Time’s Up: A Call to Eradicate NCAA Monopsony Through Federal Legislation

Abstract

Few traditions are as near and dear to the hearts of Americans as college athletics. The institution holds a special place in society because it reflects the ultimate convergence of those values that uniquely define the United States: loyalty, competitiveness, and pride. However, the notion of basic fairness seems to have been excluded along the way, as the commercialization of college athletics gave way to total dominance over the industry by the National Collegiate Athletic Association (NCAA). The NCAA promulgates sports rules and organizes collegiate-level championships, but its most influential role involves promoting “amateurism,” or the notion that student-athletes are not entitled to compensation because college athletics should be about the love of the game, not monetization. While amateurism may be touted as an honorable principle aimed at preserving the character of college athletics and its differences from professional sports, the principle is more difficult to justify at a time when the NCAA earns $1.1 billion per year in revenue, none of which is shared among student-athletes who work full-time and typically live below the poverty line. Last year, state legislators paused to consider whether any justification exists for continuing to adhere to the NCAA’s archaic system of denying compensation to student-athletes in light of the fact that “amateurism” holds no significance in a legal sense. Given the lack of any such justification, the California legislature became the first to explicitly defy the NCAA in passing the Fair Pay to Play Act in September of 2019. Since then, a number of states have followed suit by drafting nearly identical laws that would likewise have the effect of permitting student-athletes to earn compensation for use of their name, image, and likeness (NIL). Unsurprisingly, NCAA leadership vehemently condemned the movement at first, threatening to strip member institutions affected by the new legislation from the organization altogether. The NCAA has since reneged on its hostile position, making a public commitment to reform its policies so as to authorize paid endorsement opportunities for student-athletes on some level. However, the organization will undoubtedly attempt to minimize the impact of the Fair Pay to Play Act and its progeny whether through litigation or by crafting new restrictive policies ultimately aimed at nullifying the effects of new laws. Admittedly, the state-by-state approach to adopting a new stance on athlete compensation comes with a number of practical challenges, thereby providing fertile ground for the NCAA to launch powerful objections. This Comment aims to present a workable solution in the form of a comprehensive federal law, which would secure the rights of student-athletes to earn compensation for use of their NILs before the NCAA is given the opportunity to preempt the significance of that right. While several congressmen have drafted federal laws related to the topic of NIL rights in this context, this Comment identifies particular issues that have been overlooked at the state level thus far, recommending specific provisions that would not only embrace student-athletes’ rights in principle as a matter of basic fairness, but make those rights a practicable and economically feasible reality.