Harry Whitman, '24 Winter 2024

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NCAA v. Bush is a case about the future of professional athletics in the United States. The National Collegiate Athletic Association (NCAA) has set the rules and boundaries of college sports since 1906. They also regulate collegiate athletes, prohibiting them from becoming paid professionals while playing for college teams. Before 2021, there were few people who were afforded professional business opportunities for athletics at the collegiate level. In 2021, the NCAA caved to decades of pressure and allowed for Name, Image, and Likeness (NIL) business deals for athletes. These deals allow athletes to profit off of their collegiate athletic ability by selling the use of their image in advertising and merchandise. Through income from NIL, college athletes can act as professionals in their field. Athletes can earn millions with these deals: Caleb Williams (a talented quarterback for USC) earned $2.8 million last season in NIL deals alone. A recent case, NCAA v. Alston (2021), set legal precedent that NCAA financial control over athletes has been unfair. Now, another case, NCAA v. Bush (2024) seeks restitution for athletes who lost statistical recognition of their achievements due to what Alston deemed illegal financial rules. If the plaintiff in Bush succeeds, it would retroactively cement Alston’s shift towards financial freedom for collegiate athletes.

Shawne Alston, a former West Virginia University running back, filed a court case against the NCAA in 2021 due to the NCAA restrictions on “non-cash education-related benefits.” Though Alston lost at the district and appellate level, the Supreme Court supported Alston. In that decision, the Supreme Court concluded that the NCAA violated antitrust law while limiting compensation opportunities for collegiate athletes. Justice Brett Kavanaugh stated that “there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary rule of reason scrutiny.” These compensation rules would substantially change with the inception of NIL months later, also in 2021.

 The NCAA was incorporated in 1905. Compensation was an issue even then, and it would continue to be an issue to the present day. Students who were already wealthy in 1905 gained significant monetary gifts starting with the first documented collegiate athletic contest, the Harvard and Yale boat race. The schools participating in athletic contests grew exponentially from just Harvard, Yale, and Princeton in 1905. With each charter, the NCAA included more schools and set clearer rules for competition and finance in collegiate athletics. Now thousands of schools in the United States fit into NCAA competitions and their financial regulations.

One idea remained through the NCAA charters (created each year since 1905) when legal cases brought the organization before the Supreme Court in 2021 and 1984. An interest in “preserving amateurism” was used to justify everything from NCAA v Alston (2021) to NCAA v Univ of Oklahoma, a 1984 case about television rights for athletic games. In sports, amateurism allows for friendly and fair competition between similar athletic programs. A guiding sentiment of collegiate American football is the idea that the competition is “real” and “for the love of the game itself, not money, fame, or a career.” Compensation complicates this sentiment. It causes a rift in fan bases because prospective athletes now consider the monetary benefits of joining different football programs. There are groups of fans who support compensation for collegiate athletes and want athletes to become paid professionals, even if a star athlete from their school transfers to a larger school for better NIL opportunities. There are also groups of fans who are against NIL deals, because this form of compensation is more supportive of schools with larger, wealthier athletic programming.

Reggie Bush is ranked as one of the best running backs in the history of the NCAA. He played for USC from 2003-2005 under (now NFL Seattle Seahawk) Coach Pete Carroll. Bush won the Heisman Trophy in 2005 for a record-breaking season at the position, but the NCAA demanded that Bush let go of the trophy due to alleged compensation before the NIL rules were enacted. Bush filed a lawsuit on August 23, 2023 in an attempt to reclaim his rightful trophy and NCAA records. In this lawsuit, Bush questions the NCAA’s motivations in “preserving amateurism.” Bush believes that “preserving amateurism” is a means that the NCAA uses to control star collegiate athletes and profit off of athletes’ abilities without fair compensation. After the NCAA learned of cash gifts from alleged agents who wanted to help Bush monetize his image, they publicized these findings. While Bush pursued an honest NFL career with a Super Bowl Championship win, the NCAA tried to remove his mark on collegiate athletics by destroying his records and reputation.

NCAA v. Bush will help determine the NCAA control over its athletes’ history if Bush wins. By placing this history in the hands of athletes like Reggie Bush and Caleb Williams, the NCAA will have legal precedent against the validity of their century-held idea of “amateurism.” Athletes will be able to control the time that they become professionals and make a significant career out of college football regardless of their chance at an NFL roster. If the NCAA wins, they will retain control over athletes’ records. As athletes' stats and accolades are recorded, these accolades would rest on the support of the NCAA. If an athlete breaks the guidelines of business deals through NIL, their stats, records, and collegiate history are in jeopardy. The NCAA will remain a strong factor in the time that athletes become professionals. Reggie Bush will lose the statistical impact of his career, he will continue to have no official NCAA statistics or Heisman Trophy record.

NCAA v. Bush has a trial date in February of 2024. Mr. Bush’s team is suing the NCAA for defamation, specifically libel. In order to claim defamation, Mr. Bush’s team will need to establish him as a public figure according to the Supreme Court’s definition of “public figure” outlined in Gertz v. Robert Welch, Inc. Public figures “(1) occupy positions of such persuasive power and influence that they are deemed public figures for all purposes or (2) have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved, and are public figures with respect to comment on those issues.” Mr. Bush’s case is built on the idea that he was a public figure as defined by Gertz v. Robert Welch, Inc. They will also have to prove that the NCAA’s statements about Mr. Bush in 2010 were libelous. 

The NCAA alleged a “pay for play” agreement between USC and Reggie Bush in which gifts were given in exchange for a commitment to play football at USC. “Libel” is defined as a false statement that harms another entity. A statement that is harmful to Mr. Bush personally is not significant enough to be libel. It must address Mr. Bush in that moment as an athlete, while also threatening his career in the NFL and beyond. The libelous statement must have malice, defined in NY Times v. Sullivan as “reckless disregard of whether it was true or false.” There is a significant case that may be made against the NCAA under these definitions of “public figure,” “libel,” and “malice” in writing the statements against Mr. Bush.

In 2010, the NCAA found that Bush, identified as a "former football student-athlete," was ineligible for play at USC beginning at least by December 2004. This ruling by the NCAA opened discussion about revoking Mr. Bush’s Heisman Trophy, the most coveted trophy in football at the collegiate level, because Mr. Bush’s statistical records were removed from the NCAA archives. This was the NCAA’s first act against Mr. Bush. They did not aim to revoke his entire athletic record starting in 2003; they specifically started with the season where Reggie Bush was the starting running back for USC and the eventual Heisman Trophy winner. The NCAA waited so it could build a case against USC with Mr. Bush as the focal point.

In the press release, the NCAA alleged that Reggie Bush and OJ Mayo (a star collegiate athlete who played in the NBA for a few years) committed similar violations while receiving illicit financial support. After the USC men’s basketball team vacated its records from Mayo’s single season, the NCAA took “no further action.” USC athletic director Mike Garrett said in 2010, "As I read the decision by the NCAA... there was nothing but a lot of envy, and they wish they all were Trojans." The NCAA report penalized USC football, men’s basketball, and women’s tennis. Women’s tennis was the only program where the years of alleged violations matched with the year of the press release.

A reporter for the New York Times concluded that “the (NCAA review board) took an uncharacteristically long time to issue its ruling after the hearing was conducted in February.” After discussing alleged financial violations, a BleacherReport columnist stated that “it all seemed to vanish one night and no action was ever taken against USC, or Bush.” There is no reason why the NCAA waited to punish Mr. Bush. There is no reason why the NCAA gave OJ Mayo a lighter penalty for the same alleged violation. There is no reason why the NCAA chose to revoke Mr. Bush’s status as a student athlete for the 2004 season, a penalty that the board knew would result in a Heisman Trophy Winner vacancy for the 2004-2005 season.

The NCAA stated that its reason for the investigation was that Bush and Mayo’s treatment “ran contrary to the fundamental principles of amateur sports.” The NCAA review board continued: “Elite athletes in high profile sports with obvious great future earnings potential may see themselves as something apart from other student-athletes and the general student population,” the NCAA report said. “Institutions need to assure that their treatment on campus does not feed into such a perception.” The NCAA conducted a multiple-year investigation because it believed that USC was in violation of NCAA policies, and that investigation was successful. Any focus on Mr. Bush by the NCAA, from their point of view, only occurred because Mr. Bush aimed to set himself apart from the general population with his illicit earnings.

The specific focus on Mr. Bush, Mr. Mayo, and the USC athletic program as a whole point to a deeper issue with NCAA determinations of correct financial actions. NCAA v. Alston opened the public to the idea that the NCAA does not allow for enough financial freedom. The “pay for play” idea, coupled with the removal of Mr. Bush’s stats from a specific season demonstrate that the NCAA is using financial restrictions to control its own history. As the NCAA restricts finances, it restricts the financial freedom of premier athletes without a serious impact on amateur sports. Financial freedom through NIL significantly changed Division I collegiate athletics. For the best players in the country, the ability to earn is now a factor that impacts admission at different Division I schools. No player in a division I collegiate program can be classified as an “amateur.” Qualification for Division I relies on years of strong athletic performance by a program at a lower level of competition. NIL does not impact amateurism at lower levels, the levels of Division II or III, because those levels are meant for athletes who are not completely devoted to athletic pursuits in high school or college.

The NCAA will need to argue the importance of amateurism in this case. Regardless of the libel charge, the real impact is the NCAA’s ability to determine post collegiate careers whether athletes preserved amateurism or not. The libel charges alleged by Mr. Bush can make “amateurism” a less significant point in the discussion of financing athletes in the NCAA. However, the NCAA will remain focused on financial transactions of its athletes. NIL deals are still growing in popularity and scope, there will likely be exponential growth of NIL agreements and payment structures as the industry of for-profit collegiate athletics grows. As the NIL deals continue to grow in popularity, the NCAA will need to ensure that the scope of all deals do not violate their goals.