Beyond NIL
William W. Berry III | 26 Vand. J. Ent. & Tech. L. 275 (2024)
The name, image, and likeness (NIL) changes and shifting landscape obscure more existential threats to the student-athlete model on the horizon. The television money that Power Five conference teams receive still comprises much of the budget of athletic departments. The football and basketball players—the revenue sport athletes—may have a claim to a greater share of this revenue.
Some athletes argue that they are employees of their universities, which would entitle them not only to additional benefits but also to other tools, such as collective bargaining. All of these advantages could make universities responsible for increasing the amount of remuneration available to revenue sport athletes. Other athletes are advancing antitrust lawsuits in an attempt to remove the barriers to a free market in order to eviscerate the grant-in-aid limit on remuneration a university can pay to its athletes.
The consequence often ignored in conversations surrounding a future where either or both efforts are successful relates to non-revenue sports—sports that do not generate enough money to cover their expenses. While Title IX protects women’s sports to a degree, the overall consequence of increased compensation for revenue sport athletes will be the diminishment and even loss of many non-revenue sports. This is because revenue sports such as football and basketball largely cover all the costs of non-revenue sports.
This Article maps the current landscape without adopting a normative view. Certainly, a college sports future decided by university administrators and athletic directors remains preferable to one mandated by courts. To that end, this Article offers several different paths to a new status quo in light of the imminent threats of litigation grounded in employment and antitrust law.
Part II of this Article describes the effect of NIL on the pay-for-play conversation. Part III assesses the current litigation in employment and antitrust law. Lastly, Part IV maps some possible responses of universities to this changing landscape.