Game Changer: Why and How Congress Should Preempt State Student-Athlete Compensation Regimes

By Justin W. Aimonetti & Christian Talley (University of Virginia)

In September 2019, California enacted the Fair Pay to Play Act, a groundbreaking piece of legislation that allows college athletes to profit off their name, image, and likeness. California’s legislature aimed to mitigate a “profoundly immoral” system in which young athletes are barred from receiving the fruits of their labor, despite putting their bodies on the line. Arising from noble intentions, California’s Act nonetheless threatens to ignite a state-by-state approach to the student-athlete compensation dilemma, undermining national uniformity in college sports. The NCAA’s Board of Governors, unwilling to allow states to wrest control, voted in October to update its relevant bylaws to permit name, image, and likeness compensation. Although the NCAA has traditionally established such rules for collegiate competition, there are three main reasons why even the NCAA should support federal legislation. First, because NCAA bylaws do not carry the force of law, they cannot prevent further state law experimentation. Second, the NCAA’s economic self interest, and its associated legitimacy problem, cast doubt on its ability to voluntarily solve an admittedly messy issue. The democratic process of federal lawmaking, by contrast, ensures political accountability. Third, a federal law would circumvent the significant concern that an NCAA solution could not pass antitrust scrutiny. In light of these reasons, this Essay contends that congressional legislation should expressly preempt competing state regulations, thus restoring national uniformity in college sports. An express preemption provision would both avoid judicial uncertainty about the law’s preemptive scope and ensure a level playing field. Given the rising tide of bipartisan support for a federal solution, Congress should seize its opportunity to impose game-changing reform on a fractured system, preserving amateurism as it rectifies inequity.

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