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Excerpted From: Amanda L. Jones, The Dawn of a New Era: Antitrust Law vs. The Antiquated NCAA Compensation Model Perpetuating Racial Injustice, 116 Northwestern University Law Review 1319 (2022) (258 Footnotes) (Full Document)

AmandaJonesOn the eve of the 2021 March Madness tournament, while many college basketball players were preparing for what could be the biggest game of their career yet, three basketball players took to social media to remind people that they are #NotNCAAProperty. Geo Baker, a Rutgers basketball player, tweeted that the National Collegiate Athletic Association (NCAA or Association)--the governing body for college athletics--owns his name, image, and likeness. Baker argued that while students on music scholarships and academic scholarships can profit by creating albums or offering tutoring services, student athletes' inability to profit from their labor results in unequal treatment. Baker's tweet sought to draw attention to the fact that, of the nearly $900 million in revenue generated by the NCAA's annual basketball tournament, none of it would be used to directly compensate the student athletes playing in the tournament. The #NotNCAAProperty movement--founded on the viewpoint that “[t]he NCAA too often treats college athletes like dollar signs rather than people” another plea for reform during what is arguably the most tumultuous time in the history of college sports.

Two crises in 2020 fueled a debate that has been brewing for years--whether student athletes should be compensated. Specifically, the COVID-19 pandemic coincided with the Black Lives Matter movement and drew unprecedented attention to systemic racism permeating society, highlighting a system that relies heavily on Black men risking physical harm to support an entire industry. State and city guidelines required people to stay home and avoid nonessential activities, and universities went as far as refusing to allow college students to live on campus, except in exceptional circumstances. Yet thousands of college football players and basketball players reported for duty, risking exposure to a disease while experts knew little about potential long-term health effects. Despite being treated as essential workers, these athletes were not eligible to receive compensation. student athletes across the country--who make up the majority of football and basketball rosters action to combat racialinequity and address concerns regarding health and safety and economic justice, strengthening discussions in Congress. Although this debate has received renewed attention in the media, courts, and Congress, it is far from novel.

For years, there has been public controversy over whether college athletes should be paid. This controversy is driven by concerns regarding fair compensation of labor; unjust restrictions on student athletes' ability to earn money; and universities, conferences, and organizations taking advantage of underprivileged student athletes. The NCAA's model relies heavily on student athletes not receiving compensation to distinguish them from professional athletes and market college sports as a distinct product. Current and former student athletes who are unhappy with the current compensation model have pushed for reform, challenging existing compensation rules and proposing policies that would allow them to receive additional benefits and compensation for their labor to address the perceived inequities in the current structure.

In recent decades, the NCAA has permitted student athletes to receive more education-related funds. In the mid-twentieth century, for example, the NCAA began allowing full grants-in-aid to provide for tuition, room and board, fees, books, and a small monthly stipend. In 2015, the NCAA increased the grants-in-aid cap to account for the full cost-of-attendance figure. Yet the NCAA has hesitated to open the floodgates and allow outright compensation, generating a great deal of tension between the Association and players. In several cases addressing student-athlete compensation, courts have given the NCAA considerable authority to maintain rules that cap the value of student athletes' labor, even though such rules would normally constitute a price-fixing scheme that violates antitrust law by unreasonably restraining trade. Historically the NCAA and courts have contended that such restrictions are necessary to preserve the market for college sports and the amateurism of college athletics, but courts have arrived at this reasoning by considering externalities--such as consumer demand, when the relevant market was the college education market--that are not tied to the student-athlete labor market and do not accurately consider the net effects on this market.

Against this tense background of controversy over student-athlete compensation, the Supreme Court recently handed down a landmark decision stripping the NCAA of the power to cap education-related benefits that member institutions may offer students who play Division I Football Bowl Subdivision (FBS) football and Division I basketball. v. Alston opened the door for some athletic conferences to offer unlimited education-related benefits and placed a target on the NCAA's business model. Alston asserted that the NCAA amateurism model is not exempt from antitrust law, and a scathing concurrence by Justice Brett Kavanaugh said in no uncertain terms that “[t]he NCAA is not above the law.” and new state legislation allowing student athletes to receive money for their names, images, and likenesses cast doubt on whether amateurism is so indispensable as to necessitate the deference that courts have given the NCAA. In addition, Alston all but explicitly encourages future litigation against the NCAA. Justice Kavanaugh pointedly stated that because the student athletes did not renew their appeal on certain claims from their initial lawsuit, the Court's scope of review was limited, but that remaining rules “raise serious questions under the antitrust laws.”

This Note, focused on the ever-evolving field of student-athlete compensation, examines recent changes to the NCAA compensation model and presents suggestions for moving forward. This Note considers current proposals for state and federal legislation regarding student-athlete compensation and ultimately advocates for allowing student athletes to unionize and engage in collective bargaining. Part I walks through the evolution of the NCAA and its compensation model. This Part then describes the concept of amateurism in sports, the NCAA's reliance on amateurism as an integral aspect of its student-athlete compensation model, and concerns about the racial and socioeconomic inequity the NCAA's compensation model perpetuates. Part II discusses Alston in greater detail and explains how NCAA rules regarding compensation violate antitrust law. Part III goes on to analyze the impact of Alston on student-athlete-compensation litigation and on recent state and federal legislation regarding student-athlete compensation; it then concludes with a proposal for what the ideal federal legislation should look like and suggestions for moving forward. This Note argues that antitrust law should be used as a vehicle to correct racialinequities the NCAA's business model has perpetuated for decades and advocates for implementing a collective bargaining agreement to empower student athletes to seek the full value of their labor.

[. . .]

In a turbulent time for college sports, antitrust law could be the key to student athletes successfully reforming a system that has exploited the labor of a disproportionately large number of Black student athletes for years and left many of them with little or nothing to show for it. While Justice Kavanaugh got the ball rolling by opening the door for student athletes to continue challenging the NCAA compensation system through antitrust litigation, federal legislation is likely to prove a more efficient avenue for reform and allow more student athletes to receive compensation for their labor sooner. The College Athletes Bill of Rights and College Athlete Economic Freedom Act will lead to the broad reform student athletes have been seeking that will afford them some of the rights NCAA executives have enjoyed for decades. But the College Athlete Right to Organize Act provides the greatest opportunity to accomplish a goal that began years ago: classifying student athletes as employees so that they can engage in collective bargaining and seek the specific rights and protections they want most without needing to rely on the NCAA or universities to advocate on their behalf. Enacting federal legislation that permits student athletes to be compensated for their NIL rights and empowering student athletes through collective bargaining can push this long-needed reform over the goal line and allow student athletes to finally feel like they are not NCAA property.

J.D. Candidate, Northwestern Pritzker School of Law, 2022; A.B., Duke University, 2017.

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