third parties to pay student athletes dismantles the amateurism model. The court did not find this persuasive, as the NCAA already permits NIL deals, so the timing of when an athlete enters an agreement would not go against the preservation of amateurism.

The next steps for NIL regulation

The NCAA has been lobbying for federal NIL regulation since this past summer. However, with these rulings and a number of other lawsuits pending, this push is likely to become more aggressive. As the NCAA is unable to enforce their own rules on the issue, things could get out of hand quickly for the organization without the support of Congress. Particularly, the NCAA needs Congress to provide an antirust exception for collegiate sports. It has been clear since the unanimous Supreme Court ruling in National Collegiate Athletic Association v. Alston et al. that the courts will not provide any reprieve for the NCAA. The courts continuously find that after years of taking advantage of antitrust laws and the labor of student athletes, it is time that the NCAA corrects the structure of collegiate sports, even if it comes at the cost of amateurism.

Collegiate sports account for a large majority of most college’s income, and for decades student athletes have been unable to benefit from fruits of their labor. NIL deals are a step in the right direction, and it is understandable that the public is looking to extend those benefits as far as possible. The repeated attacks on the NCAA are going to change college sports forever, for better or for worse. While protecting student athletes should always be the top priority, NIL needs federal regulation immediately to ensure that the NCAA remains intact. For all its flaws, the NCAA has fostered all collegiate sports for decades and should be a part of whatever collegiate sports looks like in the future. But the case law has clearly shown that the NCAA should not have absolute control over the economics of college sports, which is where Congress needs to intervene.