II. Key Takeaways
1. State Legislatures have historically aligned more with NCAA, conference, and institutional interests than athlete interests.
2. State athlete-agent laws and most early NIL laws were built around the assumption of the legitimacy of amateurism, the student-athlete, the collegiate model, and the presumption that athlete-agents and NIL market participants are “bad actors.”
3. The NCAA has no direct regulatory jurisdiction over athletes, agents, NIL companies, boosters, or NIL collectives. State athlete-agent and NIL laws that impose burdensome credentialing and reporting requirements and civil and criminal penalties on market participants indirectly extend the NCAA’s regulatory reach.
4. Before the NCAA’s June 30th, 2021, “Interim Policy,” nearly all state NIL laws (enacted or proposed) were loaded with amateurism-based “guardrails” that made meaningful NIL “compensation” virtually impossible (e.g., cannot use school logo, fair market value restrictions, cannot contract with a third party if it conflicts with a school contract). Legislatures argued these substantial limitations were necessary to protect the “integrity” of college sports.
5. The “Interim Policy” was more permissive than any existing state NIL law or state governors’ executive order.
6. After the “Interim Policy,” some states with restrictive “integrity-based NIL laws repealed, amended, or suspended those laws to operate under the more permissive “Interim Policy.”
7. The driving force behind nearly all state laws/regulations relating to college sports is to gain or avoid losing a competitive advantage in recruiting.
8. The NCAA and Power 5 conferences have consistently and aggressively opposed athlete-friendly state laws (e.g., some NIL laws and revenue sharing proposals).
9. State laws regulating college sports are rarely enforced. In the new NIL market, no state has taken any enforcement action.
10. Despite the NCAA’s and Power 5’s claims that federal preemption of state laws is necessary to avoid a “patchwork” of state NIL laws, there is substantial uniformity in state NIL laws.
11. A less regulated state-based NIL marketplace has not resulted in the fatal collapse of college sports, elimination of nonrevenue and women’s sports, or reduced college sports revenues.
