*Shekinah Tony-Oyeleye
I. Introduction
College football has had its fair share of controversies over the years, with the latest installment emerging right out of Sin City.[1] Star quarterback, Matthew Sluka, who led the University of Nevada, Las Vegas (UNLV) Rebels to their first national ranking, abruptly left UNLV’s program on September 24, 2024, over an alleged unfulfilled verbal promise of $100,000 in name, image, and likeness (NIL) compensation.[2] In response, UNLV asserted they had honored all their obligations and that Sluka’s demand violated National Collegiate Athletic Association (NCAA) pay-for-play rules,[3] which prohibit direct compensation to athletes for their athletic participation.[4]
More than just another headline in the sports pages,[5] the Sluka controversy highlights the legal and ethical quandaries inherent in NIL deals and punctuates the fundamental incompatibility between NIL arrangements and the NCAA’s attempt to maintain the “amateur” status of collegiate athletics.[6]
II. Background: The Evolution of NIL Policies and Their Challenges
The “NIL era” began in 2020, when the Supreme Court unanimously held in NCAA v. Alston that the NCAA’s restrictions on education-related benefits for student-athletes violated federal antitrust law.[7] Alston, coupled with state legislation and public pressure, led the NCAA to adopt an interim NIL policy.[8] The policy opened new avenues for athlete compensation by allowing college football players to receive a share of the multi-billion-dollar pie of college football,[9] but created a regulatory vacuum filled with ambiguities.[10]
The vacuum stems from the very structure of NIL deals.[11] Unlike traditional employment contracts with clear employer-employee relationships, NIL deals entangle several parties: the student-athlete, the university, third-party collectives, and even individual boosters or businesses.[12] And each party operates under their own interpretations of NIL guidelines,[13] creating a complex relationship that blurs the lines between permissible NIL activities and impermissible pay-for-play arrangements.[14] The Sluka saga illustrates this point vividly: if an athlete receives $100,000 for their NIL rights,[15] how is this different from being paid for their athletic participation?[16]
III. Legal Implications and Contradictions in NIL Deals
The NCAA’s proposed settlement in one of its ongoing legal battles with student-athletes demonstrates the incompatibility between NIL deals and the NCAA’s continued prohibition on pay-for-play.[17] The proposed agreement establishes $2.78 billion in retroactive damage payments for former college athletes dating back to 2016 who did not have the opportunity to earn NIL compensation.[18] College athletic departments will also be able to opt into revenue sharing with current and future athletes, starting at around an annual $20 million per school.[19]
While the proposed settlement suggests the NCAA intends to provide fair compensation for student-athletes, the agreement includes a provision that allows the NCAA to continue restricting certain NIL payments it considers pay-for-play.[20] Under the provision, the NCAA may restrict any agreement it determines is meant to incentivize a student-athletes’ enrollment decision, athletic performance, achievement, or membership on a team.[21] Rather than deal with the student-athletes directly, an “Associated Entity or Individual” affected by these restrictions, can deposit their NIL contributions to the individual colleges, who can then pay the athletes.[22] This additional bureaucratic step contradicts the revenue sharing provision of the settlement proposal.[23] The NCAA’s insistence on maintaining some form of pay-for-play prohibition in the face of the new NIL landscape demonstrates a reluctance to embrace the changing nature of college athletics.[24]
IV. The Future of NIL in College Athletics
In reality, the era of amateurism in college sports, if it ever truly existed, is over.[25] While some argue that paying athletes to compete creates an uneven playing field, it is worth noting that the world of college football is not really even to begin with.[26] Higher-ranked programs with their bigger recruiting budgets, better booster involvement, and stronger connections to the National Football League, often secure the enrollment of top-ranked athletes, while the remaining programs sieve and pick through the rest.[27]
If the NCAA fails to embrace the new reality and establish a fair compensation system, it risks continued legal challenges, and further erosion of its regulatory authority.[28] The NCAA can recognize players as employees of their individual football programs;[29] they already put in more hours of labor per week than the average American worker.[30] Employee classification will enable collective bargaining and establish clear, uniform rules for compensation that would apply across all college football programs.[31]
Attempting to reconcile NIL deals with the NCAA’s continued prohibition on pay-to-play creates legal ambiguities and disputes like the Sluka saga.[32] Mr. Justice Kavanaugh’s concurrence in Alston captures the situation perfectly: “The NCAA’s business model would be flatly illegal in almost any other industry in America.”[33] Gone are the days when colleges can reap absurd revenue from unpaid student-athletes’ labor.[34] If the NCAA continues to gatekeep athlete compensation through outdated pay-for-play restrictions, then the Skula saga is going to be a recurring feature in college football.
Shekinah Tony-Oyeleye is a second-year law student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review and is a member of the Royal Graham Shannonhouse III Honor Society. This dedication to legal scholarship is complemented by practical experience, as demonstrated by a summer 2024 internship at A.Y. Gross Law L.L.C., a respected law firm in Pikesville, MD. During the internship, Shekinah gained valuable experience in criminal defense. Looking ahead, Shekinah aims to continue excelling academically while exploring different areas of law, leveraging both academic prowess and growing professional experience to make a meaningful impact in the legal field.
[1] Pete Thamel and Adam Rittenberg, Matthew Sluka’s NIL dispute with UNLV hinges on verbal offer, ESPN (Sept. 25, 2024, 6:05 PM), https://www.espn.com/college-football/story/_/id/41438172/matthew-sluka-nil-dispute-unlv-hinges-verbal-offer.
[2] Id.
[3] See id.
[4] See NCAA, Division I 2024-25 Manual 36 (2024).
[5] See Dan Wetzel, Shocked by UNLV’s Matthew Sluka sitting out over an apparent NIL dispute? Don’t be, Yahoo! Sports (Sep. 25, 2024), https://sports.yahoo.com/shocked-by-unlvs-matthew-sluka-sitting-out-over-an-apparent-nil-dispute-dont-be-163737015.html.
[6] See id.
[7] See Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 107 (2021).
[8] Michelle Brutlag Hosick, NCAA adopts interim name, image and likeness policy, NCAA (June 30, 2021, 4:20 PM), https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx.
[9] NCAA generates nearly $1.3B in revenue for 2022-23. D-I payouts reach $669M, FOX Sport (Feb. 2, 2024, 11:31 AM), https://www.foxsports.com/stories/college-football/ncaa-generates-nearly-1-3b-in-revenue-for-2022-23-d-i-payouts-reach-669m.
[10] See Josh Moody, The Current State of NIL, Inside Higher Ed (June 7, 2023), https://www.insidehighered.com/news/students/athletics/2023/06/07/two-years-nil-fueling-chaos-college-athletics.
[11] See Daniel Roberts, The NIL Era Is a Wild West. Is Anyone Surprised?, Front Office Sports, https://frontofficesports.com/nil-madness-is-upending-college-sports/ (last updated Oct. 12, 2024, 8:09 PM).
[12] Id.
[13] Id.
[14] NCAA, Division I 2024-25 Manual 36 (2024).
[15] It should be noted that it was never actually confirmed if a verbal offer of $100,000 was made to Sluka or not. The assistant coach who allegedly made the offer has not commented on the issue. See Pete Thamel and Adam Rittenberg, supra note 1.
[16] See AJ Krow, Exposing the Charade: The Reality Behind Pay-for-Play Restrictions in College Sports, MarketScale (Apr. 1, 2024), https://marketscale.com/industries/sports-and-entertainment/exposing-charade-pay-for-play-restrictions-college-sports/ (attached video).
[17] See Justin Williams, House v. NCAA settlement granted preliminary approval, bringing new financial model closer, The Athletic (Oct. 7, 2024), https://www.nytimes.com/athletic/5826004/2024/10/07/house-ncaa-settlement-approval-claudia-wilken/.
[18] Id.
[19] Id.
[20] See Plaintiffs’ Supplemental Brief in Support of Motion for Preliminary Settlement Approval at 8–12, In re College Athlete Nil Litigation, No. 4:20-CV-03919-CW (N. D. Cal. Sept. 26, 2024), ECF No. 450.
[21] See NCAA, Interim Name, Image and Likeness Policy Guidance Regarding Third Party Involvement, https://ncaaorg.s3.amazonaws.com/ncaa/NIL/May2022NIL_Guidance.pdf (last visited Oct. 13, 2024).
[22] Id. at 9–10, 12.
[23] See supra text accompanying note 17.
[24] See NCAA, supra note 21.
[25] See generally Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 107–12 (2021) (Kavanaugh, J. concurring) (arguing that while the NCAA maintains important traditions, those traditions alone cannot justify its business model).
[26] See Brandon Lilly, College football explained, The Guardian (Oct. 10, 2012, 9:00 AM), https://www.theguardian.com/sport/blog/2012/oct/10/college-football-explained-ncaa.
[27] See Edwin Weathersby, How Does Small College Recruiting Differ from Large Conference Recruiting?, Bleacher Report (Mar. 20, 2013), https://bleacherreport.com/articles/1575727-how-does-small-college-recruiting-differ-from-large-conference-recruiting.
[28] See Johnson v. NCAA, 108 F.4th 163, 180 (3d Cir. 2024) (establishing factors for when college athletes may be considered employees).
[29] Id.
[30] See generally, A Day in the Life of a Division 1 Football Player, NCSA College Recruiting, https://www.ncsasports.org/blog/division-1-football-player-lifestyle (last visited Oct. 13, 2024).
[31] See Robert A. McCormick & Amy Christian McCormick, The Myth of the Student-Athlete: The College Athlete as Employee, 81 Wash. L. Rev. 71, 156 (2006).
[32] See Pete Thamel and Adam Rittenberg, supra note 1.
[33] Alston, 594 U.S. at 109 (2021) (Kavanaugh, J. concurring).
[34] See Grant Hughes, College athletics’ 25 powerhouses who produce the most revenue entering 2024, 247Sports (June 28, 2024, 12:30 AM), https://247sports.com/longformarticle/college-athletics-25-powerhouses-who-produce-the-most-revenue-entering-2024-233312519/#2438984.
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