William & Mary Law Review


Nathaniel Grow


In June 2021, a unanimous U.S. Supreme Court issued its eagerly anticipated decision in National Collegiate Athletic Association v. Alston, ruling for the first time that NCAA rules governing student-athlete eligibility are subject to full scrutiny under federal antitrust law. Although the immediate impact of the Alston decision was rather modest—merely requiring the NCAA to allow its schools to compete by offering prospective players education-related benefits such as laptop computers and stipends for future graduate-level study—the Court hinted that it was prepared to extend the logic of this ruling much further, calling into question the legality of the NCAA’s entire model of “amateur” intercollegiate athletics. As a result, many suspect that it is only a matter of time before the judiciary requires the NCAA to introduce some form of “pay-for-play” to college sports.

This setback for the NCAA coincided with another monumental change to the college sports landscape in the summer of 2021. Within days of its decisive loss at the Supreme Court, the NCAA—for the first time—decided to allow student-athletes to retain their collegiate eligibility despite having monetized their so-called “name, image, and likeness” (NIL) rights by signing endorsement contracts with third-party companies. The association did not do so willingly, however, but only after its hand was forced by the twenty-seven different states that had enacted legislation prohibiting universities within their jurisdiction from denying their college athletes this right.

In response to these events—and the Supreme Court’s admonishment in particular—the NCAA and its membership began to rethink the association’s supervisory role over intercollegiate athletics. Most notably, the NCAA recently ratified a significant overhaul of its organizational constitution in January 2022. This has set the stage for a meaningful decentralization of the industry, with increased decision-making authority likely to be delegated back to individual universities and conferences.

Although such a response to the events of 2021 is more than understandable given the association’s potential legal liability post- Alston, the NCAA’s restructuring nevertheless threatens to exacerbate several undesirable trends in intercollegiate athletics. Indeed, the uncommon industrial organization of U.S. intercollegiate athletics has created atypical economic incentives that have already resulted in remarkably elevated levels of deficit spending, a high degree of competitive imbalance on the playing field, and insufficient protection of student-athletes’ education and medical well-being. Unfortunately, because the college sports industry faces an unusual legal impediment that will hinder its ability to successfully adjust to increased commercialization and competition between schools—namely, an inability to collectively bargain with its players on an industry-wide basis—the coming decentralization is likely to only further exacerbate these problems.

Therefore, this Article asserts that Congress should intervene to help chart the course for the future of U.S. intercollegiate athletics. Specifically, this Article makes the case for granting the NCAA and its member institutions a limited and conditional antitrust exemption, proposing two alternative models that would give the industry the power to regulate itself while simultaneously imposing meaningful reforms on the NCAA to ensure that its governance model better advances the interests of its players in the future.