Page 23 - Delaware Lawyer - Winter 2023

Brock Niggebrugge, UD second baseman
member colleges maintain important traditions that have become part of the fabric of game days in Tuscaloosa and South Bend; the packed gyms in Storrs and Durham....” Those traditions were created by student-athletes represent- ing their schools and not by employees working for the employer.
To paraphrase Winston Churchill, Alston is not the end, nor is it the be- ginning of the end, but rather it is the end of the beginning in regard to com- pensation of those who compete in the intercollegiate environment. The re- sponses to Alston are redefining the re- lationship between educational institu- tions and those who compete in inter- collegiate athletics, and more rules and rulings will likely only further redefine that relationship. The relationship may become one that is more akin to a pro- fessional and an employer instead of an amateur and a school.
If this becomes the case, does the unique character of intercollegiate ath- letics lose its appeal with the public? And will institutions question the im- portance and value of intercollegiate athletics in the educational environ- ment? As it stands, it appears that there are more questions than answers as to the future of NIL and its impact on intercollegiate athletics.
NOTES
1. National Collegiate Athletic Association v. Board of Regents of University of Okla- homa, 463 U.S. 1311 (1983)
2. Kaufman, J. (January 26, 2023) https:// www.dispatch.com/story/sports/college/ football/2023/01/26/ohio-state-posts- record-annual-athletics-revenue-from- 2022-fiscal-year/69845534007/?
3. Solomon, J. (June 26, 2014) https:// www.cbssports.com/college-football/news/ ncaa-supreme-court-ruling-felt-at-obannon- trial-30-years-later
4. O'Bannon v. NCAA - 802 F.3d 1049 (9th Cir. 2015)
5. Keller, B (January 31, 2023) NIL Incom- ing; Comparing State Laws and Legislation. https://biz.opendorse.com/blog/compar- ing-state-nil-laws-proposed-legislation
6. NCAA v. Alston, 141 S. Ct. 2141 (2021)
MARK CAMPBELL
schools continue to emphasize that the new rules do not allow the schools themselves to compensate the athletes beyond what is allowed post-O’Bannon. Instead, alumni, boosters and support- ers of the athletic programs form collec- tives to ensure that the athletes are be- ing compensated directly by an outside party. The claim is that it is not pay for play by the university. It is the athlete taking advantage of their name, image and likeness.
Future Legal Issues
The challenges to administering stu- dent-athlete compensation post-Alston were addressed by Justice Kavanaugh in his concurrence with Justice Gorsuch’s affirmation in Alston. Kavanaugh ponders over-compensation of non-revenue- producing sports, compensating athletes only in certain sports, the impact of Title IX on the merits and practicality of sal- ary caps to promote competitive balance, and the sustainability of over 180,000 Division I student-athletes.6 That is quite a laundry list for leaders of intercol- legiate athletics to address and, depend- ing upon future decisions, could rede- fine athletics. For example, is Kavanaugh suggesting the elimination of programs
and of sports to decrease the 180,000 student-athletes being compensated, or is he saying men’s basketball and football should be compensated as sports that traditionally generate revenue? It would appear any of the suggestions could lead to litigation on the part of the individuals being denied participation opportunities or not being compensated.
Kavanaugh does suggest possible solutions that include litigation, legis- lation, collective bargaining, and rev- enue sharing similar to what is used in professional football and basketball. Kavanaugh further refers to intercol- legiate athletics as a business and stu- dent-athletes as workers, and contends it is not evident why college should be different.
Unfortunately, Kavanaugh’s sug- gestions would not only further move intercollegiate sports towards the pro- fessional model. Referring to student- athletes as employees deemphasizes the academic aspect of the intercollegiate experience. Kavanaugh takes for grant- ed that the traditions associated with college athletics will withstand the fu- ture professionalization and its conse- quences by stating “the NCAA and its
WINTER 2023 DELAWARE LAWYER 21