Abstract
This article addresses the continued viability of the NCAA, the very real risk that it succumbs to legal attacks against it, and other potential models that could evolve to govern collegiate athletics in the future. Currently, the NCAA has three separate and overlapping legal issues that it and its member institutions would need to address if the NCAA is to continue in any role resembling the current structure. The first issue facing the NCAA, complaints founded on antitrust grounds, has been and continues to be an area of extreme vulnerability as the NCAA seeks to impose nationwide standards that have been found to violate the Sherman Act. Second, some subsets of college athletes have been strongly pushing for employee status that will give them the right to engage in collective bargaining and receive direct compensation for their efforts. Third, member institutions want a system that provides a level playing field, complies with antitrust law, and also satisfies the mandates of Title IX which requires equality of opportunity and benefits for male and female athletes.
Part I will provide a broad overview of the current state of collegiate athletics with respect to the roles of NIL, collectives, and boosters. Part I will also discuss current NCAA rules on player recruitment, NIL, and examine the NCAA’s reactive approach in both litigation and rulemaking with respect to NIL and athlete compensation. Part II of this paper will discuss state challenges to the NCAA and its ability regulate college athletics, and the issues that arise when state law and NCAA rules conflict. Part III examines some of the more prominent legal considerations facing the NCAA, conferences, universities, and collectives including antitrust concerns, labor and employment law issues, and the role of Title IX in a new collegiate sports paradigm. Part III also examines some of the recent federal proposals seeking to provide a legislative solution. Part IV will conclude with what the future (both short and long-term) likely holds for collectives, NIL and collegiate sports and suggests four possible collegiate sports models that would protect college athletes while maintaining the long and storied tradition of college athletics in the United States.