Sid DeLong on Contracts and College Athletics

Name, Image, and Likeness Mercenaries? NIL Desperandum in College Athletics
Sidney DeLong

College athletics is a multi-billion-dollar business enriching the nation’s colleges and universities by generating many revenue streams, both directly (in television rights, ticket sales, and sports apparel fees) and indirectly (in tuition-generating student enrollments and alumni donations). The athletes whose efforts create this value are compensated only with academic scholarships giving them a free education that few can take full advantage of. But the NCAA strictly prohibits payment of any other form of compensation to these student athletes, insisting that they are “amateurs.”

Schools are also limited in their ability to compete for these low-paid, high value athletes. A school that steps over the line by secretly paying cash to recruit an athlete is severely sanctioned and the athlete can be stripped of his awards. Several students have suffered from the effects of illegal payments. Albert Means’s high school coach received $200,000 from a booster to steer him to Alabama; when the bribe was revealed he lost his scholarship and Alabama was sanctioned. Both the booster who paid the money and the coach who received it were prosecuted for federal crimes. Reggie Bush was stripped of his Heisman for accepting under the table payments while at U.S.C.., which forfeited a national championship

By contrast, college coaches face no such limits. The football coach is frequently the highest paid public employee in the state, often enjoying additional endorsement income from third parties. Ironically, the ability to recruit a top class high-school player is the primary skill of a winning college coach.

The situation has long been recognized as inequitable. As Justice Kavanaugh described it a recent opinion:

“The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year. Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.“ NCAA v Alston,141 S.Ct. 2141 (2021) (Kavanaugh, concurring).

O'Bannon v NCAA in 1995 was the thin end of the wedge: O'Bannon v. National Collegiate Athletic Association, 802 F. 3d 1049, (9th Cir., 2015). Basketball star Ed Obannon established that the refusal to permit players to share the revenues from the use of their images was a violation of antitrust law.

The decision to which Kavanaugh was concurring held that the NCAA violated the Sherman Act by limiting the educational benefits that member schools could provide student athletes. It recognized college sports as a product market and characterized the NCAA as engaging in “horizontal price fixing in a market where the defendants exercise monopoly control.” Id. 2154. The goal of amateurism did not justify this form of behavior. Although SCOTUS did not rule on student compensation from third parties, Alston’ dicta clearly indicated that schools may not limit athletes from earning compensation from third parties for the use of their name, image, and likeness (NIL).

Soon after Alston, the NCAA implemented new rules to regulate student athletes to accept compensation from third parties for NIL.  The regulations also permit athletes to be represented by agents in negotiating contracts.  Beginning with California in 2019, several states also enacted statutes validating NIL contracts.  However, the new regulations kept in place the NCAA’s long-standing prohibition against “pay-for-play,” the payment of financial compensation to students in return for enrolling in a school or for playing.

Have NIL, Will Travel. In recent years, the NCAA has also relaxed its rules prohibiting the poaching of enrolled students by competing schools. Regulations now permit students to enter a “transfer portal,” transfer to a different school, and play for their new school the next year. The transfer rules have revolutionized the ethos of college sport. Thousands of players entered the portal this year, creating havoc for coaches and teams preparing for next year’s season. Coaches lament the loss of loyalty and commitment even as they hustle to sign replacements now playing at other schools.

Outside the regulatory framework of the NCAA, NIL contracts are regulated by a patchwork of state laws. For example, Alabama’s law requires bars schools from prohibiting NIL contracts and from prohibiting students from using agents. But the statute permits schools to bar students from signing with a sponsor (e.g. Nike) that competes with a sponsor with which the school already has an exclusive contract (e.g. Adidas).

These changes in the law mean that today both the Means and Bush payments could easily be restructured as legal and above-board transactions. The Alabama booster could entice Means to go to Alabama, not by bribing his coach but by offering him (through his agent) a lucrative NIL contract, e.g., doing ads for a car dealership. Bush could similarly earn hundreds of thousands by monetizing his Twitter following. Non-athlete “influencers” are already earning six figure salaries in the social media economy and star athletes have huge social media followings that advertisers would love to tap. Older readers can think of it as working your way through school, like throwing a paper route before class.

Knowledgeable sports commentators describe the new free market in college players as the Wild West, where everyone (coaches, players, athletic directors, and parents) must play a game with no meaningful regulation or standards. Every college athlete is a free agent who can market his skills to the highest bidder every year. And bidders there are. Wealthy alumni in several states have assembled massive amounts of cash with which to fund NIL contracts designed to lure the best players to their schools.

Which raises several questions relevant to the law of contract (as what doesn’t?)

How will the NCAA enforce its continuing prohibition against contracts that provide “pay-for-play”? What is to stop alumni from paying millions of dollars to lure talented players to a particular school by offering them lucrative NIL contracts, not to “play” (“heaven forbid”) but to do advertisement, social media posts, and charitable work? See the link above. If such a contract violates NCAA rules, is it nevertheless fully enforceable or is it void as against public policy or as part of a scheme to defraud the NCAA?

Will students or purchasers of NIL rights be required to make their compensation deals public? Are student privacy rights at stake?

Will purchasers of player endorsements insist that students sign non-compete agreements that bar them from endorsing competing sports products? Will these be enforceable? If they are, will they interfere with athletes’ ability to change schools and endorsers?

Is an offer to an athlete who is a party to a NIL contract seeking to lure him away to another school a tortious interference with the student’s existing contract with another NIL licensee?

How will this new compensation scheme fit within the regulations promulgated under Title IX? Schools are prohibited from engaging in racial or gender discrimination in providing benefits to student athletes. But third party licensees of NIL are not state actors and are unregulated by federal law.

Will this market be free of racism? Will a legal change advertised as a way of ameliorating discrimination and exploitation of Black athletes become a covert means of enriching white athletes who may have more perceived market value to the licensees of NIL?

Should the NCAA promulgate mandatory or prohibited terms for NIL agreements or just let the market take its course? If they did, would its mandate be enforceable or would it violate the anti-trust laws?

And on a more mundane note, how will university professors deal with students who are earning more than they are? What if academic ineligibility costs the student thousands of dollars of NIL revenue?

What will student athletes learn about the sacredness of contract obligation if they enter into the sordid world of university sports? High status college coaches routinely repudiate their contracts at the drop of a hint from a more prestigious school. Some of them have recruited high value high school players by promising wonderful things and have then jumped to another team before the recruit shows up at campus. Students who suffer this may learn their lessons too well.

“Coach, if you don’t promise to start me next year, I’m transferring to Oregon.”

And finally, big money seems inevitably to bring big corruption and advantage-taking of the naïve by the savvy. A later post will list some of the obvious pros and cons of the new system.