At this writing, an Illinois General Assembly bill is awaiting Gov. J.B. Pritzker’s signature. The bill allows collegiate athletes in Illinois schools to profit from their use of their name, image or likeness.
What does that mean and what impact does that legally have on the NCAA’s governance rules?
Let’s try to untangle this legal bench-clearing policy scrum.
The NCAA is a collection of over 1,100 universities, private and public, from across the nation voluntarily joined together as an “association.” Associations are persons (or in this case, universities with athletic programs) that are bound to each other by consensual contractual agreement to promote and operate a mission.
The NCAA’s mission is athletic competition between its member schools.
The NCAA has created, as many associations do, a set of rules to operate by. One of those is the restriction of university athletes to get monetary compensation from third parties, or the schools themselves, for participating in NCAA athletic events.
The main exception to the compensation-bar under NCAA rules is, of course, getting free tuition and possibly food or campus housing stipends provided to the athlete by his/her school.
In recent years, the notion has been raised in several states, with Illinois now joining that pass-rush, of allowing athletes to monetize their name, image and likeness. In other words, athletes should be allowed to make money selling products.
The pressure has been building on the NCAA to act on this by amending their own rules. The resistant NCAA Board of Directors has not moved quickly enough to some states’ liking.
Can states overrule NCAA rules?
Sure. Well, maybe.
States are governmental entities empowered to legislate laws binding businesses (and not-for-profit associations) operating within their state so long as the legislation is not in violation of that state’s constitution or the U.S. Constitution or any federal legislation.
A law passed in a state would only be binding on those schools within that state and no others. Thus, California law dealing with NCAA athletes’ making money is not binding in Connecticut.
However, within a state, such legislation could overrule any rule of the NCAA which is in conflict. Private organizations may not have rules or restrictions that are contrary to valid state (or federal) law.
What if Congress passed a law allowing college athletes’ compensation?
To the extent a state’s law is contrary to the federal, the federal law prevails under the U.S. Constitution which plainly states that federal law is supreme.
A federal law could impart uniform standards which are missing in the hodgepodge of state laws which might otherwise trigger an imbalance in recruitment.
Some states’ athlete-endorsement laws might be tastier than others for the athlete perusing the national buffet of schools to enroll in.
The feds would have authority to overrule the NCAA rules ostensibly from its constitutionally stated power to regulate interstate commerce — which NCAA athletic events arguably are. Indeed, the NCAA might challenge any state’s laws by arguing that only Congress can regulate the NCAA rules of interstate athletic competition. States are thus precluded from doing so, argues the NCAA, unless Congress specifically allowed them to.
Stay tuned on that.
The swim meet for paying college athletes has begun.
But not everyone is racing in the same pool.
Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.