Dropping the Ball: How the Growth of Legalized Sports Betting Threatens the NIL Rights of Collegiate Athletes

St. John's Law Review St. John's Law Review

Volume 96, 2022, Number 2 Article 7

Dropping the Ball: How the Growth of Legalized Sports Betting Dropping the Ball: How the Growth of Legalized Sports Betting

Threatens the NIL Rights of Collegiate Athletes Threatens the NIL Rights of Collegiate Athletes

Peter Klensch

Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview

Part of the Labor and Employment Law Commons, Marketing Law Commons, and the State and Local

Government Law Commons

This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It

has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship

Repository. For more information, please contact [email protected].

455

NOTES

DROPPING THE BALL: HOW THE GROWTH

OF LEGALIZED SPORTS BETTING

THREATENS THE NIL RIGHTS OF

COLLEGIATE ATHLETES

PETER KLENSCH

†

INTRODUCTION

One of the more storied runs in college basketball history

happened in 2014 when the seven-seeded University of

Connecticut Huskies (“UConn”) made the Final Four and

defeated the University of Kentucky Wildcats to win the Division

I Men’s College Basketball Tournament.

As the second-lowest

seed ever to win the Tournament, the focus should have been on

UConn’s celebration in Storrs, Connecticut.

Instead, the

national media was drawn to comments made by UConn’s star

point-guard, Shabazz Napier, who said that he sometimes went

to bed “starving.”

The remarks caught the immediate attention of state

legislators in Connecticut.

Representative Matthew Lesser said,

“he’s going to bed hungry at a time when millions of dollars are

being made off of him. . . . This isn’t a Connecticut problem. This

†

Notes and Comments Editor, St. John’s Law Review, J.D. Candidate, 2023, St.

John’s University School of Law; B.A., 2017, University of Connecticut. First, I’d like

to thank my mom, dad, and sister for their eternal love, guidance, and support.

Second, thank you to the St. John’s Law Review editors and staffers for their tireless

work on getting this Note across the finish line. Finally, a special thanks goes to

Professor Michael Dintenfass. A teacher, mentor, and friend that always reminds me

to never compromise on my passions.

Ted Keith, UConn Huskies Win National Championship, Beating Kentucky

Wildcats, SPORTS ILLUSTRATED (Apr. 7, 2014), https://www.si.com/college/2014/04/

08/uconn-huskies-win-national-championship-beating-kentucky-wildcats [https://per

ma.cc/RHS9-LLRJ].

Id.

Sara Ganim, UConn Guard on Unions: I Go to Bed ‘Starving’, CNN (Apr. 8,

2014), https://www.cnn.com/2014/04/07/us/ncaa-basketball-finals-shabazz-napier-

hungry/index.html [https://perma.cc/PU8W-UWC4].

Id.

456 ST. JOHN’S LAW REVIEW [Vol. 96:455

is an NCAA problem . . . .”

The National Collegiate Athletic

Association (“NCAA”) is a money-making behemoth, generating

$1.15 billion in revenue in 2021 alone,

and annually signing

multi-billion-dollar television deals for its two major sports,

Division I men’s basketball and football.

While Shabazz’s

remarks were not the first to be made about the disparity

between college players and their institutional overlords, the

comments brought the issue of paying college athletes back to the

national forefront.

Two other college athletes, Shawne Alston

and Justine Hartman, were soon to make noise of their own by

challenging the NCAA in a landmark antitrust lawsuit.

The

impact of NCAA v. Alston, which barred the NCAA from

restricting education-related benefits for student-athletes, and

the surrounding state name, image, and likeness (“NIL”) laws

have created a brand new market for student-athletes to receive

endorsements and benefits outside the confines of the

university.

At the same time, another groundbreaking legal decision

flipped the sports world on its head.

In Murphy v. NCAA, the

Supreme Court lifted the ban on state-legalized sports betting;

states were now free to enact their own individual sports betting

laws.

Since June 2018, more than $186 billion has been

wagered on sports, including $8.5 billion on the 2019 Division I

Men’s NCAA Tournament alone.

As the sports betting industry

Id.

Steve Berkowitz, NCAA Revenue Returned to $1.15 Billion in 2021, but

Prospect of Pandemic Impacts Looms, USA TODAY (Feb. 2, 2022, 10:08 PM ET),

https://www.usatoday.com/story/sports/2022/02/02/ncaa-revenue-up-but-pandemic-

impacts-loom-basketball-tournament/9313735002/ [https://perma.cc/2FG4-Z8WS].

Jo Craven McGinty, March Madness Is a Moneymaker. Most Schools Still

Operate in the Red., WALL ST. J. (Mar. 12, 2021), https://www.wsj.com/

articles/march-madness-is-a-moneymaker-most-schools-still-operate-in-red-

11615545002 [https://perma.cc/8BRQ-QBAA].

Ganim, supra note 3.

Pete Williams, Supreme Court Says NCAA Can’t Limit Some Benefits to

Student Athletes, NBC NEWS (June 21, 2021), https://www.nbc

news.com/politics/supreme-court/supreme-court-says-ncaa-can-t-limit-some-benefits-

student-n1271592 [https://perma.cc/8BRQ-QBAA].

Id.

Adam Liptak & Kevin Draper, Supreme Court Ruling Favors Sports Betting,

N.Y. TIMES (May 14, 2018), https://www.nytimes.com/2018/05/14/us/politics/

supreme-court-sports-betting-new-jersey.html [https://perma.cc/C4WT-QVDW].

Id.

McGinty, supra note 7; see U.S. Sports Betting Revenue and Handle, LEGAL

SPORTS REP. (Oct. 1, 2021), https://www.legalsportsreport.com/sports-betting/

2022] DROPPING THE BALL 457

continues to grow and become more accessible to the everyday

fan, so too does it widen its reach into college sports and to the

athletes themselves. But, what happens when sports betting

companies begin to endorse college athletes?

This Note will address the fallout of the Supreme Court’s

recent decision in Alston, state NIL laws, the legal gray area they

have created, and their intersection with the growth of legalized

sports betting in the United States. To protect student-athletes

and avoid disrupting the competitive nature of the NCAA, this

Note will argue for legislative and institutional action to limit

players from entering into endorsement contracts, specifically

with casinos, sports betting companies, or gambling-related

entities. Part I of this Note will explore the history of

amateurism and competition in college sports and the legal

history of sports betting. Part II will examine antitrust lawsuits

against the NCAA, the Alston ruling, the impact of NIL laws, and

the specter of sports gambling that hangs over these legal

decisions. Finally, Part III will highlight potential solutions,

specifically congressional proposals and NCAA action.

I. BACKGROUND

A. History of Amateurism and Competition in College Sports

1. The Early Years: Creation of the NCAA

The establishment of the NCAA developed from a need for a

central body to oversee and regulate college sports.

Action

became essential not only due to the lack of physical safety for

the players, but also the potential for corruption, cheating, and

the growing commercialization of athletic competitions.

These

problems can be traced back to the first intercollegiate

commercial sporting event in the United States, the 1852

Harvard-Yale regatta, where Harvard hired a non-student to be

a coxswain to gain a leg up on its rival.

revenue/ [https://perma.cc/TTG2-4N73] (handles updated to figures reflected from a

January 20, 2022 search).

See Ashley Jo Zaccagnini, Time’s Up: A Call to Eradicate NCAA Monopsony

Through Federal Legislation, 74 SMU L. REV. F. 55, 59 (2021).

Id.

Rodney K. Smith, Essay, A Brief History of the National Collegiate Athletic

Association’s Role in Regulating Intercollegiate Athletics, 11 MARQ. SPORTS L. REV. 9,

10–11 (2000) [hereinafter Smith, A Brief History]. Using the intense rowing rivalry

for his own economic gain, the host of the event, James Elkins, offered financial

458 ST. JOHN’S LAW REVIEW [Vol. 96:455

Initially, college sports teams were organized and managed

by the players themselves.

However, concerns over the growing

commercialization of intercollegiate sporting events, the fear of

unfair practices to gain a competitive advantage, and the

financial difficulties for players, forced universities to turn

control over to faculty.

This change in leadership and control

did little to quell the fears of university administrators.

Harvard President, Charles William Eliot, said in the late

nineteenth century that “lofty gate receipts from college athletics

had turned amateur contests into major commercial spectacles.”

Around the same time, Massachusetts Institute of Technology

President, Francis Walker, also voiced his concern inferring that

“[i]f the movement shall continue at the same rate, it will soon be

fairly a question whether the letters B.A. stand more for

Bachelor of Arts or Bachelor of Athletics.”

By the turn of the century, universities had still failed to

gain authority over intercollegiate sports and the need for tighter

control over college athletics was compounded by a rise in player

deaths.

From 1900 to 1905, at least forty-five football players

died from “unnecessary roughness” during in-game action.

The

tipping point for action came in 1905, when a nineteen-year-old

sophomore at Union College, Harold Moore, died from a brain

hemorrhage caused by a kick to the head during a match.

With

the national spotlight on the dangers of college sports, President

Teddy Roosevelt, an avid football fan, helped facilitate the

creation of the Intercollegiate Athletic Association (“IAA”) in

incentives to both crews, including a $100 grand prize. Kenneth L. Shropshire,

Legislation for the Glory of the Sport: Amateurism and Compensation, 1 SETON HALL

J. SPORT L. 7, 14 (1991).

Rodney K. Smith, The National Collegiate Athletic Association’s Death

Penalty: How Educators Punish Themselves and Others, 62 IND. L.J. 985, 989 (1987)

[hereinafter Smith, NCAA Death Penalty].

Id. at 989–90.

Smith, A Brief History, supra note 16, at 11.

Rodney K. Smith, Little Ado About Something: Playing Games with the

Reform of Big-Time Athletics, 20 CAP. U. L. REV. 567, 569–70 (1991) [hereinafter

Smith, Playing Games].

Id. at 570 (alteration in original).

Katie Zezima, How Teddy Roosevelt Helped Save Football, WASH. POST (May

29, 2014), https://www.washingtonpost.com/news/the-fix/wp/2014/05/29/teddy-roose

velt-helped-save-football-with-a-white-house-meeting-in-1905/ [https://perma.cc/DH

F6-B5B4].

Id. In 1905 alone, at least eighteen players died and there were 159 major

injuries. Id.

Id.

2022] DROPPING THE BALL 459

1906.

The IAA was tasked with developing the rules and

regulations for college sports and was later “renamed the NCAA

in 1910.”

Compared to the commercial enterprise it is today, the

NCAA played a very minor role in its early years, with its

primary responsibility being the organization and sponsorship of

major championship matches.

For the most part, the day-to-

day governance of college sports remained with students and

faculty until the 1920s, when the public demand for college

athletics rose alongside the push for general access to higher

education.

With more students going to college and athletics

becoming an indispensable part of the college experience, the

pressure of commercialization continued to compound.

As the

public interest in sports increased, so too did the need for

regulation, specifically involving amateurism.

A 1929 report

from the Carnegie Foundation for the Advancement of Education

found that: “Commercialism in college athletics must be

diminished and college sport must . . . [be] esteemed

primarily . . . for the opportunities it affords to mature youth.”

The NCAA’s first definition of amateurism was established

in 1916, characterizing an amateur as “one who participates in

competitive physical sports only for the pleasure, and the

physical, mental, moral and social benefits derived therefrom.”

With vague standards and no real enforcement power, the NCAA

was unable to drive home its “enshrined amateur ideals.”

the same 1929 Carnegie report, more than seventy percent of the

schools surveyed ignored recommendations to move away from

the professionalization of intercollegiate athletics.

In a follow-

See Zaccagnini, supra note 14, at 59. President Roosevelt’s son was a

freshman football player at Harvard, who broke his nose in-game during the 1905

season. Zezima, supra note 22.

Zaccagnini, supra note 14.

Smith, NCAA Death Penalty, supra note 17, at 990–91.

Id. at 991.

Id.

Smith, A Brief History, supra note 16, at 13.

GERALD GURNEY ET AL., UNWINDING MADNESS: WHAT WENT WRONG WITH

COLLEGE SPORTS AND HOW TO FIX IT 11–12 (Brookings Institution Press, 2017). The

A1922 revision to the definition added “and to whom the sport is nothing more than

an avocation.” Id. at 11–12.

Taylor Branch, The Shame of College Sports, ATLANTIC,

https://www.theatlantic.com/magazine/archive/2011/10/the-shame-of-college-

sports/308643/ [https://perma.cc/6ZJA-ZLS2] (last visited Jan. 14, 2023).

Id.

460 ST. JOHN’S LAW REVIEW [Vol. 96:455

up study, not one school changed its practices.

From

unenforced helmet mandates in football games to ineffectively

handling player strikes, the NCAA had no teeth.

2. Growing Pains: Amateurism as a Vehicle for Greater Control

As a governing body, the NCAA struggled to keep pace with

the rapid growth in the national popularity of college sports, and

faced not only the threat of exploitive recruiting tactics, but also

a series of scandals.

To subdue these mounting issues, the

NCAA enacted the “Sanity Code” to “alleviate the proliferation of

exploitive practices in the recruitment of student-athletes.”

The

code dramatically limited benefits, decreeing that athletes could

only earn a scholarship if they met the rigor of individual

university’s academic standards and demonstrated a fiscal

need.

From the start, the Sanity Code was a disaster.

The

primary issue with the code was that the NCAA established no

feasible enforcement mechanisms.

For example, the

organization created the Constitutional Compliance Committee

(“CCC”) to oversee and investigate potential violations under the

code.

However, the only penalty for non-compliance with the

Sanity Code by a school was expulsion from the NCAA, and even

that required a two-thirds majority vote.

Along with the Sanity

Code’s repeal in 1951, the CCC was replaced with the Committee

on Infractions (“COI”) and given broader sanctioning authority

when dealing with university violations.

GURNEY ET AL., supra note 32, at 12.

Kelly Charles Crabb, The Amateurism Myth: A Case for a New Tradition, 28

STAN. L. & POL’Y REV. 181, 189–91 (2017); Branch, supra note 33.

Smith, NCAA Death Penalty, supra note 17, at 992. One of the first college

athletics gambling scandals occurred in 1945, after two men bribed Brooklyn College

basketball players with $1,000 to throw a game against Akron University. Joe

Goldstein, Rumblings: The Brooklyn Five, ESPN CLASSIC (Nov. 19, 2003),

https://www.espn.com/classic/s/basketball_scandals_rumblings.html

[https://perma.cc/SDJ4-PGUQ]. While the game was never actually played, the two

bribers were convicted of “conspiracy to cheat and defraud.” Id.

Smith, A Brief History, supra note 16, at 14.

Brian Ewart, History: The Sinful Seven, SB NATION VU HOOPS (Aug. 22,

2011, 3:16 AM), https://www.vuhoops.com/2011/08/22/history-the-sinful-seven

[https://perma.cc/BMF8-YPTK].

See id.

Id.

Smith, A Brief History, supra note 16, at 14–15.

Ewart, supra note 39.

Smith, NCAA Death Penalty, supra note 17, at 992–93.

2022] DROPPING THE BALL 461

Beyond the establishment of a true sanctioning committee in

the COI, the NCAA’s enforcement capacity drastically increased

in the 1950s due to national commercial competition between the

major NCAA conferences.

Mainly, the Big Ten Conference (“Big

Ten”), the old guard in college sports, feared the rise of the

newcomer Southeastern Conference (“SEC”), which was

attracting talent from across the country.

To maintain its

competitive balance, the Big Ten pushed for a dramatic shift in

the operation of the conferences under a strong central power

and spearheaded the prohibition of compensating college

athletes.

The push from the conferences to strike a competitive

balance led to the centralization of the NCAA’s power under its

first executive director, Walter Byers, in 1951.

Byers shifted

the NCAA from a “debating society for amateurism” to the

commercial enterprise it is today.

Under his regime, the NCAA

negotiated its first million-dollar contract to televise college

football,

opening the door to today’s multi-billion dollar

television deals for events like March Madness and the College

Football Playoff.

While business boomed, Byers also knew he

had to strengthen his grip on administration and established the

enforcement division, which worked alongside the COI in

handling infractions.

As the NCAA grew as a moneymaking entity, so did its

administrative power.

To safeguard this newfound watchdog

role, Byers coined the term “student-athlete,” and established the

Crabb, supra note 36, at 190.

Id.

Smith, A Brief History, supra note 16, at 15.

Karen Given, Walter Byers: The Man Who Built The NCAA, Then Tried To

Tear It Down, WBUR (Oct. 13, 2017), https://www.wbur.org/onlyagame/

2017/10/13/walter-byers-ncaa [https://perma.cc/HAS6-S3FK].

David J. Halberstam, Born 80 Years Ago, College Football on TV was Limited

by the NCAA’s Grip Until Stopped by the Supreme Court, SPORTS BROAD. J. (Sept.

29, 2019), https://www.sportsbroadcastjournal.com/born-80-years-ago-college-foot

ball-on-tv-was-limited-by-the-ncaas-grip-until-the-supreme-court-said-let-go/

[https://perma.cc/6APE-5HFF].

See Joe Reedy, CBS, Turner Partnership on NCAA Tournament has Huge

Benefits, ABC NEWS (Mar. 17, 2021), https://abcnews.go.com/Entertainment/

wireStory/cbs-turner-partnership-ncaa-tournament-huge-benefits-76504960

[https://perma.cc/6C6V-H7ZU]; Ralph D. Russo, CFP Expansion Could Increase

Annual Revenue to $2 Billion, USA TODAY (June 11, 2021),

https://www.usatoday.com/story/sports/ncaaf/2021/06/11/cfp-expansion-could-

increase-annual-revenue-to-2-billion/45662665/ [https://perma.cc/JA7K-6524].

Smith, NCAA Death Penalty, supra note 17, at 993.

Id.

462 ST. JOHN’S LAW REVIEW [Vol. 96:455

“Principle of Amateurism”; the player’s role as a student should

now always come before being an athlete.

The 2021–2022

iteration of amateurism under the NCAA’s by-laws states:

“Student-athletes shall be amateurs . . . and their participation

should be motivated primarily by education and . . . . protected

from exploitation by professional and commercial enterprises.”

While much of the amateurism notion remains unchanged from

its original definition in 1916, the NCAA did shift the standard to

focus more on educational pursuits and protecting student-

athletes from the dangers of the private sector.

In turn,

throughout the mid-twentieth century, the NCAA used

amateurism as an enforcement mechanism in almost every

aspect of collegiate sports, including recruiting, academics, and

financial restrictions.

B. History of Sports Betting in Collegiate Athletics

1. The Flop: College Sports Gambling Scandals in the United

States Pre-PASPA

American sports betting evolved from a tradition of gambling

into a billion-dollar industry plagued with centuries of rampant

corruption.

While organized crime syndicates and influence

from religious organizations led to a widespread ban on gambling

by the late nineteenth century, the popularity of sports betting

continued to grow as baseball’s popularity did.

With national

interest increasing after each game, so too did the scandals, as

fans took to the black market to place their wagers.

This was

further exacerbated by the 1919 Black Sox scandal, where

Chicago White Sox players were paid off by organized crime

members to “throw” World Series games.

With mobsters now

Crabb, supra note 36, at 191–92 (emphasis omitted).

NCAA, 2021-22 DIVISION I MANUAL § 2.9 (2021), https://web3.ncaa.org/

lsdbi/reports/getReport/90008 [https://perma.cc/2YKU-Z6KX].

Id.

Crabb, supra note 36, at 191.

Chil Woo, All Bets are Off: Revisiting the Professional and Amateur Sports

Protection Act, 31 CARDOZO ARTS & ENT. L.J. 569, 571–72 (2013). The lottery helped

fund the Revolutionary War and was later labeled as a “civic responsibility.” Id. at

572.

Matt Farnum, Moving the Line: Leveraging the Legalization of Sports

Gambling to Protect Student-Athletes and Preserve Amateurism, 29 CORNELL J.L. &

PUB. POL’Y 491, 494 (2019).

Id.

Woo, supra note 58, at 572–73.

2022] DROPPING THE BALL 463

tied to America’s national pastime, the negative stigma

associated with sports gambling grew alongside the desire to

regulate sports betting.

Compared to professional league scandals, intercollegiate

athletics had a much more difficult time regulating such issues.

Without an organized, central governing body to enforce the

rules, college sports became a breeding ground for corruption and

betting scandals.

Throughout the mid-twentieth century,

college point-shaving scandals hurt the integrity of the game and

led the NCAA to develop stronger enforcement measures.

prevent such cheating scandals, Congress intervened and passed

a slew of legislation to combat gambling and stop organized crime

betting operations in college sports.

Unfortunately, Congress’s

efforts proved futile since the states each had their own

individualized enforcement measures that failed to prevent

illegal sports gambling and knocked out whatever teeth the

federal laws may have had.

As mobsters continued to avoid

regulation, the illegal sports betting industry soared in the 1970s

and 80s.

As illegal gambling flourished, the American public’s

confidence in the integrity of sports plummeted.

In 1983,

roughly $8 billion was wagered illegally on sports in the United

States.

Six years later, that figure rose to $50 billion.

Id. at 573. At the time, Nevada was the only state with legalized sports

betting. Id.

Farnum, supra note 59, at 495–96.

Id.

Haley M. Robb, Hedge Your Bets: How the Legalization of Sports Betting

Could be the Downfall of Intercollegiate Sports, 122 W. VA. L. REV. 351, 372–73

(2019). In 1951, seven college basketball teams were involved in a complex point-

shaving scheme involving thirty-two players and eighty-six games. Id. at 373.

Farnum, supra note 59, at 499–500.

Id.

See Robb, supra note 65, at 374–75; see also David Purdum, The Worst Fix

Ever, ESPN (Oct. 3, 2014), https://www.espn.com/espn/chalk/story/_/id/11633538/

betting-chronicling-worst-fix-ever-1978-79-bc-point-shaving-scandal [https://per

ma.cc/9ETE-526P](highlighting Boston College basketball team’s 1978–1979 point-

shaving scheme) ; Frances Frank Marcus, 8 Indicted in Tulane Scandal; School to

Give Up Basketball, N.Y. TIMES (Apr. 5, 1985) https://www.nytimes.com/1985/04/

05/sports/8-indicted-in-tulane-scandal-school-to-give-up-basketball.html [https://per

ma.cc/47NX-A77M] (detailing the 1985 scheme between Tulane University

basketball players and students).

Justin Fielkow et al., Tackling PASPA: The Past, Present, and Future of

Sports Gambling in America, 66 DEPAUL L. REV. 23, 29 (2016).

Id.

464 ST. JOHN’S LAW REVIEW [Vol. 96:455

According to one Sports Illustrated writer in 1986, “nothing has

done more to despoil the games Americans play and watch than

widespread gambling on them. . . . [D]ark clouds of cynicism and

suspicion hang over games, and the possibility of fixes is always

in the air.”

The hopeless sentiment toward sports betting

during the 1980s came to a crescendo with the Pete Rose scandal

in 1989.

One of the game’s greatest hitters, Rose was

permanently banned from baseball after accusations surfaced

that as both player and manager, he gambled on games, racking

up about $500,000 in debt.

With revived and heightened public

outcry, Congress felt it necessary to take measures to protect the

integrity of sports.

2. The Turn: PASPA to Murphy

The Rose Scandal forced the federal government to combat

the destructive effects of sports gambling.

In 1992, Congress

found a “distinct [f]ederal interest in protecting sports from

corruption” and enacted the Professional and Amateur Sports

Protection Act (“PASPA”) to “maintain the integrity of [the]

national pastime.”

PASPA prohibited states from legalizing

sports wagering.

As seen from Congress’s efforts to quell illegal

sports betting in the mid-twentieth century, the bill’s title

seemed to carry more weight than its actual practicality and

effectiveness.

As a result, PASPA barely made any headway in

restoring the public’s confidence in the integrity of sports and its

value and legality were constantly in question.

In 2012, New Jersey enacted the Sports Wagering Act

through an amendment to the state constitution, providing the

John Underwood, The Biggest Game in Town, SPORTS ILLUSTRATED (Mar. 10,

1986) https://vault.si.com/vault/1986/03/10/the-biggest-game-in-town [https://per

ma.cc/VM27-BC56].

See Farnum, supra note 59, at 499–500; see also Fielkow et al., supra note 69,

at 29.

Fielkow et al., supra note 69, at 30; Kendall Howell, You Can Bet on It: The

Legal Evolution of Sports Betting, 11 HARV. J. SPORTS & ENT. L. 73, 76–77 (2020).

Farnum, supra note 59, at 500.

Id.

28 U.S.C. § 3702; Caitlin D. Buckstaff, Covering the Spread: An Assessment of

Amateurism and Vulnerability of Student-Athletes in an Emerging Culture of Sports

Wagering, 16 VAND. J. ENT. & TECH. L. 133, 140 (2013) (alterations in original).

Farnum, supra note 59, at 501. The four states that already had legal sports

betting were exempt under the “grandfather provision.” Id.

Id. at 502.

Id.

2022] DROPPING THE BALL 465

legislature with authority to legalize in-state sports betting at

specific locations, like Atlantic City.

Expectedly, the NCAA and

professional sports leagues sued New Jersey for violating

PASPA.

In 2018, the Supreme Court invalidated PASPA under

the Tenth Amendment anti-commandeering doctrine in Murphy

v. NCAA, holding that PASPA violated New Jersey’s ability to

authorize its own sports gambling law.

As a result, “Congress

can regulate sports gambling directly, but if it elects not to do so,

each State is free to act on its own.”

With Congress yet to act, states are free to sculpt their own

sports betting laws under Murphy.

Turning to Nevada for

inspiration, New Jersey passed its own sports betting law, that

allowed college sports wagering, but only on teams outside of the

state.

For example, a New Jersey bettor cannot submit a wager

on a Seton Hall University basketball game, even if the team is

playing outside of the state.

While concerns arose over the

ban’s impact on the growth of sports betting in the state, New

Jersey has still been able to outpace every state in total wagers

and revenue since 2018.

Even so, the betting surge has not

changed voter opinions on upholding the integrity of college

sports.

In November 2021, a majority of New Jersey voters shot

down a referendum to lift the in-state ban.

With public opinion

firmly on its side, the New Jersey law establishes a strong, yet

pliable, example of efficient sports betting regulation that

protects college athletes.

Howell, supra note 74, at 101.

Dave Wilson, Note, Massachusetts at the Forefront: How to Protect the Most

Vulnerable Group in a Post-Legal Sports Betting World—NCAA Student-Athletes, 15

U. MASS. L. REV. 124, 131–32 (2020); Buckstaff, supra note 77, at 144–45. The

NCAA and the leagues won in both district court and the Third Circuit. Murphy v.

NCAA, 138 S. Ct. 1461, 1473 (2018).

Murphy, 138 S. Ct. at 1484–85.

Id.

Wilson, supra note 82, at 135.

Id. at 138–39.

Id. at 139.

U.S. Sports Betting Revenue and Handle, supra note 13. Since 2018, New

Jersey has collected $29.6 billion in handle and $2 billion in revenue. Id. During that

same time period, Nevada collected $26 billion in handle and $1.5 billion in revenue.

Id.

See Zachary Zagger, Surprise NJ Vote Shows NCAA Betting Concerns May

Linger, LAW360 (Nov. 3, 2021), https://www.law360.com/articles/1437615/surprise-

nj-vote-shows-ncaa-betting-concerns-may-linger [https://perma.cc/34ZG-95AH].

Id.

466 ST. JOHN’S LAW REVIEW [Vol. 96:455

3. The River: The Sports Betting Boom

With a one-size-fits-all federal approach on the backburner,

the Murphy decision fostered a slew of state legislatures

legalizing some form of sports betting.

Overall, thirty-one

states and Washington, D.C. have legalized sports betting and

swaths of others are moving toward legislation.

Since Murphy,

states have generated more than $14 billion in total revenue.

The end of PASPA has not only been a boon for casinos, but

also for innovative companies like DraftKings and FanDuel, who

have the largest mobile sports betting interfaces.

The rise of

mobile betting platforms has made wagering even more

accessible, as a person can place a bet with a tap of their phone.

As legalized sports betting continues to emerge, it is seeping into

every aspect of the sports experience, including major media

outlets like ESPN, professional sports leagues, commercials,

stadium naming-deals, basketball tournaments,

college football

bowl games,

in-arena sportsbooks, and betting-themed

broadcasts.

Other companies outside of DraftKings and

Ryan Rodenberg, United States of Sports Betting: An Updated Map of Where

Every State Stands, ESPN (Apr. 7, 2021), https://www.espn.com/chalk/

story/_/id/19740480/the-united-states-sports-betting-where-all-50-states-stand-

legalization [https://perma.cc/K7R8-ARV5].

Id.

U.S. Sports Betting Revenue and Handle, supra note 13.

Alex Silverman, For U.S. Sports Bettors, It’s FanDuel and DraftKings — and

Then Everyone Else, MORNING CONSULT (Jan. 20, 2022, 12:01 AM),

https://morningconsult.com/2022/01/20/sports-betting-brands-usage-fanduel-

draftkings/ [https://perma.cc/CR4H-LZC2].

Kendall Baker, The Sports Betting Tsunami, AXIOS (Aug. 16, 2021),

https://www.axios.com/sports-betting-experience-nfl-mlb-961ef369-d391-4c24-a166-

0846e5f585e4.html [https://perma.cc/H7DU-6BLC].

Amanda Christovich, Barstool Will Host Its First Men’s College Basketball

Tournament, FRONT OFF. SPORTS (Sept. 22, 2022), https://front

officesports.com/barstool-cbb-tournament/ [https://perma.cc/5YTN-BFCV]. The

inaugural “Barstool Sports Invitational” took place on November 11, 2022, at the

Wells Fargo Center in Philadelphia. Id. In contrast to a television broadcast,

Barstool Sports will have full control of the event providing “everything from

providing announcers and selling tickets to staging a halftime show.” Id.

Doug Greenberg, Barstool Sports Feels It ‘Delivered’ on Arizona Bowl, FRONT

OFF. SPORTS (Jan. 4, 2023) https://frontofficesports.com/barstool-sports-delivered-

arizona-bowl/ [https://perma.cc/8JMJ-P8Y9]. On December 30, 2022, Barstool Sports

hosted the Arizona Bowl and collected an estimated one million viewers via their

online streaming platform. Id. Consistently during the broadcast, the color

commentators, Barstool founder Dave Portnoy and “Pardon My Take” podcast host

Dan Katz, “pull[ed] for the teams they had picked to win or cover rather than

analyzing each play.” Id.

Id.

2022] DROPPING THE BALL 467

FanDuel are also getting involved and expanding the reach of

sports betting.

100

On January 29, 2020, lifestyle and sports

media company Barstool Sports signed an exclusive sports and

iCasino partnership with Penn National Gaming.

101

On August

16, 2021, merchandise giant Fanatics, Inc. partnered with

entertainment company Roc Nation, LLC to create Fanatics

Betting & Gaming.

102

The growth of the sports gambling industry has made

betting easier and more accessible to fans across the country.

103

This accessibility threatens to open college athletes up to the

same scandalous situations that have plagued the NCAA for

more than a century.

104

II. THE IMPACT OF ALSTON, STATE NIL LAWS, AND THE SPECTER

OF SPORTS BETTING

A. Antitrust Challenges Against the NCAA

1. Board of Regents to O’Bannon: The Amateurism Principle as

a Legal Shield

As the NCAA continued to grow into a commercial

behemoth, the organization’s commitment to preserving

amateurism became not only its teeth in enforcing rules, but also

its key to evading numerous antitrust legal challenges.

105

The

seminal case for the NCAA came in 1984 in NCAA v. Board of

Regents of the University of Oklahoma.

106

Applying the “Rule of

Reason” test, the Court held that the NCAA’s proposed college

football television deal imposed market constraints, thus

violating the Sherman Antitrust Act.

107

However, the Court

100

Penn National Gaming and Barstool Sports Announce Exclusive Sports and

iCasino Partnership, PA. ENT. (Jan. 29, 2020), https://pennnationalgaming.gcs-

web.com/news-releases/news-release-details/penn-national-gaming-and-barstool-

sports-announce-exclusive [hereinafter Penn]; Kim Bhasin, Jay-Z Joins New York

Sports Gambling Bid Alongside Fanatics, BLOOMBERG (Aug. 16, 2021),

https://www.bloomberg.com/news/articles/2021-08-16/jay-z-joins-new-york-sports-

gambling-bid-alongside-fanatics [https://perma.cc/NBY2-W6ZQ].

101

Penn, supra note 100.

102

Bhasin, supra note 100.

103

See U.S. Sports Betting Revenue and Handle, supra note 13; Baker, supra

note 96.

104

Wilson, supra note 82, at 138–39.

105

Zaccagnini, supra note 14, at 61–62.

106

468 U.S. 85 (1984).

107

Id. at 88, 103.

468 ST. JOHN’S LAW REVIEW [Vol. 96:455

generally found that most of the NCAA’s regulatory power is

justifiable in order to foster competition, enhance public interest,

and maintain the “revered tradition of amateurism in college

sports.”

108

This language quickly became the cornerstone of the

NCAA’s argument that paying college athletes would violate its

“revered tradition of amateurism.”

109

Following Board of Regents, federal courts continued to

advance the principle of amateurism in legal challenges to

student-athlete compensation throughout the 1990s.

110

Time and

again, the courts expressed that protecting student-athletes from

the dangers of “commercializing pressures” was a necessity in

order to prevent a blurring of lines between professional and

collegiate sports.

111

Student-athletes were students first, and the

courts were concerned that allowing players to make money or

earn endorsements would quickly “overshadow educational

objectives.”

112

Into the early 2000s, the amateurism principle

remained an impenetrable suit of armor for the NCAA in

antitrust challenges.

113

The legal perspective surrounding the pro-competitive effects

of amateurism changed in the 2015 landmark case, O’Bannon v.

NCAA.

114

In a class action lawsuit against the NCAA, former

college players argued that amateurism rules, which prevented

student-athletes from being compensated, violated the Sherman

Act when Electronic Arts Sports used the athletes NIL in a

college basketball video game.

115

108

Id. at 117, 120.

109

See Crabb, supra note 36, at 194.

110

See Zaccagnini, supra note 14, at 61–62; see also McCormack v. NCAA, 845

F.2d 1338, 1345 (5th Cir. 1988) (finding that eligibility rules “create the product [of

amateurism] and allow its survival in the face of commercializing pressures”); Banks

v. NCAA, 746 F. Supp. 850, 851 (N.D. Ind. 1990); Gaines v. NCAA, 746 F. Supp. 738,

740, 747–48 (M.D. Tenn. 1990).

111

McCormack, 845 F.2d at 1345; Banks, 746 F. Supp. at 861 (arguing that a

“players’ profit-making objectives soon would overshadow educational objectives,

blur[ring] the line between college and professional football”).

112

Banks, 746 F. Supp. at 860–61.

113

See Bloom v. NCAA, 93 P.3d 621, 626 (Colo. App. 2004) (finding that the

NCAA’s by-laws “express[ed] a clear and unambiguous intent to prohibit student-

athletes from engaging in endorsements”).

114

Crabb, supra note 36, at 196; O’Bannon v. NCAA, 802 F.3d 1049, 1053 (9th

Cir. 2015).

115

Crabb, supra note 36, at 195. The athletes’ argument centered around the

NCAA’s Form 08-3a, which all players were required to sign and authorized the use

of their NIL. Id.

2022] DROPPING THE BALL 469

The Ninth Circuit followed the lower court’s ruling and

dismissed the NCAA’s amateurism and consumer demand

arguments for preventing student-athletes from receiving

compensation for NIL.

116

However, the Ninth Circuit found that

compensation to student-athletes “untethered to educational

expenses” would be a “quantum leap” that would fundamentally

change college sports to “minor league status.”

117

The court

vacated cash payments as a less restrictive alternative to the

NCAA’s current rules and agreed with Board of Regents that the

NCAA must be afforded “ample latitude” to oversee college

sports.

118

While the O’Bannon decision reaffirmed that the

NCAA plays a critical role in preventing college sports from

becoming professional leagues, for the first time, it was

determined that the NCAA violated a student-athlete’s ability to

make money off their NIL. The NCAA’s main defense would no

longer receive deferential treatment in antitrust lawsuits.

119

2. The Supreme Court Weighs In

As the Ninth Circuit delivered its opinion in O’Bannon, a

hoard of additional lawsuits was filed against the NCAA for

restrictions on “non-cash education-related benefits.”

120

The

many lawsuits filed by Division I athletes were combined into

one, led by Shawne Alston and Justine Hartman.

121

In 2020, the

Ninth Circuit held again that the NCAA violated the Sherman

Act and expanded academic benefits that a university can

provide its athletes to tangible items related to academic studies,

post-eligibility scholarships, vocational training and internships,

tutoring, and study abroad expenses.

122

Limits on cash

compensation unrelated to education, however, were not

anticompetitive.

123

While the court still found that the NCAA did

116

O’Bannon, 802 F.3d at 1053.

117

Id. at 1078–79.

118

Id. at 1062; see Zaccagnini, supra note 14, at 65–66; see also NCAA v. Bd. of

Regents, 468 U.S. 85, 117 (1984).

119

See Zaccagnini, supra note 14, at 67.

120

Id.

121

See Williams, supra note 9. Specifically, plaintiffs played Division I football

and men’s and women’s basketball. Id.

122

In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058,

1088 (N.D. Cal. 2019); see also In re NCAA Ath. Grant-In-Aid Cap Antitrust Litig.,

958 F.3d 1239, 1265–66 (9th Cir. 2020).

123

In re NCAA Ath. Grant-In-Aid Cap Antitrust Litig., 958 F.3d at 1264.

470 ST. JOHN’S LAW REVIEW [Vol. 96:455

serve a role in protecting amateurism and competition, the

organization was down to its final out.

124

On June 21, 2021, in a unanimous decision, the Supreme

Court affirmed the lower courts’ ruling, barring the NCAA from

limiting specific education-related benefits that schools can give

to student-athletes.

125

As the NCAA centered its argument

around two central themes, amateurism and competition, the

Court used the traditional “rule of reason” test to determine

whether the challenged restraints actually affected competition

and found that the NCAA violated federal antitrust laws.

126

Following a three-part burden shifting analysis, the Court found

that the NCAA “could achieve the procompetitive benefits it had

established with substantially less restrictive restraints on

education-related benefits.”

127

Delivering the opinion of the

Court, Justice Neil Gorsuch outright rejected the Board of

Regents “dicta” that argued the NCAA had a role in maintaining

the tradition of amateurism and thus, was in line with the goals

of the Sherman Act.

128

Justice Gorsuch made it clear that there

has never been a consistent or coherent definition of amateurism

maintained by the NCAA.

129

In a concurring opinion, Justice

Brett Kavanaugh backed the rule of reason scrutiny and was

unsure how, under such a standard, the NCAA could defend

itself in future challenges.

130

Justice Kavanaugh also described

the flurry of issues that would ensue if further lawsuits were

filed against the remaining NCAA compensation rules, including

equitable compensation, Title IX, salary caps, collective

bargaining, and the effects on non-revenue-raising sports.

131

Although the Court’s ruling was a victory for student-

athletes, the decision was significantly limited.

132

Specifically,

the injunction only caps education-related benefits made

available by conferences or schools.

133

The decision in no way

prevents the NCAA from prohibiting compensation from outlets

and companies unrelated to education or enforcing a “no

124

Id. at 1244, 1263.

125

NCAA v. Alston, 141 S. Ct. 2141, 2166 (2021).

126

Id. at 2155, 2157.

127

Id. at 2160, 2162.

128

Id. at 2167.

129

Id. at 2152.

130

Id. at 2167 (Kavanaugh, J., concurring).

131

Id. at 2168 (Kavanaugh, J., concurring).

132

Id. at 2166 (majority opinion).

133

Id. at 2165.

2022] DROPPING THE BALL 471

Lamborghini” rule.

134

In fact, the Court stated that limiting

compensation unrelated to education could play a significant role

in preserving consumer demand and fostering competition.

135

While the decision dismantled the NCAA’s cornerstone

argument of amateurism, that was only because the Court could

not trace a consistent definition for the principle.

136

The Court

did not undermine the importance of the amateurism debate; it

simply preferred that Congress, state legislatures, and the NCAA

act instead.

137

Even so, the Supreme Court’s decision in Alston

made it clear that, from an antitrust perspective, student-

athletes deserve more than they are getting when it comes to

educational benefits, and the NCAA’s arguments hold little

weight.

138

B. State NIL Laws

State legislatures had no interest in waiting on the NCAA,

Congress, or Supreme Court to enact their own forms of NIL

laws.

139

As of early 2022, some twenty-nine states have passed

some form of legislation supporting student-athletes’ ability to

make money off of their NIL.

140

A few other states, including

Massachusetts, New York, and Rhode Island, are not far behind

from enacting similar legislation.

141

The first state to weigh-in

was California, who enacted the Fair Pay to Play Act in 2019.

142

This law prohibits California colleges from denying athletes the

ability to seek compensation using their NIL rights and allows

college athletes to hire their own agents for endorsement

purposes.

143

134

Id. at 2164–65.

135

Id. at 2159.

136

Id. at 2152.

137

See id. at 2166.

138

See id. at 2167 (Kavanaugh, J., concurring).

139

See Dan Murphy, Everything You Need to Know About the NCAA’s NIL

Debate, ESPN (July 14, 2021) [hereinafter Murphy, NIL Debate],

https://www.espn.com/college-sports/story/_/id/31086019/everything-need-know-

ncaa-nil-debate#Where [https://perma.cc/PRT3-GHS9].

140

Id.

141

Id.

142

CAL. EDUC. CODE ANN. § 67456 (West 2021); Benjamin Tulis, California Fair

Pay to Play Act to Become Effective September 1, 2021, JD SUPRA (Sept. 1, 2021),

https://www.jdsupra.com/legalnews/california-fair-pay-to-play-act-to-1720393/

[https://perma.cc/L9EF-45F7].

143

Michael McCann, What’s Next After California Signs Game Changer Fair Pay

to Play Act into Law?, SPORTS ILLUSTRATED (Sept. 30, 2019),

472 ST. JOHN’S LAW REVIEW [Vol. 96:455

California’s NIL law encouraged other states to introduce

their own versions.

144

For example, New Jersey followed suit by

introducing legislation in 2019 that would allow student-athletes

to make money off their NIL and use professional representation

for negotiations.

145

However, the New Jersey bill does not allow

student-athletes to be compensated for endorsements in any way

connected to “adult entertainment, alcohol, gambling, tobacco

and electronic smoking, pharmaceuticals, controlled dangerous

substances or firearms.”

146

These sorts of limits on NIL

endorsements are critical to protecting athletes and the

institutions they play for.

147

C. The NCAA’s Temporary Rule Change

Not soon after the Fair Pay to Play Act was introduced, the

NCAA jumped right into action to try and get ahead of the

impending NIL state law firestorm.

148

On October 29, 2019, the

NCAA’s board of governors unanimously agreed to propose new

rules by 2021 that would allow athletes to make money off of

their NIL “while maintaining ‘the collegiate model.’ ”

149

Acting

off of this decision, the NCAA installed a working group to come

up with ways to modernize its NIL rules.

150

The working group’s

report, released on April 29, 2020, recommended that the

NCAA’s current NIL rules should be modernized, but left room

for the NCAA to restrict and regulate future endorsement

deals.

151

While the working group’s report was a step forward for

relaxing the rules on student-athletes compensation, in practice

it did little to change the status quo, as the NCAA turned to

https://www.si.com/college/2019/09/30/fair-pay-to-play-act-law-ncaa-california-pac-12

[https://perma.cc/JZ4M-WVAA].

144

Zaccagnini, supra note 14, at 68–69.

145

Gregg Clifton, New Jersey Joins the Growing Number of States Seeking to

Create Name, Image and Likeness Rights for Student Athletes in Direct Defiance of

Current NCAA Bylaws, JD SUPRA (Oct. 28, 2019), https://www.jdsupra.com/

legalnews/new-jersey-joins-the-growing-number-of-34464/ [https://perma.cc/Z9CC-

PFJC].

146

Id. The New Jersey bill goes into effect in 2025. Murphy, NIL Debate, supra

note 139.

147

Murphy, NIL Debate, supra note 139.

148

Id.

149

Id.

150

Board of Governors Move Toward Allowing Student-Athlete Compensation for

Endorsements and Promotions, NCAA (Apr. 29, 2020), https://www.ncaa.com/

news/ncaa/article/2020-04-29/board-governors-moves-toward-allowing-student-

athlete-compensation-endorsements-and [https://perma.cc/LY9C-9RMC].

151

Id.

2022] DROPPING THE BALL 473

Congress for answers.

152

With nothing more than lip service and

a few bill introductions from Capitol Hill, the NCAA sat idly by

as state after state passed their own forms of NIL legislation.

153

That is, until the Supreme Court came down with its ruling

in Alston.

154

Within ten days of the Alston decision, the NCAA’s

Board of Directors adopted a temporary rule change allowing for

NIL activity and instructing schools to set their own

guidelines.

155

Introducing the interim policy, NCAA President,

Mark Emmert announced:

With the variety of state laws adopted across the

country, we will continue work with Congress to develop

a solution that will provide clarity at the national level.

The current environment – both legal and legislative –

prevents us from providing a more permanent solution

and the level of detail student-athletes deserve.

156

After the rule change went into effect on July 1, 2021, the

floodgates opened and student-athletes rushed through to gather

up as many endorsements as they could find.

157

The first to scoop

up hefty endorsements were Division I basketball and football

stars.

158

Other companies have offered endorsement packages for

entire teams.

159

Even with the shine on football and basketball,

the athletes that are benefiting most from the NIL rule change

are social media influencers.

160

It is estimated that the top

152

Dan Murphy, NCAA Group Supports Player Endorsement Plan, ESPN (Apr.

29, 2020), https://www.espn.com/college-sports/story/_/id/29112263/ncaa-group-oks-

conditional-player-endorsements [https://perma.cc/4M7Q-9X6S].

153

Murphy, NIL Debate, supra note 139.

154

Id.

155

Michelle Brutlag Hosick, NCAA Adopts Interim Name, Image, and Likeness

Policy, NCAA (June 30, 2021), https://www.ncaa.org/about/resources/media-

center/news/ncaa-adopts-interim-name-image-and-likeness-policy [https://perma.cc/

4XMP-BUAT].

156

Id.

157

Khristopher J. Brooks, Endorsement Deals Come Thick and Fast for College

Athletes, as NCAA Floodgates Open, CBS NEWS (July 29, 2021),

https://www.cbsnews.com/news/college-athletes-endorsements-sponsorship-ncaa-nil/

[https://perma.cc/8GEX-FHWU]. Many of state NIL laws also went into effect on

July 1, 2021. Murphy, NIL Debate, supra note 139.

158

Brooks, supra note 157. University of Alabama phenom quarterback, Bryce

Young, is rumored to be in conversations with companies for endorsement deals

close to one million dollars. Id. Hercy Miller, a Tennessee State University

basketball player, signed a $2 million deal with a tech company Web Apps America.

Id.

159

Id.

160

NCAA NIL Tracker: Which College Athletes Signed Endorsement Deals on

Day 1?, FOX SPORTS (July 1, 2021), https://www.foxsports.com/stories/college-

474 ST. JOHN’S LAW REVIEW [Vol. 96:455

student-athletes could earn more than $6.5 million annually in

endorsements.

161

While many of the nation’s star athletes and

social media influencers did not have to go far to find

opportunities, even those that may not be as popular brokered

licensing partnerships with local small businesses without the

need for representation.

162

By estimates, eighty-one percent of

NIL contracts signed so far are for less than $100.

163

With no uniform federal NIL law and the Supreme Court

only weighing in on education-related benefits, student-athletes

are unrestrained in their search for endorsements.

164

Running

parallel to this open, unregulated market is the growing

influence of sports betting, now legal in a majority of states.

165

As bets can now be placed beyond the boundaries of a casino with

only the tap of a phone, the limits on what outside endorsement

sources college athletes may seek will no doubt be tested.

166

July 1, 2021, the day the NCAA’s temporary NIL rule change

went into effect, Barstool Sports began endorsing college athletes

to amplify their own brands.

167

Since then, Barstool has signed

150,000 students to Barstool Athletics, roughly “thirty percent of

all college athletes,” and launched its own “NIL marketplace” for

its endorsees.

168

Moreover, half of the ownership group of

football/ncaa-name-image-likeness-nil-tracker-college-athletes-signed-endorsement-

deals-day-1-antwan-owens-bo-nix-deriq-king [https://perma.cc/WDY2-5XRG]. Olivia

Dunne, a Louisiana State University gymnast, has more than one million Instagram

followers and is expected to earn the most compensation in college sports. Id.

161

Sara Germano, Payday for US College Athletes Rattles $14bn Industry, FIN.

TIMES (Oct. 3, 2021), https://www.ft.com/content/447c3300-2fd2-4d70-829a-

18b3715be498 [https://perma.cc/3AKR-HYEG]. One 2023 five-star football recruit

has agreed to an NIL deal “that could pay him more than $8 million by the end of his

junior year of college.” Stewart Mandel, Five-Star Recruit in Class of 2023 Signs

Agreement with Collective That Could Pay Him More than $8 Million, ATHLETIC

(Mar. 11, 2022), https://theathletic.com/3178558/2022/03/11/five-star-recruit-in-class-

of-2023-signs-agreement-with-collective-that-could-pay-him-more-than-8-million/

[https://perma.cc/7BHH-B9E4].

162

Germano, supra note 161.

163

Id.

164

See id.; see also Brooks, supra note 157.

165

Baker, supra note 96.

166

Id.

167

Brendan Menapace, Barstool Sports Has Signed Thousands of College

Athletes to NIL Partnerships, But No One (Not Even Barstool) Seems to Know the

Plan, PROMO MKTG. MAG. (Aug. 20, 2021), https://magazine.promo

marketing.com/article/barstool-is-trading-branded-merchandise-for-nil-rights-is-it-

worth-it-for-athletes/ [https://perma.cc/P5LP-88LJ].

168

Amanda Christovich, Barstool’s NIL Marketplace Could be the Biggest in

College Sports, FRONT OFF. SPORTS (Sept. 15, 2022), https://frontofficesports.com/

barstools-nil-marketplace/ [https://perma.cc/N5YH-Q6 9C].

2022] DROPPING THE BALL 475

Fanatics Betting & Gaming is Roc Nation, which has its own

subsidiary sports agency, Roc Nation Sports.

169

As other sports

betting and entertainment companies get in the mix with college

athletes, the lines between higher education, sports, and money

only become blurrier.

170

D. The Effects of Legal Sports Betting and NIL Laws on

Amateurism and Competition

While state NIL laws have received positive returns,

detractors point to the detrimental effects the laws will have on

competition and amateurism.

171

In the wake of California’s Fair

Pay to Play Act, Pacific-12 Conference Commissioner, Larry

Scott, argued that NIL state laws would “effectively create a free-

for-all in which large payments to a relative handful of star

athletes from boosters and others could be thinly disguised as

payment for the use of their name, image and likeness.”

172

For

instance, it would be very difficult for the NCAA to police

“wealthy alumni from paying [a student] directly . . . [for] an

autographed jersey” through “the guise of an ‘endorsement.’ ”

173

This brings into question issues of access for high-profile student-

athletes in major sports as compared to those who may not have

such exposure.

174

These issues are harmful to both the integrity

of college sports and fostering competition.

175

In fact, with no

true rules or enforcement power to monitor transactions between

outside companies, boosters, and players, individual universities

are left to fend for themselves.

176

Furthermore, schools within states that have open NIL laws

have a competitive advantage compared to those states with

more restrictive laws or no laws at all.

177

This directly impacts

the ability of teams to recruit high school players.

178

A recruit

from Madison, Wisconsin may not be as interested to play for the

169

Bhasin, supra note 100.

170

Menapace, supra note 167.

171

Zaccagnini, supra note 14, at 70.

172

Id. at 83.

173

Id. at 84.

174

Germano, supra note 161.

175

Zaccagnini, supra note 14, at 70.

176

Farnum, supra note 59, at 513–14.

177

Lee Green, Impact of California’s ‘Fair Pay to Play Act’ on High School

Athletes, NFHS (Nov. 13, 2019), https://www.nfhs.org/articles/impact-of-california-s-

fair-pay-to-play-act-on-high-school-athletes/ [https://perma.cc/7JK3-LECG].

178

Id.

476 ST. JOHN’S LAW REVIEW [Vol. 96:455

local University of Wisconsin, when the University of Michigan

can offer a better opportunity to make money off of their NIL.

179

Moreover, star high school athletes will begin to be pursued at

younger ages by representatives and others who offer to take

care of them and their money.

180

These so-called “handlers” have

wreaked havoc for decades in the college sports universe, leading

to bribery and corruption prosecutions across the nation.

181

The impact of unlimited NIL laws also greatly impacts the

interests of players looking to transfer from other teams.

182

2018, the NCAA installed the “Transfer Portal” to allow student-

athletes to transfer between schools via an online database.

183

The portal not only creates a more efficient and transparent

transfer process, but also gives more power to the college athletes

themselves.

184

This includes new rules that allow players to

transfer immediately without having to sit out a season.

185

With

laxer “Transfer Portal” regulations and the rise of COVID-19,

players transferring to other teams has grown significantly over

the past few years.

186

In turn, certain conferences and schools in

states with more relaxed NIL rules are now able to attract more

valuable players to their teams, directly influencing consumer

demand and competition.

187

Specifically, coaches have been vocal

about the issues surrounding athlete transfers and NIL

endorsement possibilities, describing how heavy tampering from

wealthy alumni and boosters influence where players go.

188

179

Id.

180

Id.

181

Id.

182

Ross Dellenger, As Broad NCAA Change Awaits, College Football is Facing a

Recruiting Reckoning, SPORTS ILLUSTRATED (Feb. 2, 2021), https://www.si.com/

college/2021/02/02/college-football-recruiting-transfer-portal-covid [https://perma.cc/

U8V7-HJQ2].

183

NCAA Transfer Portal: Everything You Need to Know, RECRUITING REELS

(July 20, 2021), https://recruitreels.com/ncaa-transfer-portal-everything-you-need-to-

know/ [https://perma.cc/REF7-QMMK].

184

Id.

185

Id.

186

Caroline Rice, College Football Transfer Market Exploding After Opening of

NCAA’s Transfer Portal, OZONE (May 31, 2020), http://theozone.net/2020/05/college-

football-transfer-market-exploding-opening-ncaas-transfer-portal/ [https://perma.cc/

D3MZ-SX35]. In 2019, 1,105 Division I football players entered the Transfer Portal.

Id. In just the first three months of 2020, 968 players are intent on transferring. Id.

187

Germano, supra note 161.

188

Scott Polacek, Texas A&M HC Jimbo Fisher Says NIL Deals Happened in

Past: ‘They Just Weren’t Legal’, BLEACHER REP. (Dec. 15, 2021),

https://bleacherreport.com/articles/10020979-texas-am-hc-jimbo-fisher-says-nil-

deals-happened-in-past-they-just-werent-legal [https://perma.cc/TS6T-P6UM]; Erin

2022] DROPPING THE BALL 477

The new avenues to generate money also do little to quell the

amateurism issues that student-athletes face on a day-to-day

basis.

189

For those student-athletes that are fortunate to gain

mega-endorsements, money-making temptation adds only

another time-consuming and stressful aspect to their life.

190

Their schedules are already busy enough, and student-athletes

can barely fit in time to study.

191

Endorsement deals serve as

another distraction and add to the pressure to perform at a

young age.

192

It could significantly weigh on a student-athlete’s

psyche if their on-field performance slumps or they suffer a

serious injury.

193

High school recruits also run the risk of serious exploitation

by companies, through enticing students with big money

contracts in exchange for exclusive rights deals, unrestrained

repayment options, commission expenses, and other adhesive

provisions.

194

Such one-sided contract negotiating has already

become commonplace for high school athletes who have minimal

bargaining power and are unable to properly estimate their true

value.

195

Of course, the athlete could hire professional financial

advisors or attorneys to manage accounting and handle contract

negotiations.

196

However, many premiere high school athletes

and their families cannot afford such options, and even when

they can, they fail to utilize them and accept offers regardless of

the terms.

197

The pressure and influence of high school handlers

leaves future student athletes further unguarded against

Walsh, Clemson’s Dabo Swinney Says He’s Against ‘Professionalization of College

Athletics’, BLEACHER REP. (Jan. 28, 2022), https://bleacherreport.com/

articles/10025251-clemsons-dabo-swinney-says-hes-against-professionalization-of-

college-athletics [https://perma.cc/KR6J-VKFW].

189

Sheldon H. Jacobson, New Endorsement Laws Could Create Pitfalls for

College Athletes, CHI. SUN TIMES (Aug. 2, 2021), https://chicago.suntimes.com/

2021/8/2/22605919/student-athletes-paid-name-image-likeness [https://perma.cc/66

A8-H8AW].

190

Id.

191

Id.

192

Green, supra note 177.

193

Jacobson, supra note 189.

194

Mandel, supra note 161.

195

Id.

196

Jacobson, supra note 189; Green, supra note 177.

197

Mandel, supra note 161. For example, a class of 2023 five-star football recruit

is expected to sign a NIL deal that could be worth more than $8 million. Id. Star

high school athletes that receive multi-million dollar offers are unlikely to

meticulously search through the contract terms, if the deal is even in writing. Id.

Instead, the players focus on the sticker price and what that money can do for them

and their families. Id.

478 ST. JOHN’S LAW REVIEW [Vol. 96:455

exploitation by money managers and agents.

198

As of September

2022, sixteen states permit high school students to sign NIL

deals, and minors are already signing multi-million dollar

contracts.

199

Poor oversight and lack of clarity at the state-level regarding

NIL deals has led to serious ramifications for high school

athletes. One unfortunate example comes from a 17-year-old

football player, named T.A. Cunningham.

200

Originally from

Atlanta, Georgia, Cunningham is a five-star prospect, the highest

recruiting designation, and the number nineteen overall player

in the 2027 class.

201

By way of his father, Cunningham signed a

representation agreement with Levels Sports Group (“Levels”) to

find a him lucrative NIL deals, with promises to get big

boosters.

202

The intention was for Cunningham to play for Los

Alamitos High in California, and during that time, Levels would

provide housing, transportation, and meals to Cunningham and

his brother while the group searched for NIL deals.

203

Not long after moving in with Level’s co-founder Chris

Flores, Flores was charged with multiple counts of sexual assault

of a minor.

204

Following his arrest, Cunningham’s agreement

with Levels was rescinded and as a result, he and his brother

were left homeless, without income, and on the opposite side of

the country from their parents.

205

Additionally, although

Cunningham continues to attend classes and practice at Los

Alamitos high, he is ineligible to play football because he needs

“a full family change of residence” to comply with the California

Interscholastic Federation’s (“CIF”) rules.

206

The CIF denied

Cunningham’s hardship waiver because he did not meet its

definition of “homeless student” and instead, opened an “undue

198

Green, supra note 177.

199

Andy Staples, Bruce Feldman & Stewart Mandel, How a Five-Star Prospect

from Georgia Ended Up Homeless, Ineligible and 2,000 Miles Away, ATHLETIC (Sept.

19, 2022), https://theathletic.com/3605831/2022/09/19/t-a-cunningham-eligibility-

recruiting-nil/ [https://perma.cc/4CCT-3BLS].

200

Id.

201

Id.

202

Id.

203

Id.

204

Id.

205

Id.

206

Tim Daniels, Top CA Football Prospect T.A. Cunningham Seeks Injunction to

Overturn Ineligibility, BLEACHER REP. (Sept. 15, 2022), https://bleacher

report.com/articles/10049053-top-ca-football-prospect-ta-cunningham-seeks-injunct

ion-to-overturn-ineligibility [https://perma.cc/6UJY-4SR8]; Staples et al., supra note

199.

2022] DROPPING THE BALL 479

influence investigation related to his connection” with Levels.

207

After Cunningham’s injunction for immediate eligibility was

denied, the CIF reconsider his waiver, and ruled him eligible to

begin playing football.

208

While Cunningham can resume playing the game he loves,

the damage is already done.

209

Beyond the trauma of such an

experience, Cunningham is left with no NIL deals, a stack of

lawyer bills, and a completely unfair stain on his reputation.

210

In fact, Power 5 college coaches are already “re-examin[ing] their

interest” of the five-star recruit.

211

One coach, sympathized for

Cunningham, but grimly warned that this is far from the end of

high school athlete exploitation: “The sad part about this is

you’re gonna keep hearing more and more of these kinds of

stories.”

212

With the growing immediacy of sports gambling across the

country, college athletics are seriously prone to the corruption

and scandal that have haunted the college sports world since the

beginnings of the NCAA.

213

Since 1994, seven out of the last nine

major sports gambling scandals have involved college athletics.

214

Even before sports gambling was legal in a majority of states, a

2016 NCAA report found that fifty-five percent of male student-

athletes reported gambling for money; twenty-four percent

violated NCAA by-laws by betting sports.

215

Alarmingly, the

study also showed that thirteen percent of male athletes wagered

on in-game or “prop” bets, such as “whether the next football play

will be a run or pass” or if a “basketball player will hit the next

207

Daniels, supra note 206.

208

Kyle Bonagura, Top College Football Prospect T.A. Cunningham Ruled

Eligible to Play for California High School After Weekslong Transfer Drama, ESPN

(Sept. 26, 2022), https://www.espn.com/college-football/story/_/id/34671021/top-

college-football-prospect-ta-cunningham-ruled-eligible-play-california-high-school-

weeks-long-transfer-drama [https://perma.cc/TQ79-G3NR].

209

See Staples et al., supra note 199.

210

Id.

211

Id.

212

Id.

213

Farnum, supra note 59, at 495–96.

214

Mike Fish & David Purdum, Sports Leagues Stand Pat as Legal Gambling

Spreads, ESPN (Sept. 26, 2018), http://www.espn.com/espn/print?id=24783436

[https://perma.cc/3DLR-HMN5].

215

THOMAS PASKUS, NCAA, TRENDS IN NCAA STUDENT-ATHLETE GAMBLING

BEHAVIORS AND ATTITUDES 1 (2017), https://ncaaorg.s3.amazonaws.com/research/

wagering/2017RES_wageringexecutivesummary.pdf [https://perma.cc/8UJ4-2X7L].

480 ST. JOHN’S LAW REVIEW [Vol. 96:455

free throw.”

216

In response to the growth of sports gambling and

its potential effect on college athletes, former Congressman and

NBA player Tom McMillen said, “I’ll give you something that I’ll

put 100 percent odds on . . . . If gambling on colleges is in 20 or

30 states there is probably a 100 percent chance of a point-

shaving scandal at some school.”

217

Helping to exacerbate the

situation is that the NCAA’s anti-gambling rules remain

staunchly unequipped to handle the modern trends involving the

“normalization of sports gambling.”

218

No longer are the days

where organized crime bosses contrive complex point-shaving

plans with players.

219

It does not even have to go as far as a

player purposely throwing a game to cover the spread.

220

The

transaction can be as simple as giving a college roommate or an

alumni on social media inside information on the injury report

before the game.

221

Notably, student-athletes are more susceptible to sports

betting compared to their peers.

222

Beyond cheating scandals,

athlete betting brings many other negative consequences,

including the generally addictive qualities of gambling.

223

Moreover, temptations from the college community and social

media adds significant pressure to already overworked athletes

and detrimentally impacts their performance, well-being, and

mental health.

224

Beyond the athletes themselves, the

216

Id.; David Porter & Regina Garcia-Cano, Easier Gambling Has Sports

Worried About Fighting the Fix, AP NEWS (Sept. 17, 2018),

https://apnews.com/article/nv-state-wire-north-america-ap-top-news-college-football-

basketball-42b09c7fd1764bf196b13d5c44b2a188 [https://perma.cc/5M7P-KMVJ].

217

Steve Berkowitz & Erik Brady, Legalized Sports Betting Will Wreak Havoc on

College Athletics. Or Not., USA TODAY (May 31, 2018, 4:28 PM),

https://www.usatoday.com/story/sports/college/2018/05/31/sports-betting-college-

athletics-world-concerned-supreme-court-ruling/645367002/ [https://perma.cc/42CD-

3LUQ].

218

Farnum, supra note 59, at 513–14.

219

Id.

220

Farnum, supra note 59, at 514.

221

Id.; Robb, supra note 65, at 352, 372. According to a 2012 study, “[n]early 1 in

20 Division I men’s basketball student-athletes” have been contacted by outside

gamblers via social media seeking inside betting information. Jeffrey L. Derevensky

& Tom Paskus, Mind, Body and Sport: Gambling Among Student-Athletes, NCAA,

https://www.ncaa.org/sport-science-institute/mind-body-and-sport-gambling-among-

student-athletes [https://perma.cc/4WEX-HD8C] (last visited Aug. 1, 2022).

222

Derevensky & Paskus, supra note 221.

223

Id.

224

A Whole New Ball Game, LEAD1 ASS’N, https://lead1association.com/a-whole-

new-ballgame-implications-of-legalized-sports-betting-for-college-athletics/

[https://perma.cc/E3PE-AW9A] (last visited Aug. 1, 2022).

2022] DROPPING THE BALL 481

ramifications of non-compliance with a particular state’s NIL and

sports betting laws are already being felt by individual schools.

225

Making sure that potential betting activities are properly

monitored adds extra costs to already tight athletic department

budgets.

226

Furthermore, two Division I football teams are

already being investigated for high-profile NIL deals that may

qualify as prohibited “pay-for-play” schemes.

227

Concerningly, not all the NIL state laws prevent players

from seeking and accepting endorsements of sports gambling and

entertainment companies.

228

Although individual states, like

New Jersey, have made it a point to include such language in

their NIL laws, the lack of a central enforcement agency and

unified rules for NIL deals makes policing even the smallest

transaction quite difficult.

229

Without concrete guidelines in

place on what is and is not allowed from benefits unrelated to

education, student-athletes, especially those not receiving

lucrative endorsement deals, are highly susceptible to gambling

scandals.

230

III. POTENTIAL SOLUTIONS

A. Congress: The Federal Fix

As patch-work state legislation fails to adequately limit NIL

endorsements, Congress must enact federal legislation to

preserve college sports and protect student-athletes from the

growing shadow of sports betting.

231

The NCAA has called on

Congress to come up with its own uniform set of guardrails for

non-education-related benefits.

232

Similarly, Justice Gorsuch was

quick to push the ball back into Capitol Hill’s court.

233

The

problem is, as it always tends to be in the nation’s capital,

225

Id.

226

Id.

227

Daniel Libit & Eben Novy-Williams, NCAA Probes BYU, Miami NIL Deals

for Potential Pay-for-Play Violation, SPORTICO (Dec. 10, 2021), https://www.sport

ico.com/leagues/college-sports/2021/ncaa-byu-miami-nil-probe-1234650215/

[https://perma.cc/4DJB-QKWA].

228

NIL State Laws, NIL NETWORK (Aug. 27, 2022),

https://www.nilnetwork.com/2021/06/nil-laws-by-state/ [https://perma.cc/CH63-UC

BS].

229

Id.

230

Farnum, supra note 59, at 515–16.

231

Wilson, supra note 82, at 159–60.

232

Murphy, NIL Debate, supra note 139.

233

NCAA v. Alston, 141 S. Ct. 2141, 2166 (2021).

482 ST. JOHN’S LAW REVIEW [Vol. 96:455

neither house is anywhere near a consensus.

234

Some members

have introduced legislation that would limit endorsement

opportunities and create exemptions under the Sherman Act,

protecting the NCAA from future lawsuits.

235

Other members

seek to overhaul NCAA rules and college sports governance

itself.

236

Another group wants to completely open the market for

college athlete endorsement deals, unrestrained by any NCAA

rules.

237

Congress should follow New Jersey’s sports gambling and

NIL laws by including language that prevents bettors from

wagering on in-state state university teams and prohibits

covered athletes from entering into endorsements in any way

connected to casinos or sports gambling.

238

Using the New Jersey

model would not only reflect public opinion by preserving the

integrity of college sports, but also protect athletes from being

put in compromising positions where they are more susceptible to

corruption and scandal.

239

Representative Anthony Gonzalez’s

bill, H.R. 2841, the Student Athlete Level Playing Field Act,

includes similar explicit language, preventing players from

entering into contracts with companies that sell or promote

tobacco products, alcohol, marijuana, adult entertainment, and

any gambling activities.

240

Even if a company like Barstool

Sports separated student-athletes from being directly endorsed

by the gambling side of the company, the fact that their primary

business model is centered around sports betting would likely

force athletes to end their sponsorship with the brand.

241

Another measure federal legislation should include is

establishing a select congressional oversight committee.

242

The

234

Murphy, NIL Debate, supra note 139.

235

Dan Murphy, Federal Bill Pushes for Unrestricted NIL Endorsements for

NCAA Athletes, ESPN (Feb. 4, 2021), https://www.espn.com/college-

sports/story/_/id/30833820/federal-bill-pushes-unrestricted-nil-endorsements-ncaa-

athletes [https://perma.cc/L4Z4-WLZG]; Fairness in Collegiate Athletics Act, S.

4004, 116th Cong. (2020).

236

College Athlete Economic Freedom Act, S. 238, 117th Cong. (2021).

237

College Athletes Bill of Rights, S. 5062, 116th Cong. (2020).

238

Wilson, supra note 82, at 138–39; Clifton, supra note 145.

239

Wilson, supra note 82, at 138–39; Clifton, supra note 145.

240

Student Athlete Level Playing Field Act, H.R. 2841, 117th Cong. (2021). Rep.

Gonzalez, the bill’s sponsor, played college football at Ohio State University before

becoming a first-round draft pick for the Indianapolis Colts. Biography of Anthony

Gonzalez, U.S. HOUSE OF REPREPSENTATIVES, https://anthony

gonzalez.house.gov/about/ [https://perma.cc/2A6N-8DWF] (last visited Oct. 22, 2021).

241

H.R. 2841.

242

Id.

2022] DROPPING THE BALL 483

select committee would work with individual schools to

implement the new federal NIL rules.

243

The committee would

also conduct an “independent dispute resolution process”

mediating endorsement issues between athletes and

universities.

244

Furthermore, a permanent executive branch

commission or task force should be introduced to give the law the

teeth it needs.

245

This is something that state NIL bills and the

Fair Pay to Play Act have failed to do, causing Congress and the

NCAA a slew of implementation troubles.

246

H.R. 2841 proposes

that enforcement power should go to the Federal Trade

Commission (“FTC”), which could not only enforce endorsement

policies, but also “adjudicate unfair competition disputes, and

work in connection with law enforcement agencies to promote

fair competition and the protection of consumers.”

247

Providing

an independent agency like the FTC with broad power to oversee

such a dynamic landscape that is so susceptible to corruption

would provide a desperately needed centralized enforcement

mechanism.

248

B. NCAA Action

As explained by Justice Gorsuch in Alston, there is nothing

stopping the NCAA from enacting its own rules to revise and

reform their compensation guidelines and enact limits on

benefits unrelated to education.

249

First, the NCAA must revise and modernize its by-laws,

specifically those involving amateurism.

250

The NCAA failed to

produce a coherent definition of amateurism throughout its

history.

251

Instead of rowing against the tide, the NCAA should

loosen its definition of amateurism to reflect the Supreme Court’s

decision in Alston and the changing opinion on student-athlete

compensation.

252

The NCAA could adopt a model similar to that used by the

Olympics, which allows competitors to make money off of their

243

Id.

244

Id.

245

Id.; Zaccagnini, supra note 14, at 85–87.

246

Zaccagnini, supra note 14, at 85.

247

Id. at 86.

248

Id. at 86–87.

249

NCAA v. Alston, 141 S. Ct. 2141, 2164 (2021).

250

Wilson, supra note 82, at 162–63.

251

Alston, 141 S. Ct. at 2152.

252

Wilson, supra note 82, at 162–63.

484 ST. JOHN’S LAW REVIEW [Vol. 96:455

NIL rights, while maintaining their amateur status.

253

The

Olympics also monitors endorsements and player representation

through various vetting processes.

254

The NCAA should pair

language from the Olympic model, allowing student-athletes to

make money off of their NIL, with caps on non-education-related

benefits and a “no Lamborghini” rule.

255

To oversee the

enforcement of the NCAA’s new standards, the COI should

institute a subcommittee to monitor endorsement deals, handle

disputes between players and schools, and distribute penalties

when necessary.

256

Furthermore, the NCAA should update its gambling

guidelines and prohibit student-athletes from entering into any

endorsements with casinos, sports betting companies, or entities

associated with sports betting.

257

This would follow similar

language to the New Jersey NIL legislation.

258

Creating zero

tolerance for any sort of gambling-associated activities or

sponsorships, enhancing penalties for violations, and increasing

education about the harms of sports betting will send a clear

message regarding where the NCAA stands.

259

Additionally, the

NCAA should consider a mandatory injury-reporting policy for its

schools.

260

Increased transparency will derail inside information

from being leaked to gamblers, thus protecting student-athletes

from facing penalties for reporting such information and

“preserving the integrity of the game.”

261

Finally, the NCAA should consider other ways to help

financially-ailing students to earn compensation and build

financial literacy.

262

One idea is to build a trust that will be paid

out to student-athletes upon graduation.

263

However, this does

little to address the issue of financial problems while students

are in school.

264

A more immediate solution would be to create a

253

Nicholas Piotrowicz, Can the Olympic Model Fix the NCAA?, BLADE (Mar. 31,

2018), https://www.toledoblade.com/College/2018/03/31/Can-the-Olympic-model-fix-

the-NCAA.html [https://perma.cc/4LWQ-B3T6].

254

Id.

255

Alston, 141 S. Ct. at 2164.

256

Zaccagnini, supra note 14, at 84–86.

257

Clifton, supra note 145.

258

Id.

259

Farnum, supra note 59, at 518.

260

Id. at 521.

261

Id.

262

Zaccagnini, supra note 14, at 89.

263

Farnum, supra note 59, at 519.

264

Id.

2022] DROPPING THE BALL 485

stipend as a supplement to athletic scholarships.

265

This would

help to offset the need to work while trying to attend classes,

practice, and games.

266

The uncertainty here is where the money

would come from.

267

One idea would be to create a ticket and television revenue

sharing system between the NCAA and the players.

268

While this

would work for major sports like football and basketball, other

sports would not be as positively impacted, unless the shares

were spread out equally across all sports.

269

Taking ticket

revenue away would also be a huge financial hit to universities

who rely on that income.

270

An alternative solution involves

collecting integrity fees from states that have legalized sports

betting.

271

The money collected from wagers could be used by the

NCAA for gambling oversight enforcement, educational

programming centered around financial literacy, or given directly

back to the players.

272

To this point, the NCAA has shied away

from such fees, labeling them as “disingenuous.”

273

However,

schools that are located in states with legal sports betting could

individually pursue integrity fees.

274

Regardless of the chosen

path, the NCAA has viable regulatory options and needs to act in

order to boost transparency, stabilize the NIL market, and

provide players with reasonable financial security.

275

CONCLUSION

With no uniform federal NIL law and the Supreme Court

only commenting on education-related benefits, student-athletes

are unrestrained in their search for endorsements.

276

With the

growing influence of sports betting, now legal in a majority of

states and beyond the boundaries of a casino, the limits on what

outside sources of endorsement and compensation college

athletes may seek will no doubt be tested.

277

As sports betting

265

Id.; Buckstaff, supra note 77, at 164–66.

266

Buckstaff, supra note 77, at 165–66.

267

Id. at 166.

268

Zaccagnini, supra note 14, at 89–90.

269

Id.

270

Id.

271

Farnum, supra note 59, at 519–20.

272

Id.

273

Id.

274

Id.

275

Id.

276

Baker, supra note 96.

277

Id.

486 ST. JOHN’S LAW REVIEW [Vol. 96:455

companies get in the mix with college athletes, the lines between

higher education, sports, and money only become blurrier.

Without a federal legislative fix or NCAA action on the horizon,

the decision on college athletes’ NIL remains up to the individual

states and athletic conferences. Congress and the NCAA should

act swiftly to establish guardrails and deny gambling companies

from interfering with college sports in order to protect student

athletes, preserve competition, and prevent intrusion on the

integrity of the game.