Redefining the Game: States Battle Against NCAA to Secure NIL Rights for Athletes

Taylor GilbertsonNews & Insights

The attorneys general of Virginia and Tennessee filed a lawsuit, challenging controversial National Collegiate Athletic Association (“NCAA”) rules that restrict college athletes’ use of their name, image, and likeness (“NIL”).[1] The states assert that the NCAA exerts illegal, monopolized control over college sports and can no longer escape antitrust scrutiny.[2] The outcome of this case could redefine – or eliminate entirely – the organization’s regulatory role in college athletics.[3] Though the court has yet to issue a formal decision, U.S. District Judge Clifton Corker gave some indication of a potential outcome when he issued a preliminary injunction in late February.[4] This injunction prohibits the NCAA from enforcing its restrictions on athletes seeking NIL deals because such restrictions are likely unlawful and harm student athletes.[5] In the injunction, Judge Corker determined that the NCAA is specifically barred from prohibiting third-party involvement in a prospective athlete’s recruitment, and that such an interference likely violates antitrust laws.[6]

On January 31, the attorneys general alleged that the NCAA unfairly enforces rules that violate the Sherman Act,[7] and that these rules harm the States and put the welfare of college athletes at risk.[8] Pertinently, “[t]he Sherman Act outlaws ‘every contract, combination, or conspiracy in restraint of trade,’ and any ‘monopolization.’”[9] To support their case, the attorneys general cite to NCAA v. Alston, which determines the scope of the NCAA’s susceptibility to federal antitrust law.[10] In Alston, the court rejected the NCAA’s reliance on “amateurism” as a mechanism to evade liability under the Sherman Act.[11] The court held that the NCAA’s definition of “amateurism” is merely conceptual, lacks “any coherent definition,” and is used to disguise anti-competitive practices.[12] In the wake of Alston, any restrictions placed on college athletes must be subject to the Sherman Act and the “rule of reason.”[13] Under the rule of reason, whenever a practice’s anticompetitive harm outweighs its procompetitive effects, then it is unlawful.[14] The states also allege that while the NCAA recognizes a legal obligation to protect athletes’ rights to their NIL, it purposely implements rules that conflict with state statutory frameworks designed to preserve the right of current and prospective student athletes to monetize their NIL.[15] The attorneys general have both enacted laws that afford student athletes the right to NIL earnings at “fair market value,”[16] and laws that bar athletic associations (including the NCAA) that interfere or limit an athlete’s ability to earn compensation.[17]

Despite accepting and allowing the emergence of an NIL market nationwide, the states argue that the NCAA is subsequently hindering the same market via its unfair prohibitions on prospective athletes.[18] While current athletes are entitled to pursue NIL deals, prospective athletes are barred from doing so under the NCAA’s existing rules and regulations,[19] which they have strictly enforced until the recent court-issued injunction.[20] The attorneys general argue that this illegally restricts opportunities for student athletes and places unfair constraints on the market, schools, and third parties by preventing athletes from negotiating or fully understanding the terms of NIL deals before they choose a school.[21]

Judge Corker indicated that “the NCAA’s prohibition likely violates federal antitrust law and harms student-athletes,”[22] and alluded to a high chance of the states’ success when he issued the formal injunction, which is likely to alter the NIL landscape with respect to the recruitment process.[23]

 “We will litigate this case to the fullest extent necessary to ensure the NCAA’s monopoly cannot continue to harm Tennessee student athletes” said Tennessee Attorney General Jonathan Skrmetti.[24]

Conversely, the NCAA argues that member schools need to have significant input in the process or risk chaos in the recruitment process.[25] “Turning upside down rules overwhelmingly supported by member schools will aggravate an already chaotic collegiate environment, further diminishing protections for student-athletes from exploitation,” said the NCAA.[26] “The NCAA fully supports student-athletes making money from their name, image and likeness and is making changes to deliver more benefits to student-athletes, but an endless patchwork of state laws and court opinions make clear partnering with Congress is necessary to provide stability for the future of all college athletes.”[27]

Virgina Attorney General Jason Mirayes disagrees with this sentiment. “Colleges and universities benefit dramatically from the success of their student athletes,” he said.[28] “It’s only fair that student athletes also get the full picture of how they may benefit from their choice of school as well.”[29] According to USA today, colleges do reap substantial financial rewards from student athletes: in only two conferences – the SEC and the Big 10 – athletics programs collected more than $2 billion each.[30] Though the future of the NCAA as the premier regulatory power in college sports remains unclear, questions remain regarding how these monumental changes will affect collegiate non-revenue sports, such as lacrosse or field hockey.[31] While the lawsuit, if successful, would undoubtedly restrict the NCAA’s role as a regulatory body, it could generate much needed reform, ushering college sports into a new era marked by fair athlete compensation.


[1] Virginia-Tennessee lawsuit could bring much needed change to college sports, Go Skagit, (March 5, 2024), https://www.goskagit.com/virginia-tennessee-lawsuit-could-bring-needed-change-to-college-sports/article_3fb97b32-db6f-11ee-972c-4fe84e3f2c35.html .

[2] See generally Compl., Tenn. v. Nat’l Collegiate Athletic Ass’n, Case No. 3:24-cv-33 (E.D. Tenn.) https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2024/pr24-10-NCAA.Antitrust.pdf.

[3] Id.

[4] Dan Murphy, NCAA Can’t Enforce NIL Rules After Judge Grants Injunction, ESPN (February 23, 2024),  https://www.espn.com/college-sports/story/_/id/39585390/ncaa-enforce-nil-rules-judge-grants-injunction.

[5] Id.

[6] Paul Myerberg, NCAA Freezing Investigations Into Third-Party NIL Activities After Judge Granted Injunction, USA Today (March 1, 2024), https://www.usatoday.com/story/sports/college/2024/03/01/ncaa-freezing-nil-investigations-injunction-tennessee-lawsuit/72809983007.

[7] The Sherman Act, GovInfo.gov https://www.govinfo.gov/content/pkg/COMPS-3055/pdf/COMPS-3055.pdf (last visited March 23, 2024).

[8] See generally Compl.

[9] The Antitrust Laws, Federal Trade Commission https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws (last visited March 23, 2024).

[10] NCAA v. Alston, 141 S. Ct. 2141, 2150 (2021).

[11]  Id. at 2166.

[12] Id. at 2158.

[13] Id. at 2155.

[14] Elements of the Offense, Justice.gov, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws (last visited March 23, 2024).

[15] Compl. at 6.

[16] Tenn. Code Ann. §49-7- 2802(a); see also Va. Code Ann. §23.1-408.1(B)(1).

[17] Tenn. Code Ann. §49-7-2803 (athletic associations—including the NCAA—cannot “interfere” with athletes’ ability to earn NIL compensation or otherwise limit athletes’ eligibility for doing so); see also Va. Code Ann. §23.1-408.1(B)(1)- (3) (athletic associations, including the NCAA, may not “prevent a student-athlete from earning compensation,” “obtaining professional representation,” or maintaining eligibility “for intercollegiate athletic competitions” for protected use of NIL rights).

[18] Compl. At 2.

[19] Id.

[20] Murphy, supra note 4.

[21] Id.

[22] Memo. on Op. and Ord., Tenn. v. Nat’l Collegiate Athletic Ass’n, Case No. 3:24-cv-33 (E.D. Tenn.) https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2024/pr25-18.pdf.

[23] Murphy, supra note 4.

[24] Cole Thompson, Report: Tennessee Granted Temporary Injunction, NCAA No Longer Able to Enforce NIL Policy, Sports Illustrated (Feb. 24, 2024), https://www.si.com/college/ohiostate/news/report-tennessee-volunteers-granted-temporary-injuction-ncaa-no-longer-able-to-enforce-nil-policy.

[25] Id.

[26] Id.

[27] Id.

[28] Virginia-Tennessee Lawsuit, supra note 1.

[29] Id.

[30] Steve Berkowitz, SEC, Big Ten Each Top $2 Billion in Athletic Department Revenue, Outpacing Power Five Foes USA Today (June 14, 2023), https://www.usatoday.com/story/sports/college/2023/06/14/sec-big-ten-2-billion-athletics-revenue-power-five/70313053007.

[31] Virginia-Tennessee Lawsuit, supra note 1.