Change or Be Changed: A Proposal for the NCAA to Combat Corruption and Unfairness by Proactively Reforming Its Regulation of Athlete Publicity Rights

Abstract

This Article addresses the black market for college athlete services that results from the NCAA’s restrictions on athlete compensation based on the purported need to preserve amateurism. Specifically, this Article focuses on the NCAA’s name, image, and likeness (NIL) restrictions that prevent college athletes from making use of their own reputations for commercial purpose. The Article examines the relevant litigation on the subject of athlete publicity rights and amateurism and concludes that the NCAA’s NIL restrictions serve no legitimate purpose. The NCAA is in the process of changing its NIL rules to afford athletes more freedom to benefit from the commercial use of their NILs. The specific rules that formulate the NCAA’s new policy have not yet been revealed and probably have not yet been developed. Proposed within this Article is a modest suggestion that the NCAA address the recent scandals involving corruption of its amateur model for intercollegiate athletics by removing its restrictions on athlete NIL use. The proposal in this Article includes specific suggestions for how the NCAA should lift the restrictions. Our proposal is also a response to recent litigation and proposed legislation on the subject of amateurism and college athlete NIL restrictions. The NCAA is in a precarious position in that its NIL restrictions are now exposed and vulnerable to antitrust challenge. We suggest for the NCAA to break trend and take a proactive approach to addressing corruption and unfairness by adopting our proposal for materially changing the way it regulates athlete NIL use.

Keywords: amateurism, antitrust law, NCAA, sports law, sports economics, consumer demand, athlete pay, O'Bannon, Jenkins, college sports, higher education, National Collegiate Athletic Association

JEL Classification: K2, K21, L4, L40, L41, L43, J00, J2