The NCAA had reportedly found a way to keep amateurism, its body of rules that attempts to identify college sports from professional sports, and end lawsuits that threaten to create the association destitute and dead when power conferences and attorneys for former and current Division I athletes finalized a multibillion-dollar settlement agreement to solve the House, Carter, and Hubbard competitive litigations.
To be sure, the NCAA conceded significant changes in a secular student-athlete type. Schools would be able to give players for media rights, sponsorships for tickets, and NIL in the new earth. Additionally, the arrangement calls for the NCAA, its representative institutions, and workshops to pay athletes$ 2.8 billion over a 10-year time as recompense for denying them NIL, video game, and broadcast opportunities in recent years.

However, the agreement also includes other details that indicate that the NCAA will continue to be the NCAA’s supervisor of college athletics. Instead of a free marketplace where colleges had bid one another in an arms race for the best prospects, they may have a salary cap-like roof of$ 21 million for payments to all software athletes. The agreement also includes fair market value analysis of NIL deals over$ 600, ostensibly to prevent that they are n’t pay-for-play agreements masquerading as NIL contracts. NIL is supposed to be about the commercial use of an athlete’s right to publicity, so NIL deals should operate more like influencing and endorsement agreements than pleas to attend or stay at a college.
The NCAA would n’t be what it once was in a post-settlement world, but it would still be in charge. And it could still credibly use longstanding terms and conventions like” student-athlete” and “amateurism”.
Then the last few weeks happened.
U.S. District Judge Claudia Wilken made it clear during a court hearing on September 5 that she would n’t grant preliminary approval of the settlement unless the parties had forged significant modifications.
The settlement’s intention to regulate NIL deals would have prevented “real NIL” contracts from being distinguished from those that are pay-for-play, the judge vehemently opposed the settlement’s plan. Wilken expressed concern that college athletes would lose out on NIL deals by having deals reviewed in 2014, when Wilken sided in favor of Ed O’Bannon in his landmark NIL case. She noted that the settlement does n’t even mention the word collectives, despite the attorneys ‘ claims that the new NIL model would only regulate collectives.
Wilken also made reference to recent reports about collectives using NIL to hire athletes for their schools. After U.S. District Judge Clifton Corker blocked the collegiate governing body from enforcing those rules on antitrust grounds, she made it too late to stop that practice. The NCAA no longer actively regulates that practice.
The parties have until Sept. 26 to submit a revised settlement, or they run the risk of having three lawsuits come back on the docket. Wilken will be more likely to support the settlement if the NCAA abandons its authority over NIL. However, in that scenario, college sports at major D-I programs will be more difficult to distinguish from professional sports, which is the NCAA’s main justification.

The settlement is also not the only instrument of law that will shape amateurism’s future.
Last week, Georgia Gov. An executive order, signed by Brian Kemp, prohibits the NCAA from enforcing rules that would otherwise prevent colleges from providing athletes with compensation for their NIL, including a signed executive order. The order follows a similar measure in Virginia, where Gov. Glenn Youngkin signed HB1505 into law. The NCAA is prohibited by the Virginia legislation from awarding compensation to state colleges for athletes who have received an NIL. Other states, including Texas and Oklahoma, have adopted laws that constrain the NCAA’s ability to regulate NIL and collectives. Even if the NCAA had some authority to oversee NIL in a post-settlement world, the NCAA would be unable to use that authority in some states under their laws, legal advice.
The NCAA could file a lawsuit against those states in court by claiming that their laws unlawfully contravene Article I of the Constitution’s Commerce Clause and Contract Clause. As explained in another column, these states, by making it impossible for the NCAA to adopt a uniform set of rules, are arguably interfering with interstate commerce. These states are arguably interfering with the contractual relationship between the NCAA and its members because they make it illegal for the NCAA to enforce membership rules. In response to the UNLV/Jerry Tarkanian scandal, the NCAA used that legal playbook to enact a law that worked for it. However, the NCAA and amateurism were more confident in that time. The 2020s NCAA is a more closely watched organization whose long-standing legal arguments have been refuted in court.
Even if the settlement is approved, the NCAA faces additional challenges. South Dakota recently filed a lawsuit against the NCAA in state court, alleging that the settlement violates the agreement between the member schools and breaches of fiduciary obligations and requires payment from D-I schools, many of which are small and limited. Houston Christian University also contacted Wilken directly about her objections ( HCU is suing the U.S. Court of Appeals for the Ninth Circuit ). South Dakota might gain more traction in court and elected judge competitions.
The fact that the antitrust settlement, even if approved, would n’t insulate the NCAA from other amateurism challenges also reveals its limited importance. Outside of the classroom, athletes still have the right to file antitrust claims. Additionally, the agreement could be challenged on Title IX and other grounds. College athletes who are recognized as employees who can unionize and demand collective bargaining are another on the way.
Even D-I athletics programs ‘ shifting operations give off a pro-sports mindset. General managers are now being hired by schools, a crucial role for professional sports teams but unfamiliar with the increasingly professionalized college sports landscape. For instance, Syracuse recently hired former New York Knicks scout Alex Kline as General Manager of the Orange and ESPN senior NBA insider Adrian Wojnarowski as General Manager of the Bonnies men’s basketball program.
” Amateurism” and” student-athlete” may or may not survive as meaningful terms in a post-settlement world.
However, when reality reveals a different story, labels wo n’t matter.
It might be pro sports if college sports have the appearance of pro sports, if they sound like pro sports, and if they are paid similarly to pro sports.