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Writer's pictureThe University of Wisconsin Pre-Law Journal
May 45 min read

Name, Image, and Likeness: National Collegiate Athletic Association v. Alston



Writer: Joely Emerson

Editor: Grace Cayouette

April 28, 2024


I. Introduction

Even for the casual observer, it is plain to see college sports are a national fascination. While NFL and NBA teams write million-dollar checks and rake in exorbitant levels of profit, college sports are a refreshing dose of reality, a place where amateurism is celebrated and old-fashioned team values reign supreme. As a fixture of this unique athletic culture, the National Collegiate Athletic Association (NCAA) has for most of its existence prohibited the compensation of student athletes. This restriction is applied to both direct payment from the university and compensation from corporate donors. While accepted by many fans, coaches, and administrators as a necessary prevention against the dangers of professionalization, others pose questions about the legality of such restrictions. In 2021, these questions culminated in a highly publicized Supreme Court case: National Collegiate Athletic Association v. Alston. In a unanimous decision, the plaintiffs won on the grounds that existing NCAA regulations on player compensation violated federal antitrust laws (Oyez, n.d.). Unsurprisingly, the effects of this decision have reverberated around the college sports world, causing major shifts in what the NCAA calls Name, Image, and Likeness (NIL), the system by which players are allowed to receive payment for sponsorship deals and other usages of their persona. While opinions are mixed regarding these changes, they have undoubtedly caused a shift away from the tradition of amateurism.


II. Background

The case National Collegiate Athletic Association v. Alston sees the NCAA defending its eligibility rules against a coalition of Division 1 basketball and football players represented by Alston. Before reaching the Supreme Court, the case was settled in the 9th Circuit District Court in favor of the plaintiff (Oyez, n.d.). However, it is worth noting that the district court limited its decision to benefits “related to the pursuit of academic studies,” articulating that the NCAA may still restrict cash or cash-equivalents (Gorsuch, 2021). Moreover, the definition of “benefits” in this context is intentionally left vague. After an appeal, the case was brought to the Supreme Court where it was held against federal antitrust law and the precedent set by NCAA v. Board of Regents of the University of Oklahoma, which in 1984, upheld eligibility standards for student-athletes concerning compensation (Oyez, n.d.). While the Court ruled against the NCAA regarding small television rights, it qualified its decision by stating that the NCAA rules on eligibility should be held to a lower standard in relation to the Sherman Act (1890) which prohibits the establishment of trusts at the federal level (Oyez n.d.; Legal Information Institute n.d.). Additionally, it helps to review the political context surrounding the Alston case. At this point in 2021, six U.S. states including Texas and Florida had already passed legislation with the intent to deregulate NIL. This legislation was set to go into effect on July 1st, less than a month after the case was decided (Tucker, 2022). Facing increased pressure from lawmakers and athletes alike, it is no wonder that the NCAA found itself present at the nation’s highest court.


III. Ruling

 In a unanimous decision, the Supreme Court affirmed the district court’s ruling in favor of Alston. While not completely overturning the precedent set by NCAA v. Board of Regents, the Court clarified that the NCAA could permit education-related benefits while preserving the “revered tradition of amateurism." In a scrutinizing concurring opinion, conservative Justice Brett Kavanaugh criticized the NCAA for branding college athletics “on the theory that their product is defined by not paying their workers a fair market rate.” With a sharp authority, he insists that “the NCAA is not above the law” (Brandt, 2021). Notably, the Court's ruling in NCAA v. Alston is not related to cash benefits or “pay-for-play.” Because the plaintiffs only appealed the part of the district court’s decision related to education-related benefits, the Supreme Court’s decision did not touch on all forms of compensation.


IV. Implications

While the Court’s decision was somewhat limited, its effects have been enormous. In response to the June 21st ruling, the NCAA adopted an interim NIL policy of unprecedented flexibility. The restrictions were minimal, permitting schools and athletes to “engage in NIL activities that are consistent with the law of the state where the school is located” with the caveat that pay-for-play and cash for recruiting purposes were still forbidden (Tucker, 2022). Nevertheless, the ambiguous nature of both the Court’s ruling and the new NCAA guidance means that money is now allowed to flow through the world of college sports virtually unobstructed. Firstly, while the Court specifies “education-related benefits,” the NCAA is less specific, restricting only direct cash payments. To many, it appears that the NCAA is “throwing up its hands” in recognition that the Alston decision marks the beginning of the end for NIL restrictions (Brandt, 2021). In effect, this resignation has allowed for the compensation of athletes in the form of endorsement deals with both local companies and national brands. To aid in this, communities have established NIL collectives, officially independent groups of supporters that work to find compensation opportunities for student-athletes of a specific university. Using funds from community donors, these collectives pool resources and form business-athlete relationships (Taxpayer Advocate Services, 2023). Consequently, the strength of a school’s NIL Collective is inescapably a factor in recruiting and retaining athletes. As pertaining to the new NCAA regulations, they are not receiving direct payments from the university. Nevertheless, promises of sponsorship deals from NIL Collectives sway athletes toward the highest bidder. To put it simply, this is professionalization and the long-feared shift away from amateurism.


Furthermore, the loosening of NIL restrictions post-Alston has exacerbated revenue disparities between athletes, sports, universities, and entire states. On a micro level, basketball and football have long received more media attention and funding than any other collegiate sport, a fact that translates to the NIL era. According to data collected in 2023, football players unequivocally earn the most NIL dollars. As an effect, female college athletes in the number of sponsorship deals and dollar amounts. Out of the year’s top ten NIL earners, six were football players and only one, social media personality Olivia Dunne, was a woman. Furthermore, there are certain athletes, such as international students, who are still not allowed to receive NIL money, creating new inequalities on individual teams (Shaw, 2023). However, it is not just within programs that disparities exist. As every athletic program is governed by university rules and state law, not every team is on a level playing field when it comes to attracting talent. These issues have provoked widespread demands for some type of federal NIL regulation (Moody, 2023). While lawmakers, university officials, and coaches hold out hope for some type of reform, it is unlikely that the NCAA will ever revert to its old policies, as a sweeping ban on benefits would violate Alston. However, the ambiguity of the ruling and lack of guidance regarding cash incentives could leave the door open for some sort of compromise.


 

References


Brandt, A. (2021, June 29). NIL, the Alston decision and the Supreme Court's message to the

NCAA. Sports Illustrated. Retrieved March 24, 2024, from https://www.si.com/nfl/2021/06/29/business-of-football-supreme-court-unanimous-ruling


Gorsuch, N. (2021, June 21). National Collegiate Athletic Association. v. Alston, 594 U.S.


Moody, J. (2023, June 7). Two years in, NIL is fueling chaos in college athletics. Inside Higher


Name Image Likeness Collectives. (2023, March 7). Taxpayer Advocate Service. Retrieved

 

National Collegiate Athletic Association v. Alston. (n.d.). Oyez. Retrieved April 28, 2024, from


National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma.

(n.d.). Oyez. Retrieved April 28, 2024, from https://www.oyez.org/cases/1983/83-271


Shaw, S. M. (2023, May 23). NIL Exacerbates Inequities For Women Athletes Even As It


Sherman Antitrust Act | Wex | US Law | LII / Legal Information Institute. (n.d.). Legal

Information Institute. Retrieved March 24, 2024, from https://www.law.cornell.edu/wex/sherman_antitrust_act


Tucker, T. (2022, March 18). NIL rules for college athletes: A timeline of how we got here and

what's next. The Atlanta Journal-Constitution. Retrieved March 24, 2024, from https://www.ajc.com/sports/georgia-bulldogs/nil-timeline-how-we-got-here-and-whats-next/EOL7R3CSSNHK5DKMAF6STQ6KZ4/

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