Caster Semenya celebrates her silver medal at the London 2012 Olympic games. Original photo by Jon Connell, via flickr.

By Kelsey E. Rector

South African runner Caster Semenya is a two-time Olympic gold medalist and has dominated track events like the 800 meter and other mid-distance races over the last decade.[1] All her life, Semenya has been questioned about her sex, especially with respect to competing as an elite female track athlete.[2] Her performance came under fire because Semenya, who was raised as a woman, presents as a woman, and identifies as a woman, has differences in sex development (“DSD”) which cause her body to naturally produce more testosterone than the average female.[3] DSD has many potential causes,[4] but in the most general terms, means that a person has an “atypical development of their chromosomal, gonadal, and/or anatomic sex.”[5]

In competitive sports which rely on gender binaries to group athletes for fair competition, one of the major issues has been to determine how to handle challenges that DSD women are not “female” for the sake of competition.[6] As a result, the recent solution by World Athletics (formerly the International Association of Athletics Federations, or “IAAF”) has been to adopt new rules to protect fair competition which would require DSD women, who are considered “relevant athletes,” to regulate their elevated testosterone levels or bar them from competing in certain women’s track events.[7]

Last month, Semenya lost her appeal challenging the World Athletics regulation which prohibits certain athletes with elevated testosterone levels from competing as females in specified track events.[8]

The regulations set forth by World Athletics state that “relevant athletes,” like Semenya, are barred from competing in restricted events, such as the women’s 800 meter, unless they reduce their blood testosterone to a level of less than five nmol/L for at least six months and sustain it thereafter to maintain eligibility.[9] Similar regulations were proposed by the IAAF in 2014, but when challenged the IAAF failed to produce enough scientific evidence to justify the necessity of the regulation.[10] Despite conflicting studies regarding whether increased testosterone even provides a significant competitive advantage for DSD athletes, the IAAF proposed the current regulations and claimed that they were essential to preserving fair competition for women.[11]

Semenya filed a claim against IAAF in the Court of Arbitration for Sports (“CAS”), claiming that the DSD regulations were “unfairly discriminatory, arbitrary and disproportionate and therefore violate the IAAF Constitution . . . .”[12]

There are several issues with regulations such as these. First, the regulation explicitly targets those individuals who do not fit within a convenient, traditionally defined, binary division of sex. The regulation applies to DSD individuals, but not non-DSD women who may also naturally produce testosterone at high levels.[13] Second, the regulation only applies to certain track events and not to other sports or events.[14] It is interesting to note that the events in the restricted category are restricted to those events in which identified DSD athletes compete in the most significant numbers, but not to those where the performance gap between DSD women and non-DSD women was the widest.[15] Third, and perhaps most troubling, the regulation requires artificial lowering of natural testosterone levels—which can have side effects—in order for an athlete to compete as a woman.[16] We do not ask Michael Phelps to shorten his ridiculously long arms for fair competition, nor do we question Usain Bolt’s long legs in men’s racing—so is it even appropriate to regulate naturally produced hormones which may only give athletes a slight advantage?[17]

Following arbitration, CAS found that the DSD regulations were discriminatory, but upheld them because the regulations were “a necessary, reasonable and proportionate means of achieving the aim of what is described as the integrity of female athletics and upholding of the ‘protected class’ of female athletes in certain events.”[18] The court noted several concerns with the regulations, such the potential for compromising athletes’ confidentiality, the ability of the IAAF to practically apply the regulations, risks to athletes’ health from hormonal treatment, and the inclusion of certain events (the 1,500 meter and 1 mile) as restricted events.[19] The court implied that it was not its place to determine whether a different regulation could be implemented that was more fair and less discriminatory.[20] Instead the court stated that its role was limited to evaluating the regulation as presented in order to determine if it was necessary, reasonable, and proportionate.[21]

Following the CAS decision, the World Medical Association (“WMA”) released a statement encouraging doctors not to take part in implementing the regulations.[22] Specifically, the WMA president stated, “We have strong reservations about the ethical validity of these regulations. They are based on weak evidence from a single study, which is currently being widely debated by the scientific community.”[23] Nevertheless, the regulation was upheld on appeal by the Swiss Federal Supreme Court.[24]

The Swiss Court stated that it could only evaluate “whether the CAS decision violates fundamental and widely recognized principles of public order.”[25] The court determined that fairness in sport was a legitimate concern and that DSD athletes were not being forced to undergo examinations or treatment.[26] While technically the court is correct that athletes aren’t being forced into evaluation or treatment, if an athlete withholds her consent, she will be barred from competing.[27] That doesn’t exactly seem like a fair choice.[28]

So what comes next? First, given the concerns expressed in the CAS opinion, there may be challenges to the application of the DSD regulation once it starts to be enforced.[29] For example, an athlete who agrees to adjust her testosterone levels through hormone treatment may not be able to consistently keep them at the required level throughout her eligibility period.[30] If World Athletics chooses to enforce the policy anyway, that athlete would have a strong argument that she attempted to follow the regulation and that it would be unfair to bar her from competition for fluctuating testosterone levels.[31] In the meantime, Semenya will likely take her case to the European Court of Human Rights to determine “whether demanding women with intersex variations to change their natural bodies as eligibility condition for a certain sport events conforms to the European Convention on Human Rights.”[32]


[1] Athlete Profile: Caster Semenya, World Athletics, https://worldathletics.org/athletes/south-africa/caster-semenya-14330057 (last visited Oct. 20, 2020) (showing races won, current season times, world ranking, and other statistics).

[2] Robyn Dixon, Gender Issue Has Always Chased Her, L.A. Times (Aug. 21, 2009), https://www.latimes.com/archives/la-xpm-2009-aug-21-fg-south-africa-runner21-story.html. See also Erin Buzuvis, Caster Semenya and the Myth of a Level Playing Field, 6 Modern Am. 36 (2010) (discussing how Semenya’s voice, musculature, and speed provoked questions about her gender after she won the 800m at the World Championships in 2009).

[3] See Sofia Christensen, Semenya Lawyer Prepares Testosterone Rule Challenge in European Court, Yahoo News (October 1, 2020), https://sports.yahoo.com/semenya-lawyer-prepares-testosterone-rule-142841526.html.

[4] DSD is a term encompassing a variety of conditions including but not limited to: 46 XX congenital adrenal hyperplasia, 5-alpha reductase deficiency, Klinefelter syndrome (47 XXY), Swyer syndrome (46 XY gonadal dysgenesis), and Androgen insensitivity syndrome. Kyla Boyse, Disorders of Sex Development (DSD) Resources, Mich. Med. (updated Nov. 2012),  https://www.med.umich.edu/yourchild/topics/dsd.htm.

[5] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 110–11 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[6] See generally Maayan Sudai, The Testosterone Rule—Constructing Fairness in Professional Sport, 4 J. L. & Biosciences 181, 182 (2017) (stating that the issue of sex classification has plagued professional sport authorities since at least 1968).

[7] See World Athletics, Eligibility Regulations for the Female Classification, 2 (effective Nov. 2019) https://www.worldathletics.org/download/download?filename=656101dc-7716-488a-ab96-59d37941e9ac.pdf&urlslug=C3.6%20-%20Eligibility%20Regulations%20for%20the%20Female%20Classification; Testosterone Rules for Female Athletes ‘Unscientific’, BBC (Mar. 21, 2019), https://www.bbc.com/news/health-47640359.

[8] George Ramsay & Jill Martin, Caster Semenya Loses Appeal in Swiss Court over Restriction of Testosterone Levels, CNN (Sept. 9, 2020), https://www.cnn.com/2020/09/09/sport/caster-semenya-ruling-athletics-spt-intl/index.html; Lena Holzer, The Decision of the Swiss Federal Supreme Court in the Caster Semenya Case: A Human Rights and Gender Analysis, Opinio Juris (Sept. 30, 2020), http://opiniojuris.org/2020/09/30/the-decision-of-the-swiss-federal-supreme-court-in-the-caster-semenya-case-a-human-rights-and-gender-analysis/; Sean Ingle, Caster Semenya’s Olympic Hopes Fade as Runner Loses Testosterone Rules Appeal, The Guardian (Sept. 8, 2020), https://www.theguardian.com/sport/2020/sep/08/caster-semenya-loses-appeal-against-world-athletics-testosterone-rules.  

[9] World Athletics, supra note 7, at 4–5. The regulations define relevant athletes as those with listed DSDs, testosterone levels higher than five nmol/L, and who have androgen sensitivity allowing the testosterone to have an androgenizing effect. Id. at 4. Restricted events currently include the women’s 400 m, 400 m hurdles, 800 m, 1,500 m, and 1 mile. Id.

[10] See Alexandria Adkins, Comment, Trapped in the Binary Divide: How Forced Contraceptives Violate the World Anti-Doping Code, 35 Am. U. Int’l L. Rev. 531, 542–43 (2020). These regulations required hyperandrogenic females to reduce natural testosterone levels through the use of oral contraceptives. Id. at 542.Dutee Chand, a hyperandrogenic sprinter from India successfully challenged the necessity, reasonableness, and proportionality of the regulations. Id. at 543.

[11] Sudai, supra note 6, at 186–89.

[12] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 2 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[13] Adkins, supra note 10, at 561.

[14] Id. at 562.

[15] Semenya, CAS Case No. 2018/0/5794, at 156.

[16] Adkins, supra note 10, at 556.

[17] Matt Butler, Nobody Asked Bolt to Shorten His Legs or Phelps to Shrink His Feet, so Why is Caster Semenya Being Told to Reduce Her Testosterone?, i News (Sept. 16, 2020), https://inews.co.uk/sport/athletics/caster-semenya-iaaf-testosterone-cas-sebastian-coe-260629. But see Malcom Gladwell & Nicholas Thompson, Caster Semenya and the Logic of Olympic Competition, New Yorker (Aug. 12, 2016), https://www.newyorker.com/sports/sporting-scene/caster-semenya-and-the-logic-of-olympic-competition (rationalizing the regulations by stating that these are different types of advantages, and that testosterone places Semenya outside the protected class of women).

[18] Semenya, CAS Case No. 2018/0/5794, at 160.

[19] Id. at 152–160.

[20] Id. at 160.

[21] Id.

[22] WMA Reiterates Advice to Physicians not to Implement IAAF Rules on Classifying Women Athletes, World Med. Ass’n (May 2, 2019), https://www.wma.net/news-post/wma-urges-physicians-not-to-implement-iaaf-rules-on-classifying-women-athletes/.

[23] Id.

[24] Press Release, Swiss Fed. Sup. Ct., DSD Regul.: Caster Semenya’s Appeal against the Decision of the Ct. of Arb. for Sport Dismissed (Sept. 8, 2020). The court opinion is in French (which I do not speak), as such I cite to the Press Release which was released in English. The case citation is: Tribunal Fédéral [TF] [Federal Supreme Court] Aug. 25, 2020, 4A_248/2019 (Switz.).

[25] Press Release, Swiss Fed. Sup. Ct., supra note 24.

[26] Id.

[27] World Athletics, supra note 7, at 5.

[28] Holzer, supra note 8.

[29] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/0/5794, 158–59 (Ct. Arb. Sport 2019).

[30] Id.

[31] Id.

[32] Holzer, supra note 8.

Florida State Head Coach Mike Norvell leads the Seminoles onto the field prior to their first—and, so far, only win—of the season, Oct. 3, 2020. Photo Courtesy Ross Obley, Seminoles.com.

By Jonathan Carter

The 2020–21 NCAA football season is shaping up to be much different than seasons past,[1] and a recent rule change recommended by the NCAA Division I Football Oversight Committee (“Oversight Committee”) could result in coaches with losing records benefiting from the disarray.[2] Due to COVID-19, currently only 112 of the 130 total Football Bowl Subdivision (“FBS”) teams are playing to compete in forty-one scheduled bowl games.[3] To play in a bowl game, an FBS team usually must first satisfy the NCAA requirements governing bowl eligibility by becoming a “deserving team.”[4] Most importantly, the team must have “won a number of games against [FBS] opponents that is equal to or greater than the number of its overall losses.”[5] This rule mandates that an FBS team have a win-loss record equal to or greater than 50 percent before becoming eligible to play in a bowl game.[6]

With many schools’ football teams sitting this season out, it is likely impossible that enough FBS teams will satisfy this traditional bowl eligibility requirement.[7] Current NCAA rules provide exceptions in the event that there are not enough eligible teams to fill every bowl slot, but these exceptions are generally based on a team’s academic—rather than athletic—performance.[8] In response to the novel circumstances created by COVID-19, the Oversight Committee recently recommended the removal of normal bowl eligibility requirements for the 2020–21 bowl season.[9] This recommendation would eliminate the current win-loss record requirement, but must first be approved by the Division I Council, which is scheduled to meet on Oct. 13–14.[10]

Consequently, if approved, the rule change could have a direct impact on whether FBS coaches with losing records are entitled to receive additional compensation from their universities. In addition to a fixed salary, college coaching contracts frequently include bonus provisions that entitle a coach to additional compensation if certain on-field or off-field events occur.[11] While off-field performance bonuses are generally conditioned on the academic performance of the coach’s players, on-field performance bonuses are related to the team’s athletic accomplishments during the season.[12] The specific terms of coaches’ contracts vary, but a college coaching contract might condition the payment of on-field bonuses on: the team winning a specified number of games, the team playing in or winning a national championship, or the coach winning a national coach of the year award.[13]

Moreover, most FBS college coaching contracts contain an on-field bonus provision that entitles a coach to additional compensation if the team appears in a bowl game.[14] This reflects the university’s goal to incentivize the coach to win games and is consistent with the current trend of paying coaches significantly more for their services.[15] The economic justification for this trend is premised on the idea that teams who win games and play in bowl games gain national notoriety and generate more athletic revenue for the university.[16] As a result, universities and FBS coaches who entered into coaching contracts that include on-field bowl game bonus provisions did so under the assumption that the coach would at least have to satisfy the traditional NCAA bowl eligibility rules to receive that bonus.[17] The Oversight Committee’s new recommendation, however, would make this assumption false by allowing FBS teams with losing records to play in bowl games.[18] Ultimately, the recommendation’s effect will be determined by a football team’s win-loss record and the language of the bowl game bonus provision found in the coach’s contract.

To illustrate, Mike Norvell was hired to coach the Florida State Seminoles football team in December 2019.[19] Among other on-field performance bonuses contained in his agreement, Norvell is entitled to receive at least $100,000 if the Seminoles play in any bowl game while under Norvell’s direction as head coach, regardless of the team’s record or ranking.[20] The Seminoles currently have an overall win-loss record of 1–3[21] and have yet to face many talented ACC opponents listed on their schedule.[22] In a normal NCAA football season, if the Seminoles were to finish the regular season with a losing record they would almost certainly be ineligible to play in a bowl game.[23]

If the Oversight Committee’s recommendation is approved, the Seminoles could remain bowl eligible with a losing record and play in one of the forty-one scheduled bowl games.[24] This unprecedented outcome would entitle Norvell to receive an additional $100,000 on top of his approximately $4 million annual salary for what many would consider an unsuccessful season.[25] Interestingly, Norvell’s bonus provision is similar to that of many other major college football coaches including UCLA’s Chip Kelly,[26] Alabama’s Nick Saban,[27] and Texas A&M’s Jimbo Fisher,[28] in that their contracts entitle them to receive a bonus simply because they are the head coach of a team that appears in a bowl game.

Other coaching contracts, however, may avoid this result because of qualifying language in the bonus provision that requires the team to win a specified number of regular season games in addition to playing in a bowl game. For example, under the “bowl participation” bonus provision of the University of Oregon’s football coach, Mario Cristobal, his team “must have at least 7 regular season wins” for him to receive a $100,000 bonus for appearing in a bowl game.[29] Similarly, Clemson’s football coach, Dabo Sweeny, is only entitled to receive $50,000 for playing in a bowl game if his team also wins “eight or more regular season games.”[30] Thus, these universities have insulated themselves from the potential effect of the Oversight Committee’s recommendation by requiring their team to win a majority of their regular season games.

Historically, putting together a winning season was the first step an FBS coach was required to take before receiving any bonus for a team’s on-field performance. Among many other changes, COVID-19’s impact on college football has put this requirement into question. If the Oversight Committee’s recommendation is accepted by the Division I Council, FBS coaches with losing seasons could be entitled to receive bonuses from their universities for coaching in bowl games that they traditionally would not be eligible to play in.


[1] See Ivan Maisel & Adam Rittenberg, How College Football is Trying to Answer Its Biggest Return-To-Play Questions, ESPN (Jul. 1, 2020), https://www.espn.com/college-football/story/_/id/29387826/how-college-football-trying-answer-biggest-return-play-questions.

[2] See Greg Johnson, Waiving Bowl Qualification Requirements Recommended, NCAA (Sept. 24, 2020, 6:56 PM), http://www.ncaa.org/about/resources/media-center/news/waiving-bowl-qualification-requirements-recommended.

[3] David Scott, Every College Football Team is Likely Bowl Eligible in 2020. Here’s Why, What to Know, The Charlotte Observer (Sept. 22, 2020, 3:10 PM), https://www.charlotteobserver.com/sports/article245890615.html.

[4] See Nat’l Collegiate Athletic Ass’n, 2020–21 NCAA Division I Manual § 18.7.2 (2020), http://www.ncaapublications.com/productdownloads/D121.pdf [hereinafter NCAA Manual].

[5] Id.

[6] Id.

[7] David Cobb, NCAA Committee Recommends Waiving Bowl Eligibility Requirements for 2020 College Football Season, CBS Sports (Sept. 24, 2020, 8:27 PM), https://www.cbssports.com/college-football/news/ncaa-committee-recommends-waiving-bowl-eligibility-requirements-for-2020-college-football-season/.

[8] Id.; NCAA Manual, supra note 4, § 18.7.2.1.3.

[9] Johnson, supra note 2; see also NCAA Manual, supra note 4, § 18.7.2.3 (“The Division I Football Oversight Committee . . . shall have the authority to waive all postseason bowl game requirements based on objective evidence that demonstrates circumstances that warrant the waiver. . . .”).

[10] Johnson, supra note 2.

[11] Martin J. Greenberg, College Coaching Contracts Revisited, 12 Marq. Sports L. Rev. 127,  179–83 (2001); Randall S. Thomas & Lawrence Van Horn, College Football Coaches’ Pay and Contracts: Are They Overpaid and Unduly Privileged, 91 Ind. L.J. 189, 219–22 (2016).

[12] See Greenberg, supra note 11, at 179–83; Randall & Van Horn, supra note 11, at 219–22.

[13] See Randall & Van Horn, supra note 11, at 219–20; see also, e.g., Amended Coaching Contract #1 Between Mario Cristobal, Coach, and Univ. of Ore. (June 3, 2019) [hereinafter Cristobal Contract], https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2018/08/Cristobal-Mario-2017-24-amendment-1.pdf; Coaching Contract Between Dan Mullen, Coach, and Univ. of Fla. 17–18 (Nov. 26, 2017), https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2019/07/Dan-Mullen-Florida.pdf; Restated Coaching Contract Between Tom Herman, Coach, and Univ. of Tex. at Austin 8–9 (May 19, 2016), https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2015/10/Thomas-J.-Herman-Restated-1-0-Culture-LLC-17-36122-Restated-Head-Football-Coach-Employment-Agreement.pdf.

[14] See coaching contracts cited supra note 13; see also Greenberg, supra note 11.

[15] See Richard T. Karcher, The Coaching Carousel in Big-Time Intercollegiate Athletics: Economic Implications and Legal Considerations, 20 Fordham Intell. Prop. Media & Ent. L.J. 1, 27–33 (2009).

[16] Id.

[17] See, e.g.,Randall & Van Horn, supra note 11, at 198–99.

[18] Johnson, supra note 2.

[19] Teresa M. Walker, Florida State Makes Memphis’ Mike Norvell New Head Coach, Associated Press (Dec. 8, 2019), https://apnews.com/article/38ac32d5b32b4dc3aa929e6a6b55a743.

[20] Coaching Contract Between Mike Norvell, Coach, and Fla. State Univ. 7–8 (Dec. 7, 2019) [hereinafter Norvell Contract], https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2018/08/Norvell-Contract-12-11-19.pdf.

[21] Anthony Anderson, Williams, Crawford Lead No. 5 Notre Dame Past Florida State, Associated Press (Oct. 11, 2020), https://apnews.com/article/college-football-jordan-travis-kyren-williams-shaun-crawford-football-cdb11adf56ddb2ca56af9780ca4de865.  

[22] Florida State Seminoles Schedule 2020, ESPN, https://www.espn.com/college-football/team/schedule/_/id/52 (last visited Oct. 13, 2020).

[23] See, e.g.,Tim Linafelt, Clock Strikes 12 On Streaks, Noles’ Football Season, Fla. State Seminoles (Nov. 24, 2018), https://seminoles.com/clock-strikes-12-on-streaks-seminoles-season/.

[24] Johnson, supra note 2.

[25] Norvell Contract, supra note 20, at 3–4, 7–8.

[26] Coaching Contract Between Chip Kelly, Coach, and Univ. of Cal. L.A. 5 (Nov. 25, 2017), https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2018/08/Chip-Kelly-UCLA.pdf (providing at least $40,000 bonus for coaching in any bowl game).

[27] Second Amended and Restated Contract Between Nick Saban, Coach, and Univ. of Ala. 9 (Sep. 4, 2018), https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2018/08/Nick-Saban-Alabama.pdf (providing at least $65,000 bonus for coaching in any bowl game).

[28] Coaching Contact Between Jimbo Fisher, Coach, and Tex. A&M Univ. 5–6 (Aug. 17, 2018), https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2015/10/Jimbo-Fisher-Texas-AM.pdf (providing at least $100,000 bonus for coaching in any bowl game).

[29] Cristobal Contract, supra note 13.

[30] Amended and Restated Coaching Contract Between Dabo Sweeny, Coach, and Clemson Univ. (Nov. 18, 2019) 7–8, https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2018/08/7127_SwinneyDabo_2019-1-1_CONTRACT.pdf.

By Alexander Hill

On October 29, 2019, the National Collegiate Athletic Association (the “NCAA”) announced that it would begin the process of directing its divisions to consider amendments to their bylaws to allow collegiate athletes to benefit from their names, images, and likenesses.[1] In this announcement, the NCAA stated these changes would come in a manner “consistent with the collegiate model.”[2] The NCAA’s decision follows California’s enactment of Senate Bill 206, commonly known as the “Fair Pay to Play Act” (the Act), which (upon its effective date of January 2023) will allow players to profit from their names, images, and likenesses, as well as sign agents to represent them in licensing contracts.[3] Additionally, Congress and other state legislatures are considering proposed legislation that would have similar effects as the Act.[4] However, the NCAA’s language of “consistent with the collegiate model” has an eerie similarity to the argument for restriction on amateurism that it made in O’Bannon v. Nat’l Collegiate Athletic Ass’n when it argued that compensation for college athletes goes against the “identity of college sports.”[5] In comparison to the Act, how much can the NCAA limit the athletes’ ability to profit of their name, image, and likeness?

This post addresses the extent of the legal limitations under the Sherman Antitrust Act on the NCAA when implementing these changes “consistent with the collegiate model.” It analyzes these two procompetitive factors in light of the details of the California Act, and whether the rights granted to athletes under this bill hinder these purposes to the extent that the Rule of Reason allows the NCAA to structure its own likeness compensation rules more narrowly than the Act under the Sherman Antitrust Act.

The Act allows athletes to hire agents to represent them in contracts with third parties to use the athletes’ likenesses in different ways, as well as allow the third parties to compensate the athletes in turn.[6] However, the Act restricts schools from compensating the players when they use the athletes’ likenesses themselves.[7] Additionally, athletes cannot enter into contracts if those contracts conflict with the terms of contracts entered into by the teams for which they play.[8]

To this point, the prospect of amateurism as a procompetitive factor in college sports has allowed the NCAA to refuse cash compensation for name, image, and likeness under the Sherman Antitrust Act, as evidenced by O’Bannon.[9] In O’Bannon, the Ninth Circuit Court of Appeals noted that the NCAA’s rules on player compensation are subject to the Sherman Antitrust Act and should receive the scrutiny classified as the “Rule of Reason.”[10] In the Rule of Reason analysis, the court addresses whether a restriction on trade is procompetitive, and if it is procompetitive, whether there is another way to promote the goal of the restriction in a less restrictive way.[11] In the O’Bannon case, the court found that the NCAA’s restriction on cash payments from schools to athletes for their name, image, or likeness beyond grants for educational expenses of the athlete failed the Rule of Reason analysis.[12] In its reasoning, the court noted the restriction promoted two procompetitive purposes: “preserving the popularity of the NCAA’s product by promoting its current understanding of amateurism” and “integrating academics and athletics.”[13] The court held that third parties, specifically EA Sports, which for years had made video games based on college athletics, could not use the athletes’ likeness without compensating them.[14]

In the court’s reasoning, however, the court mainly addressed the procompetitive factor of “preserving the popularity of the NCAA’s product by promoting its current understanding of amateurism” and did not really address the issue of “integrating academics and athletics.”[15] The court failed to address the fact that the NCAA already has in place certain eligibility requirements that require athletes to take certain kinds of classes during their tenure in school, as well as a GPA requirement that all athletes have to meet.[16] Whether or not players are compensated appears to have no bearing on the athletes’ integration into their college’s academics in any way. Where students are required to still maintain a certain level of academic achievement, an allowance for compensation would be a less restrictive alternative to restricting compensation for athletes while still maintaining the procompetitive factor of integrating athletics to academics. Therefore, allowing compensation for athletes would pass the Rule of Reason under the third prong. So, the only procompetitive factor that could be restricted would be restricting the popularity of the NCAA’s product.

When analyzing the restriction on the popularity of the NCAA’s product, the court in O’Bannon only focused on recruitment of players and payments to the players by the colleges themselves.[17] As noted above, the court held that colleges could not compensate athletes for their likenesses because it would hinder the popularity of the NCAA’s product.[18] Similar to this holding, the Act prohibited the ability of schools to pay their athletes for their likenesses.[19] So, that requirement would actually be consistent with O’Bannon. Looking at the allowance for athletes to hire agents, there is no reason why this would restrict the popularity of the sport. Applying the Rule of Reason analysis, allowing players to hire agents would not be more restrictive on the popularity of the NCAA’s product than would allowing players to earn compensation from third parties. If mandating that third parties must pay collegiate athletes for their likeness is not restrictive on this procompetitive aspect by O’Bannon, certainly allowing the athletes to hire agents to ensure they are fairly represented in a contract would meet the same standard under the Rule of Reason. So, naturally, allowing the athletes to hire agents would pass the Rule of Reason analysis and the NCAA would not be able to prevent students from being able to hire agents.

Additionally, if the court already held in O’Bannon that third parties are required to compensate the athletes[20], the requirement in the Fair Pay to Play Act that prevents the NCAA from implementing a rule prohibiting the athletes’ ability to profit off of their likeness is consistent with the holding in O’Bannon. Therefore, it appears that the allowances for athletes in the Fair Pay to Play Act are consistent with the court’s holding in O’Bannon.

In conclusion, it appears that the Fair Pay to Play Act’s grant of rights to athletes are consistent with the holding in O’Bannon, and any restriction beyond the Fair Pay to Play Act by the NCAA would be inconsistent with the ruling in O’Bannon.


[1] Board of Governors Starts Process to Enhance Name, Image and Likeness Opportunities, NCAA (Oct. 29, 2019, 1:08 PM), http://www.ncaa.org/about/resources/media-center/news/board-governors-starts-process-enhance-name-image-and-likeness-opportunities.

[2] Id.

[3] Allen Kim, California Just Passed a Law That Allows College Athletes to Get Paid, CNN (Sep. 29, 2019, 4:01 PM), https://www.cnn.com/2019/09/30/sport/california-sb-206-ncaa-trnd/index.html

[4] Michael McCann, What’s Next After California Signs Game Changer Fair Pay to Play Act into Law?, Sports Illustrated (Sep. 30, 2019), https://www.si.com/college/2019/09/30/fair-pay-to-play-act-law-ncaa-california-pac-12

[5] O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1058 (9th Cir. 2015).

[6] Fair Pay to Play Act, S.B. 206, 2019 Cal. State Senate (Cal. 2019).

[7] Id.

[8] Id.

[9] O’Bannon, 802 F.3d at 1079.

[10] Id.

[11] Id. at 1070.

[12] Id. at 1079.

[13] Id. at 1076.

[14] Id. at 1067.

[15] Id. at 1076.

[16] Id.; Amateurism, NCAA (last visited Nov. 4, 2019), http://www.ncaa.org/student-athletes/future/amateurism

[17] O’Bannon, 802 F.3d at 1076.

[18] Id.

[19] Cal. S.B. 206.

[20] O’Bannon, 802 F.3d at 1067.