Punt and Pass: Why Congress Should Punt on An Antitrust Exemption and Pass on Express Preemption, when Regulating Student-Athlete Name, Image, and Likeness

Abstract

In late 2019 California enacted the Fair Pay to Play Act and took the first step towards allowing student-athletes to profit off their name, image, and likeness (NIL)—subsequently many other states followed in line. This is great for advancing the rights of student-athletes; however, because not all states have similar bills, an unbalanced system is created, which is not conducive for a national league, like the NCAA. In response, the NCAA has begun working to institute a new set of national bylaws regulating student-athlete NIL payments and has engaged Congress to enact a federal NIL bill that provides for preemption over the states and provides an antitrust exemption to the NCAA. It is fairly accepted that to prevent state interference with the NCAA’s ability to institute national NIL bylaws Congress must provide express preemption. However, two questions remain: (1) how the express preemption clause must be worded to allow bylaws of an entity, not connected to the federal government, preempt state laws; and (2) whether the states can have such clause deemed unconstitutional. This Comment answers both of these questions and argues that the express preemption clause in Representative Gonzalez’s proposed federal NIL bill achieves both of these goals—through restricting the state’s ability to enforce NIL legislation and because the proposed clause regulates private actors. Further, the NCAA has requested an antitrust exemption to avoid litigation arising from their new NIL bylaws. This Comment argues that Congress should not provide an exemption to the NCAA because: (1) an exemption would take away the student-athletes main avenue for extending their rights, being antitrust litigation; (2) the NCAA is not conducive for an antitrust exemption because the student-athletes cannot unionize or collectively bargain; and (3) if a NIL restriction, that if enacted by the NCAA would violate US antitrust laws, is needed to protect the integrity of college sports, such restriction can be enacted by Congress. Additionally, this Comment examines how antitrust litigation involving NCAA bylaws will be argued after the recent May 2020 decision in Alston v. NCAA. Thus, to allow the new NCAA NIL bylaws to be successful in creating a national NIL regulatory system, Congress should move forward with Representative Gonzalez’s proposed express preemption clause but should restrain from extending an antitrust exemption to the NCAA. If Congress takes these steps, the NCAA’s bylaws will have the force needed to institute a uniform system, and the student-athletes will retain their ability to further their rights through antitrust litigation.