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 faced legal defeats involving the rights of student-athletes under the policies it has established. A National Labor Relations Board (NLRB) Regional Director determined that members of the Dartmouth College men’s basketball team were employees, thereby granting them the right to unionize. Also, most recently, a Tennessee court issued a preliminary injunction barring the NCAA from enforcing its NIL rules against compensation for recruits. This injunction was issued as a part of a federal lawsuit alleging that the rules violate antitrust laws. Each of these rulings carries distinct implications for the NCAA’s future and the organization’s ongoing efforts to lobby Congress for federal regulation.

Legal implications of the recent rulings

The NLRB ruling stemmed from all 15 members of Dartmouth’s men’s basketball team collectively filing to join the Service Employees International Union (SEIU) in September 2023. In early February, the regional director of the NLRB concluded that the student-athletes qualify as employees under the National Labor Relations Act. The Board found that Dartmouth exercises significant control over the “work” performed by the student-athletes at practices, games, and while traveling. Moreover, the players receive compensation in the form of fringe benefits, such as gear, financial aid, and access to facilities and assistance. This case marks a significant departure from a 2014 NLRB ruling against football players at Northwestern University, where the Board had previously determined that only scholarship athletes could be considered employees, ultimately concluding that labor stability would not be promoted by exercising jurisdiction. Dartmouth is expected to challenge this decision, but it nonetheless opens the door for student-athletes to unionize and engage in collective bargaining. This could potentially lead to demand for salaries, threatening the amateurism model upheld by the NCAA since its creation.

In late January, the attorneys general of Tennessee and Virginia filed a lawsuit against the NCAA, arguing that its NIL rules violate antitrust law. This action followed the NCAA’s announcement of an investigation into recruiting violations related to NIL compensation at the University of Tennessee (UT), where it was alleged that a booster-funded NIL collective at UT was orchestrating deals to lure recruits. The judge granted the preliminary injunction filed by the attorneys general because student-athletes should have the opportunity to know their worth before committing to a school, highlighting that restricting this violates the principles of trade protected by the Sherman Act. The NCAA’s argument that allowing third-party payments to student-athletes undermines the amateurism model was not convincing to the court, as NIL deals are already permitted by the NCAA, suggesting that the timing of an athlete’s agreement does not inherently conflict with amateurism.

The path forward for NIL regulation

Since last summer, the NCAA has been actively lobbying for federal NIL regulation. However, with these rulings and several other lawsuits still pending, this effort is expected to intensify. Given its current inability to enforce its own rules, the situation could rapidly deteriorate for the organization without Congressional support. Specifically, the NCAA ought to advocate for Congress to grant an antitrust exemption for collegiate sports. Following the unanimous Supreme Court ruling in National Collegiate Athletic Association v. Alston et al., it is evident that courts will not offer the NCAA any reprieve. The judiciary has consistently recognized that after years of exploiting antitrust laws and the labor of student athletes, it is time for the NCAA to reform the structure of collegiate sports, even if it means sacrificing amateurism.

Collegiate sports generate a significant portion of revenue for many colleges, and for decades, student-athletes have been unable to benefit from the fruits of their labor. NIL deals represent a step in the right direction, and it is understandable why there is public interest in expanding these benefits as much as possible. The repeated attacks on the NCAA are changing college sports as we know them, for better or for worse. While protecting student-athletes should always be the top priority, immediate federal regulation of NIL is crucial to preserve the NCAA's role in collegiate sports. Despite its imperfections, the NCAA has been a key steward of collegiate athletics for decades. It is essential that it remains involved in shaping the future of college sports. However, legal precedents have definitively demonstrated that the NCAA cannot wield sole economic control over collegiate sports; this is the juncture at which Congressional action is imperative.