A Solution for the Pay for Play Delemma of College Athletes: A Novel Compensation Structure Tehtered to Amateurism and Education

Roger M. Groves, Florida Coastal School of Law offers A Solution for the Pay for Play Delemma of College Athletes: A Novel Compensation Structure Tehtered to Amateurism and Education.

ABSTRACT: Over 80 percent of the total revenue received by the NCAA each year comes from television media rights agreements, which take advantage of the names, images and likeness of those who play the game as student-athletes. Yet there are NCAA rules that prohibit scholarship athletes from receiving as much as a dime from their own name – ever. Despite several challenges by plaintiff players, the most recent federal case, O’Bannon v. NCAA rejected those claims, and affirms the NCAA rule that values student-athlete NIL as worthless under antitrust law.

After dispelling the false narrative that NIL payments are pay-for-play transactions, this article provides a middle ground between disbursing nothing to student athletes and paying cash to those athletes for any purpose at any time. A careful analysis of O’Bannon reveals opportunities to craft this solution while conforming to the precise rule of law established in the case. The key evidentiary findings that were missing in that case can be remedied. A model rule is therefore proposed that cures what the court found fatal in O’Bannon. In essence, the model rule creates a tether – a link between NIL payments and amateurism through education-related expenses that was not part of the evidentiary record in O’Bannon.

This author’s model goes further to provide safeguards against NIL compensation abuse. The model includes a novel sports payment system borrowing from clawback and recapture provisions of securities law to return ill-gotten gains back to the universities. The model is designed to have practical application to the Power 5 Conferences in football and basketball.