Nice Try, NCAA—The Sherman Antitrust Act Applies to You, Too [Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021)]
Tymber W. Long | April 27, 2022 | PDF Version (235 KB)
Summary: In this long-awaited decision, the Supreme Court in National Collegiate Athletic Association v. Alston upheld the Northern District Court of California’s finding that the National Collegiate Athletic Association’s (“NCAA”) limits on student-athlete compensation violates the Sherman Antitrust Act of 1890. The NCAA argued its limits were procompetitive for two reasons: the limits drive consumer demand for amateur athletics and improve student-athletes’ education. However, the district court and Supreme Court saw through these baseless conclusions and cast a blow to the NCAA’s amateurism cornerstone. Although the Alston decision has the potential to be a huge step in sports jurisprudence, the holding could be moot if athletic conferences decide to continue the practice of limiting student-athlete compensation.
Preferred Citation: Tymber W. Long, Nice Try, NCAA—The Sherman Antitrust Act Applies to You, Too, 61 Washburn L.J. Online 71 (2022), https://washburnlaw.edu/wljonline/long-nice-try.
I. Introduction
The National Collegiate Athletic Association (“NCAA”) is not above the normal operation of antitrust law.[1] After years of pretrial proceedings and a ten-day bench trial, the Supreme Court affirmed the injunction of NCAA rules that restrict education-related benefits for student-athletes.[2] The NCAA is a membership-led association comprised of more than 1,200 member colleges, universities, and conferences.[3] The “Power Five” NCAA conferences—Atlantic Coast (“ACC”), Big Ten, Big 12, Pacific-12 (“Pac 12”), and Southeastern (“SEC”)—are the biggest and wealthiest college sports conferences.[4] For decades, the NCAA has been likened to a monopoly or a cartel.[5] In the market for Division I student-athletes, the NCAA is virtually the only player; and in this market, the NCAA and its major conferences employ the anticompetitive practice of price fixing.[6] Thus, the NCAA and the Power Five effectively fix the price for student-athlete performance at zero dollars in the interest of generating or maintaining profits for themselves.[7] Large universities and large athletic conferences conspire in ways that unfairly harm smaller schools, smaller conferences, and smaller sports programs.[8] With annual revenues of about one billion dollars, the NCAA throws its weight around to suppress financial competition in the college sports market, and reduce the bargaining power of college student-athletes.[9]
This Comment first explores the important legal battles against the NCAA, which set the stage for the Supreme Court’s decision in National Collegiate Athletic Association v. Alston, as well as how this litigation has implicated antitrust law. The Alston decision upheld the district court’s determination that the NCAA’s practice of limiting student-athlete compensation violated the Sherman Antitrust Act of 1890.[10] Next, this Comment includes the Supreme Court’s analysis of the district court’s findings in favor of the Alston plaintiffs. As a result, the Supreme Court severely criticized the NCAA for making baseless arguments that its limits on student-athlete compensation are procompetitive because they 1) drive consumer demand for amateur athletics, and 2) improve student-athletes’ education.[11] This Comment highlights why the NCAA’s arguments are flawed attempts at justifying the anticompetitive limits. Finally, this Comment reveals that while Alston could have been the preemptive decision to standardize Fair Pay to Play legislation,[12] it did not capitalize on that opportunity, and ultimately risks being undone should athletic conferences choose to reimplement the NCAA limits.
II. Background
A. Case History
Former collegiate athletes Shawne Alston and Justine Hartman were co-plaintiffs in a class action brought on behalf of college athletes.[13] Before the Northern District Court of California, the plaintiffs alleged that the NCAA’s limits on student-athlete compensation violated Section 1 of the Sherman Act, which prohibits “contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.”[14] Plaintiffs in Alston challenged the “limits on non-cash, education-related benefits,” which include any such benefits that contribute to student-athletes’ studies, like computers, tutoring, and study abroad stipends.[15] The plaintiffs in Alston theorized that the relevant market in which the NCAA is exercising anticompetitive strategies is narrow and “one in which [s]tudent-[a]thletes sell their ‘labor in the form of athletic services’ to schools in exchange for athletic scholarships and other payments....”[16] The plaintiffs also supplied an economic analysis which proposed that “schools, as buyers of athletic services, exercise monopsony power to artificially cap compensation at a level that is not commensurate with student-athletes’ value”—that value being zero.[17] To put it plainly, the Alston plaintiffs asked that student-athlete compensation be unrestricted so that it may reflect the value of each student’s athletic services to their school.[18]
In 2019, In re NCAA Athletic Grant-In-Aid Cap Antitrust Litigation required the NCAA to “permit its member schools to provide student-athletes with their full education-related [cost of attendance].”[19] This requirement allowed universities to entice student-athletes to join their athletic programs because student-athletes knew their school would cover all school-related expenses. In this pre-Alston world, the NCAA set compensation limits for student-athletes at the cost of attendance, and enforced these limits on its member schools.[20] The NCAA restricted the compensation amount colleges and universities could offer prospective student-athletes who might play for their teams.[21] The district court entered judgment in favor of the student-athletes in part by concluding “that NCAA limits on education-related benefits were unreasonable restraints on trade.”[22] Accordingly, the district court placed an injunction on those restraints, but refused to disturb the NCAA’s limits on compensation unrelated to education.[23] As a result, the district court found that capped athletic scholarships violated Section 1 of the Sherman Antitrust Act because of how they restrain commerce.[24] The NCAA appealed to the Ninth Circuit, which affirmed the district court’s conclusion and its injunction.[25]
B. Sherman Antitrust Act
The Sherman Antitrust Act is a federal statute that prohibits activities that restrict interstate commerce and competition in the marketplace.[26] The Sherman Act prohibits undue “restraint[s] of trade.”[27] Congress tasked courts with enforcing antitrust policies of competition under the belief that market forces yield the best—and most competitive—allocation of the nation’s resources.[28]
Courts often use a rule-of-reason analysis to determine whether a particular restraint on competition is undue.[29] Rule-of-reason analysis generally requires a fact-specific assessment of market power and market structure in order to properly assess a challenged restraint’s actual impact on competition.[30] In defending rule-of-reason cases, a defendant can offer procompetitive justifications to rebut a plaintiff’s showing of anticompetitive harm.[31]
C. Legal Background
Two major cases were monumental steps in sports law jurisprudence—O’Bannon v. NCAA and Keller v. Electronic Arts, Inc.[32] O’Bannon involved the first major name, image, and likeness exploitation scandal, and Keller stripped away possible defenses to the uncontested use of athletes’ rights to publicity.[33] O’Bannon, like Alston, addressed antitrust issues, while Keller addressed First Amendment issues, but an overview of both is foundational for understanding the pathway to Alston.
After discovering that a commercial video game used his likeness without his permission, former University of California, Los Angeles basketball player, Edward O’Bannon, sued the NCAA.[34] O’Bannon alleged “that NCAA members ‘conspired to fix the price of former student-athletes’ images at zero.’”[35] The district court found, and the Ninth Circuit affirmed, that the NCAA had unreasonably restrained trade.[36] A permanent injunction was issued which prohibited “the NCAA from enforcing any rules or bylaws that would prohibit its member schools and conferences from offering their...recruits a limited share of the revenues generated from the use of their names, images, and likenesses in addition to a full grant-in-aid.”[37] The injunction, however, still permitted the NCAA to cap the amount of pay available to student-athletes at the full cost of attendance.[38] Therefore, the O’Bannon decision merely recognized that the NCAA’s limits on student-athlete compensation may violate the Sherman Antitrust Act and left the question to be decided by a later case.[39]
Keller had a lesser impact than O’Bannon in directly setting the stage for Alston. Former football player for Arizona State University in 2005 and the University of Nebraska in 2007, Samuel Keller, filed a class-action complaint asserting that the popular video game developer, California-based Electronic Arts (“EA”), violated his right of publicity.[40] EA used Keller’s likeness in its NCAA Football video game series, which allows users to manipulate avatars designed to represent collegiate football players in simulated football games.[41] Recognizing himself and objecting to EA’s use of his likeness, Keller filed a complaint alleging a violation under California Civil Code section 3344, the state’s right to publicity statute.[42] California Civil Code section 3344 allows recovery for the unconsented use of another’s name, voice, signature, photograph, or likeness, for the purposes of advertising, selling, or soliciting.[43] The NCAA was also a defendant because the NCAA knew that EA monetized the names and likenesses of collegiate players through its video games, but the NCAA did nothing to intervene in this misappropriation of student-athletes’ rights.[44] EA tried to defeat Keller’s claims by asserting First Amendment affirmative defenses—arguing its video game content was original and that it should be free to use such designs and content without interference.[45] Ultimately, the Keller court found that EA’s actions were not protected by the First Amendment.[46] Keller was no longer an NCAA athlete when he filed his 2009 lawsuit, so it is unknown whether or not the NCAA’s ban on student-athlete compensation would have prevented him from recovering for his violated right of publicity.[47]
Alston was poised to strike a major blow to the NCAA’s amateurism rule and compensation scheme—or lack thereof—by asking whether the practice of the NCAA limiting student-athlete compensation to the cost of attendance was anticompetitive.[48]
III. Court’s Decision
In a unanimous decision, the Supreme Court upheld that, in a market without the challenged restraints put in place and enforced by the NCAA, “competition among schools would increase in terms of the compensation they would offer to recruits, and student-athlete compensation would be higher as a result.”[49] Here, the relevant market consists of Division I sports, in which the most talented athletes are concentrated, and for which there are no viable substitutes.[50] Without the NCAA’s restraints, student-athletes would receive offers that are more representative of the value of their athletic services.[51]
The NCAA defended its compensation limits on the basis that they are procompetitive.[52] The NCAA made two primary arguments: 1) that compensation limits “drive[] consumer demand” in college sports because “consumers value amateurism,” and 2) that the limits promote student-athletes integrating into their academic communities, “which in turn improves the college education they receive in exchange for their services.”[53]
The Supreme Court acknowledged that the district court correctly applied the rule-of-reason analysis when it observed that the NCAA enjoys “near complete dominance of, and exercise[s] monopsony power in, the relevant market.”[54] The NCAA has the “power to restrain student-athlete compensation in any way and at any time they wish, without any meaningful risk of diminishing their market dominance.”[55] The district court also found, and the Supreme Court agreed, that the NCAA’s compensation limits create significant anticompetitive effects in the relevant market.[56]
IV. Commentary
In this long-awaited decision, the Supreme Court addressed the flawed logic, which had allowed the NCAA to operate as a cartel for most of its existence, but the Court punted on other issues. Fair Pay to Play legislation is cropping up all over the country, riddled with state-by-state nuances.[57] Alston could have been the preemptive decision that stifled or standardized these state laws. Lastly, the ruling in Alston may very easily be undone should the athletic conferences choose to maintain the caps the NCAA put in place.
A. Flaws in the NCAA’s Arguments
1. The NCAA Attempted to Argue That Its Limits on Compensation Were Procompetitive.
The NCAA’s argument was based on the proposition that consumers would watch fewer games and revenues would decline if consumers did not believe student-athletes were amateurs.[58] The organization put on no evidence that compensation rules are related to consumer demand, yet relied on the flawed notion that such “restraints are procompetitive because they...‘effectuate’ that [amateurism] principle.”[59] More critical of this notion, the district court’s opinion noted that the NCAA “offer[ed] no stand-alone definition of amateurism either in the NCAA rules or in argument.”[60] The district court noted testimony of a former Southeastern Conference (“SEC”) commissioner, in which he claimed that he had never had a clear understanding of what constitutes amateurism.[61] Given that the NCAA lacked evidence that compensation rules are related to demand for amateur sports, and given the NCAA’s inability to define ‘amateur,’ this argument is meritless.
2. The NCAA Ineffectively Argued That Its Limits Improve Student-Athletes’ Collegiate Experience
The NCAA also argued compensation limits are procompetitive because they promote the integration of student-athletes into their academic communities and improve student-athletes’ education in exchange for their athletic services.[62] While it is certainly plausible, and even likely, that student-athletes benefit from a college education, there is no evidence linking those benefits to the challenged compensation limits.[63] Additionally, the NCAA expressed belief that its rules help to prevent a “wedge” between student-athletes and other students that may arise if student-athletes were to be compensated in ways unavailable to purely academic students.[64] The district court found that “income disparities inevitably exist as a result of family background or wealth derived from other sources,” and that levels of student-athlete compensation already vary on institution- and student-specific bases.[65]
B. A Comment on Fair Pay to Play
The Alston decision was not about name, image, and likeness rights but will predictably inform the next major case on this issue. The concepts of amateurism and student-athletes as non-employees permeate the NCAA’s guidelines and decision-making principles.[66] The NCAA’s amateurism rules, combined with student-athletes’ status as non-employees, bar prospective Division I, II, or III student-athletes from receiving compensation for their participation with a team—they are not to receive payments, prize money, endorsements, or be represented by an agent, among other restrictions.[67]
Fair Pay to Play legislation is being drafted and, in many states, enacted to permit student-athletes to benefit and profit from their names, images, and likenesses.[68] California Senate Bill 206, the “Fair Pay to Play Act” was signed into law in September 2019.[69] In direct conflict with the NCAA’s amateurism rules, the law enables student-athletes enrolled at California public colleges and universities to be paid through sponsorship and endorsement agreements and would prohibit schools or organizations from punishing athletes for engaging in such activities.[70] As of January 1, 2023, student-athletes in California will be able to sign endorsement deals and licensing contracts, as well as retain state-licensed agents to assist them in profiting from commercial representation.[71] As of March 2020, at least thirty states have introduced legislation similar to California’s Fair Pay to Play Act.[72]
Alston did not go far enough in breaking apart the NCAA’s amateurism model. It was not an explicit ruling on financial benefit for student-athletes’ name recognition and celebrity, but it may be an indirect, long-awaited resolution and will likely be precedential for a future name, image, and likeness ruling. Following the reasoning in Alston, which made clear that capping student-athlete compensation at the cost of attendance violates antitrust law, it is not a far jump for a court to find that limiting the student-athletes’ compensation for their names, images, and likenesses has the same effect. The majority opinion states that “[t]he national debate about amateurism in college sports is important[,]” but it is not the Supreme Court’s task to resolve it.[73] Should the NCAA try to ban colleges and universities from granting student-athletes these name, image, and likeness rights, Alston informs that this practice will likely violate antitrust law...again.
C. Undoing Alston
Though the NCAA’s stronghold on compensation limits for student-athletes was dismantled by Alston, the Court’s holding could still be irrelevant. Riddled with incendiary criticism of the NCAA, Justice Kavanaugh’s concurring opinion is a signal to the NCAA, conferences, and universities that the NCAA’s amateurism model is cracking.[74] Athletic conferences comprised of NCAA member schools may decide to continue limiting education-related benefits, just as the NCAA had.[75] Writing for the majority, Justice Gorsuch stressed that “individual conferences remain free to impose whatever rules they choose.”[76] The word “individual” is of utmost importance in this proclamation, as a conference acting on its own is unlikely to violate the Sherman Antitrust Act.[77] This is an especially likely scenario for athletic conferences like the Ivy League, which are not concerned about competing in the student-athlete recruiting market.[78] Justice Gorsuch underscored that the court’s injunction against caps on education-related benefits applied “to the NCAA and multi-conference agreements”—individual conferences and the schools that constitute them may choose to impose tighter restrictions if they wish.[79] Therefore, if a conference decides to limit education-related benefits in ways that are more restrictive than competing conferences, it can draw direct support from the Alston decision.
V. Conclusion
The Supreme Court found that the district court’s injunction barring the NCAA from capping student-athletes’ education-related benefits heeded the distinction between collegiate and professional sports. The Court found that the injunction also assuaged the NCAA’s concerns that demand for collegiate sports would be impaired if they began to resemble professional sports.[80] Time will tell what impact Alston will have on other paramount student-athlete compensation issues, such as name, image, and likeness rights, and whether individual conferences will make the Alston decision irrelevant by simply reinstating the cap on education-related benefits.
1. See Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2169 (2021). [Return to Text]
2. See generally id. at 2151. [Return to Text]
3. What Is the NCAA?, NCAA, https://www.ncaa.org/about/resources/media-center/ncaa-101/what-ncaa [https://perma.cc/5BAE-4JT4] (last visited Jan. 11, 2022). Major League Baseball, the National Football League, the National Basketball Association, and the National Hockey League are named as some of the NCAA’s largest competitors. NCAA, Owler, https://www.owler.com/company/nationalcollegiateathleticassociation [https://perma.cc/9M2X-DUR8] (last visited Jan. 11, 2022). [Return to Text]
4. See John Wolohan, What Does Autonomy for the “Power 5” Mean for the NCAA?, Law in Sport (Feb. 11, 2015), https://www.lawinsport.com/topics/item/what-does-autonomy-for-the-power-5-mean-for-the-ncaa [https://perma.cc/8JEW-BM8L]. [Return to Text]
5. Robert J. Barrow, The Best Monopoly in America, Bus. Week (Dec. 9, 2002), https://scholar.harvard.edu/barro/files/02_1209_monopoly_bw.pdf [https://perma.cc/NT4L-CV4A]; Ronald Deiter, NCAA a Monopoly?, Iowa State Univ. Dep’t of Econ. (Mar. 22, 2018), https://www.econ.iastate.edu/ask-an-economist/ncaa-monpoly [https://perma.cc/M9U2-2ZLR]. [Return to Text]
6. Daniel Oh, Can Any League Topple the NCAA?, Front Off. Sports (Mar. 27, 2018) https://frontofficesports.com/can-any-league-topple-the-ncaa/ [https://perma.cc/PFJ6-VATK]. [Return to Text]
7. Id. [Return to Text]
8. Jeff Calaresco, College Sports: Just a Game or an Actual Monopoly?, Study.com, https://study.com/articles/College_Sports_Just_a_Game_or_an_Actual_Monopoly.html [https://perma.cc/LP78-2LG5] (last visited Jan. 11, 2022). [Return to Text]
9. Darren Rovell, NCAA Tops $1 Billion in Revenue During 2016–17 School Year, ESPN (Mar. 7, 2018), https://www.espn.com/college-sports/story/_/id/22678988/ncaa-tops-1-billion-revenue-first [https://perma.cc/7GHV-U46D]; see also Barrow, supra note 5. [Return to Text]
10. See generally Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021). [Return to Text]
11. See id. at 2152; In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig., 958 F.3d 1239, 1249 (9th Cir. 2020), aff’d sub nom. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021). [Return to Text]
12. See infra note 68 for a brief description of Fair Pay to Play legislation. [Return to Text]
13. Michael McCann, Stakes and Stakeholders in Alston v. NCAA, the Latest College Sports Antitrust Case, Sports Illustrated, (Sept. 4, 2018), https://www.si.com/college/2018/09/04/alston-v-ncaa-trial-news-updates-ncaa-cost-attendance [https://perma.cc/6YWX-2H9A]. [Return to Text]
14. See Alston, 141 S. Ct. at 2151 (quoting 15 U.S.C. § 1 (2020)) (alterations in original). [Return to Text]
15. In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig., 958 F.3d 1239, 1248 (9th Cir. 2020), aff’d sub nom, Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021). In 2014, the NCAA announced that it would allow athletic conferences to authorize their member schools to increase scholarships up to the full cost of attendance. See O’Bannon v. Nat’l Collegiate Athletic Ass’n, 7 F. Supp. 3d 955, 963 (N.D. Cal. 2014). The O’Bannon court suspected that the NCAA’s rules on limiting college student-athlete pay may be a violation of the Sherman Antitrust Act, finding that the “NCAA rules unreasonably restrain trade in the market for certain educational and athletic opportunities . . . .” Id. See also Marc Edelman, The District Court Decision in O’Bannon v. National Collegiate Athletic Association: A Small Step Forward for College-Athlete Rights, and a Gateway for Far Grander Change, 71 Wash. & Lee L. Rev. 2319, 2330 (2014); In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig., 958 F.3d at 1247; Maria Dinzeo, NCAA Can’t Limit Education Related Benefits for College Athletes, Ninth Circuit Rules, Courthouse News Serv. (May 18, 2020), https://www.courthousenews.com/ncaa-cant-limit-education-benefits-for-college-athletes-ninth-circuit-rules/ [https://perma.cc/CER8-W5AL]. [Return to Text]
16. See In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig., 958 F.3d at 1248. [Return to Text]
17. Id. [Return to Text]
18. See generally id. [Return to Text]
19. Id. at 1249. [Return to Text]
20. See Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2144 (2021). [Return to Text]
21. Id. at 2147. [Return to Text]
22. See In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 958 F.3d at 1249. [Return to Text]
23. Id. [Return to Text]
23. See 15 U.S.C. § 2 (2020); 15 U.S.C. § 1 (2020). [Return to Text]
24. See In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 958 F.3d at 1249. [Return to Text]
25. See id. [Return to Text]
26. See generally 15 U.S.C. § 1 (2020). [Return to Text]
27. Id.; Ohio v. American Express Co., 138 S. Ct. 2274, 2283 (2018). [Return to Text]
28. See Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2147 (2021); Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 104 S. Ct. 2948, 2961–62 (1984). [Return to Text]
29. Texaco, Inc., v. Dagher, 126 S. Ct. 1276, 1277 (2006). [Return to Text]
30. See American Express Co., 138 S. Ct. at 2284. [Return to Text]
31. Id. [Return to Text]
32. See generally O’Bannon v. Nat’l Collegiate Athletic Ass’n, 7 F. Supp. 3d 955, 963 (N.D. Cal. 2014); Keller v. Elec Arts Inc., No. C 09-1967 CW, 2010 WL 530101 (N.D. Cal. Feb. 8, 2010), aff’d sub nom, In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268 (9th Cir. 2013). [Return to Text]
33. See generally O’Bannon, 7 F. Supp. 3d at 968; In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d at 1268. [Return to Text]
34. O’Bannon v. Nat’l Collegiate Athletic Ass’n, No. C 09-1967, 2010 WL 445190, at *1 (N.D. Cal. Feb. 8, 2010). O’Bannon also brought a suit against the video game creator, Electronic Arts, but it was combined and reviewed with the case against the NCAA. O’Bannon, 7 F. Supp. 3d at 965. O’Bannon claimed that Electronic Arts had impermissibly used student-athletes names, images, and likenesses, while the NCAA turned a blind eye to this misappropriation. Id. at 963. [Return to Text]
35. Edelmann, supra note 15, at 2323 (quoting O’Bannon, 2010 WL 445190, at *5 (N.D. Cal. Feb. 8, 2010)). [Return to Text]
36. O’Bannon, 7 F. Supp. 3d at 1007–08; see generally O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015). [Return to Text]
37. O’Bannon, 7 F. Supp. 3d at 1008. [Return to Text]
38. Id. [Return to Text]
39. See Edelmann, supra note 15, at 2321. [Return to Text]
40. See Keller v. Elec Arts Inc., No. C 09-1967 CW, 2010 WL 530101 (N.D. Cal. Feb. 8, 2010), aff’d sub nom, In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268 (9th Cir. 2013). [Return to Text]
41. Id. at *3. Avatars were created to include the jersey number, height, weight, build, skin tone, hair color, and home state of a corresponding human football player. Id. at *5. [Return to Text]
42. Id. at *3. [Return to Text]
43. Cal. Civ. Code § 3344(a) (West 2021). [Return to Text]
44. See Keller, 2010 WL 530101, at *1; see also Letter from Steve W. Berman, Partner, Hagens Berman Sobol Shapiro LLP, to Senator Richard Blumenthal (July 3, 2020), https://www.hbsslaw.com/sports-litigation/ncaa-student-athlete-name-image-likeness-senator-blumenthal-letter [https://perma.cc/NP32-9TUP]. [Return to Text]
45. See Keller, 2010 WL 530101, at *3. [Return to Text]
46. Id. at *5. [Return to Text]
47. Jeff Metcalfe, How Former ASU QB Sam Keller Pushed Over ‘First Domino’ to NCAA Name, Likeness Reform, AZCentral (Oct. 31, 2019, 1:01 PM), https://www.azcentral.com/story/sports/college/asu/2019/10/31/former-asu-football-qb-first-domino-ncaa-likeness-reform/4101980002/ [https://perma.cc/5KSP-WHJS]. [Return to Text]
48. See In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig., 958 F.3d 1239, 1239 (9th Cir. 2020), aff’d sub nom. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021). [Return to Text]
49. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2152 (2021) (quoting In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058, 1068 (N.D. Cal. 2019)). [Return to Text]
50. Id. [Return to Text]
51. Id. (citing In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d at 1068). [Return to Text]
52. See In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 958 F.3d at 1246. [Return to Text]
53. In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d at 1062, 1070. [Return to Text]
54. See Alston, 141 S. Ct. at 2151 (quoting In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d at 1097) (alterations in original). [Return to Text]
55. Id. at 2152 (quoting In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d at 1070). [Return to Text]
56. Id. [Return to Text]
57. See infra note 68 for a brief description of Fair Pay to Play legislation. [Return to Text]
58. See Alston, 141 S. Ct. at 2151; In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 958 F.3d at 1249. [Return to Text]
59. In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d at 1070. [Return to Text]
60. Id. [Return to Text]
61. Id. at 1071; see also Alston, 141 S. Ct. at 2152. Additionally, an analysis of the NCAA’s “Principle of Amateurism,” described in the NCAA’s constitution reveals it to be circular because the word “amateur” is used to describe the amateurism principle. See generally Amateurism, NCAA, https://www.ncaa.org/sports/2014/10/6/amateurism.aspx [https://perma.cc/2ZPR-RPTK] (last visited Jan. 11, 2022). [Return to Text]
62. See In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d at 1062. [Return to Text]
63. Id. at 1083 [Return to Text]
64. Id. at 1084. [Return to Text]
65. Id. at 1084–85. [Return to Text]
66. See Amateurism, supra note 61; Tom Farrey, Kain Colter Starts Union Movement, ESPN (Jan. 28, 2014), https://www.espn.com/espn/otl/story/_/id/10363430/outside-lines-northwestern-wildcats-football-players-trying-join-labor-union [https://perma.cc/44XB-C2VN]. [Return to Text]
67. Amateurism, supra note 61. [Return to Text]
68. Zach Barnett, How Many States are Working on Pay-for-Play Laws?, Football Scoop (Mar. 6, 2020), https://footballscoop.com/news/how-many-states-are-working-on-pay-for-play-laws/ [https://perma.cc/YN6V-4L78. California, Alabama, Louisiana, and Florida are among the states that have enacted Fair Pay to Play laws. Id. Over thirty states have enacted legislation similar to California’s Fair Pay to Play Act, which enables student-athletes enrolled at California public colleges and universities to be paid through sponsorship and endorsement agreements and would prohibit schools or organizations from punishing athletes for engaging in such activities. Id.; see also Florida Says “Show Me the Money”—Intercollegiate Athlete Name, Image and Likeness (NIL) Bill is Now Law, Foley & Lardner LLP (June 29, 2020), https://www.foley.com/en/insights/publications/2020/06/florida-intercollegiate-athlete-nil-law#:~:text=Following%20the%20passage%20of%20California's,while%20retaining%20their%20athletic%20eligibility [https://perma.cc/3J8Q-YZJN]. [Return to Text]
69. Jason Scott, California Lawmaker Introduces ‘Fair Pay to Play Act’, Athletic Bus. (Feb. 6, 2019), https://www.athleticbusiness.com/college/california-lawmaker-introduces-fair-pay-to-play-act.html [https://perma.cc/3A49-4XQP]; Jack Kelly, Newly Passed California Fair Pay to Play Act Will Allow Student Athletes to Receive Compensation, Forbes (Oct. 1, 2019, 12:36 PM), https://www.forbes.com/sites/jackkelly/2019/10/01/in-a-revolutionary-change-newly-passed-california-fair-pay-to-play-act-will-allow-student-athletes-to-receive-compensation/?sh=43079cf757d0 [https://perma.cc/S23M-7S5E]. [Return to Text]
70. See Scott, supra note 69. [Return to Text]
71. Michael Long, Fair Pay to Play: Is the NCAA Learning an Expensive Lesson?, SportsPro (Oct. 18, 2019), https://www.sportspromedia.com/analysis/ncaa-fair-pay-to-play-act-california-college-sports-larry-scott-newsom [https://perma.cc/6XE7-ZECY]. [Return to Text]
72. See Barnett, supra note 68. [Return to Text]
73. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2166 (2021) (quoting In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig., 958 F.3d 1239, 1249 (9th Cir. 2020)). [Return to Text]
74. Adarsh Annamaneni, Denis Braham, Michael Cruciani & Mike Perrin, An In-Depth Summary and Analysis of the Important Alston Decision, Nat’l L. Rev. (Aug. 17, 2021), https://www.natlawreview.com/article/depth-summary-and-analysis-important-alston-decision [https://perma.cc/8SY4-YFRK]. [Return to Text]
75. See Edelmann, supra note 15. [Return to Text]
76. Alston, 141 S. Ct. at Syl. ¶ 4. [Return to Text]
77. Emily Caron & Michael McCann, Big Ten, ACC, Pac-12 Align as Alston Antitrust Warning Looms, Sportico (Aug. 24, 2021), https://www.sportico.com/leagues/college-sports/2021/big-ten-acc-pac-12-alliance-1234637751/ [https://perma.cc/ZM58-527M]. [Return to Text]
78. Id. [Return to Text]
79. Alston, 141 S. Ct. at 2154. [Return to Text]
80. See id. at 2164. [Return to Text]
