After meeting with former University of Alabama football coach and seven-time national champion Nick Saban, President Trump is considering forming a college sports commission and issuing an executive order to establish national standards for name, image, and likeness (NIL)—an umbrella term that includes how college athletes can earn compensation based on their personal brand and public recognition.
Saban expressed concerns about the current NIL landscape creating an uneven playing field among schools due to disparities in financial resources, especially among powerhouse programs, as well as inconsistencies in NIL laws across different states. Trump was receptive to Saban's concerns. However, an executive order seeking NIL regulations faces challenges.
For example, many states have enacted their own NIL laws, which are rooted in state right-of-publicity laws. So far, state NIL laws have been very generous toward athletes and have generally removed restrictions on the amount an athlete may earn from NIL. There are currently no federal right-of-publicity laws, and there is no sign that Congress will pass legislation that will explicitly preempt state NIL laws. Thus, an executive order from the Trump administration would at most help set national guidelines for NIL—it would not have the power to override state laws that conflict with those guidelines.
Similarly, an executive order limiting NIL might conflict with state labor and employment laws. For example, in the closely watched Johnson v. NCAA case pending in the U.S. District Court for the Eastern District of Pennsylvania, athletes are pursuing employee status not only under the federal Fair Labor Standards Act (FLSA), but also under various state wage laws in Connecticut, Pennsylvania, and New York. An executive order limiting NIL compensation would have no authority to preempt or alter these state-specific laws, which are governed by each state's legal framework.
Additionally, Title IX might be implicated by an executive order regulating NIL. Title IX mandates that male and female athletes at federally funded educational institutions receive equitable treatment in benefits and opportunities. While NIL compensation is typically provided through private deals, this will change under the proposed House v. NCAA settlement if approved, which will allow schools to make payments directly to athletes. If an executive order is perceived to result in any sex-based disparities in school-facilitated NIL or revenue-sharing opportunities, it could trigger legal challenges under Title IX.
A Trump Executive Order Goes Only So Far
NCAA president Charlie Baker has publicly expressed openness to executive action. However, an executive order from the Trump administration will not provide the NCAA with what it truly desires—an antitrust exemption from Congress. The NCAA has long sought an antitrust exemption from Congress that would have the potential to shield it from antitrust litigation, a necessary step to preserve the NCAA's notion of "amateurism." Courts have grown increasingly skeptical of the NCAA's efforts to preserve amateurism, as seen with the outcomes of landmark cases such as O'Bannon v. NCAA and NCAA v. Alston. These cases reflect a broader judicial trend toward scrutinizing NCAA policies under traditional antitrust principles. By obtaining an antitrust exemption, the NCAA could effectively remove these questions from judicial review, placing the authority to define and validate its amateurism framework in the hands of Congress.
An executive order from the Trump administration is better than nothing, but it still leaves the NCAA exposed. An executive order can direct federal agencies, shape enforcement priorities, and clarify regulatory interpretations, but it cannot override existing laws, such as the Sherman Antitrust Act. In other words, even if an executive order expressed support for the NCAA's amateurism model and restricted NIL compensation, it would have no binding effect on the judiciary. Courts will still be obligated to apply the Sherman Act as written.
In short, while there may be compelling reasons to attempt to bring order to the complex world of college athlete compensation, addressing NIL through an executive order is likely to face significant challenges, particularly if it fails to account for the intricate legal and regulatory issues underlying the current system. And it likely will not bring an end to the NCAA's legal challenges.
For more sports law analysis and insights, please contact the authors or visit the Venable Sports Law Group web page.