Page 22 - Delaware Lawyer - Winter 2023

FEATURE | AMATEURS OR PROFESSIONALS?
Players can accept money from businesses in exchange for
using their likeness
on products or in advertisements, and can also promote themselves or other companies in public appearances.
in regulation that would be condemned in a purely business environment. He further argued that the NCAA plan re- flects the NCAA’s fundamental policy of preserving amateurism and integrat- ing athletics and education.3
Justice Stevens’ affirmation in the Board of Regents case recognized that college athletics, specifically college football and its academic tradition, is what differentiates it from the profes- sional form of football and further stipulates that, “In order to preserve the character and quality of the ‘prod- uct,’ athletes must not be paid, must be required to attend class, and the like ...” It appears that Stevens assumed that amateurism and academic eligibil- ity would remain unchallenged; but the Alston case strikes at the second point, and who is to say academic eligibil- ity will not next be challenged in the courts.
The Right to Self-Promotion
Prior to Alston, the other signifi- cant challenge related to the increased revenue generation associated with in- tercollegiate athletics was O’Bannon v. NCAA.4 In 2014, the Court ordered that schools should be allowed to offer
Esmee Peet of UD's 2016 national championship field hockey team.
MARK CAMPBELL
20 DELAWARE LAWYER WINTER 2023
full cost-of-attendance scholarships to athletes, covering cost-of-living expens- es that were not currently part of an NCAA scholarship. The U.S. Supreme Court refused to hear the NCAA appeal of that decision and the NCAA paid out $40 million to the plaintiffs. At the heart of O’Bannon was whether an ath- lete must be compensated for the use of their likeness in a video game. Fol- lowing O’Bannon, the acronym “NIL” has come to stand for an athlete’s name, image and likeness, and refers to college athletes’ ability to profit off themselves. Players can accept money from busi- nesses in exchange for using their like- ness on products or in advertisements, and can also promote themselves or other companies in public appearances.
The Alston case opened the door for the NCAA’s other compensation rules to be challenged as unreasonable re- straint of trade under established anti- trust principles. Seeing the inevitability of future suits and having an indefen- sible position, the NCAA established interim rules one month after Alston that allowed student-athletes to engage in NIL activities that are consistent with the law of the state where the school is
located and to use “professional services providers” for NIL activities. Schools and conferences can adopt their own policies to build upon the framework provided in the interim policy that was passed.
At this writing, almost all states have enacted or revised their NIL legislation. While the specific terms and language of the legislation in each state may dif- fer, Keller (2023)5 found that there have been consistent themes running through the legislation:
• Schools, conferences and associa- tions cannot limit a student-athlete’s ability to be compensated for their NIL; • Student-athletes can receive profes- sional representation if the representa- tive is a registered agent in the state;
• Participation in NIL-related activi- ties shall not impact a student-athlete’s athletic or scholarship eligibility;
• NIL agreements cannot conflict with existing team contracts;
• Schools, conferences and associa- tions cannot compensate a student- athlete for use of their NIL; and
• Schools may restrict student-athletes from participating in vice industries.
The NCAA and the individual