New Amateurism

Abstract

The last decade has seen the National Collegiate Athletic Association (“NCAA”) lose influence over college sports and, more broadly, higher education. Much of the transformation reflects fumbled decisions on enforcement, litigation and lobbying. Other causes stem from policies that unwittingly incentivize corrupt recruiting and fraudulent admissions. The NCAA has nonetheless defended “amateurism,” which broadly envisions college sports as appealing to consumers because it features athletes who, because of NCAA rules saying they cannot be paid, are unpaid. It has done so despite U.S. Supreme Court justices, among other judges, bluntly concluding the definition is circular and exploitative.

This Article offers a series of recommendations for a new amateurism that proposes the upper echelon of colleges and athletes in college sports be separated as professional sports, ends romanticized notions of college sports that neither conservative nor liberal judges find believable and, above all, advocates reality. The recommendations are simultaneously radical and obvious. They are radical in that they envision an NCAA that accepts times have changed and obvious in that they recognize times have changed.

Keywords: Sports Law, NCAA, Johsnon v. NCAA, Dartmouth College, University of Southern California, NIL, Employment Law, Labor law, NLRB, Unions, Right of Publicity, Intellectual Property Law, Antitrust Law

JEL Classification: K10, K20, K21, K31, L40, K42, J01, J21, J30, J70, J71