74 Am. U. L. Rev. 1335 (2025).

Abstract

College sports stands at its biggest inflection point in a century. Amateurism is almost dead, and the ability of athletes 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 far 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.

* Assistant Clinical Professor, University of Oregon School of Law. The Author is the former Associate General Counsel for the University of Oregon, a former Trial Attorney at the U.S. Department of Justice (Civil Division, Federal Programs Branch), and a former NCAA Division I athlete. I would like to thank the Sports Lawyers Association (SLA) peer review panel for selecting this Article for presentation at the Academic Paper Session of SLA’s 49th Annual Conference, where I received valuable comments and suggestions from many colleagues, including Alfred Yen, Stephen Ross, and Ryan Gauthier. I am also indebted to all my University of Oregon colleagues—particularly Erik Girvan, Mohsen Manesh, Suzanne Rowe, and Merle Weiner, for their time, sensible advice, and detailed comments. Finally, I would also like to thank my research assistants, George Blankley and Jay Shearrow, for their work. Any errors are mine.