Can the NCAA Cap NIL Earnings?

This summer has been a historic few months for college athletes. On June 30th, the NCAA waived Bylaw 12 as it relates to name, image, and likeness compensation, and therefore greatly loosened its control over college athletes’ NIL rights after years of legal pressure. This all comes after a crushing loss in the Supreme Court, where the justices ruled unanimously against the NCAA’s right to cap educationally-related benefits. But the NCAA isn’t done fighting against NIL yet—last week, Politico reported that the NCAA is currently lobbying to Congress in an attempt to control NIL earnings for college athletes. 

Political lobbying by the NCAA isn’t a new phenomenon—In 2019, the Association spent roughly $750,000 to try and control NIL legislation at the federal level. The Power Five conferences have similarly spent a combined $900,000 in these efforts, and they’ve paid off to an extent—there are several NCAA-friendly NIL bills containing an antitrust exemption that would protect the NCAA from retroactive lawsuits in regards to NIL should the bills pass. This new round of lobbying efforts is also geared toward adopting a standardized cap limiting what college athletes can earn. 
It’s unclear how much the caps aim to limit earnings or if this is even legal—the NCAA’s recent Supreme Court loss was an antitrust case that dealt with price-fixing, and NIL caps certainly fall under this category. However, the court’s opinion noted that “reasonable” price-fixing arrangements (e.g. scholarship limit) are necessary to the college sports industry because such measures prevent inducements and other nefarious activities by boosters and stakeholders who want to attract top athletes to their universities with monetary bribes. Even so, we have yet to see a NIL case go up to the high court, so time will tell if the NCAA tests these waters and whether or not it can get away with it. But in the meantime, we know that as usual, the Association is trying to do what it does best: erect guardrails around athletes’ rights.

Related: What it Means for Athletes to Profit off of NIL as of July 1st and What’s Next

* Originally published on September 21, 2021, by Katie Lever, M.A.

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