NIL saga: AGs of Georgia, Alabama, Arkansas, Mississippi, SC file brief in support of NCAA

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Dennis Dodd
@dennisdoddcbs

The attorneys general of Montana, Mississippi, Georgia, South Carolina, Ark, Ala, North Dakota & South Dakota have filed an amicus brief supporting the NCAA in the Supreme Court case. Says Ninth Circuit ruling "threatens serious harm to collegiate sports."

Brief of Supporting Petitioners (PDF)

10:47 AM · Feb 11, 2021

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Congress is considering multiple bills that would grant college athletes the right to earn money off the use of their name, image and likeness, known as “NIL.” Five states already have passed legislation addressing athlete endorsements, and more than two dozen others are considering bills.

The opinion issued May 18 by a three-judge panel in the United States Court of Appeals for the Ninth Circuit upheld a district court’s decision saying the NCAA can’t place restrictions on the education-related benefits available to athletes playing in Division I Football Bowl Subdivision or Division I men’s or women’s basketball.

The general trend is clear and it points toward greater opportunities for student-athletes to receive greater benefits, whether in the form of education-related benefits from their university or NIL compensation from third parties.

The justices accepted a petition from the NCAA defending its restrictions on compensation for some college basketball and football players, which could have major implications for the way college sports is governed and the authority granted to the NCAA.

The NCAA, along with the major college sports conferences, asked the justices to review the decision by the Ninth Circuit, which said the rules were anti-competitive.

While the Supreme Court won’t necessarily be hearing NIL arguments, the antitrust case is a related issue that strikes directly at the NCAA’s power and authority.

Jeffrey Kessler, a prominent sports labor lawyer and frequent NCAA opponent, said in an emailed statement: “We look forward to the Supreme Court reaffirming that the antitrust laws apply to the big business of Division I basketball and FBS football with full effect and that the era of athlete exploitation at our biggest colleges and universities must come to an end.”

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This ongoing public debate about the best way forward for the complex issue of student-athlete compensation has been sidelined by a single federal district court in California. Rather than let that debate play out, their decisions have effectively installed a single federal judge as the sole referee of college amateurism rules, imposing heavy costs — both monetary and opportunity — on the States and their institutions of higher education.

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The Ninth Circuit and the district court ruled that the NCAA would have to prove that every aspect of their amateurism regulations were entirely necessary to further pro-competitive benefits. That standard ensures that any attempt at regulation will be subject to endless challenges. And they intend for a single district court in California to decide NCAA policy for all the relevant stakeholders, most of whom had no voice during this litigation. The better path is comprehensive, national regulation that can better account for all the interests at stake.

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Schools fund college athletics because they benefit students, communities, and states, not because they are a money-making endeavor.

Yet the courts considered neither the benefits that flow from amateur college athletics to all involved, nor the tremendous costs that will be necessarily, forcing schools to choose between either spending more on their athletic department — which for most schools is already funded by student fees and university support — or cutting sports.

In break-even programs, revenue-producing sports — like football and basketball — provide funding for non-revenue sports. If revenue dips or expenses increase, these non-revenue sports are the first on the chopping block.

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