Chris Wilford

Associate Editor

Loyola University Chicago School of Law, JD 2026  

In 2021, the Supreme Court decided N.C.A.A. v Alston. This struck down the National Collegiate Athletic Association’s (NCAA) previous prohibition on collegiate athletes earning money on their own Name Image and Likeness (NIL). There is now debate as to what the regulations around NIL should be and who should be making them. The NCAA is currently under fire for their lack of regulations on Name Image and Likeness (NIL) deals for collegiate athletes. Historically, outside of a scholarship, an athlete could receive no compensation for their athletic ability or participation in collegiate athletics. Patrick Chomczyk, a previous editor, wrote a blog in Sept. of 2021, after the Supreme Court Decision of N.C.A.A. v. Alston. He predicted that the NCAA would implement its own rules that comply with the Supreme Court ruling and Federal legislation could follow. In the wake of Alston, the NCAA has only instituted a few rules, all centered around keeping the concept of amateurism alive. Amateurism is the current model of college sports where student athletes are not to receive compensation for their athletic activities. This concept has been repeatedly challenged in recent years.

How did NIL begin?

O’Bannon v. NCAA opened the NIL door. Then, the Alston decision firmly told the NCAA that it cannot limit education related compensation, which is how NIL had been framed. Justice Kavanaugh’s concurrence even suggested the NCAA’s entire business model may violate the Sherman Antitrust Act. Although the Alston decision was solely focused on the NCAA’s restrictions to education related benefits, Justice Kavanaugh believes the rest of their compensation rules likely violate antitrust laws because the NCAA couldn’t give a “procompetitive justification”. The NCAA’s argument is that athletes shouldn’t be paid because the defining feature of collegiate sports is not paying them. Specifically Kavanaugh believes the NCAA’s argument is circular and unpersuasive and if applied to any other industry would make no sense as a business model.

One specific rule the NCAA created was that school “collectives” are not allowed to recruit athletes. Collectives are organizations created by both boosters and universities but are distinct entitles from the universities. Collectives are used to facilitate NIL deals between boosters and athletes. This meant that schools were not allowed to offer NIL deals for an athlete’s commitment. Two state’s attorneys in Tennessee and Virginia filed suit this past January and won a temporary injunction against the NCAA. They filed antitrust challenges to the NCAA’s NIL rules. Specifically, the state’s attorneys challenged the ban on using NIL in recruiting, which is the one thing the NCAA attempted to regulate post Alston. This came after a separate group of state’s attorneys won an antitrust challenge against the NCAA’s rules for the transfer portal (where current collegiate athletes can look to change schools) back in December of 2023. There are currently no federal statutes regulating this portion of college athletics and largely has been left to the NCAA to regulate, who has passed the buck to states or individual universities post Alston.

Why does it matter?

The lack of regulation of NIL has plunged college sports deeper into the world of dark smokey rooms with bags of cash rather than bringing it out of these spaces (as proponents of NIL claimed). Jaden Rashada is an example of this. Rashada was a highly touted class of 2022 quarterback recruit. He had initially committed to Miami where he had a reported $9.5M NIL deal. He then was offered over $13M by the University of Florida to change his commitment, which Rashada did. Additionally, this offer was a potential violation of the then-in-place NIL pay for play rules from the NCAA. He was promised a $1M payment after signing day. No money was ever exchanged. Rashada ultimately requested and was granted a release from his commitment to Florida and enrolled at Arizona State. Rashada has recently filed suit against the University of Florida and the head coach of the football team, claiming fraud and tortious interference. This lawsuit will be the first of potentially many as more teams look to use NIL as a recruiting tool and as those teams ultimately do not live up to their recruiting promises.

 Going forward

Who should fix this? Is the NCAA not willing or capable given the last three years of resistance and inaction? Maybe, but there’s not a great alternative. Yet, the next most likely candidate, Congress, hasn’t had any success in regulating collegiate sports either. Congress has tried with multiple proposed bills but none garnered much support. However, the President of the NCAA, Charlie Baker, proposed a direct compensation model for athletes last December. This is a good step for the NCAA, it shows recognition and potential willingness to join the movement to compensate collegiate athletes. However, that proposal would completely overhaul the economic model of college sports and present its own set of challenges.  This is likely the future of college sports. Yet, the NCAA is too weak and unwilling of a body to regulate this portion of college athletics. The NCAA knew the sport was moving in the direction of NIL yet instead of being proactive it dragged its heels. Then once the NCAA made rules, states sued for injunctions, taking away whatever power and will to regulate that the NCAA had left. Congress is the only regulatory body that currently has the power to properly implement a payment scheme. It is over three years to the date of Alston and the world of NIL has only gotten murkier. Congress needs to step in and make a law that regulates NIL and paying college athletes, before more Jaden Rashadas happen.