College athletics is changing rapidly for athletes.
Josh Lens, associate professor of instruction of sport and recreation management at the University of Iowa, explains how.
A former attorney and college athletics administrator, Lens’s scholarship focuses on legal issues in sports, particularly within college athletics. Media outlets including The New York Times, USA Today, the Associated Press, and The Paul Finebaum Show have discussed or interviewed Lens about his scholarship. For a more thorough examination of the present issue, a draft of Lens’s forthcoming SMU Law Review article about it can be found here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4846121. Lens’s other scholarship can be found here: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3003484.
NIL Participation Provides Collegiate Athletes With Additional Protections
When the NCAA began permitting collegiate athletes to accept compensation for use of their names, images, and likenesses on July 1, 2021, many correctly predicted that athletes would benefit financially from this newfound freedom to, for example, sell their autographs and endorse goods and services. Another perhaps unforeseen and unintended benefit for collegiate athletes engaged in NIL activities is they should now receive additional process in instances where their universities seek to discipline them by withholding them from athletics participation.
Courts have traditionally refrained from classifying college athletics participation as an interest that the Constitution protects, instead categorizing it as a privilege. Thus, public universities subject to the Constitution have generally not had to provide athletes much process before suspending them from sport participation or removing them from teams.
However, in a recent Illinois District Court case filed by a University of Illinois basketball player that the University suspended from the team after he was arrested on a rape charge (of which the athlete was eventually acquitted), the judge classified college athletics participation by an athlete involved in NIL pursuits as a constitutionally protected interest. And because the judge concluded that the processes provided by the University were insufficient, she precluded it from continuing the athlete’s suspension.
This ruling is significant for NIL-involved athletes and state universities. Before disciplining them by keeping them from athletics participation, the latter must provide certain processes to the former like notifying them of intended action and alleged grounds for it and hearings by neutral decision-makers. Universities’ failure to provide NIL-involved athletes with these protections before disciplining them could result in costly litigation and legal rulings preempting their disciplinary measures.
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