Soft Law, Hard Problems: Examining NIL Conflicts Between State Laws and NCAA Policy

• In Event: 40461 - Section on Sociology of Law Roundtables
  In Refereed Roundtable (60 minute): Table 5: Discrimination and Displacement

Abstract

The aftermath of recent antitrust challenges against NCAA governance authority has resulted in a landmark change whereby college student-athletes are no longer prohibited from earning third-party compensation from licensing their name, image, likeness, or other indicia of personality (NIL). The seismic shift invited vigorous governance debates in which the issue of institutional assistance in promoting, arranging, or otherwise facilitating student-athlete NIL activities became especially divisive due to the competing value interests of dissimilar NCAA institutions—namely use value interests versus exchange value interests.

This study applies sociological frameworks to college athletics to reveal the inherent shortcomings of soft law governance tactics in multijurisdictional conflicts that involve powerful special interest groups. Soft law, such as NCAA legislation, often aims to promote democratic cooperation between unequal industry actors across multiple jurisdictions, but its structural subordination to hard law, which necessarily wields formal legal authority derived from a single jurisdiction, poses a constant threat to dismantle contentious soft law solutions. The generative potential of powerful industry actors provides them with outsized political leverage that can be used to commandeer legislative priorities in their home jurisdictions, irrespective of any competing preferences from weaker industry actors. The present conflict between the NCAA and several state legislatures illustrates the tension: Where most NCAA member institutions relied on the NCAA’s soft law to effectuate their legislative priorities, state hard law regimes predictably eroded the NCAA’s ability to resist the unique commercial interests of the most powerful bloc of NCAA institutions. This maneuver effectively incapacitated the soft law framework designed to enfranchise the majority. Examining the evolution of NIL governance, this paper unveils the structural limitations of increasingly popular soft law strategies in navigating multijurisdictional conflicts, and calls for a reassessment of the soft law in those contexts where competing value systems promise to shape governance outcomes.

Author

• Kamron C. Cox, University of Illinois at Urbana-Champaign