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NIL Update: NCAA vs. Alston

In spring, 2021, events are poised to reshape the landscape of intercollegiate athletics as it has existed. 

On March 31, the Supreme Court of the United States will hear oral argument in the case of NCAA vs. Alston. The issue is framed as “Whether the Ninth Circuit erroneously held that NCAA eligibility rules regarding compensation of student/athletes violate federal antitrust law (NCAA BRIEF) or whether the Ninth Circuit properly performed a “rule of reason” analysis in this case enjoining certain such rules (Alston BRIEF).”

With extremely capable, experienced and persuasive lawyers advocating competing viewpoints, the parties are well represented. In addition, the Department of Justice has weighed in. And numerous other interested “friends of the court” - numbering “21” - have filed briefs setting forth strong arguments for various positions. The opinion(s), possibly coming as early as June or July, may shed light on the legal limits of “amateurism” vis-a-vis college athlete’s rights to compensation. Judicial opinions also sometimes shed light on issues implicated but not directly before the court for decisions. 

Meanwhile, Name, Image and Likeness (NIL) legislation is working its way through the halls of the US Senate, the House of Representatives, and most state legislatures. A Florida statute allowing compensation for NIL takes effect July 1, 2021, less than 100 days from now. Some 30 odd states have passed similar NIL legislation or have the topic under consideration. And now, daily, on a much faster timeline, current student-athletes are actively, aggressively and forcefully using social media and other tools to press their collective voices and points of view. 

See, for example, the following links in the public domain: 

Tournament Players Tweet #NotNCAAProperty Amid NIL Battle | Sports Illustrated

College basketball players push for NIL reform using #NotNCAAProperty message | ESPN

#NotNCAAProperty protest could put NCAA Tournament games in jeopardy as players say they might sit out or force delays | Insider

And, as would be expected, informed media are highlighting hot button items such as Title IX and others. Much attention has been focused on very real observations of differing treatment by the NCAA of the March Madness Men’s Basketball tournament contrasted with arrangements for the Women’s Basketball National Championship tournament.

Other simmering thoughts for consideration include revenue sharing with student-athletes, lifetime scholarships, and lifetime medical benefits. Meanwhile, the Uniform Law Commission is striving to draft legislation which could be useful in all jurisdictions. With so many different decision makers looking at so many possible outcomes over varied time frames, the impending near term has been described as “chaos.”

How can meaningful national championship competitions be carried out if rules vary by state lines or other non-uniform guidelines? 

Our crystal ball is a little murky on probable outcomes, but big change seems ominously and quickly inevitable. 

Despite the uncertainty, legal services will be needed for contract review, including college sponsorship agreements, vetting of agents, vetting of prospective NIL contract parties, conflict resolution, review of regulations when enacted, and review of conflicts between competing state statutes when applicable. 

© 2023 Winstead PC.National Law Review, Volume XI, Number 89

About this Author

Michael Cruciani Corporate Attorney Winstead Austin, TX

Michael is a member of Winstead’s Corporate, Securities/Mergers & Acquisitions Practice Group.  Michael’s practice focuses primarily on corporate transactions including mergers & acquisitions, venture capital financing, public and private offerings, and business restructuring. In addition, he advises his clients on issues that arise at all stages of a company’s development, ranging from entity formation and governance to general corporate counsel work.

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Mike Perrin Veteran Trial Attorney Winstead Houston, TX
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Mike Perrin is a veteran trial attorney who works closely with Winstead’s practice and industry groups as a senior advisor.

Mike advises business leaders on advancing ventures, strategic planning, complex transactions, risk management and business disputes.  He uses his experience to assemble legal teams that solve critical issues and seize opportunities for achieving client goals.

Prior to joining Winstead, Mike served as the Men’s Athletic Director for The University of Texas.  A former defensive end and linebacker for the Longhorns under Coach Darrell Royal, Mike is rooted...