Over forty states have athlete-agent laws modeled after the Uniform Law Commission’s Uniform Athlete Agent Act (UAAA, 2000), the Revised Uniform Athlete Agent Act (RUAA, 2015), and amendments in 2019. 

The advent of the NIL era has complicated the state regulation of athlete agents because many NIL laws permit athletes to retain agents. The relationship between (1) NCAA NIL rules, policies, and policy “guidance,” (2) preexisting athlete-agent laws that did not envision NIL compensation, and (3) new state NIL laws that expressly permit agency relationships has created a state regulatory environment that is rapidly changing and evolving.

The perceived uncertainty in the NIL regulatory environment, including the role of agents, has been a primary justification for the NCAA and Power 5 to seek Congressional intervention to federalize the name, image, and likeness market.

This section discusses at a broad level: (1) the role of athlete agents, (2) the historical regulation of athlete agents in college sports from the 1980s to the present, and (3) how the NCAA and Power 5 have used “bad actor” agent narratives to seek state and federal governmental legislation and policies that protect the NCAA’s and Power 5’s amateurism-based business model.

A. The Role of Athlete Agents 

Athlete agents offer various services that may benefit athletes, including assessing an athlete’s market value, negotiating salary and other forms of compensation, drafting employment and other contracts, providing financial advice and investment strategies, and in many cases offering legal advice (many agents are attorneys).

Agents can level the playing field in the balance of power between very sophisticated owners/leagues/associations and less knowledgeable athletes. 

In professional sports before the 1970s, most athletes represented themselves and often wound up in contracts more advantageous to owners. The rise of sports agents since the 1970s resulted in substantial increases in athletes’ salaries and other economic opportunities. As the market value of athletes skyrocketed in the 1980s, 1990s, and into the 21st century, the supply of agents exploded as well.

The market is now over-saturated with agents vying for relationships with a relatively small pool of high-value athletes. This imbalance has led some agents to blur or ignore professional standards and laws. 

Because of the hyper-competitive agent market, agents as a class have a poor public perception. The overzealous agent has even been romanticized in popular culture through movies like Jerry McGuire. The “unscrupulous” agent scandals that make headlines do not accurately portray the agent industry. 

While professional sports agents must comply with state agent laws, the impetus for state athlete agent laws has been “scandals” in college sports.

Professional sports league players’ associations have their own agent certification processes to ensure that agents are competent and trustworthy. A stamp of approval from a professional players’ association is more important to agents in the professional leagues than a stamp of approval from a state agent regulatory authority.

The role of agents in college sports is much different because the NCAA’s amateurism-based business model—until the NIL era—essentially eliminated the central purpose of agents. If athletes aren’t paid and aren’t employees, negotiations over salary and employment issues are impossible. 

Thus, agents targeting college athletes aren’t seeking to provide actual agent services while athletes are still in college. Instead, agents try to get high-value, high-profile college athletes (mostly in Power 5 football and men’s basketball) to agree to use the agent once the college athlete turns pro. 

As discussed more fully below, the chronic athlete agent “crisis” in college sports—at least through the eyes of NCAA and Power 5 leaders—is mainly the product of amateurism itself.

If the NCAA and Power 5 dropped their amateurism model, the ostensible driving motivation behind governmental regulation of athlete agents in college sports—preserving “amateurism” and the “integrity” of college sports—would be less relevant. (see Diane Sudia, The History Behind Athlete Regulation and the Slam Dunking of Statutory Hurdles, 8 Jeffrey S. Moorad Sports L.J. 67 (2001)

B. The History of Athlete Agent Regulation in College Sports

The regulation of athlete agents in college sports runs through three pathways:

1. NCAA rules

2. State athlete-agents laws (harmonized through the Uniform Law Commission’s UAAA and RUAAA)

3. A hybrid Federal-State law (the Sports Agent Responsibility and Trust Act, “SPARTA”) 

1. NCAA Rules

NCAA athlete agent regulation generally tracked the rise of athlete agents in professional sports in the 1970s and 1980s.

The NCAA adopted athlete agent rules largely prohibiting relationships between athletes and agents and were built around the public relations rhetoric that athlete agents were “bad actors.”

NCAA Bylaw 12.02.1 defines “Agent” broadly as “…any individual who, directly or indirectly: (a) Represents or attempts to represent an individual for the purpose of marketing the individual’s athletics ability or reputation for financial gain; or (b) Seeks to obtain any type of financial gain or benefit from securing a prospective student-athlete’s enrollment at an educational institution or from a student-athlete’s potential earnings as a professional athlete.”

Bylaw 12.02.1.1 captures every conceivable type of “agent”: “[a]n agent may include, but is not limited to, a certified contract advisor, financial advisor, marketing representative, brand manager or anyone who is employed or associated with such persons.”

This sweeping definition of “agent” has limited exceptions for specific sports, such as ice hockey, baseball, and men’s basketball (Bylaw 12.3 “Use of Agents”). For example, because of the Commission on College Basketball recommendations, men’s basketball players may retain an agent to assist the athlete in assessing his professional draft value without losing college eligibility. 

Such agents must be certified by the NCAA through a process the NCAA touts as more stringent than some professional players’ associations. The NCAA charges hefty fees for agents applying for certification.

Outside these limited exceptions, an athlete who enters into any agreement with an agent loses their amateur status and cannot compete (Bylaw 12.1.2 (g) and Bylaw 12.3.1).

2. State Laws and a Hybrid Federal-State Law

In 1981, California became the first state to pass an athlete agent law. The law required agents to register, obtain licenses, and post honesty bonds.

It was designed to protect college athletes, not institutions.

As other states passed athlete agent laws, the emphasis evolved away from athletes and towards protecting the business interests of schools and conferences. (see Stiglitz, Jan NCAA-Based Agent Regulation: Who Are We Protecting," North Dakota Law Review 67 North Dakota L. Rev. 215 (1991))

i. The 1987 Athlete Agent “Crisis” and the Initial State Legislative Response

In 1987, news broke that three athlete agents, Norby Walters, Lloyd Bloom, and Jim Abernethy, had paid approximately fifty college athletes hundreds of thousands of dollars (combined) in cash and other in-kind benefits (clothing, hotel, travel, etc.) to sign agent contracts before their college eligibility expired.

Walters and Bloom, who worked together through an agency in New York, signed many high-profile athletes—mainly football and men’s basketball players—who would play professionally. Abernethy worked independently out of Atlanta. (for a deeper dive into the scandal and its effect, see Charles W. Ehrhardt & J. M. Rodgers, Tightening the Defense Against Offensive Sports Agents, 16 Fla. St. U. L. Rev. 633 [1988])

Walters and Bloom became poster boys for bad actor agents. They openly disregarded NCAA rules, knowing the NCAA had no direct regulatory authority over them. They targeted vulnerable black athletes from challenging financial circumstances.

If those athletes chose another agent when they went pro, Walters and Bloom used threats of violence and litigation as intimidation tactics.

The fallout from the scandal was widespread, resulting in many athletes losing their eligibility. 

The NCAA punished schools, including forfeiture of NCAA post-season revenues.

All three agents faced federal and state prosecutions.

In Walters’ federal prosecution, evidence at trial linked him to organized crime.

Until the 1987 scandal, state laws that regulated agents were primarily oriented toward burdensome licensing, credentialing, and disclosure requirements. Standard provisions also included prohibitions on soliciting college athletes, surety bonds, and civil and criminal penalties. 

However, in response to the scandal, states began augmenting existing laws or passing new ones with more stringent requirements and penalties. Several states quickly passed laws with varying requirements designed ostensibly to preserve the “integrity” of college sports and NCAA principles of amateurism. Many included criminal penalties for athletes.

While these laws were presented as integrity-based, they also served to control the most valuable college athlete labor forces (football and men’s basketball) and insulate in-state universities from the reputational and financial consequences of potential NCAA rules violations. 

The primary policy concerns centered on protecting in-state beneficiaries of athlete labor, not the athletes themselves.

ii. The Uniform Law Commission and “Uniformity 1.0”

The Uniform Law Commission (ULC) is a non-partisan, nonprofit, private commission comprised of over 300 lawyers, law professors, judges, and legislators. The ULC “promote[s] the principle of [state legislative] uniformity by drafting and proposing specific [state] statutes in areas of the law where uniformity between the states is desirable. It must be emphasized that the ULC can only propose—no uniform law is effective until a state legislature adopts it.”

As more and more states passed legislation to regulate athlete agents in the 1980s and 1990s, some stakeholders believed there should be a uniform standard. In the late 1990s, the ULC deliberated on a uniform athlete agent law that states could adopt.

In 2000, the ULC approved the Uniform Athlete Agent Act (UAAA). In 2015 it updated the Act through the Revised Uniform Athlete Agent Act (RUAA). In 2019, it liberalized some features of the Act to conform to agent-related recommendations of the Commission on College Basketball adopted by the NCAA in 2018.

The Act provides for (1) uniform registration and certification of agents, including disclosure and reporting requirements, (2) uniform agency contract terms for NCAA-permissible agent relationships, (3) certain prohibited conduct such as providing false information, promises, or representations to induce an athlete to enter into an agency contract, initiating contact with an athlete without being registered in the state, providing anything of value to a “student-athlete” as an inducement to enter into an agency contract, (4) a “cooling off” or mandatory waiting period before any agency contract becomes effective, (5) education requirements for agents, and (6) civil and criminal penalties and (7) rights of action for institutions and athletes against agents who violate the Act (rights of action for athletes were not available until RUAAA in 2015).

The impetus for the UAAA in 2000 was not to protect athletes, but to regulate agents, protect universities from NCAA sanctions, and reduce athlete ineligibility. 

Notably, the core restrictions on agent conduct align with foundational NCAA rules and amateurism-based values. 

The NCAA has collaborated with the ULC throughout its work on athlete-agent laws.

For example, in 2013, the NCAA website published material expressly promoting the UAAA. Attached to an NCAA memo titled “Agents and Amateurism” are  (1) a talking points memo for NCAA stakeholders who may testify to state legislatures on the UAAA,  (2) a draft lobbying letter targeted to state legislators, and (3) a model press release for legislative staff members.

As noted above, more than 40 states have adopted some version of the UAAA.

This means, as a practical matter, that the NCAA has succeeded in having its central amateurism-based principles codified as law in nearly every state.

At the beginning of the NIL era, the enduring power of the amateurism-based value system in state legislatures was evident. Even state laws portrayed by the NCAA and Power 5 as “radical”—like the California NIL law and proposed revenue-sharing laws—evolved to appease NCAA/Power 5 interests.

iii. The Sports Agent Responsibility and Trust Act of 2004 (SPARTA): Congress Adopts the NCAA’s and ULC’s Amateurism-Based Philosophies 

Through the evolution of state athlete-agent laws into the 21st century, some stakeholders—notably the NCAA— believed a federal athlete-agent law was preferable to state-based regulation.

In 2004, Congress passed SPARTA, a hybrid federal-state athlete-agent law that deferred to NCAA amateurism-based values.

SPARTA is modeled after the UAAA and is clearly directed to college sports and agents, not professional ones. The Act defines “Athlete Agent” as “an individual who enters into an agency contract with a student-athlete, or directly or indirectly recruits or solicits a student-athlete to enter into an agency contract…” (emphasis added)

SPARTA substantive provisions are bare-boned and track the UAAA’s basic terms, including:

1. Certain prohibited conduct (false representations, financial inducements, predated/postdated contracts).

2. Mandatory disclosures.

3. Written contracts with a warning to athletes that they may lose their eligibility if they sign with an agent.

SPARTA uses a dual federal-state regulatory model that does not preempt state laws. At the federal level, a violation of the Act is treated as an unfair and deceptive trade act under the Federal Trade Commission Act (FTCA). The enforcement section of SPARTA states that the FTC “…shall enforce this chapter in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the [FTCA] were incorporated into and made part of this chapter.” 

SPARTA permits rights of actions by states and educational institutions (“Protection of Educational Institution”) against agents for violating the Act. Importantly, as discussed in more detail below, SPARTA does not provide a right of action for athletes who have been harmed by the actions of an agent. This is a crucial limitation.

The deference Congress gave to the NCAA and amateurism-based values is highlighted in SPARTA’s “Sense of Congress” provision:

“It is the sense of Congress that States should enact the Uniform Athlete Agents Act of 2000 drafted by the [ULC] to protect student-athletes and the integrity of amateur sports from unscrupulous sports agents. In particular, it is the sense of Congress that States should enact the provisions relating to the registration of sports agents, the required form of contract, the right of the student-athlete to cancel the agency contract, the disclosure requirements relating to record maintenance, reporting, renewal, notice, warning, and security, and the provisions for reciprocity among the States.” (emphasis added)

SPARTA’s legislative history demonstrates the influence that NCAA and institutional interests exert in the corridors of American power and the ease with which decision-makers adopt amateurism-based values with very little critical analysis or resistance. (for a discussion of SPARTA’s legislative history, see Edmonds, Manz, and Kettleman “Congress & Sports Agents: A Legislative History of the Sports Agent Responsibility and Trust Act” [2008])

A driving motivation for Congressional action was the perceived need for complete uniformity in regulating agents. At the time, approximately twenty-eight states had adopted the UAAA, and SPARTA was viewed as a protective “federal backstop” in states that did not have athlete-agent laws. 

Proponents of SPARTA justified it as a necessary safeguard to protect vulnerable student-athletes from predatory agents. Yet, as noted above, the bill did not provide any way for athletes to protect their interests.

Congressman Mel Watt (D-NC) tried to amend initial drafts of SPARTA to include a right of action for athletes. The best he could do was the inclusion of a “Limitation” provision that said, “[n]othing in this chapter shall be construed to prohibit an individual from seeking any remedies available under existing Federal or State law or equity.”

In a fitting irony, the “Limitation” provision immediately follows the “Protection of Educational Institution” section that explicitly grants an educational institution a right of action against an agent for any damages caused by a violation of SPARTA.

Howard Beales, then the Director of the FTC’s Bureau of Consumer Protection, testified in Congress when SPARTA was being considered in 2002. Beales offered a broad-ranging critique of SPARTA’s premises and its use as a consumer protection tool.

Beales raised several critical points to question SPARTA’s purpose and effectiveness:

(1) Beales suggested that using the FTC to regulate athlete-agent issues wasn’t on a scale that would justify FTC involvement from a policy standpoint.

(2) The FTCA already covers deceptive trade practices, which renders SPARTA duplicative and unnecessary.

(3) The adoption of NCAA rules and values as federal standards may function to protect the college sports industry rather than consumers. Beales said Congress should “examine the need for, and appropriateness and carefully examine the underlying private restraint [NCAA rules] before enacting [them] into law.”

(4) If Congress’s main concern is protecting athletes, it should enact a law outside FTC jurisdiction giving athletes a private right of action. This approach would be far more efficient in safeguarding athlete interests than using the FTC as a national athlete agent police force.

(See Edmonds, Manz, and Kettleman)

Watt’s and Beales’ concerns about SPARTA drive home one of the most fundamental values-based deficiencies in the regulation of college sports: the NCAA’s and Power 5’s dishonest use of “student-athlete well-being” as a guise for governmental regulation that protects the NCAA and Power 5, not athletes.

In yet another head-spinning irony in the regulation of college sports, the NCAA and its membership successfully lobbied Congress to use the power of the federal government under SPARTA to police athlete agents for unfair and deceptive trade practices when the NCAA and its membership used patently unfair and deceptive narratives—concern for vulnerable athletes—to get the bill passed.

Beales’ warnings should be on the tale in current discussions on the federal government’s role in regulating college sports. 

His criticisms of SPARTA are crucial because they raise the ultimate premise issue: whether it would ever be appropriate for the federal government to adopt and protect private industry business interests and rules as federal law and use the law enforcement powers of the federal government to promote and protect those interests. 

Many of the bills proposed by NCAA/P5-friendly Congress members invoke the FTC’s regulatory authority and enforcement capabilities. Some bills are cut and pasted from SPARTA’s use of the FTC. Similarly, some NCAA/Power 5 proposals would amend SPARTA to expand the “bad actors” list to include boosters, NIL companies, and NIL collectives.

However, Congress or in-system stakeholders have not discussed the appropriateness of federalizing college sports regulatory and business models to protect a very small collection of private, nonprofit business interests.

No FTC member has been called to testify at the twelve congressional hearings on “NIL compensation.” Given the extraordinary power the FTC would theoretically wield under some NCAA-friendly bill proposals, shouldn’t the FTC weigh in today as Mr. Beales did in 2002 regarding SPARTA?

Through their sophisticated lobbying campaign in Congress, the NCAA and Power 5 have successfully dodged this critical threshold inquiry. 

Finally, it is important to note that over SPARTA’s 20-year history, there is no evidence that the FTC has used its authority to pursue a single athlete agent case.