False Start on NIL: Public and Private Law Should Treat College Athletes Like Any Other Student

Abstract

For most of its regulatory existence, the National Collegiate Athletic Association (“NCAA”) has preached the importance of integrating intercollegiate athletics into the campus culture and educational mission, insisting that athletes be an integral part of the student body. A core element of this creed was the amateurism principle—college athletes must not be paid or professionalized. To preserve and enforce the amateurism principle, the NCAA and its divisions promulgated a vast and complex regulatory scheme that paradoxically resulted in segregating, rather than integrating, athletes into campus life. While nonathlete students enjoy increasing autonomy to pursue expressive and economic activity, athletes are subject to paternalistic rules that restrain their lives on and off campus and deny them a share in the wealth generated by their athletic talents. In a watershed moment in the summer of 2021, this began to change. In June 2021, the Supreme Court in National Collegiate Athletic Association v. Alston affirmed that the NCAA had violated antitrust laws by capping the benefits that member institutions could offer to athletes when competing to recruit them to college teams. July 2021 brought the effective date of the first of many state laws preventing the NCAA from penalizing college athletes who monetize their name, image and likeness (“NIL”). In response, the NCAA amended its amateurism bylaws to permit all college athletes, regardless of where they attend school, to engage in NIL commercial activity consistent with state law and NCAA guidelines. What followed was a cycle of NCAA rulemaking to preserve the amateurism principle alternating with state legislative rejoinders to preserve in-state athletic programs’ recruiting advantage. The resulting morass of private and public NIL rules customized to the college athlete led to calls to federalize those regimes. Proposals for federal legislation would establish national standards and a centralized regulatory authority for college athlete NIL exploitation. No such bills have gained traction in Congress. This Article argues that both public and private law regimes singling out college athletes for customized regulation have it wrong. Instead, states, schools, and athletes would benefit from discarding specialized rules and reverting to laws of general application—in other words, let’s treat college athletes like any other student on campus. At least with respect to NIL, do away with the bifurcation of higher education into athletic and nonathletic fiefdoms and rent-seeking special treatment of the university’s relationship with athletes. Adopt a principle of nondiscrimination that deals with all college students the same way when they seek to benefit from and monetize their identities and publicity rights.