The NCAA appears to have reached a crossroads in governing college sports. This is true whether the NCAA wants to admit it or not. The NCAA is fighting tooth and nail to "preserve its revered tradition of amateurism." However, everyday more and more Americans are beginning to see amateurism for the farce that it is. College athletes are finding their voice by standing up for themselves and making demands on the system their labor propels. The NCAA suffered yet another blow in the Alston v. NCAA (Alston) case. Nevertheless, the NCAA is still on its quest to retain the current structure of college athletics. As such, the NCAA submitted a draft of a bill they would like Congress to enact governing college athletes' name, image, and likeness (NIL) rights. The bill is nothing less than another attempt by the NCAA to retain its power and control.
The NCAA Wants to Take Alston v. NCAA to the Supreme Court
On July 6, 2020, the NCAA sought to have the United States Court of Appeals for the Ninth Circuit stay the impending injunction in Alston. In Alston, former and current college athletes sued the NCAA claiming that their amateurism rules violated federal antitrust law. The district court judge ruled and the appeals court judges affirmed that the NCAA's rules restricting college athletes' ability to receive education-related benefits were too restrictive and in violation of federal antitrust law. As such, the court issued an injunction prohibiting the NCAA from restricting education-related benefits for college athletes. The NCAA moved to have the injunction stayed. The United States Court of Appeals for the Ninth Circuit denied the NCAA's motion on August 4, 2020. On the very next day, the NCAA petitioned to the United States Supreme Court to stay the injunction.
If the United States Supreme Court denies the NCAA's petition, colleges and universities will be able to provide unlimited education-related benefits to their students immediately. The fact that the NCAA petitioned the Supreme Court to say an injunction that would allow college athletes to receive greater education-related benefits demonstrates that the NCAA will stop at nothing to maintain the status-quo.
The Intercollegiate Amateur Sports Act of 2020
At the end of July, the NCAA submitted to Congress the proposed legislation the organization would like enacted regarding college athletes' name, image, and likeness rights. The proposed legislation is entitled The Intercollegiate Amateur Sports Act of 2020. The proposed legislation, like everything else from the NCAA regarding NIL rights, is vague and more focused on ensuring that the NCAA retains its control over college sports than it is on allowing college athletes to finally have an equitable share in the billion-dollar industry that their labor propels. The entire four-page document is the NCAA begging Congress to take away the only avenues of redress college athletes have to fight the creation of a more equitable college athletics system.
At the outset, the NCAA makes it clear that the purpose of the legislation is to allow the NCAA to continue to preserve the tradition of amateurism in college sports. The NCAA seeks to accomplish by having Congress preempt any state law enacted regarding college athlete compensation, intellectual property rights, employment status, or qualifications of amateur intercollegiate athletes. Federal preemption is imperative as the NCAA seeks to nullify laws that have been enacted to allow college athletes to profit from their NIL in California, Colorado, and Florida.
The NCAA is also seeking to have Congress grant it a federal antitrust law exemption. Over the years, the NCAA has faced a number challenges in court. Many of the challenges, like O'Bannon v. NCAA and Alston v. NCAA, have been based on federal antitrust law. In the proposed legislation, the NCAA asserts that being subject to litigation impedes the NCAA's ability to do its job of preserving amateurism and ensuring a level playing field for all college athletes. The NCAA wants Congress to take college athletes only avenue to fight for their rights and is seeking to do so in a document where they should be expanding college athletes NIL rights.
The proposed legislation does not get into the specifics of how the NCAA will expand the rights of college athletes like its counterpart that was introduced by the Power 5 conferences in early July. However, the proposed legislation does state that the NCAA will establish rules, standards, and procedures governing benefits or payments with respect to college athletes use of their NIL no later than June 30, 2021.
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