NIL Tampering

Authors

Josh Lens

Abstract

The college athletics landscape has experienced several recent dramatic and monumental changes. In 2018, its governing body, the NCAA, implemented the transfer portal to help universities and athletes manage the process by which athletes transfer to another university. In 2021, the NCAA allowed every athlete the freedom to accept compensation in exchange for the use of their name, image, and likeness (“NIL”). Booster collectives quickly formed to facilitate NIL arrangements and now exert significant financial influence in the athlete recruiting and retention process. Tens of thousands of athletes have used the portal since its inception, with many seeking more NIL compensation at other universities. The number will only continue to grow because of a 2023 federal district court decision at least temporarily precluding the NCAA from requiring athletes to sit out a season of competition upon their second transfer.

While the NCAA greenlit the transfer portal and NIL, it maintained certain restrictions on recruitment by college coaches and NIL booster collectives. The increasing commercialization of college athletics and the incredible opportunities to generate university revenue and coaching compensation incentivize the type of on-field success that can only be achieved by recruiting and retaining the best athletes. These incentives can outweigh the motivation to adhere to the NCAA’s restrictions. Sure enough, coaches complain that colleagues and NIL booster collectives associated with other universities break the rules, putting rule followers at a competitive disadvantage. The NCAA’s ability and willingness to enforce its restrictions has suffered due to the risk of legal liability and a lack of resources. But the enforcement process can succeed in punishing coaches who impermissibly recruit athletes enrolled at other universities.

However, when an NIL booster collective recruits athletes enrolled at other universities, no such effective enforcement mechanism exists. With no effective NCAA process in place, a university that loses a prominent, revenue-generating athlete to another university because of an associated NIL booster collective’s behavior might consider legal action its only recourse. This Article concludes that a university in this situation would have a viable tortious interference with contractual relations claim against the offending collective. Such a case would be one of first impression with dramatic implications for college athletics. Further, such a case is increasingly likely.

Rights

© 2024 Brigham Young University Law Review

Recommended Citation

Josh Lens, NIL Tampering, 49 BYU L. Rev. 1593 (2024).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol49/iss6/6