Tomorrow's Election and College Athletes Rights

In anticipation the presidential election the eyes of the world turn to the United States. A variety of pressing social, governmental, and personal issues steer voters' black Sharpies to specific political parties and candidates. The future of college athletics is not a priority for most voters, however, billions of dollars and thousands of athletes will be affected by the outcome of congressional and presidential races.

Florida is the key. Sound familiar? In December, 2019 the NCAA approached Congress seeking preemption of state NIL laws that started with California’s Fair Pay to Play Act. Florida and Colorado followed suit, but Florida’s law is the first to take effect in July 2021.

The divide between Democrats and Republicans has grown on this issue as well. Senators Romney (R-UT) and Murphy (D-CT) started a bipartisan working group after Congress got involved in the NIL issue. Sen. Rand Paul (R-KY) is in the vast minority of federal legislators opining Congress has no place in college athletics. Republican Rep. Anthony Gonzalez, former Ohio State wide receiver, sponsored a bill that many athletes’ rights activists criticized. The three key issues up for debate in Congress are 1) whether federal law preempts state law; 2) healthcare for college athletes; and, 3) antitrust protection for the NCAA. The intersection of antitrust law, the dormant commerce clause, and their application to the NCAA dates back decades and is highlighted by Ed O’Bannon’s 2014 victory in the Ninth Circuit Court of Appeals.

O’Bannon prevailed in his claim that the NCAA had violated federal antitrust law by illegally bargaining college athletes’ NIL rights away to EA Sports which utilized those unique traits to make millions selling video games. Only a couple years later, the NCAA lost again on the issue of NCAA institutions capping scholarship values.

As the election draws closer, partisan lines grow bolder and Democratic Senators like Cory Booker (NJ) have pushed for more expansive, long-term reforms including potential revenue sharing for college athletes. Gonzalez and other Republicans are cognizant of federal courts recent decisions and recent and upcoming state laws in the vast majority of states, but still seek to preserve college athletics in their more traditional form.

You can add sports to the extensive list of reasons this election matters - - get out and vote!