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COMMODIFICATION OF COLLEGE
ATHLETES’ NAME, IMAGE,
AND LIKENESS
MCKENNA WALSH
ABSTRACT
How should college athletes be paid for the use of their name, im-
age, and likeness? An important scholarly debate has arisen around
issues ranging from ethics to antitrust, but little work has previously
addressed the inherent concerns relating to commodification of NIL.
This Article seeks to fill that void by examining the potential conse-
quences of commodifying NIL.
In so doing, the Article ventures into uncharted territory: there is
no clear answer to the question of how to balance the unique qualities
of amateur athletics with the right of college athletes to be paid for
something that belongs to them. With state legislation governing the
use of NIL likely forthcoming, this Article seeks to examine the reper-
cussions of the commodification of NIL.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
II. BACKGROUND ON COLLEGE SPORTS AND
NIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
A. A LOSE-LOSE HISTORY OF COLLEGE SPORTS . . . . . . . 83
B. INTRODUCTION TO NAME, IMAGE, AND LIKENESS . . . 86
III. RELATED CASE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
A. ANTITRUST AND NIL APPLIED TO NCAA . . . . . . . . . . . 88
1. Case History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
2. Case Law Areas of Concern . . . . . . . . . . . . . . . . . . 92
IV. IF YOU’RE NOT FIRST YOU’RE LAST; NIL
APPLIED TO NCAA TODAY . . . . . . . . . . . . . . . . . . . . . . . . 93
A. FAIR PAY TO. . .PLAY? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
B. NCAA’S RESPONSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
V. COMMODIFICATION CONCERNS: COSTS TO
COLLEGE ATHLETICS IF ATHLETES ARE
PAID FOR NIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
A. ANYTHING YOU CAN DO I CAN DO BETTER:
COERCION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
B. NOT EVERYONE’S A WINNER: CROWDING OUT . . . . . . 98
C. IT’S JUST NOT THE SAME: CORRUPTION . . . . . . . . . . . . 100
1. Academics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
2. Student Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
80 CREIGHTON LAW REVIEW [Vol. 55
3. Bigger Doesn’t Always Mean Better . . . . . . . . . . . 103

VI. IF LEGALIZED, HOW TO REGULATE? . . . . . . . . . . . . 109
VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
I. INTRODUCTION
There’s a spectrum of opinions when asking people whether col-
lege athletes should be paid. On one end of the spectrum there’s a
simple “no.” College athletes should not be paid because they are not
professionals, and they play college athletics as an avocation. If col-
lege athletes are good enough to be paid, they can use college to be
recruited as a professional athlete. Alternatively, the athlete could go
straight into a professional sport from high school. Doubters will ar-
gue they can’t because of the age requirements of professional leagues,
but the naysayers will point out that is not the fault of college athlet-
ics or the National Collegiate Athletic Association (“NCAA”), but in-
stead the fault of the professional leagues. College athletes are
receiving clout and exposure from playing in college athletics and if
they are good enough to make it to the professional arena, that is
where the money will be.
On the far opposite end of the spectrum are those who think there
is no such thing as amateur athletics anymore. College athletes
should be considered employees of the schools and make a salary.
This argument focuses on how much money a team can bring in for
the school as a whole and the players should receive a cut from the
profit similar to the coaches. This argument acknowledges cases that
have been decided against student athletes being employees but con-
tinue to assert that the amateur model will soon expire, and the stu-
dent athletes will be considered employees.1 This argument
emphasizes these student athletes are already so similar to profes-
sional athletes that there is no distinction. The time dedicated to
playing collegiate sports is far from amateur, and the façade of school-
work is not sufficient to surmount the real reason the student is at the
school: to play sports and bring in funding for the university. This is
shown through academic scandals, preferential treatment, and near
failing grades riddled throughout college sports. Under this stance,
college athletes should be paid because although some student ath-
letes receive some kind of scholarship or stipend, not all do. Even the
ones that do are pressed financially at times. This side often brings up
the point that athletes cannot pay for a plane ticket home over the
1. See generally Roberto L. Corrada, College Athletes in Revenue-Generating

Sports as Employees: A Look into the Alt-Labor Future, CHI.-KENT L. REV. 187 (2020)
(describing the expiration of an amateur model and transitioning students to employ-
ment status).
2021] COMMODIFICATION OF NIL 81
holidays. Athletes cannot send money to their families to put food on

the table back home. Athletes cannot go buy a coffee off campus. In-
stead of attempting to convince the world that amateur sports still
exist, the NCAA should call the players what they actually are, em-
ployees, and allow them to be paid by the schools.
Towards the “no” side of the spectrum are those who hold the idea
that college athletes should not be paid because they already are being
paid. Payment takes the form of free education. College athletics are
founded on the principle of Mens sana in corpore sano, which means a
sound mind in a sound body.2 The athletes who are on a full ride
scholarship can make up to $400,000 in four years that is put towards
their college degrees.3 In addition, most players are receiving sti-
pends, housing, books, tutoring, early registration, unlimited free
meals, athletic gear, clothes, medical attention, nutrition guidance,
and advising from sports psychologists. Further, the players will be
paid if and when they possess the skills to make it to the professional
level. If not, they received an education that most other students are
going into years of debt for.
Somewhere in the middle lies the perspective growing today. Col-
lege athletes should be able to make some kind of money. Similar to
an artist selling their work while they are in college, an athlete should
be able to make money off their talents. To deny this opportunity is to
unfairly limit athletes more than the rest of the student body. How-
ever, this is not to go so far as to say athletes should be considered
employees. One day the reality could be student athletes are classi-
fied as employees, but the NCAA is taking one step at a time rather
than making a leap.
This middle ground is unfamiliar territory for most. People often
answer either yes, athletes should be paid, or no, athletes should not
be paid. If someone argues college athletes should be paid, the other
side thinks they are either a former college athlete or buy into the
celebrity treatment of athletes without recognizing the privilege the
athletes already receive. If someone argues college athletes should
not get paid, the other side thinks they are an old curmudgeon who
probably did not play college sports and do not understand the time
athletes put into representing their school. The question does not con-
sider “by who” should the athlete be paid. Most people would not rec-
ognize a middle ground argument. Without carefully reading into the
moves that are happening now, most people still don’t understand
2. Taylor Branch, The Shame of College Sports, ATLANTIC (Oct. 2011), https://
www.theatlantic.com/magazine/archive/2011/10/the-shame-of-college-sports/308643/.
3. Jaleesa Bustamante, Average Cost of College & Tuition, EDUCATIONDATA.ORG
(June 7, 2019), https://educationdata.org/average-cost-of-college (indicating the overall
tuition cost of a bachelor’s degree).
what the current conversation over college athletes being paid is re-
garding. The important question that should be asked moving for-
ward is, “by who should college athletes be paid.”
The current conversation is not about athletes being employees of
the school (although this movement could push the conversation that
way). Nor is it about scholarships or stipends. This conversation does
not relate to schools paying athletes in any way. Scholarships stay the
same, employment stays the same, but payment to college athletes is
changing. So where does this payment come from? Nike, Adidas,
Coca-Cola, Gatorade, Neutrogena, Joe Shmoe’s pizza parlor down the
street, the local car dealership, the list goes on and on for who could be
the ones paying college athletes to do a commercial or Spotify adver-
tisement or social media post. The product is the athlete’s “Name, Im-
age, and Likeness” (“NIL”). The athlete is marketing their persona
rather than selling the actual playing of the sport like the employee
end of the spectrum is arguing. In this scenario, not one cent comes
from the schools and not one cent would go to the schools. This is the
middle ground most people are glazing over but is now the forefront
path.
This position could receive support from both ends of the spec-
trum. The naysayers may see the similarities between this and gen-
eral students working a tutoring job, for example. Students are
making money not from playing college sports, but from extra market-
ing jobs outside of school. On the other end of the spectrum, student-
athlete-employee advocates may see this as a step in the right direc-
tion. At least the athletes are gaining rights by making money in
some way, even if it is not from the school’s pocketbooks.
In order to gain support from both sides, support is needed from
many different groups in society including the NCAA, law makers, col-
leges, student athletes, companies, and the general public. Without
clarification on this middle ground in the heated debate, opinions will
stay on their respective ends of the spectrum. To work towards a path
that recognizes the rights of student athletes but still maintains the
importance of amateur athletics in our society, the concept of athletes
being paid for their NIL must be clear.
The goal of this article is to familiarize the concept of NIL and
expose additional concerns around college athletes being paid specifi-
cally for their NIL. The goal of this paper is not to argue against col-
lege athletes’ profit off NIL, but to invite conversation around
supplementary controversy around the issue, specifically commodifi-
cation issues. This paper does not discuss college athletes being paid
by the schools they play for. The trade in this paper is referring to
commercial businesses directly paying athletes for their NIL.
This Article will proceed in five parts. Part I lays out the history
of college sports and NIL, discussing the formation of the NCAA and
provides foundational information on antitrust law, specifically NIL.
Part II provides a road map to related, but minimal case law.
This case law is only tangentially related to the issue at hand but is an
important consideration as it is the only case law in this arena so far.
Part II also discusses the limitations between previous case law and
the current issue.
Part III discusses the changes happening today, including Califor-
nia’s proposed bill and the response from the NCAA. The state bill
would allow college students in California to profit from their NIL
without regulation by the NCAA.4 This opposes a goal of the NCAA,
which is to provide consistency across the league.5
Part IV explores the concerns related to the commodification of
college athletes’ NIL. This section addresses three concerns: coercion,
crowding out, and corruption. These issues will become more urgent
as schools begin to propose bills allowing college athletes to profit off
their NIL. The goal of this section is to stimulate the discussion now
rather than schools or the NCAA attempting damage control after the
passage of these bills.
Finally, Part V surveys how we should regulate paying college
athletes for their NIL if legislation is passed in California or else-
where. This includes practical concerns for states, colleges, and the
NCAA.
II. BACKGROUND ON COLLEGE SPORTS AND NIL

The background of college sports and the foundation of the Na-
tional Collegiate Athletic Association (“NCAA”) is critical to under-
stand the principles of the NCAA and how “Name, Image, and
Likeness” (“NIL”) and the NCAA have come to intersect.
A. A LOSE-LOSE HISTORY OF COLLEGE SPORTS

College athletics began as intramurals in the 1800s as student-
organized athletic competitions between students attending the same
university.6 Growing interest in athletics brought inter-school compe-
titions, with the first being a rowing competition between Yale and
4. Rachel Stark-Mason, Name. Image. Likeness. What Name, Image and Likeness
Means for College Sports. And how the NCAA is Turning to Student-Athletes to Navigate
a Path Forward, NCAA, http://www.ncaa.org/champion/name-image-likeness (last vis-
ited Dec. 12, 2020).
5. Id.
6. Jordan R. Bass et. al., A History of Intercollegiate Athletics and the NCAA, 41
ASHE HIGHER EDUC. REP. 1, 3 (2015).
Harvard in 1852.7 Yet, these seemingly harmless activities soon

gained detractors. University administrators first expressed concern
over the growth of intercollegiate athletics influencing the academic
setting of college campuses.8 In addition to the academic concerns,
administrators voiced concerns about the commercialism becoming in-
tertwined with college sports.9 Commercialism is the “commercial
spirit, institutions, or methods” or the “excessive emphasis on
profit.”10 The NCAA is inherently at odds with this definition of com-
mercialism because the NCAA is a nonprofit organization.11 In the
1920s, commercialism for college athletics included radio coverage
with a commercial-free station because advertising was seen as “intru-
sive and vulgar.”12 In addition to radio advertising, commercializa-
tion included business sponsorships, ticket sales, and media
production.13 Collegiate sports’ reliance on finances from commercial
entities affects the autonomy of the NCAA and member schools.14
Some administrators saw new opportunities through college ath-
letics, including alumni involvement, branding, and increased enroll-
ment, but pled for some regulations over these competitions.15 Some
athletic events resulted in severe injuries and even death to athletes;
in one year eighteen students died resulting from on-field injuries.16
President Theodore Roosevelt begged for organization to bring struc-
ture and integrity to college sports by calling on institution leaders to
take action.17 Several member schools came together to discuss the
need for one organization to regulate the academics, amateurism, eth-
ics, and safety of college sports.18 The NCAA was born.
The NCAA was created to combat the injuries and the ethics of
unregulated college sports as well as oversee the partnership between
college education and sports.19 College sports stayed an integral part
of the educational program of universities and the athletes stayed an
integral part of the student body.20 The NCAA’s purpose was to initi-
7. Id.
8. Id.
9. FRANK P. JOZSA, JR., INTERCOLLEGIATE ATHLETICS 15 (Springer 2012).
10. Commercialism, MERRIAM-WEBSTER.COM DICTIONARY, https://www.merriam-
webster.com/dictionary/commercialism (last visited Dec. 11, 2020).
11. NCAA, Finances, https://www.ncaa.org/finances, (last visited Nov. 12, 2021).
12. Kathleen M. O’Toole, John L. Griffith and the Commercialization of College
Sports on Radio in the 1930s, 40 U. ILL. PRESS 241, 242 (2013).
13. Id.
14. JOZSA, supra note 9, at 15.
15. Bass et al., supra note 6, at 4 (discussing the history of college sports).
16. Id.
17. Id.
18. JOZSA, supra note 9, at 15.
19. The NCAA, US DEPT. OF EDUC. 4 (Aug. 1999), https://files.eric.ed.gov/fulltext/
ED435359.pdf.
20. Id. at 3.
ate, stimulate, and improve athletics.21 Participating athletes would

practice “educational leadership, physical fitness, athletics excellence
and athletics participation as a recreational pursuit.”22 These values
emphasized scholarship, sportsmanship, and amateurism.23
Only twenty years after the creation of the NCAA, unease grew
over the future of college athletics.24 In the 1920s, the forefront of this
concern was over commercialization and professionalization of college
athletics.25 In the years since, commercialization and professionaliza-
tion has not slowed down.26 The NCAA increased the number of
sports, and financial aid guidelines became a focus of the NCAA.27 A
report by the Carnegie Foundation in 1929 found commercialism as
the foundation for financial and cheating scandals in college sports.28
Commercialism was diminishing the education received by student
athletes as well as denying non-athlete students’ involvement in col-
lege athletics.29 The Carnegie report warned against the rise of com-
mercialism in college sports to maintain the essence of college sports
as an opportunity for “mature youth.”30
The Sanity Code adopted in 1948 attempted to reel back the com-
mercialization by re-focusing education as a key to college athletics
and maintaining amateur status.31 The thrust of the Sanity Code was
to establish guidelines for athletes to receive financial aid if they met
specific academic standards.32 For example, if the athlete was in the
top 25% of his class out of high school or kept a B average in college,
he could receive a full ride scholarship.33 This highlighted the princi-
ple that athletes remained amateurs and equal to other students at
the school.34 The Sanity Code was overturned by the NCAA member
institutions in 1951, partly because southern schools asked the NCAA
to abolish financial aid regulation to allow aid based only on athletic
ability in order to compete with Ivy League schools, and partly be-
cause some member institutions believed scrapping the Sanity Code
21. Id. at 7.
22. Id.
23. Id.
24. Bass et al., supra note 6, at 6.
25. Id.
26. Id. at 48.
27. Id. at 6-7.
28. Robert D. Benford, The College Sports Reform Movement: Reframing the
“Edutainment” Industry, 48 SOC. Q. 1, 9 (2007).
29. Id.
30. Rodney K. Smith, A Brief History of the National Collegiate Athletic Associa-
tion’s Role in Regulating Intercollegiate Athletics, 11 MARQ. SPORTS L. REV. 9, 13 (2000).
31. HOWARD P. CHUDACOFF, CHANGING THE PLAYBOOK: HOW POWER, PROFIT, AND
POLITICS TRANSFORMED COLLEGE SPORTS 8-9 (U. of Ill. Press, 2015).
33. Id.
34. CHUDACOFF, supra note 31, at 8.
was the only way to maintain the NCAA.35 It was the fall of the San-
ity Code and the creation of grant-in-aid (financial aid including tui-
tion and fees, room and board, books, and other expenses related to
the cost of attendance),36 which led to the term “student athlete.”37
The rise of cable television, and specifically Entertainment and
Sports Programming Network (“ESPN”), in the 1970s and 1980s ad-
ded to the commercialization of college sports.38 Division I athletics is
sustained through financial revenue generated from television con-
tracts for men’s football and basketball.39 NCAA oversight is essen-
tial because without it, college sports would become over-
commercialized, and both schools and teams would lose the ability to
reverse course.40 Through the 20th and 21st centuries, faculty, school
administration, intercollegiate sports organizations, and private foun-
dations have expressed concerns over the commercialization and
professionalization of college sports.41 Since the early 1900s, the
NCAA has been criticized for both responding inadequately to combat-
ing commercialization and that its actions are the unfair exercise of
authority.42 The NCAA is damned if they do and damned if they
don’t. This Article will examine the criticism of commodification of
college athletes’ ability to profit off their NIL in order to stimulate
conversation prior to implementation of any legislation.
B. INTRODUCTION TO NAME, IMAGE, AND LIKENESS

The claim to a player’s NIL falls under the legal right of publicity.
The right of publicity is the right “to control the use of their names
and likeness for commercial purposes.”43 Privacy rights include “the
right of a person to be free from unwarranted . . . appropriation or
exploitation of one’s personality.”44 A common suit is when a person’s
35. Id. at 10-11.

36. See THE UNIVERSITY OF ARIZONA, NCAA Manual—Bylaw 15—Financial Aid
Exerpts, https://financialaid.arizona.edu/general/ncaa-manual-bylaw-15-financial-aid-
excerpts (last visited Nov. 12, 2021) (noting “Full Grant-in-Aid” in section 15.01.2.5, last
revised on January 17, 2015, of the NCAA Bylaws).
38. Id.
39. Id. at 10.
40. BRIAN L. PORTO, THE SUPREME COURT AND THE NCAA: THE CASE FOR LESS COM-
MERCIALISM AND MORE DUE PROCESS IN COLLEGE SPORTS 179 (U. of Mich. Press, 2012).
41. Benford, supra note 28, at 6.
42. Smith, supra note 30, at 16.
43. First Amendment – Right of Publicity – Ninth Circuit Rejects First Amendment
Defense to Right-of-Publicity Claim – In re NCAA Student-Athlete Name & Likeness Li-
censing Litigation, 724 F.3d 1268 (9th Cir. 2013), 127 HARV. L. REV. 1212, 1212 (2014)
[hereinafter Right of Publicity] (quoting Stacey L. Dogan & Mark A. Lemley, What the
Right of Publicity Can Learn from Trademark Law, 58 STAN. L. REV. 1161, 1162 (2006)).
44. Use of Name or Likeness, US LEGAL, https://privacy.uslegal.com/what-consti-
tutes-a-violation/use-of-name-or-likeness/ (last visited Dec. 15, 2020).
NIL is used for advertising purposes without his or her consent.45

Right of publicity claims are similar to copyright protections.46 Right
of publicity expanded to apply to any parts of a person’s identity.47
When describing what NIL is, it can be helpful to describe what it
is not. For example, people in public places have no reasonable expec-
tation of privacy, and NIL only applies if a person is readily identifi-
able.48 However, if individuals are represented as members of a
“definable group,” there is no violation of right of publicity.49 This de-
finable group could include a baseball team, for example.50
Hype and lack of understanding contributes to confusion around
commodification of a college athlete’s NIL. In fact, the bill California
recently proposed is named the Fair Pay to Play Act.51 However, ath-
letes are currently not allowed to be paid for playing, nor would they
be allowed even if this legislation was passed. Specifically, the cur-
rent trend in college sports would allow players to profit—not through
payment for playing52—but rather, from their name, image, and like-
ness, which are the three sources that make up a person’s right of
publicity.53 Right of publicity is a protection similar to copyright.
Thus, the Fair Pay to Play Act54 involves not paying to play, but
rather commodification of a player’s right to publicity or ability to
profit from NIL.
III. RELATED CASE LAW
No case law has directly addressed the commodification of college

athletes’ “Name, Image, and Likeness” (“NIL”). Because the issue has
never been directly addressed in the courts, stakeholders currently
lack a clear answer as to whether it is acceptable for the National Col-
legiate Athletic Association (“NCAA”) to oppose college athletes selling
their NIL to commercial businesses.
45. Id.
46. Right of Publicity, supra note 42, at 1216.
47. Use of Name or Likeness, supra note 43.
48. BILL SEITER & ELLEN SEITER, THE CREATIVE ARTIST’S LEGAL GUIDE: COPYRIGHT,
TRADEMARK AND CONTRACTS IN FILM AND DIGITAL MEDIA PRODUCTION 185 (Yale Univ.
Press, 2012).
49. Id.
50. Id.
51. CAL. EDUC. CODE § 67456 (2019).
52. Dan Murphy, Bipartisan Federal NIL Bill Introduced for College Sports, ESPN
(Sep. 24, 2020), https://www.espn.com/college-sports/story/_/id/29961059/bipartisan-fed-
eral-nil-bill-introduced-college-sports.
53. Stark-Mason, supra note 4.
54. Fair Pay to Play Act, CAL. EDUC. CODE § 67456 (2019).
A. ANTITRUST AND NIL APPLIED TO NCAA
Related legal challenges offer some insight into the way state
courts might handle disputes surrounding NIL, however, there has
been no consistent federal legislation to rely on. Specifically, the
NCAA has been sued by former NCAA college athletes, who claimed
the NCAA violated federal antitrust law.55 Antitrust law’s are en-
acted to protect competition for the benefit of consumers, while mak-
ing sure there is stimulus for businesses to act efficiently.56 Within
antitrust law, the Sherman Act57 rejects every contract, combination,
or conspiracy in restraint of trade.58 The college athletes claimed that
the NCAA and its member institutions conspired to not allow college
athletes from profiting off their NIL.59 These cases ended with the
players’ ability to negotiate their constrained rights—an agreement
favored by the NCAA.60 The misunderstanding of these cases provide
false confidence in proponents of college athletes profiting off their
NIL.
This section surveys the few judicial decisions that relate indi-
rectly to the current disputes regarding NIL. The following cases dis-
cuss the availability of payment to student athletes from their schools
for NIL. Notably, this is different from the proposed legislation which
would not allow NIL payment from the student athletes’ schools, but
only allow payment from third parties. It remains unclear how these
cases would apply if a players’ NIL were bought by a commercial busi-
ness. Existing case law does not provide objective standards that
would determine how NIL applies to college athletes’ interactions with
third parties,61 however, the case law gives an insight into the path
athletes’ NIL has taken to this point. This Article will lay out the rele-
vant case law without weighing on how it should have been resolved,
at least as an initial matter.
55. Michael McCann, What Ed O’Bannon’s Victory over the NCAA Means Moving
Forward, SPORTS ILLUSTRATED (Aug. 9, 2014), https://www.si.com/college/2014/08/09/ed-
obannon-ncaa-claudia-wilken-appeal-name-image-likeness-rights.
56. The Antitrust Laws, FED. TRADE COMM’N, https://www.ftc.gov/tips-advice/com-
petition-guidance/guide-antitrust-laws/antitrust-laws (last visited Dec. 12, 2020).
57. 15 U.S.C.A §1 (West 2004).
58. Sherman Act, 15 U.S.C.A. §1 (West 2004).
59. McCann, supra note 54.
60. Zachary S. Beal, ”Is That Me I See on the TV?” an Analysis of the O’Bannon
Decision, 34 CARDOZO ARTS & ENT. L.J. 771, 786 (2015).
61. Andrew Zimbalist, Whither the NCAA: Reforming the System, 52 REV. OF IN-
DUS. ORG. 337, 343 (2017).
1. Case History
The two cases that provide relevant direction for challenging the
NCAA in regard to antitrust law are Adidas America, Inc. v. NCAA62
and O’Bannon v. NCAA.63
The first issue relevant to current NIL disputes is the threshold
question of whether a regulation is commercial or noncommercial. In
Adidas America, Inc. v. NCAA, the U.S. District Court for the District
of Kansas considered an antitrust suit brought by Adidas against the
NCAA.64 Adidas challenged the NCAA rule limiting the size of the
logos on players’ uniforms and equipment.65 The NCAA defended this
regulation, arguing this rule’s purpose is to, “(1) protect athletes
against commercial exploitation, (2) prevent colleges from turning
their athletes into billboards in pursuit of advertising revenues, and
(3) avoid excessive advertising that could interfere with the basic func-
tions of uniforms.”66 The court found logo restrictions protected the
interest of college sports, Adidas could advertise on professional sports
teams, and the logo restrictions did not impede Adidas’ ability to sell
uniforms.67 The challenged NCAA rule was noncommercial in nature,
the court held, and therefore was not subject to antitrust laws.68
Adidas America provides an important foundation for an under-
standing of antitrust decisions relating to college athletics because an-
titrust challenges address only commercial decisions.69 Rules that
contain both commercial and noncommercial effects may not be de-
cided under the Sherman Act.70 Therefore, any analysis of NIL regu-
lations would require an evaluation of whether the rule was
commercial in nature such that the court could consider an antitrust
challenge.
If a court did hold that regulation is strictly a commercial regula-
tion, only then would the court consider the regulation under
O’Bannon v. NCAA.71 In O’Bannon v. NCAA,72 the United States
Court of Appeals for the Ninth Circuit explicitly considered issues re-
62. 40 F. Supp. 2d 1275 (D. Kan. 1999).

63. 802 F.3d 1049 (9th Cir. 2015).
64. PORTO, supra note 39, at 181.
65. Id.
66. Id.
67. Id.
68. Id.
69. Zimbalist, supra note 60, at 342-343. See generally Adidas AM., Inc. v. Nat’l
Collegiate Athletic Ass’n, 40 F. Supp. 2d 1275 (D. Kan. 1999).
70. Id.
71. See O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1065-66 (9th
Cir. 2015) (noting the substance of a regulation is determinative and if a rule “is a
quintessentially commercial transaction[,]” it falls within the purview of the Sherman
Act).
72. O’Bannon, 802 F.3d at 1052.
lating to college athletes’ NIL. While there are many differences be-
tween O’Bannon and the newly proposed legislation being considered
now, the case offers insight into the legal issues courts may find most
important.
In O’Bannon, NCAA men’s football and basketball players chal-
lenged a NCAA rule prohibiting student athletes from profiting off
their NIL in video games and television broadcasts.73 To illustrate
how NIL in video games is possible, in O’Bannon for example,
O’Bannon saw a friend’s son playing a video game produced by Elec-
tronic Arts (“EA”).74 O’Bannon’s avatar was his image and was wear-
ing his retired UCLA jersey number.75 Specifically, the video
company EA Sports used O’Bannon’s NIL in a video game without
O’Bannon’s permission.76 Other markets that could be utilized for a
player’s NIL include broadcasting, retail merchandise, and online me-
dia outlets like Facebook or YouTube.77
O’Bannon sued the NCAA, alleging the NCAA violated antitrust
law by not allowing O’Bannon to profit off his NIL.78 O’Bannon ar-
gued that without the NCAA’s ban on NIL profit by players, he would
have been able to profit off his NIL used by EA Sports.79 As an initial
difference from the proposed legislation, O’Bannon involved scholar-
ships paid by member schools of the NCAA, whereas this Article and
the new legislation is addressing compensation by commercial enti-
ties, not payment by member schools.80 The O’Bannon plaintiffs chal-
lenged the NCAA regulation of payment by member schools under
Section 1 of the Sherman Act.81 As explained above, the Sherman Act
rejects “every contract, combination . . . , or conspiracy, in restraint of
trade . . . .”82
The court in O’Bannon held the sale of a player’s athletic ability is
a commercial behavior, passing the first threshold from Adidas
America.83 However, the court in O’Bannon acknowledged the dis-
crepancy in determining whether eligibility rules qualify as regulating
73. Id. at 1055.

74. David W. Kesselman, Big Stakes Antitrust Trials: O’Bannon v. National Col-
legiate Athletic Association, 25 J. ANTITRUST, UCL & PRIVACY SEC. ST. B. CAL. 135, 136
(2016) (asking Mr. Lehmann the facts giving rise to the lawsuit).
75. Id.
76. O’Bannon, 802 F.3d at 1055.
77. Agota Peterfy & Kevin Carron, Show me the Money! NCAA Considering Paying
Student-Athletes, 76 J. MO. B. 68, 70 (2020).
78. O’Bannon, 802 F.3d at 1055.
79. Id.
80. Id. at 1053.
81. Id. at 1055.
82. Id. at 1052 (quoting Sherman Act, 15 U.S.C.A. §1 (West 2004)).
83. Id. at 1065.
commercial activity.84 This court was convinced profiting off NIL is

commercial activity, even though both the United States Court of Ap-
peals for the Third Circuit and the United States Court of Appeals for
the Sixth Circuit have held eligibility rules to be noncommercial in
nature.85 Additionally, the Ninth Circuit did not address the court’s
determination in Adidas America that rules containing both commer-
cial and noncommercial effects may not be decided under the Sherman
Act.86 While the court in O’Bannon held the regulation to have a com-
mercial effect, other courts have held differently.
After the O’Bannon court determined the NCAA’s prohibition on
athletes being paid for their NIL constituted a Section 1 claim under
the Sherman Act, the court applied a Rule of Reason analysis to deter-
mine whether the procompetitive effects outweighed the anticompeti-
tive effects.87 The Rule of Reason includes three steps. First, the
NCAA’s rules must have anticompetitive effects on the college educa-
tion market.88 Second, the NCAA must offer procompetitive purposes
for its rules.89 Third, the court considers whether there is a substan-
tially less restrictive alternative.90
The plaintiff has the initial burden of showing significant an-
ticompetitive effects.91 The plaintiffs argued that had the regulations
not existed, other NCAA schools would compete to offer recruits com-
pensation for their NIL and the regulations fix part of the price the
schools pay to win over a player.92
The NCAA then had the burden of showing the procompetitive
effects.93 The NCAA offered four procompetitive purposes including
(1) preserving amateurism, (2) promoting competitive balance in
men’s football and basketball, (3) integrating academics and athletics,
and (4) increasing student output in college education.94 Courts have
recognized preserving amateurism as a procompetitive purpose to
maintain public interest in college athletics.95 In the appeal, the
NCAA focused its argument on the promotion of amateurism.96 The
NCAA provided data showing consumers favor amateur sports, and
84. Id.
85. Id.
86. Zimbalist, supra note 60, at 343.
87. O’Bannon, 802 F.3d at 1070.
88. Id. at 1057.
89. Id.
90. Id. at 1060.
91. Id. at 1070.
92. Id. at 1058.
93. Id. at 1070.
94. Id. at 1058.
95. GERALD GURNEY ET AL., UNWINDING MADNESS: WHAT WENT WRONG WITH COL-
LEGE SPORTS – AND HOW TO FIX IT 32 (Brookings Inst. Press 2017).
96. O’Bannon, 802 F.3d at 1072.
68.9% of consumers opposed paying men’s football and basketball

players.97 In a similar case, NCAA v. Board of Regents98, the United
States Supreme Court held the NCAA plays a “critical role” in main-
taining the tradition of amateurism in college sports.99 While the
O’Bannon court did not endorse the procompetitive justifications put
forth by the NCAA, the lack of a nationwide rule leaves room for
argument.
Lastly, the plaintiff had the burden of proving less restrictive al-
ternatives under the Rule of Reason.100 The court found a valid less
restrictive alternative, capping the permissible amount of payment at
the cost of attendance, and rejected a different alternative proposed by
the plaintiffs, allowing students to receive cash compensation for their
NIL untethered to their education.101
2. Case Law Areas of Concern

O’Bannon most closely addresses the issues surrounding college
athletes’ NIL, but the case leaves many areas unsettled and fails to
address the issues presented in the proposed Fair Pay to Play Act.102
First, a noncommercial regulation, which would be exempt from anti-
trust law, can still have a commercial effect under the Adidas America
framework.103 The line between eligibility regulations and commer-
cial regulations remains unsolved. O’Bannon failed to clarify how this
attenuated effect should be resolved.
Second, while O’Bannon held schools can compensate their ath-
letes to comply with antitrust laws, the situation at issue in O’Bannon
differs from that regulated by the new legislation.104 Under the pro-
posed Fair Pay to Play Act105, compensation does not come from the
schools but instead comes from third parties. This is not resolved
under O’Bannon, where the court decided the NCAA can restrict pay-
ment to full cost of attendance but does not address payment from
third parties.106
Third, amateurism serves a justifiable procompetitive purpose.107
Regulations put in place by the NCAA are often justifiable means of
97. Matthew J. Mitten, Why and How the Supreme Court Should Have Decided
O’Bannon v. NCAA, 62 ANTITRUST BULL. 1, 32 (2017).
98. 104 S. Ct. 2948 (1984).
99. NCAA v. Board of Regents, 104 S. Ct. 2948, 2970 (1984).
100. O’Bannon, 802 F.3d at 1070.
101. Id. at 1076.
102. CAL. EDUC. CODE § 67456 (2019).
104. O’Bannon, 802 F.3d at 1053.
105. Fair Pay to Play Act, CAL. EDUC. CODE § 67456 (2019).
106. Id.
107. Bd. of Regents, 104 S. Ct. at 2970.
maintaining competition.108 These regulations may include rostering

only full-time students, minimum initial academic eligibility, progress
towards degree, cap athletic eligibility, cap scholarship, and restrict
economic benefits.109 Proposed law conflicts with NCAA’s standards
of amateurism, which is that payment is only allowed to cover legiti-
mate educational expenses.110 The NCAA may impose some commer-
cial restraints if the purpose does not create unfair economic benefits
for the NCAA.111 The question remains if the restraint against ath-
letes profiting from their NIL creates unfair economic benefits for the
NCAA.
Lastly, courts lack uniformity in the rulings on NCAA regula-
tions. The United States Supreme Court has recognized the need to
allow the NCAA to superintend college athletics.112 There are dis-
agreements between circuits on cases involving the NCAA and pro-
posed reasons for regulations.113 The lack of legal reasoning should
instill little confidence in the O’Bannon case.114
The case law leading to this legislation has questionable applica-
bility. Adidas America leaves questions about whether something is
commercial in nature. O’Bannon fails to address this unresolved area
of law. While O’Bannon held schools can compensate players, this is
foundationally different from players being paid for their NIL from
third parties. Although these are the only cases available to apply to
future NIL legislation, there is a lack of uniformity.
IV. IF YOU’RE NOT FIRST YOU’RE LAST; NIL APPLIED TO

NCAA TODAY
A. FAIR PAY TO. . .PLAY?
It would be naive to address the controversy of college athletes
profiting off their “Name, Image, and Likeness” (“NIL”) without ad-
dressing the reality of where society is today. Through discussion of
the history of the National Collegiate Athletic Association (“NCAA”)
and NIL, we can now see the roadmap that led us to society’s position
today. While argument around college athletes being paid has been
passionately debated for years, one actor began walking the walk in-
stead of simply just talking the talk, forcing a response from the
NCAA.
108. Id. at 2968.

109. Mitten, supra note 96, at 6.
110. O’Bannon, 802 F.3d at 1075.
111. Id. at 1066.
112. Id. at 1074.
113. Id. at 1064.
California took the burden of being the first state to propose

change on the issue of college athletes being paid for their NIL. The
Fair Pay to Play Act, which is the bill the California legislature pro-
posed, would allow student athletes attending California colleges to
profit off their NIL without regulation from the NCAA.115 Notably,
the bill would still prohibit schools from paying their student ath-
letes.116 Proponents of student athletes being paid can throw out the
argument that a school is selling the jersey of a player and the player
is not profiting off the jersey because the source of that payment
would be from the school. Athletes would be able to profit off endorse-
ment deals from third parties.117 These endorsements could include
advertising on billboards, commercials, or social media.118
Not only does the bill allow players to profit from third parties,
but also prohibits the institution from reneging on a student’s scholar-
ship as a result of earning compensation for their NIL.119 The bill will
require representatives of student athletes (agents) to only be those
licensed by the state.120 Not only does your starting quarterback re-
ceive a full ride scholarship, but he also makes more money from spon-
sorships. The offensive line would never leave their quarterback out
to dry, but it seems the possibility of money would not hold the con-
verse true.
While California proposed the first bill, many other states fol-
lowed suit. There are commonalities between the states’ bills. One
similarity is the right to obtain an agent and the bar on athletes sign-
ing contracts that conflict with a university’s ongoing contractual obli-
gations.121 Many state bills include a variety of differences. Some
include trust funds or remedies for a violation by an institution.122
These differences will be problematic for the NCAA and for member
institutions.
While the NCAA seemingly agrees with the principles of the Cali-
fornia bill, there are areas the NCAA will attempt, and possibly suc-

116. A Quick Snapshot of 3 Things that California SB 206 Does, L.A. TIMES (Sept.
30, 2019), https://www.latimes.com/california/story/2019-09-30/la-me-college-athletes-
pay-sb-206-newsom-text-bill#:~:text=the%20landmark%20bill%20will%20prohibit,
any%20way%20from%20their%20sports.
117. Murphy, supra note 51.
118. Chip Scoggins, It’s About Time College Athletes get Paid for use of Their Name,
Image or Likeness, STAR TRIB. (May 3, 2020), https://www.startribune.com/it-s-about-
time-college-athletes-get-paid-for-use-of-their-name-image-or-likeness/570149061/.
119. § 67456
120. Id.
121. Nic Mayne & Max Forer, Full Court Press: Highlights from the State Legisla-
tion Forcing the Issue on NIL, JSEL (Aug. 31, 2020), https://harvardjsel.com/2020/08/
full-court-press-highlights-from-the-state-legislation-forcing-the-issue-on-nil/.
122. Id.
ceed, to de-escalate or destroy, which may be key features of the

California bill and others.123 First, the NCAA argues this issue is bet-
ter regulated at a national level.124 Second, the NCAA wants to en-
sure uniformity and a level playing field.125 Third, the NCAA wants
to avoid repeat costly litigation by ensuring this legislation would not
turn athletes into employees.126 Lastly, the NCAA strives to uphold
the student athlete ideal that the NCAA holds to ensure academics
continue to be of importance to the athletes, with the goal of playing
sports while earning a degree.127
B. NCAA’S RESPONSE
The NCAA responded to California’s proposed legislation by seek-
ing recommendations from each of the NCAA’s three divisions to cre-
ate flexibility in NIL rule changes.128 These recommendations
included proposals to amending bylaws and policies in response to this
legislation, to be reviewed by the NCAA after submitted.129 The
NCAA’s Board of Governors held a meeting in April of 2020 to address
some changes from a macro perspective.130
The NCAA claimed to support third party endorsements of stu-
dent athletes.131 These endorsements would allow student athletes to
hire agents and sign sponsorship deals without losing their amateur
status.132 However, questions still remain as to how the Fair Pay to
Play Act will play out. For example, the California bill requires repre-
sentatives of student athletes to be licensed by the state, a higher
threshold than the NCAA’s recognition of agents. This has not been
addressed in this discussion by the NCAA. One cannot help but won-
123. See generally Taking Action: Name, Image and Likeness, NCAA, http://
www.ncaa.org/about/taking-action (last visited Dec. 12, 2020) (outlining an interim plan
for Name, Image, and Likeness regulation that pushes back on proposed state bills).
124. Gillian R. Brassil, Senators Say N.C.A.A. Needs Broad Reform, N.Y. TIMES
(Jul. 23, 2020), https://www.nytimes.com/2020/07/23/sports/ncaa-NIL-rights.html.
125. Will Hobson, NCAA Softens on Allowing College Athletes to be Paid, but Pro-
vides few Specifics, WASH. POST. (Oct. 29, 2019), https://www.washingtonpost.com/
sports/colleges/ncaa-softens-public-stance-on-athlete-amateurism-provides-few-specif-
ics/2019/10/29/4378b1f0-fa7a-11e9-8906-ab6b60de9124_story.html.
126. Id.
127. Taking Action, supra note 122.
128. Id.
129. Board of Governors Starts Process to Enhance Name, Image and Likeness Op-
portunities, NCAA (Oct. 29, 2019), http://www.ncaa.org/about/resources/media-center/
news/board-governors-starts-process-enhance-name-image-and-likeness-opportunities.
130. Board of Governors Moves Toward Allowing Student-Athlete Compensation for
Endorsements and Promotions, NCAA (Apr. 29, 2020) [hereinafter Student-Athlete
Compensation], http://www.ncaa.org/about/resources/media-center/news/board-gover-
nors-moves-toward-allowing-student-athlete-compensation-endorsements-and-
promotions.
132. Id.
der if California’s guidelines on state licensed agents would be

adopted, rejected, or further constrained. A second determination
from the meeting was that student athletes would be allowed to be
identified by sport and school, however, the use of conference or school
logos or trademarks would not be permitted.133 Third, and perhaps
the most important, yet confusing for those with casual interests in
this arena, is the idea that universities NEVER pay the student ath-
lete.134 As emphasized before, to understand compensation for NIL,
the differences between payment for NIL and Pay for Play must be
understood. A further restriction is the assurance that boosters of a
university cannot use NIL for recruitment purposes.135 But where is
this line drawn? What happens if a booster owns an automotive shop
that wants to sponsor a player? Is this pay for play or paying for NIL?
In April of 2020, the Board of Governors for the NCAA discussed
allowing student athletes to profit off their NIL. The April meeting
had a tone that was seemingly forward looking; however, it was not
without the NCAA addressing the hurdles the divisions would be
forced to overcome in order to establish a system of payment for NIL.
These challenges include ensuring federal preemption over state NIL
laws, a possible “safe harbor” for NCAA against lawsuits for NIL, safe-
guarding non-employment status, distinction between college and pro-
fessional athletics, and upholding NCAA’s values including diversity,
inclusion, and gender equality.136 Even those excited over the pro-
gress have to admit the final product will likely not be a free mar-
ket.137 Committees will review current rules and suggest changes,
which the membership will vote on in January of 2021.138
V. COMMODIFICATION CONCERNS: COSTS TO COLLEGE

ATHLETICS IF ATHLETES ARE PAID FOR NIL
The commodification of college athletes “Name, Image, and Like-

ness” (“NIL”) introduces a series of harmful consequences.139 Coer-
cion relies on the notions of autonomy, consent, and inequality.140
Every school, and state, will be coerced into allowing athletes to profit
off their NIL. Corruption is the idea “that an exchange ‘corrupts,’
133. Student-Athlete Compensation, supra note 129.

134. Id.
136. Student-Athlete Compensation, supra note 129.
139. Glenn Cohen, The Price of Everything, the Value of Nothing: Reframing the
Commodification Debate, 117 HARV. L. REV. 689, 690 (2003).
140. See generally MICHAEL SANDEL, WHAT MONEY CAN’T BUY: THE MORAL LIMITS OF
MARKETS 94-96 (Grethe B. Peterson ed., 2000).
‘taints,’ or ‘denigrates’ the things being exchanged.”141 Corruption

happens when exchanges cause harm to our judgment.142 Both aca-
demics and the student body of institutions will be corrupted by al-
lowing players to profit off their NIL.143 If sponsorship money is
allowed to pass over the schools straight to the athletes, this will lead
to a reduction in college athletics. By acknowledging these harmful
consequences could occur, the implementation of legislation could at-
tempt to address and mitigate this impact.
A. ANYTHING YOU CAN DO I CAN DO BETTER: COERCION

“Recruiting is the lifeline to your program.”144 Sonya Locke, head
coach of Southern Illinois University volleyball, states the thoughts of
all successful college athletic programs. If schools start at different
thresholds with recruitment resources, the upper hand would be an
insurmountable obstacle. The recruitment resource here is whether
the state where the college is located would allow student athletes to
profit off their NIL. Imagine you are a top football recruit graduating
from high school. Schools in California offer you a full ride scholar-
ship. A list of companies also contact you and mention that if you live
in California, they will offer you sponsorships to their clothing com-
pany. Your other option, Oregon, can only (“only”) offer you a full ride
scholarship. Do we even pretend to entertain the idea that the major-
ity of students would not choose the extra cash? The National Col-
legiate Athletic Association (“NCAA”) spans America, yet the laws
concerning NIL now vary by state. As mentioned, California was the
first state to propose a bill allowing students to profit off their NIL.145
In order for all other schools to remain competitive, all other states
will have to create laws to compete against the bill proposed in
California.
This behavior is a textbook case of coercion known as the College
Arms Race. The College Arms Race is the extreme lengths colleges
will go to in order to compete with one another in terms of amenities,
ranging from stadiums to college coaches’ salaries to training com-
plexes.146 Within the first month after California proposed their bill,
141. Cohen, supra note 138, at 691.

142. Id. at 692.
143. SANDEL, supra note 139 at 60-61.
144. Gus Bode, Coaches use Recruiting to Breathe Life Into Collegiate Sports, DAILY
EGYPTIAN (Jun. 25, 2002), https://dailyegyptian.com/32697/archives/coaches-use-recruit-
ing-to-breathe-life-into-collegiate-sports/.
145. Matt Norlander, California Governor Signs law Allowing College Athletes to be
Paid for Name, Image and Likeness as NCAA Protests, CBS SPORTS (Sept. 30, 2019),
https://www.cbssports.com/college-basketball/news/california-governor-signs-law-al-
lowing-college-athletes-to-be-paid-for-name-image-and-likeness-as-ncaa-protests/.
ten other states added legislation.147 As of September 2020, at least

twenty states have either passed or considered passing NIL laws.148
This pressure on states boils down to a state having two options: pass
a law or be a loser.
Coercion focuses on unequal access to an opportunity, given an
unfair distribution of the opportunity.149 The opportunity with une-
qual access is recruiting the top athletes coming out of high school.
The unfair distribution equates to the states that approve a bill versus
the states that do not approve a bill to allow players to profit off their
NIL. If some states are in the position to allow players to profit off
their NIL and some states are not in the position to pass a bill of this
type, the schools in the states which allow athletes to profit will have a
competitive edge in recruiting higher valued players.150 Therefore, all
states will be coerced to passing this law or forfeit their competitive
edge, and revenue, for their schools.151
This scenario has played out in college sports before. Overturning
the Sanity Code was an early example of this. Southern schools, in an
attempt to compete with wealthy Eastern and Midwest schools, gave
out unrestricted subsidies to student athletes.152 Southern schools
were giving aid to all student athletes, whereas Midwest and West
schools forbid athletic scholarships.153 Eventually, the southern
schools forced the rest of the member institutions’ hands and scholar-
ships are now the norm, and in fact expected, for most student
athletes.154
B. NOT EVERYONE’S A WINNER: CROWDING OUT
Allowing college athletes to profit from their NIL also risks crowd-
ing out other sports and athletes—causing detrimental effects for
schools, athletic programs, and individual athletes. Sponsorship
money goes somewhere other than the players right now and propo-
147. Thomas Baker, 5 Issues to Keep an eye on With the NCAA’s new NIL Policy,
FORBES (Nov. 1, 2019), https://www.forbes.com/sites/thomasbaker/2019/11/01/examin-
ing-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#6caa11337591.
148. Dennis Dodd, Bipartisan Name, Image, Likeness Bill Introduced to U.S. House
Would Supersede State laws for College Athletes, CBS SPORTS (Sept. 25, 2020), https://
www.cbssports.com/college-football/news/bipartisan-name-image-likeness-bill-intro-
duced-to-u-s-house-would-supersede-state-laws-for-college-athletes/.
150. Julie Jag, As NCAA Digs in Against new law Allowing College Athletes to Profit
from Their Likenesses, Utah Athletes, Officials Weigh in, SALT LAKE TRIB. (Oct. 4, 2019),
https://www.sltrib.com/sports/2019/10/05/ncaa-digs-against-new/.
151. Id.
152. CHUDACOFF, supra note 31, at 8.
153. Id. at 10.
154. Id. at 11.
nents of players’ ability to profit are arguing this money should be

going to the players as the owners.
Chancellor Rebecca Blank of the University of Wisconsin offers an
insight into what money means for the NCAA. She wrote, “ ‘[t]he busi-
ness model for college athletics is greatly misunderstood by the pub-
lic . . .We’re not running sports to primarily make money.’ ”155
A peek into the NCAA finances shows the amount of money it
takes to run a system this complex. A 2016 study on FBS program
finances including all sports found the University of California Berke-
ley carried a total debt load of $445 million, the Clemson University
program has $225 million in debt, and the University of Michigan has
more than $200 million in debt. These programs at this time are re-
ceiving capital from media revenues and sponsors, and this debt will
only increase without that additional revenue.156
Take March Madness for example. The NCAA only receives about
4% of the revenue it makes from that tournament and puts it towards
the organization’s operating expenses.157 This revenue is distributed
to each of the individual teams and respective conference.158 This
money is not going to the big bad NCAA. Instead, the money the
NCAA keeps is used only to continue to have a national college sports
system. Understanding the financial structure of the NCAA shows
the money being demanded for NIL by student athletes will throw a
ripple effect through the whole NCAA in terms of money needed by
schools to keep the NCAA’s operations afloat.
While certain basketball and football programs are in the positive
for the amount of revenue earned, these resources from sponsors and
other revenue sources are also funneled to keeping other sports alive.
These include other men’s sports, women’s sports, and Olympic sports
which universities are training athletes for.159 In response to the
question of “what happens when car dealerships and restaurants start
putting their dollars toward paying a school’s point guard for endorse-
ments instead of donating those funds to the athletics program,” Rod
Smith, Director of the Center for Constitutional Studies at Utah Val-
ley University, responded that “it could result in less money for lower-
profile women’s and Olympics sports.”160
155. Alexa Heller, Chancellor Blank Stands with NCAA Amateurism at NIL Con-
gressional Hearing, U. WIRE (Sept. 16, 2020), https://du.idm.oclc.org/login?url HT tps://
www-proquest-com.du.idm.oclc.org/docview/2442965897?accountid=14608.
157. Tim Parker, How Much Does the NCAA Make off March Madness?, INVES-
TOPEDIA (Oct. 31, 2019), https://www.investopedia.com/articles/investing/031516/how-
much-does-ncaa-make-march-madness.asp.
158. Id.
160. Jag, supra note 149.
Cutting Olympic sports programs has impacts which would be felt

by the whole school. For example, the University of California, Los
Angeles (“UCLA”) was forced to cut men’s swimming and men’s gym-
nastics, even though several Olympians had competed for UCLA.161
In fact, the U.S. Olympic and Paralympic Committee reported 88% of
Summer Olympians in 2016 played their sport in college.162 In 2019,
141,483 collegiate athletes were also Olympians.163 These sports can
bring in millions of dollars and fill classrooms with athletes who are
paying tuition.164 According to the Intercollegiate Coach Association
Coalition, in 2019, Olympic sports athletes brought in $3.6 billion in
tuition for their universities.165 If schools lost revenue from sponsors,
sports producing Olympians would inevitably be cut, crowding out cer-
tain sports, Olympians, other athletes, and ultimately hurt colleges
financially.
C. IT’S JUST NOT THE SAME: CORRUPTION

Creating a space for the commodification of NIL in college sports
would corrupt the academic institutions as well as the college sports
themselves.
1. Academics
Many critics of college sports argue that college sports contami-
nate our higher education institutions. While some argue that stu-
dent athletes’ focus on academics is insufficient,166 the athletic
programs are still founded through universities that focus on educa-
tion.167 Maintaining high academic integrity is a goal of the NCAA
and encouraging athletes to shift focus to profiting off their NIL will
not only sever the connection between college athletes and higher edu-
cation but will actually diminish the academic institutions
themselves.168
These ideas are not inherently incompatible with one another.
Studies of athletes’ brains compared to those in the general public
show that athletes have greater mental processing and learning abili-
161. Ross Dellenger and Par Forde, A Collegiate Model in Crisis: The Crippling Im-
pact of Schools Cutting Sports, SPORTS ILLUSTRATED (June 11, 2020), https://
www.si.com/college/2020/06/11/college-sports-program-cuts-ncaa-olympics.
162. Id.
163. ICAC Open Letter, INTERCOLLEGIATE COACH ASS’N COAL. (Apr. 21, 2020), https:/
/www.savecollegesports.com/latest/exploring-l27c5.
164. Dellenger & Forde, supra note 161.
165. Id.
166. Kristin R. Muenzen, Weakening It’s Own Defense? The NCAA’s Version of Ama-
teurism, 13 MARQ. SPORTS L. REV. 257, 261 (2003).
ties that apply in contexts other than sports.169 Exercise helps keep a
person’s brain sharp in a number of ways from improving memory to
creating new brain cells.170
College sports have already touched the academics of universities
with the commercial focus of the NCAA.171 Some argue the “integrity
and reputation of our universities” have already been threatened by
college sports. The combination of college sports at academic universi-
ties, also called the “edutainment industry,” has many critics who are
not impressed with the commercial growth in this area.172 The NCAA
has undertaken many reforms to address these concerns, but the
money flowing through the commercialization can’t be stopped.173
Written in the Carnegie Foundation’s reports from as early as 1929,
the authors described how college football has changed into a commer-
cial sport. The report states, “[t]he athletes who take part in it have
come up through years of training; they are commanded by profes-
sional coaches; little if any initiative of ordinary play is left to the
player. The great matches are highly profitable enterprises.”174 This
perspective recognized the problems with commercializing college ath-
letics as early as the 1920s. This was even before the first televised
NCAA football game.175 The Carnegie Foundation found that the
commercialization was causing a diminishing of education and intel-
lectual values with the victim being the student athlete.176 Allowing
students to be paid for their NIL would not lessen this, in fact it would
worsen the issue of contaminating our higher institutions.
2. Student Body
While the NCAA Constitution unambiguously states the student

athlete is to be integrated into the general student body, having play-
ers earning hundreds of thousands or millions of dollars would create
169. Jocelyn Faubert, Professional Athletes Have Extraordinary Skills for Rapidly
Learning Complex and Neutral Dynamic Visual Scenes, 3 SCI. REP. 1, 1 (2013).
170. 5 Mental Benefits of Exercise: From Less Stress to a Boost in Self-Esteem, Exer-
cise is as Great for Your Brain as it is for Your Body, WALDEN UNIV., https://
www.waldenu.edu/online-bachelors-programs/bs-in-psychology/resource/five-mental-
benefits-of-exercise (last visited Aug. 25, 2021).
172. Larry LaForge & Janie Hodge, NCAA Academic Performance Metrics: Implica-
tions for Institutional Policy and Practice, 82 J. OF HIGHER EDUC. 217, 218 (2011).
174. Id.
175. Eric Vander Voort, The First Televised Football Game was Played Sept. 30,
1939, NCAA (Sept. 30, 1939), https://www.ncaa.com/news/football/article/2019-09-27/
first-televised-football-game-was-played-sept-30-1939#:~:text=the%20first%20televised
%20football%20game,30%2C%201939%20%7C%20NCAA.com.
upper and lower classes of students at the school.177 Any eighteen-

year-old has experienced the popularity hierarchy in any high school,
which is only exaggerated in college, of athletes being at the top of the
food chain. Discipline for harassment is not foreign to jocks.178 Ath-
letes are often deemed as part of an “exclusive group that is perceived
as a conceited elite.”179 In fact, athletes are already exposed to supe-
rior opportunities over their general peers through preferential class
enrollment, private tutors, on-staff doctors, shoes, and apparel.180
Commodification of NIL in college sports would corrupt the aca-
demic institutions because it would encourage the division between
student athletes and the general student population and further sex
and party culture in college athletics. Identifying as an athlete pres-
sures the stereotypical expectations including substance abuse and
unsafe sex.181 Additionally, some college athletes use illegal perform-
ance enhancing drugs and alcohol.182 Athletes tend to be more sexu-
ally active and may practice risky sexual behaviors including more
partners and less contraceptive use.183
An athlete having different values than the rest of the student
body could be harmful because it may diminish interactions with non-
athletes and support the idea of “athletic subculture,” which involves
more partying and less time attending cultural events.184 The issue is
not the physical money, but the power that comes along with the
money.185 Large sums of money would divide student athletes and
others on campus.186 When people have different sized bank ac-
counts, this causes social discomfort and injures relationships.187
Children even recognize athletes as more popular among their
peers.188 A study of high school students’ attitudes in the 1950s found
177. Zimbalist, supra note 60, at 339-40.

178. About Jocks as a Youth Subculture, CTR. FOR MENTAL HEALTH SCH. UCLA 1
http://smhp.psych.ucla.edu/pdfdocs/youth/jocks.pdf (last accessed Dec. 15, 2020).
179. Id.
180. Dan Levy, Paying College Athletes is Possible, if the NCAA System gets Broken
(or Fixed), BLEACHER REP. (Sept. 12, 2013), https://bleacherreport.com/articles/1771951-
paying-college-athletes-is-possible-if-the-ncaa-system-gets-broken-or-fixed.
181. About Jocks as a Youth Subculture, supra note 178, at 2.
182. Id.
183. Anette M. La Greca et al., Adolescent Peer Crowd Affiliation: Linkages with
Health-Risk Behaviors and Close Friendships, 26 J. PEDIATRIC PSYCHOL., 131, 132
(2001).
184. Elizabeth Aries et al., A Comparison of Athletes and Nonathletes at Highly Se-
lective Colleges: Academic Performance and Personal Development, 45 RES. HIGHER
EDUC. 577, 597-98 (2004).
185. Jennie Yabroff, Money Changes Everything, N.Y. TIMES (May 7, 2006), https://
www.nytimes.com/2006/05/07/fashion/sundaystyles/07friendss.html.
186. Beal, supra note 59, at 788.
187. Yabroff, supra note 185.
188. See generally Hugh Troy Buchanan et al., Academic and Athletic Ability as
Popularity Factors in Elementary School Children, 47 RES. Q. 320 (2013) (examining
the students valued sports, dating, and cars more than education be-
cause good grades don’t translate into popularity.189 A second study
conducted from the 1970s-2010s found that being a good athlete has
remained the most telling characteristic of being popular in high
school.190 Blame it on stereotypes, blame it on the media, blame it on
the patriarchy. But the fact is that it exists and permeates the minds
of young children through adults. Money would further divide the hi-
erarchy of the students within the school.
3. Bigger Doesn’t Always Mean Better

Corruption occurs when goods that should be placed in different
spheres, for example, professional athletes being paid compared to
amateur student athletes, are forced to be valued the same way.191 To
determine why these goods should be placed in separate spheres, one
can look to either prevailing social norms (conventionalism) or by in-
quiring into the “essence” of the good.192 Both paths reiterate the dif-
ferences between professional athletes who are paid and amateur
athletes who are not paid.
Conventionalism is the idea that society recognizes differences be-
tween two ideas (in this case, college and professional sports) and
making it for sale changes how we value it.193 Conventionalism is
used to determine which exchanges should not be allowed relative to a
specific society at a specific time.194 Two areas that highlight society’s
recognition of the differences between college and professional sports
are first, society’s preference for college sports over professional sports
and second, the history of society’s preference to drawing a line be-
tween the two. These two displays of society’s preference between am-
ateur and professional sports through athletes profiting off their NIL
is harmful to how we value amateur sports because it blurs and essen-
tially eliminates the line between college and professional sports,
which we value differently.
Society’s actions show people recognize differences between ama-
teur sports and professional sports. The appreciation for college foot-
ball is much broader than professional football.195 The fans prove
this. The NCAA Division I football league, the FBS, had a total at-
elementary children’s attitudes towards athletic success, academic success, and

popularity).
189. Philip Veliz, Too Cool for School?, 14 SAGE PUBL., INC., 70, 70 (2015).
190. Id. at 70-71.
192. Id. at 693.
195. Douglas S. Looney, For College Fans, More Than a Game, 91 CHRISTIAN SCI.
MONITOR (Jan. 8,1999), https://www.csmonitor.com/1999/0108/p12s1.html.
tendance of 37,913,238 people in the year 2014.196 To compare, the

National Football League’s (“NFL”) total attendance was 17,606,643
people in attendance.197 In 2015, the Dallas Cowboys had the highest
average attendance of the NFL with 91,459 average attendees.198
Very impressive numbers, but amateur (pun intended) to the eight
NCAA teams with a higher average attendance in 2015 including the
University of Michigan (110,168), Ohio State University (107,244),
Texas A&M (103,622), Louisiana State University (102,004), Univer-
sity of Alabama (101,112), University of Tennessee (100,584), Penn
State University (99,799), and the University of Georgia (92,746).199
What makes college athletics different and more appealing for fans as
compared to professional sports?
As opposed to professional sports, more Americans have personal
ties with the programs offered by the school, whether they be former
players, alumni of the school, parents of students, or, most signifi-
cantly, students who attend the schools for their academic programs
or libraries or to tailgate in front of the roaring college stadiums.200
In professional sports, excitement only comes from winning because
the focus is on the sports as a business.201
The second way society recognizes differences between college and
professional sports is by acknowledging the historical path college
sports took. Amateurism was originally invented by elite British to
hold themselves higher than those in a lower social class.202 This idea
was translated to America for collegiate athletes to appear to be above
the “crass commercialism and professionalism” in professional
sports.203 The history of amateurism puts students above profes-
sional athletes.204 Additionally, claiming amateur status had federal
and state tax exemptions and workers’ compensation exemptions.205
Proponents of players profiting off their NIL argue there are already
many similarities between college and professional sports.206 Both
196. Jeffrey A. Mankin et al., The Effectiveness of College Football Recruiting Rat-
ings in Predicting Team Success: A Longitudinal Study, 14 RES. BUS. AND ECON. J. 1, 3
(Feb. 5, 2015).
197. Id.
198. NFL Attendance - 2015, ESPN, http://www.espn.com/nfl/attendance/_/year/
2015 (last visited Dec. 14, 2020).
199. 2015 National College Football Attendance, NCAA FOOTBALL ATTENDANCE,
http://fs.ncaa.org/Docs/stats/football_records/Attendance/2015.pdf (last visited Dec. 14,
2020).
200. Looney, supra note 195.
201. Id.
202. RONALD A. SMITH, PAY TO PLAY 96 (Univ. Of Ill. Press 2011).
203. Id.
204. Id. at 96-97.
205. Id. at 96.
206. Mitten, supra note 96 at 3.
college and professional sports are entertainment products and both

have great commercial value based on consumer popularity.207 The
similarities between college and professional sports are undeniable,
however a line still has to be drawn to maintain the difference be-
tween amateur and professional sports. The history of amateur sports
show society intended a division of sports separate from professional
sports. By allowing further commodification of players’ NIL, we move
away from society’s historical preferences for a division between ama-
teur and professional sports.
Disregarding the historical preference for amateur sports over
professional sports would mean schools would end academic centered
college athletics and form a minor league.208 These new professional
leagues would not be a part of the educational universities and would
become just as popular to America’s fans as minor leagues are to-
day.209 If you aren’t familiar with minor leagues in America, there’s a
reason for that. It has been projected that consumers would lose in-
terest if athletes received NIL payments, based on the way Americans
have historically valued amateur status.210 Allowing the commodifi-
cation of athletes’ NIL would change the way society values it.
Essentialism is the idea there is something objective in the good
that requires a particular way of valuation.211 The good in this scena-
rio, college athletics, has something objective about it which requires
us to value college athletics a particular way. The essence of college
athletics is more similar to the essence of other competitions involving
amateur athletes than to the essence of professional athletics.
Auslaut, erysipelas, bougainvillea, aiguillette, pendeloque,
palama, cernuous, and odylic. These eight words made up the final
eight contestants’ given words to be a part of the eight-way tie in the
Scripps National Spelling Bee in 2019.212 Ranging from twelve years
old to fourteen years old, these eight students can spell words even the
most highly educated people can’t pronounce.213 In fact, the competi-
tion actually “ran out” of challenging words for these genius children
to spell, leading to the eight-way tie.214 Although these kids can spell
207. Id.
209. Zimbalist, supra note 60, at 339-40.
210. Id. at 344.
212. Octochamps: Eight Times the Glory, NAT’L SPELLING BEE, (May 31, 2019), http:/
/spellingbee.com/sites/default/files/inline-images/Multiple%20Champs%20declared
%20for%202019%20Scripps%20National%20Spelling%20Bee%205-31-19.pdf.
213. Id.
214. Marissa Perino, 8 Finalists Were Named Co-Champions of the 2019 National
Spelling Bee – Here are the Definitions of all the Winning Words From the Last 25 Years,
BUS. INSIDER (May 31, 2019), https://www.businessinsider.com/winning-words-national-
spelling-bee-past-25-years-2019-5.
words ranging from medical terms to political jargon, picturing them

to be at the same place in their sports’ (yes, it’s technically a sport)
careers as Tiger Woods or Megan Rapinoe is a stretch. Yet there are
similarities. Any person can place a prop bet on anything ranging
from gender, ethnic background, and even physical appearance
(braces or no braces, glasses or no glasses) on these children who
range from six to fifteen years old.215 So what is the difference be-
tween placing them as synonymous athletes with the Professional
Golfers’ Association (“PGA”) legend and United States Women’s Na-
tional Team (“USWNT”) world champion? There is something essen-
tially special about a six-year-old spelling bee participant which we
want to preserve, which is why betting on these whiz children might
rub you the wrong way.
Amateur. A-M-A-T-E-U-R. Amateur. These spelling champions
would have no problem spelling that word in their sleep. Maybe after
asking for a definition first to buy some time. An amateur is, “one who
engages in a pursuit, study, science, or sport as a pastime rather than
as a profession.”216 Some may argue these kids are not amateurs in
the Spelling Bee, and, actually, have more similarities to Tiger Woods
and Megan Rapinoe. In fact, the 2004 Spelling Bee champion studied
months upon months, seven days a week.217 However, there is still
something essentially different between these amateur contestants
and professional athletes. This is shown by the nature of the prop bet.
Prop bets are the only betting options available for sofa spuds to
make while snickering as these kids’ dreams are crushed when they
can’t spell the word “tettigoniid” and walk off the stage crying.218
Prop bets are those which do not bet on an outright winner of the
event.219 A similar prop bet in professional sports would be betting on
how long the National Anthem would take before a game or if the coin
toss will be heads or tails. Around the world, in every society, the only
bets allowed on the Spelling Bee are prop bets. It is the essence of the
good, amateur children spellers, which show why we only allow prop
215. Spelling Bee Betting Guide, CURRENT SPORTS BETTING, https://

www.currentsportsbetting.com/guide/spelling-bee/ (last visited Dec. 15, 2020); see also
Ryan Kilpatrick, The Youngest Contestant in this Year’s Scripps National Spelling Bee
Has Been Disqualified, TIME (June 1, 2017), https://time.com/4800680/scripps-spelling-
bee-youngest-speller/#:~:text=her%20competitors%20range%20from%20eight,no
%20minimum%20age%20to%20qualify.
216. Amateur, MERRIAM-WEBSTER.COM DICTIONARY, https://www.merriam-web-
ster.com/dictionary/amateur#:~:text=1%20%3A%20a%20person%20who%20takes,expe-
rience%20or%20skill%20in%20it (last visited Dec. 5, 2020).
217. Chris Tognotti, How Much Spelling Bee Contestants Actually Study Will Make
Your Head Spin, BUSTLE (May 30, 2018), https://www.bustle.com/p/how-much-do-spell-
ing-bee-contestants-study-it-takes-a-ton-of-effort-9216199.
218. Spelling Bee Betting Guide, supra note 215.
219. Id.
bets. These contestants are children. A child ranging from just learn-
ing to tie their shoes and beginning kindergarten to a child who can
spell unthinkable words but can’t yet drive a car. These contestants
are children who are not capable of dealing with pressure from betters
who wagered far more money than the kids receive in allowance each
week, on them winning the whole championship.220
You might be wondering why I am comparing this six-year-old lit-
tle girl in pigtails in a spelling bee and an eighteen-year-old playing
college sports who has been the head of his household since the end of
his adolescence. The essence of the goods in both circumstances ex-
hibit why placing them in the same sphere as professional sports is
corrupting the good. We value college athletics in a unique way be-
cause we want to protect student athletes from exploitation by com-
mercial businesses.221 We value Spelling Bee participants in a unique
way (by only allowing prop bets) because we want to protect these
competitors from exploitation by commercial businesses.222 Amateur
competitors have something objective that requires a particular way of
valuation. A different example, more similar to college athletics, may
help to show the essence of the Spelling Bee participants and college
athletes are similar.
Essentialism claims the good requires the specific valuation of a
good objectively, which means unchanging over place and time.223
College athletics require a specific valuation based on the essence of
amateur athletics. A similar path was taken by the Olympic games.
A key feature of essentialism is the value of the good is objective,
meaning it doesn’t change among different societies.224 The Olympics
embody this because it involves participants from around the world.
The debate of whether the Olympics should involve only amateurs
has been a heated one since the mid 1900s.225 In 1955, International
Olympic Committee (“IOC”) President Avery Brundage stated, “[w]e
can only rely on the support of those who believe in the principles of
fair play and sportsmanship embodied in the amateur code in our ef-
forts to prevent the Games from being used by individuals, organiza-
tions or nations for ulterior motives.”226 Revenue generated outgrew
220. Id.
222. Spelling Bee Betting Guide, supra note 215.
224. Id.
225. Ross Andrews, Push to Allow Professional Athletes Took Hold in 1968 Olympic
Games, GLOB. SPORT MATTERS (Oct. 15, 2018), https://globalsportmatters.com/mexico/
2018/10/15/professional-athletes-1968-olympic-games/.
226. Bob Greene, What Changed the Olympics Forever, CNN (July 23, 2012), https://
www.cnn.com/2012/07/22/opinion/greene-olympics-amateurs/index.html.
the value of amateur athletics, however, both remained distinct

values.227
The IOC recognizes 205 countries around the world as partici-
pants in the Olympics, making the value of the Olympic Games not
dependent on certain societies’ valuations.228 In the year 2000, the
IOC saw the need to establish anti-gambling rules to avoid corruption
such as preventing athletes from betting on themselves.229 Keba
Mbaye, Chairman of the IOC Ethics Commission from Senegal, de-
scribed betting on Olympic athletes as being in contradiction with eth-
ical principles of Olympism.230 Proponents of gambling argued it
could be used in some nations to pay for Olympic athletes.231 How-
ever, this source of financing is hypocritical to the amateur principles
of the Olympics. “In the current market where large amounts are wa-
gered and often poorly-funded athletes have a chance to land endorse-
ments, corruption ranks equally with doping in the sense of having
the potential to destroy the fundamental integrity of [the] sport.”232
The obsession with two different teams proves the difference in es-
sence between amateur and professional Olympic teams.
In 1992, the United States put forward the Dream Team to com-
pete in men’s basketball at the Barcelona Olympics.233 This team
won by an average of forty-four points without a single timeout during
the whole Olympic tournament.234 This spread was not a surprise to
anyone in the world. Instead, people are much more enamored by the
1980, “Do you believe in miracles?” hockey team.235 This team was
admired by the public because the players had the status of true ama-
teurs against a not-so-amateur Soviet Union.236 The movie created
about this game summed it up. “A few years later, the U.S. began
using professional athletes at the Games – Dream Teams. I always
found that term ironic because now that we have Dream Teams, we
seldom ever get to dream.”237 It is worthy to note the thrilling game
celebrated around the world was not even the Olympic finals, yet it is
227. Andrews, supra note 225.

228. About the Olympic Games, TOKYO 2020, https://olympics.com/tokyo-2020/en/
games/olympic-games-about/ (last visited Dec. 15, 2020).
229. Sally Melissa Gainsbury, Gambling on the Olympics, 2 INT’L GAMBLING STUD.
1, 2 (2010).
230. Id. at 3.
231. Id.
232. Id.
233. Greene, supra note 226.
234. Id.
235. Id.
236. Id.
237. MIRACLE (Walt Disney Pictures 2004).
one of the most recognized games in Olympic history.238 A team full of

amateurs fully encompasses the essence of the Olympic spirit over the
NBA-player filled Dream Team.
Disregarding the essence of amateur sports and requiring them to
have the same valuation as professional sports corrupts the existence
of college sports. While professional sports are strictly profit-driven
commercial enterprises, amateur athletes are motivated by educa-
tional, physical, mental, and social benefits from playing college
sports.239 Opponents will argue this is a scam the NCAA claims in
order to use the athletes for school profit.240 However, we have seen
the unique essence of amateur athletes in other competitions not in-
volving the NCAA as explained above. Placing elementary school chil-
dren in the same sphere as professional athletes corrupts the
sympathy we have for these children as they strive to win the champi-
onship they have trained months for. Putting money on whether the
winner will have glasses takes away from the fact a fifteen-year-old is
more brilliant than the spell-check we all are reliant on in our emails.
Rostering a professional-filled team in basketball corrupted the excite-
ment the world could have experienced if we rostered a second Miracle
team, just this time in basketball. Disregarding the essence of ama-
teur sports will corrupt college sports by valuing them the same as
professional sports.
There are athletes who recognize the essence of amateur athletics
as well.241 The NCAA has a student-advisory committee, consisting of
undergraduate athletes, who indicate their concerns over the unknow-
able consequences of allowing students to sell their NIL.242 Exploita-
tion is a major concern of current student athletes.243 By placing
college athletics in the same sphere as professional sports, similar to
placing child spellers and underdog Olympians in the same sphere as
professional athletes, it corrupts the way we value college athletics.
VI. IF LEGALIZED, HOW TO REGULATE?

College athletes profiting off their “Name, Image, and Likeness”
(“NIL”) is a dynamic area with both predictable and unpredictable
238. Timothy Rapp, Olympic Games: The Biggest Upsets in its History, BLEACHER
REP. (Dec. 14, 2011), https://bleacherreport.com/articles/933454-the-biggest-upsets-in-
olympic-games-history.
240. David Andrews, NCAA and Student-Athletes: Exploitation and Inequity, U.
WIRE (2015).
241. Branch, supra note 2.
242. Evan Kolin, Duke Athletics’ Kevin White Releases Statement on ‘Complications’
of the NCAA NIL Decision, U. WIRE (June 2020), https://du.idm.oclc.org/login?url HT tps://
www-proquest-com.du.idm.oclc.org/docview/2410857744?accountid=14608.
243. Id.
challenges along the way.244 Addressing specific solutions to imple-

ment endorsements for college athletes is beyond the scope of this Ar-
ticle; however, the following are a few concerns to consider before and
while changes in college athletics are made.
There will be many questionable legal relationships between the
individual athlete, the sponsor companies, the schools, the compliance
officers, and the NCAA. One concern is determining which endorse-
ments athletes could take. Compliance officers would be expected to
take the role of an agent, approving or disproving the sponsorship op-
portunity or offering advice.245 The compliance officer would rely on a
university’s general counsel to evaluate many deals and accept or re-
ject endorsements.246 For example, the NCAA would prohibit en-
dorsements inconsistent with NCAA values, such as alcohol, tobacco,
and gambling.247 On an individual level, private or religious schools
might have different values than a public university.248 Additionally,
other antitrust considerations could arise, such as banning businesses
who have been involved in recruiting infractions from compensating
athletes for NIL.249 There are plenty of opportunities for legal
challenges.
A second major concern is the need to ensure payment for NIL is
not a cover-up for pay for play.250 This would include boosters using
NIL payments as a recruiting tool.251 Relying on individual schools to
enforce recruiting violations would not have much teeth to it consider-
ing most schools are cheerleaders for these athletes and don’t typically
give donors a hard time.252 Drawing the line on what is pay for play
and what is a permissible endorsement will be difficult to keep consis-
tent across schools.
A third concern is determining how to regulate athletes receiving
endorsements. States are proposing their own legislation currently.
In order for this movement to be successful, a federal law must be
implemented to ensure uniformity, fairness, and compliance.253
Agent certification is another area to be watched. Agents would some-
how have to be regulated and governed to ensure agents don’t abuse

245. Michael McCann, College Endorsement Deals Sow Landmines for NCAA Com-
pliance, SPORTICO (July 24, 2020), https://www.sportico.com/law/analysis/2020/college-
athletes-endorsement-deals-1234609869/.
246. Id.
248. Id.
249. Id.
250. Id.
251. Id.
252. Smith, supra note 30, at 91.
253. Id. at 88-89.
their young clients.254 Nick Saban, University of Alabama’s head

football coach, even referred to agents as “pimps.”255 Federally-regu-
lated agent certification would be a proposed way to address this con-
cern.256 A federal law would ensure regulation is consistent and
federally-based agent certification will be an area of concern to ensure
the college athletes are not exploited.
VII. CONCLUSION
Moves are being made and legislation is being passed. It’s not a
matter of if, but rather a matter of when. There are other concerns, in
addition to the “how” of implementation, that should be taken notice
of. The commodification concerns relating to college athletes’ “Name,
Image, and Likeness” (“NIL”) is dynamic and will not be sorted out
anytime soon. This is a necessary conversation before state laws are
passed and colleges, states, and the National Collegiate Athletic Asso-
ciation (“NCAA”) start backtracking after implementing NIL laws.
The lack of case history does not direct the conversation to one obvious
path or the other. States are moving quickly after the spark from the
California proposed bill; however, this momentum should not disre-
gard the accompanying commodification concerns. How will states
that do not pass NIL legislation compete? How will colleges maintain
non-revenue generating sports and Olympic sports? How will the
NCAA be able to maintain the academic focus that they have been
criticized of disregarding? Will this further the divide between stu-
dent athletes and the rest of the student population? The proposed
legislation and regulations should address these concerns prior to col-
lege athletes being paid for NIL.
254. Branch, supra note 2.

255. Id.
256. Agent Certification, NCAA, http://www.ncaa.org/enforcement/agents-and-ama-
teurism/agent-certification (last visited Dec. 15, 2020) (showing federally regulated
agent certification has been used to ensure athletes’ best interests are met for the Na-
tional Basketball Association draft and college purposes).
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79

3. Bigger Doesn’t Always Mean Better . . . . . . . . . . . 103

1. See generally Roberto L. Corrada, College Athletes in Revenue-Generating

holidays. Athletes cannot send money to their families to put food on

II. BACKGROUND ON COLLEGE SPORTS AND NIL

A. A LOSE-LOSE HISTORY OF COLLEGE SPORTS

Harvard in 1852.7 Yet, these seemingly harmless activities soon

ate, stimulate, and improve athletics.21 Participating athletes would

B. INTRODUCTION TO NAME, IMAGE, AND LIKENESS

35. Id. at 10-11.

NIL is used for advertising purposes without his or her consent.45

III. RELATED CASE LAW

No case law has directly addressed the commodification of college

A. ANTITRUST AND NIL APPLIED TO NCAA

62. 40 F. Supp. 2d 1275 (D. Kan. 1999).

73. Id. at 1055.

commercial activity.84 This court was convinced profiting off NIL is

68.9% of consumers opposed paying men’s football and basketball

2. Case Law Areas of Concern

maintaining competition.108 These regulations may include rostering

IV. IF YOU’RE NOT FIRST YOU’RE LAST; NIL APPLIED TO

108. Id. at 2968.

California took the burden of being the first state to propose

115. Stark-Mason, supra note 4.

ceed, to de-escalate or destroy, which may be key features of the

der if California’s guidelines on state licensed agents would be

V. COMMODIFICATION CONCERNS: COSTS TO COLLEGE

The commodification of college athletes “Name, Image, and Like-

133. Student-Athlete Compensation, supra note 129.

‘taints,’ or ‘denigrates’ the things being exchanged.”141 Corruption

A. ANYTHING YOU CAN DO I CAN DO BETTER: COERCION

141. Cohen, supra note 138, at 691.

ten other states added legislation.147 As of September 2020, at least

B. NOT EVERYONE’S A WINNER: CROWDING OUT

nents of players’ ability to profit are arguing this money should be

Cutting Olympic sports programs has impacts which would be felt

C. IT’S JUST NOT THE SAME: CORRUPTION

While the NCAA Constitution unambiguously states the student

upper and lower classes of students at the school.177 Any eighteen-

177. Zimbalist, supra note 60, at 339-40.

3. Bigger Doesn’t Always Mean Better

elementary children’s attitudes towards athletic success, academic success, and

tendance of 37,913,238 people in the year 2014.196 To compare, the

college and professional sports are entertainment products and both

words ranging from medical terms to political jargon, picturing them

215. Spelling Bee Betting Guide, CURRENT SPORTS BETTING, https://

the value of amateur athletics, however, both remained distinct

227. Andrews, supra note 225.

one of the most recognized games in Olympic history.238 A team full of

VI. IF LEGALIZED, HOW TO REGULATE?

challenges along the way.244 Addressing specific solutions to imple-

244. McCann, supra note 54.

their young clients.254 Nick Saban, University of Alabama’s head

254. Branch, supra note 2.

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