Mit Winter’s Post

College sports leaders are in talks to settle the ongoing NIL / antitrust lawsuit, House v. NCAA. The House case was originally filed in the Northern District of California by former collegiate swimmer Grant House. Plaintiffs argue that the NCAA restricted athletes’ ability to profit from their NIL, alleging a violation of antitrust laws. A settlement could include revenue sharing with athletes and legal protection for the #NCAA. The NCAA is opposed to athletes being classified as employees. According to the article, schools will have the discretion to opt in to revenue sharing up to a certain amount with their student athletes. The exact mechanics of how this will work are still uncertain. Schools could choose to share less, but not more, than the designated amount. #NIL #collegesports #sportslaw #NCAA #collegeathletes Source: https://lnkd.in/eYQP4GyD

The Justice Department's decision to join the civil antitrust lawsuit against the NCAA's Transfer Eligibility Rule is a commendable step towards addressing the unreasonable restrictions placed on college athletes. The amended complaint rightly points out that these restrictions not only impede athletes' freedom to transfer between academic institutions but also curtail their educational opportunities. By aligning with the states and the District of Columbia, the Justice Department sends a strong message that anti-competitive practices limiting college athletes' mobility and bargaining power will not be tolerated. The alleged violations of the Sherman Act, especially concerning men’s and women’s Division I basketball and Football Bowl Subdivision (FBS) football, underscore the broader impact on the markets for athletic services. This move signifies a commitment to prioritizing athletes' academic, personal, and professional development needs over-restrictive rules that sacrifice a year of athletic competition. https://lnkd.in/e5NHPDvC

Michael Elkins spoke to Law360 last week about the dramatic conference realignment in collegiate athletics and its impact on the name, image, and likeness revolution for student athletes. 🏈 🏀 ⚾️ 🥎  The attached slide-deck shows his quotes from the article. There is an online link to the article in the first comment. As discussed in the article, the schools moved conferences for one reason, MONEY! 💰💰💰 Schools and administration officials chasing money in collegiate athletics is nothing new, it’s been the norm forever. As media rights deals become larger and larger, there is little to no discussion about the propriety of the institutions and coaches earning as much money as possible.   This is in STARK contrast to the conversation over student athletes earning money for their name, image, and likeness. The hypocrisy is astounding! Almost all critics of the NIL movement point to the “chaos” of student athletes choosing schools based on states that offer the best opportunity to earn money from NIL deals. They further point to the advent of the transfer portal combined with NIL as destroying the “tradition” of College Football. What tradition is that exactly? The one where EVERYONE involved except the actual athletes gets a piece of this billion-dollar industry? College Football “traditionalists” lament the ability of student-athletes to earn money, while staying silent as the schools and coaches chase as much money as possible. The only “tradition” being destroyed is the one where the student-athletes risk serious injury to earn everyone else money. The only “tradition” being destroyed is the antiquated and draconian system known as NCAA athletics, where literally everyone else can chase money while the athletes have to live hand to mouth. Check out the article for Michael’s full commentary. #law #lawyer #sportslaw

In this article by Eric Prisbell of On3, the American Athletic Conference’s commissioner says the NCAA needs an antitrust exemption because it’s currently “getting sued over nonsense” and that it isn’t “the candy store for these lawyers.” This is the attitude that is preventing college athletics from moving forward with a new model. You can’t claim you’re being sued over nonsense when multiple federal courts (including the Supreme Court) have found on multiple occasions that your athlete compensation limits violate antitrust law. Instead of being willing to adapt and to create a new model that complies with the law, the NCAA and others are instead asking for their actions to no longer be subject to the law. Every industry would of course love to be immune from antitrust scrutiny. But it’s not a realistic ask. Serious work on a new model that complies with antitrust law needs to begin now. #collegeathletics #collegeathletes #ncaa https://lnkd.in/grFkrPrQ

"The Great Split" - a fancy new term for the same old narrative that started even before the Autonomy Rules were created a decade ago. However, Dellenger insists it's different this time: "The Great Split is no longer a far-fetched idea or a long-shot theory. It is instead a looming reality in light of legal challenges facing college athletics, most notably the costly House antitrust case against the NCAA and the power conferences." That's opinion but this is fact: NUMEROUS antitrust law challenges to the NCAA's "amateurism" rules have failed to change the "amateurism" model since the first antitrust case was filed in 1975! The NCAA is perceived as having "won" some and "lost" some, and the NCAA also settled some. Here's my opinion: It's not different this time, and if there is a "Split" it won't be because of an antitrust law case over "amateurism" rules and it won't be that "Great". #ncaa #antitrust https://lnkd.in/g5Bgcdp6

Big 12 Commissioner Brett Yormark is arguably the most aggressive, out-of-the-box, get-with-the-times college sports leader we have right now, and he oversees a league with a number of prominent members with more permissive #NIL laws than the NCAA rules/guidance. And yet, here are some of his quotes from a wide-ranging interview with On3: Regarding what schools in more permissive NIL states should do: “Adhere to NCAA policy.” Regarding a federal law: "I think we want something that is a little bit more comprehensive." (than a narrow NIL-only bill). Regarding examining a model of revenue sharing with student-athletes: “I don’t think we’re there yet.” I don't know if these reflect his own views so much as it does his assessment of where the broader college sports brass is (I hope its more the latter). Either way, this serves as a reminder that even with everything that has happened over the past few years, the NCAA and its leaders are not ready to cede power to the states or accept a new reality in college sports. At least not yet. #NIL #collegesports #sportslaw #big12 #sportsbusiness https://lnkd.in/gmvfdd9A

I had the pleasure of speaking to Law360 last week about the dramatic conference realignment in collegiate athletics and its impact on the name, image, and likeness revolution for student athletes. 🏈 🏀 ⚾️ 🥎  The attached slide-deck shows my quotes from the article. There is an online link to the article in the first comment. As discussed in the article, the schools moved conferences for one reason, MONEY! 💰💰💰 Schools and administration officials chasing money in collegiate athletics is nothing new, it’s been the norm forever. As media rights deals become larger and larger, there is little to no discussion about the propriety of the institutions and coaches earning as much money as possible.   This is in STARK contrast to the conversation over student athletes earning money for their name, image, and likeness. The hypocrisy is astounding! Almost all critics of the NIL movement point to the “chaos” of student athletes choosing schools based on states that offer the best opportunity to earn money from NIL deals. They further point to the advent of the transfer portal combined with NIL as destroying the “tradition” of College Football. What tradition is that exactly? The one where EVERYONE involved except the actual athletes gets a piece of this billion-dollar industry? College Football “traditionalists” lament the ability of student-athletes to earn money, while staying silent as the schools and coaches chase as much money as possible. The only “tradition” being destroyed is the one where the student-athletes risk serious injury to earn everyone else money. The only “tradition” being destroyed is the antiquated and draconian system known as NCAA athletics, where literally everyone else can chase money while the athletes have to live hand to mouth. Check out the article for my full commentary. #law #lawyer #sportslaw

A lot is being said about the letter the NCAA sent out on Tuesday (June 27, 2023) regarding state laws that permit activity that is otherwise prohibited by the NCAA and/or preclude the NCAA from punishing violators of certain NCAA rules (full text of the NCAA's memo available here: https://lnkd.in/gk6zqhEV). The NCAA finds itself in an impossible position if its goal is a level playing field for all universities recruiting in the NIL era and it lacks the ability to enforce that. For example, this May, Oklahoma passed SB 840, its new NIL law, that prevents the NCAA from “prohibit[ing] a postsecondary institution from identifying, facilitating, enabling, or supporting opportunities for a student athlete to earn compensation for the student athlete’s name, image, or likeness activities.” The Oklahoma law and other similar state laws allow the postsecondary institutions to take a much greater role in NIL and in facilitating agreements between booster or collectives and its athletes. The Oklahoma law also provides that the NCAA “shall not prohibit a postsecondary institution from establishing agreements with a third-party entity to act on its behalf to identify, facilitate, enable, or support student athlete name, image, and likeness activities.” The law goes further and prohibits the NCAA from taking an enforcement against athletes or the postsecondary institutions for engaging in any NIL activity protected by the statute. Interestingly, the Oklahoma law also states that college athletes should not be considered employees of their universities, addressing the current, on-going debate as to whether college athletes should properly be considered employees of their universities. [add more about employee issue]   New York is nearing the passage of very similar legislation (2023 NY Assembly Bill 07107). New York’s law will prohibit the NCAA and its member institutions from “penaliz[ing] or prevent[ing] a college from participation in intercollegiate athletics because an individual or entity whose purpose includes supporting or benefitting the college or its athletic programs or student-athletes violates the collegiate athletic association’s rules or regulations with regard to a student-athlete’s name, image, or likeness activities.”   Colorado, Missouri, Texas, and Arkansas are also considering or have passed similar types of legislation. The NCAA has keyed in on the distinction between prescriptive legislation and permissive legislation essentially saying, "Just because your state law allows you to do something, doesn't mean you are required to. If you want to be part of our club, you will have to follow our rules even if it would be lawful to do otherwise." This type of response is going to put more pressure on coming up with a potential federal solution. I will provide an upcoming piece on that soon. #ncaa #nil #sportslaw

A new antitrust class action lawsuit, Carter v NCAA, has been filed against the NCAA and the Power 5 conferences. This case goes farther than the pending House v NCAA case and attacks the NCAA’s rules that restrict conferences and schools from compensating athletes for their athletic services. House is only about rules relating to #NIL compensation. The lawsuit seeks an injunction that prevents the NCAA from enforcing its no “pay for play” rules, and damages for the compensation that P5 football and men’s and women’s basketball players who played from December 2019 to the present would have received in the absence of those rules. A quote from the complaint: “These draconian, collusive rules prohibit what the NCAA refers to as ‘pay-for-play,’ but what anyone else would call market-value compensation. In college sports, only the athletes are treated as ‘amateurs.’” This lawsuit was very foreseeable. And it’s why the NCAA was/is still seeking an antitrust exemption. Until college athletics admits what some of its sports are (professional athletics), and crafts a model to reflect that, its legal problems are going to continue. Half measures (like Charlie Baker’s proposal earlier this week) that try to maintain the current model and structure aren’t going to work legally. People need to think much bigger and almost start from scratch. #collegeathletics #collegeathletes #ncaa #sportslaw