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Courting Fair Play: The Future of the NCAA’s Role in College Sports Governance

Posted by on Tuesday, February 27, 2024 in Blog Posts.

By Dominic Keilty

In the wake of recent judicial rulings against the NCAA, its role in the future governance of college sports is murkier than ever. With no current legislative exemptions for the NCAA, the emerging recognition of a college athlete labor market casts part the organization’s traditional role in doubt.

The NCAA’s 2021 decision to allow students to profit from their name, image, and likeness (NIL) created a market for college athlete deals worth an estimated $1 billion annually.[1] This system allows the free market to decide the value of a college athlete’s services, as companies and booster collectives negotiate deals directly with athletes and their representation. States have differing NIL laws which govern these athlete deals.[2]

This free market system allows for a quasi-efficient allocation of players to institutions with financial resources. Athletes are now financially incentivized to play at schools where they can maximize their NIL value. This may lead to athletes preferring schools with booster collectives which have the resources to “buy” players with lucrative NIL deals.[3] A disparity has already begun to take shape, as the average value of an NIL deal for an athlete at a school in a Power 5 conference is $2,144—significantly larger than the $558 average for athletes at non-Power 5 schools.[4] Even coaches at top athletic programs have voiced concerns about some schools’ use of NIL deals as a financial incentive to attract talent, as retired Alabama football coach Nick Saban previously accused rival Texas A&M of exploiting the new rules to add players.[5]

This allocation of collegiate athletic talent to financial opportunities has been greatly facilitated by the NCAA’s loosening of restrictions on athlete transfers. While previous rules required athletes to redshirt for a year after transferring, a 2021 NCAA rule change eliminated this requirement.[6] Prior to 2018, athletes were also required to seek permission before communicating with outside coaches and those coaches were required to seek permission from the athlete’s school before reaching out to recruit them.[7] None of these restrictions are still in place today—thus allowing athletes to transfer between schools with comparative ease.

NIL deals have combined with the loosened transfer restrictions to create a market where athletes are constantly assessing whether the value of their contributions aligns with their NIL compensation. In 2022, University of Miami basketball guard Isaiah Wong’s agent publicly announced that Wong would transfer schools or leave for the NBA draft if his NIL compensation was not increased.[8] Since Florida law does not permit schools to be involved in NIL deals, the communication was largely aimed at billionaire John Ruiz—the Miami booster who had provided Wong’s then-current NIL deal.[9] This phenomenon extends across sports, as a Power 5 football coach recently remarked that a player asked him for an extra $100,000 in exchange for his continued playing services.[10]

Recent court rulings against the NCAA indicate that regulation of college athletic labor is shifting from its traditional source, the NCAA, towards state legislatures.[11] Most recently, a U.S. district court judge granted a temporary injunction against the NCAA, preventing it from enforcing any rules relating to negotiations between athletes prior to their enrollment at an NCAA institution and potential third-party NIL sponsors.[12] While this is only a temporary injunction, the judge remarked that “spreading competition evenly across the member institutions by restraining trade is precisely the type of anticompetitive conduct the Sherman Act seeks to prevent.”[13] Thus, in the absence of congressional intervention, repeated judicial incursions on the NCAA’s power signal that its role as the primary regulator of college athletics may be nearing an end.

State legislatures seem to be emerging as the dominant providers of new NIL-related governance.[14] However, the NCAA has argued for a uniform federal solution, claiming that the growing patchwork of differing state laws has created an uneven playing field.[15] Many lawmakers seem to agree, as several such bills have been introduced in Congress.[16]

A law creating federal NIL governance would inherently need to designate which issues fall under the purview of legislation and which should be left to the NCAA. The emerging trend from the recent rulings against the NCAA illustrates a common theme: courts are invalidating the NCAA’s restrictions on athletes in the labor market.[17] While student-athletes might not technically be considered school employees, the loosening of both transfer policies and restrictions on NIL compensation lend towards a more competitive free market allocation of athletic talent to schools with high-paying collectives.

Thus, one direction for future legislation would be to focus on governing the labor market for athletic talent. An effective future role of the NCAA may be in regulating the rules and structures of the sports themselves, rather than the participants in those sports. The NCAA would continue to be responsible for the areas in which it excels—determining and enforcing the rules of competition, negotiating TV deals, and providing support for student-athletes. This potential division in responsibilities between the NCAA and the government would allow for more uniform standards and more streamlined, effective roles for the two parties.

Dominic is a 2L at Vanderbilt Law School. Prior to law school, he graduated from the University of Virginia with a bachelor’s in government and from Georgetown University with a master’s in finance.

[1] Dan Whateley & Margaret Fleming, How NIL deals and brand sponsorships are helping college athletes make money, Bus. Insider (Sept. 19, 2023),

[2] Amy L. Piccola, Tricia Duffy & Levi R. Schy, NIL Legislation Tracker, Saul Ewing LLP, (last visited Feb. 26, 2024).

[3] Khristopher J. Brooks, In choosing colleges, top young athletes say: “Show me the NIL”, CBS News (June 3, 2022)

[4] The New Econo-Political Frontier: College Sports, Common Good Mag. (Oct. 2, 2023),

[5] Brooks, supra note 3.

[6] Brett Dawson, What is the NCAA transfer portal? Explaining the process for athletes switching schools, Courier J. (Jan. 12, 2023),

[7] Id.

[8] Jonathan Givony & Jeff Borzello, NIL agent says Miami hoops star Isaiah Wong will enter transfer portal if NIL compensation isn’t increased, ESPN (Apr. 28, 2022),

[9] David Cobb, Miami Isaiah Wong will stay with Hurricanes, pursue more NIL deals after threatening to transfer, CBS Sports (Apr. 29, 2022),

[10] Trey Wallace, College Football Coaches Are Now In NIL Bidding Wars Inside Transfer Portal With $100K Shakedowns From Their Own Players, Outkick (Dec. 11, 2023),

[11] How many legal challenges is the NCAA facing? It is a lot and the impacts could be big, Associated Press (Feb. 23, 2024),

[12] Teresa M. Walker & Ralph D. Russo, Judge hands NCAA another loss, says compensation rules likely violate antitrust law, harm athletes, Associated Press (Feb. 23, 2024),

[13] Id.

[14] Piccola et al., supra note 2.

[15] Ralph D. Russo, NCAA made a ‘big mistake’ by not setting up framework for NIL compensation, new president says, AP (June 8, 2023)

[16] Piccola et al., supra note 2.

[17] See NCAA v. Alston, Comment on 141 S. Ct. 2141 (2021), 135 Harv. L. Rev. 471 (2021); How many legal challenges is the NCAA facing? It is a lot and the impacts could be big, supra note 11; Walker & Russo, supra note 12.

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