Setting the Edge: How the NCAA Can Defend Amateurism by Allowing Third Party Compensation

Part I of this Note describes the NCAA’s formation and its contemporary model. It also discusses the antitrust and labor law challenges the NCAA has faced in litigation over its existing approach. Part II explores the twin challenges posed by the Fair Pay to Play Act, which cannot be sufficiently addressed through a unilateral NCAA response. The first challenge is the inconsistency in state laws, which undermines any NCAA response that seeks to impose a uniform set of rules across the country. The second is that the Fair Pay to Play Act fails to address existing legal challenges to the NCAA’s amateur model. Therefore, even if the NCAA accepts a change in the status quo, it misses an opportunity to address the increasingly uncertain broader legal status of its restrictions on college athlete compensation.<br><br>In response to these challenges, Part III contends that the NCAA should more urgently pursue a comprehensive federal legislative compromise that sacrifices restrictions on NIL compensation in return for statutory protections from further labor and antitrust litigation. This type of federal legislation would have the additional benefit of preempting state laws on the subject, thus maintaining a uniform system of rules. By losing the battle to win the war, the NCAA will be well positioned for continued viability in the coming decades.


INTRODUCTION
In 2019, California passed the Fair Pay to Play Act, a bill on college athlete compensation that sent shockwaves through the higher education landscape. 1 The law, operative in 2023, will bar the National Collegiate Athletic Association (NCAA) from enforcing rules that prevent college athletes in California from being paid by third parties for the "use" of a student's "name, image, or likeness" ("NIL"). 2 As a result, these athletes will be able to sign apparel deals, license the use of their likenesses, or make other commercial agreements with third parties that are unaffiliated with their universities. 3 Existing NCAA rules run afoul of the Fair Pay to Play Act's provisions. The NCAA governs most major collegiate athletic competitions and prohibits college athletes from earning any compensation-from their universities or third partiesbeyond education-related grants-in-aid, such as athletic scholarships. 4 The rationale for this restriction lies in the NCAA's belief in amateurism: that the proper role of college athletics is to complement academics as part of a holistic educational experience, and thus, student participants should not be professionalized through COLUMBIA JOURNAL OF LAW & THE ARTS [44:1 compensation for non-educational purposes. 5 While this amateur model has been attacked in courts for decades, the Fair Pay to Play Act represents a novel legislative threat.
To date, the NCAA has responded cautiously to California's challenge. In 2019, the organization acknowledged that it intends to allow its college athletes to "benefit from the use of their name, image and likeness in a manner consistent with the collegiate model." 6 While this response may seem to indicate reluctant acceptance of California's new law, the NCAA has also asserted that the Fair Pay to Play Act goes too far in undoing restrictions on compensation and has threatened to challenge the statute's legality. 7 More recently, the NCAA has moved forward with its own plans to loosen restrictions on NIL compensation. 8 However, this unilateral response fails to adequately protect the NCAA's interests from current and future challenges. Therefore, the NCAA has also recognized the importance of federal legislation that would protect core elements of its amateur model. 9 Part I of this Note describes the NCAA's formation and its contemporary model. It also discusses the antitrust and labor law challenges the NCAA has faced in litigation over its existing approach. Part II explores the twin challenges posed by the Fair Pay to Play Act, which cannot be sufficiently addressed through a unilateral NCAA response. The first challenge is the inconsistency in state laws, which undermines any NCAA response that seeks to impose a uniform set of rules across the country. The second is that the Fair Pay to Play Act fails to address existing legal challenges to the NCAA's amateur model. Therefore, even if the NCAA accepts a change in the status quo, it misses an opportunity to address the increasingly uncertain broader legal status of its restrictions on college athlete compensation.
In response to these challenges, Part III contends that the NCAA should more urgently pursue a comprehensive federal legislative compromise that sacrifices restrictions on NIL compensation in return for statutory protections from further labor and antitrust litigation. This type of federal legislation would have the additional benefit of preempting state laws on the subject, thus maintaining a uniform system of rules. By losing the battle to win the war, the NCAA will be well positioned for continued viability in the coming decades.

A. NCAA FORMATION AND GROWTH
At the turn of the twentieth century, reform advocates' most pressing critique of college sports was related not to compensation, but to safety. 10 At the time, there was no uniform set of rules governing the nascent sport of football, so teams utilized a wide variety of plays that were often risky or unsafe. 11 This lack of standardization resulted in a sport that was spectacularly dangerous-in the 1905 season alone, there were eighteen fatalities and over 140 serious injuries. 12 In response to the resulting public outcry, universities across the country came together to form the Intercollegiate Athletic Association of the United States, which would be responsible for creating a uniform, safe set of rules for the sport. 13 This organization became the NCAA four years later, in 1910. 14 While the NCAA was born in response to basic coordination problems, over the next forty years its members significantly expanded its scope to reflect their preexisting lofty ideals concerning the purpose of college athletics. In the eyes of university administrators, athletics were merely a useful tool in creating well rounded citizens. 15 In the words of Theodore Roosevelt, "play is not business, and it is a very poor business indeed for a college man to learn nothing but sport." 16 The separation between business and college sports was also reflected in NCAA statements and policy. In 1907, the NCAA president declared: "This organization wages no war against the professional athlete, but it does object to such a one posing and playing as an amateur." 17 Over the next half century, the NCAA operationalized this ideal of amateurism by increasingly controlling the "inputs" and "outputs" of the college athletics market-respectively, the costs of college sports (including athlete compensation), and the entertainment product. 18 10. See, e.g., Deaths from Football Playing, WASH. POST, Oct. 15, 1905, at SP2 ("Hardly a single game has been played during which it has not been necessary to carry one or more of the players from the field. In almost every instance the death or injury was due directly to the heavy mass plays against which President Roosevelt and the country at large are protesting."). 12. FLEISHER ET AL., supra note 11, at 38-39. 13. See CROWLEY, supra note 11, at 44. The Association's Rules Committee was charged with the "elimination of rough and brutal play . . . and [with] making the rules definite and precise in all respects." FLEISHER ET AL., supra note 11, at 40 (quoting Football Convention Wants One Rule Code, N.Y. TIMES, Dec. 29, 1905, at 7).
17. Id. at 40. 18. See FLEISHER ET AL., supra note 11, at 5, 41-46. Economists describe this consolidation of control as marking the beginning of a NCAA cartel. See, e.g., id. at 40 ("While the NCAA initially organized as a public goods provider, it did not maintain this activity as its primary objective. The NCAA quickly turned its attention from standardizing rules to instituting the outlines of a cartel."). COLUMBIA JOURNAL OF LAW & THE ARTS [44:1 Starting in 1906, the NCAA barred compensation for athletes and began to impose a host of additional eligibility requirements. 19 These new eligibility rules limited the number of years an athlete could participate, required that athletes be full-time students, curtailed the use of inducements (such as promises of money or other fringe benefits) in recruiting athletes, and barred athletic participation outside the NCAA's ambit. 20 Concurrently, the NCAA expanded to regulate more sports and quickly grew its membership. 21 But by the mid-twentieth century, the NCAA's main problem was enforcing these rules. Until the 1940s, the NCAA relied on individual universities to police themselves, a proposition that became increasingly untenable as college sports increased in value. 22 Recognizing this problem, the "Sanity Code" was added to the NCAA Constitution in 1948, which gave the organization the power to enforce its rules. 23 While the specific enforcement mechanism underwent a succession of iterations over the subsequent few years, 24 its basic impact on the college athletics landscape did not change. However, the creation of this enforcement mechanism also laid the foundation for future antitrust challenges. 25 The early history of the NCAA frames the current debate over the value of amateurism, the proper role of the organization, and the nature of college athletics. It suggests that university administrators always sought the ideal of the amateur college athlete who competes for their university as an integral part of the athlete's broader academic experience. However, it also demonstrates that the reality often fell short of this ideal. 26 Finally, it provides valuable insight into how the NCAA can approach the modern problems posed by the Fair Pay to Play Act.
19. See id. at 41-46; BYERS WITH HAMMER, supra note 16, at 40. 20. See FLEISHER ET AL., supra note 11, at 41, 44; CROWLEY, supra note 11, at 57. Prior to the creation of these rules, it was not unusual for college sports teams to have non-student players, players who moved back and forth between amateur and professional ranks, and players who competed for multiple universities. Id. at 37. For instance, Fielding Yost, a football player at West Virginia University, once transferred in the middle of a season to Lafayette, played a single game against that university's rival, and then promptly transferred back to West Virginia. Id (2007) ("From an antitrust perspective, this attempt to secure concerted action from NCAA member institutions also laid the foundation for, and increased the likelihood of, Sherman Act challenges to rules and regulations that arguably restrained competitive forces in the marketplace. The transition from an advisory set of standards to a joint agreement to adhere to rules and regulations, coupled with NCAA enforcement, provided the requisite concerted action and potentially anticompetitive consequences necessary to invoke Sherman Act antitrust principles.").
26. The current debate over payment to athletes and its effect on amateurism was echoed in 1950s when proponents of the Sanity Code labeled nascent attempts at instituting academic scholarships for athletes (which are now widespread and universally accepted) as "pay for play" that eroded the boundary between professional and collegiate sports. See BYERS WITH HAMMER, supra note 16, at 68-69.

B. THE CONTEMPORARY MODEL
The current structure of the NCAA is far more complex than it was in the 1950s. As an initial matter, the NCAA is not the only association governing college athletics-there are a number of smaller organizations that oversee either groups of universities with particular shared characteristics, or individual sports that are not regulated by the NCAA. 27 However, the NCAA is by far the most important collegiate athletic association due to its size and commercial prominence.
The NCAA is governed by its member institutions: universities across the country. A legislative manual contains its foundational documents, which are passed through a democratic process involving member universities. 28 Additionally, its highest governance body is its Board of Governors, which includes many university presidents. 29 Subordinate to the Board are a number of committees that oversee everything from health and safety to the provision of various athletic scholarships. 30 Member institutions are subdivided into three largely self-contained divisions (I, II, and III) based on size, resources, and the use of athletic scholarships. 31 According to the NCAA, its "basic purpose" is to "maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports." 32 This purpose clearly encompasses the same conception of amateurism espoused by the NCAA's founders, an ideal that is further operationalized elsewhere in the organization's constitution and bylaws. 33 For instance, the NCAA's "Principles for Conduct of Intercollegiate Athletics" states that "[s]tudent-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived." 34 And Article 12 of the NCAA bylaws strips eligibility from any athlete who "[u]ses his or her athletics skill (directly or indirectly) for pay in any form in that sport," 35 or "[a]ccepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product." 36 Apart from the NCAA's rulemaking authority, the organization also generates substantial revenue by arranging national championship events for the sports it  The vast majority of this revenue is distributed to Division I conferences, universities, and players in the form of scholarships. 38 Smaller amounts are distributed to universities and conferences in the lower divisions, 39 while a substantial portion is spent on insurance, legal services, and general administrative costs. 40 Within the NCAA are a number of smaller, regional conferences, such as the Big Ten Conference (Big Ten), Southeastern Conference (SEC), and Pacific-12 Conference (Pac-12). 41 These conferences have major independent revenue streams from the sale of media rights for regular season contests between member institutions. 42 Like the NCAA, these conferences also distribute much of their revenue to their member universities. 43 Thus, most of the money generated by college sports eventually trickles down to the individual universities, which also retain earnings from ticket sales and donations. 44 Even so, expenses often outpace revenues. 45 Consequently, the fiscal interests of NCAA universities can easily conflict with both the amateur ideal and the financial welfare of college athletes. This is especially true in the wake of the COVID-19 pandemic, which forced a number of college athletic competitions to be cancelled in the 2020 calendar year, 46 and has led many universities to consider cutting entire athletic teams. 47

C. LEGAL CHALLENGES TO THE MODEL
It should thus come as little surprise that even prior to the passage of the Fair Pay to Play Act, the NCAA's amateur model attracted legal challenges from current and former college athletes. These litigants have typically alleged that the NCAA's ban on compensation violates federal antitrust law. However, as demonstrated in the following cases, until recently, courts have displayed deference to the NCAA and the goals of amateurism. Nevertheless, recent decisions signal an increasing judicial skepticism of the NCAA's approach. This shift, coupled with demands that college athletes be categorized as employees under federal labor law, place the NCAA model's legal foundation on shaky ground.

Antitrust Law Background
Typically, suits brought against the NCAA by universities, athletes, and other third parties challenging the rules of the organization have invoked antitrust law. Federal antitrust law is primarily governed by the Sherman Antitrust Act of 1890, 48 and the Clayton Antitrust Act of 1914. 49 The former bars anticompetitive agreements (in addition to unilateral attempts to monopolize), 50 while the latter specifies and clarifies additional prohibited conduct. 51 Under these laws, courts may strike down a range of multilateral business practices on the theory that they unreasonably restrain trade and thus harm other 46. See, e.g., Khristopher J. Brooks, March Madness Canceled as Coronavirus Claims Another Sports Event, CBS NEWS (Mar. 13, 2020), https://perma.cc/4WAY-X8FD (announcing the cancelation of the NCAA Men's Basketball Tournament). Indeed, the Pac-12 and Big Ten initially announced that the 2020-2021 football season would be canceled, before changing course after three other major conferences decided to play on. Fred Bowen, This Strange College Football Season Could Have Lasting Effects, WASH. POST (Oct. 28, 2020), https://perma.cc/SMW2-9WRG. In justifying the reversals, university and conference officials were forced to confront critics who argued that the schools' financial concerns, rather than the safety of athletes, motivated the decisions to play. market participants. 52 These include horizontal price fixing agreements (where competitors agree to fix the prices they will charge customers or pay suppliers), similar vertical agreements (between suppliers and their buyers), allocation of markets between competitors, group boycotts, and exclusive dealing agreements. 53 Courts typically analyze the more presumptively problematic business practices under a "per se" rule-in which the practice is conclusively deemed to be illegalwhile others are treated more leniently and call for a "rule of reason" balancing test. 54 Antitrust law is a natural fit for lawsuits against the NCAA because the organization is fundamentally composed of many competitors (the universities) in the college athletics market. Thus, any coordination between these competitors runs the risk of harming other market participants, including athletes, coaches, media networks, and consumers. For instance, rules barring athlete compensation artificially cap the "price" of athletes at the cost of attendance (the maximum scholarship universities are allowed to provide). However, despite the intuitively simple fit of antitrust doctrine to restrictions on college athlete compensation, plaintiffs have historically encountered significant obstacles in challenging NCAA rules.

Application To the NCAA
It was not originally clear that federal antitrust law even applied to the NCAA. In 1922, the Supreme Court held in Federal Base Ball Club of Baltimore, Inc. v. National League of Professional Base Ball Clubs that Major League Baseball was not engaged in interstate commerce and was thus not subject to federal antitrust regulation. 55 As a result of that ruling, the antitrust status of other sports leagues remained ambiguous for over three decades. But in 1955, the Court settled the issue in United States v. International Boxing Club of New York, Inc. by holding that a boxing match was indeed interstate commerce, noting: [I]f it were not for Federal Baseball . . . we think that it would be too clear for dispute that the Government's allegations bring the defendants within the scope of the [Sherman] Act. A boxing match . . . "is of course a local affair." But that fact alone does not bar application of the Sherman Act . . . if the business is itself engaged in interstate commerce or if the business imposes illegal restraints on interstate commerce. 56 As a result, debate over antitrust litigation against the NCAA shifted from whether the organization was subject to antitrust law to how the antitrust statutes should be applied. The seminal college athletics antitrust decision is NCAA v. Board of Regents of the University of Oklahoma. 57 In that case, the University of Oklahoma argued that the NCAA unreasonably restrained trade by barring major universities from negotiating independent television contracts with media networks. 58 Just as in International Boxing Club, this was clearly a situation in which interstate commerce could be affected. Furthermore, the restraint at question in the case-and in practically all NCAA cases-was horizontal in nature, as it limited competition between competitors (the universities). These types of restraints are typically considered per se illegal because they place artificial restrictions on the quantity of the product (televised games) and thus decrease availability and inflate prices for consumers (viewers). 59 Nevertheless, the Supreme Court decided to apply a rule of reason analysis (rather than the per se rule), 60 under which courts are to weigh the anticompetitive harm of a restriction against countervailing procompetitive benefits. 61 The Court applied the rule of reason in this context because the college athletics market requires some horizontal restraints for it to function effectively in the first place. 62 The Court recognized that producing sports games requires cooperation between competitors, and the presence of a uniform set of rules can increase the appeal of the entertainment product. 63 But in dicta the Court went further, arguing that the concept of amateurism was also a necessary prerequisite for college sports; it reasoned that without amateurism, college sports would be indistinguishable from professional sports, thus narrowing the breadth of athletic entertainment "products" available to consumers. 64 The Court then went on to discuss the obvious anticompetitive effects of the agreement in question, which reduced the number of games that were shown on television and raised the prices for televising those games. 65 While the NCAA argued that this agreement was necessary to maintain competitive balance between the universities-a balance that the NCAA argued would ultimately benefit the consumer-this justification was not deemed important enough to excuse the restrictive ban. 66 Thus, given a lack of counterbalancing justifications, the Court Board of Regents is important for a few reasons. First, it provided a coherent example of how courts should progress through a typical college sports antitrust analysis. Second, it applied the more permissive rule of reason in the college athletics context. Finally, it recognized that amateurism and competitive balance are both potential justifications for NCAA rules that might otherwise violate federal antitrust law.

The Ban on Compensation
Two further cases have significant bearing on the NCAA's ban on athlete compensation. In Jones v. NCAA, a pre-Board of Regents case, a college hockey player challenged the NCAA's determination that he was ineligible to play. 68 His complaint was promptly rejected by the district court, which held that the Sherman Act did not apply to the NCAA's eligibility rules. 69 Later, in Law v. NCAA, a class composed of college basketball coaches challenged an NCAA rule limiting their compensation. 70 Unlike in Jones, the Tenth Circuit applied the rule of reason framework articulated by the Supreme Court in Board of Regents and rejected the NCAA rule. 71 Courts have squared these cases with each other (and with Board of Regents) through a distinction between the purposes of the NCAA rules at issue. They have accepted that athlete eligibility rules have a primarily non-commercial objectivepromoting amateurism-while rules governing other facets of the market, like coach pay and broadcasting contracts, are sufficiently commercial in nature to apply antitrust law. 72 This has created a gap between how courts have approached suits by 67. Id. at 120. The Court also rejected the argument that this was procompetitive because restricting broadcasts protected live attendance of games both because it was not empirically supported and because the justification is at odds with the goal of the Sherman Act, as it sought to reduce competition (between live and broadcast events) rather than increase it. athletes and suits by other market participants. Legal scholar Daniel Lazaroff described this gap as the "dichotomous" modern approach: When dealing with antitrust claims in a nonplayer context, the judicial approach has been rather unremarkable and consistent with more traditional antitrust methodology. However, when restraints in alleged player service markets arise, federal courts either decline to apply antitrust doctrine at all, or seem to adopt a more deferential approach . . . . 73 The two prongs of this dichotomous approach came to a head in O'Bannon v. NCAA. 74 O'Bannon was a 2015 Ninth Circuit class action brought by a group of current and former college athletes who alleged that the NCAA's bar on direct university-to-athlete compensation for use of the players' names, images, and likenesses was illegal. 75 This rule is certainly an eligibility requirement that promotes amateurism, similar to the eligibility determination upheld in Jones. After all, if a player disregarded the rule, they would be deemed ineligible. However, it also directly restricts compensation, like the rule capping compensation for coaches that was invalidated in Law.
In responding to this issue, the Ninth Circuit did not do away with the dichotomous approach entirely, but it did reject the contention that all eligibility requirements are inherently non-commercial. The court reasoned that a "transaction in which an athletic recruit exchanges his labor and NIL rights for a scholarship at a Division I school" undeniably falls under the broad modern legal understanding of commerce. 76 The mere fact that the restriction was written as an eligibility rule does not transform its commercial nature. 77 In weighing the procompetitive and anticompetitive effects of the NCAA rule, the court first held that the rule hurt athletes, who would otherwise be able to negotiate for compensation. 78 The court then considered one of the NCAA's procompetitive justifications: the promotion of amateurism. The court acknowledged that amateurism increased the commercial appeal of college sports and broadened consumer choices as a result. 79 Despite this justification, the court held that the NCAA's rules unlawfully restrained trade. It identified a substantially less restrictive alternative that was "virtually as effective in serving the procompetitive purposes of the NCAA's current rules, and without significantly increased cost"-allowing universities to award scholarships up to the full cost of attendance The outcome in O'Bannon was certainly not revolutionary-the NCAA had already decided to allow scholarships for the full cost of attendance going forwardbut its reasoning and tone signaled a break from the existing deference to the NCAA regarding athlete compensation issues. By rejecting the dichotomous approach, "the Ninth Circuit deviated from the de facto exemption from antitrust for the NCAA's amateurism provisions that decades of district and circuit court decisions developed." 81 Furthermore, while O'Bannon only directly dealt with a claim for NIL compensation, the logic of the decision weakened the NCAA's legal defense for its entire amateur model, including its ban on direct non-NIL payments from universities to athletes. 82 Indeed, at least one district court in the wake of O'Bannon has demonstrated a willingness to continue to move in this direction, by disallowing existing NCAA limits on in-kind education related benefits above and beyond full cost of attendance athletic scholarships. 83

Labor Law
The status of athletes in the NCAA's system has also raised separate labor law concerns. Collective labor law governs the relationships among employees, employers, and the unions that act as employees' agents in negotiating terms of employment. 84 The basic statutory scheme governing these relationships is the National Labor Relations Act of 1935 (NLRA), which established the National Labor Relations Board (NLRB), an independent agency tasked with administering the Act. 85 The NLRB's two primary functions are: (1) "to determine and implement" employee elections "as to whether they wish to be represented by a union"; and (2) "to prevent and remedy unlawful practices." 86 The NLRB can become involved in a particular dispute through the filing of a petition in one of its regional offices by an aggrieved party, at which point the regional office must make a determination as to whether the agency has jurisdiction. 87 However, for the NLRB to have jurisdiction, there must be a showing that an employee and employer (as defined in the Act) exist. 88 Furthermore, in some cases, the NLRB may decline to assert jurisdiction even if the technical jurisdictional requirements are met. 89 The right to collectively bargain granted by the NLRA is important in many industries to correct unequal bargaining power between employees and employers. 90 This right is commonly exercised in many professional sports, where it is often even favored by employers because of the decrease in transaction costs. 91 However, the benefit of collective bargaining to employers is duplicative in the higher education context where amateurism has, until now, successfully shielded universities from the same scrutiny that professional employers receive.
In 2014, college athletes at Northwestern University petitioned the NLRB, seeking the right to collectively bargain with the university. 92 In assessing whether the agency had jurisdiction, the Regional Director agreed that the college athletes were employees. 93 However, on review, the NLRB discretionarily dropped the case, stating that "it would not effectuate the policies of the [NLRA] to assert jurisdiction." 94 This decision was based on the fact that the vast majority of Division I universities are state-run, and thus categorically excluded from NLRA jurisdiction; therefore, an assertion of jurisdiction over Northwestern-a private universitywould lead to inconsistent legal classifications at different universities. 95 Despite this temporary victory, the opinion should give the NCAA further cause for concern as it "implicitly acknowledge[s]" the view that college athletes are employees under the NLRA. 96 Additionally, it strongly supports the position that some college athletes participating in "revenue sports" may be properly classified as employees under the federal Fair Labor Standards Act and possibly under other state laws that would mandate payment to athletes for the services they render. 97 In light of these recent antitrust and labor judicial decisions, it is clear that the NCAA's model faces threats beyond the Fair Pay to Play Act. Indeed, these other attacks do not just implicate the NCAA's ban on third-party NIL compensation to athletes; they also challenge the ban on non-educational expense related direct

A. THE FAIR PAY TO PLAY ACT AND NATIONAL RESPONSES
California's Fair Pay to Play Act upset the delicate balance struck by the courts between college athletes and the NCAA. The Act changes existing law by barring universities in the state from enforcing rules that prevent college athletes from earning compensation through the use of their name, image, or likeness. 99 It additionally targets the NCAA directly by prohibiting the organization from banning athletes or universities who follow the law. 100 However, California's law is also notable for what it does not do. Most importantly, it only requires universities and the NCAA to allow athletes to earn NIL compensation from third parties-it does not mandate any direct payment from universities to athletes. 101 Furthermore, it limits the types of NIL compensation opportunities that athletes can seek, barring athletes from monetizing their NIL value in a way that conflicts with their university's existing contracts. 102 As a result of these limitations, the law does not have any direct financial effect on universities or the NCAA. 103 This makes it unlike prior legal challenges that did seek direct compensation.
Although the Fair Pay to Play Act does not take effect until 2023, the NCAA issued an immediate response on October 29, 2019. 104 In a meeting of the Board of Governors, the NCAA accepted a report and set of recommendations (R&R) on NIL compensation issued six days earlier by its Federal and State Legislation Working 98. While existing cost of attendance athletic scholarships could certainly be regarded as "direct payments" from universities to athletes, I use this term to only refer to non-education related expenses. Direct payments could thus include bonuses, salaries, and other in-kind benefits that are not used for educational purposes.
99. Fair Pay to Play Act, CAL. EDUC. CODE § 67456(a)(1) (West 2019). In addition to permitting college athletes to earn NIL compensation, the Fair Pay to Play Act also allows them to seek representation by state licensed agents and attorneys, and forbids parties from contracting out of these rules. Group. 105 In doing so, the NCAA stated that it would "permit students participating in athletics the opportunity to benefit from the use of their name, image and/or likeness" and directed its three divisions to begin considering updates to NCAA bylaws necessary to accomplish that goal. 106 Consistent with this statement, in 2020, the Board of Governors announced its support for allowing third-party compensation in some form and directed the three NCAA divisions to consider and adopt rule changes by January, 2021. 107 The Board also pledged to engage Congress to pass legislation that would protect the NCAA from labor and antitrust litigation and preempt state laws on the topic. 108 While the NCAA's statements initially seem to embrace the changes required by the California law, there are a number of signs that the organization instead intends to place greater restrictions on NIL compensation than the Fair Pay to Play Act would allow. First, the NCAA declared that any permissible NIL compensation must be "consistent with the values and beliefs of intercollegiate athletics." 109 To this end, the statement requires the three NCAA divisions to independently consider various guiding principles in formulating changes to their bylaws. 110 These principles include maintaining the similar treatment of athletes and non-athletes, the priority of educational-rather than athletic or commercial-goals, the distinction between professional and collegiate sports, and the non-employee status of athletes. 111 Furthermore, the NCAA has directly stated that it considers the Fair Pay to Play Act unconstitutional and inconsistent with "the mission of college sports within higher education." 112 Critics of the NCAA argue that the organization has little appetite for real change. Nolan West, a Minnesota State Representative sponsoring a NIL bill in that state, wrote: "I have very little faith in the NCAA. They have drug [sic] their heels through the whole process, and only put out a press release to 'consider proposals' after they realized public sentiment was decidedly against them. This lack of faith in the NCAA has crystallized into a nationwide push for additional legislation on both the state and federal levels. About two dozen states have considered legislation similar to California's, 116 and several other states, including Florida, have already passed similar measures. 117 Although most of this legislation is practically identical to California's, some states may decide to grant athletes additional rights. 118 On the federal level, some members of Congress have expressed support for reform and a bipartisan working group has been formed to explore legislative options in the Senate. 119 And in the wake of the COVID-19 pandemic, legislators have pushed for more radical change by proposing a "College Athletes Bill of Rights" that would drastically curtail the NCAA's limitations on compensation and eligibility. 120 As a result, the NCAA faces pressure on multiple fronts to enact real change.

B. THE FIRST CHALLENGE-LACK OF UNIFORMITY
The sheer number of other states considering legislation on NIL compensation for athletes illustrates one of the main problems that the Fair Pay to Play Act poses for the NCAA: It limits the effectiveness of the NCAA's nationwide rulemaking authority by introducing different requirements in different jurisdictions. This hampers the original purpose of the NCAA: Providing college athletics with a consistent set of rules. However, no unilateral NCAA response to the bill can fix the lack of uniformity that would stem from inconsistent state legislation.

The NCAA's Unilateral Options
Although it would not fix the lack of uniformity, in theory the NCAA could respond to California in three ways. First, it could accept that athletes in different states would play by different rules. Athletes at universities in states that had passed NIL bills would be allowed to earn compensation while those at universities in other states would be forbidden. However, this approach is likely untenable. As an initial matter, from the NCAA's perspective it would create a race to the bottom, as states would be incentivized to pass NIL compensation bills out of fear of their sports teams being left behind. Furthermore, it would potentially harm college sports by creating an unequal playing field, as universities in states that had passed legislation would have a recruiting advantage over those in states that hadn't. Finally, it would potentially open a Pandora's box of additional state regulation by signaling to states that the NCAA would not combat legislation invalidating its rules.

Scott Gleeson, Jay Bilas Calls the NCAA's Proposal To Pay Athletes a Bluff: It's "Frankly
Second, the NCAA could simply exclude universities in states that had passed compensation laws from its organization. 121 This would constitute a bet that those states that had passed NIL bills would cave as a result of their self-imposed isolation. However, this bet would be disastrous if a sufficient number of other large states passed similar legislation; the NCAA could find itself caught in a web of its own making as a critical mass of states join up with California and recruit the top athletic talent nationwide.
Finally, the only way for the NCAA to unilaterally maintain uniformity would be to amend its bylaws to conform with all relevant state laws (like the Fair Pay to Play Act) or to successfully invalidate those laws in court. In doing the former, the NCAA would essentially surrender, allowing third-party compensation with few limitations. This option is certainly palatable to the organization from a uniformity perspective, but it does nothing to address the existing antitrust and labor challenges the NCAA faces. The NCAA has instead expressed interest in the latter option: fighting state third-party compensation laws in court.

Potential Legal Challenges
As discussed previously, the NCAA has indicated some interest in seeking to invalidate the Fair Pay to Play Act due to the perceived detrimental impact the law would have on the amateur model. 122 On the surface, this decision makes sense; even if the NCAA chose to implement new nationwide standards that conformed to the Fair Pay to Play Act, the uniformity of the system would still be in constant jeopardy. This is because the NCAA would once again face the same problem every time a different state passed a law that was incompatible with (that is, greater in scope than) the Fair Pay to Play Act. The possibility of such a law is already a live issue: Proposed legislation in New York State would require universities not only to permit third-party NIL compensation, but also to make direct payments to athletes from ticket sale revenue. 123 Therefore, acceptance of the Fair Pay to Play Act, without any assurance of the passage of federal legislation, does little more than kick the can down the road.
121. As a variation on this option, the NCAA could create a separate division for schools in states that permitted NIL compensation. But this would likely result in many of the same issues as simply cutting out schools entirely-top athletes would likely be more attracted to schools where they could earn compensation and a critical mass of states switching over to the new division could lead to the eventual obsolescence of the non-NIL division. Furthermore, from an operational perspective, if states pass NIL compensation bills that have contradictory requirements, the NCAA would be forced to either accept the resulting differences or further subdivide schools.
122 Nevertheless, challenging the statute is far from a silver bullet. For one, it is not at all clear that the NCAA would succeed. Its strongest argument is that the California law violates the United States Constitution's Commerce Clause, which states that the United States shall have the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." 124 While this clause is phrased as an affirmative grant of power, it has also been interpreted by courts to block state action that "discriminates against or unduly burdens interstate commerce" even in the absence of federal legislation on the topic. 125 This concept is known as the dormant commerce clause doctrine. 126 The NCAA has previously used the dormant commerce clause doctrine to successfully invalidate other state laws, most notably in NCAA v. Miller. 127 In that case, the court struck down a Nevada statute requiring the NCAA to provide additional procedural due process protections to "a Nevada institution, employee, student-athlete, or booster" in enforcement proceedings. 128 The Ninth Circuit reasoned that the statute directly regulated interstate commerce in violation of the dormant commerce clause doctrine because it was directed at an unquestionably interstate organization, the NCAA. 129 To hold otherwise, the Ninth Circuit noted, would force the NCAA "to apply Nevada's procedures to enforcement proceedings throughout the country" if it "wished to have the uniform enforcement procedures that it needs to accomplish its fundamental goals and to simultaneously avoid liability under the Statute." 130 This would have a practical effect of controlling conduct outside the state and could lead to a lack of uniformity if other states implemented inconsistent requirements. 131 At face value, the California law seems highly analogous to the Nevada law struck down in Miller. However, there are still a number of key differences. First, the statute in Miller prohibited the NCAA from expelling Nevada universities in response to the law. 132 Therefore, the NCAA could not avoid compliance by simply refusing to associate with Nevada universities. But here, the California statute does not bar the NCAA from taking that drastic action-the NCAA is free to simply exclude universities in California from competition. Thus, the California law is far less intrusive; if the NCAA doesn't want to comply with the law, the organization is free to walk away from its operations in the state. Furthermore, the Fair Pay to Play Act merely blocks a ban on contracts between athletes and third parties. Therefore, it is far less central to the internal workings of an interstate organization (the NCAA) than a law that meddles in the judicial mechanisms of that organization. Finally, there must be some limit to the NCAA's uniformity argument-otherwise, state laws regulating practically any aspect of college athletics could be struck down on a similar theory. In the words of Professor Chris Sagers: The NCAA suggests that states could lose purely in-state authority over matters almost uniquely within traditional state-government regulatory authority . . . not because Congress has occupied the regulatory field, but because in its nearly complete absence a purely private entity has occupied it . . . . Imagine the NCAA took a new interest in regulating excessively long hours of training or training diets. Would states thereby lose all authority to protect or regulate athletes in those areas, in the interest of national uniformity? 133 Even assuming a legal challenge by the NCAA were successful, it may yet be unwise. The NCAA might have to fight a number of different state laws in different courts. This would increase uncertainty and impose large legal expenses on the organization-a cost that may be particularly difficult to bear in the wake of the COVID-19 pandemic. When asked about the potential for litigation, Nolan West, the Minnesota State Representative, wrote: "I am not concerned with my bill being challenged. I don't believe the NCAA would want to bear the legal costs and bad press that would bring." 134 This confidence reflects a belief in strength in numbers; regardless of the legal merits, every state that passes legislation saps the strength of the NCAA in defending the status quo. West's contention concerning public approval is also warranted, as polling indicates that the vast majority of the public is in favor of NIL compensation for college athletes. 135 As a result of these various considerations, fighting the Fair Pay to Play Act in court will, even in victory, merely delay the problem.

C. THE SECOND CHALLENGE-A THREAT TO THE BROADER AMATEUR MODEL
A second problem that the California Act poses for the NCAA is that it does nothing to resolve the existing antitrust and labor issues discussed in Part I. This is because the California law only deals with NIL compensation from third parties, not compensation from the universities themselves. Therefore, the Act would not preclude further litigation against the NCAA by athletes alleging that universities are required to pay them directly. In other words, if the NCAA unilaterally moves toward allowing NIL compensation in some form, it will have granted a concession to reformers without any assurance that this is not merely the first step towards eliminating the amateur model completely.
The NCAA has recognized this danger in pushing for federal protection. As the organization recognizes, "[its] attempts to defend its amateurism rules from antitrust attack have not always been successful" and "[it] is concerned that these sorts of  Indeed, because the Fair Pay to Play Act only provides for compensation for use of a player's name, image, or likeness, it will do little to pacify athletes who may have significant financial needs but are not in a position to monetize their NIL. Reformers may try to deal with this limitation by lobbying for additional, more ambitious legislation, such as the proposed New York bill that would require profit sharing from ticket sales, or the federal "College Athletes Bill of Rights." 139 The NCAA itself recognizes the possibility of this slippery slope: NCAA President Mark Emmert acknowledged that the bill did not require direct payment from universities to athletes, but expressed concern that it could quickly morph into that model. 140 Thus, it is clear that the NCAA will not solve its legal issues through any unilateral response to the California statute.
Furthermore, the Fair Pay to Play Act may actually complicate future antitrust litigation for the organization. Emmert argued-perhaps hyperbolically-that the Fair Pay to Play Act would abolish the amateur model entirely and "convert[] students into employees." 141 A report by a subcommittee of the Board of Governors expressed a similar concern. 142 But these assertions contradict the legal positions the NCAA would likely take in future disputes. From an antitrust perspective, if Emmert is correct that the Fair Pay to Play Act functionally kills the concept of amateurism, 137. See Tyler Tynes, The Ripple Effect of California's "'Fair Pay To Play"' Act, RINGER (Oct. 11, 2019), https://perma.cc/7YAS-HRSF ("'I'll be honest, originally I wanted to pay student-athletes,' Skinner admits. But allowing athletes to profit from their NIL, she says, was the most logical, achievable, and cost-effective legislative action, and would 'not really have any direct costs on the colleges themselves' . . . .").
138  . 3, 2019), https://perma.cc/464F-PZDG ("'First, the bill that California passed is one that will allow in that state their student athletes to sell their name, image or likeness for endorsement deals-for shoe companies or car dealerships or the like. It would not be direct pay for play.' But, Emmert said, he can see it 'pretty fast' morphing into that model.").
142. See WORKING GRP. FINAL REPORT, supra note 136, at 28 ("Not only would this law undermine the NCAA's model of amateur intercollegiate athletics; it would threaten to transform student-athletes into employees of their schools.").
it would be difficult for the NCAA to later argue against direct payments to athletes in amateurism's name. In other words, if amateurism no longer exists, it can hardly serve as a procompetitive justification for the NCAA's model. While the NCAA can argue that Emmert was merely exaggerating the effect of the act, or that it should not be punished for concessions it was legally required to make, courts may use this as an excuse to further erode the organization's ban on compensation.
Similarly, if Emmert is correct that the California statute effectively reclassifies college athletes as employees, prior labor law disputes may again rear their heads. As a starting point, the decision by the NLRB to decline jurisdiction in ruling on whether athletes can collectively bargain can always be reassessed. 143 And reclassification of college athletes as employees could also lead to a host of new, additional problems. For instance, in response to the passage of the Fair Pay to Play Act, Senator Richard Burr argued that college athletes taking advantage of NIL compensation should be subject to income taxes on the full value of their scholarships. 144 Thus, it is clear that any unilateral response by the NCAA fails to solve the challenges that the Fair Pay to Play Act poses. Even if the organization accepted and nationalized California's law by updating its bylaws, it would still face the threat of future (and potentially more potent) legal challenges to its ban on direct payments from universities to athletes.

III. A LEGISLATIVE SOLUTION
Federal legislation is the best way for the NCAA to deal with both of the challenges posed by California's action. Through a new federal law, the organization could statutorily protect itself against further antitrust and labor challenges to its prohibition on direct payments from universities to athletes. Furthermore, federal action on the issue would ensure national uniformity by preempting contradictory state legislation. The main drawback of a legislative approach for the NCAA is that it would require compromise between the NCAA and its detractors on both sides of the political aisle. While this is certainly a big hurdle, it is one that can be cleared. However, to gain express protection against further legal challenges, the NCAA will need to accept more limited restrictions on NIL compensation and make other concessions, as legislators are likely to only permit restrictions that further their fiscal and equitable goals.

A. PROTECTING THE CORE AMATEUR MODEL
For the NCAA, the most important part of any legislation regulating compensation is protection against the possibility of direct payment from universities. While universities already provide educational scholarships for the cost of attendance, additional payments to athletes would impose increased real and intangible costs. From a fiscal perspective, unlike the third-party NIL compensation at issue in the Fair Pay to Play Act, direct compensation to athletes places financial strain on individual universities and the NCAA. 145 And from an ideological perspective, direct payments are harder to reconcile with the NCAA's amateur ideal.
To advance its goals, the NCAA must develop a multifaceted approach to defend itself from those seeking direct payment. First, the organization's solution must protect it from further antitrust litigation. Second, it must guard against similar labor lawsuits. Finally, the NCAA's solution must deal with the likelihood of independent and inconsistent state regulation.
Statutory protection against antitrust liability would be relatively simple to implement by carving out college athlete eligibility requirements from federal antitrust enforcement. For example, Congress could amend the Clayton Act to exclude college athlete eligibility requirements from the definition of the term "commercial." 146 This would essentially restore the pre-O'Bannon dichotomous approach that subjected eligibility requirements to limited scrutiny. 147 The same result could also be achieved by adding a new statutory provision that exempts these types of eligibility requirements. One precedent for such a stand-alone exemption is the Clayton Act's antitrust labor exemption. 148 Alternatively, the legislation could merely bar a private and/or state right of action for injuries stemming from eligibility requirements that limit college athlete compensation. 149 This would be a less dramatic change, as it would not limit the potential liability of the NCAA; rather, it would give the federal government exclusive authority to initiate suits against the NCAA arising out of alleged violations of the statute. While this approach would naturally be a weaker form of protection for the NCAA than an outright exemption, it would assuage any potential concerns that creating an exemption would lead to the NCAA abusing the system by generating a host of new eligibility rules.
Regardless of its form, this sort of antitrust exemption can be justified by reference to past practice. The most obvious precedent for an antitrust exemption in sports is the Major League Baseball exemption. While that exemption was created judicially, 150 it provides support for the notion that antitrust regulation is less appropriate in sports markets. More broadly, there are at least three theoretical bases for the creation of antitrust exemptions. 151 First, exemptions may be made because the behavior in question actually benefits the market. 152 However, in practice in the United States, beneficial behaviors are typically assessed under a rule of reason analysis-like the existing legal framework that is applied to the NCAA-rather than explicitly exempted. 153 Second, exemptions may be created because enforcement of antitrust law would interfere with more important societal values. 154 One application of this principle is the Noerr-Pennington Doctrine. This doctrine, initially set forth by the Supreme Court in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. 155 and in United Mine Workers of America v. Pennington, 156 created an exemption from antitrust law for private entities who lobby for legislation intended to reduce competition. 157 For example, in Noerr, the Court rejected a Sherman Act claim brought against a group of railroads that sought legislation eliminating competition from truckers even though "such associations could . . . be brought within the general proscription of combination(s) in restraint of trade." 158 This carve-out is justified by the overriding value of free political speech and the understanding that antitrust laws, "tailored as they are for the business world, are not at all appropriate for application in the political arena." 159 Finally, many exemptions have been justified under a theory that regulation is preferable to competition in dealing with particular industries. 160 However, the merit of competition-restricting regulations is debated by proponents of free-market economic theory.  Proponents of free-market economic theory criticize this category because it was premised on an early twentieth century understanding that in many industries highly regulated cartels were most beneficial to the economy. Id. They assert that free competition (with regulatory guardrails such as antitrust law to protect the market) is far more efficient. Id.
An antitrust exemption for eligibility rules barring compensation for college athletes may be justified under any of these theories. There is certainly an argument that limiting direct payment to athletes benefits the market. This argument is essentially the procompetitive justification for the NCAA's anticompetitive rules asserted by the organization (and accepted by courts) in prior legal battles. 162 Furthermore, the value of education and the place of the university in society have traditionally been held in high esteem by courts, 163 and thus, may be said to outweigh the importance of antitrust enforcement under the second theory. Finally, this is a relatively narrow exemption in an atypical market, 164 where regulation may be more appropriate in striking the correct balance between athletes and their universities.
Exemption from federal labor laws would also require a statutory amendment. The easiest way to get around labor laws is by simply stating that college athletes are not considered employees. For instance, the NLRA only applies to "employers" and "employees," as defined in the statute. 165 And just like the antitrust provisions, that Act also has a number of exemptions that exclude certain types of employers and employees. 166 Adding college athletes to the exempted employees would eliminate the potential for the NLRB to exercise its discretion to reverse its current position.

B. ENSURING UNIFORMITY
In addition to protecting the core amateur model through exemptions from antitrust and labor regulation, federal legislation can also guarantee national uniformity. Uniformity is important to the NCAA because it ensures the existence of a level playing field in college sports, a justification recognized in Board of Regents. 167 Additionally, uniformity reduces the need for expensive litigation and frequent NCAA bylaw updates in response to individual states passing college athlete compensation laws. 168 Thus, a federal bill effectively offers the NCAA an opportunity to deal with the issue of college athlete compensation in one fell swoop. 163. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 329 (2003) ("We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.").
164. As discussed in Part I.C, the production of the sports product requires some degree of collaboration between competitors. This is not true for most markets.
167. See NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 117-20 (1984) (accepting that competitive balance was a procompetitive justification but holding that it did not justify the NCAA broadcasting restriction); see also O'Bannon, 802 F.3d at 1059 ("The NCAA argued before the district court that restricting compensation to student-athletes helps level the playing field between FBS and Division I schools in recruiting, thereby maintaining competitive balance among those schools' football and basketball teams.").
168. As noted in Part I.B, a substantial portion of NCAA revenue is spent on legal fees.
Federal legislation would create permanent uniformity because it would preempt state legislation in the area. "Preemption" refers to situations in which federal statutes displace state laws due to the overlapping and concurrent authority of the two governmental bodies. 169 Congress can preempt state law in three ways: (1) express preemption; (2) field preemption; and (3) conflict preemption. 170 Express preemption occurs when the language of a federal statutes contains an explicit statement of preemptory intent. 171 For example, the Employee Retirement Income Security Act of 1974 (ERISA) plainly states: "[T]he provisions of this subchapter and subchapter III shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . ." 172 By comparison, the other two variations require courts to find that Congress impliedly preempted state legislation by either regulating the field so extensively that there is no room for state legislation or by legislating in a way that is directly inconsistent with state law. 173 The ability of Congress to preempt state legislation is justified through the Supremacy Clause of the U.S. Constitution, 174 which provides that "the Laws of the United States . . . shall be the supreme Law of the Land." 175 Field preemption would require a judicial determination that Congress intended to exercise exclusive control in the area through a pervasive regulatory scheme leaving no room for state law. 176 However, courts have grown "increasingly hesitant to read implicit field preemption clauses into federal statutes" that lack express preemption provisions. 177 Furthermore, defining the boundary of the preempted field may be tricky: Is the field restricted to third-party NIL compensation regulation, or does it cover all college athlete compensation, including direct payments from universities to athletes? In the absence of an express provision, it could even be interpreted to cover all eligibility rules.
Likewise, conflict preemption could similarly result in an over-or under-inclusive scope. Conflict preemption occurs when there is a conflict between state and federal law that is so "direct and positive . . . that the two acts cannot be reconciled." 178 Thus, a federal statute which simply states that college athletes are entitled to NIL compensation would not bar state laws that require additional compensation directly from universities. To establish the sort of conflict necessary for conflict preemption to occur, the federal statute would instead have to expressly describe the types of compensation that athletes are not entitled to, in addition to the types to which they are. Even if that were done, it is possible that states could find ways around preemption that drafters of the federal bill did not consider.
Therefore, an express provision describing the extent to which state law is preempted is the simplest and most foolproof route. However, in writing an express provision, it is still important to delineate the precise boundaries of state law preemption. This is because courts generally employ a presumption to read express preemption provisions narrowly. 179 Nevertheless, an express preemption provision gives Congress much more control over the scope of preemption than either of the other two forms of preemption.

C. POLITICAL FEASIBILITY OF FEDERAL LEGISLATION
The main roadblock for the NCAA in convincing Congress to pass favorable federal legislation is the difficulty of garnering the necessary political support. However, there is already general, bipartisan interest in legislation concerning college athlete compensation. The Fair Pay to Play Act passed in California with unanimous, bipartisan support 180 -a rare feat in this hyper-politicized age. In early 2019, Representative Mark Walker introduced legislation into Congress that would strip the NCAA of its tax exempt status, unless the organization allowed third-party NIL compensation. 181 And since the passage of the Fair Pay to Play Act, a bipartisan group of members of Congress have expressed interest in legislating on the issue. 182 For example, Senator Chris Murphy stated that, "given California's law, it seems like there's some immediacy to consider a federal law creating uniform rights across the country for college athletes to be able to make money off their exploits." 183 But interest in a legislative solution does not necessarily indicate political support for the type of law that the NCAA seeks-one that would primarily shield the NCAA from potential antitrust and labor liability without requiring much in the way of reform. Without this protection for the NCAA, a federal bill on college athlete compensation would be little better for the NCAA than a patchwork of state laws. Indeed, so far, legislators seem focused on the other half of the solution proposed by this Note-expanded opportunities for athletes to profit from NIL use-and not on protection for the NCAA. 184 Thus, the insertion of provisions protecting the NCAA against direct payment to athletes would likely precipitate a dispute with reformers who view NIL compensation as merely the first step towards a free college athletics market.
Nevertheless, a bill that includes protections for the NCAA is still a viable option. First, many proponents of the Fair Pay to Play Act do see third-party NIL compensation as the end goal, not merely a stepping stone to a free market approach. For one, the author of the California bill, State Senator Nancy Skinner, rejected a more sweeping plan. 185 Similarly, other legislators across the country who are in favor of allowing third-party compensation, have drawn the line at direct payments from universities to athletes. Nolan West, for instance, wrote: The goal of the [proposed bill in Minnesota] i[s] not to make students employees. The goal is to allow them to go into business for themselves using their name, image, and skills they've worked their whole lives for. I also don't want to create costs for the schools which would occur if they paid the players directly. 186 Federal legislation favorable to the NCAA need only gain the support of the median legislator, not the most dyed in the wool critics who would insist on direct payments from universities. 187 West's concern for the finances of universities is a key motivator for legislators. Many of the universities in the NCAA's top division (those that make substantial revenue from college athletics) are public. 188 Given the low profit margins of these universities' athletic departments, 189 the prospect of sapping additional resources from these institutions to pay athletes directly is not particularly attractive to legislators tasked with balancing budgets. This fiscal concern for universities also explains the Fair Pay to Play Act's prohibition of athlete NIL compensation that conflicts with university contracts-universities still essentially have first priority in forming lucrative corporate partnerships that might otherwise be undercut by athletes working with competitors. California State legislators were likely hesitant to harm the finances of the universities they are tasked with managing.
But there is another important reason to support third-party NIL compensation while opposing direct payments from universities: Direct payment could exacerbate pay gaps between top athletes and their peers. 190 Perhaps more troublingly, it could also lead to gaps between male and female athletes and to further litigation over gender equality. 191 Indeed, as universities seek to maximize their budgets in bringing in the athletic talent that would produce the greatest financial returns, scholarships and unprofitable teams could be cut. 192 In a world where the profit centers of college athletic departments are two men's sports (football and basketball), 193 direct payments to athletes could have the unintended consequence of shutting down less commercially valuable sports. This could, in turn, make it increasingly difficult for universities to balance financial sustainability with the gender equality demands of Title IX.
Much of the support for reform is based on a belief that the current model is inequitable. For instance, California State Senator Skinner has asserted that "[a]thletic talent has value, and college athletes deserve to share in that value. The Fair Pay to Play Act allows athletes to finally be compensated for their hard work . . . ." 194 California State Senator Steven Bradford, one of the co-sponsors of the Fair Pay to Play Act, added: "This is a civil rights issue about basic fairness." 195 Given these perspectives, as well as the unintended consequences of direct payments from universities discussed above, it is quite likely that most legislators would prefer to protect universities from the possibility of direct payments.
The more probable sticking point for compromise is the degree to which college athletes' ability to seek third-party NIL compensation is restricted or otherwise limited. California's statute places only one restriction on third-party NIL compensation-it must not conflict with university contracts 196 -while the NCAA would seemingly favor additional restrictions. However, to the extent that restrictions address the broader fiscal and equitable concerns of legislators discussed above, they may yet be achievable for the NCAA. Therefore, the NCAA should fashion and suggest restrictions that align with these policy interests.
The NCAA could seek to limit NIL compensation in a number of ways to decrease the negative impact of compensation on the concept of amateurism. Most obviously, the organization could lobby for the restriction that California already imposed. However, the NCAA could also lobby for additional restrictions not present in California's statute, including: court in O'Bannon (and later overturned by the Ninth Circuit). 198 It has also been both suggested by some, 199 and rejected by others, 200 as a solution for compensating athletes. 3. Pooling and sharing of compensation within teams, across sports, or across universities. Revenue sharing would certainly not be a new concept in college athletics, considering the trickle-down structure of the current system which funnels money from the NCAA and its conferences to individual universities. 201 4. Additional limitations on the sources of compensation (like a bar on compensation from university donors or from third-party sources whose business conflicts with the substantive values of the NCAA). 5. Restrictions on certain forms of compensation (like only permitting inkind compensation).
These types of restrictions would be helpful to the NCAA in a few ways. First and foremost, they would limit the amount of compensation given to any individual athlete during their time in school and thus limit the extent to which "professionalization" occurs. Pooling would have the additional benefit of maintaining parity between athletes, genders, and universities. And limitations on the sources and forms of compensation could help buttress against the corrupting influence of money in athlete recruiting and retention.
However, only some of these restrictions would satisfy the equitable and fiscal policy goals of legislators. For example, there will likely be strong opposition to a hard cap on the amount of NIL compensation that athletes can receive. Similarly, there would likely be little support for the creation of trusts to hold compensation until athletes have finished school. While these measures would certainly serve the interests of the NCAA, they would not save universities money and they would not solve reformers' equitable concerns. Placing NIL compensation in trusts would take away money from athletes when they need it most (when they are in school) and then return it after that immediate need has passed (once they have signed lucrative postcollege professional contracts). 202 On the other hand, a revenue sharing requirement-where a proportion of an athlete's NIL compensation must be shared with other athletes-does a better job