Unconstitutionil: Name, Image, and Likeness State Laws in The Postamateurism World of College Sports
Abstract
College sports stands at its biggest inflection point in a century. Amateurism is almost dead, and the ability to benefit from their name, image, and likeness (NIL) is here to stay. Scholars, lawyers, and policymakers are quick to congratulate state legislatures, criticize the National Collegiate Athletic Association (NCAA), and propose blueprints for Congress to fix the NIL regime in college athletics. But the incentives for dismantling the old regime are not shared between schools and the NCAA, so nothing happens. A collective action problem exists in the NIL space. Using a commons dilemma lens, this Article argues why NIL laws in several states may violate the dormant Commerce Clause doctrine and the Contracts Clause of the Constitution, and it proposes a litigation-based solution to this problem. In doing so, this Article begins a new body of scholarship for NIL in college athletics-one that not only offers a more practical strategy to force the hand of Congress but also advances a post-amateurism justification for NIL rules and a continuing NCAA role as a rule guardian in what becomes the new NIL legal landscape.
