Game Changer: How Legal Battles and NIL Are Reshaping the NCAA’s Playbook
Reggie Bush, one of college football’s most electrifying and eye-catching players of all time, is suing the National Collegiate Athletic Association, or NCAA, in California Superior Court.[i] Bush, a University of Southern California legend, alleges that the NCAA unjustly profited from his name, image, and likeness, or NIL, during his time at USC.[ii]
Bush is not alone. On October 7, 2024, Judge Claudia Wilken approved a settlement in a case brought by former college athletes who alleged that the NCAA wrongfully denied them compensation for their NIL during their playing days.[iii] The settlement created a $2.8 billion fund that will allow former athletes to submit claims for the money that the NCAA profited from their NIL.
However, although they are expanding in scope and size, these lawsuits are not unprecedented. In fact, over the last 40 years, the NCAA has been embroiled in multiple legal controversies related to their NIL Rules and historically hardline stance against paying students.
What Is NIL?
NIL refers to the name, image, and likeness of college athletes—an athlete’s right to control the commercial use of their identity.[iv] Historically, student-athletes could not profit from their own NIL. In NCAA v. Board of Regents of the University of Oklahoma, the Supreme Court approved of the NCAA’s policy when they announced that the NCAA, by not allowing athletes to be paid, maintains the revered tradition of amateurism in college sports and preserves the role of the student-athlete.[v]
The March Towards NIL
NCAA v. Board of Regents of the University of California was a powerful stamp of approval on the NCAA’s seemingly unfair, unwavering, and unaltered restrictions on player compensation for over thirty years. However, as the NCAA grew and revenues skyrocketed, reaching $1.12 billion by 2019, discontent continued to spread amongst former and current athletes.[vi] During the 2012-2013 season alone, the NCAA made $125 million from the NCAA Football video game franchise, a video game that sought to capitalize on student athlete NIL.[vii] While the NCAA stiff-armed students away from profits they helped procure, the student-athletes sought refuge in the law.
In 2015, a former Division One college basketball player scored a big win when the US Court of Appeals for the 9th Circuit held that universities could now cover student-athletes' entire cost of attendance during their time at college.[viii] However, the court went no further and overturned the District Court’s decision to allow students to receive NIL cash payments untethered to their education expenses.[ix] As states like California and New Jersey passed their legislation opening up the door to NIL payments in the future, the topic again entered the doors of the Supreme Court.[x] Although they once again did not permit free-flowing NIL and cash payments to student-athletes, the Supreme Court upheld a district court’s ruling that allowed universities and colleges to offer enhanced education-related benefits, such as cash awards for academic achievement, computers, tutoring, and more.[xi] However, in the majority opinion, Justice Gorsuch acknowledged the changing tides and structural change looming on the horizon when he said, "some will see this as a poor substitute for fuller relief.”[xii] He was right.
The Rule Change
After many trips to court and battles against state legislators, in June 2021, the NCAA finally passed its interim name, image, and likeness policy.[xiii] The policy enabled college athletes in states with NIL laws to engage in NIL activities consistent with their state’s rules, athletes in states without NIL laws to engage in NIL activities without the risk of NCAA sanctions, and for all athletes to engage with professional services to promote their NIL.[xiv] This landmark policy change overhauled over half a century of policies that deprived student-athletes of any profit from their NIL and vastly changed the college sports landscape.
NIL Today?
Since the policy change, student-athletes have been able to engage in product endorsements, merchandise licensing, and autograph signings like their professional counterparts.[xv] This rule change and its impact have been most eye-catching at the top. This past year, Quinn Ewers and Arch Manning, both quarterbacks at the University of Texas-Austin, brought in $1.7 and $3.1 million in NIL, respectively.[xvi] On the women’s side, Olivia Dunne, a gymnast, brought in over $3.9 million.[xvii] Further, in the Power Four (the top football conferences), starting wide receivers can expect to make $610,000, and starting running backs will make $340,000.[xviii] Overall, it is projected that student-athletes made over $1.7 billion in NIL transactions in 2024, and there is little reason to suggest that these numbers will not continue to grow.[xix]
Although some fans have criticized this move as turning collegiate sports into a miniature and top-heavy version of the professional leagues, studies suggest that non-athlete students and fans more generally support the rule changes.[xx] Specifically, in addition to 90% of athletes, 70% of college fans support NIL rights for student athletes.[xxi] Although 10% of college sports fans do consider these rule changes to have decreased their passion for college sports, perhaps because of its more professional structure, the vast majority of fans are unimpacted and even supportive of the new rules.[xxii]
While these changes seem to have happened very quickly, the legal battles against NIL have been drawn-out and represent a significant challenge to the status quo of collegiate sports in America.
[i] Maia Spoto, Reggie Bush Sues NCAA Over Name, Image, Likeness Restrictions, bloomberglaw.com (Sep. 23, 2024), https://news.bloomberglaw.com/litigation/reggie-bush-sues-ncaa-over-name-image-likeness-restrictions.
[ii] Joseph M. Ricco IV, Reggie Bush Battles NIL Exploitation, Sports Litigation Alert (Nov. 1, 2024), https://sportslitigationalert.com/reggie-bush-battles-nil-exploitation/.
[iii] Pete Grieve, Former College Athletes Can Now Submit Claims for Payouts in $2.8 Billion NCAA Settlement, Money.com (Oct. 18, 2024), https://money.com/ncaa-settlement-college-athlete-payments/.
[iv] Greg Daugherty, What is NIL? Understanding Name, Image, and Likeness Rules, Investopedia.com, (Feb. 14, 2025), https://www.investopedia.com/name-image-likeness-855899.
[v] Nat'l Collegiate Athletic Ass'n v. Bd. of Regents, 468 U.S. 85, 104, 120 (1984).
[vi] NCAA earns $1.15 billion in 2021 as revenue returns to normal, ESPN.com (Feb. 2, 2022), https://www.espn.com/college-sports/story/_/id/33201991/ncaa-earns-115-billion-2021-revenue-returns-normal.
[vii] Kristi Dosh, How Much Did Schools Make from EA Sport’s NCAA Football Previously?, BCS.com ( May 17, 2023), https://businessofcollegesports.com/name-image-likeness/how-much-did-schools-make-from-ea-sportss-ncaa-football-previously/.
[viii] O’Bannon v. NCAA, 802 F.3d 1049, 1076 (9th Cir. 2015).
[ix] Id.
[x] Max Forer, A New Era: NIL and the Evolution of College Sports, businesslaw.osbar.org (Sep. 26, 2024), https://businesslaw.osbar.org/2024/09/26/a-new-era-nil-and-the-evolution-of-college-sports/.
[xi] NCAA v. Alston, 594 U.S. 69, 107 (2021).
[xii] Id.
[xiii] NCAA adopts interim name, image and likeness policy, ncaa.org, (Jun. 30, 2021), https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx.
[xiv] Daugherty
[xv] Id.
[xvi] Joe Drope and Allison McCann, In College Sports’ Big Money Era, Here’s Where the Dollars Go, nytimes.com (Aug. 31, 2024), https://www.nytimes.com/interactive/2024/08/31/business/nil-money-ncaa.html.
[xvii] Id.
[xviii] Id.
[xix] Id.
[xx] Sam Fullerton and Ron Wade, The Perceived Impact of the New Rules Regarding Name, Image, and Likeness (NIL) in Intercollegiate Sports, Association of Marketing Theory and Practice (May 1, 2023), https://digitalcommons.georgiasouthern.edu/cgi/viewcontent.cgi?article=1001&context=amtp-proceedings_2023.
[xxi] Bill Carter, The Slow March to NIL Support, student-athletesinsights.com, (October 4, 2024), https://studentathleteinsights.com/blog/the-slow-march-to-nil-support#:~:text=Coaches%20and%20Athletic%20Administrators%20lag,as%20compared%20to%20institutions%20overall.
[xxii] Id.