Name, image, and likeness (“NIL”) laws for college athletes have replaced the NCAA’s amateurism model. While they improve athletes’ economic rights, the twenty-five state NIL laws in my study show that pay restrictions vary widely. New Mexico has four pay restrictions compared to forty-five in Illinois. Common restrictions protect a school’s intellectual property rights, authorize schools to approve NIL deals, and prohibit certain athlete activities and sponsorships.
Many restrictions advance a reasonable institutional interest, but Illinois and Mississippi over-regulate NIL rights. Their laws authorize schools to be paid market value as a condition for approving an athlete’s use of school marks and logos. Illinois and Mississippi also bar athletes and NIL sponsors from suing schools for unfair competition and business torts.
Division I universities in Illinois are the most vulnerable schools for an antitrust test case. Using athletic department revenue data from seven public schools (2016–2019), I show that they had sluggish revenue growth for corporate sponsorships, advertising, and licensed products.
This constitutes a relevant market in which athletes compete directly against schools for NIL deals. Furthermore, these schools behaved like a market-restricting conspiracy by holding private meetings to draft the nation’s most restrictive NIL law. Former NCAA athletes at Illinois and Northwestern who are now state lawmakers advanced this school conspiracy by amending a K-12 school truancy bill to introduce the Student-Athlete Endorsement Rights Act. The law unreasonably protects these schools’ licensing and sponsorship markets—a conclusion supported by comparisons to other states and demonstrated by applying an antitrust analysis to Illinois’s most severe restraints on athlete pay.
My analysis relates to player antitrust litigation that began in the 1970s. The NCAA and schools prevailed in these lawsuits for decades. But, O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015), and NCAA v. Alston, 141 S. Ct. 2141 (2021), turned this tide in favor of athletes. Illinois’s Student-Athlete Endorsement Rights Act ignores this seismic shift in litigation while legislating NIL rights that provide nil access to courts to enforce them.
Overall, my study shows that most state NIL laws advance eco-nomic rights for college athletes. But half the states have no NIL laws. I recommend that lawmakers in states with NIL laws scale back the most onerous restrictions for pay. Unless a federal NIL law is enacted, this state-law hodgepodge means that schools will compete for athletes on uneven terms, further destabilizing athletic competi-tion between NCAA Division I schools.
a. Professor, School of Labor and Employment Relations and College of Law, University of Illinois at Urbana-Champaign. E-mail: mhl@illinois.edu.
The full text of this Article is available to download as a PDF.