Why the First Amendment is a Player in Collegiate Athletics

By Mikaela Kantorowski, Staff Writer Vol. 22

With most sports leagues functioning as private entities, the Constitution, and specifically the First Amendment, usually doesn’t come into play, no pun intended. In fact, the United States Supreme Court rarely decides to kick around issues relating to how the Constitution impacts sports. That said, collegiate athletics is one area of athletics where the Constitution and the First Amendment have recently become players.

How Did We Get here?

In 2021, the Supreme Court issued a landmark decision that essentially allowed athletes to begin to profit off of their Name, Image, and Likeness (“NIL”). Now, college athletes, once not allowed to make any money whatsoever, can take on as many endorsement deals as their heart desires. From there, the wheels came off the bus.

How Big is the Impact?

How does this fit in with the First Amendment, and why does it matter? When the floodgates opened for college athletes to profit off their NIL, those athletes took advantage, and some of the products they promoted were, at best, interesting. State legislatures and public universities nationwide began enacting legislation and mandates that permitted what students could or could not endorse.

While private universities’ rules were safe, all other rules made by States and public universities constituted state action and thus should be subject to Constitutional and First Amendment scrutiny. These public collegiate institutions must follow the First Amendment and all the protections it provides citizens.

What Do the Rules Currently Look Like?

Today, the National Collegiate Athletic Association (“NCAA”), states, athletes, and universities are all trying to find their footing in this rapidly changing space. As a result, many states have passed laws governing what athletes can promote, and schools have publicly and privately penalized athletes who endorse products against their ethical guidelines. When the states and public universities stepped in, NIL regulation went from a private problem to state action resulting in a First Amendment dilemma.

State statutes prohibiting student-athletes from endorsing certain products are abundant. In fact, 28 of 50 states have some sort of NIL law on the books prohibiting what athletes can do or telling them what they have to do. These are exactly the sorts of restrictions that have been questioned as being against the First Amendment as a restriction on free speech.

In 2023, Louisiana State University (“LSU”) issued a very public reprimand regarding the use of artificial intelligence software (“AI”) after female LCU gymnast and social media influencer Olivia Dunne promoted it on her social media pages. In Arizona, a state law is in effect that prohibits collegiate athletes from entering into contracts that conflict with their team’s contracts. Similar statutes were used to prohibit three athletes from Virginia, Texas, and Nebraska from wearing the shoes of their choice instead forcing them to wear shoes made by a team sponsor.

In the same year the landmark NIL decision was reached, the US Supreme Court also ruled on a First Amendment case stating that a public high school could not punish a student-athlete for what they said on social media. Doesn’t this sound like the exact same thing the states are doing that has already been ruled as unconstitutional?

How The NCAA Can Make Everything Constitutional

Until this point, the NCAA has done little to curtail these laws and has taken a hands-off approach to regulating the affairs of NIL and collegiate athletics. However, before the 2023 school year began, the NCAA then released a memo surrounding ongoing NIL issues stating that NCAA rules supersede state law.

In a quote from the memo released by NCAA Executive Vice President of Regulatory Affairs Stan Wilcox, he said, “The Association has been clear and maintains that schools must adhere to NCAA legislation (or policy) when it conflicts with permissive state laws.” The NCAA essentially recognized states were making their own laws and wanted to ensure schools followed the NCAA’s.

While the memo focused on putting a lid on some of the wild spending and contributions that have created a pay-for-play atmosphere in collegiate athletics, this memo also reaffirms the principle that schools must follow NCAA rules, bottom line, even if it goes against State law.

The NCAA states that all schools join voluntarily and are required to comply. The NCAA has also never been considered a state actor for the purposes of the Constitution. So, it begs the question, if the NCAA imposes regulations saying athletes are not allowed to endorse products like artificial intelligence software or go against their school’s pre-existing endorsement deals, would this satisfy the ongoing First Amendment dilemma?

NCAA and NIL: The Future

The memo suggests that the NCAA is taking a new approach to NIL regulation. With schools and States implementing different policies, the NCAA is increasingly interested in creating a more uniform playing field when it comes to NIL. Because the regulation of student-athletes would come from the NCAA and not the States, it would no longer be considered public action.

Because of the recent showing by the NCAA demonstrating they are willing to take a stand, this regulation could dramatically change the NIL space. While it might curtail their spending on athletes, schools can at least look to the new potential regulation as a positive for their image.

It will be very interesting to see how this space develops over the next few years. This recent memo from the NCAA on their policy on NIL regulation might be exactly what the States and schools need to get their regulations passed by an independent body. This could be bad news for athletes as it looks like their freedom to represent whatever they want, whenever they want, might soon be over.

However, the upside is that if the NCAA acts, it will provide much need clarity in the area and less chance of litigation in an already complex space. If the schools can lobby the NCAA to implement consistent rules, the First Amendment discussion in this space would be over.