III. Summary
This section provides a condensed overview of the materials in this Tab.
A. Limits on NCAA Regulatory Authority
The NCAA has regulatory authority only over member institutions. It does not have direct regulatory control over athletes, coaches, or athletic department personnel. The NCAA’s jurisdiction also does not extend to market participants unconnected to member institutions such as agents, financial advisors, boosters, shoe and apparel companies, NIL companies, and NIL collectives.
Yet, the NCAA aggressively employs strategies to regulate external influences indirectly. First, it enforces stringent rules on institutions' and athletes’ relationships with third parties like agents and boosters. Second, it allies with government and private authorities to regulate those beyond its control, often by characterizing these third parties as "bad actors" who may threaten the “integrity” of college sports.
The NCAA’s indirect regulation of athlete agents is a prime example of how the NCAA extends its regulatory reach to prevent third parties from accessing the athlete labor pool, particularly in big-time football and men’s basketball.
B. The Role of Athlete Agents
Athlete agents play significant and valuable roles in assessing an athlete's market value, negotiating contracts, and providing financial and legal advice. However, the oversupply of agents has led some to compromise professional standards and laws, often perpetuating the poor public perception of agents.
NCAA amateurism rules render largely irrelevant athlete agents’ central role and services. Thus, in college sports, agents aim to secure high-value college athletes for representation when they turn professional. If the NCAA and Power 5 eliminated their amateurism model, the motivation behind governmental regulation of athlete agents in college sports would diminish.
C. History of Athlete Agent Regulation in College Sports
The regulation of athlete agents in college sports takes place through three channels:
NCAA rules.
State athlete-agent laws (primarily through the Uniform Law Commission's Uniform Athlete Agents Act (UAAA) and the Revised Uniform Athlete Agents Act (RUA)).
Federal law (Sports Agent Responsibility and Trust Act, or "SPARTA").
The NCAA defines agents broadly and imposes stringent certification requirements. It also includes exceptions for specific sports, such as ice hockey, baseball, and men's basketball, allowing agents to assist athletes in assessing their professional draft value without losing college eligibility. However, outside these exceptions, any agreement with an agent results in an athlete losing amateur status and eligibility to compete.
In 1987, a scandal involving athlete agents led several states to augment existing laws or create new ones with strict requirements and penalties to preserve the “integrity” of college sports and NCAA principles of amateurism.
These laws aimed to control the college athlete labor force in big-time football and men’s basketball and protect universities from reputational and financial consequences of potential NCAA rules violations.
In the late 1990s, the Uniform Law Commission (ULC), in response to increasing state regulation of athlete agents, drafted the Uniform Athlete Agents Act (UAAA), which provides for uniform registration and certification of agents, agency contract terms, prohibitions on agent conduct, educational requirements for agents, and penalties.
The NCAA was closely involved with and has supported the UAAA (and subsequent revisions, including the 2015 Revised Uniform Athlete Agent Act). The UAAA promotes and protects the NCAA’s conceptualization and use of amateurism.
The primary focus of the UAAA was to regulate agents, protect universities from NCAA sanctions, and reduce athlete ineligibility rather than protect athletes.
Over 40 states have adopted some version of the UAAA, effectively codifying at a national level the NCAA's central amateurism-based principles.
In 2004, Congress passed the Sports Agent Responsibility and Trust Act (SPARTA), a federal athlete-agent law inspired by the NCAA’s and ULC’s amateurism-based model. Notably, it does not preempt state laws.
SPARTA’s substantive provisions closely follow those of the UAAA.
While SPARTA allows educational institutions and states to take legal action against agents who violate the Act, it does not provide the same rights to athletes who may have been adversely affected by an agent's actions. This omission is a vital shortcoming of the law.
Violations of SPARTA are treated as deceptive trade practices under the Federal Trade Commission Act (FTCA), with enforcement entrusted to the Federal Trade Commission (FTC)
The involvement of the FTC in SPARTA enforcement has been a point of contention. An FTC leader testified to Congress during the debate over SPARTA. He pointed out that the FTC's mandate to protect the public, in general, may not align with the individual-focused nature of athlete-agent issues.
Importantly, he also argued that incorporating NCAA rules as federal standards protects the college sports industry more than consumers or athletes.
These concerns underline a foundational flaw in regulating college sports - the NCAA's manipulation of "student-athlete wellbeing" to advocate for government regulation that primarily benefits the NCAA/Power 5 and not the athletes.
D. State Name, Image, and Likeness Laws
Since their inception in 2019, state name, image, and likeness (NIL) laws have evolved to align with the philosophies of state and federal athlete-agent laws that adopt the NCAA’s notion of amateurism and the concept of the “student-athlete." This reflects the enduring resilience of the NCAA’s foundational amateurism-based values.
State-based NIL laws share other important features, including (1) professions by the NCAA and Power 5 that they are acting out of benevolent concern for athletes’ best interests (2) lack of enforcement by state authorities, and (3) rapidly shifting state attitudes on NIL regulation built around perceptions of competitive advantage-disadvantage in recruiting.
1. SB 206
On February 4th, 2019, California State Senators Nancy Skinner and Steven Bradford introduced SB 206, the “Fair Pay to Play Act." This groundbreaking law permitted college athletes in California to earn money from their name, image, and likeness (NIL). SB 206 directly challenged the NCAA’s historic and militant opposition to any form of compensation, including NIL.
SB 206’s amendment process highlights the resilience of NCAA amateurism-based values and the effectiveness of NCAA and Power 5 lobbying.
The bill’s initial version contained one main restriction: universities could not enter into NIL deals with athletes. While this restriction preserved the NCAA’s no pay-for-play prohibition and reinforced the concept of the “student-athlete,” it would establish a viable NIL marketplace for athletes.
However, the bill underwent a rapid series of amendments that brought it into closer alignment with NCAA interests, including (1) the delay of its effective date to January 1, 2023, (2) the inclusion of NCAA-mandated “guardrails,” (3) the deletion of factual recitations in the preamble that highlighted exploitation in the NCAA’s business model, (4) the striking of the bill's very title—"Fair Pay to Play Act."
Despite the bill’s movement towards NCAA values and business interests, the NCAA Board of Governors nevertheless sent a letter to California Governor Gavin Newsome after the bill was passed in September 2019, urging him not to sign SB 206 into law because it threatened amateurism and could potentially lead to 50 different standards. They hinted at possible litigation, arguing the bill could conflict with the US Constitution's Commerce Clause.
On September 30, California Governor Gavin Newsome signed SB 206 into law.
In response, the NCAA issued a statement opposing the law and its intention to consider “next steps.”
2. Consequences of SB 206
SB 206 significantly influenced the future of college sports regulation and athletes' rights. It triggered a complex, wide-ranging, and largely secret NCAA and Power 5 strategy in Congress to eliminate all potential external regulatory threats—state legislatures, federal courts, and federal administrative agencies—from the college sports regulatory landscape.
The NCAA’s and Power 5’s strategy to eliminate state legislatures from the regulatory field centered on "uniformity" and the perceived need to create a consistent set of NIL regulations nationwide.
In May 2019, as the California legislature debated SB 206, the NCAA formed a “working group” on NIL to determine whether to continue its militant opposition to NIL compensation or relax NCAA NIL prohibitions.
After California enacted SB 206 in September 2019, the NCAA declared for public relations purposes that it supported “NIL compensation” and intended to change its NIL accordingly. However, behind the scenes, it embraced a cynical, take-no-prisoners campaign in Congress to federalize its compensation limits—including NIL—and eligibility rules.
In October 2019, the working group released an "interim report" on Name, Image, and Likeness (NIL), expressing public support for NIL “compensation” while at the same time insisting upon amateurism-based “guardrails” that made meaningful NIL compensation almost impossible.
The NCAA Board of Governors later adopted these recommendations and led stakeholders to believe that NIL rule changes would be in place by January 2021.
In November 2019, the working group quietly formed a subcommittee to devise a strategy to obtain protective federal legislation. The working group subcommittee recommended that the NCAA seek three extraordinary federal protections and immunities under the guise of “NIL compensation”: federal preemption of state laws, antitrust immunity to eliminate federal lawsuits under America’s free competition laws, and a prohibition on athletes being employees of their university.
These protections and immunities would give the NCAA and Power 5 the authority to prohibit NIL compensation.
On February 11, 2020, the NCAA and Power 5 officially launched their congressional campaign with the first of eight hearings ostensibly related to NIL rights for college athletes. The testimony from these hearings largely aligned with NCAA/Power 5 interests, with limited input from athletes.
Through the most powerful lobbyists in Washington, the NCAA and Power 5 shaped the NIL debate from the very beginning through narratives that favored their interests.
A significant aspect of the NCAA's position on NIL regulation was that preemption, antitrust immunity, and non-employment status for athletes were prerequisites for any NIL marketplace.
Any potential NIL compensation could exist only after the NCAA had secured unchallengeable authority to regulate NIL without legal consequences.
3. “Uniformity”
The NCAA and Power 5 justify their efforts to eliminate state legislatures from the regulatory space of college sports through the claimed need for uniformity. They insist that without a single national standard governing NIL, college sports will descend into chaos threatening its very existence.
There are three primary ways to achieve this legislative uniformity at the national level:
Federal preemption.
A dormant commerce clause lawsuit against states with conflicting NIL laws.
A multi-state agreement to adopt uniform laws through a body like the Uniform Law Commission.
Federal preemption, a power grounded in the Supremacy Clause of the United States Constitution, allows the federal government to nullify state laws that might compromise vital national interests. However, using preemption to safeguard the business interests of private, nonprofit entities like the NCAA and Power 5 would be unprecedented in college sports.
Another strategy the NCAA has considered is a dormant commerce clause lawsuit. This would be based on a precedent from a 1993 case, NCAA v Miller, where the 9th Circuit court ruled that a Nevada law that conflicted with NCAA rules placed an unacceptable burden on interstate commerce. It's unclear how a court might perceive a state NIL law in this context, but it presents a potential way for the NCAA to exclude states from NIL regulation.
In June 2020, the Uniform Law Commission (ULC) initiated efforts to create a voluntary NIL law to foster uniformity among state legislations.
In July 2021, the ULC adopted the Uniform College Athlete Name, Image, or Likeness Act framed largely around its athlete-agent proposals from 2000 (UAAA) and 2015 (Revised UAAA).
As with athlete-agent laws, the ULC’s NIL law defers to the NCAA’s conceptualization and use of amateurism.
No state has adopted the ULC's NIL law (the District of Columbia did in 2022).
4. State NIL Laws after SB 206
On June 12th, 2020, Florida became the third state to enact a NIL law. The law was an ode to amateurism. Florida’s law had an effective date of July 1, 2021, significantly accelerating the timeline for state laws from SB 206’s 2023 effective date.
The Florida law included several "guardrails" reinforcing amateurism, such as requiring NIL deals to reflect fair market value, prohibiting schools from engaging in NIL deals, and imposing specific contract requirements. The law lacked a clear enforcement mechanism.
Six days later, on June 18th, 2020, Florida Senator Marco Rubio introduced the “Fairness in Collegiate Athletics Act” in Congress. Rubio pitched his bill as a “NIL compensation” law. In reality, the bill offered the NCAA and Power 5 everything they wanted from Congress—preemption, antitrust immunity, and the stipulation that athletes can’t be employees—and offered little in the way of meaningful NIL compensation.
Rubio’s bill would have nullified the Florida NIL law enacted just six days earlier.
NCAA and Power 5 leaders used the timing of the Florida NIL law to speed up the debate in Congress for protective federal legislation. During a congressional hearing on July 1st, 2020, NCAA and Power 5 witnesses portrayed the Florida law as a looming, immediate threat to the stability of college sports regulation that required an immediate federal response.
E. The End of NCAA Voluntary Rulemaking on NIL
In January 2021, the NCAA unexpectedly halted its voluntary rule changes on NIL. Two events contributed to its decision.
First, the NCAA and Power 5 lost their Republican political advantage in Congress following the 2020 elections and the Democrats' ascension to the Senate on January 5, 2021, after the Georgia special elections. This fundamentally changed the political environment for the NCAA and Power 5.
Second, on December 16, 2020, the U.S. Supreme Court agreed to review the Alston antitrust case, which offered the NCAA and Power 5 a realistic possibility of achieving coveted antitrust immunity, an increasingly unlikely prospect in Congress.
On January 8, 2021, just five days after the Republicans lost control of the Senate, news broke that the head of the Department of Justice Antitrust Division had allegedly instructed the NCAA to halt voluntary rulemaking on NIL (and transfers) due to potential antitrust issues.
On January 11th, the NCAA officially ceased its voluntary rulemaking on NIL, claiming they were forced to by the DOJ.
The head of the DOJ’s Antitrust Division later disputed the NCAA’s contention that the DOJ had instructed the NCAA to stand down on NIL rulemaking.
F. The NCAA’s and Power 5’s Last-Minute Attempt to Nullify State NIL Laws
Ahead of July 1st, 2021, when six state NIL laws (including Florida's) were to become law, various states passed their own NIL laws. These laws were loaded with amateurism-based "guardrails" limiting NIL compensation, but they still allowed states to claim they had a NIL law that offered “compensation.
Alabama's NIL law, enacted on April 15th, 2021, was among the most restrictive, incorporating substantial limits on permissible NIL activity, comprehensive reporting requirements for athletes, agents, boosters, and NIL companies, and harsh penalties for non-compliance.
Some states without NIL laws also entered the NIL regulation market via executive orders from their governors to prevent a perceived competitive disadvantage for schools in those states. These executive orders likewise contained substantial limitations on athletes’ NIL activity.
Because these laws relied heavily on amateurism-based limitations, they presented little threat to the NCAA. They were broadly similar across states, contradicting the NCAA's claims for a single national standard.
As the July 1st deadline neared, the NCAA made a last-minute push for an emergency bill in Congress providing federal preemption to eliminate all state NIL laws. On June 9th, 2021, the Senate Commerce Committee held a hearing that provided momentum toward preemption.
However, on June 21st, 2021, the Supreme Court issued its unanimous 9-0 decision in Alston, denying the NCAA antitrust immunity. The ruling required the NCAA to adhere to free competition laws, a significant setback—at least symbolically—to the NCAA's use of amateurism and amateurism-based compensation limits.
While not a NIL case, the Alston decision effectively ended the NCAA's late push for preemption.
G. The NCAA’s “Interim Policy”
On June 30th, just hours before the July 1st, 2021, deadline, the NCAA announced an "Interim Policy" on Name, Image, and Likeness (NIL). The Interim Policy directed institutions in states with a NIL law or executive order to comply with those laws/orders. The Interim Policy would govern schools in states without a state law or executive order.
The Interim Policy banned compensation for athletic participation or achievement, compensation as a recruiting inducement, direct compensation from schools, and compensation without a bona fide NIL-related service an athlete provides.
The policy was designated "interim" until the NCAA either (1) changed its NIL rules or (2) secured protective federal legislation from Congress.
The NCAA hastily drafted and adopted the Interim Policy, expecting all along it would obtain a congressional bailout. The Interim Policy represented a temporary surrender of the NCAA's categorical opposition to NIL compensation for athletes.
The Interim Policy is not a rule change and exists despite the NCAA's actions, not because of them.
The NCAA contested state NIL legislation until the final hours of June 30th, 2021, to prevent the NIL era and the current NIL market from coming into existence.
Since July 2021, the NCAA and Power 5 have tried to reassert absolute control over the NIL market through protective federal legislation and NCAA rules “guidance.”
H. Post-Interim Policy NIL Derangement Syndrome
The Interim Policy led to a rapidly evolving NIL market influenced for the first time by free market principles.
Reports of high-value NIL deals dominated the media, sparking two conflicting narratives.
On the one hand, the less restrictive NIL market benefited female athletes, creating a positive inflection point for Title IX and gender equality.
On the other hand, the NIL activities of high-profile male athletes in football and men’s basketball NIL were held up as manifestations of pay-for-play, recruitment inducements, and athlete greed.
The backlash directed at high-profile athletes in Power 5 football and men's basketball fueled efforts by the NCAA and Power 5 to secure federal legislation, using outlier NIL deals as evidence of a supposedly toxic NIL market.
Schools in states without NIL laws or executive orders (operating under the Interim Policy) enjoyed more market flexibility than those with restrictive NIL laws or executive orders.
Consequently, states with restrictive NIL laws moved to repeal, amend, or suspend those laws to operate under the more permissive NCAA Interim Policy.
The driving force behind these changes was fear of a competitive disadvantage in recruiting.
This response underscores two critical trends in college sports state regulation.
First, the primary motivation of key decision-makers is to protect institutional interests over athletes' interests.
Second, state legislatures, especially those with major Power 5 football programs, are willing to rapidly modify their laws to meet the perceived needs of their universities. The transition from restrictive NIL laws to the NCAA's more permissive Interim Policy highlights these dynamics.
I. The Enforcement Charade
The NCAA’s and Power 5’s continued pursuit of federal protections and immunities raises a fundamental question: what good are rules, policies, and laws if they're not enforced?
Historically, enforcement cases stemming from athlete-agent laws at the state level have been minimal. Enforcement of state NIL laws or executive orders by governors is nonexistent.
At the federal level, there has yet to be a verified case of the FTC using its authority under SPARTA to enforce its provisions.
Moreover, since adopting the "Interim Policy" on Name, Image, and Likeness (NIL) in June 2021, the NCAA has refrained from enforcing its own rules relevant to NIL activity.
This has resulted in a regulatory vacuum. However, it is a vacuum created by the NCAA and Power 5. Ironically, they characterize the current dysfunctional regulatory environment as "chaos" and "crisis." However, this current state of college sports regulation directly results from the NCAA’s and Power 5’s inability to self-govern.
There is scant evidence that a federalized NIL market with federal enforcement will be any more effective.
J. Other State Laws
States have also regulated college sports in other areas, including revenue sharing, employee status, and anti-NCAA enforcement laws.
1. Revenue Sharing Laws
Several states, including California, have introduced revenue-sharing bills designed to enable athletes to receive financial distributions from sports that generate net revenue, provided certain conditions are met.
As a practical matter, the only two sports that consistently generate net revenue in college sports are Power 5 football and men’s basketball. Power 5 schools use that revenue to fund nonrevenue and women’s sports that cannot pay for themselves.
Two prominent California bills, the "California Race and Gender Equity Act" (2022) and the "College Athlete Protection Act" (2023), have tested the political viability of revenue sharing.
These bills faced aggressive opposition from NCAA and Power 5 interests. A primary concern was the perceived threat to women's and Olympic sports if some portion of football and men’s basketball revenue went to the laborers who earned it.
Opponents argued that if Olympic and women’s sports could not be fully subsidized by football and men’s basketball, universities would have to eliminate Olympic and women’s sports teams.
This is a misleading narrative because over 95% of all NCAA schools pay for their athletics budgets in whole or in part from their general university budgets and not athletics budgets.
This narrative creates a false financial and equity binary.
NIL opponents made the same zero-sum arguments to derail NIL compensation.
However, the NIL market has not harmed female athletes or the flow of money to athletics departments. Female athletes have thrived in the NIL era, and college sports revenues are skyrocketing.
In legislative debates on revenue sharing (and NIL), opponents have yet to produce evidence or expert testimony to substantiate the claimed financial and equity harms.
Instead, politicians face a deluge of equity-based doomsday predictions from highly skilled lobbyists.
2. Employee Status Laws
After the Northwestern football team's unionization attempt in 2014, some states have taken measures to prohibit athletes from obtaining employee status. NIL laws, which restrict universities from engaging in NIL deals with their athletes, reinforce this non-employee assumption.
In 2015, state legislatures in Michigan and Ohio passed amendments to their labor laws to exclude full-scholarship athletes from being considered employees.
In 2022, a Michigan state legislator introduced a bill that would go the opposite direction and define certain college athletes as employees to bring them within the coverage of state labor laws explicitly. The bill has yet to move forward as of June 2023.
3. Anti-NCAA Enforcement Laws
After the NCAA adopted its Interim Policy on NIL in June 2021, several states—including Texas, Oklahoma, Missouri, and Colorado—passed or amended NIL laws to diminish the NCAA’s enforcement jurisdiction and authority.
Texas, for instance, has updated its NIL law to prevent any athletic association or conference from enforcing rules or regulations restricting the institution from participating in intercollegiate athletics, notably post-season play.
Given the absence of NIL enforcement by any regulatory body with jurisdiction, it’s unclear why anti-enforcement laws are relevant.
Whatever these states' motivations may be, anti-enforcement laws have the practical effect of bolstering the NCAA’s and Power 5’s quest in Congress for the preemption of state laws.
This perceived conflict between state legislatures and the NCAA may also offer a renewed basis for a dormant commerce clause lawsuit.
K. Conclusion
State regulation of college sports has historically been aligned with the foundational NCAA principles of amateurism, the “student-athlete,” and the “collegiate model.”
Those values have been passed down from one legislative generation and are embedded in the way state legislatures think about the relationship between athletes and institutions.
As with their portrayal of federal litigation and administrative agency action, the NCAA’s and Power 5’s claims that state laws pose an existential threat to college sports are grossly exaggerated.
