In NCAA v. Alston, 141 S. Ct. 2141 (2021), the Supreme Court upheld a Ninth Circuit Court of Appeals ruling that struck down the NCAA cap/ban on student-athlete academic benefits. The Supreme Court unanimously agreed that the NCAA cannot prohibit NCAA schools from providing student-athletes with certain education-related benefits, such as scholarships for graduate school, free laptops or musical instruments, or paid post-graduate internships. In doing so, the Court rejected a frequent argument from the NCAA that Supreme Court precedent, NCAA v. Bd. of Regents, 468 U.S. 85 (1984), expressly approved restricting student-athlete compensation. The Supreme Court explained in Alston that:
Board of Regents may suggest that courts should take care when assessing the NCAA’s restraints on student-athlete compensation, sensitive to their procompetitive possibilities. But these remarks do not suggest that courts must reflexively reject all challenges to the NCAA’s compensation restrictions. Student-athlete compensation rules were not even at issue in Board of Regents.
141 S. Ct. at 2158. In his concurring opinion, Justice Kavanaugh made clear “that the decades-old ‘stray comments’ about college sports and amateurism made in [Board of Regents] were dicta and have no bearing on whether the NCAA’s current compensation rules are lawful.” Id. at 2167. And the argument “that colleges may decline to pay student athletes because the defining feature of college sports … is that the student athletes are not paid…. is circular and unpersuasive.” Id.
Alston paved the way for athletes to profit from their name, image, and likeness (“NIL”). Following Alston, on June 30, 2021 the NCAA Division I Council adopted an interim policy that suspended/lifted its previous NIL restrictions. As of July 1, 2021, all Division 1, Division 2, and Division 3 student-athletes may be compensated for their NIL, so long as they do not violate NCAA principles related to pay-for-play (i.e., schools paying players directly for their athletic performance) and impermissible inducements (i.e., schools paying players to induce them to attend their school). Since then, student-athletes, universities and colleges, small businesses, national companies, and agencies aimed at aiding student-athletes capitalize on their NIL have taken advantage of and adapted to the new reality of student-athlete compensation.
This new NIL frontier brings a host of unique issues that student-athletes, the NCAA, and Division 1 schools are likely to face. In our blog post series, we will explore the legal questions and issues that are likely to arise and share thoughts on how to navigate them. Our next blog post will address potential Title IX issues implicated by the payment of student-athletes.