A FINE MESS: THE NCAA, THE COLLEGIATE MODEL,AND THE POST-ALSTON WORLD
Josephine (Jo) R. Potuto
I. INTRODUCTION
At the NCAA’s inception, its bylaws embodied the collegiate model of college athletic programs. The collegiate model meant that college athletic programs should be integrated into the greater university and that athletes who competed in college sports should be students in more than name only. The collegiate model also meant that college athletes could not be paid to compete or permitted to exploit their name/image/likeness value (NIL). The consequence was that college athletic competition had an identity distinct from professional sports that appealed to a different commercial market.
The collegiate model worked when college sports did not generate large revenues, when there was no large centralized NCAA administrative structure with rules governing athletic academic eligibility that were separate from a university’s admissions standards, and when coach and athletic administrator salaries matched those of the faculty.Over time, however, college sports separated from campus rules and administration, athletic scholarships were awarded by coaches rather than through campus financial aid protocols, and the passion for football extended beyond students, faculty, and alumni at an individual school to substantial, even national, fan bases and donor support, often from those who neither attended nor were employed by the university they supported. Dean Smith, the long-time head men’s basketball coach at the University of North Carolina at Chapel Hill, described college athletics as a university’s “front porch”; its “most visible part but not the most important.” The question increasingly became whether athletic competition, and particularly football and men’s basketball, was the front porch or had set up residence in a mansion down the street.
The Supreme Court’s 1984 decision in NCAA v. Board of Regents freed athletic departments and their conferences to enter lucrative football broadcast deals as well as bigger and more lucrative sponsorships and exclusive licensing arrangements. Athletic departments and conferences in the football bowl subdivision (FBS) of NCAA Division I benefitted most. By 2021, the College Football Playoff produced $470 million, most of which went to the universities in the five autonomy (A5) conferences (Big Ten, Southeast, Pacific 12, Atlantic Coast, and Big 12). Beginning in 2024, the Southeast Conference will distribute $300 million annually, divided among its member schools from its ESPN broadcast contract, while the Big Ten Conference will distribute $350 million, the bulk of it coming from the Big Ten’s media deal.
Although substantial funds go to college athletes in the form of athletic scholarships, enhanced medical services, training, nutrition, tutors and academic support services, the largest and most visible part of university revenues go to coach salaries and athletic facilities. Athletic departments also have executed more, and bigger, sponsorships and exclusive licenses. The influx of money brought more and louder calls by and on behalf of athletes that they were entitled to a share. Whether one evaluated spending in the absolute or compared to overall campus spending protocols, many agreed that FBS athletic spending was out of control. A spate of litigation challenged NCAA bylaws that limited benefits provided to college athletes.State legislatures enacted legislation to give college athletes the right to make NIL deals. Several bills were introduced in Congress.
In 2021, the Supreme Court decided NCAA v. Alston. The Alston Court held that the NCAA could not limit educational benefits that universities provide to college athletes. The Court’s unanimous, and strongly worded, decision against the NCAA was perceived to have wide-ranging impact on NCAA bylaws that prohibited universities from providing economic opportunities to their college athletes. The NCAA thereafter suspended bylaws that prohibited college athletes from entering NIL deals and permitted them to make any deal consistent with state lawand with rules adopted by their university or the athletic conference to which it belongs.
No doubt the ensuing NIL deals, even small ones, have produced positive benefits for college athletes. They likely have permitted some college athletes to choose to remain in college rather than to turn professional. They have relieved economic stress on families. They have given college athletes a vehicle for launching career opportunities. No doubt, however, NIL deals also have generated suspicions about whether they are bona fide, and they seem to have produced bidding wars among universities.
This article addresses some on-the-ground implementation and practical consequences of NIL deals. They include collectives, the impact on recruiting and competitive equity, NCAA enforcement issues, questions regarding the applicability of Title IX, the impact on high school and even younger athletes, conflicts with athletic department exclusive sponsorship deals, the likelihood of a federal legislative solution, and the slippery slope to pay for play.